Tips and Time Savers for Trial Preparation

Assemble the entire trial team for a day-long, in-person planning and strategy session. At this first meeting, address and assign substantive and logistic tasks.

Tip

Use this meeting to set the tone and the expectations for the period leading up to trial and then for the trial itself. Regardless of trial team's size, the lead trial attorney assigns responsibility for the multitude of tasks that require the attention and diligence of team members. Team meetings should stress accountability and include pep talks regarding the demands of trial preparation and trial. At some point during preparation, each and every trial team member will have a “mini“ breakdown. Identifying the probability of such a personal event removes some of the sting for the rest of the trial team. This is not to suggest that disrespectful or abusive behaviors are tolerated, but it is an opportunity to emphasize the importance of nutrition and fitness throughout the preparation process.

In addition to the traditional checklists found in many trial treatises, the 100-day tasks and assignments include: scheduling interactive team meetings (frequency and mode: phone, video, and in-person conferences); creating the trial task list and trial calendar, which includes alerts for the trial team (with a separate external calendar for in-house counsel and client); starting the electronic trial book including all court orders, pleadings and discovery; confirming witness and expert availability for preparation sessions and testimony at trial; scheduling tutorials and mock exercises; identifying potential motions in limine, applicable jury instructions, documents and other information likely to become exhibits; and reviewing the most recent iteration of the trial themes. (See Figures 1 and 2, below.)

Time Saver

Implement a virtual trial site where all of the trial preparation information is available to all trial team members 24/7.

Tip

The task list and team calendar are living documents with a single editor, usually an experienced paralegal or seasoned associate who owns the editorial rights for the life of the case. Tasks should be numbered with columns for date, description, responsible person, status, and sign off for completion. This list is standardized for all trial activities through post-trial motions.

In addition to deadlines and docketing events, include “fun” events on the trial team calendar. Add social and personal events, birthdays, holidays and anniversaries. Participation in these events elevates the trust and camaraderie between and among the trial team.

Tip

Engage the client in the “real” trial preparation process, including client expectations with respect to budget, mock exercises, witness coordination, settlement, and trial outlines and themes. Client management is an opportunity to test the client's appetite for the trial, including budget expectations. Many times the client's eyes are much bigger than the stomach. Certainly the parties have participated in unsuccessful settlement efforts; however, the trial attorney must focus the client, in-house counsel, the chief financial officer, and others in leadership, on the strengths and weaknesses of the case at trial, which is often very different from other stages of litigation.

Time Saver

A good test of the client's appetite for trial is a 90-minute presentation of the main case themes, witness testimony, evidentiary issues, and a closing argument with an accompanying 30 minutes for questions and answers. Ask the client representative to invite a cross-section of management, excluding any trial witnesses, to attend. This rehearsal prepares the client for the value of the upcoming mock exercises, often reveals nuances about the case known only to company insiders, and generates good discussion about the merits of having a jury decide a significant business issue for the company.

Finally, focus groups and mock exercises are a valuable means to test the claims and defenses that survive to trial. Use video depositions or mock depositions to test the reactions of the mock jurors to the witnesses through whom evidence will be introduced.

Tip

Trial attorneys often lose the advantage of the mock exercise by trying to “win” in front of the client. Set the expectations with the client that mock exercises are not about winning or losing. Successful mock exercises test the strengths of the adversary's case and the weaknesses of your client's case. The true value of the exercise comes from identifying which themes or information are persuasive with the jurors who are undecided. Give some consideration to purpose of the mock exercise: is it early enough in the process for the trial team to test some competing themes? If so, analyze whether client representatives should attend and participate.

75 Days Before Trial

Trial preparation activities are chock-full of strategic decisions that may be outcome determinative. The trial team has the mock exercise report and recommendations so that witness and expert preparation can start in earnest.

Tip/Time Saver

Keep the trial consultants, both jury and presentation experts, involved in the development and critique of the trial presentation. Having the opportunity to work through a story-board and choose from several graphic presentation styles will standardize your themes and messaging. Multimedia is now standard in most courtrooms, and most juries expect to see a “show.” Consistency between what the jury hears from attorneys and witnesses and what the jury sees in exhibits and demonstratives is a critical component in a persuasive trial presentation. (See Figure 3, below.)

