It’s the moment of truth: A plea or settlement is not to be, and the judge has set a trial date. What now? Paradoxically, trial preparation can be a mix of tedium and instability: preparing exhibits, checklists, outlines, pretrial orders, motions, slides, and jury statements, while running around preparing live witnesses, hunting down last-minute evidence, ensuring that discovery obligations have been fulfilled, and refining the presentation of your case to be most persuasive to judge or jury. These are but a few of the thousand things that the lawyer preparing for trial must do. It’s the calm before the storm, the rehearsal before the show.
Yet, in many respects, trial preparation is its own storm and its own show. Whereas the courtroom is the final arena for the search for truth, what happens in the weeks and months before the trial often will dictate the outcome in the courtroom. For a trial lawyer, therefore, the period leading up to opening statements can be both harrowing and exhilarating.
I had the privilege and honor to represent the government as a federal prosecutor before the court on which I now sit as a United States magistrate judge. In my nine years as an assistant U.S. attorney, I tried and supervised numerous trials across a range of subject matters, and I confronted countless issues that arose before and during all of them. Based on that experience, what follows are my thoughts on best practices for setting up your case for success in the courtroom when trial becomes inevitable.
Before I begin, a couple of important disclaimers. First, the title of this article is somewhat of a misnomer. These few pages are not a comprehensive manual or checklist of “every little thing” that a trial lawyer must do before trial in every single case. Every case is different and has its own schedule and presents its own set of challenges. Moreover, trial preparation is a topic that could be (and perhaps at some schools is) a semester- or year-long course in law school. It is simply not possible to reduce to a brief article the entire subject of trial preparation, and I do not try to do so here. Instead, my thoughts in these pages present more generally a practical framework—an approach, if you will—for concepts that the preparing lawyer must think about and do. And in that regard, it is my hope that this framework will allow the preparing trial lawyer successfully to prepare for “every little thing” that arises in each individual case.
Second, although my trial experience was as a prosecutor, much of this article will apply equally to preparing a civil case for trial. The general concepts set forth below, I think, are universal.
Third, be mindful that many of the framework concepts I discuss below are interrelated. Where I think it important to think about or do something at a particular time during trial preparation, I say so. But many of the ideas here are things that you can and should be thinking about throughout trial preparation.
Finally—and most importantly—if I have learned nothing else in this profession, I’ve learned that you must be yourself and do things in ways that work for you. There is no one universal formula to prepare a case properly for trial. (For that matter, there is no one universal right way to try a case.) My thoughts in this article are based on my lived experience, what I’ve learned from those who came before me, and what I learned worked for me. If you think my suggestions won’t work for you, that’s OK. Take what you like, ignore what you don’t (I won’t be offended), and feel comfortable and confident to perfect your own approach.
Over the years, I’ve been asked many times, “When should I begin preparing for trial?” The answer, in my view, is simple but fundamental: Trial preparation should begin the moment you touch a case for the first time. Indeed, the prospect of going to trial, and therefore preparing for it, should permeate every step of a case’s development—from initial investigation and research, to the filing of criminal charges or a civil complaint, to discovery, to negotiation, and, ultimately, to the trial itself. The contours of a trial can be shaped from the case’s earliest moments, and a trial lawyer should be mindful about how development of a particular fact, issue, argument, or item of evidence might play out in the courtroom long down the road. To give a few simple examples:
This is not to say, of course, that you should immediately start drafting your opening statement or preparing trial exhibits the first time you speak to a potential client, receive a file, or read a report. This is, instead, a mindset that every trial lawyer should have. In the day-to-day evolution of a case—particularly in large and complex cases—attorneys can get so focused on the minutiae of what they are doing that day that they lose sight of why they are doing it and how it might affect a trial down the line. Thinking about the trial from moment zero and regularly thereafter will help best position your case for trial.
With our trial mindset properly calibrated, once the court has scheduled the case for trial, preparing for it can begin in earnest. Early in my career, I was taught that one of the first things you should do when preparing for trial is to draft your proposed jury instructions (if the trial will be a jury trial, of course) because doing so has multiple advantages.
