Chapter 11- Trial Preparation and Strategy

The careful trial lawyer selects labels for parties, events, things, and actions that send signals to the jury on how it should perceive those parties, events, things, and actions. Once selected, those labels...

must be used consistently throughout each stage of the trial.

The more time you have to think, rehearse, and refine, because...

other tasks are completed, the better your trial performance will be.

A trial chart is simply a visual way of...

outlining your trial evidence. Using the jury instructions, which itemize the elements of the claims and defenses involved in your case, the trial chart should list each required element for each claim and defense. the chart is an effective method for identifying areas where your (and your opponent's) proof is strong and where it is weak.

Reserve several blank pages at the front of the closing arguments section of your trial notebook.

s you hear key testimony from witnesses, statements by lawyers, and questions (if permitted) from jurors, see key exhibits, and have those periodic brainstorms, write them down on the blank pages.

The "secret" to effective trial preparation is no secret at all. It's preparation, preparation, and more preparation!

t's 90 percent perspiration, 10 percent inspiration. It's preparing sooner, not later. the trial lawyer who starts preparing for trial early, does it systematically and thoroughly, and incorporates an understanding of psychology into that preparation is more likely to achieve a successful result at trial.

Organizing materials for trial differs from organizing litigation files.

trial materials, by contrast, include only those materials that will actually be used during the trial; they need to be organized in a way that parallels how they will be used at trial.

If a visual aid is a chronology, an organizational chart, or a step-by-step explanation of a process, and its accuracy is not in dispute, it's usually better to have the visual aid prepared and marked before trial.

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When jurors cannot take notes, there may be a greater need to use exhibits and visual aids to highlight and repeat key information. I

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The last step in preparing your case-in-chief is deciding the order in which you will present your evidence. Your proof will come from four possible sources...

witnesses, exhibits, stipulations, and judicial notice.

Determine early what you can spend to present your case visually. There are four broad categories you should consider...

(1) graphic exhibits and visual aids, (2) scanned documents, (3) deposition transcripts, and (4) computer animations and simulations. Large graphic exhibits and visual aids, such as foam-core poster board enlargements.

With witnesses you must decide three basic things: whom you will call as witnesses, what you will have these witnesses say, and how you will organize all this in your trial notebook. You simply must call the witnesses you know of to establish a prima facie case, and there is no room for choices. In deciding whether to call certain available witnesses, remember the following considerations:

1. Do not overprove your case. 2. Use strong witnesses. 3. Don't try to prove everything. 4. Don't sandbag. when representing a governmental entity, a corporation, or other artificial entity, you must decide who, if anyone, will sit with you at counsel table during the trial.

Jurors cannot absorb all the information that a trial produces, so they use subconscious strategies to deal with sensory overload.

One strategy is to identify key points or themes that help jurors process information more quickly. Themes should be morally and emotionally compelling. They should incorporate the jurors' sense of fairness and universal truths. In every case, you can, and should, develop themes for the key issues on liability and damages.

Jury selection preparation involves two basic tasks...

developing a profile of favorable and unfavorable jurors, and outlining proposed voir dire topics and drafting requested voir dire questions for the judge.

The important point is that you can and should organize your trial notebook to be useful for you. A common organizational system is the following:

facts pleadings discovery motions charts jury openings plaintiff defendant closings instructions law

As you can see, your position on the facts, both disputed and undisputed, must be developed well in advance of trial. Each disputed fact must be analyzed and a position taken on it that is consistent with your theory of the case. Only then can you move on to the next stages of your trial preparation. In short, you must..

find out what the crucial issues will be, how you want to articulate those issues to the jury, and how to prepare for the critical issues more thoroughly and convincingly than your opponent so that the jury will resolve these issues in your favor. All these considerations must come together in deciding on your theory of the case.

What is a jury profile?

his is simply a description of juror backgrounds and experiences that you believe are likely to favor, and disfavor, your side. trial lawyers must rely on their experience, knowledge of the community, and perhaps intuition to do the same thing — determine if certain types of jurors, based on their backgrounds and experiences, are likely to be attitudinally disposed toward or against your side.

Once plaintiff has an inventory of all the exhibits and visual aids, plaintiff must decide when to use them...

in the opening statement, during the direct examinations of eyewitnesses and experts, during the cross-examinations of defense witnesses, or in the closing argument. Plan what the necessary foundation for each exhibit is and who the best witness is to provide it.

focus on the key disputes in the case and gather the evidence that will convince the jury to...

accept your version of the disputed facts.

Time pressures intensify as a trial date approaches, and emergencies are...

an inevitable part of trial work.

Preparation for trial involves culling out of what each witness can say those things the witness will say that will prove your case, and preparing each witness to do this persuasively.

