1. Establish Clear Lines of Communication
While it may seem painfully obvious, one of the best ways to ensure success before and during trial is to maintain clear lines of communication. Complex trial teams involve a lot of individuals, including not just the trial lawyers and the attorneys and paralegals who assist with things like outlines, legal arguments, and never-ending strategy decisions, but also often including appellate lawyers, science teams, corporate discovery teams, and graphics vendors and other support personnel. One might shrug off advice as basic as “communicate clearly across the team” until one has seen a communication breakdown damage a client’s case in the courtroom—like at one pretrial hearing where the court was to hear dozens of Daubert motions and motions in limine filed by the parties, when it became clear that opposing counsel had failed to assign anyone to argue a handful of them.
So what are some ways to communicate well within the trial team? You probably have many of your own ideas in mind, but here are a few examples to consider: Set up email distribution lists for the team at large and within individual groups. Calendar regular calls and set an expectation of detailed reports and follow-up. Create and maintain a pretrial plan document as a “one-stop shop” for trial team members to monitor court deadlines, work assignments, motion in limine rulings, witness preps and trial availability, and other items. If you stack a number of these communication efforts on top of each other, you will go a long way toward delivering a great outcome at trial and reducing team and client headaches to boot.
2. Develop a Coherent Plan for Addressing the Court and Opposing Counsel
As those in the trenches know, trials are often won or lost in the margins: off the record, in conferences with the court, and in dealings with opposing counsel. Ask yourself and your team to think critically about the key issues on the horizon: What issues from the prior day’s testimony need to be addressed? Evidentiary concerns you see coming? Witness availability or trial pace issues of which the court needs to be apprised? And who from the trial team will handle? Are there stipulations or negotiations that should be broached with opposing counsel? Are there issues you anticipate opposing counsel to raise with the court, and have you developed a reasoned position and response? Are the judge’s views about evidentiary matters or relevance becoming clear throughout the trial? Is there a recurring issue or argument that the judge is getting tired of hearing, that your team needs to back off from? Consider carving out a portion of your nightly team meeting or developing an email thread each evening with key team members to strategize on those matters to be raised with or responded to before the court or dealt with in talks with opposing counsel.
3. Listen and Adapt
The old mantra of “plan your work, work your plan” is great to live by, but when it comes to trial, the team must be prepared to adapt. You learn something new every day of trial—about, e.g., how your opponent plans to present the other side’s case, what’s resonating with the jury, what’s “clanging,” and what your greatest challenges will be in convincing the fact finders to come down on your client’s side. For example, in a pharmaceutical or medical device case, you may not know until voir dire that your panel possesses medical, scientific, or other relevant experience. Or you may not have known, until an aside by opposing counsel during a conference over deposition designations, that the other side plans to concede an evidentiary issue or not pursue a particular factual theory.
The strength of the trial team is the team—a group listening and thinking critically about the strategy necessary to present your client’s case in the most effective manner possible. This includes adapting the strategy as things progress. As the trial captain, you’re there to develop ways to collect this intelligence from disparate sources, organize it for decision makers, and efficiently develop plans to respond to or capitalize on it throughout the trial. There’s no one way to do this, but consider something like a Post-it pad or whiteboard on the walls of the war room where team members can share bullet points about persuasive statements from witnesses, key expert testimony, or challenging issues that should be addressed through testimony or closing argument.
4. Help Your Team Meet Triumph and Disaster Just the Same
Every trial team will have its share of victory and defeat along the way. As wise trial lawyers have probably told you, the other side’s case is supposed to sting—that’s why you’re in trial. It’s easy to commiserate over a damaging cross-exam, and it’s even easier to bask in the success of a favorable ruling or line of testimony. While it’s good to recognize success and failure along the way, dwell too long and you may find your team caught flat-footed at the next challenge. Legendary basketball coach John Wooden once said, “Don’t let the peaks get too high and the valleys too low.” As the trial captain, you can help keep results in perspective by emphasizing a culture that is solution-oriented and forward-looking.
Conclusion
While every day (and sometimes every hour . . .) of trial brings surprises and challenges, giving forethought to these and other ways to guide your team will help ensure the group meets any situation head-on. Every trial team is different, and there’s no one-size-fits-all solution, so trust your instincts. After all, you were chosen to serve as trial captain for a reason.
