So you are going to trial: How to prepare for the case that doesn’t settle

By Tom Tinkham and Meghan DesLauriers

Once upon a time, it could reasonably be argued that trial preparation began when a case was filed, if not before. Today, however, with 90 percent of civil cases settling before trial, case preparation is often focused on achieving a positive settlement. At some point in the life of a case, that must change. Serious trial preparation should begin with the receipt of a trial notice or when it becomes likely that settlement efforts will fail. Even where successful mediation is still possible, delaying trial preparation to within two months of a trial date risks starting that trial with inadequate preparation. This article sets out best practices for trial preparation. Circumstances, such as schedules and economics, may dictate a departure from the ideal, but best practices should always be the goal. No matter how skilled and talented you are (or think you are), solid trial preparation will improve your work.

Getting a start on preparation

As you start to prepare, remind yourself—and keep reminding yourself—that the ultimate goal of preparation is to most effectively persuade a trier of fact of a limited set of facts. Remain focused on that goal and the larger principles that will help you attain it. 

First, people learn best in different ways: oral information, written word, videos and graphics. Try to use as many different modes as reasonably fit the case. Second, the key to persuasion is interest. How do you avoid boring your trier of fact? A person whose attention wanders is hard to persuade. Eliminate irrelevant material, use different methods to convey information, verbally emphasize critical information, and highlight or call out important written information. Keep the trier of fact engaged and keyed in to what’s important. Third, people accept information from individuals and parties they trust and respect. Look for ways to build the credibility of your legal team, your client, and your witnesses. Finally, people learn by repetition. Plan to repeat, in a variety of ways, your presentation of factual material critical to the outcome while eliminating repetition of information provided for background, foundation, or technical purposes.

Addressing administrative issues

Before you dig into the substance of trial preparation, tackle the logistical issues. Check your calendar and your trial group for any conflicts with the assigned date. Confirm that all of your trial witnesses will be available to testify. Reconcile any conflicts or approach the other parties and the court for a change in the trial date if conflicts cannot be reconciled. 

Consider whether there will be motions in limine that need to be scheduled before the trial date. You may need to check the scheduling order or confer with the court’s legal clerk to determine how the trial judge prefers to schedule and handle these motions.

Decide who on your trial team will be preparing each portion of the case. The scope of their trial preparation duties and their other responsibilities will dictate much of the trial preparation schedule. The schedule should include the following tasks with an approximate time allotted and due dates: 

• jury verdict form; 
• jury instructions or proposed findings of fact; 
• conclusions of law and order for judgment; 
• opening statement and closing arguments; 
• trial brief; 
• exhibit and witness lists (including creation of demonstrative exhibits); 
• a master direct examination outline annotated with all exhibits; 
• individual outlines for direct and cross examination of each witness; 
• outline of Rule 50 motions or opposition if applicable; 
• memos on any significant evidentiary issues; 
• preparation of witnesses; and 
• practice for voir dire and opening statements. 

Creating a schedule for all of these tasks will allow you to determine how far in advance of trial you need to start your preparation and how much help you will need.

First steps to prepare

Now that you have a team, a schedule, and a list of action items, begin preparation with a review of the pleadings. It may have been years since the pleadings were served. Refresh your memory: Particularly look for claims or defenses that have become apparent during discovery but may have been overlooked at the pleading stage. Do you need to amend the pleadings? Second, outline the claims and defenses that have survived discovery. For complete trial preparation, identify the elements of each viable claim and defense so that those elements can become a part of your master trial outline. Third, identify claims or defenses that never had a basis or have become moot during discovery. Request that your opponent dismiss these claims or defenses. If the opponent will not stipulate to dismiss these, determine how best to obtain a summary ruling from the court to dispose of these unsubstantiated issues.

Next, make sure that you are fully familiar with all procedures that will apply in the trial court. While the procedures are not all found in the rules of civil procedure and the rules of evidence, those are good places to start. In federal court, you will need to consult the local rules and any standing orders or published preferences of the trial judge. In state court, there may be statutes outlining some procedures, general or special rules, and a trial court standing order. Most trial courts issue a pretrial order that will contain mandatory service and filing dates for trial briefs, exhibit and witness lists, and jury instructions, among other items. Docket these dates, note them on your personal calendar, and build them into your preparation schedule. Finally, it is always worth a call to the court’s clerk to learn if the judge has any particular practices that do not show up in the documents. You might inquire, for example, what daily schedule the court follows; whether the court will conduct a pretrial conference just before the trial starts and what subjects will be covered; or does the court wish to be apprised in advance of significant evidentiary issues?

Focus on the issues to be tried

Trial presentations often lack focus, leading to jury confusion and poor results for the party unable to bring issues into sharp focus. Nothing focuses the factual issues better than preparing the jury verdict form and jury instructions or proposed findings of fact, conclusions of law, and order for judgment. Making these your first substantive task will allow you to focus the trial brief and witness preparation on the significant factual issues. As you prepare these documents, keep in mind that your opponent may have different or additional factual issues that they will argue must also be decided. By now, discovery should allow you to anticipate these points. Unfortunately, some of these disagreements are not resolved until late in the trial. As a matter of caution, your preparation must include all factual issues in controversy, so plan to build these disputed points into your witness outlines. They can always be eliminated if you convince the court that those points are not at issue.

