One of the greatest tools you can use in these scenarios is the expedited trial motion—a submission, sometimes informal, at the end of a trial day that may steer an examination, or the overall case, in a different direction. While the purpose of such a motion is to address unforeseen disputes, you can still prepare yourself for this eventuality so that you are ready to make such a filing to address the day’s events or, alternatively, respond to opposing counsel’s motion made at the eleventh hour.
Consider Potential Arguments at Trial
To do so, as trial approaches, contemplate not only your own arguments and evidence but also what arguments and evidence the other side will present. This will allow you to get in front of certain issues. For example, imagine a plaintiff is suing a utility company for property damage and personal injury resulting from a house fire caused by a broken utility line. The plaintiff produced records of an acute stress disorder diagnosis signed by a now-licensed psychologist who was a supervised intern at the time. The defendant utility company successfully moved to exclude any mention of the prior diagnosis by the intern. Regardless, the defendant should be forward-thinking. The plaintiff may disclose the psychologist as an expert witness whose current conclusion is the same diagnosis. Or the psychologist may testify that her supervisor at the time had verbally diagnosed the plaintiff. These events give rise to questions that the defendant’s attorney should be prepared for:
Strategizing in advance about questions like these will make it easier to address them should they arise in the middle of trial.
Assess Common Trial Issue Threads
In thinking through potential issues, keep in mind the types of issues that generally arise during a trial. The most common of these surround discovery, evidence, and rulings on motions in limine.
Discovery
Many young associates dread extensive hours of document review, prolonged arguments regarding search terms, custodians, and time periods, and endless squabbles over deposition schedules. But even when the formal discovery period has closed, discovery never truly ends. Even after the court-ordered deadline has passed, you will continue to discover new documents and information sources that may be vital to your case. After all, discovery cut-offs are typically referred to as “substantial completion” deadlines for a reason. At times, these discoveries even occur during trial. Consider a case in which the psychologist mentioned above testifies that her supervisor always kept detailed notes regarding all of her patients, but the defendant received no such notes in discovery. The defendant will want to move the court to compel the production of those notes, as they could cast doubt on the plaintiff’s diagnosis or the psychologist’s credibility.
Evidence
When an opposing party seeks to mark a new exhibit mid-trial, admit an exhibit that was not addressed before trial, or have a witness provide potentially improper testimony, an evidentiary motion may put a stop to it or at least limit a client’s exposure. Indeed, a trial court’s discretion in applying rules of evidence is broad and far-reaching, and as the trial progresses, you may come to find that the judge’s proclivities open new avenues of objection that you did not think available. Imagine during the plaintiff’s testimony, the judge persistently sustains objections to hearsay and instructs the witness that she cannot testify to anything another person said outside of court. This may be an indication that the defendant’s hearsay argument regarding the supervisor’s statements is stronger than initially determined and that the defendant should raise the issue.
Motions in Limine
Once the court rules on motions in limine, young attorneys often consider those issues final. That is a mistake. Motion in limine rulings often leave certain issues unaddressed, particularly as to scope. Does the Court’s order precluding “any mention of the prior diagnosis” prohibit Plaintiff from introducing testimony that some of the plaintiff’s symptoms match those generally attributable to acute distress disorder, or is the formal diagnosis all that is excluded? Moreover, events at trial can provide good cause for a judge to reconsider their prior decision. For example, if the plaintiff calls the supervising psychologist who testifies that she agreed with her then-intern’s opinion, the judge may reconsider the admissibility of the intern’s diagnosis.
Prepare to Adapt as Issues Arise
Regardless of the type of case, be ready to react to new factual and legal issues at trial, conduct quick, targeted research, craft legal arguments to submit to the court on a daily basis, and be prepared to defend your position the next morning. While no attorney can foresee every possible trial issue, the more prepared you are—by anticipating issues and developing a firm understanding of the facts and evidence in the case—the more successful you will be at advocating for your client.
