Trial Triage
You get a call, usually out of nowhere. The person on the other line is clearly at the end of their rope. Maybe it’s a company who no longer has any confidence in the lawyer that they hired. Maybe it’s a lawyer who was convinced that a case would settle after summary judgment motions were decided and has no plan B. But either way, there’s a trial that’s coming and the person on the phone needs your help. You don’t know the claims, haven’t read a single page of anything and have never met any of the witnesses. But hey, can you try the case?
If you like to try cases – and for the record, we love to try cases – you’re looking for a way to say yes. But assuming that you do, how do you get ready to try a case you know nothing about?
Like any emergency, the key is triage. Trial preparation is a task that can productively absorb shocking amounts of time and energy. Large firms preparing to try high value cases will sometimes run their teams ragged for months before stepping foot in the courtroom. There is almost always more than can be done. But you don’t have months to do everything that could possibly be done. Your job is to do everything that must be done and spend whatever time remains on the tasks that most increase your chance of winning the case. This is how we do it.
Step One: Deadlines and Rules
What Can You Still Do?
The very first thing that you need to do is find out what deadlines apply to the case. In a few enlightened courts, you can still wander in on the first day of trial without much in the way of prior disclosure. But in most cases pretrial submissions are due in advance, sometimes weeks or months before a trial is set to begin. If you are hired a week or two before trial, some of those submissions may already have been made. Some may be due immediately. And you need to know now.
Before spending your time on anything else, you need to see the scheduling orders and you need to see the judge’s individual rules. If pretrial submissions have already been made, you should consider trying to amend them if important evidence or witnesses are missing. Acting quickly will greatly improve your chances of success. Adding some key documents to an exhibit list a week before trial is a very different beast than trying to add them the night before it begins (or worse, after trial is already underway).
It may be that you are stuck with the witnesses, exhibits, and pretrial motions (or lack thereof) that prior counsel put together. If so, that will greatly limit your strategic flexibility. So, getting a handle on deadlines immediately and figuring out what parts of the case you can still influence should be your first course of action.
Step Two: Jury Instructions
What Do You Have to Prove?
Once you know what pretrial materials still need to be submitted (and when), you may be tempted to get cracking on them immediately, throwing pen to paper in preparing witness lists, exhibit lists, motions in limine, and maybe even a trial brief. If you have a team, it feels very responsible to drag everyone into a room, divide up the tasks, and have everyone scramble to put the pieces together.
But that is a terrible idea. Stop everything. You still haven’t figured your case out yet!
If you signed up the client and understand how conflicts work, you presumably have some rough sense of what facts are alleged and who the bad guys are. You’ve probably read the complaint and maybe a summary judgment decision. But before you spend precious attorney hours on unfocused work product, you need to figure out what you’re trying to accomplish. And the easiest place to start is the jury instructions and verdict form.
At this point, all of the work that you’re doing, every document, motion, or submission is aimed at a single goal. When the jury sits down to fill out their verdict form, you want them to fill it out the way that allows your client to win. You need to figure out what that form is going to look like and what specific questions the jury is going to be asked.
So, before you waste a lot of time, get your model instructions, whether that’s New York Pattern Jury Instructions (“PJI”), Leonard Sand’s Modern Federal Jury Instructions, the United States Court of Appeals Model Civil Jury Instructions for your circuit – whatever is applicable. If model instructions for your claims do not exist (common in complex commercial disputes), then dig through Westlaw or Pacer for instructions from a similar prior case, ideally one before the same judge. If there’s really nothing out there, then at least piece together the elements of the relevant claims and defenses.
The closer you can get to the actual instructions, the better. But at a minimum, you need to know the questions the jury will be asked. Because that is exactly what you need to prove.
Step Three: Story
What Really Happened Here?
At this point, you could take those questions and start assembling evidence that tends to answer each one in your favor. And even that level of organization would put you a cut above many folks in the courtroom. But there is another crucial step that you should do first. You should figure out the story of the case.
Legal claims have elements, and the jury will be asked questions relating to each of those elements. But people do not understand the world through legal elements. People, even lawyers, understand the world through stories. When a colleague asks you what your case is about, you don’t rattle off the five fingers of fraud – you tell them a short story about how the bad guys swindled your client. And the jury needs to understand that story too.
Your objective in presenting your case is to tell a story about what happened. You are going to need to assemble that story from the mishmash of depositions, documents, and legal pleadings that have come before. The story should have a beginning, a middle, and an end. And that story should incorporate all of the facts that the jury needs to know to answer the questions in the jury instructions. If the jury believes your story, the answers to the questions should be obvious.
The story also needs to incorporate the facts that the other side is going to try to use against you. Some of those facts are going to be very bad for your case. That’s life. Every case has bad facts, bad documents, and/or bad testimony. And maybe you can exclude some of them. But realistically, you will need to figure out a way to incorporate all facts, good and bad, into a complete story that nevertheless results in a victory for your client. This may mean admitting that your client made a mistake or said or wrote something that was incorrect. It may mean resisting the urge to argue for a version of events that – while better for your case – isn’t going to convince a neutral third party.
You need to also consider what story the other side is going to tell. Some version of it is probably telegraphed in their briefing. The jury is going to hear both stories, and much of their decision is going to come down to which story sounds more like the truth. So, think hard about how you can make your story more credible than theirs. What is the other side going to say that just isn’t true? What facts or evidence simply won’t fit into the story they tell? Those flaws in the other side’s story are powerful weapons in your arsenal even if they don’t directly slot into an element of the claim. They undermine the other side’s credibility and bolster yours.
