1. Take the Lead on Communicating with Opposing Counsel
It’s tempting to say, “Well, I’m not in charge; lead counsel can take that”—wrong. By taking the lead in communicating with opposing counsel regarding pretrial filings, stipulated exhibits, jury instructions, and the like, you are taking a mental load off lead counsel. While first chair certainly should have input and can likely verbalize their thoughts on how they would like the process to go, the time and concentration required to type out the email or schedule a meet and confer is precious brain space that should be aimed at substantive preparation.
2. Be Efficient When Prepping for Pretrial Conference
One of the most difficult parts of pretrial preparation is thinking there will be time to do that later. A trial is a time warp. You think you have two weeks to complete everything, and suddenly, it’s the night before the pretrial conference. Plan less, do more.
One of the best examples of this is how to prepare for the final pretrial conference. This will inevitably vary between judges and the way they control their courtrooms. That said, any preparation you can do early will benefit you in the long run.
Before the pretrial conference, prepare a spreadsheet of your side’s exhibit list. Then, map out the following items: the witness you will admit the exhibit with, how you will overcome any potential objections, and which element(s) of your claims this exhibit supports.
I urge you not to delegate this task. Exhibits, especially those with objections, seem like something you can hand off, but you should not. Adding to the efficiency theme, the prep work required to compile this sheet accomplishes several objectives. First, you become intimately familiar with your exhibits and how they fit into the case. It also helps you eliminate exhibits by identifying what’s duplicative. Finally, it helps you see what, if anything, is missing. Is there an element that is totally unsupported by documentary evidence? That flags the key testimony you need to include in your witness outlines. Are there unnecessary exhibits? Based on my time as a juror, a story for another day, if an exhibit is not shown to the jury during trial, they will not seek it out in deliberations.
This is also critical preparation for the final pretrial conference, where disputed exhibits are generally up for discussion. An outline of your exhibits and how those exhibits will be used is a roadmap for first chair to answer any questions from the court. Again, because the judge is not always looking to you for the answer, you, as the second chair, should use that extra brain power to have the answer ready for the first chair.
3. Prepare for FRCP Rule 50
The outlining process described previously also familiarizes the second chair with the jury instructions. Jury instructions are your guide at trial. Although not necessary in a bench trial, you are still required to prove every element of your case, which jury instructions often synthesize coherently. Preparing your exhibits and getting the wheels turning as to the exhibits, witness outlines, and elements of your case segues directly into preparing for Rule 50 of the Federal Rules of Procedure.
As the plaintiff, you have a hurdle to clear—if you don’t beat the Rule 50 motion, you don’t even get to the jury. Rule 50 allows the court to grant judgment as a matter of law if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. In law school, Rule 50 motions appeared perfunctory—the other side always makes one, the judge always denies it, and the case always goes to the jury. Although that may be true in some cases, in particularly close cases, defense counsel is looking for any reason to remove even a portion of the case at the Rule 50 stage. Eliminating even one claim may create arguments against an attorney fee award and can streamline the defense’s presentation of evidence. When played correctly, the defense may be able to play up why certain claims or defendants were eliminated in its closing argument. Thus, the first chair is under immense pressure to present a coherent narrative demonstrating that you proved every element of your claim to the jury.
As the second chair, your job is to keep track of the elements. Especially for affirmative claims, your only obligation is to ensure every element has been established in your case in chief. As the second chair, there is a logical flow from exhibit preparation to preparing to beat Rule 50. In law school, I’d analogize prepping for a Rule 50 as making an attack outline for finals. It needs to be complete but concise.
Between witnesses, on breaks, and over lunch, you should review each of the elements and ensure that the testimony and exhibits needed to support each were elicited or admitted. If they were, encouragement to your first chair goes a long way. If not, drafting follow-up questions for redirect or finding a way to incorporate the missing testimony with upcoming witnesses is your job. However you keep track of these elements, it should be easily transferable and understood by your first chair. By preparing these exhibits to beat Rule 50, you also have your outline for closing—you know exactly where to tell the jury to look to meet every element of your case.
It All Comes Down to Ownership
Being the second chair boils down to the same thing—ownership. This case is yours, too. Trial is a cumulative exercise; taking initiative, working efficiently, and being prepared will all be entirely beneficial.