First, it helps the attorney tailor his or her legal theories and evidence to the legal instructions that the jury will be given. This helps formulate a logical and persuasive presentation to the jury.
Second, it gets the attorney thinking critically about the battleground—i.e., the major areas that will be in dispute. Thinking about how the jury will be instructed on legal concepts helps the trial lawyer put himself or herself in the jury’s shoes and, in my opinion, makes for a more effective presentation.
Third, it presents an early opportunity for advocacy that can make a difference in subtle ways with the court and, ultimately, the jury. Attorneys often will blindly cut and paste applicable model jury instructions on a particular claim or issue and shoot it off to the court, without thinking carefully about tailoring them to the specific needs of that particular case. In my view, this is a big mistake and a lost opportunity. To be clear, I am not suggesting that attorneys wing it and draft proposed jury instructions without regard to their courts’ preapproved instructions. Quite the contrary. Trial attorneys absolutely must heed applicable precedent regarding jury instructions. My point is that attorneys should work off of model instructions and tailor them precisely to the specific needs of that case. No two cases are exactly identical and so model instructions are simply that. Work with model instructions to propose jury instructions that are faithful to applicable law but also address the specifics of your case. At worst, even if the court does not accept your proposals, drafting those instructions will force you to think critically about issues that in the end may well be outcome-determinative.
Drafting careful and tailored jury instructions is a tedious process, but it is a necessary exercise that you’ll have to do regardless, so you might as well do it right and early because doing so can pay dividends down the line. Doing so also will help you frame your own preparations to present the most persuasive and effective case to the jury.
By the time a trial date is set, you naturally will have already developed a good sense of the case. Yet, trial preparation—when you buckle down to putting the nuts and bolts of the trial together—is as good a time as any to rethink the case anew because there may have been things that you missed along the way. There may be opportunities for new arguments or even new case theories. The outset of trial preparation is an opportunity to level-set and see if there is evidence that you collected early on in the case that has gained new significance in light of new information that you discovered later in the case.
In some cases, time will be a limiting factor. A tight schedule may limit the window within which you have to prepare for trial and, thus, to experiment. By contrast, if you have a firm trial date months in advance, you can use that window to your advantage by casting a wide net early and winnowing your presentation to its essentials from there.
So what does that mean in real terms? Start from scratch. Spend time combing through all of the materials in the case file. Review the docket from the case’s very beginning. Look through the evidence. Take time to inspect physical evidence (a tip I suggest in more detail below). I guarantee you will discover things you forgot about or that you glossed over as the case developed. Many materials will remain inconsequential, but there may be things in the papers or the file that, in the crucible of trial, take on added importance to the finder of fact. Don’t be afraid to approach this exercise with a critical eye and challenge your original views or theories as possibly misguided. One of the biggest traps a trial lawyer can fall into is falling in love with his or her case and overlooking other arguments that were there for the making. Don’t let golden opportunities pass you by.
Whether it’s a one-day criminal prosecution or a more complex business dispute, organization is key. In any case, I am a big fan of mapping out all aspects of a case with checklists, charts, and spreadsheets. For me, the utility and importance of these materials is immeasurable, and the more experienced I became, the more charts and checklists I created. Remember: The kinds of charts and checklists and spreadsheets that you can use are limited only by your imagination and the needs of your case.
To-do list. For starters, I always—always—kept a running to-do list in a Word document, which I updated constantly. In these checklists, I would include whatever tasks my team needed to accomplish, roughly in the order in which they needed to be accomplished. Depending on how much time was left before trial, I sometimes would include a deadline by which particular tasks needed to be completed. I would include items large and small on the list, from the most fundamental to the most menial. And we updated this checklist often.
