| Head into Trial at Full Steam
Make sure you’re completely prepared for your client’s day in court. Here’s what you should do when you pass the 90-, 60-, and 30-day marks in your countdown to trial.
By Christian C. Mester
Originally published in TRIAL Magazine,
July 2005
Posted with permission of TRIAL (July 2005)
Copyright The American Association for Justice.
To obtain the best results for your
clients, you must start preparing their case from the first moment you
meet them, expecting to take the case to trial. A friend and colleague
of mine likes to say that you can always settle the case you prepared to
try, but you can’t try the case you prepared to settle. If you proceed
with a case believing it will settle, the defense will detect your
attitude and exploit your weaknesses.
The key is preparation, preparation, and
more preparation. Of course, what you need to do differs in every
jurisdiction and according to the scheduling order. But if you place
important tasks into specific time frames, starting at 90 days before
trial, you’ll have an overall timetable that will work well in most
cases.
90 days to trial (View
the checklist)
Review the file to refocus your theme. Go through the entire file
to obtain a renewed feel for the case, and decide in which direction it
needs to go during the remaining three months. Determine what immediate
tasks need to be accomplished and assign them. If you have a litigation
team, decide who is responsible for which witnesses, remaining discovery
issues, and other areas of the trial. Then schedule periodic meetings to
check the status of the work with everyone.
Three months before trial is not the time
to come up with a theme for your case. It is, however, the time to
refine your theme to fit all the evidence. Look for any testimony from a
defendant or other fact witness that supports your theme or provides you
with an opening to use another theme that may fit the case better.
Meet with your client.
Meet to discuss his or her current medical condition and other
damages-related issues. Identify “trigger testimony”—words or areas of
testimony that elicit a powerful response from your client when you
mention them. Meet again with the client’s family members and friends to
find out how his or her life has changed since the injury occurred, even
during the course of the litigation.
Give the client copies of his or her own
and other relevant deposition transcripts, as well as discovery answers
and responses. Reassure the client that you have a firm grasp of the
facts, that you are committed to trying the case, and that you will
support him or her unconditionally through this intimidating process.
Review medical records and bills.
Review the records that have been exchanged in the case to ensure yours
are current. Start by asking your client whether he or she has seen any
new health care providers. Contact these providers directly and order
any new records and bills. Pay special attention to important records
that may have been produced immediately before or during depositions and
that may not have made it into your master file.
Give updated records to experts.
As soon as you have organized and indexed any new records and expenses,
provide them to the defense and the appropriate experts. Inform the
defense in writing that the updated records have been provided to your
experts and that their opinions remain unchanged.
If these new records change your experts’
opinions in any way, inform the defense immediately so they have an
opportunity to depose your experts on their new opinions. The worst
thing you can do is fail to disclose these supplemental opinions and
have the defense object and claim surprise at trial. The court may rule
that because the new opinions were not disclosed, the jury cannot hear
them.
Organize your medical expense binder.
This binder should include a summary listing each amount billed next to
the name of each provider, with the total expenses at the bottom. Make
sure that all expenses listed in the binder are related to the
defendant’s negligence. If there are unrelated bills, the defense will
bring them to the jury’s attention, and the jury will probably believe
you have inflated the figures. Your credibility will be damaged, as will
your expert’s, because he or she is testifying that the expenses are
reasonable and related to the negligence.
Notify experts of the trial date.
If you have not already done so, notify your experts of the trial date
and the dates they are expected to be called—or confirm the dates with
them—in writing.
Update expert information.
Determine whether any of your experts need to re-examine your client.
For example, in a brain-damaged baby case, many months may have gone by
since your pediatric neurologist examined your client, and the expert
needs to know about gains or setbacks the client has experienced since
then. Schedule the examinations and update the defendants as necessary
with supplemental reports.
Now is also the time to have your life care
planner and economist update and supplement the reports they probably
prepared months ago. Your life care planner should talk with treating
physicians or your damages experts to ensure that the supplemented plan
is still reasonable. Provide supplemental reports to the defense.
Determine whether any of the life care
planner’s recommendations have already been implemented. If none have,
determine whether any of them can or should be implemented before trial.
When your life care planner can testify that several recommendations
have already been implemented, he or she gains credibility.