1. Witnesses should be prepared for trial individually by the lawyer who will do the direct examination of that witness. 2. Review with the witness everything where the witness is "down on paper." 3. Review with the witness all exhibits he will identify or authenticate. 4. Review the probable testimony of other witnesses to see if any inconsistencies exist between any of the witnesses. 5. Prepare the direct examination of the witness and review it with the witness. Make sure the witness can actually testify to what you anticipate he can. 6. Prepare for the cross-examination of the witness. 7. Prepare the witness for his courtroom appearance. 8. Prepare the witness for the procedural and evidentiary rules that govern his testimony. Some lawyers have printed instructions they give each witness.

Litigation and courtroom software is being constantly refined and improved so that substantial parts of a trial notebook can be effectively computerized.)

A trial notebook is simply a three-ring notebook containing appropriately tabbed sections that parallel the trial process.

A common system is to outline the planned cross-examination on one side of a sheet of paper, by specific topics.

All the cross-examination outlines should be put in your trial notebook (under plaintiff or defendant, depending on whom you represent) in either alphabetical order or in the order you anticipate your opponent will call these witnesses at trial.

Plan your closing argument first. Everything else then follows. Why?

Because the backward approach makes you think about the elements of the claims and defenses, the jury instructions, your theory of the case, themes and labels, undisputed evidence, and key areas where the evidence is in dispute. t makes you think about what is important and what is merely interesting or peripheral. Your closing argument must do two basic things: It must win the war over the high ground — whose themes will be more appealing to the jury — and win the war over the disputed facts — whose version of the disputed events the jury will accept as true.

The following file organization and categories are commonly used:

Court documents- pleadings discovery motions orders subpoenas Attorney's records- chronological litigation history retainer contract, bills, costs correspondence legal research miscellaneous Evidence bills, invoices, statements, receipts correspondence between parties and with nonparties business records and public records photographs, diagrams, maps, charts

Your final trial preparation task is to prepare the cross-examination of your opponent's witnesses.

Cross-examination preparation cannot be focused until you know exactly what your theory of the case is, what themes and labels you will use, and what the key factual disputes will be during the trial.

The underlying purpose of the chronology, however, is sound: ...

Do as much as you can early to minimize the emergencies and unexpected demands on your time that inevitably arise as the trial date approaches.

These trial notebook sections should contain the following:

Facts- summary sheet containing the parties, lawyers, addresses, telephone numbers and other contact information, and a summary of the pleadings, if useful reports such as police reports, investigator's reports, and other fact summaries chronology of events, if useful Pleadings- amended pleadings, in order pretrial order, if it amends pleadings copy of applicable statutes, if statutory claims Discovery- initial disclosures interrogatories and answers requests to produce documents and responses deposition summaries requests to admit facts and responses Motions- motions, responses, and orders, in order pretrial memorandum and order anticipated trial motions Charts- trial chart (elements of claims, defenses, and proof)witness list (your witnesses, addresses, telephone numbers)exhibit list (for each party)opponent's witness list Jury- jury chart form juror profile outline requested voir dire questions to submit to judge checklist of your voir dire questions copy of applicable jury selection statutes and rules Openings- outline of your planned opening statement blank pages for notes on opponent's opening statement Plaintiff- if plaintiff, an outline of each direct examination if defendant, an outline of each anticipated cross Defendant- if plaintiff, an outline of each anticipated cross if defendant, an outline of each direct examination Closings- blank pages to note ideas during trial for closings outline of your planned closing argument blank pages for notes on opponent's closing argument outline of your planned rebuttal argument, if plaintiff Instructions- your proposed jury instructions opponent's proposed jury instructions Law- rules of evidence — federal and state your trial memorandum opponent's trial memorandum copy of key statutes copy of key cases

Developing a visual strategy...

First, create a series of memorable pictures. Second, move the story of your case forward chronologically, because that is how we are used to hearing stories told. Third, keep the exhibits and visual aids fresh and new. Fourth, keep it simple. Finally, you need to decide whether to use premarked exhibits and visual aids,

Trials involve two basic concepts.

First, evidence at trial must be legally sufficient. It must meet the burden of proof on each element of each claim or defense raised in the pleadings. This concept is legal and is directed to the judge. Second, evidence at trial must be persuasive. It must be understood, absorbed, remembered, and accepted by the trier of fact. This concept is psychological and is directed to the jury.

If you plan your closing first, you will then know what needs to be in your opening statement.

First, it should state your themes and theory of the case. Second, it should describe what happened in storytelling form. Third, it should anticipate problems and weaknesses by weaving them into your storytelling. An opening statement outline should be on one page whenever possible (and it's possible in almost every case).

How do you go about developing a theory of the case?

