Chapter 15 Trial Techniques Questions & Answers
15-1 Preliminary Preparation for Trial - The preparation for trial actually begins at the initial client interview. It is at this
point that the attorney begins to develop the theory of the case, the plan for
where you are going with the case and how you will shape the law and the
facts to achieve your ultimate destination. The late great baseball player, Yogi
Berra, has been credited with the quote, "If you don't know where you're going,
when you get there, you'll be lost." That statement is especially true in the
planning and execution of trial strategy. As a paralegal, you may be involved in
establishing the theory of the case. Perhaps when your attorney first assigned
you to work on the case, she began by saying, "This case is about...." Many
attorneys have difficulty articulating the theory of the case. They often equate
the theory with a claim or defense. That is the beginning point. For example, in
the Bennett case featured in this text, you might begin with the complaint in
Appendix B. The theory should be succinct, credible, interesting, utilize
common sense, and include the emotions of the client's case. Once you have
developed the theory of the case, you are ready to identify witnesses and
exhibits through which you can flesh out this theory.
- A proof chart is a list of the elements of the case that must be proved,
witnesses to prove the element, the exhibit to be utilized, and any anticipated
objection(s) to the exhibit. Completion of a proof chart enables the attorney or
paralegal to determine any gaps in establishing their theory of the case
- Each of the processes and tasks that we have examined thus far in the text
advances the prosecution or the defense of the case. Although most cases are
settled or dismissed before reaching the trial stage, you must proceed on the
assumption that eventually the case will reach trial. Some preparation tasks may
be performed several months in advance of trial, whereas others must be
handled at the last minute.
- Whatever the case, the client will prevail only if you and your attorney are
thoroughly prepared for all eventualities. To insure the success of such
preparation, the paralegal should develop a trial preparation checklist of all the
tasks that must be performed before the trial and the time frame for
completion of those tasks. Regular monitoring and updating of this checklist
will ensure that the case is truly ready for the trial
Trial Preparation Checklist:
Three to Six Months Prior to Trial Date
Place the trial date on the law firm's docket system and on the individual
calendars of the trial team. Reschedule any conflicts within the docket or
individual calendars.
Schedule regular trial team meetings.
Review and docket all entries on a trial scheduling or case management order.
Review all discovery to determine whether any supplementation is required for
witnesses or documents and coordinate any necessary supplementation.
Check with the attorney for additional depositions that should be scheduled.
Begin logistical planning, particularly if the trial is out of town. Contact hotels,
conference centers, copy vendors, and so forth.
Coordinate technological requirements for the trial with the trial team and the
firm's litigation support staff.
If exhibit enlargements, computer-generated exhibits, or models made to scale
are required, begin the process of ensuring that these are under way in time for
review well before the beginning of trial.
Review litigation files and organize.
Complete trial notebook.
Finalize trial logistics, including travel, hotels, conference rooms, and food
arrangements.
Four to Six Weeks Prior to Trial
Review pleadings and check with the attorney regarding any amendments
necessary. Assist with drafting to the extent requested by the attorney.
Begin the preparation of exhibit lists and witness lists.
Coordinate deposition designations with the trial team.
Assist with the drafting of the pretrial order, if requested by your attorney.
, Chapter 15 Trial Techniques Questions
g p & Answers
q yy y
Assist with drafting pretrial and trial motions, including motions in limine and
voir dire, if requested to do so by your attorney.
Coordinate mock jury or focus group.
Visit the courtroom, if possible, to review space available, placement of
electronic equipment, and so forth.
Two to Three Weeks Prior to Trial
Contact the client and other witnesses regarding the trial schedule and
logistics. Schedule meetings to prepare for their trial appearances.
Prepare trial subpoenas.
Conduct jury investigation if the jury pool data are available.
Continue the preparation of trial exhibits and trial notebook.
One Week Prior to Trial
Verify service of trial subpoenas.
Finalize logistics such as hotel rooms, travel arrangements, and transportation
of trial materials to the courthouse.
