Preparing for Your First Civil Trial, Part One: Where and How to BeginBy Jennifer L. Saulino, Maureen R. Knight, and LaQuita S. Wornor
Even if you have never tried a case—if all of your cases have settled after three long years of discovery—and you have no reason to believe the case before you will be any different, it’s time to change that mindset. You should think of every case as a trial case and start preparing for trial the first day you get the case. This will improve your overall handling of the litigation, even if it does not go to trial, by forcing you to constantly sharpen your theories and critically evaluate the status of your evidence, which will help you gather compelling backing for your summary judgment arguments or settlement positions.
The first thing to do is to promptly investigate the facts of your case. The best way to establish the basics of your client’s case is to start locating the documents that could be your key trial evidence—or your opponent’s—and interviewing witnesses with a mind to how you would present this story to a jury or a judge. You should consider obtaining written affidavits or statements from potential witnesses right away. It can take several years for a case to go to trial.
As early as possible, you should perform legal research for your potential jury instructions. This may seem counter-intuitive three years out from a potential trial that may never occur, but jury instructions ultimately are the guiding legal statements—the lens through which all of your evidence will be viewed.
Forum Selection and Venue
When you are selecting a forum in which to file or deciding whether to challenge venue or jurisdiction of a complaint filed against your client, trial implications should be at the top of your list of considerations. Where you file could change the outcome of your trial based on the jury pool, the willingness of judges to allow claims or types of evidence, or the accepted law on various jurisdictional or substantive issues.
Drafting of a complaint or an answer should be done with the trial in mind. For example, if you do not plead certain affirmative defenses, you may be barred from asserting them at trial, or if you plead certain claims, you may be opening your client up to a motion for bifurcation that would hurt your trial presentation.
Even the earliest discovery requirements—initial disclosures—can become important trial tools. Any evidence that is not identified in initial disclosures, or is updated in a timely manner, may be waived at the time of trial. For example, opposing counsel might never serve a single document request or interrogatory. The judge, in an effort to set reasonable limits on the trial, might rely on his or her initial disclosures to dictate the evidence permitted at trial. In such an instance, when drafting your exhibit list, it is important that each document in the list fit into the broad, general categories you have identified in your initial disclosures, years before.
In a similar vein, your bread and butter discovery tools—document requests, interrogatories, and requests for admission—should be written with attention to the evidence you will need to prove each element of your case. Although some of your purpose with written discovery requests will be pure discovery of evidence you do not know, you should make sure to include requests that provide the interstitial information you will need at trial—including, for instance, any accounting or tax information you will need for your damages argument and foundational evidence to establish the relevance of other important evidence. Further, in a trial setting, busy judges and bored juries have no patience for lawyers who slog through the elements of the business records exception for every single document. A comprehensive set of requests for admission, however, can handle a large majority of those elements ahead of time. There is usually no limit on the number of requests for admission you may serve (which may or may not be helpful to you depending upon whether you are on the issuing or receiving end).
During discovery, it is equally important to think through the potential role of non-parties in your trial case. When you are requesting documents, affidavits, and depositions from non-parties, pay particular attention to ensuring you have secured all of the necessary foundational information for admissibility. In the days before trial, deficiencies in these particulars can often be worked out among parties, but non-parties typically have no incentive to help you correct them on a tight timetable. Affidavits or depositions of non-party personnel acquired during discovery may also be your only chance for sworn testimony if they are out of the reach of the court for live trial appearances.
Chronology and Case Summary
We have fashioned two very effective working tools to help us keep a strong trial focus throughout the discovery process—a chronology and a case summary. At any trial, you will need a clear understanding of the chronology of the important facts of your case. You also will need to be able to boil down your case in summary fashion in a way that is easy for a jury or judge to understand. But rather than waiting until after discovery to create them, start early and amend and update them regularly as evidence comes to light in an internal investigation or during discovery. By doing this, you will always have a clear idea of what information is missing, and where to focus your investigative or discovery-related attention. An added advantage to a comprehensive chronology is that when the inevitable three-month lull occurs in the middle of your case, the chronology is an excellent refresher resource.
Next up: "Depositions."
Jennifer L. Saulino is with Covington & Burling LLP, Maureen R. Knight is with Constangy Brooks & Smitth LLP, and LaQuita S. Wornor is with Frost Brown Todd LLC.
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