14 How Do I Prepare for Trial?

Cindy could hardly sleep, she was so amped up for her trial. Cindy wasn’t exactly nervous, nor anxious. She had just waited so long, gone through so much preparation, and felt so ready to finally tell her story to someone who could actually do something about it. Indeed, Cindy had never felt so prepared for something in all her life. And Cindy had never faced something so important, either. She had a good feeling about it, though. So good that she couldn’t sleep, for all the anticipation. 

Trial

As already once mentioned in a prior chapter, trials, although relatively rare in civil litigation, have outsized significance. With as many as ninety percent or more of cases settling before trial, you might think that trials would be an afterthought rather than the fulcrum. But everything, from how much time and resources to put into discovery to whether to give up and settle, indeed hinges on how prepared one is to do well at trial. Trial is the culmination of hiring an attorney, investigating, pleading, discovery, motion practice, and everything else going on in a case. Trial is when everyone appears in court at once, from the parties and their attorneys to the witnesses, judge, bailiff, court reporter, judicial secretary, and jurors, for the big finish of a case. Everything else is assembly. Trial is the finished product. 

Preparation

Everyone knows the value of preparation. It’s no different for trial, where the motto may as well be to prepare, prepare, and prepare some more. Just when you think you can’t do any more to prepare, you think of something else and promptly go ahead and do it. That’s the kind of preparation that a high-stakes trial takes, when most trials are high stakes. Parties don’t go to trial over trivialities. The reasons to prepare include not only the high stakes of trials but also the high degree of uncertainty. Trials involve so many variables, like the jury draw, witness testimony, evidentiary objections, and judge’s rulings, that you really have little idea of what the case’s outcome will eventually depend upon. Everything seems important because anything may well be the difference. And so prepare, prepare, and prepare some more. 

Scheduling

The court will generally give the parties a trial date only after discovery concludes, often at a pretrial conference. At the pretrial conference, the judge will announce the trial date while also giving the attorneys a sense of how firm the trial date is likely to be. So many cases settle that courts generally schedule several trials to begin on the same day, when only one trial can generally start on any given day. The judge may tell your attorney the trial date but simultaneously indicate that several other trials scheduled for the same day have a higher priority. The judge may even hint that one or more of those other trials is almost sure to start ahead of your trial. And so although the parties may know the trial date for which to prepare, the attorneys may suspect that everyone is just going through the motions of last-minute preparations for an actual trial date to come later. Prepare for a little uncertainty over just when your trial will start.

Length

Having a sense of how long your trial will probably last can also help with your preparations. Jury trials take longer than bench (judge) trials. It’s hard to try a jury case in anything less than two days. A jury case of any complexity is almost sure to take three days, five days, or more, especially when the judge must take frequent breaks to hear other matters. Your trial may get only a half day rather than a full day, on two days out of the week. But relatively few civil cases last much longer than a week or two at most. Ask your attorney how long your attorney expects your trial to take so that you can plan accordingly. 

Adjournment

Things can come up that require a trial’s adjournment. As indicated above, the court may adjourn your trial because of other higher-priority trials scheduled for the same day. Another trial starting before yours may run long, preempting your trial. Judges tend not to delay the start of a trial by just a day or two because doing so could bump back other following trials. If your trial doesn’t start on the scheduled day, the judge may reschedule it for a month or two later. But parties also seek a trial’s adjournment. Sometimes, both parties just aren’t ready yet, in which case they may jointly request adjournment, when the judge will almost surely grant the request. Other times, one of the parties may fall seriously ill or have a similar extraordinary extenuating circumstance. It generally takes something serious and unavoidable to adjourn a trial. Judges usually have the understandable attitude that their court is more important than just about anything else. But adjournments do happen. Prepare for your scheduled trial date, but don’t have a fit if the court adjourns it.

Attendance

The parties are generally required to attend their own civil trial. Corporate parties, of course, have some choice of representatives to attend a trial. The representative certainly doesn’t have to be the company president or chair of the board of directors. It might well instead be the company’s general counsel or, if the case is an employment case, the personnel director. But otherwise, individual parties have to show up for the duration. Expect to attend your own trial, and expect your opposing party to be there, too, along with your attorneys. Don’t expect much cordiality between parties. You’ll instead likely have your game faces on, keeping your counsel’s company while avoiding others. Loose lips sink ships. Your attorney won’t want you chatting up the other side.