Also make sure your liability experts have
been given all pertinent new records, depositions, and other documents,
so they have sufficient time to review and digest the material before
your scheduled trial preparation meetings with the experts. Ensure that
they, your client, and other fact witnesses have received copies of
their own depositions and have completed the errata sheets as necessary.
Follow up on depositions.
Have all depositions been abstracted? If not, get the abstracts done
immediately. Update or create a time line using the deposition testimony
and records. Review the transcripts to ensure that actions triggered by
the depositions (such as requesting records and preparing motions in
limine based on deponents’ testimony) have been completed. If you didn’t
get all the records, send the letters requesting them so you have time
to file appropriate motions before the close of discovery.
Review elements of proof.
If you have not done so already, prepare a checklist for how you intend
to prove each element of your case. A good place to start is with the
proposed jury instructions. Identify each element you must prove from
the instructions, and create a checklist identifying your source of
proof—witness or document—for each. Doing so will reveal whether some of
your proof is lacking. You still have time to correct any deficits while
discovery remains open.
Prepare a witness checklist.
Prepare a list of witnesses with contact information for each, including
work, home, and cell phone numbers, as well as travel and hotel
information as necessary. For experts, include dates they absolutely
cannot testify in the event that witnesses are held over at trial.
Have factual and legal research ready.
You should have a clear idea of the factual and legal issues that the
defense will attempt to bring out at trial. If you expect to file
motions in limine, prepare them in advance and have supporting case law,
articles, and testimony ready.
Review learned treatises.
If you will use articles, textbooks, or treatises, make sure that you
have these sources available and understand the information they
contain. If they are not being used exclusively for impeachment, you may
need to disclose them to the other side. If you are having trouble
locating articles, ask your experts for assistance.
Make sure you have planned how to get this
information before the jury. Even if an article will be used strictly
for impeachment purposes, the defense expert will probably testify that
the article is not authoritative or reliable. If so, you will need your
expert to testify that it is. You must be careful to ensure that the
article is, in fact, reliable so that your expert is not overreaching in
his or her support of it.
Update discovery responses.
Review your answers to interrogatories and discovery responses.
Supplement them as necessary so you will not be precluded from pursuing
all relevant theories and producing proof of all elements of your case.
Perhaps during some phase of discovery, you said you would supplement a
point at a later time. Now is the time: With 90 days to go before trial,
you leave enough time for further discovery related to the new
materials, if needed.
Also review the defendants’ discovery
responses to determine whether they have answered appropriately. If you
believe their responses are deficient, send out a good-faith letter
requesting proper responses, and if it goes unanswered, file your motion
to compel production of documents and proper responses. Do not leave the
door open for the defense to produce new, damaging evidence on the eve
of trial—or to refuse to produce helpful evidence after the close of
discovery—because you failed to object to incomplete discovery responses
and file timely motions to compel.
Prepare testimony outlines.
Create outlines for direct examinations and cross-examinations.
Organize your trial notebooks.
Trial notebooks are a matter of style and preference—there is no one
correct way to organize your materials. One method is to maintain six
principal notebooks:
-
Law: all court orders, including the pretrial
order; motions in limine; voir dire; jury instructions;
stipulations; and “hot correspondence” (Hot correspondence includes
discussions or agreements among counsel—that were reduced to
writing—regarding issues that may arise at trial. For example, if
the defendants agreed to accept trial subpoenas for nondefendant
fact witnesses, that letter should be included in the binder, should
such a witness fail to show up at trial.)
-
Court documents: answers to interrogatories,
responses to requests for production of documents and admissions of
fact, motions for summary judgment, Daubert or Frye
motions, and other documents you believe may be revisited during
trial
-
Plaintiff witnesses: a section for each witness
that includes the proposed examination, deposition abstract,
condensed deposition transcript, and any correspondence relating to
that witness’s testimony
-
Defense witnesses: same content as for plaintiff
witnesses
-
Exhibits: original in a sleeve (not three-hole
punched), with more than sufficient copies for the court and all
counsel
-
Depositions: all condensed deposition transcripts,
abstracts, and exhibits
Creating these notebooks early in trial
preparation will help you get and stay organized.
Update lien information.
Make sure the appropriate notice letters to Medicaid, Medicare, or other
“super lien” priority entities (when you—not just your client—have a
duty to notify your client’s insurer) have been sent and that your
medical expense binder is updated and sent to the defendants.