Discovery spreadsheet. I also often would consult the master discovery spreadsheet that we earlier had generated in the case, which tracked in detail all items that had come into our possession and that we had produced in discovery. This is the broad net that we used to cull our entire universe of evidence and identify what truly was necessary to present during the trial. Although it was not developed specifically for trial, a good master discovery spreadsheet has an added benefit: In the throes of trial preparation, when you’re focusing on preparing your key witness outlines and jury statements and the like, the last headache you need in your life is a claim from opposing counsel that they did not receive a critical piece of evidence during discovery and a demand that it be produced. A detailed and organized discovery spreadsheet will help you and your team figure out if the claim is correct and respond appropriately without much difficulty.
Evidence spreadsheets. Once we selected the pieces of evidence that were the most likely candidates to be introduced during trial, I would prepare a comprehensive evidence spreadsheet, which I ultimately used to help generate my exhibit list. Depending on the size and complexity of the case, I would separate categories of evidence in different Excel tabs. Within each evidence category, I would identify as much information as I could about each item of evidence: source, date, identifying numbers (serial number, Bates number, evidence intake number, etc.), who collected the evidence, who could authenticate the evidence, which witnesses might have to testify about the evidence, where the evidence then was located (if it was physical evidence), and a short blurb about what the evidence proved. As we refined our trial presentation, this became a document that I consulted multiple times per day.
In a complex case, I would also generate stand-alone spreadsheets dedicated to specific categories of evidence. For instance, in a multi-defendant prosecution that I handled in which much of our primary evidence consisted of hundreds of telephone and text message communications intercepted during a court-authorized wiretap, I created an entirely separate wiretap evidence spreadsheet. On this spreadsheet, my trial partner and I collated the relevant communications we potentially would introduce at trial. We included with each entry the date and time of the communication, the participants, the telephone numbers used on each side of the communication, and a brief synopsis of what the communication was about. Then, during our preparations, we whittled the list down to only the essentials. We also created from this spreadsheet a separate chronological call sheet that set forth, in order, the intercepted communications that we would introduce to tell the story at trial. Using this spreadsheet and the call sheet we developed from it helped us keep track of a significant body of evidence and give the most compelling and streamlined presentation to the jury.
Witness list. Of course, you also need a witness list. For me, this often was more than a simple bullet-point list of names. I often would keep a more detailed chart or spreadsheet that identified not only the witnesses in anticipated order of testimony but where each witness lived, the exhibits that would be introduced through the witness, and blurbs on the material things about which the witness would testify. Naturally, this spreadsheet would be updated and reordered regularly as we learned new things and as we prepared the witnesses for their testimony.
Trial outline. I also kept a running “order of proof” that would ultimately serve as my master trial outline. This order of proof is, as its name suggests, the order in which we would present the case, listed from the first witness to the last. Although the format differed from case to case, in one way or another I would include the elements of the offense or offenses that we needed to prove and that each particular witness’s testimony would help satisfy. The order of proof also would list each exhibit that we would introduce through each witness.
Exhibit list. Next, I always sought to create my exhibit list as early in trial preparation as I could. As much as possible, I tried to organize my exhibit list in whatever way that made sense in the context of the case. Where the case was simple and straightforward and the body of evidence was small, I would list the exhibits in the order in which they would be introduced at trial. Where the case was more complex and the evidence was interrelated, I typically would use my evidence spreadsheet (discussed above) and group the evidence on the exhibit list by category. My goal, ultimately, was to be able to keep the body of evidence organized in my own head so that it could be introduced and then conveyed to the jury in a coherent and straightforward way.
A few practice pointers on exhibit lists and exhibit numbering: First, the numbering system that you use does not make a particular difference, so long as it is internally consistent and understandable. Depending on the size of the case, exhibits series may be helpful. For example, physical evidence could fall in the 1000 series; bank records could fall in the 2000 series; wiretap evidence could be in the 3000 series, etc. In a smaller case, you could simply start at 1 and go up from there with each exhibit. As I say, the numbering system that you select doesn’t much matter, as long as it makes sense and can be explained.
Second, I usually kept an internal exhibit list and an external, “official” list that I used with the court, my adversaries, and the jury. The “official” list was simply the list of numbered exhibits and a brief description. My internal list had my own work product in it, such as headers and notations that identified specifically the way that we had grouped or organized the evidence on the exhibit list.
