Join me as I talk tips for upping your trial performance. I’ll cover all aspects of the trial, including jury selection, opening statements, direct witness testimony, cross-examination, closing arguments, jury instructions, and verdicts. Discussions are welcome in the comments section.
— Tad Thomas
As a young lawyer preparing for trial, you will likely be reviewing your textbooks from law school and consulting with peers and mentors to ensure you are doing everything to the best of your abilities. When it comes down to it, you need to be prepared to go the distance for your client. The trial preparation process begins the day you are retained. Let’s take a look at some of the things you should keep in mind at the beginning of a case, so you can ultimately be prepared for trial if that’s how the case progresses.
Know Your Theme
When a client comes to you with a potential claim, you should be thinking about the theme of their case. From then on, everything you do should focus on furthering the theme. Review it regularly and make changes to it as needed—like when new developments arise. Considering what you need to prove and disprove will keep you on track with the theme.
It’s also important to keep track of motions and important documents and witnesses. You’ll always want to be thinking about how the evidence and witnesses play into the case and how they can support the theme.
Know the Judge and Courtroom
When it comes to “knowing” the judge and the courtroom, this revolves around courtroom procedures, the judge’s rules, and what you need to do to best advocate for your client. Check to see if the court has standing orders and what the local rules are. If the judge accepts customized versions of jury instructions, take advantage of that so you can make them persuasive and easily digestible.
Find out how the court wants documents submitted, as well as whether the judge handles voir dire exclusively or if you will have the opportunity to question the jury pool. Having that chance is a huge opportunity for advocacy. Always be aware of your deadlines and give yourself enough time, so you’re never scrambling.
When it comes to the courtroom, find out where you’ll sit, where you will stand during argument and questioning, where the screen is, and even how big the counsel table is. If you’ll be in an unfamiliar area, find out about parking, scope out spots for meals, and make sure witnesses and clients know where the restrooms are. While those things may seem trivial or like things you could figure out on the spot, being prepared means you can focus on what really matters instead of logistics.
Organize and Plan for Pretrial
Once you’ve developed evidence, identified witnesses and key documents, and know the applicable laws, you’ve made it through discovery and dispositive motion practice. If your client’s case is not settling, it’s time to identify your trial team. Tasks and responsibilities should be allocated, so everyone knows what they need to do and when. Or, if you are on your own, you’ll have a list of everything you need to do.
When it comes to planning for pretrial, motion practice is crucial. Everything you file needs to support and emphasize your theme. Know if your motion to dismiss agrees with your theme. The same goes for your motion to compel discovery. Be prepared for the court to allow evidence you wanted to be excluded, as well as to exclude evidence you wanted to be approved. You may need to reargue your position, as trials are fluid, and things can change quickly.
Prepare Your Exhibits and Witnesses
When it comes to preparing exhibits, identify them and think about how to get them into evidence. You may want to keep certain evidence separate for dramatic effect—assuming that doing so is permissible in the courtroom. Remember to prepare trial logs, as admission and exclusion of exhibits can get lost the further you get into a trial.
As you are preparing your exhibits, you’ll also need to prepare your witnesses. Prepare outlines and key them in on what they may deal with on cross-examination. Meet with your witnesses repeatedly. They should be familiar and comfortable with their testimony. They should also be well aware of the logistics of the trial. Make sure they know where they need to be and when, as well as how to dress, how to sit, where to look, and what mannerism, like fidgeting, to avoid. Preparing your witness properly will result in a credible and airtight testimony.
Finalize Your Trial Preparation
As you approach the last few weeks before trial, it’s time to revisit everything you’ve done. Make sure to finalize jury instructions, interrogatories, and questionnaires. If you’ve followed through with the preparation tips above, you’ll be able to put all of the elements together. Remember your theme and what you need to prove or disprove.
The more you prepare for trial, the more prepared you’ll be when circumstances inevitably change or surprises hit. Even if your case settles before going to trial, as many do, the more you prepare, the more likely you are to succeed and provide your client with the best possible legal representation.