Efficient Trial Prep
We’ve written before about trial triage – how to prepare for trial when you’re hired at the last possible moment. In some ways this is a very efficient exercise. Since you do not have time to waste, you simply cannot spend it on things that do not matter. But when hired just before trial, you are heavily constrained by what has previously happened in the case and the relevant scheduling orders and procedures of the court. Those can be a real pain. Often, you’ll inherit a file that was organized by monkeys and figuring out prior counsel’s litigation strategy resembles archeology or abnormal psych more than lawyering.
Under the circumstances you do the best you can to whip the case into shape and maximize your client’s chance of winning. And win or lose, you generally leave the client in a lot better condition than you found them. But when you have a case from the outset – or at least are hired long in advance of trial – you can prepare in a more organized fashion and avoid some of the traps that can waste your time without moving the needle on victory. What follows are a handful of practices that can help to streamline otherwise lengthy trial preparation.
1. Stipulate Away Wasteful Time Sinks
When it comes to pretrial procedures, some courts are extremely forward thinking and efficient. But others have practices that are either outdated or clearly designed for very short, very simple trials without much in the way of documentary evidence or complex legal issues. Two practices in particular that can waste huge amounts of time are early submission of proposed pretrial orders and early designation of deposition testimony.
For example, there are federal judges that require all pretrial submissions (proposed pretrial order, witness lists, exhibit lists, motions in limine, etc) to be submitted at the same time that summary judgment motions are filed. This is obviously hard on counsel, who have to put both things together at the same time. But beyond the time-crunch, submitting pretrial materials before a ruling on summary judgment is massively wasteful in complex cases. If a summary judgment decision narrows the case at all – which it often does – this usually means that all of the pretrial submissions will have to be redone, a lengthy and totally unnecessary duplication of effort.
Deposition designations are another area where the time/value ratio in complex cases can be totally out of whack. If done months before trial, parties often cannot guarantee which witnesses will definitely be available to testify (People quit! People die!). This sometimes leads to the defensive designation of vast swaths of testimony so that the parties will not be prejudiced should a random witness suddenly become unavailable. This is then compounded by the need to review, object to, and counter-designate the testimony identified by the other side. Then, when trial rolls around, most of the witnesses designated end up testifying live and the designations are never used.
With some courts, there is nothing to be done about inefficient rules. But we’ve found that many judges can be very reasonable about modifying practices in complex cases, particularly if both sides jointly make the request. So when a case is first assigned and scheduling orders prepared, it pays to look at local pretrial procedures and search for ways to avoid waste. At the very least, consider requesting that all pretrial submissions be adjourned until after any summary judgment motions are decided and that deposition designations be delayed as long as possible, potentially even as late as the day before they are to be played. The court may say no, but if it says yes, you’ve avoided tens, even hundreds of hours of often useless work.
2. Prepare Direct Examination Outlines Before Depositions Are Taken
As we’ve written before, lawyers litigating complex cases can sometimes lose the plot a bit, particularly on the defense side. Focused on the blow-by-blow of discovery, lawyers can forget to think carefully about the story they plan to tell at trial and how that story results in their client winning. One of the pathological ways that this can manifest itself is in witnesses prepped so hard to “not recall” anything in response to difficult deposition questions that they become essentially useless as trial witnesses.
But even if you would avoid that trap (either through strategy or legal ethics), the time spent in preparing witnesses for deposition is a valuable resource. The deep familiarity that a lawyer develops with a witness’s testimony can greatly streamline trial prep later. As such, rather than sitting down to draft direct examination outlines immediately before trial – long after depositions have concluded – consider drafting the direct examination outline as a part of the deposition prep itself. In addition to prepping the witness for the questions that the bad guys will be asking them, go through the questions that you’ll be asking in your direct examination.
While this sounds like a lot of extra work, it’s not as much as it might seem. Effective deposition prep requires you to protect your witness’s ultimate testimony – to ensure that they don’t inadvertantly say anything in deposition that forecloses their ability to testify later at trial. So rather than trying to do that at a high degree of generality and hope that you’ve hit everything you’ll need later, do it concretely with an actual direct.
Why? First and foremost, it’s effective prep. It helps witnesses understand what the case is about and thereby avoid deposition missteps. But in addition, preparing the direct forces you to figure out what your story will be at trial while you still have some flexibility about how to tell it. If a key witness can’t testify to a central fact or just doesn’t seem credible, you can take other discovery or reconsider how you plan to win. Better to realize this during discovery than to learn it three weeks before trial. And if there is any chance that a witness will be unavailable at trial, you can run through your direct with them at the conclusion of the deposition to preserve the testimony. That ensures that you have the testimony precisely the way that you want it seen by the jury, rather than assembled Frankenstein-style from bits and pieces of opposing counsel’s questions.
Doing this also means that when it comes time to prepare for trial you can focus your attention on refining (rather than drafting) witness outlines and preparing openings, demonstratives, and other materials than cannot be done in advance.
3. Prepare Your Cross Examination Right After You Depose the Witness
You’ve just finished deposing one of the bad guys. You know exactly what admissions you got out of him and which questions managed to sleaze his way out of. And after hours in a room together, you’ve got a very good sense of his strengths and weaknesses as a witness and (hopefully) how to make him look his worst in front of the jury.
This is the perfect time to prepare your cross-examination outline. It doesn’t necessarily have to be a final, polished piece of work. But at least think about what you’re going to do to the witness at trial while the encounter is still fresh in your mind. As above, this may seem like a lot of extra work, but it really is not. If you have a litigation team or a client who wants detailed updates on discovery, you’re probably going to end up summarizing the high points of the deposition anyway. Taking that summary and turning it into a rough cross examination ensures that when trial rolls around, you have the benefit of your clearest and most detailed read on the witness. This can put you way ahead when it comes to preparing for your next encounter at trial.
While trial preparation is always going to be a lot of work, by preparing in an efficient fashion and avoiding wasteful time sinks, you can streamline the process and ensure that your efforts are genuinely focused on winning.
