A Helpful Primer for the Young Litigator

Preparing for trial can be a daunting task. Doing so can seem overwhelming to the newer litigator who may be facing impending court deadlines, writing and responding to contentious motions from adverse counsel, coordinating witness attendance and testimony, and facing the fear of an unknown outcome. Preparing for Trial: 60 Days and Counting (ABA 2015), written by Bruce W. Felmly, provides a systematic approach, based on experience, to ensure that even first timers can confidently put on their case when called to do so.

The book runs just over 100 pages, including a helpful topic index, perhaps recognizing that the harried litigator has little time for or interest in devouring a full-scale treatise. The full text is divided into six quickly digestible chapters that are conveniently organized in accordance with the amount of time remaining prior to trial. Throughout, the author intersperses personal anecdotes that help drive home the importance of each respective task. These add value by demonstrating, with sometimes humorous real-world examples, how thorough preparation can eliminate uncertainty and ensure readiness for trial. Additionally, checklists are sprinkled throughout and help provide a quick reference for those who may want to go back and reread the highlights.

Chapter 1 sets a framework for the discussion, noting the importance of teamwork and division of labor, and recognizing that no two trials are the same. Chapter 2 sets forth tasks that might be best accomplished between 60 and 30 days prior to trial, such as determining how exhibits will be prepared and presented to a jury, resolving any potential coverage issues, determining whether settlement negotiations should still be pursued, and determining how the case will realistically be perceived by a jury.

Chapter 3 is the meatiest portion of the book and covers days 30 through 20. Suggested items for completion include pretrial statements, exhibit and witness lists, proposed jury instructions, and a verdict form, among myriad other suggestions. This serves as a handy checklist to focus efforts toward ensuring that no time is wasted in the lead-up to trial. Felmly acknowledges that no two jurisdictions are the same and that deadlines for this checklist may vary, depending on the particular venue. Further, he provides background on how and why each task is important and how each contributes to readiness for the start of trial. Importantly, while he assumes a modest level of understanding of each task, he writes for a broad enough audience that the discussion is beneficial to both a first timer and the attorney who has already has one or two trials under his or her belt.

Days 20 to 10 are covered in a concise Chapter 4, dedicated to the pretrial conference, marking exhibits and resolving objections, and preparing the client for trial. This deals with the practicalities and horse-trading that can take place in determining what evidence will and will not come in, along with demystifying how jury selection will proceed. Chapter 4 also serves as a timely reminder that—as important as it is for the attorney to be ready for trial—the clients should be adequately prepared to know their role at trial and how they should comport themselves in and out of the presence of the jury.

Chapter 5 covers day 10 to day 3 and discusses preparing for witness testimony via direct and cross-examination, as well as learning as much as possible—without crossing lines—about potential jurors. The use of outlines for trial testimony is discussed at length, as is the importance of knowing areas of potential testimony, determining what evidence will have already been introduced during a particular witness’s testimony, and, above all else, retaining the ability to be flexible.

Finally, Chapter 6 covers the final three days prior to trial and provides helpful suggestions on how to put a fine polish on the case, now that all the hard work has been expended. This includes honing one’s opening argument, achieving the proper mindset, and reminding about the small things, such as having adequate office supplies, setting sufficient alarms, and being at the courthouse early. This discussion reinforces that, if the book’s suggestions have been heeded, the lawyer should feel as if he or she has done everything necessary to go to trial.

In sum, Preparing for Trial is a handy reference that combines wit and practicality in a single, short, and readily accessible read that will have you set for trial, as the author promises, in 60 days. “All rise!”

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The book is available for purchase today. Search this and other Litigation Section books at ShopABA.org  or by calling 1-800-285-2221.

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