Complex Litigation

Some Practical Tips on Trial Preparation

By Michael Hoenig - New York Law Journal - June 13, 2016

It is often said that what really happens in a trial is the product of intensive preparations beforehand. Generally, you are in grave trouble if your adversary is better prepared than you. It is sometimes helpful to remember what the judge often charges the jury in connection with the term "preponderance of the evidence." If the scales of justice tip ever so slightly in favor of the plaintiff, the defense loses. In order to win, the defense must overcome sympathy, surmount the "deep pocket" image and make the defense scales tip lower. This takes preparation.

Some counsel are great trial lawyers but poor organizers. Others are very methodical but fail to appreciate the realistic problems associated with a trial, like logistics. The following matters may generate further productive thoughts. For simplicity the context I use here is the defense of a complex products liability trial. The basic concepts, however, are also applicable to preparation for the plaintiff's side and to trials in other types of cases. However, no attempt is being made here to provide an exhaustive checklist of relevant considerations. That is up to you.

1. Have you researched the law and legal problems you expect? It is helpful to have a trial memorandum either prepared in advance of trial or capable of speedy preparation. The memorandum should contain the applicable law of the jurisdiction and should cover the points you expect to be in dispute. You will find this a handy reference in the event a question comes up requiring immediate disposition. It can prove invaluable in arguing motions for directed verdicts.

Some judges appreciate receiving trial briefs, read them carefully and rule with them in mind. Others cast them aside because of burdened schedules or because so many trial briefs are written ponderously or with too much argumentation and too little law. If you anticipate the judge will pay no attention to your brief, remember, however, that he may have a law clerk who will. Alternatively, if there are several key decisions that you feel may be controlling or a particularly helpful law review article, copies of these may perhaps be submitted to the court.

2. Have you arranged for assistance at the trial? A major products trial may last weeks or even months. Trial exhibits can number in the hundreds. Legal as well as factual research may be required during the trial. It is a rare trial specialist who can go it alone these days in a "big" products case. More and more attorneys are utilizing trial assistants actually present at counsel table. Many trial lawyers are fearful of having "too many people" at counsel table, and this is a realistic concern. It is advisable that the assistant be a lawyer, although very competent paralegal assistants render valuable help.

The time to arrange for this kind of assistance is not immediately before trial. The assistant must be thoroughly familiar with the case and, therefore, should have worked on the matter earlier. Caution: If you have a law associate or partner assist at trial, make it absolutely clear that you are the trial counsel and are merely being assisted. He is not a substitute for you at trial. Then, if you are disabled or otherwise become unable to continue at a critical phase of the trial, there will be less danger of the court suggesting that a young associate finish the trial on behalf of the defendant. Particularly, in a lengthy case, judges are extremely reluctant to declare a mistrial when the end is in sight. Further caution: Clear the matter of a trial assistant with your client in advance and be prepared to discuss this question frankly.

3. Have you asked for a trial date certain? It is amazing how many good trial attorneys do not look beyond their own diaries in considering trial dates. Entirely oblivious to the fact that the schedules of a dozen other busy persons may hang in the balance, not to mention effective trial preparation, many counsel routinely send a letter a few weeks before trial giving notice of the trial date and little else. That is one unfortunate way to lose a case.

You must remember that the trial of a products case will often require expert testimony both by defendant's experts and by independent experts. These persons may have to travel great distances or may have important conflicts which cannot be set aside. You jeopardize the order of your proof and your client's case if you give no thought to these matters. You should estimate the approximate period the case will be reached for trial and discuss the matter frankly with your client and key witnesses. Then approach the court at the next opportunity and request a date certain, explaining the advantages to the parties, witnesses and the court.

Many judges will try to accommodate you if you demonstrate sincerity in the matter. Obtaining a date certain can become a very effective settlement tool because many plaintiffs' attorneys will have their own conflicts, because you will have had the time to prepare your case fully and because the uncertain trial date is thereby denied as a device for pressuring defendants to settle. Even the judges who refuse to give you a date certain will thus have been made aware of your possible scheduling problems well in advance and may not construe a later request for postponement as a crude delaying tactic.

4. Have you ordered a daily or partial transcript? Lawyers who never use a daily transcript or who do not arrange, in advance, to obtain a transcript of the day's testimony probably do not realize what a tremendously valuable and worthwhile form of assistance this is. Upon the proper notice (and, of course, for a fee) court reporters can expedite to an attorney a transcript of the day's testimony or key parts of it that evening or early the following morning.