Confirm arrangements for expedited or regular trial transcripts with the court
reporter.
Assist with cite checking of trial brief.
One Day Prior to Trial
Conduct meetings with trial team and office support personnel who will be
assisting at trial.
Review all trial exhibits and trial notebooks for accuracy and completeness.
Assist with final changes to motions and/or trial brief.
Check with the clerk's office regarding potential jury pool information, and
prepare juror information sheets or summary sheets, as necessary.
15-1a Pretrial Conference - Rule 16(c) of the Federal Rules of Civil Procedure provides for a pretrial
conference, a meeting between the presiding judge and attorneys, to facilitate
both the preparation for and management of a trial. There may be two such
conferences, one several weeks before the trial and the final pretrial
conference immediately before trial. Pretrial conferences narrow and simplify
the legal and fact issues of the case. The judge may ask for briefing on
particularly difficult legal issues in the case. All uncontroverted facts will be
included in the pretrial order entered by the court.
- Stipulations for the handling of evidence is another topic of the pretrial
conference. Parties may agree to the use of copies of records rather than
originals. In addition, they may stipulate to the foundation of certain business
records so that the custodian does not have to appear in court to identify the
records.
- The initiation of a summary judgment motion is often considered at the
pretrial conference, if the judge or magistrate believes that an issue or the case
as a whole may be disposed of through this means. Scheduling of oral
argument for the summary judgment motion may also be handled at that time.
During the pretrial conference, the judge may suggest Alternative Dispute
Resolution (ADR), and increasingly more courts' rules now require the parties
to undertake nonbinding ADR before the case may be tried. Rule 16(c)(2)(I) of
the Federal Rules of Civil Procedure authorizes the presiding judge to
encourage settlement negotiations. It is not unusual for a judge to attempt to
mediate or to appoint a magistrate to mediate the case.
, Chapter 15 Trial Techniques Questions & Answers
15-1b Litigation File Organization - One of the tasks in trial preparation that can be completed during the
preliminary stages of litigation is the organization of the litigation files.
Naturally, it is best if the files are kept current as the case develops. For
example, each time a pleading is filed by either side it should immediately be
placed in the pleadings binder. However, the hectic pace of most law firms will
challenge even the most efficient paralegal. Consequently, not all litigation
files are kept up to date. The setting of the trial date, however, signals the need
to organize the litigation files. This will mean reviewing all the pleadings and
motions that have been filed in the case. It will also necessitate locating all
documents, records, deposition transcripts, interrogatories, and admissions
generated during discovery. You may have to transcribe all witness interview
notes that you have not yet examined. Reviewing the litigation files at an early
stage will probably add a number of items to the to-do list on the trial
preparation checklist
15-1c Amending the Pleadings - One problem that might surface during organization of the litigation files is
the need to amend the pleadings in the case before expiration of the time to
do so. According to Rule 15(a)(1) of the Federal Rules of Civil Procedure, once a
case has been placed on the trial calendar, the pleadings in that case can be
amended only with permission of the court or with the written consent of the
opposing party. Fortunately, most state courts do not have this strict
requirement. However, it is best to check local court rules to determine the
procedure that must be followed should you find that a pleading in your case
must be amended after the trial date has been set.
15-1d Motions at the Beginning of Trial - The paralegal may be asked to assist with drafting trial motions for inclusion in
the trial notebook. A motion in limine is one of the first motions filed before or
at the beginning of trial. "In limine" is defined as "at the threshold." Such motions
are frequently used to prevent opposing counsel from introducing certain
evidence at trial. Motions in limine often attempt to exclude an opponent's
expert witness or an expert opinion. Success in this area can severely damage
the opposition's case and possibility of success. For instance, your attorney
might prepare a motion in limine to exclude one of the opposition's expert
witnesses on the grounds that his only security experience has been in the area
of residential property security services. She might argue that security
requirements for a 40-building condominium development are not applicable
to the demands of a multi-acre commercial park, such as the one which
included the building in which your client was injured.
