A non-negotiable action item when preparing for trial is to review and master all applicable rules, procedures, and protocols relevant to your case. Counsel should carefully review the Federal Rules of Civil Procedure (or their state equivalents), the local rules, the judge’s rules, administrative orders, and all other case-specific orders. It is also wise to consult with other attorneys who have appeared before the presiding judge to glean insights into the judge’s preferences and procedures. Gaining fluency in this foundational knowledge avoids frustrating the judge, builds trust with the judge, and shapes one’s approach to trial strategy for the better.
It is essential to meticulously track all critical deadlines, such as those provided in the scheduling order under Federal Rule of Civil Procedure 16(b) or the state law equivalent. Key deadlines not to be overlooked include deadlines to disclose exhibits, file dispositive motions, file pretrial motions, conduct settlement conferences, and, of course, the trial itself. Likewise, counsel must review any additional deadlines imposed by the local or other rules that the scheduling order does not cover. Needless to say, adhering to deadlines is critical for competent representation of a client, case management, and maintaining one’s professional reputation.
Counsel should create a trial plan that details each segment of the trial (voir dire, in limine motions or other pretrial housekeeping, opening statements, closing arguments, motions for directed verdict, witness examinations, etc.) and delineates responsibilities among team members, including partners, associates, paralegals, and legal assistants. Trial plans may also include the contact information for team members, witnesses, and client representatives. Likewise, counsel should prepare a “task list” of every item to be completed, such as a timeline of key events, logistical arrangements, preparation sessions for witnesses, and preparation of exhibits. Counsel should also be prepared to incorporate updates or strategic shifts in the trial plan whenever necessary.
The effective preparation, organization, and presentation of evidence is crucial. From the outset, an electronic database should be used to establish a systemized collection of key documents and facilitate easy access for the entire team. Counsel must also draft an exhibit list and circulate the list for team members to review. If any demonstrative exhibits are to be used at trial, counsel must ensure that those demonstratives comply with all applicable rules. Upon receipt of the opposing counsel’s exhibit list, each document must be carefully reviewed and objections to any exhibits should be discussed among team members to evaluate their weight and admissibility. You should review opposing counsel’s objections to your exhibits and prepare a strategy to get your exhibits admitted into evidence. It may be necessary to prepare short memoranda of law on objections to key pieces of evidence, whether through motions in limine, which usually must be filed according to the trial order, or “pocket briefs,” which are short summaries of the law that aid argument during trial.
Preparation of witnesses for direct and cross-examination is essential and may be time-consuming. Although witnesses vary in terms of comfort and familiarity with the examination process, all witnesses benefit from thorough preparation. Counsel should draft witness outlines for each witness and conduct one or more practice sessions with each witness to discuss and simulate the examination process. Witnesses should be familiar with documents they may be shown and asked about during the examination.
Counsel should draft outlines well in advance and extensively practice courtroom presentations, such as opening statements and closing arguments. Presenting alone and with an audience is essential to refining the presentation, increasing the persuasiveness of delivery, and anticipating questions and practicing answers as necessary. Counsel should also consider implementing technology and ensure comfort with using that technology to avoid technical mishaps or similar issues during proceedings. A PowerPoint presentation, live use of a website, or displaying photographs and videos, for example, can all be powerful and persuasive tools that engage visual learners and command attention. However, the perfect PowerPoint presentation is useless if you are unable to use the available technology. Many courtrooms invite lawyers or their team members to visit in advance of a trial to test their technology, an invitation that should not be refused.
Early-career attorneys are well advised to connect with more experienced litigators to gain insights and advice when preparing for trial. The legal field is inherently collaborative, and experienced attorneys are often eager and willing to discuss their experiences and provide guidance. Conversely, early-career attorneys should not underestimate their capabilities to provide support at every stage of the process. Despite everyone’s best-laid plans and efforts, unforeseen changes and time constraints may require new attorneys to step up to the plate when required. Being as knowledgeable as possible on all facets of the case, even parts of the case being handled by other attorneys on your team, will give you confidence and the ability to step up when you are needed.
Finally, attorneys should not miss the opportunity to reflect on the trial process once it is done. The months and weeks before trial can be intensely demanding, and the trial itself will go quickly once it starts. Once the jury renders its verdict, and after you get a good night’s sleep and the excitement of trial clears, counsel should take a moment to reflect on the experience and identify what went well and areas for improvement, and even distill and reduce particularly exciting moments to writing for future reflection and inspiration. Do not be afraid to ask for feedback on your performance from your teammates or even the trial judge where appropriate. Constructive criticism will help you learn and make you better prepared for your next trial.
Preparing for trial is an experience unlike any other, especially for early-career attorneys. It is both immensely exciting and accompanied by hard work, which inevitably requires diligent preparation. When in doubt, new attorneys should turn to more experienced mentors for guidance, but they should also be willing to work hard and follow the steps in this article for success.