Third, once you assign exhibit numbers to evidence, try your absolute best not to change them. It can be very tempting, as you change the order in which to present exhibits, to then re-number them so you’re introducing the exhibits in number order. Trust me—I learned this the hard way—you’ll drive your paralegal or trial assistant bonkers if you do this. Exhibits can be presented out of order, and as long as you can explain the body of evidence coherently during your closing arguments, the fact finder usually won’t even know the difference.
Creating and maintaining all of these lists and charts can be tedious and time-consuming. And some may view them as inefficient. Perhaps. For me, though, maintaining comprehensive inventories of everything that would need to be presented during the trial prevented things from falling through the cracks. In making lists like these, I created built-in redundancies that ensured that my team and I were thinking about all aspects of our presentation, and doing so at different times from different angles. It’s also important to note that maintaining these checklists, charts, and spreadsheets is fluid and dynamic—because trial preparation is fluid and dynamic. As trial preparation progresses, things change, you learn new facts, your evidence will change, and you modify your arguments and theories.
Witness outlines are an obvious, but important, task for trial. This exercise will vary drastically from attorney to attorney based on experience and style. My approach very much mirrored my overall approach to trial preparation—I would draft outlines early on with broad topics and refine them as preparation progressed, culling them to ensure that we were covering our bases and presenting necessary evidence and testimony but, at the same time, taking care not to present extraneous or unnecessary information to the fact finder. The goal, of course, is to have a crisp presentation that gives the judge or jury the necessary evidence in a credible fashion and in a way that keeps their attention and interest.
Much of the development of your witness outlines (particularly with your own witnesses) goes together with meeting with and preparing your witnesses, a topic I discuss below. So, naturally, as you prepare your witnesses, you’ll want to revise your outline accordingly. Here again, be open to substantial revisions, with a self-critical eye and the willingness to change if something isn’t working right.
In addition, you should be developing your exhibits in conjunction with preparing and revising your outlines. You can use the various checklists and spreadsheets described above to help you prepare the actual trial exhibits that you will introduce through each witness and to prepare the witnesses using those exhibits. I made a practice of listing, at the top of every witness outline, each individual exhibit that I intended to introduce into evidence through that witness. That way, at the close of the witness’s direct testimony, I would quickly double-check to make sure that all of those exhibits had been introduced. As I got more experienced, I also highlighted my witness outlines at each point that I wanted to stop and admit an exhibit. I found early in my career that I would get so engrossed with questioning the witness, that I would sometimes skip the step of admitting exhibits, and then I’d have to go back. Bright-blue highlighting helped me not to do that.
With respect to physical evidence, I strongly recommend that relatively early in trial preparation, you spend a full day (or multiple days, if necessary) combing through all the physical evidence that has been collected during a case. I cannot tell you how many times I have identified incredibly strong arguments simply by looking at and inspecting physical evidence previously collected. Things like bank deposit slips, lease agreements, identification markings on narcotics packaging, clothing, and markings on bullet casings were given significant airtime during trials that I conducted because of little things discovered during inspection of physical evidence. Those who collected the evidence may not have identified or appreciated the significance of things that you, as the trial lawyer, will see. So in my view, you, as the trial lawyer and in keeping with an overall holistic approach to the case, should pore over that evidence yourself. This evidence review also will give you an opportunity to ensure that there is a proper chain of custody of all physical evidence, that it can be properly authenticated, and that you can prepare for any admissibility objections.
During my trial career, I routinely found that preparing witnesses to testify was the most difficult challenge to navigate. There are many reasons for this, but a few come immediately to mind. Witnesses are people, and people are unpredictable. People have their own lives, their own priorities, their own schedules. This is particularly apparent with lay witnesses who don’t have a personal interest in your case but simply saw or heard something, or who have relevant information. These witnesses may not care enough about the case, or care as much as you do, or think they need to. Witnesses also have their own skills and weaknesses, which may or may not align well with giving good, convincing, credible testimony. The human brain and memory further complicate things considerably. Suffice it to say that you can be the most prepared lawyer in the courtroom, but when it comes to preparing witnesses to testify, you still must be ready to react to the unexpected.
