It’s Trial Time: Tips to Prepare to Win
Written by: Dalal Kurmlavage
You are picking a jury on Monday. After months of prepping the case, attempting to settle, adjourning the trial 2—no 3—times…it is finally time for trial. Years of litigating this one case actually lead to a day in court in front of a jury. Before you turn on panic mode, allow yourself to read the following simple tips to ease yourself into the all-consuming process that is trial preparation. As Benjamin Franklin once said, “If you fail to plan, you are planning to fail.” The reverse can also be true: if you successfully plan, you are planning to succeed.
1. Know Your File
You should know every single piece of paper or page in your file. Ideally, you should know every page better than your adversary. One crucial document can make or break a case. The devil is always in the details. Prepare a trial binder, label documents and exhibits, and make copies. Internalize and thoroughly analyze all the documents in your file. This includes but is not limited to pleadings, deposition transcripts, correspondence, treatment records, employment records, prior accident information, prior trial testimony, accident reports, photos, social media information, names of all witnesses, and summaries/personal notes. Work chronologically from case initiation going forward. Make an outline and timeline of relevant facts, procedure, and theories. Include your arguments and statements you plan to present. Dissect every document and piece of information so no stone is left unturned. Organize your file and binder in a way that is easy for you to follow during trial.
2. Know the Law
First and foremost, do yourself a favor and look at the jury charges! This is the exact information the jury will read and rely on at the end of trial when everything is said and done. But start with this in your own legal preparation. Understand the elements for liability, causation, and damages. Read the relevant jury charges to your case before forming your theory or theme of the case. Look out for the buzzwords in the charges and try to predict the verdict sheet. Bonus points: include and emphasize the “buzzwords” in your opening and closing statements so it naturally ties the case together in your favor.
3. Know Your Evidence
Make a list of all the evidence you plan to use at trial. This includes evidence you may potentially use. Label and pre-mark the pieces of evidence for pre-identification purposes. Note to yourself when you plan to use each piece of evidence and for what purpose, i.e. “an excerpt from John Doe’s deposition transcript during cross-examination if he denies the same during trial.” Subpoena any witnesses, police officers, etc. beforehand. Prepare to authenticate evidence, i.e. MRIs, deposition transcripts, photos, etc. Lastly, ensure you have certified copies.
4. Know Your Judge (and the court staff)
If you have never been before the judge assigned to your case, make it a point to ask others in your firm or practice who have. Try to figure out the judge’s style and rules. It is valuable to get an idea on how he/she runs their courtroom and most importantly, trials they preside over. It also helps to know the judge’s court staff who are usually present during the life of the trial for administrative purposes and to ensure the trial runs smoothly.
5. Know Your Jury
If you have never tried a case in the county or district your case is assigned to, also make it a point to ask others in your firm or practice who have. Do the jury pools there tend to lean pro-plaintiff or pro-defense? Find out! More importantly, when you are finally picking your jury, make a diagram of where each juror is sitting and jot down notes about each one during their voir dire. This will help you efficiently keep track of each juror and make mental notes of jurors you decide to use a preemptory challenge on.
6. Know Your Adversarial Attorney
While it can be intimidating to look up your adversary and read about their legal triumphs, it can be helpful to face who you are up against. It is also even more helpful to get to know your adversary for basic congenial purposes. A trial is often a long, arduous process for all those involved. Your adversary is merely the coach for the other team hoping and preparing to win just as you are. Getting to know and maintaining a civil relationship with your adversary is encouraged and can only help you in trial pre and post verdict.