A brilliant litigator once told this writer what it means to be close to the actual trial of a case. “It’s what it’s all about. It’s the catharsis and the justification for all of our years of planning and preparation. It is the highest point of euphoria, the greatest amount of stress, the most amount of work and the scariest part of every lawyer’s career. And I love it.”
Movies and plays, novels and newspapers all give prominence to that particular type of modern passion play, the American jury trial. Of course the various fictional accounts cannot truly portray that odd mixture of high drama and pure boredom that a typical jury or judge trial creates. Indeed, someone unfamiliar with the system often misses the key points in which a case is actually teetering on the brink of success or failure. A brief muttering from the judge on a key issue of law, a failure of a lawyer to ask the right question can turn the tide and a casual observer would not notice a thing.
Most cases settle before trial. The reasons are myriad but two that almost always predominate are the uncertainty of the outcome when one goes to actual verdict (since no lawyer can ever tell a client honestly that the case cannot be lost) and the massive expense and emotional stress of the last month before trial. Put simply, perhaps half of the total cost of most cases is expended in the last thirty days before trial, not only in terms of what the lawyer and the hired experts charge, but in the time that must be expended by the client in trial preparation. As one client put it, “My business became your business as we came close to trial. Each day, every day I was immersed in preparing for court. My business was put on hold.”
While that is perhaps an extreme case, the fact remains that every one involved must gear up as trial approaches and most cases are won or lost on which side commits completely to full and all pervasive preparation. To fail to prepare adequately is to greatly increase the chance for defeat.
This article shall answer that most basic question most clients pose when advised that trial is approaching and life is about to become very different than previously. Precisely what has to be done that is so important and time consuming?
This article shall assume the reader has already read that basic article American Litigation and is familiar with the basic steps in the actual trial and in discovery before trial. Further, this article shall concentrate on the steps that are to be taken that directly involve the client. The various complex strategic ponderings of counsel, the preparation of jury instructions, etc, which require much attorney or paralegal time but little direct client involvement shall be mentioned but not in detail.
While arbitrations and mediations require many of the same steps as a trial, certain steps (jury instructions, opening and closing to the jury, preparation of testimony for a jury rather than an arbitrator, etc.) are removed and the entire process is both simplified and less expensive. A jury trial that will require fifty thousand dollars to prepare is likely to cost thirty thousand dollars or less to prepare if going to arbitration.
So, what happens?
OVERALL THEME OF THE TRIAL AND THE BASICS OF PREPARATION:
A case well presented tells a story. Even a defense case tells a story. A judge or jury should be able to understand your story in a few sentences. It is the task of your trial counsel to prove that story.
Recall that a jury normally takes no notes of the days of testimony and after days or weeks of testimony, only have a general recollection of the witness statements. When they finally retire to the jury room, they have heard two or more sides battle for days or weeks and should be ale to understand the theory of your case despite that. That requires an essentially simple theme no matter how complex that evidence may be.
The story can be so simple that a single sentence can explain it: “We sold them five gross of goods and they have not paid.” The story can be more complex: “We do not need to abide by the contract because the survey of the land failed to take into account four separate factors that make performance impractical and the plaintiff was responsible for all four and we were not as our experts will demonstrate.” But in any case, getting that story out is the overall goal and developing ways to counter the opposing side’s story is an inherent part of trial preparation.
A good trial lawyer will keep the theme of the trial in mind through all the complex changes in circumstances throughout the trial and will seek to anticipate the defenses of the other side and the counter arguments they will advance to demonstrate why your storey is wrong and theirs is right.
That means that your counsel must not just prepare to present your story, but must be ready to defend attacks upon your story AND counter the various counter attacks that the adversary will advance. This anticipation of defenses and counter claims is an inherent part of trial preparation and includes not only knowing that law and possible arguments they can advance, but making sure you have witnesses available to present evidence to counter all the possible attacks.
