chevron-down Created with Sketch Beta.


Reading Beyond the Opposition

William Carlucci and Michael Charles Zogby


  • Preparing for trial involves analyzing opposing counsel's exhibits and deposition designations to understand their case themes and evidence presentation, aiding in counter-strategy development.
  • In mass tort cases, deciphering opposing counsel's strategy is challenging due to potentially irrelevant exhibits and testimony borrowed from past cases on the same subject.
  • Strategic use of motions in limine, objections to deposition designations, and exhibit list objections can exclude evidence and provide insights into the opponent's trial strategy, enhancing your own trial preparation.
Reading Beyond the Opposition Adriansyah

Trial is approaching and the task of sifting through opposing counsel’s seemingly endless exhibit list and deposition designations is at hand. From these disclosures, you are trying to glean what their themes of the case will be, how they will present the evidence, and the key points they will try to highlight, which will help you strategize how to counter them. 

In the mass tort world, gazing into the crystal ball to determine opposing counsel’s strategy is made all the more difficult when many of the identified exhibits and designated testimony appear to have limited relevance, or none whatsoever. Rather, they are cobbled together by combining what other attorneys have done in past cases on the same subject.

Seeing how opposing counsel responds to motions in limine and objections to exhibits and deposition designations helps to illuminate what evidence will be presented and how.

Motions In Limine

While the upside of winning a motion in limine is readily apparent, that is not its only potential benefit. Two trial lawyers can be presented with the same set of facts and the same law, yet based on their experience and perspective, they can have vastly different views on how best to use the evidence to appeal to the jury. Especially in the world of multidistrict litigation remand trials or other serial trials, the key themes presented to a jury can differ based on factors such as the jurisdiction and jury composition.

To find out if the adversary will take the same tact as a prior case, consider finding justifiable grounds for a motion in limine. At best, that topic is excluded from trial. And even if the motion is denied, you can learn how opposing counsel intends to use that evidence at trial based on how strenuously they oppose the motion, how they attempt to justify the relevance of the evidence, or how they fit the evidence into the larger puzzle of their trial strategy.

Deposition or Prior Trial Testimony Designation Objections

Does opposing counsel really like the testimony they designated, or do they just trust that the attorney who took the deposition or conducted the prior trial examination knew what they were doing?

As with motions in limine, seeing how and why opposing counsel counters your objections to deposition designations speaks volumes to their ultimate goal of presenting the testimony. How will they tie the testimony to that of other witnesses, to elements of a cause of action, or to a defense? Looking beyond the rule of evidence that opposing counsel cites and seeing how they use that rule to justify the designation allows you to learn how they see this case coming together.

Exhibit List Objections

Objections to exhibits provide perhaps an even greater ability to strategize for the trial. Just as with motions in limine and deposition designation objections, you can learn where your opponent sees the exhibit fitting into their case. Taking the next logical step from there, you can begin to think of further challenges to the exhibit should the court overrule your exhibit list objection.

Perhaps opposing counsel counters a relevance objection by identifying the intended witness testifying about a particular exhibit. That knowledge would allow you to plan and put together talking points or a bench brief concerning a lack of foundation or other objection that can be raised when the exhibit is offered at trial. The more knowledge you can glean from the pretrial submissions, the more arrows in your quiver for trial.


While the work of these pretrial submissions is often arduous, thinking strategically about how best to maximize their effect can truly affect the strategy for trial. While the ultimate goal of motions in limine, objections to deposition designations, and exhibit lists is to exclude certain evidence, an attentive and strategic lawyer can learn their opponent’s game plan through the process. Delving into the subtext of the opponent’s arguments can help bring to light the key themes they will attempt to use at trial and will allow you to better strategize how to present your own case.