Prepare demonstrative evidence.
A colorful exhibit or one that places complicated concepts into a simple
chart can make all the difference in whether the jury listens intently
or eagerly awaits the next break. Of equal importance are witnesses who
can authenticate exhibits. Be ready for objections; prepare arguments
explaining how your exhibit will assist the trier of fact.
Decide which exhibits to enlarge or present
electronically, and honor Murphy’s Law: Plan to have backup hard-copy
exhibits. Update your day-in-the-life video, which should have been
produced by this point, and identify portions to show.
Check with your experts to see if they have
suggestions for exhibits to support their testimony; they may have ideas
you have not considered. Also, ask if they have preferences about how
you present exhibits during their testimony.
Develop impeachment evidence.
Make your final attempts to obtain impeachment materials on defense
expert witnesses. Review their deposition transcripts again. Get copies
of their depositions in other cases by contacting plaintiff lawyers in
those cases and the AAJ Exchange (www.exchange.AAJ.org).
Visit AAJ’s Medical Malpractice and Expert Witness list servers to post
a request for deposition transcripts (www.AAJ.org/lyris).
If available, check similar resources provided by your state trial
lawyer association. You may want to contact an attorney in the state
where the expert resides for additional information.
Plan for jury selection.
Especially in today’s plaintiff-hostile environment, you must know what
elements of your case will positively influence jurors. If the case is
complex, this is the time to consider whether you should contact a jury
consultant. A consultant can help you frame voir dire questions to
elicit certain biases and decide in advance what types of jurors you
most want and don’t want on your panel. Identifying which jurors you
want is important, but it is more important to identify those you do
not want.
Conduct focus groups.
Focus groups can help you capitalize on your opponent’s mistakes and
reduce the number of mistakes you make before and during trial. “Mock
jurors” in focus groups tell you what aspects of your case were
important to them, what facts they assumed, and what they misunderstood.
They can help you explore alternative theories and themes before your
day in court. Schedule focus group sessions early and more than once, if
necessary.
60 days to trial
Maintain the momentum you have been building by remaining disciplined.
Continue client preparation.
This is the single most important step you can take toward success.
There is little you can do to rehabilitate your case if your client
seems dishonest, greedy, or distracted. But if your client comes across
as compelling and honest, you can feel comfortable that the jury will at
least be attentive to evidence supporting his or her case.
Skimping on client preparation or winging
it will almost certainly produce a bad result. One preparation session
will not suffice. Consider hiring a jury consultant who can work with
your client on demeanor and presentation. Your client gets only one
chance to tell his or her story in front of the jury; make sure your
client is prepared to fully express how he or she has been affected by
the defendant’s negligence.
Another visit to your client’s home during
this time also can help you see how your client lives and is affected by
his or her injuries. You’d be surprised at what you can learn about your
client from a home visit.
Send experts another reminder.
Send out another letter to each, reminding them of their anticipated
testimony date. Schedule trial preparation dates for each expert for the
two weeks before trial. Have an outline of your anticipated direct
examination and go over the important questions, especially if a witness
is inexperienced in court. If possible, try to schedule an hour of
preparation time on the night before the witness testifies to review
critical points and the anticipated order of questions. As you review
updated materials and your expert’s opinions, make sure the expert is
not saying anything contrary to his or her deposition testimony.
Update motions in limine.
Continue to isolate issues you believe defendants will seek to exploit
at trial and prepare motions to keep these issues from the jury.
Anticipate a bad ruling with a trial memorandum fully explaining the law
and your positions, and be prepared to mark it as a court exhibit at
trial to further preserve the issues for appeal.
Prepare subpoenas.
Send a letter to the defense asking whether they are willing to accept
trial subpoenas for nondefendant witnesses who are under control of the
defendants, such as nurses and residents. If so, send them via certified
mail; if not, get the necessary paperwork ready.
Request admission of facts.
Did you forget to obtain any information that you may be able to get via
a request for admission? These requests are a great (and underused) tool
to streamline some of your offers of proof at trial. Specifically tailor
them and serve them on the defendants with plenty of time before the
close of discovery. Remember that in most circumstances, a party has 30
days to answer, and many scheduling orders require all requests to be
served more than 30 days from the close of discovery.
Look into members of the jury pool.