Given the uncertainty, it is impossible to set forth a one-size-fits-all formula for preparing a witness. But here are a few suggestions: Once you have identified likely trial witnesses, meet with each, in person, sufficiently in advance of the trial simply to have an initial conversation, introduce yourself, and get to know the witness. Do this before preparing a full witness outline. Have, at most, a bullet-point list of topic areas to discuss. Most of the initial meeting should be spent getting a feel for the witness and asking open-ended questions to get the witness talking, to hear an unvarnished, not-necessarily-trial-ready account of the witness’s story. Subsequent prep sessions can be used to refine testimony and practice Q&A, but at this meeting I wanted to try to connect with the witness and, hopefully, gauge the witness’s comfort level with the prospect of testifying. Once you learn the witness’s story straight from his or her mouth, then you can begin to draft a witness outline for direct testimony.
After my initial meeting with the witness, my comfort level with the witness and whether he or she needed more or less practice would dictate how many additional prep sessions I should hold. Typically, I would conduct at least two additional full prep sessions with each witness, where we would go through the witness’s complete direct testimony, as if he or she were testifying at trial. As necessary, we would stop and discuss issues or questions that arose, and we worked on particular phrasing of key testimony. Of course, depending on the case and the particular witness’s strength, we might decide on more or fewer prep sessions. And usually during these full prep sessions, we would discuss what we anticipated cross-examination would look like. Depending on the importance of the witness’s testimony to the case, mock cross-examinations may be necessary so the witness can prepare for the coming challenges to his or her credibility. I would usually try to time the last prep session a day or two before the witness was scheduled to testify. If possible, the morning of the witness’s testimony, I would usually just have a conversation with the witness to get him or her in the right mindset, to make the witness comfortable, and to address any last-minute questions or issues.
With most things in law (and in life), I am of the view that the more you practice something, the better the outcome will be. (For that point, see the discussion below regarding jury addresses.) I semi-subscribe to that view when it comes to witness preparation because I am the type of person who always wanted to have everything just so. But with witness preparation, there definitely is a limit. You must have a feel for the witness because over-preparation can be counterproductive. While there is no one universal correct approach to prepare a witness properly, you do need to find a balance between preparation and exhaustion. If you over-prepare a witness, you also run the risk of having his or her testimony come off as too rehearsed, decreasing its credibility.
All in all, while witness preparation is challenging, I always found it to be one of the most fun parts of preparing for trial. This profession is about people, and there is no better opportunity to connect with people than during trial preparation. Preparing a witness comes with experience; the more you do it, the more comfortable it becomes.
Given the constant state of flux and refinement during trial preparation, I think it important to have regular team meetings to go over what has happened since the last team meeting and what needs to be done next. We would typically hold these meetings every few weeks, and it would include my trial partners, the main case agents coordinating the case with us from the law enforcement agency, as well as the assigned paralegal who would conduct the trial in the courtroom with us. These meetings would naturally happen on a more informal day-to-day basis as we accomplished specific tasks. But we also set time aside every few weeks for a dedicated team meeting to go over our running to-do list. It was during these meetings that we would revise the to-do checklist, checking off accomplished tasks and adding new things that had arisen. We also would assign anything that needed to be completed in the near term to a particular team member (or, if appropriate, multiple team members).
These case meetings serve as important reminders to take a breath and take overall stock. I always found it helpful to have a near-final case review a few weeks out from trial, and then a final review the week before. During these near-final and final reviews and team meetings, our team would go over the fundamental aspects of the case. Do we have our core theories and legal arguments refined and ready? How are the jury addresses coming? Are our witnesses lined up and prepared? Are the exhibits and exhibit list generally ready? Have all appropriate motions been filed according to the trial schedule, and are there any open legal disputes that remain for resolution? Have any lingering discovery issues been sorted out? We would also use these meetings to discuss trial logistics—who would be responsible for coordinating witnesses’ arrival at the courthouse and would the next witness be ready to go when the prior witness’s testimony was finished? Who would be responsible for ensuring that the physical evidence to be introduced on a particular day would be in the courtroom and ready to go? These final case reviews provided the best (and last) opportunities to ensure that all was in order.