The senior members are working the trial themes into sound bites that are repetitive and memorable for the witnesses, drafting the trial brief to tell the story, and matching the jury instructions to both the themes and the trial brief. The elements of the claim/defense and evidence chart are tied to jury instructions and burdens of proof. The paralegal is organizing the witness files, ordering certified copies or originals of documents and scheduling hotel and travel logistics for witnesses and the trial team.

Time Saver

Have a paralegal develop a working relationship with each witness so that the trial attorney is not burdened with travel logistics relating to preparation and trial. The lead trial attorney is crafting the order of presentation of testimony and evidence, observing the trial judge in action and reading recent orders and decisions, and working on the outline of the closing argument.

Tip

Follow and attend the trial judge's pretrial motion calendar and observe jury selection and trial procedure in other cases on the court's docket. Ideally, the observing attorney has been through one or more trials from start to finish. Make sure that attorney prepares written summaries and presents an oral report during a scheduled trial team meeting.

60 Days Before Trial

The trial team practices direct and cross examination with each witness and expert, becoming more intense and aggressive with each session.

Tip

With fact witnesses, digital recording and observation is an effective tool for continued training and improvement. As expert witness practice goes forward, experts learn to use their reports as persuasive demonstratives that simplify and teach concepts central to the experts' opinions and testimony.

Time Saver

Read the case from start to finish; the pleadings, the primary and
secondary witness depositions, the dispositive motions, the declarations and exhibits, the expert reports, and the court's orders. With good preparation, expect only minor adjustments to be made, but there is still time to make significant changes to the case to be tried if necessary.

45 Days Before Trial

The trial team prepares for the fireworks between the parties. Opposing counsel clash swords as each side tries to control the exhibits and the pretrial procedures. Pretrial filings are prepared, filed and served. Many judges ask for joint filings of pretrial statements, exhibit lists, witness lists, neutral statements of the case and voir dire for the jury and preliminary jury instructions.

Tip

Prepare a lead negotiator, with a supporting team, to handle all communications with opposing counsel. Having one point of contact and confirming areas of agreement and dispute streamlines the joint preparation and presentation process, and prepares for a “final“ settlement conference that positions the client for the best possible settlement outcome.

Tip

Consider appointing a senior member of the trial team as lead settlement attorney to attend the settlement conference while the rest of the trial team prepares without the distraction of negotiations. Avoid delay in trial preparation in the hope that “the settlement conference will make this trial go away.” Other team members are scouting the courtroom, befriending the courtroom clerk and the court reporter, and mapping the physical layout and technology capabilities of the courtroom.

30 Days Before Trial

The opening statement is outlined, witness scripts are finalized, stipulations regarding admissibility of exhibits, deposition transcript designations, and jury materials are reached (or not), and cross-examination scripts are started. The lead attorney is refining the order of presentation of the case. Every item on the task list is reviewed for completion or finalized.

Tip

Work backward through the trial, from the closing argument and verdict form. The lead trial attorney attends one start-to-finish practice session with each witness and expert with the dual purpose of listening for the consistent storyline and identifying ways to punch up the trial themes. Know the exhibits and the testimony so that the outline of the closing argument and preparation of the opening statement are focused on presentation techniques that tell the story emphasize the trial themes. Within two weeks of trial, the trial team arrives on site and logistics are tested and finalized.

Ten Days Before Trial

Demonstratives are finalized and exchanged, objections to exhibits and demonstratives are filed and resolved, and negotiations regarding jury materials begins again. Witnesses for both sides have been served with trial subpoenas, and the daily trial schedule is finalized with the court. The lead trial attorney works the order of presentation and practices the opening statement with the trial team and client representative. Split the rest of the trial team between witness preparation and jury material preparation. Federal judges are trending toward timed-trials that force the parties to streamline the presentation of the case. Time the witness practice sessions and have witness use the exhibit binders as part of the preparation. Focus other trial team members on courtroom set up, demonstratives, animations, digital playback of depositions for cross-examination purposes, and voir dire procedures.