Create your theme for the trial

Once you have the factual issues in mind, develop an overarching theme for your trial preparation. The theme you develop should allow you to consistently incorporate the facts you will ultimately ask the jury to find. This should not be as simplistic as “the defendants are evil people.” Jurors do not often or easily regard parties to a commercial dispute as “evil.” Ordinarily, proving someone is evil requires greater and more persuasive evidence than proving negligence or breach of contract. Align your theme with the issues of the case. In a breach of contract case, for example, the theme could be that the opposition saw an opportunity for a large gain and didn’t let contract agreements stand in its way. In a negligence case, for example, a theme might be that the defendant was pressed for time and cut corners on safety. The theme should allow jurors to relate their everyday experiences to the facts of your case. The theme will also allow you to focus on the jurors who will respond most favorably to your theme. What type of juror will most likely have experiences that can lead to a positive or negative response to this theme? You should build your opening, witness examinations, and final argument around the theme to repeatedly reinforce it for the trier of fact. While you are developing your theme, consider the theme that will be offered by your opponent. Plan to build into your opening and witness outlines facts that will cast doubt on that theme.

Create a trial notebook

You don’t want to be poring through a stack of papers or searching your computer each time you start a new aspect of the trial. Whether in a hard copy notebook or in one folder (with subfolders) on your computer, create a trial notebook for everything you will need to organize yourself during the trial. This notebook should have sections for exhibit and witness lists, the trial brief, pretrial motions, voir dire, opening statement, witness outlines (for each witness on direct and cross), Rule 50 motions or responses, and final argument. The exhibit list should include a method to note whether an exhibit is offered and received at trial. All sections should be completed before the trial begins, and trial responsibility for each portion of the trial should be assigned if more than one attorney will participate at trial.

Another folder or notebook should contain copies of all your exhibits and your opponent’s likely exhibits. While hundreds of exhibits may seem important to you, remember that most trials end with a focus on 5-10 exhibits at most. As you organize, do your best to focus on these exhibits so they can be highlighted throughout the trial. Eliminate unnecessary exhibits so they don’t obscure those that are most important. Included with each of your exhibits can be a note of any likely objections and the basis for admission under the Rules of Evidence. Comments on the necessary foundation may be helpful where the foundation may be more complicated. Finally, your copy of each exhibit should show the material points so that you can quickly highlight those during examination. If some of your exhibits have no points to highlight, that suggests they have no real purpose. Include with your opponent’s exhibit set citations for any objections that may be appropriate.

A third set of folders will contain the outlines for direct and cross examination of each witness. These need not be scripts, because you don’t want to sound scripted. There should be enough detail so that you can quickly see subjects to cover and any corresponding exhibits. You will find that these outlines should be modified as the trial brings points and issues into sharper focus. For witness preparation it is useful to have a set of exhibits available that will be used with that witness, including those likely to be used on cross examination. The witness deposition transcripts should also be available with each witness outline. You should highlight portions of the transcripts to be reviewed with the witness. Portions of the transcripts that may be used by you to impeach adverse witnesses should also be annotated to each cross examination outline.

Preparing to use technology

How will you most effectively show your evidence to the jury? First, take a tour of the courtroom. If you are using a computer to display your exhibits, test your technology in the courtroom before trial to make sure the systems are compatible and that all jurors will easily be able to see your exhibits. Make sure you and other members of your trial team can manipulate exhibits to highlight or call out sections that will be the focus of the examination. Video of deposition testimony should be edited or tabbed so it can be efficiently shown to the jury. Consider alternate means to convey your points through demonstrative exhibits. These may be complex charts with overlays and graphics or plans to simply write information on a whiteboard as a witness testifies. Practice with your graphics before an audience to make sure you can carry them off and that the audience will understand the points. Vary the methods used to create interest and appeal to those who learn in different ways.

Actually preparing yourself and your witnesses

By this point you have done most of the work of preparing yourself, but you may have become mired in the maze of detail that is a necessary part of trial preparation. Take the time to step back and review the central points you must establish to prevail. Start again with the questions the jury will ultimately answer. Focus on the key evidentiary points that will lead to the correct responses. Then, run through your voir dire and opening statement. Don’t try to memorize these line by line, but have the primary points in mind so you can discuss them extemporaneously with the jury.

Shortly before trial, you will be preparing your witnesses. It is a mistake to begin preparing witnesses before you are prepared with a master outline and a theme for the case. Preparing witnesses before you are prepared is likely to mean that you miss key points to review with the witness. By now you should know the strengths and weaknesses of your witnesses. Consider what type of preparation is most needed for each witness. If the witness has previously testified in court, you won’t need to spend time on courtroom procedure or the setting. With a nervous witness, you will need to provide assurance. With the overconfident witness, you will need to provide caution. The point is: Tailor the preparation to the witness. One-size preparation is not effective.

Have a plan for each witness. What will be a successful appearance for each witness? Focus the preparation on the testimony that will result in this success.

Concluding thoughts

Preparation, like most aspects of trial work, is an art and not a science. You should tailor your preparation to the stakes in the dispute and the complexity of the issues. Nevertheless, an understanding of how to best organize your preparation will make the process much more efficient and likely much more effective. Along with this understanding, successful preparation requires a commitment to spend the time necessary to devote to each aspect of preparation. It is always the case that other clients and other cases will intrude on your preparation time. Plan for that to happen! Keep in mind throughout that your goal is to build credibility and effectively communicate the central points that will lead to the best result for your client. 

MEGHAN DESLAURIERS is a trial partner at Dorsey & Whitney and co-chair of the firm’s healthcare litigation practice group.  Meghan’s practice focuses on medical and business litigation within the health care industry, including representing providers and payors in all forms of disputes.