Simple Things Every Lawyer Should Know When Preparing for Trial

I've been a practicing trial lawyer for over 20 years, and can say with certainty that some of the most crucial pretrial measures have less to do with how skilled a lawyer you are, and more to do with your ability to persuade and affect the way both the judge and the jurors view you and your case. 

These practices below may seem mundane, and theoretically can be done closer to trial, but will be more difficult to achieve and will cost you more in time and stress. 

Plus, showing the defense that you are willing and able to try a case, and are thinking about the details of the actual trial, often helps to resolve the case short of trial. There is no question that the defense attorney will  pay attention to your early trial preparation and question whether he or she really wants to try the case against you. 

Let's get into it: 

PHASE I - 30 DAYS BEFORE TRIAL 

Scheduling Witnesses and Experts 

Believe it or not, one of the more difficult elements of trial is the scheduling of witnesses. This is especially true if you have a number of experts. 

Thirty days before trial, you should  check with all of your experts to secure available times for trial. Be sure to obtain multiple ways to get in touch with each expert (email, cell phone numbers, and home numbers). With respect to non-expert witnesses, contact all of them that you might call at trial during this Phase I period. Try to obtain multiple ways to get in touch with these witnesses, as well. 

Another important point is advising your client of the anticipated dates and times of trial and informing them that their presence at trial is required at all times. A jury – drafted into service – is particularly sensitive to the empty chair next to counsel for plaintiff. 

Trial Subpoenas 

Trial subpoenas (or notices to appear for parties) are necessary for an witnesses you intend to call – cooperative or otherwise – as they preserve your ability to use deposition testimony in the event of nonappearance at trial. 

Cooperative witnesses should be advised ahead of time that you will be serving them with trial subpoenas. An on-call agreement, in which the witness agrees to be available for trial on 24-hours’ notice, should also be served with the subpoena. On-call agreements add flexibility to trial scheduling, eliminating the need for you to prognosticate in the pretrial stage as to the  particular time and order in which you intend to call your witnesses. 

Expert Depositions 

Typically, expert depositions have not begun until thirty days or less before trial. 

Depositions of experts offer both an opportunity to build your case and a means to prepare for trial. Trial subpoenas should be prepared, and hand served on each of the defense  experts you are deposing and should require the experts to present their entire file at the trial. While you may ask, “Wouldn’t they bring their entire file anyway?”, invariably opposing experts will not do so unless required. 

Access to the expert’s file at trial often pays  huge dividends. Many times, after you have asked the expert — in front of the jury — for their file, you review it at the break or while they are on the stand prior to your cross  examination and find the most remarkable things. 

Some examples of what I have found in defense experts’ files: an email sent by the defense lawyer the night before the expert’s  testimony listing the pros and cons of the defendant’s case; a list of the positions the defense attorney believed were going well (and those that weren’t); information and documents that  the defense attorney felt should be highlighted; lists of the questions defense counsel was  planning to ask the expert, followed by suggested answers; additional documents that the  defense attorney specifically waited to provide the defense expert until after their deposition; and summaries of the defense lawyer’s thoughts on the plaintiff’s experts. 

As I said, you will be shocked at what you can find in an expert’s files at the time of trial. Almost as beneficial to you as the actual documents is the jury’s perception that the defense  expert is hiding something when they don’t bring their entire file to trial, despite it being subpoenaed. You will be able to point this out to the jury and help them understand the  significance of the expert’s blatant defiance of the subpoena. 

Agreements Regarding Evidence 

The planning process for placing documents and materials into evidence should begin well before trial. 

For a number of reasons, including preserving your credibility and  good standing with the judge, it is vital that you suggest to defense counsel well ahead of time that a mutual stipulation be entered into regarding the authenticity of any voluminous records, such as medical bills or records. The closer you are to trial, the  greater the possibility that defense counsel will be unreasonable and refuse such a stipulation, in an attempt to bog you down during hectic pretrial preparations. Rarely is a request to stipulate to authenticity refused thirty days before trial, and rarely is such an agreement reached the day before trial. 

Courtroom Trial Setup 

If you are already assigned to a trial judge, talk to the court clerk, the bailiff and/or the court reporter about how trials are usually conducted in that courtroom. 