Tip

Move all equipment, courtroom library, and trial materials into the courtroom at least one day before jury selection begins. Have at least one laptop with a tested broadband card for Internet access to have real-time research and e-mail available.

Time Saver

Equipment failures will occur, so have redundancies in place so the case is ready to go forward, even if the lights in the courtroom fail. Test all technology, including projectors, sound, and monitors and have extra bulbs, batteries and power cords available in the courtroom. An easel pad and markers should always be within reach. In the event a projector bulb fails, the lead attorney is well versed in the presentation and will describe (and draw) the visual communication piece without pause.

First Day of Trial

Jury selection takes most of the day, but the jurors are now seated, sworn and instructed. The lead trial attorney stands to present a seamless story that is authentic, trustworthy and persuasive. The trial theme is a Twitter-like post that is simple and easy for the jury to remember. The opening demonstratives guide the jury through the opening statement and illustrate the promises to be fulfilled by the close of the evidence.

Conclusion

Trial is demanding, both physically and emotionally. A successful trial attorney is a good story teller, reaching the hearts and minds of each juror during the multimedia presentation of the client's case. Every trial is different, as is every trial team. Rarely does a trial team have the luxury of planning, much less controlling, the events that occur during the 100 days before trial. A systematic approach to trial preparation frees the trial attorney to reach peak performance as trial begins.

[IMGCAP(1)]

[IMGCAP(2)]

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Nancy J. Geenen ([email protected]) is a partner with Foley & Lardner LLP in the Intellectual Property Litigation, General Commercial Litigation and Bankruptcy & Business Reorganizations practices. Suann Ingle is a managing director with FTI Consulting, Inc. in the Forensic and Litigation Consulting practice. She specializes in jury research, strategic communication and presentation technology at trial.

This article examines calendar and activity milestones during the three-to-four-month period before making an opening statement at trial. A comprehensive checklist of activities and tasks is vital for success in today's high-stakes civil litigation, especially as a guideline for in-house counsel with budgetary concerns who may not have experience in trial preparation and delivery timelines. Checklists are gaining increased attention in a multitude of places, including hospitals and cockpits, protecting against inadvertent error and maximizing the opportunity for success in a stressful environment.

Preparing for trial is as much about a methodical approach to tasks and deadlines as it is about the craft of the presenting a persuasive story. A trial team ' from the most seasoned trial attorney to novice litigator ' needs a forward-looking roadmap that identifies the destination and describes the landmarks along the way. Methodical trial preparation provides the trial attorney with more time for creative and analytical thinking that is often the difference between winning and losing a close case.

100 Days Before Trial

Assemble the entire trial team for a day-long, in-person planning and strategy session. At this first meeting, address and assign substantive and logistic tasks.

Tip

Use this meeting to set the tone and the expectations for the period leading up to trial and then for the trial itself. Regardless of trial team's size, the lead trial attorney assigns responsibility for the multitude of tasks that require the attention and diligence of team members. Team meetings should stress accountability and include pep talks regarding the demands of trial preparation and trial. At some point during preparation, each and every trial team member will have a “mini“ breakdown. Identifying the probability of such a personal event removes some of the sting for the rest of the trial team. This is not to suggest that disrespectful or abusive behaviors are tolerated, but it is an opportunity to emphasize the importance of nutrition and fitness throughout the preparation process.

In addition to the traditional checklists found in many trial treatises, the 100-day tasks and assignments include: scheduling interactive team meetings (frequency and mode: phone, video, and in-person conferences); creating the trial task list and trial calendar, which includes alerts for the trial team (with a separate external calendar for in-house counsel and client); starting the electronic trial book including all court orders, pleadings and discovery; confirming witness and expert availability for preparation sessions and testimony at trial; scheduling tutorials and mock exercises; identifying potential motions in limine, applicable jury instructions, documents and other information likely to become exhibits; and reviewing the most recent iteration of the trial themes. (See Figures 1 and 2, below.)

Time Saver

Implement a virtual trial site where all of the trial preparation information is available to all trial team members 24/7.

Tip

The task list and team calendar are living documents with a single editor, usually an experienced paralegal or seasoned associate who owns the editorial rights for the life of the case. Tasks should be numbered with columns for date, description, responsible person, status, and sign off for completion. This list is standardized for all trial activities through post-trial motions.

