August 27, 2013

Planning for Trial - ABA YLD 101 Practice Series

By Robert Don Gifford

Below are tips to help you prepare to present your case at trial.

Plan backwards
In the movie "A Field of Dreams," the main character is told by a mysterious voice: "If you build it, he will come." With that guidance in mind, begin with the end (or conclusion):what will you say in your closing argument to the jury? Once you establish the theory you want to convey in your closing argument, build your case around it by gathering the information you need through documents and witness testimony. Your closing argument is where you will outline the strengths and weaknesses of the case. Once you know what you want to say and have built your case, the verdict you desire will come.

Build your trial notebook
Every advocate will have a preferred way of organizing the trial. It may be a binder, hanging folders, or a series of folders in a box or accordion file, but the end goal is the same in being able to have ready access to a document at any given time. The more organized you appear, the more the court and jury will believe in you as a voice of authority.

Review the court's pre-trial orders
Make sure you know how the court wants exhibits marked (numeric, alphabetic, etc.). Make sure all voir dire, jury instructions, witness lists, exhibit lists, verdict form, and trial memoranda are timely filed. It would also be safe to ensure that all discovery has been completed and to make the request of your opponent that there is nothing left outstanding.

Get the right people in the right place at the right time
Make sure you have the witnesses you need to prove your case and plan the order to call them. This includes serving any trial subpoenas. See Fed. R. Civ. P. 45. Have the experts been properly retained? How does each of these "players" further your theory of the case? Keep the case simple and do not over-try the case - but keep those "extras" readily available for rebuttal or in the event that the witnesses do not perform as well as planned.

Taking your witnesses beyond the woodshed
No detail is too small that it should not be covered with a witness in pre-trial preparation. Practice direct examinations with the witnesses, put them through a sample cross-examination, have them experience sitting in the witness chair in a courtroom, make sure they have travel arrangements the day of trial, and know what to do when they arrive at the courthouse.

Ensure that an exhibit list is in order and make sure that it is readily accessible. Do not wait until the end of the case to move any exhibits into evidence. Depending on a respective court's practices, it is often advisable to address admissibility issues outside of the presence of the jury - thus when the trial is underway in front of the jury the evidence may be presented in a smooth fashion. If the evidence is to be contested in front of a jury, it is advisable that once a foundation has been laid with the proper witness, move the exhibit into evidence while the witness is still on the stand and readily available. Any further objections may be cured and addressed while the witness is on the stand. Finally, ensure that all demonstrative exhibits/visual aids are prepared, shown to opposing counsel, and shown to relevant witnesses. Sit in the jury box, witness chair, and anywhere that the exhibits will need to be seen from to make sure the print and graphics are large enough.

Logistics & Electronics
Make sure accommodations for witnesses have been completed, waiting area during trial is anticipated, and if using electronics in the courtroom(audio, video, PowerPoint slides, etc.) ensure that your courtroom is equipped for your needs. Bringing an extra extension cord and powerstrip can be a good idea.

When you are finished with everything else - prepare your opening
The poet T. S. Eliot once wrote, "In my beginning is my end." While Eliot may not have been talking about opening statements, the meaning of this phrase has a place in trial practice. Once you know where you want to be at the end of your case, what evidence you have to support that finding, and how you will present it - find the words that grab a judge's or juror's attention to align them with your cause.

Check yourself
Continue to take special care of your own appearance, health, personal matters, and manner. During a trial, a jury will take the time to watch the participants of the trial and be attentive of the details of dress and mannerisms. Despite provocation of opposing counsel, remain respectful and polite. This thicker skin is easier accomplished if you are well-rested, prepared, and healthy.


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About the Author

Mr. Gifford is an Assistant U.S. Attorney in Reno, Nevada, and has served as an instructor at the Department of Justice National Advocacy Center, the U.S. Army Judge Advocate General's School and Learning Center, and the National Judicial College. He has worked in federal, state, tribal and military courtrooms, and also serves as a defense counsel and Officer in the U.S. Army Reserves JAG Corps.

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