Preparing for Your First Trial

Author:  Attorney David Dobin

One of the most formidable tasks for new litigators is preparing for their first trial. In a recent book published by the American Bar Association, How to Succeed as a Trial Lawyer, attorney Stewart Edelstein provides useful insight into a wide range of issues facing litigators, from the first client meeting through appeal. In the excerpts below from the chapters Presenting an Effective Plaintiff’s Case in the Courtroom and Presenting an Effective Defense in the Courtroom, Edelstein provides practice checklists that new litigators can use to prepare for their first trial.

Presenting an Effective Plaintiff’s Case in the Courtroom—Practice Checklist

• Choose a compelling, succinct, common-sense theme.
• Draft your complaint so it is consistent with your theme.
• Conduct discovery to get admissions and streamline the trial:
  
  • Get deposition admissions and judicial admissions in response to requests for admissions to promote your theme.
  • Obtain certified copies of public records.
  • Get judicial notice of adjudicative facts.
• Stipulate to admission of documents as full exhibits.
• File motions in limine on key evidentiary issues.
• Prepare a trial notebook.
• File a pretrial memorandum of law and facts.
• Select as few witnesses as you need and present them in a logical order.
• Prepare your witnesses to avoid surprises in the courtroom.
• Ask direct-examination questions efficiently and effectively:
  • Ask short questions in plain English at a comfortable pace.
  • Ask only questions that promote your theme.
  • Vary the types of your questions.
  • Use headnotes and loop-backs.
  • Do not ask the one question too many.
  • Avoid objectionable questions.
  • Counter opposing counsel’s objections in a way to reinforce your themes.
  • Cut off voir dire that derails your case.
  • Use your voice like an instrument.
  • Build up significant testimony.
  • Make a preemptive strike on weaknesses in your witnesses’ testimony.
  • Review your checklist before ending your questions of each witness and before resting your case.
• Use exhibits efficiently and effectively:
  • Put into evidence only exhibits promoting your theme, and know the evidentiary basis for each.
  • Build up significant documents.
  • Put into evidence deposition testimony and responses to requests for admissions.
  • Put into evidence summaries of voluminous documents.
  • Use demonstrative exhibits.
  • Make sufficient copies of documents.
  • Keep track of which documents are in evidence and which are for identification only.
• Select an expert who will support your theme efficiently and effectively:
  • Select an expert with the requisite background and experience who speaks in plain English and who is not subject to a Daubert challenge.
  • Have your expert testify on the ultimate issue.
  • Introduce your expert’s report into evidence.
• Miscellaneous tips:
  • Do not misrepresent or distort anything.
  • Be prepared for a bad answer from your own witness.
  • Prepare your witnesses for questioning by the judge.
  • Stay organized during trial.
  • Use note cards to communicate with co-counsel during trial.
  • Be flexible during trial.
  • Avoid burnout during trial.
• Adjust all this advice for a jury trial:
  • Workshop your case with a non-lawyer, focus group, or mock jury.
  • Do not promise more than you can deliver in your opening statement, and do not mischaracterize the record in your closing argument.
  • Do not bludgeon the jurors with your theme.
  • Try your case at the level of the jurors.
  • Use more demonstrative exhibits than at a bench trial.
  • Publish each exhibit to the jurors in a meaningful way.
  • Promote your theme in opening statement, in closing argument, and in the charge to the jury.
• Listen to Beethoven’s Fifth Symphony, focusing on his use of the theme.
• When you settle a case shortly before or during a trial, keep in mind that your case settled so favorably only because you were prepared to try it.