In addition to deadlines and docketing events, include “fun” events on the trial team calendar. Add social and personal events, birthdays, holidays and anniversaries. Participation in these events elevates the trust and camaraderie between and among the trial team.

Tip

Engage the client in the “real” trial preparation process, including client expectations with respect to budget, mock exercises, witness coordination, settlement, and trial outlines and themes. Client management is an opportunity to test the client's appetite for the trial, including budget expectations. Many times the client's eyes are much bigger than the stomach. Certainly the parties have participated in unsuccessful settlement efforts; however, the trial attorney must focus the client, in-house counsel, the chief financial officer, and others in leadership, on the strengths and weaknesses of the case at trial, which is often very different from other stages of litigation.

Time Saver

A good test of the client's appetite for trial is a 90-minute presentation of the main case themes, witness testimony, evidentiary issues, and a closing argument with an accompanying 30 minutes for questions and answers. Ask the client representative to invite a cross-section of management, excluding any trial witnesses, to attend. This rehearsal prepares the client for the value of the upcoming mock exercises, often reveals nuances about the case known only to company insiders, and generates good discussion about the merits of having a jury decide a significant business issue for the company.

Finally, focus groups and mock exercises are a valuable means to test the claims and defenses that survive to trial. Use video depositions or mock depositions to test the reactions of the mock jurors to the witnesses through whom evidence will be introduced.

Tip

Trial attorneys often lose the advantage of the mock exercise by trying to “win” in front of the client. Set the expectations with the client that mock exercises are not about winning or losing. Successful mock exercises test the strengths of the adversary's case and the weaknesses of your client's case. The true value of the exercise comes from identifying which themes or information are persuasive with the jurors who are undecided. Give some consideration to purpose of the mock exercise: is it early enough in the process for the trial team to test some competing themes? If so, analyze whether client representatives should attend and participate.

75 Days Before Trial

Trial preparation activities are chock-full of strategic decisions that may be outcome determinative. The trial team has the mock exercise report and recommendations so that witness and expert preparation can start in earnest.

Tip/Time Saver

Keep the trial consultants, both jury and presentation experts, involved in the development and critique of the trial presentation. Having the opportunity to work through a story-board and choose from several graphic presentation styles will standardize your themes and messaging. Multimedia is now standard in most courtrooms, and most juries expect to see a “show.” Consistency between what the jury hears from attorneys and witnesses and what the jury sees in exhibits and demonstratives is a critical component in a persuasive trial presentation. (See Figure 3, below.)

The senior members are working the trial themes into sound bites that are repetitive and memorable for the witnesses, drafting the trial brief to tell the story, and matching the jury instructions to both the themes and the trial brief. The elements of the claim/defense and evidence chart are tied to jury instructions and burdens of proof. The paralegal is organizing the witness files, ordering certified copies or originals of documents and scheduling hotel and travel logistics for witnesses and the trial team.

Time Saver

Have a paralegal develop a working relationship with each witness so that the trial attorney is not burdened with travel logistics relating to preparation and trial. The lead trial attorney is crafting the order of presentation of testimony and evidence, observing the trial judge in action and reading recent orders and decisions, and working on the outline of the closing argument.

Tip

Follow and attend the trial judge's pretrial motion calendar and observe jury selection and trial procedure in other cases on the court's docket. Ideally, the observing attorney has been through one or more trials from start to finish. Make sure that attorney prepares written summaries and presents an oral report during a scheduled trial team meeting.

60 Days Before Trial

The trial team practices direct and cross examination with each witness and expert, becoming more intense and aggressive with each session.

Tip

With fact witnesses, digital recording and observation is an effective tool for continued training and improvement. As expert witness practice goes forward, experts learn to use their reports as persuasive demonstratives that simplify and teach concepts central to the experts' opinions and testimony.

Time Saver

Read the case from start to finish; the pleadings, the primary and
secondary witness depositions, the dispositive motions, the declarations and exhibits, the expert reports, and the court's orders. With good preparation, expect only minor adjustments to be made, but there is still time to make significant changes to the case to be tried if necessary.

