By Eric E. Bensen & Rebecca K. Myers
The months (or years) of work Outside Counsel has spent working on the litigation - drafting, reviewing and analyzing the pleadings, collecting, reviewing and producing the documents, drafting, revising and arguing the motions, taking and defending the depositions, and so on and so on - culminates (assuming no settlement is reached) at trial. It is at this time when all of the elements of a lawyer's work - the leadership, fact comprehension, strategic legal thinking, presentation skills and persuasive ability - must all come together in a perfectly choreographed performance for judge and jury.
Needless to say, being well prepared for trial will help things go smoothly, but being well prepared can be a daunting task. To make it seem less daunting, it helps to break down the trial preparation process into three stages of work. In the first stage the team should focus on taking stock of the work already done. By the time the pretrial begins, it will generally, but not necessarily, be true that:
The pleadings are closed;
all responsive documents have been collected and produced;
depositions are completed;
discovery is closed preventing further requests; and
trial witnesses, even if not yet specifically identified as trial witnesses, have been identified and either have been deposed or at least interviewed.
The second stage is to leverage the existing work to create the materials required by the pretrial order. The substance of pretrial orders can vary from jurisdiction to jurisdiction (and judge to judge), but, typically, they will require the parties to file a statement of claims and defenses, stipulations of undisputed facts, witness lists, summaries of anticipated testimony, a pretrial memorandum, proposed findings of fact and conclusions of law (in a bench trial) or proposed jury instructions, voir dire and verdict form (in a jury trial), exhibit lists, copy sets of exhibits, copy sets of demonstratives, deposition designations, and motions in limine. Fortunately, the materials from the first stage will lay the groundwork for most of the work in the second.
The third stage is to focus on the trial itself. Completion of the first two stages as early as feasible will leave the maximum amount of time for this stage, and thus, the maximum amount of time to develop the trial strategy and create materials for management of the trial, such as a trial game plan, an order of proof, demonstratives, etc. It will also leave time to consider logistical issues, such as the types of resources the trial team will need in court or in the "war" room.
To hear more about trial preparedness from Eric Bensen & Rebecca Myers, register for a complimentary webinar on May 12th by Clicking Here!