, Chapter 15 Trial Techniques Questions & Answers
15-1e The Trial Notebook - The trial notebook, a vital part of any trial preparation, usually is the
paralegal's responsibility. The trial notebook is a binder that contains, in
complete or summary form, everything necessary to prosecute or defend a
case. Preparation of the trial notebook, like the preparation of the trial itself,
begins with the initial client interview. The contents and the organization of the
trial notebook are determined by the individual preferences of the attorney or
the paralegal. The form of the notebook is dictated by the type of case, the
number of pleadings, the complexity of the legal issues, the number of exhibits
and witnesses, and the anticipated length of the trial. However, most trial
notebooks include the following basic sections:
(1)
information regarding the parties and the attorneys;
(2)
the pleadings, motions, and discovery responses;
(3)
information regarding the witnesses;
(4)
information regarding the expert witnesses;
(5)
document indices;
(6)
deposition summaries;
(7)
chronology;
(8)
the cast of characters;
(9)
legal research;
(10)
trial exhibits;
(11)
jury profiles and instructions;
(12)
the trial outline;
(13)
the attorney's notes; and
(14)
the "things to do" list.
- It is not unusual for a paralegal to maintain a hard copy of the trial notebook
and a computerized version also. In those instances, caution must be taken to
ensure that updates and deletions are made in both.
Information Regarding the Parties and the Attorneys - The first entry in the trial notebook is a list of all the parties and attorneys
involved in the lawsuit. This list can also function as a service list for pleadings.
In addition to the names and addresses of the attorneys, the list should include
the telephone numbers, fax numbers, and e-mail addresses of their law firms.
Updating this list is extremely important. Each time a pleading is received, you
should check to determine that the attorney's name, firm, address, and client
represented are correct on your list of parties and attorneys. If you do not take
this simple precaution, you may send a pleading to the wrong address or to an
attorney who has withdrawn from a case. Such an error is not only
embarrassing and costly, but it is also grounds for a potential malpractice
action.
15-1 Preliminary Preparation for Trial - The preparation for trial actually begins at the initial client interview. It is at this
point that the attorney begins to develop the theory of the case, the plan for
where you are going with the case and how you will shape the law and the
facts to achieve your ultimate destination. The late great baseball player, Yogi
Berra, has been credited with the quote, "If you don't know where you're going,
when you get there, you'll be lost." That statement is especially true in the
planning and execution of trial strategy. As a paralegal, you may be involved in
establishing the theory of the case. Perhaps when your attorney first assigned
you to work on the case, she began by saying, "This case is about...." Many
attorneys have difficulty articulating the theory of the case. They often equate
the theory with a claim or defense. That is the beginning point. For example, in
the Bennett case featured in this text, you might begin with the complaint in
Appendix B. The theory should be succinct, credible, interesting, utilize
common sense, and include the emotions of the client's case. Once you have
developed the theory of the case, you are ready to identify witnesses and
exhibits through which you can flesh out this theory.
- A proof chart is a list of the elements of the case that must be proved,
witnesses to prove the element, the exhibit to be utilized, and any anticipated
objection(s) to the exhibit. Completion of a proof chart enables the attorney or
paralegal to determine any gaps in establishing their theory of the case
- Each of the processes and tasks that we have examined thus far in the text
advances the prosecution or the defense of the case. Although most cases are
settled or dismissed before reaching the trial stage, you must proceed on the
assumption that eventually the case will reach trial. Some preparation tasks may
be performed several months in advance of trial, whereas others must be
handled at the last minute.
- Whatever the case, the client will prevail only if you and your attorney are
thoroughly prepared for all eventualities. To insure the success of such
preparation, the paralegal should develop a trial preparation checklist of all the
tasks that must be performed before the trial and the time frame for
completion of those tasks. Regular monitoring and updating of this checklist
will ensure that the case is truly ready for the trial
Trial Preparation Checklist:
Three to Six Months Prior to Trial Date
Place the trial date on the law firm's docket system and on the individual
calendars of the trial team. Reschedule any conflicts within the docket or
individual calendars.