This often perplexes a client who does not grasp why his or her own lawyer seems to be preparing the case for the other side. This writer has even heard a client complain that his trial counsel seemed more interested in the other side’s case rather than his own. But such anticipation and preparation for the opposing party’s arguments is a vital part of good preparation. A favorite veteran of the many trials once told this writer that if the others side came up with a good argument not already anticipated by this lawyer, he would be deeply upset and disappointed. “I should know his case better than he does,” he commented.
In one case our office handled, of the nine witnesses we had to locate and prepare to testify, five were in preparation to counter a defense that, ultimately, the other side did not even present. We would not have had time during the trial to locate and prepare such witnesses so, to be safe, we had to prepare them ahead of time. To fail to do so would have been foolish. In the end, such significant allocation of resources was not needed in trial, but good trial preparation required it all the same.
Thus, adequate preparation for trial does not just include being ready to present your own case but being fully prepared to defend it and attack the counter attacks of the opposing party. Assuming there are more than two parties (with varying claims) the matter becomes that much more complex.
Assume a breach of contract claim in which you have not paid for the products because they arrived damaged. The seller has sued you. You have cross complained that the items were not usable and you were actually damaged. The plaintiff then sues the shipper to defend itself against your counter claim, stating that if you are not liable, the shipper is. The shipper, in turn, sues the warehouse that stored your goods claiming that if they were damaged, they were damaged there. A simple case of nonpayment suddenly involves four separate parties each arguing a different theory, each having defenses and arguments that must be considered…and prepared for…by your trial counsel. They have to “fit into the story” and your story must be the one uppermost in the jury’s mind when they retire to the deliberation room.
And note that you did not necessarily have control over how complex the case would become. Once you stated your theory of the matter, each of the other parties were required to develop their own theories and bring in additional parties…and your trial preparation was complicated accordingly.
Any good trail counsel will, perhaps a month before trial, create a full Trial Outline which has all your theories of the case, the anticipated defenses, the anticipated counter claims, and the evidence that will be needed to prove your case and defend it. That list of evidence will include all documents that have been discovered, all witnesses that are known to exist, their depositions, if any, and the witnesses likely to be presented by the other sides.
It will be up to your attorney to know each document at issue and anticipate what each witness will testify so that appropriate tactics may be developed to both cross examine that witness and call your own rebuttal witness to counter their testimony. Each witness for each party should be considered, cross examination prepared and documents prepared that may impeach the witness.
See our article testifying at trial for a fuller discussion of cross examination.
The basic tasks a lawyer must perform after considering and developing the theme and witness and document list, is to create a road map and trial book of the entire trial, allocating to his or her team who will perform what task in the trial preparation. The road map is an outline of what will happen in the trail and when, creating the order of the case and anticipated counter moves of the other sides. The trial notebook contains the various briefs, direct and cross examinations, opening and closings, instructions to the jury, and evidence and documents of relevance, plus whatever else the particular attorney fees he or she will need during trial.
The basic steps in a typical plaintiff’s case to be prepared are
1. Pretrial briefs and Motions outside the presence of the jury.
2. Jury instructions to submit to the Court at the beginning of the trial.
3. Opening Statement to the jury outlining the entire case.
4. Direct testimony of our own witnesses. This often requires extensive preparation of the percipient witnesses as well as the professional experts who will testify as to particular key issues in the case, such as medical testimony, construction matters, formulas, etc.
5. Preparing our witnesses to survive cross examination.
6. Preparing for motions for summary judgment or directed verdict.
7. Preparing cross examination of the other party’s witnesses. All of them, no matter how many opposing parties and no matter how likely they are to be called by our opposing parties.
8. Motions after testimony to the Court.
9. Closing arguments.
10. Preparing the record for appeal if necessary.
And almost all of that will be done in the last thirty days before trial. While paralegals and clerks will assist the attorney and perform much of the paperwork, the attorney must be fully familiar with each aspect of the preparation and must personally know and approve of every significant step being taken. Most attorneys will want to personally prepare the opening and closing, all key motions to the judge and all important directs and cross examinations. Most attorneys will want to practice with all key witnesses putting the evidence in via direct testimony as well as practice the process of cross examination, often with another attorney in the office playacting the role of the opposing counsel with the witnesses.