Step Four: Deliverables
What Do You Need To Have in Hand?
If you’ve figured out the questions the jury will be asked and have crafted a story that – if believed – will cause them to answer the questions the right way for your client, you now have a genuine plan to win. It’s time to sit down and hammer out everything you need to execute on that plan.
The following items are essential (or required) in virtually every case and should consume the bulk of your time:
Jury Instructions: This is your proposal for what the judge will read to the jury. The portion of the instructions that relates to the claims at issue is crucial, which is why we discussed it above. It will often be wrapped with fifty pages of rote instructions on basic trial procedure. Those instructions are substantially less important and should not consume large quantities of time, as the judge is likely to have their own and/or may simply use pattern instructions for those issues.
Witness List: This is literally just a list of witnesses you may call. Depending on when you were hired, this may already have been submitted. But if there’s a key witness who isn’t on it, you need to get them added ASAP.
If there is a witness that you need and cannot add, then consider calling them as a rebuttal witness to testimony or evidence introduced by the other side. This is sub-optimal for a variety of reasons – Defendants do not get a rebuttal case and there are issues with Plaintiffs relying upon rebuttal evidence to prove their case-in-chief. But if the testimony is helpful, you want the jury to hear it, even if there are restrictions or wrinkles.
Exhibit List: Similarly, this is just a list of exhibits that you may introduce at trial, along with any objections that the other side makes to them. Exhibit lists are generally required in advance, so often this will also have been prepared before you were hired. But even when counsel do not parachute in on the first day of trial, last minute additions to an exhibit list are not uncommon. If a useful piece of evidence was not listed by prior counsel, do not feel shy about trying to add it.
Examination Outlines and Demonstratives: This is a set of questions and expected answers for every witness who will be testifying along with any visual aids you will be using. For cross examination, you should also include impeachment materials with each question, such as deposition testimony or documents that you can use to pin the witness down.
This is important and where you should spend most of your time. You may be tempted to “wing it” with certain witnesses, particularly if time is tight. Do not do this. A direct or cross examination is not a deposition. No matter how skilled a questioner you think you are, if you show up to trial with just a list of topics you want to ask about, your examinations will be rambling, difficult-to-follow affairs that needlessly harm your ability to win.
Your witnesses need not memorize specific answers to your questions, but you should rehearse enough to know that the witness will give most of the expected testimony, most of the time. You can and should follow up with questions on the fly if they miss details or you feel the need to stress something, but the less of that that is necessary, the better. There is never enough time to prep witnesses, but you must devote as much as possible to ensure that their testimony goes smoothly.
Opening Statement: This is your initial pitch to the jury, generally accompanied with visual aids, usually as a PowerPoint. Along with witness outlines and witness prep, this is the other place where you need to spend your time. You cannot wing it, and you cannot simply read off something a junior attorney wrote for you.
Keep in mind that opening statement is not a summary judgment argument. The jury has not read hundreds of pages of briefing. In all likelihood, the jury has never heard of anyone or anything in the case. Like most normal humans, they will have great difficulty even keeping the parties’ and witnesses’ names straight until they’ve heard them a few times. Your speech is a scaled-up elevator pitch for what your case is about, not a scaled down version of an argument you would make to a judge. If you’ve got an ugly email or devastating deposition snippet, by all means show it. But telling a simple, comprehensible story is the name of the game.
Once you have an opening, you should practice it. Practice it in the mirror. Practice it in front of your team. Practice it in front of your colleagues who know nothing about the case. Cut it and edit it down until you’re left with a clean, simple presentation that you can do in your sleep.
The following materials are not unimportant – indeed, in some cases they are critical. But in a true triage situation, you should be careful not to allow them to consume time better devoted to more productive endeavors.
Trial Brief: There are situations where key legal issues need to be briefed before a jury trial. But much of the time, this ends up as a time-consuming rehash of the summary judgment briefing delivered to the judge (who already ruled on the legal issues and will not be deciding the facts). If a trial brief is required, be mindful of which issues genuinely require substantial briefing and be careful not to squander time improving parts of a document that literally cannot matter.
Motions in Limine: If you have a genuine shot at taking out a key expert or excluding a crucial witness, you should absolutely consider filing them. But again, these motions can consume huge amounts of time and often result in the judge “taking the issue under advisement” or otherwise deferring the decision until trial. If you aren’t likely to win and/or your motion would simply telegraph your line of attack that you could make more effectively and successfully at trial, consider holding back.
Draft Voir Dire: You should consider your forum before putting large amounts of effort into this. There are courts where voir dire questions submitted by counsel are effectively thrown in the trash.
Step Five: Off to the Races!
Check your checklists!
Once you have the materials above, you are in some sense ready. In another sense, you will never be ready, since they can always be improved. But eventually, trial day will come and the proceeding will begin. If, like me, you are filled the day before with a lingering sense of dread that you have forgotten something important, I suggest easing that feeling in two ways.
First, if you have a pretrial checklist (or three), you can go over it again to verify that you are arriving with everything you can possibly need. Nobody has ever lost a case because they forgot markers, an easel or backup copies of deposition transcripts, but if verifying that everything is packed helps you, do it.
Second, remember that if you have an opening, witness outlines, witnesses, and exhibits, you’ve got yourself a trial. Everything else is just an aid to help you do your job better. And if you’ve appropriately triaged your trial prep and attacked the case like someone who wants to win, you’ll likely to do just fine.