Particularly in the few weeks before trial begins, things can get so hectic with final pretrial motions, conferences, and hearings, that it can be difficult to spend the time necessary to perfect your jury addresses (or opening statements and closing arguments to the court in a bench trial). Obviously, opening statements and closing arguments—while not themselves evidence—can be the impact moments that make or break your case. The opening statement is your opportunity to frame the case for the fact finder, to tell the jury (or judge) what the case is about and what the evidence they are about to hear will show. Closing arguments are equally, if not more, important, for you’ll need to weave the admitted evidence together with the principles of law and explain to the decision- maker why your side should win. Do it right and the fact finder will be on your side even before considering the evidence; do it wrong and you create a gaping hole for yourself.
Given all this, in my view there is no point at which practicing jury addresses becomes too much. When I would be the attorney giving an opening statement, I would begin drafting my comments weeks (sometimes months) in advance. This will differ according to preference and style, but for me, I always typed out and edited (and edited and edited) my jury addresses verbatim, exactly how I wanted to say them. It rarely came out in the end exactly how I had written it, but I wanted to have on paper precisely what I wanted to say. And then I would spend time early on reading out loud what I had prepared, to get a sense of tone, rhythm, flow, and timing. As I became more comfortable with the draft, I would practice it, standing up, in a conference room, to get comfortable walking around as I would before the jury. And then I would repeat ad nauseam. I would practice it early in the morning before things got hectic, and I would practice it late at night when things calmed down. I would practice for my wife, my in-laws, whoever was patient enough to listen to me. I would practice it in front of a mirror, self-conscious as it made me.
Once you’re sufficiently comfortable, it’s always a good idea, in my opinion, to do a full moot opening jury statement (and sometimes a moot closing argument) before your colleagues so you can get their learned opinions. As a practice pointer, consider asking administrative or other non-lawyer colleagues to sit in on your moot jury addresses, particularly if you will be trying the case before a jury. Colleagues who are not practicing attorneys and who have no prior knowledge of the case can give you perspectives that will be similar to reactions that everyday jurors will have. (This is also why I practiced for non-lawyer family members.)
It was my practice always to memorize my jury address, but I also paid careful attention not to be so wedded to the specific words that I had written, because I wanted to keep the presentation conversational. Although I had written the address verbatim exactly how I wanted to say it, I intentionally allowed myself to give the actual address naturally, however it came out. With a few exceptions for key phrases or themes that I wanted to be absolutely precise with, having a natural, conversational presentation was more important to me than using words that were just so.
On the day that I was scheduled to give my address, I made it a tradition to arrive at the office several hours before court started and before anyone else in the office had arrived. In the morning solitude, I would practice my jury address one or two more times. And then it was go time!
As you can see, in my view, much of trial preparation is setting up an organized, coherent process to ensure that you’re covering all your bases and that nothing slips through the cracks. To me, successful trial preparation is far more about setting up a plan than it is about execution of any individual task along the way. Organization and planning are paramount. That is not to say that you won’t have to adjust your plan as things happen, of course. But if you have the foresight to plan ahead and the confidence to be flexible and adapt when the need arises, you’re already ahead of the game.
As I said at the outset, the concept of trial preparation is not something that one can capture entirely in a few short pages. If I had to give one piece of advice, it would be to emphasize again that you must find an approach that works for you and seek to perfect it. The approach I describe in this article worked for me, although I confess that I never got to a point where I had my approach perfected. No trial is executed with perfection, and to me that’s part of the thrill. I look back on every single case I tried and can identify things that I wish I had done differently during trial prep. Seek perfection but know it will never come. And that’s OK.
I hope my thoughts prove helpful in preparing for every little thing that might come your way in the next trial and in trials for years to come. Good luck!