Additionally, almost every case has settlement discussions continuing to the very eve of trial, often during trial. One of the most frustrating aspects of trial is that one must prepare a case as if no settlement will occur, yet that settlement may occur at any moment, making most of the preparation useless. It is hard to keep geared up and committed to the full difficult task of trial preparation when one suspects that a case may eventually settle. But as that same brilliant attorney once told the writer, “The case that will not settle is the case you assumed would settle. Prepare for all of them as if settlement was impossible.”
THE ROLE OF THE CLIENT IN THE LAST THIRTY DAYS
The client plays a critical role in the last thirty days and while not involved in much of the work described above, is usually involved in vital aspects of trial preparation.
- No one knows the facts and the goals of the litigation better than the client. Overall guidance as to the settlement discussions and the sought for verdict must come from the client. The client should be prepared to engage in numerous (at times seemingly endless) settlement discussions in the midst of trial preparation and to answer innumerable questions from the litigation team as to background, facts and personalities of witnesses and parties.
- The client usually takes the stand. This requires preparation of direct examination and practice of cross examination. See our article on Testifying At Trial: Why It’s Not Like Perry Mason for a further discussion of the perils of that exercise. In general, expect an hour of preparation for each ten minutes of actual testimony. A typical preparation will require four or five hours of practicing direct examination and an equal amount of time playacting cross examination.
- Helping prepare other witnesses and cross examination. Most witnesses will know the parties and the client is often an old acquaintance or colleague of an important witness. Locating witnesses and documents, encouraging testimony, briefing your team on appropriate means to impeach or cross examine, all these are tasks often best done by the client. And it may often save a great deal of money. Our office once spent ten hours preparing and serving a subpoena on a witness that the client was able to locate and convince to testify in a five minute telephone call.
- Working with the experts who will testify is also vital. Few experts know your business as you do and the interaction in preparation with the expert is often best achieved with the client’s participation.
- Asking questions. Often the legal team is so close to the case and the myriad details that they overlook more general important issues that the typical jury will find important. Remember, it is the client who is closest to the jury’s frame of mind (if the client can overcome the obvious bias one has in favor of one’s own case) and often the client is the best judge as to how an opening or closing or theme will “go over” with the jury. One experienced litigator would always give his opening statement to his own mother to see how a layperson would react. After some years, however, his mother was no longer a layperson since she was so used to hearing his opening. He then began using his own clients and found that their insight was even more valuable.
- Locating documents and other evidence as well as encouraging employees to cooperate in the location and preparation of evidence and documents in the hands of the client’s business.
- Keeping track of changes in the business climate or situation that can have an effect on the issue of damages or appropriate settlement levels.
- Interacting with the legal team as necessary to explain the inevitable detailed questions concerning the subject matter that will arise as preparation continues
MENTAL PREPARATION FOR TRIAL
The writer well recalls returning to his office after a three week trial and trying to begin to work on the large stack of waiting work. The feeling of flatness was overwhelming. The trial had been so intense, the minute to minute stress and tension so great, that the every day work of the lawyer seemed like eating crackers after dining on cake. It takes, normally, a full week before things fall back into their proper perspective.
The same is seen in any “survival” situation in which a person must devote all of his or her attention to the matter at hand or face disaster. The adrenalin pumps, the concentration is complete and the everyday world in which all is not constantly on the line seems mundane.
Which is another way to state that the experience of trial is often the most exhausting, intense, exciting, frustrating and engrossing activity that most people will likely encounter.
Even during trial, a good trial attorney will work most nights preparing for the next day of activity. This writer, in his first major jury trial, was far ahead of the District Attorney in knowledge and preparation for the case when the trial began but did not realize that that District Attorney was working each night to catch up while our team went home to recover. By the end of the case it was nip and tuck as to who was better prepared. (We won…but barely. And I learned a lesson I have never forgotten.)
