The post-discovery conference has concluded, and you are headed to trial. Here are seven tips to keep in mind that will help you prepare for and win your first (or next) trial.
As with everything else in life, preparedness is the key to success. Your trial strategy should be guided by your mastery of the facts, allegations set forth in the pleadings, as well as the statutes, regulations, and cases that support your client’s position. Be realistic about the strengths and weaknesses of your case and view the opposition’s case through the lens of opposing counsel—or, at least, a realistic opposing counsel. Bear in mind that gathering the necessary proof is not enough to prevail. A firm grasp of the rules of evidence that govern the admissibility and use of the proof obtained through investigation and discovery is essential.
As part of your trial preparations, make a to-do list of all that you must accomplish prior to trial. Your checklist should include all requirements flowing from the court’s trial management order, which specifies obligations you must satisfy prior to the pretrial conference. These obligations provide you with opportunities to streamline. For example, counsel should, as required by most local and chamber rules, engage in a good-faith, diligent effort to stipulate to applicable facts and law. If there is no legitimate dispute about certain relevant facts, then enter into the appropriate stipulations. These stipulations will save time, money, and aggravation for all concerned. If you feel reluctant to stipulate to irrefutable facts because doing so may defeat your client’s claims or defenses, your case probably should not be going to trial in the first place. Moreover, if the trial judge recognizes that counsel have not made a good-faith effort to stipulate to obvious known facts, he or she may send counsel back to the drawing board to achieve the stipulations that should have been filed in the first instance. Foot-dragging can cost you precious time.
The trial management order provides for the filing of the attorneys’ respective pretrial memoranda of contentions of law and fact. Do not waste this opportunity to educate the judge. Instead, consider it your written dress rehearsal for trial. Rather than submitting a perfunctory memorandum, file one that clearly, concisely, and comprehensively explains your client’s theory of the case, identifies evidence that will be offered in support, and argues anticipated legal issues. Before putting fingers to keyboard, reread all pleadings, significant rulings in the case, deposition transcripts, and key decisions in similar cases with an eye toward how each one supports or undercuts your case and that of the opposing party. Review all exhibits to ensure you have an appropriate witness who can authenticate your documents, confirm their accuracy, and testify to how they fit your client’s narrative. Such preparation will allow you to equip the judge with a “playbill” explaining precisely what is to come at trial. This preparation will also reinforce your grasp of your client’s case and help you identify any weaknesses that must be addressed during trial.
In addition to preparing and filing pretrial motions, briefs, proposed stipulations, and trial exhibits, you must complete another essential task prior to trial: drafting outlines for direct and cross-examinations of lay and expert witnesses.
Annotate your witness outlines to ensure that you tie the appropriate witness to the document or documents you seek to introduce. Whether conducting direct or cross-examination, do not lean heavily on a script. If you do, your presentation will sound stilted and will not engage the judge. Remember, your job is to tell a story that conveys a clear, persuasive narrative. When you over-script, your focus will be on asking your next question rather than on the witness’s testimony. And by failing to listen to the witness’s answers, you may miss the opportunity to ask follow-up questions or move to strike improper testimony. Flexibility and the ability to pivot from one section of your outline to another are essential, as is a swift reaction time to a witness’s answer. Deep reflection or meditation on the effect of a witness’s testimony is not a luxury you can afford at trial. A comprehensive understanding of the facts and applicable law, developed long before you enter the courtroom, is like oxygen to a trial lawyer.
Seek permission of the trial judge to inspect the assigned courtroom and to speak with a representative of the court’s information technology department to determine what technology is available and to familiarize yourself with it. The last obstacle you want to encounter during trial is the inability to use the technological resources you were counting on. You may have spent hours developing an informative, easy-to-follow, captivating video or slide presentation, but if you cannot make it work, the trial judge will simply instruct you to keep moving. The same suggestion applies to “low tech” aids, such as easels for demonstrative exhibits. If you will require one, then make the appropriate request; if the court has none available, then bring your own.
Animation, graphics, maps, and other visual aids can be powerful tools at trial to keep the fact finder’s attention and highlight key points. Nevertheless, keep bullet points short when you create a slide presentation; each sentence should be concise and tied to your narrative. Otherwise, your presentation will be stiff, and the judge or jury may be more preoccupied with reading the blocks of text on your slides than with listening to what you have to say. Never allow your audience’s attention to drift in this way.
Trials are demanding under the best of circumstances. No matter how skilled and prepared the lawyer, something unexpected usually will arise. However, when it comes to examining witnesses and presenting evidence in our post-COVID world, trial counsel face unique technology-related challenges. Patience and flexibility are key in this setting.
Of course, familiarity with the remote platform used at trial is essential. Before you can effectively present your case, you must develop a certain comfort level with this technology. For example, you should learn how to minimize distractions and interruptions that could detract from your presentation. Over the past year, we all have seen a family member or pet making an unexpected cameo appearance during a work meeting or court proceeding. More importantly, when sharing your screen to display exhibits or make a presentation, ensure that you are aware of what else on your monitor is visible to the court and opposing counsel. Keep your desktop clear to avoid the passive sharing of confidential or privileged information.
To avoid potential errors and facilitate the flow of trial, stipulate to the authenticity of exhibits or agree to use joint exhibits. Eliminating unnecessary objections in this manner may prove even more helpful for remote trials than it has for in-person trials. In addition, the use of two side-by-side monitors facilitates a smooth, orderly remote trial; it permits you to view the exhibits on one screen and the witness, judge, opposing counsel, and other participants on the other.