Testimony

Preparing to testify on your own behalf should be a big part, perhaps the biggest part, of your preparation. Testimony is by attorney question and witness answer. Your attorney is not allowed to ask you leading questions. So you must know what answer your attorney is trying to induce with your attorney’s non-leading questions. In other words, you must be ready to step up and give your account of your own case, even if your attorney seems to be beating around the bush. Your attorney wants you to give your account, as much as you should want to give it. Your attorney just can’t ask you leading questions. You and your attorney should therefore go over every fact to which you need to testify. Evidence rules generally require you to have a factual foundation for your testimony, usually based on your first-hand observation. So, expect your attorney to set the table with foundational questions. But then give your account of the core of the matter, even if your attorney doesn’t quite seem able to elicit it from you. You must carry the ball across the goal line with your answers. Your attorney may not do so with the attorney’s questions.

Cross

Spend even more time preparing for your cross-examination by opposing counsel. Everyone observing your trial, whether the judge, jury, the opposing party, the attorneys, and the gallery, expects your direct examination by your own attorney to go according to plan. You’ve prepared for it, maybe even rehearsed it, in the security of your attorney’s own office. Your cross-examination by the opposing party’s attorney isn’t supposed to be like that. Everyone instead expects fireworks. Your job is not to let the fireworks happen. Your attorney should help you prepare for every difficult cross-examination question. Your preparation certainly isn’t to dissemble, nor really to evade. Your responsibility is to tell the truth. Your attorney must not present any testimony that your attorney knows to be false. Your attorney doesn’t want you to lie. You are under oath and could face a perjury charge. Yet you need to have an appropriate degree of confidence and composure in your answers. The opposing attorney may do everything permissible, and perhaps a few not, to get you to crack, give in, give up, break down, admit you’re wrong, get angry, or at least look like a liar. Stick to the truth. Stick to what you know. And prepare to answer the hardest possible questions that you can imagine about the lawsuit’s subject. 

Witnesses

Securing the attendance of your witnesses is a key part of preparing for trial. If they are friendly witnesses, like your own family members, friends, employees, or other close acquaintances, then you and your attorney may meet with them to discuss the upcoming trial, their role in it, and their testimony. Your attorney will be cautious, though, of appearing to unduly influence any witness, even a friendly witness, and will instead repeatedly instruct witnesses to tell the truth. Refreshing a witness’s recollection, though, with the witness’s own incident reports or other materials with which the witness is familiar, is generally acceptable. Don’t let your witnesses forget that to which they’ve already testified on deposition or shared with you and your attorney in oral or written statements. Having your own witnesses forget, contradict their earlier statements or deposition testimony, or, worse, turn on you at trial can be the death knell to your case. Your attorney will likely prepare and serve subpoenas on your witnesses with the statutory witness fee to ensure their trial attendance. Your attorney may also be able to give your witnesses the day and time of their anticipated testimony, while having them available by telephone if the need arises for earlier testimony. 

Experts

Some cases turn just as much or more on expert witness testimony as on the testimony of fact witnesses. A motor-vehicle-accident case of questionable circumstances may, for instance, require a retired police officer, trained and experienced in accident reconstruction and serving as a paid forensic consultant, to review the physical evidence to opine as to how the accident happened. A products-liability case, for another example, would generally require the testimony of a skilled and insightful design engineer. A medical-malpractice case, for yet another example, would routinely require an expert physician in the same medical specialty as the defendant to testify to the defendant’s breach of the standard of care. Expect your attorney to identify, retain, and prepare your expert witnesses for their trial testimony. 

Exhibits

Selecting the exhibits that you expect to introduce as evidence at trial is another key part of preparing. Exhibits can mean more to a jury’s deliberations than witness testimony. Testimony disappears into the air, leaving only faint memories. By contrast, jurors carry exhibits into the jury room with them, to review them as often and for as long as they wish. Parties introduce exhibits through witnesses. Think of the documents or things you and your witnesses would want to refer to and that you would want the jury to see. Medical records in an injury case, personnel records in an employment case, and emails, text messages, incident reports, memoranda, and photographs in many other cases may all be key material evidence. Once you choose the exhibits that will best prove your case, put them in a sensible order, either in the order of the witnesses who will introduce them or by their priority in helping your case. Make your first exhibit your most impactful exhibit so that it’s on the top of the stack when the jurors take the exhibits into the jury room for deliberations. 

