TRIAL PREPARATION SERIES / PART ONE of THREE
It is a fact of modern law that many litigators never actually try a case. And those who do rarely appear in a courtroom more than once or twice a year. But you must have a foundational strategy for trial preparation early in any case. Further, you must prepare your case with an eye toward courtroom presentation or you could be setting up for failure.
★ Trial Preparation or Settlement Preparation?
In most matters, judges manage and resolve disputes, not preside over a courtroom. At many points in litigation, parties are pushed to use alternative dispute resolution of one kind or another. That’s because trials are expensive and settlement benefits all parties and the courts themselves.
But if your strategy is designed to force a settlement, you may find it impossible to build a coherent argument when your case winds up in a courtroom. If a matter does go in front of a jury, panel, or judge, a lack of strategy and preparation could be disastrous.
★ It’s Never Too Early for Trial Preparation
As we discussed in our recent blog series on document review, your trial presentation strategy should be taking shape during the review phase. In addition to finding relevant materials, your team should already be considering how it will be presenting its findings for an audience.
During document review, claims and relevancy should have been identified and results organized into appropriate folders. As patterns become clear in the review process, themes will emerge and information can be organized into a timeline.
Organizing your information in this way will help determine which witnesses will support the story you are trying to tell. Highlight points that need to be called out for your audience, whether it is a jury, judge, or panel.
We encourage our users to create a system to add notes, highlights, tags, or key search terms to documents which will aid your research and witness depositions later. As you find relevant information in your document review, start writing questions for deponents so that they can support or validate your findings.
TRIAL PREPARATION TIP:
Use your coding, case organization and technology to support case preparation. That means using coding from your review as you begin trial prep, including all notes.
★ Building and Supporting Your Story
The review process centers on identifying the universe of documents. Preparing for trial is when you figure out how you will use those documents and what story they tell. Work out a framework and outline case themes and organize information into a coherent story.
As responsive documents are identified, the review team should be working to wrap its arms around the broad themes uncovered. For your trial preparation, your reviewers can identify who are the important custodians and deponents, main characters, and the relevant timespan for events.
The volume of relevant documents can be enormous in the review phase, but moving into the trial presentation phase this will be whittled down considerably. For example, if you are working on a case with thousands of exhibits like financial records, those items should be combined or compiled in such a way that they offer support for your arguments. No one will likely read each document.
Or consider a wrongful termination case. No one will likely read all of the hundreds of emails about a person’s job performance, but your team should be able to isolate the most important sentences from the most relevant messages.
★ Preparing for Success At Trial
Of course, none of this is a linear, straightforward activity. Review is an ongoing process and most discovery is done on a rolling basis. You will likely continue to produce evidence even as you start to take depositions.
Firms that have well-oiled workflows move documents into their litigation practice databases as soon as they are produced. This allows their trial team to immediately prepare for depositions or even begin creating presentation slides and graphics. When taking depositions, it becomes clear how witnesses relate to each other and if they tell a consistent story.
As you start to prepare a case for trial there are too many things for any one person to consider. Some are small, like whether to have snacks in the war room. Other questions will have a profound impact on your case.
Unfortunately, trial preparation is too often the last thing attorneys think about. As mentioned earlier, most cases will settle or end in a summary judgement. Of course, that might not happen. And you may suddenly find yourself with a trial date on the calendar, and a case full of holes.