First, review the elements of each claim (or defense) in the case and prepare the jury instructions if you have not already submitted them to the court. Second, analyze how you intend to prove (or disprove) each of those elements through admissible testimony and exhibits. Third, analyze the contradictory facts that your opponent has available to determine the key issues that will be disputed at trial, and what witnesses and exhibits your opponent will probably use to prove his side of those issues at trial. These steps should already have been completed by preparing your trial chart. Fourth, research all possible evidentiary issues that may arise to all of the likely proof so that you can realistically determine what will be admissible at trial.

Dramatize, Humanize, Visualize Using People Stories

First, use storytelling techniques. Second, focus on the people, not just on the events. Third, use visual aids as much as possible. Watch how news programs integrate visuals with narration. Finally, do it simply and quickly.

your trial notebook should have a jury chart to record the basic information about each juror obtained during the voir dire examination so that you can review it before deciding which jurors to challenge.

If the panel system is used, jurors will usually be called into the jury box and only those jurors will be initially questioned. When a challenge is exercised, the juror is crossed off and a new box created.

Jury selection is primarily concerned with learning jurors' likely attitudes about issues important to the case, and determining which jurors will be receptive, and which ones resistant, to each side's party, theory of the case, themes, and labels.

Jury selection is also concerned with determining how "strong" each juror is likely to be during deliberations, so that peremptory challenges can be used against persuaders likely to be hostile to that side.

There is no magic in organizing litigation files. Most law firms have systems for the types of cases the firms routinely handle.

Litigation files are usually divided into several categories.

Preparation for cross-examinations should include the following:

Outline each witness's probable testimony on direct examination, including the exhibits she is likely to identify and qualify for admission. Review all depositions, statements, and reports the witness made. For parties, review the amended pleadings and interrogatory answers as well. Ask yourself the key question: What will I say about this witness during closing arguments? Your cross-examination should elicit only enough facts to support your closing argument, and nothing more. Many, perhaps most, crossexaminations fail because they are unrealistic and attempt too much. What must the witness admit that is favorable to your side? What exhibits of yours can she identify and qualify? What facts can she testify to that help you? Where has she made previous statements that "lock her in" on testimony that will help your side? What is the witness reasonably likely to admit that is favorable to your side? What testimony is she likely to give that sounds improbable? What testimony is in conflict with other witnesses? What testimony contradicts common sense and the jurors' experiences in life? What testimony conflicts with the exhibits? What impeachment do you have of the witness's probable testimony? Will her testimony conflict with any of her previous statements and reports? Do her previous statements conflict with each other? When you have reviewed the available materials and have collected possible cross-examination ideas into three basic categories — favorable testimony, likely admissions, and impeachment — you need to arrange your cross-examination into specific points. The fewer good points you have, the more likely the jury is to remember them. The jury will never remember ten specific things you cover on cross. Try to keep your major points to a handful, and make sure that they all contribute to your theory of the case, themes, and closing argument. Avoid unimportant points entirely, since they only dilute your strong points. Arrange the points you have decided to cover on cross-examination in an intelligent order. Obtain favorable admissions before you attempt to impeach. Start crisply on a strong point and end crisply on another strong point. Your best points should come first and last, because jurors remember best the things they hear first and last (the principles of primacy and recency).

you need to keep a list of witnesses in the charts section of your trial notebook.

The witness list is critical for keeping in touch with the witnesses as the trial date approaches and during the trial.

Once you have identified the backgrounds and experiences of likely unfavorable jurors (an admittedly inexact task), you will know what kinds of questions to ask during voir dire.

This is usually done by filing a request, using the formality of a motion, with the court before trial.

Consequently, litigation files must be organized, divided, and indexed to provide immediate and accurate access to their contents at any time.

Trial notebooks must be organized to provide an outline and quick reference for the actual trial.

Your theory of the case is simply a logical, persuasive story of "what really happened."

Your theory of the case must combine your undisputed evidence and your version of the disputed evidence that you will present in storytelling form at trial.

There are several considerations you should keep in mind in deciding on the order of proof. These include the following...

a. Present your case in chronological order or some other logical progression, as viewed from the jury's perspective. b. Start with a strong, important witness to give the jury a good initial impression of your case. c. Finish with a strong witness. d. Begin each morning and afternoon session with a strong and interesting witness whenever possible. e. If you must call your opposing party or another adverse witness during your case-in-chief, it is usually safer to call him during the middle of your case. f. Call important corroboration witnesses immediately after the primary witness has testified. g. Several witnesses are sometimes necessary to establish technical elements of proof. h. Reading depositions, stipulations, and documentary evidence is inherently less interesting and usually boring. i. Get your exhibits in evidence and show them to the jury as soon as possible. j. Alternate lay witnesses and expert witnesses to keep the jury's attention. k. An expert often is a good final witness because he can effectively summarize the evidence in your case.

There are two common methods to creating a direct examination outline...

a. The Q & A method. b. The witness summary method.