Imagine the tremendous convenience and potential for incisive cross-examination or other preparation that a word-by-word recitation of an adverse witness provides! Successful trial lawyers tell you of many occasions when a transcript was held up before a jury and the verbatim testimony of a key witness was read to the jury during a summation with telling effect. Consider the advantage to the defense expert of being able to read a copy of the adverse expert's testimony and to prepare a refutation for cross or during the defense case on a line-by-line basis.

In a "big" case or a lengthy trial, this can prove a costly item but one that is well worth the expense. Sometimes plaintiffs' attorneys make a habit of placing a standing order for copy of any testimony ordered by the defense. That should not be a deterrent. The transcript will also prove helpful when you feel you may have a chance at a directed verdict and can thereby prove the insufficiency of the evidence in some particular.

It is sometimes helpful to order a transcript of plaintiff's opening statement, particularly where your adversary's technique incorporates a detailed and technical recitation of what he expects to prove or where you have not had the benefit of good pretrial discovery. You can utilize this transcript effectively in your summation to demonstrate to the jury in what ways the plaintiff's proof has fallen short of adverse counsel's promises.

5. Have you sufficiently considered logistical details and attended to them? It is one thing to have a good defense idea, quite another to execute it. Once again, it is surprising how many mature trial attorneys will say one week before trial, "it would be very helpful for the defense to have…" and then recite the coveted items. These can include mock-ups, models, portions of automobiles, see-through replicas of moving machinery and the like. Little thought has been given to the logistics of preparation, crating or proper packaging, transportation, storage, delivery at trial, ability to get the item into the courthouse, etc. If the item is valuable enough to spend the money to prepare, it is important enough to have been the subject of sufficient forethought to attend to logistical needs. Coming up with an idea late in the game often may be the result of too little thought early in the game.

Sufficient lead time is vital, particularly with hard-to-obtain items. On one occasion a rather old product was the subject of the lawsuit. The trial came on quickly and with little notice. In the mad scramble of trial preparation that followed, it became evident that "state of the art" at the time the product was manufactured would be a critical factor. This posed a tremendous problem. It was difficult enough to obtain specimens of the vintage product itself. Comparison products made by others were impossible to get in the time frame allowed. Fortunately, the state-of-the-art testimony was covered by a mature expert conversant with the old design. The defense attorney's failure to allow sufficient time to prepare, in terms of the needs of that particular case, was the cause of a "close call."

If your case would be materially assisted by a jury view of the product, the accident scene, a bulky piece of machinery, etc., consideration must be given to how the item is to be stored or viewed and how jurors are going to get there. The modern trend has been favoring some kinds of jury views, if the administrative details can be overcome with little disruption to the court's schedule or inconvenience to jurors.

Consideration must be given to having the item to be viewed positioned in a place that is well lit, fairly comfortable and safe. Many courthouses have parking lots or underground garages which will serve the purpose. However, advance arrangements must be made with the court. If the jury is to be moved from the courthouse any distance (e.g., to an accident scene), transportation must be offered. You can rent comfortable, roomy buses, the offer of which may cause a judge to be disposed favorably in a given case. Timely attendance to logistical details can avoid a mad scramble during trial and, even worse, broken promises to the jury. Make sure your demonstrative materials are ready or on the way.

6. Have you prepared a good trial notebook? Many successful lawyers take the time and expend the effort to prepare a "trial notebook." This will permit you to have at your fingertips many of the items that will be referred to at trial. The preparation of the book will force you to again study the case, review the evidence and organize your order of proof. You will inevitably find yourself rethinking the defense theme and the requisite proof.

Typical entries in a trial notebook are the pleadings (complaint, answer, essential stipulations, pretrial orders, interrogatories and answers of the parties, requests for admissions and responses); summary of investigative materials or pre-trial statements; summary or evaluation of pre-trial depositions; exhibits; police accident report; weather report; itemization of special damages; photographs; summary or outline of proposed testimony of witnesses; trial memoranda and/or key legal decisions on anticipated legal questions.

The various entries should be indexed and separated by index tabs for easy retrieval. One caution, however, is that outlines can often become an end in and of themselves. Lawyers may become so involved with the end appearance of the "notebook" that they may overlook relevant facts; or it may be viewed as a "chore" and, therefore, delegated improperly to a paralegal. Care should also be taken that the trial notebook is not prepared too far in advance of trial so that new developments are excluded.

7. Have you considered moving in limine to preclude objectionable matter? A motion in limine can sometimes be made to have the court consider in advance the preclusion of an adversary's objectionable matter, thereby preventing same from tainting a trial. Sometimes the mere asking of a question or the introduction of an item might cause irreparable harm even though the objection would be sustained at trial. The motion requests the court to instruct the adverse party, opposing counsel or his experts not to mention certain facts at all or, in the event the question is not finally determined at the time the motion is made, not to mention certain facts unless and until the court has granted permission after a hearing out of the presence of the jury. If the motion is granted in its entirety or pending a further hearing, the court is notifying the adversary that a ruling on admissibility must be rendered before the evidence can be mentioned in front of the jury.