Schedule regular trial team meetings.
Review and docket all entries on a trial scheduling or case management order.
Review all discovery to determine whether any supplementation is required for
witnesses or documents and coordinate any necessary supplementation.
Check with the attorney for additional depositions that should be scheduled.
Begin logistical planning, particularly if the trial is out of town. Contact hotels,
conference centers, copy vendors, and so forth.
Coordinate technological requirements for the trial with the trial team and the
firm's litigation support staff.
If exhibit enlargements, computer-generated exhibits, or models made to scale
are required, begin the process of ensuring that these are under way in time for
review well before the beginning of trial.
Review litigation files and organize.
Complete trial notebook.
Finalize trial logistics, including travel, hotels, conference rooms, and food
arrangements.
Four to Six Weeks Prior to Trial
Review pleadings and check with the attorney regarding any amendments
necessary. Assist with drafting to the extent requested by the attorney.
Begin the preparation of exhibit lists and witness lists.
Coordinate deposition designations with the trial team.
Assist with the drafting of the pretrial order, if requested by your attorney.
, Chapter 15 Trial Techniques Questions
g p & Answers
q yy y
Assist with drafting pretrial and trial motions, including motions in limine and
voir dire, if requested to do so by your attorney.
Coordinate mock jury or focus group.
Visit the courtroom, if possible, to review space available, placement of
electronic equipment, and so forth.
Two to Three Weeks Prior to Trial
Contact the client and other witnesses regarding the trial schedule and
logistics. Schedule meetings to prepare for their trial appearances.
Prepare trial subpoenas.
Conduct jury investigation if the jury pool data are available.
Continue the preparation of trial exhibits and trial notebook.
One Week Prior to Trial
Verify service of trial subpoenas.
Finalize logistics such as hotel rooms, travel arrangements, and transportation
of trial materials to the courthouse.
Confirm arrangements for expedited or regular trial transcripts with the court
reporter.
Assist with cite checking of trial brief.
One Day Prior to Trial
Conduct meetings with trial team and office support personnel who will be
assisting at trial.
Review all trial exhibits and trial notebooks for accuracy and completeness.
Assist with final changes to motions and/or trial brief.
Check with the clerk's office regarding potential jury pool information, and
prepare juror information sheets or summary sheets, as necessary.
15-1a Pretrial Conference - Rule 16(c) of the Federal Rules of Civil Procedure provides for a pretrial
conference, a meeting between the presiding judge and attorneys, to facilitate
both the preparation for and management of a trial. There may be two such
conferences, one several weeks before the trial and the final pretrial
conference immediately before trial. Pretrial conferences narrow and simplify
the legal and fact issues of the case. The judge may ask for briefing on
particularly difficult legal issues in the case. All uncontroverted facts will be
included in the pretrial order entered by the court.
- Stipulations for the handling of evidence is another topic of the pretrial
conference. Parties may agree to the use of copies of records rather than
originals. In addition, they may stipulate to the foundation of certain business
records so that the custodian does not have to appear in court to identify the
records.
- The initiation of a summary judgment motion is often considered at the
pretrial conference, if the judge or magistrate believes that an issue or the case
as a whole may be disposed of through this means. Scheduling of oral
argument for the summary judgment motion may also be handled at that time.
During the pretrial conference, the judge may suggest Alternative Dispute
Resolution (ADR), and increasingly more courts' rules now require the parties
to undertake nonbinding ADR before the case may be tried. Rule 16(c)(2)(I) of
the Federal Rules of Civil Procedure authorizes the presiding judge to
encourage settlement negotiations. It is not unusual for a judge to attempt to
mediate or to appoint a magistrate to mediate the case.
, Chapter 15 Trial Techniques Questions & Answers
15-1b Litigation File Organization - One of the tasks in trial preparation that can be completed during the
preliminary stages of litigation is the organization of the litigation files.