Presenting an Effective Defense in the Courtroom—Practice Checklist

• Choose a compelling counter-theme that does more than merely refute the plaintiff’s theme.
• Draft your answer, affirmative defenses, counterclaims, and cross-claims so they are consistent with your counter-theme.
• File a pretrial memo that does more than just refute the plaintiff’s theme.
• Take limited notes as the plaintiff’s witnesses testify.
• Keep the plaintiff’s witnesses’ testimony and exhibits out of the record:
  • Protect the record before trial.
  • Know the bases to object to the form of questions.
  • Know the bases to object to the substance of testimony.
  • Know the bases to object to exhibits.
• Object strategically to questions on direct:
  • Listen to each question carefully—is it objectionable?
  • Be poised to object to each question timely, avoiding the need to file a motion to strike, when it is too late to “un-ring the bell.”
  • Object only when you have good reason and can keep evidence out.
  • Adjust your objections to the judge’s rulings.
• Object as appropriate to the plaintiff’s exhibits:
  • Are they objectionable as violative of any rules of evidence?
  • Were they produced in response to your pretrial discovery?
  • Voir dire on exhibits when appropriate.
• Keep out expert testimony, based on the Daubert analysis.
• Conduct an effective cross-examination of each witness.
  • Cross serves many purposes: build up favorable witnesses, corroborate favorable testimony, obtain admissions, minimize the witness’s credibility, and minimize or destroy the witness’s testimony.
  • Before trial, determine what points you want to make on cross and know the evidentiary basis for each question you plan to ask.
  • At trial, decide whether to cross at all: Was your case damaged by the testimony on direct? If so, can you do something about it?
  • Use short, understandable leading questions, preferably in the form of statements.
  • Be fair to the witness by not misrepresenting what the witness said or taking testimony out of context.
  • Observe the witness’s body language when answering questions.
  • Use as few notes as practical.
  • If the witness does not answer your question, repeat it— but if your question may have been confusing, fix it first.
  • Start and end strong with each witness.
  • Use a checklist to be sure you have covered all the points before ending your cross.
  • Do not start with a hostile demeanor, try to trick or confuse the witness, cut off the answer (unless you have good reason, such as stopping a nonresponsive or improper answer), ask why or how, ask a question you don’t know the answer to, or ask one question too many.
  • Remember that these are merely guidelines, subject to exceptions, depending on the circumstances in each case.
• Impeach on cross-examination effectively:
  • Determine before trial whether you have impeachment material, and use it only if the witness’s testimony on direct hurt your case.
  • Impeach one fact at a time.
  • First, commit the witness to the courtroom statement, making clear you do not believe the statement on which you will impeach.
  • Second, credit the impeaching document or statement by building it up.
  • Third, confront the witness with the words of the impeaching material.
  • Do not give the witness the opportunity to explain away the inconsistency.
  • Remember that the impeaching document is not evidence.
• Use the plaintiff’s exhibits and demonstrative exhibits against the plaintiff.
• When the plaintiff rests, consider filing a motion for judgment as a matter of law.
• Adjust your strategy when the plaintiff rests, based on what is in the record.
• Limit the plaintiff’s rebuttal to what you put into the record not covered in the plaintiff’s case in chief, and consider surrebuttal, keeping in mind its limited scope.
• Preserve issues for appeal.
• Miscellaneous tips:
  • Before trial, caution your client that the plaintiff goes first, which can be demoralizing, but that you will have your opportunity to undermine the plaintiff’s case when you cross-examine and when you present your defense case.
  • Be aware of opportunities to settle during the course of the trial.
  • Take advantage of technology in your defense.
• Adjust all this advice for a jury trial.
  • Adjust your demeanor based on the witness’s demeanor.
  • Seek judicial intervention with a difficult witness only when you have no other option.
  • Be aware that during a trial you are “on the record” from the moment you leave the office until the moment you return to the office.
  • Excuse the jurors when necessary to avoid their learning about something you seek to keep out of the record.
  • Minimize disruption for the jurors by filing motions in limine where appropriate.
  • In your jury charge, use plain English, short sentences, and short paragraphs; include a clear instruction on burden of proof.
  • In opening statement and closing argument, make the jurors care by personalizing the dispute whenever possible and by relating your defense to something the jurors will identify with their own experience.

How to Succeed as a Trial Lawyer expands on each of these points in more detail, in addition to discussing common issues regularly faced by litigators. 

Attorneys