45 Days Before Trial

The trial team prepares for the fireworks between the parties. Opposing counsel clash swords as each side tries to control the exhibits and the pretrial procedures. Pretrial filings are prepared, filed and served. Many judges ask for joint filings of pretrial statements, exhibit lists, witness lists, neutral statements of the case and voir dire for the jury and preliminary jury instructions.

Tip

Prepare a lead negotiator, with a supporting team, to handle all communications with opposing counsel. Having one point of contact and confirming areas of agreement and dispute streamlines the joint preparation and presentation process, and prepares for a “final“ settlement conference that positions the client for the best possible settlement outcome.

Tip

Consider appointing a senior member of the trial team as lead settlement attorney to attend the settlement conference while the rest of the trial team prepares without the distraction of negotiations. Avoid delay in trial preparation in the hope that “the settlement conference will make this trial go away.” Other team members are scouting the courtroom, befriending the courtroom clerk and the court reporter, and mapping the physical layout and technology capabilities of the courtroom.

30 Days Before Trial

The opening statement is outlined, witness scripts are finalized, stipulations regarding admissibility of exhibits, deposition transcript designations, and jury materials are reached (or not), and cross-examination scripts are started. The lead attorney is refining the order of presentation of the case. Every item on the task list is reviewed for completion or finalized.

Tip

Work backward through the trial, from the closing argument and verdict form. The lead trial attorney attends one start-to-finish practice session with each witness and expert with the dual purpose of listening for the consistent storyline and identifying ways to punch up the trial themes. Know the exhibits and the testimony so that the outline of the closing argument and preparation of the opening statement are focused on presentation techniques that tell the story emphasize the trial themes. Within two weeks of trial, the trial team arrives on site and logistics are tested and finalized.

Ten Days Before Trial

Demonstratives are finalized and exchanged, objections to exhibits and demonstratives are filed and resolved, and negotiations regarding jury materials begins again. Witnesses for both sides have been served with trial subpoenas, and the daily trial schedule is finalized with the court. The lead trial attorney works the order of presentation and practices the opening statement with the trial team and client representative. Split the rest of the trial team between witness preparation and jury material preparation. Federal judges are trending toward timed-trials that force the parties to streamline the presentation of the case. Time the witness practice sessions and have witness use the exhibit binders as part of the preparation. Focus other trial team members on courtroom set up, demonstratives, animations, digital playback of depositions for cross-examination purposes, and voir dire procedures.

Tip

Move all equipment, courtroom library, and trial materials into the courtroom at least one day before jury selection begins. Have at least one laptop with a tested broadband card for Internet access to have real-time research and e-mail available.

Time Saver

Equipment failures will occur, so have redundancies in place so the case is ready to go forward, even if the lights in the courtroom fail. Test all technology, including projectors, sound, and monitors and have extra bulbs, batteries and power cords available in the courtroom. An easel pad and markers should always be within reach. In the event a projector bulb fails, the lead attorney is well versed in the presentation and will describe (and draw) the visual communication piece without pause.

First Day of Trial

Jury selection takes most of the day, but the jurors are now seated, sworn and instructed. The lead trial attorney stands to present a seamless story that is authentic, trustworthy and persuasive. The trial theme is a Twitter-like post that is simple and easy for the jury to remember. The opening demonstratives guide the jury through the opening statement and illustrate the promises to be fulfilled by the close of the evidence.

Conclusion

Trial is demanding, both physically and emotionally. A successful trial attorney is a good story teller, reaching the hearts and minds of each juror during the multimedia presentation of the client's case. Every trial is different, as is every trial team. Rarely does a trial team have the luxury of planning, much less controlling, the events that occur during the 100 days before trial. A systematic approach to trial preparation frees the trial attorney to reach peak performance as trial begins.

[IMGCAP(1)]

[IMGCAP(2)]

[IMGCAP(3)]

Nancy J. Geenen ([email protected]) is a partner with Foley & Lardner LLP in the Intellectual Property Litigation, General Commercial Litigation and Bankruptcy & Business Reorganizations practices. Suann Ingle is a managing director with FTI Consulting, Inc. in the Forensic and Litigation Consulting practice. She specializes in jury research, strategic communication and presentation technology at trial.