A trial is often won during the trial by hard work each and every night to prepare for the surprises of the next day and to adjust to the inevitable changes in tactics and strategy required due to the moves of the other side. (Our friends in the military have a great saying that reflects this fact of life: No Battle Plan Survives Contact with the Enemy.”)
Trial preparation before trial is therefore only the first step is putting on the trial and the longer the trial lasts, the more exhausting it can become for the legal team-and the client.
It is thus vital in the weeks before trial to prepare mentally for the actual trial itself and that includes the client setting aside time and energy both for attending and participating in the trial during the day and assisting the team as necessary at night and weekends. As much as possible, personal matters should be put aside and time and energy devoted to what matters-the winning of the trial. Sleep each night is vital. Exercise if possible. Or, as one client put it, “This is the big game and I am in training, right?”
TIME TO BE EXPECTED TO BE COMMITTED TO TRIAL PREPARATION:
The amount of time required for the gathering of evidence and review of documents to be submitted into evidence will depend on the complexity of the case and some matters require a full week of document organization. Most cases will take at least a day and this task is usually done with the client assisting the paralegals or the associate attorneys on the case.
The preparation of direct testimony is actually quite time consuming. Since the lawyer can not ask a “leading question” which suggests to the witness the answer desired, the witness must be prepared to understand precisely what evidence he or she is to provide when asked a question. The wise witness will understand that there will be an hour of preparation and practice for each ten minutes the testimony will last.
Preparing a witness for cross examination will take even longer since play acting will be critical and if there are more than one opposing parties, the cross examination will have to prepare the witness for each parties’ questions. One can anticipate an hour of preparation for cross examination for each five minutes of testimony given in direct.
Working with counsel to prepare the other witnesses, both expert and percipient, may also be required and one can expect a half day for each expert and a half day for each percipient witness.
The last day before trial should be kept completely free by the client since it is at that time, with only hours left for all preparation that the case “comes to a head” and the team confronts new arguments or documents that may have been forwarded by opposing parties seeking to intimidate the client into possible settlement. It is also during that time that the lawyer will be testing out his opening and probably seeking input from the client. Lastly, it is not unusual for last minute settlement discussions to be exchanged on an hourly basis and the client’s immediate input is normally required.
THE DAY OF THE TRIAL
Depending on the Court, quite often there may not be a court room available on the day originally assigned and the case may “trail” for days or even weeks. Sometimes lack of a court room being available leads to a continuance of the trial for months. In arbitration and Federal Court such delay is unusual but it is quite typical for state court and often means gearing up again and again as the trial date again approaches. This can be a very expensive process and one of the reasons people chose arbitration over court trials is to avoid the expense of trailing.
Nonetheless, one must be ready to go each time a date is set and the client will find that when he or she arrives at the Court house (an hour early, if wise) that there will be a flurry of last minute questions and discussion about the case from his or her team. Often a witness will be suddenly reluctant to testify or will have emergencies of his or her own and the client may be asked to intercede to make sure the testimony will be available.
The adrenaline will be pumping, the mountains of papers and stuffed briefcases ready, and a feeling of tremendous tension surrounding all the parties as “show time” beings.
It was after a particularly difficult trial that a client, pondering the cost benefit of the exercise, made a point that this writer long pondered. He showed me an analysis in which the verdict he had obtained was roughly 110% of the costs he had incurred to get it, not counting his own lost time. I expected a complaint but he seemed well satisfied even though he had rejected an offer the first day of trial that would have netted him much more.
“You don’t get it,” he told me. “It’s not just the money. I got my day in court. I got to say my piece. I had a judge and jury hear me out and that was worth it to me.”
“You would have done better to settle early.”
“Money wise, yes. But what is the value of knowing I went for justice rather than settling to avoid risk? A lot. To me. Well worth it.”
Each client must decide the value of a trial and whether the day in court will be worth it to him or her. One thing is for sure. If you go to trial, expect it to be an exciting, annoying, all encompassing and completely exhausting ride. And that will be for your legal team as well as yourself.