November 20, 2019 Did you Know?

So, You Want to Go to Trial? Four Ways Any Associate Can Add Value

By Emileigh S. Hubbard

As any attorney will tell you, there is nothing like your first trial. The preparation and participation to meet the rigors of trial practice is invaluable as we grow in our litigation practice, and—with the increasing expenses and risk associated with a trial—such experience can be hard to obtain. During my first year as an associate in a private law firm, I was assigned to work on a personal injury case that was headed straight to the courtroom for a jury trial. The case was tried in federal court, and I was the most junior lawyer on our trial team. Now that I think about it, I was likely the most junior lawyer in the courtroom. But junior lawyers are a vital part of any trial team and can add value and expertise. Below are some tips for junior lawyers looking to earn their spot as part of a trial team and to gain litigation experience in the courtroom in front of a jury.

1. Become an expert on the documents.

There is no better way to get involved in a case that is gearing up for trial than to review and become an expert on the documents that have been produced in discovery. I recommend that you learn the following three things about every page: (1) the content of the document, (2) where it is located, and (3) who produced it. Once you are familiar with the documents, you can be delegated some extremely important pretrial and trial tasks. For example, an associate who has reviewed all the documents may be asked to take a last-minute deposition, prepare a witness, or conduct a direct examination of a fact witness. You also can make a significant contribution to the trial team if you are able to quickly locate and prepare documents for use by a lead attorney during an important cross-examination or in response to questions from the judge.

Bonus points are awarded to associates who are prepared to discuss the admissibility of the documents your trial team will be relying on to prove or defend your case and the non-admissibility of the documents that the opposing side intends to introduce. Before trial starts, review business record affidavits and prior deposition testimony to test whether the evidentiary requirements have been met for admissibility. Thinking about evidentiary issues long before trial will help you be prepared for challenges or ready to raise issues during the pretrial conference or during a dispute over evidence.

2. Become an expert on the legal issues.

Although you may already know this, it is critically important to be prepared for and familiar with all the legal issues that may arise in a case. Be proactive in looking at every legal issue, and think through each stage of the trial. I find it helpful to begin with the pretrial conference and fully research issues pertaining to contested motions in limine, evidence you are seeking to admit or disprove, and any preliminary motions your trial team may want to make immediately prior to trial. Become familiar with recent case law pertaining to the claims and defenses to be raised in your trial and be prepared to discuss in detail why (or why not) those cases should be applied. In many circumstances, the trial attorneys will be focused on the big-picture trial issues—just as they should be—so this gives the associate attorney a great opportunity to become familiar with the more granular case details.

If you have done your research and are well-prepared to argue any legal issues that may arise, then you can volunteer to make substantive motions before the judge, such as a motion for directed verdict or for judgment as a matter of law. Many judges welcome and support associates making legal arguments in open court and will be more than happy to hear your motion. By conducting research and being prepared to discuss substantive issues in detail you will demonstrate your value to the trial team and be available for every opportunity that may arise.

3. Offer to prepare demonstratives.

In trial, demonstrative exhibits can be some of the most persuasive materials that the jury will see during opening/closing arguments or the presentation of evidence. But sometimes, lead trial attorneys who are busy preparing witnesses, discussing possibilities for a last-minute settlement, or briefing issues for the judge may not have time to fully focus on what demonstratives will be most effective to a jury. This provides an excellent opportunity for an associate attorney to volunteer to contribute.

Juries are interested in digital representations, photographs, videos, and anything that helps explain complicated material. In my first personal injury trial, I created a timeline of the events leading up to the accident, the accident itself, and the relevant medical records. Each event on the timeline linked directly to the medical record itself, which could be pulled up and used in real time during arguments and examinations of witnesses. This was an extremely useful tool and a good way for me to get involved in the trial process.

4. Volunteer for any task—no matter how seemingly trivial.

When the time for trial arrives, there are many tasks to be accomplished. Some are trivial, and some are grandiose. Proactively volunteer for any and every task that you can take on (and maybe even a few that you are not sure about). Your positive attitude and willingness to help in any circumstance will make the lead trial attorneys want you to be a part of their trial team on every trial.

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By Emileigh S. Hubbard

Emileigh S. Hubbard is an associate attorney with Henry, Oddo, Austin & Fletcher, P.C., in Dallas, Texas, where she represents clients in commercial civil litigation, including transportation, employment, contract, intellectual property, and other business disputes. She may be reached at ehubbard@hoaf.com.