Trial Preparation Checklist for a Successful Lawyer

Article by Phillip Miller

Analyze the Jury Instructions and Your Proof as Early as Possible

• Using the jury instructions/law for your case list the legal proof required for your claim(s)
• Chart how your proof meets each element required, including
  • Witness(es)
  • Expert(s)
  • Documents/Exhibits
  • Demonstratives

Do SWOT* Analysis as Early as Possible

• Strengths, Weaknesses, Opportunities, Threats
• We do a superior version of this in our work sessions that should be the goal for the content in this part of the trial preparation.

Focus Groups as Early and as Often as Possible

• Confirmation bias tends to make us discount the possible defenses and believe our own witnesses, experts, documents, and theories are stronger than others may believe them to be. Focus groups help identify issues in the case, including discovery that should be part of the case.
• For Example:
  • Pre-litigation concept groups to explore general attitudes and beliefs that may apply to your case.
  • Pre-litigation concept groups to explore discovery/questions that jurors may need to know.
  • Pre-deposition groups to explore rules, history, and timelines that jurors may need to know.

Identify Themes/Language to Embed in the Following:

• Depositions
• Voir dire
• Opening
• Direct
• Cross
• Closing
• Listen for these or other language in your focus groups:
  • Profit over safety
  • It’s all about money
  • Red flag
  • Common sense
  • Garbage in/garbage out
  • Head in the sand
  • Rigged
  • Cover-up

Prepare Defense Themes and Your Rebuttals

• If you have done a complete SWOT analysis or an intense work session on case issues, this is in place. Do this before discovery of key opposition witnesses is closed.

Motions in Limine

• This should be a by-product of your SWOT case analysis and should be done early (and ongoing), rather than something developed late in the case.

Think< Through and Assemble Creative Demonstratives

• Helpful if introduced in depositions
• Look at “homemade” exhibits used by great trial lawyers (like Zoe Littlepage, Mark Lanier)
  • Think schoolteacher rather than “artiste.”
  • Go to Michael’s, Walmart, Amazon for possible demonstratives.
  • Examples:
    • Full skeleton with red tape over each injured member identified during proof (a la Lanier)
    • Red flags – red felt on small wood dowels (a la Littlepage)
    • Consider YouTube videos of surgical procedures (a la Robyn Wishart)

Prepare Draft Arguments

• For Defendants re: your evidence/presentation, then your rebuttal arguments.

Prepare Witness Lists and Subpoenas

• 60 days before trial date, with filing of subpoenas depending on local rule and case strategy.

Deposition Video Edits

• 60 days before trial date, more or less depending on local rule. Your edits should be “commercial” length, 30-60 seconds. Be prepared for possible FRCP 32 rule of completeness objections, get agreement as part of pre-trial order if possible.

Prioritize Exhibits for Introduction at Trial

• When preparing a list of your trial exhibits, number them in the prioritized sequence you want jurors to use regardless of when they are introduced during the trial. This is because at deliberation, jurors will be given the exhibits in numerical orderb.

Survey the Court Room

• As soon as possible, go to the courtroom to determine:
• Best locations for exhibit boards, number of boards that can be used simultaneously
• Placement of outlets, screens, projectors, microphones
• Issues with lighting
• Juror sightlines
• Noise levels that may affect jurors’ hearing

Prepare Written Outlines for Major Elements of Presentation

• (Voir dire, opening, direct exams, cross) – whether you do this using 3”x5” cards (a la Keith Mitniki) or on heavy card stock (Mark Lanier), have it ready before trial and have it reviewed by someone else, and/or test it with a focus group.

Prepare Legal Briefs Needed at Trial

• What are the likely legal issues re: witnesses or evidence that may occur during trial.
• What are the likely legal issues re: conduct of opposing counsel during trial that may arise.
• What are the likely legal issues re: expert testimony that may arise during trial.

Practice the Major Elements of Your Trial Presentation

• Including video recording/review and/or focus group feedback on:
• Voir dire
• Opening
• Direct
• Cross
• Close

Assemble Your Supplies for the Court Room

• Extension cords, plug strips
• Speakers
• Flat screens
• Markers, Post-it notes, Highlighters
• Rules of Civil Procedure/Evidence
• Easels with pads for writing
• Elmo/Ipevo document cameras

Organize a War Room

• This should include:
  • location
  • internet access/Wi-Fi
  • cell phone chargers/adapters
  • printer/copier
  • healthy food/drinks
  • medication (that team members may forget to bring)

Prepare Clients, Witnesses, Staff for Their Conduct During Trial

• Assume that someone is watching them to/from the courthouse and the entire time they are in the courthouse
• Do not speak about the case in public where a juror or member of the defense might hear
• Do not swear, glare, or react to testimony or rulings inside or outside courtroom
• Stand for the Jury and the Court
• Do not use cellphones inside the courtroom unless allowed by the Court.

* Confirmation bias will interfere with any SWOT analysis, i.e., you will interpret evidence to support your conclusion and discount bad facts.

<This sounds easier than it is. We are all “cognitive misers,” as my friend Greg Cusimano says. We must make and take some time to think creatively about the demonstratives of our cases.

b This a technique used and recommended by Mark Lanier

i Keith Mitnik is the author of Don’t Eat The Bruises, worth reading if you have not already done so.