During trial an improper reference is frequently attributed to inadvertence or oversight by an "apologetic" counsel. A trial judge, reluctant to declare a mistrial, may try to cure the problem with a cautionary instruction, and this often suffices to withstand a reversal on appeal. However, the judge's caution may not erase the taint so a motion in limine beforehand may be preferable. An advantage of using the device, in addition to possibly precluding prejudicial matter, is that the court has a chance to carefully review a "problem area" in advance and render a precautionary ruling. The attorney can learn in advance whether offensive matter will be permitted and adjust his trial tactics accordingly. Even making the motion may have tactical benefits in that it may force the plaintiff to articulate his reasons for the evidence. Tentative preclusion can, at least, assure a further hearing in the context of the proof.

8. Have you fully ascertained the position your codefendants will really take at trial? Many products claims are filed "shotgun" style. A suit may therefore involve several codefendants. Because of warranty and strict tort theories, the plaintiff will often sue not only the manufacturer but also other entities in the distributive chain. There may be additional defendants unconnected with sale of the product but very much involved with the occurrence. The respective interests of the many defendants (or their insurance carriers), though sued by the same plaintiff, do not always coincide. Therefore, "in-fighting" among codefendants can develop. This may take the form of open litigation, as in the case of cross-claims and third-party claims or it may be carried on informally by threat or subtle trial tactics.

Many products cases have resulted in plaintiffs' verdicts not because the plaintiff's counsel "won" the case, but because the defendants helped the plaintiff by taking adverse positions among themselves during trial. This is a realistic problem which is too complex to analyze in depth here because of innumerable variables which would have to be defined. Each situation may present unique economic and policy considerations. However, the important thing is to know where your codefendant stands before the trial.

You should not be taken by surprise during trial. At least before trial some sort of agreement may be struck to the satisfaction of the codefendants, in order to eliminate "in-fighting." This can consist of an agreement to fully or partially indemnify; to reserve conflicts for later determination by arbitration or other procedures; to participate on some proportional basis in any judgment awarded, etc. Of course, the form or nature of any resolution will depend upon the circumstances. Perhaps "in-fighting" cannot be avoided. At least by learning about the matter beforehand, you can make the necessary adjustments for an approach to the trial. Surprise is thereby avoided. Foreknowledge of a codefendant's truly adverse position can also have an effect on important matters like the number of peremptory challenges to jurors, the order, number and length of cross-examinations, opening and closing arguments, and so on.

Questionable practices have increasingly been noted in which one codefendant strikes a secret agreement with the plaintiff, whereby it is assured that plaintiff will not execute (in whole or in part) against such defendant on any judgment in return for cooperation during trial. The idea is to "stick it" to the unsuspecting defendant. If such an arrangement is possible, it would be prudent for counsel to raise the matter frankly with the judge before trial and, on the record, to inquire whether any agreements or understandings have been struck which will in any way affect the trial, the positions of the parties or recovery.

If such an agreement is disclosed, counsel should consider moving to set it aside on equitable grounds because it may interfere with the adversary nature of the trial process and constitute a fraud on the court and jury. There have been instances where discovery of the agreement during trial has resulted in disclosure to the jury and severe reprimand of counsel by the court. Such arrangements should be disclosed before trial so that counsel will know whether he has other adversaries besides the plaintiff.

A Helpful Resource

The New York State Bar Association (NYSBA) has just published its 2016 revision (second edition) of the incisive book, "Preparing For and Trying the Civil Lawsuit." Editors-in-Chief are Neil A. Goldberg and John P. Freedenberg, litigation partners at Goldberg Segalla, in Buffalo. The book consists of two loose-leaf volumes containing 26 chapters written by lawyers and trial specialists.

I recommend this fine resource, not just because I authored Chapter 14, called "Gatekeeping: Reliability of Expert Testimony Under Daubert (And Frye)," but because of the breadth of the subject matter, the detailed expertise shared by the many writers and the text's clear organization and readability. The reader will have immediate access to chapters on ethical considerations, pleadings and related motions, disclosure, case investigation, conduct of depositions, expert discovery, jury selection, preserving the trial record for appellate review, many aspects of trial practice such as direct and cross-examination and the use of demonstrative evidence. Included too, among others, are chapters on jury instructions, evidence, the attorney-client privilege and tips by the legendary trial genius, Henry G. Miller, on summation and the practitioner's "first trial."

 

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