Does your jurisdiction provide a list of prospective jury pool members?
If so, find out as much as possible. If not, do your homework on the
demographics of the jurisdiction and the number and amounts of plaintiff
verdicts.
Prepare pretrial conference filings.
Are there filing requirements for the pretrial or settlement conference?
Know the requirements and deadlines, and prepare jury instructions, voir
dire, verdict sheets, and other pretrial filings accordingly. If you
have special issues that are not covered by the standard jury
instructions, draft alternative instructions and have supportive case
law ready. Make copies of unreported or out-of-state cases for the judge
and opposing counsel.
Organize medical records and expenses
for exhibits. Medical records and
bills need to be organized so they can be placed into a joint medical
records exhibit (with the plaintiff’s and defendant’s agreed-upon
records) and a joint medical expenses exhibit. Send a letter to the
defense to determine whether they are interested in a joint exhibit.
Once it’s agreed on, place the records into their final format, Bates
stamped, and make the proper number of copies. Make sure to send
invoices to all counsel to cover the cost of their portion of these
joint exhibits.
Take time off.
Make sure you take some time off, even if only for a long weekend. You
are about to enter the final stretch of a long and arduous process, and
you need to make sure your body and mind are sufficiently rested so that
you can push through the final preparations for trial and the trial
itself. Spend quality time with family and friends, as you will not see
them much in the coming weeks.
30 days to trial
Now you are in the home stretch. Hold more frequent meetings of your
litigation team as you carry out your final preparations.
Confirm logistics.
Confirm experts’ flight and hotel arrangements. Make or confirm your
reservations for car, hotel, and flights. Having the experts stay in the
same hotel as you is convenient, especially for last-minute preparations
and to ensure the experts arrive at the courthouse on time. Also confirm
all contact information for your witnesses.
Get subpoenas in order.
Get your subpoenas out the door to be served, including those for
production of the original medical chart at trial and all protocols,
policies, and procedures manuals in the hospital’s possession. Have
these subpoenas compel production on the first day of trial, to remain
for the duration of the proceedings. If the defendants will not
stipulate to the authenticity of records and reasonableness of bills,
subpoena corporate designees or custodians of records.
Transport the file.
Begin placing the file into position to ship in boxes to your base of
operations. Determine who is in charge at the base to receive the boxes
and keep them secure. Number and inventory all boxes before they leave
your office, and keep that information with you as you travel. Pack all
the office supplies you need.
Continue client and witness preparation.
Meet with your client to discuss in detail the risks inherent in every
trial and what he or she should expect—from the courtroom layout and
breaks to the anticipated course of trial. Remind your client that some
of the testimony given by others will not be flattering to him or her.
Emphasize how important it is that the client actively listen and not
look distracted. Review expectations for dress, jewelry, smoking, and
talking to jurors.
Visit the courtroom.
Visiting the courtroom with the client during off- hours will allow him
or her to become comfortable with the surroundings. Contact the court to
see what the judge’s preferences are with respect to the presentation of
evidence electronically. What capabilities does the courtroom have to
manage a projector? Where will you place the screen? Can the court
provide the LCD equipment and screen? If not, what steps are necessary
to get the equipment through security? Do not forget extension cords and
strip power outlets. Call colleagues who have tried cases in the
jurisdiction or in front of this judge for their insight.
Narrow the field of witnesses.
Decide which of your witnesses you will call to the stand. Is the
testimony of some witnesses redundant? Who did not do well during
depositions? Have you found additional information on an expert that may
hurt his or her credibility (and thereby yours and your client’s)? If
you believe your other experts will be sufficient, cut the witness
loose. Advise him or her in writing.
Finalize demonstrative evidence.
If you are using video clips, photographs, or PowerPoint or other
demonstrative software, ensure that it is in final form and that you
have backups (save files to a CD or flash drive, and bring enough paper
copies for the judge, defense counsel, yourself, and possibly the jury).
If editing needs to be done, make sure it can be done on time.
Fine-tune.
When you prepare a complex personal injury
case with the expectation that you will try it, your bargaining position
is enhanced tenfold. You will have less work to do in the weeks leading
up to trial, and your preparation will affect how your opposing counsel
perceives you. When you are organized and implement a plan, you can
reduce stress and function at a higher level, advancing your clients’
interests and maximizing your chance of success.
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