Digital

We live in a digital world. Chances are good that your exhibits will include digital evidence, whether emails and their attachments, text messages, social media posts, websites, digital photographs, or surveillance video. Don’t overlook offering digital evidence. Jurors of the digital generation may regard digital evidence as more credible and influential than other exhibits. Your attorney will know the court’s requirements to either turn print documents into digital format to display on screens in court or to turn digital content into print documents to distribute by hand in court. Courts increasingly use display screens for exhibit presentation, but not in every court. 

Demonstrative

You also have the opportunity to create summaries, tabulations, charts, models, diagrams, and other explanatory materials to aid the judge or jury in understanding voluminous or complex evidence. The rules of evidence call these items demonstrative exhibits. If, for instance, you have a claim for medical expenses in a personal-injury case or money damages in a business case, and calculating the amount requires going through voluminous records, you’d ordinarily offer the voluminous records as evidence but also offer a one-page summary totaling the figures, as a demonstrative exhibit. In a medical-malpractice case, you might use an anatomical drawing showing the medical error and injury, as a demonstrative exhibit. In a products-liability case, you might have a product sample to put alongside the defective product. In a construction-defect case, you might have a model of the defective structure. Don’t miss the opportunity to illustrate your claim with demonstrative materials and displays.

Adverse

Your opposing party will presumably be calling adverse witnesses. Your attorney may spend considerable time preparing to cross-examine those witnesses. Just as your cross-examination by the opposing attorney is likely to be a key moment in your trial, so, too, is your attorney’s cross-examination of the opposing party, the opposing party’s liability expert, or other key adverse witnesses. Cross-examination typically attempts to expose that the adverse witness has inadequate first-hand observations or otherwise lacks knowledge of the situation about which the witness testifies. Cross-examination can also attack the adverse witness’s credibility as an independent source for reliable information, such as if the witness is a paid subordinate employee or a richly compensated expert who always testifies for the same side. Prior inconsistent statements suggesting dissembling, and factual errors suggesting poor memory, are also cross-examination opportunities. Make preparing for cross-examining adverse witnesses a priority.

Reflection

On a scale from one to ten, how prepared are you for trial? Have you and your attorney scheduled time to prepare together? What steps do you believe that you need to take to prepare for trial? Have you planned when and how to take those steps? Has the court scheduled your trial date yet? Does the date give you time to prepare? Have you blocked out the trial dates to attend and give your case your full attention? Do you need to arrange a work excuse or childcare to attend your trial? Have you and your attorney gone over your trial testimony yet? Are you prepared to answer cross-examination questions? Have you selected your trial witnesses? Have you begun to prepare your trial witnesses for their testimony, including giving them the trial date and serving subpoenas? Have you selected and organized your trial exhibits? Do your exhibits include digital files, images, or videos? Are your exhibits in the right print or digital format for court display? Do you need to prepare demonstrative exhibits to help the jury understand your case? Is your attorney prepared to cross-examine adverse witnesses?

Key Points

• Trials, although relatively rare, are the culminating event of a lawsuit.

• Thorough preparation for trial is necessary for a favorable outcome.

• Expect the court to schedule a trial date at least a month out.

• Don’t be surprised at a trial adjournment of another month or more.

• Plan to attend your entire trial, even if your attorney is conducting it.

• Work closely with your attorney to prepare for your testimony.

• Work closely with your attorney to prepare for your cross-examination.

• Prepare your witnesses to testify, including subpoenas for attendance.

• Retain and prepare expert witnesses to give opinion testimony.

• Select and organize your trial exhibits in the right order and format.

• Include digital files, images, and video if available and relevant.

• Use demonstrative exhibits to summarize and explain your case.

• Prepare to cross-examine adverse witnesses for lack of credibility.

Read Chapter 15.