Naturally, it is best if the files are kept current as the case develops. For
example, each time a pleading is filed by either side it should immediately be
placed in the pleadings binder. However, the hectic pace of most law firms will
challenge even the most efficient paralegal. Consequently, not all litigation
files are kept up to date. The setting of the trial date, however, signals the need
to organize the litigation files. This will mean reviewing all the pleadings and
motions that have been filed in the case. It will also necessitate locating all
documents, records, deposition transcripts, interrogatories, and admissions
generated during discovery. You may have to transcribe all witness interview
notes that you have not yet examined. Reviewing the litigation files at an early
stage will probably add a number of items to the to-do list on the trial
preparation checklist
15-1c Amending the Pleadings - One problem that might surface during organization of the litigation files is
the need to amend the pleadings in the case before expiration of the time to
do so. According to Rule 15(a)(1) of the Federal Rules of Civil Procedure, once a
case has been placed on the trial calendar, the pleadings in that case can be
amended only with permission of the court or with the written consent of the
opposing party. Fortunately, most state courts do not have this strict
requirement. However, it is best to check local court rules to determine the
procedure that must be followed should you find that a pleading in your case
must be amended after the trial date has been set.
15-1d Motions at the Beginning of Trial - The paralegal may be asked to assist with drafting trial motions for inclusion in
the trial notebook. A motion in limine is one of the first motions filed before or
at the beginning of trial. "In limine" is defined as "at the threshold." Such motions
are frequently used to prevent opposing counsel from introducing certain
evidence at trial. Motions in limine often attempt to exclude an opponent's
expert witness or an expert opinion. Success in this area can severely damage
the opposition's case and possibility of success. For instance, your attorney
might prepare a motion in limine to exclude one of the opposition's expert
witnesses on the grounds that his only security experience has been in the area
of residential property security services. She might argue that security
requirements for a 40-building condominium development are not applicable
to the demands of a multi-acre commercial park, such as the one which
included the building in which your client was injured.
, Chapter 15 Trial Techniques Questions & Answers
15-1e The Trial Notebook - The trial notebook, a vital part of any trial preparation, usually is the
paralegal's responsibility. The trial notebook is a binder that contains, in
complete or summary form, everything necessary to prosecute or defend a
case. Preparation of the trial notebook, like the preparation of the trial itself,
begins with the initial client interview. The contents and the organization of the
trial notebook are determined by the individual preferences of the attorney or
the paralegal. The form of the notebook is dictated by the type of case, the
number of pleadings, the complexity of the legal issues, the number of exhibits
and witnesses, and the anticipated length of the trial. However, most trial
notebooks include the following basic sections:
(1)
information regarding the parties and the attorneys;
(2)
the pleadings, motions, and discovery responses;
(3)
information regarding the witnesses;
(4)
information regarding the expert witnesses;
(5)
document indices;
(6)
deposition summaries;
(7)
chronology;
(8)
the cast of characters;
(9)
legal research;
(10)
trial exhibits;
(11)
jury profiles and instructions;
(12)
the trial outline;
(13)
the attorney's notes; and
(14)
the "things to do" list.
- It is not unusual for a paralegal to maintain a hard copy of the trial notebook
and a computerized version also. In those instances, caution must be taken to
ensure that updates and deletions are made in both.
Information Regarding the Parties and the Attorneys - The first entry in the trial notebook is a list of all the parties and attorneys
involved in the lawsuit. This list can also function as a service list for pleadings.
In addition to the names and addresses of the attorneys, the list should include
the telephone numbers, fax numbers, and e-mail addresses of their law firms.
Updating this list is extremely important. Each time a pleading is received, you
should check to determine that the attorney's name, firm, address, and client
represented are correct on your list of parties and attorneys. If you do not take
this simple precaution, you may send a pleading to the wrong address or to an
attorney who has withdrawn from a case. Such an error is not only
embarrassing and costly, but it is also grounds for a potential malpractice
action.