Specifically ask about the locations of electrical outlets and the setup of a projector screen (a projector  and screen are essential for trial). Inquiring as to the set up in advance will tell you what  equipment you need to bring, e.g., extension cords, surge protectors, tape to secure  cables, a folding table for a projector, easels, etc. 

PHASE II - FINAL STATUS CONFERENCE (FSC) 

Preparing trial documents is often treated by counsel as a meaningless exercise. 

These documents, along with the arguments in the motions in limine, are the judge’s road map of your case. 

The judge will look in particular at your witness list and exhibit list and make a determination of your  organizational skills as a trial lawyer. Spend the time necessary to make sure that your trial documents are meaningful and accurate and that your motions in limine are timely filed. 

Joint Trial Documents 

At the final status conference, you must have your trial documents jointly prepared, or demonstrate to the judge your tireless efforts to arrange for such joint preparation (and  the defense’s reluctance to cooperate). 

Two weeks before the final status conference, the plaintiff should prepare their witness list, exhibit list, jury instructions, and statement of the case. Send the documents to the defense counsel, along with a letter asking them to make their own additions and send them back to you, so that you may prepare the final  documents for submission to the court. 

Starting off a trial with the proper documents at  the final status conference benefits you in innumerable ways. Overworked, underpaid  judges and their staffs have to size you up and fight through reams of paper every day. If you simply follow the rules and do what is asked of you, the judge will necessarily  deduce that you know what you are doing, and you gain invaluable credibility as a  well-prepared trial lawyer. 

Such preparation goes a long way toward building capital to use with the judge. For example, when you have a scheduling conflict based on an inflexible out-of-trial commitment, it becomes much more likely that the court will accommodate you when you have taken the time to prepare the right documents and have shown enough respect for the judge to follow their rules. 

Motions in Limine 

You should begin thinking about motions in limine at least sixty days prior to trial with the expectation that the motions will be heard on the first day of trial. There are varying rules on the timing of filing motions in limine. 

To be safe, you should meet and confer with defense counsel and file motions in limine with proper statutory notice, calculated from the date of the final status conference. 

Also, oppositions to the defense’s motions in limine must be timely filed. Motions in limine effect the judge’s perception of you as  being prepared and ready for trial. Additionally, filing simple “Notices of Non-Opposition” to the pro-forma defense motions (i.e., to preclude witnesses from the  courtroom, prevent the mention of insurance, etc.).

Trial Briefs Re: Video Presentation and Mini-Openings 

You should also timely file your brief in support of playing videotape depositions of the  defense’s experts at trial. 

Video is critically important, not only from an argument  standpoint, but from a general presentation standpoint. Similarly, the relatively new  rules for “mini-openings” (California Civil Procedure §222.5) generally require you to  file a pretrial brief requesting a mini-opening prior to voir dire. 

You should have these  briefs filed sometime prior to the final status conference so you can discuss both issues  with thejudge and reference your previously filed papers. 

PHASE III - THE FIRST DAY OF TRIAL 

The old saying about never having a second chance to make a first impression is absolutely correct. The jurors’ first impression of you is very important. There are a number of simple rules to follow and tasks to complete which are critical to starting the trial on the right foot. 

The Five-Mile Rule 

Within five miles of the courthouse, a lawyer, witness, or client should act as though every person around them is a potential juror. 

This means no stealing of parking spaces, no making inappropriate gestures to drivers that cut you off, and no running of yellow or red lights. No jaywalking. No cursing. No standing in line talking on your cell phone,oblivious to backing up the line leading into the courthouse or at the Starbucks. No opening your car door and having papers fall out. No appearing disheveled, flustered, or frustrated. 

At all times when you are in court or within a five-mile radius of the court,  you need to smile or at least appear pleasant. You should assume that everyone looking at you is a potential juror, and be on your best behavior. 

Iron Your Clothes and Shine Your Shoes 

Never leave your house with a wrinkled suit. Never leave your house with dirty shoes. This is not vain; it is realistic. 

Recently, I had a juror tell me in voir dire that she was in  sales, and had been observing the lawyers for the prior two days during the voir dire process. She indicated that plaintiffs were “far ahead” because I “looked the part,” and the  defense did not. Indeed, she specifically noted my shined shoes. 

Of course, we stipulated to her dismissal from the jury because it was the only fair thing to do. But the undisclosed impressions of the twelve or more individuals that do end up on your jury are critical, and a well-groomed appearance is important throughout the entire trial process.