Succeeding at trial is an ambiguous phrase. Everyone wants to be successful, but the grim truth is that for one to succeed at trial, another has to lose. The best you can do is be prepared. Careful preparation will not ensure success at trial for you, but it will increase your odds.
If you are going to trial, it means that settlement negotiations have failed. It also means that your attorney feels that he or she has an above-average chance of winning at trial, or he or she would have had the good sense to settle the case before this point.
It is estimated that 80 to 92 percent of cases settle before going to trial, which means only 8 to 10 percent of cases will go to trial. Most plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken a settlement offer.
In a study titled “Let’s Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations,” published in the Journal of Empirical Legal Studies in September 2008, the following statistics were published:
• Defendants made the wrong decision to go trial 24 percent of the time.
• Plaintiffs made the wrong decision to go to trial 61 percent of the time.
• Litigants made the right decision — meaning that the defendants paid less than the plaintiff wanted, but more than the defendants offered — 15 percent of the time.
Organization is key. Attorneys depend on paralegals to be organized. Don’t ever assume a case will settle and slack off on the organizing. Basically that means the following:
• Keeping exhibit lists from every deposition organized;
• Reviewing video depositions and transcripts as soon as they arrive for errors or technical glitches;
• Keeping lists of “hot” documents as you review; and
• Keeping expert witness reports.
There are many variables you need to be aware of when preparing for trial. Keeping these in mind while preparing for trial will assist you to be best prepared to handle them:
• Jury Prejudices — Although we live in the 21st century, unfortunately prejudices abound all around us. Think for a moment about yourself being a juror. Wouldn’t you be more inclined to side with someone who was like you as opposed to someone who wasn’t? It’s sheer human nature. And although no harm is meant, it exists and must be considered.
• Trial Venue — For example, if you were suing a financial institution and your venue was just outside of New York, you have to consider that most of your jurors would have worked or have relatives or friends who work in the financial district.
• Expert Testimony — Some experts are void of any personality, making their testimony boring and complicated to understand.
• Demonstratives Used at Trial — The more types of demonstratives you use, the better able you are to hold a juror’s attention.
• Personality of Attorneys — This is a proven fact: jurors will begin to relate to one side or the other based on the personality of the attorney.
• Complexity of Case Facts — No matter how complicated the facts are, they must be broken down into easy-to-understand terms and theories.
Every court is different and every judge is different. You will want to make sure that you understand the rules of the court and judge well in advance. Some things to keep in mind while you are preparing for trial:
• Find out in advance what kind of technology the courtroom has in place.
• Some courts don’t allow cell phones with cameras.
• Some judges have their own set of rules that need to be followed. Usually they are posted on the court’s Web site.
• Always keep a copy of the court’s rules handy.
• Know your court’s and your judge’s schedule.
The jury pool consists of those selected for jury duty in that jurisdiction for that day. They will be asked a series of questions — voir dire — to determine their eligibility to sit for a particular trial. While answering these questions they are under oath.
Your attorney will think long and hard about voir dire. Depending on the types of questions used in voir dire, your attorney will try to weed out unfavorable jurors. Depending on the jurisdiction, each side will be given a predetermined number of challenges to dismiss an unfavorable juror. Depending on the jurisdiction, either the attorneys or the judge will voir dire the potential jurors. Every court is different, but the end result is always the same: Try to get the most favorable jurors for your case on the jury.
At this point, you should know your case inside out. You should know every single fact, every disputed fact, every sentence uttered by a witness and every document that will be entered into evidence. If you are working with a trial consultant or jury consultant, you should be working closely with them to help choose the best jurors from the pool.
You’ll want to have your voir dire questions handy. You will want to make a jury grid to be used during the trial, and you’ll want to assist the trial consultants as much as possible.
If your attorney is a seasoned trial attorney, he or she will know what questions will best weed out unsavory jurors. You can tell a lot about a person by asking some very benign questions. If you are asked to assist in preparing voir dire, I recommend these questions.
• What are your favorite television programs? For example, say one of the juror’s favorite programs is “Big Love.” You can deduce that this juror may be very liberal. If this person’s favorite program is “Hannity & Colmes,” he or she might not be so liberal.
• What radio station do you listen to?
• Do you have any bumper stickers on your car, and, if so, what are they? This is my favorite. If the potential juror has a bumper sticker for the local high school football team on his or her car, you can reasonably deduce that this person has a child in high school. If your case is about injury or harm to a high school-aged child, you may absolutely want this juror or absolutely not, depending on whether you are on the plaintiff’s side or the defense’s side.
Courtrooms, by nature, are scary places even for seasoned attorneys and paralegals. You should always make arrangements to visit the courtroom in advance of your trial. Check to see the technology set-up and how your demonstratives will work in this particular courtroom so that if you need to make adjustments you can well in advance of the trial. You’ll want to see how the courtroom is configured as far as tables and chairs and check to see where boxes and documents can be placed.
You will want to be dressed in comfortable clothing. There is nothing wrong with women wearing a business pants suit and flat shoes. The last thing you want is to be in a courtroom having to walk around and making “clicking” sounds with your shoes every time you move. It’s distracting. Men can wear pants and shirt and tie with a jacket that can come off. If you are the war room paralegal, you can wear any matching outfit, but be sure to keep a jacket in case the courtroom paralegal takes ill — you will be able to take over and look professional.
WORKING WITH YOUR ATTORNEY DURING TRIAL
Remember that really nice attorney you have worked with for years? He or she isn’t here anymore. He or she has been replaced with an evil, snappy, vile creature suffering from “Pretrial Syndrome.” Unfortunately, this syndrome will affect every attorney about to go to trial. Imagine being the quarterback getting ready to go into the Super Bowl. This is what your attorney is feeling. His team is great, his record is great and he has a good chance of winning this game. Confidence is high, but if the team loses, it’s always the quarterback’s fault. You will have to conjure up empathy that you didn’t know existed in you. You will have to exercise patience, and you will need to be confident in every move you make.
Hopefully, you have worked with this attorney long enough to know that he hates gel pens or prefers legal pads that are yellow or any number of silly things that make him who he is. Keep in mind that you are not just a paralegal anymore. You are now the lunch getter, the photocopier, the dry cleaner dropper-offer — you are anything that your attorney needs you to be.
WORKING WITH OPPOSING COUNSEL
You should always have a good rapport with opposing counsel, especially their paralegal, from the beginning of the case. It goes without saying that you should always be courteous and respectful to courtroom staff, regardless of what they are asking of you. Keep in mind that you should always refer to the judge as “Your Honor,” use your manners, smile a lot and be pleasant no matter what happens.
Use good judgment when speaking to anyone from the opposing side. Never speak about the case in the courtroom hallways, elevators, bathrooms or really anywhere. You never know who may be sitting or standing beside you. When you speak to your attorney during the trial, always do so in a whisper.
SURVIVING THE TRIAL
I don’t care where you work: The current economy dictates that there will be less staff to assist with trial. But planning will get you through trial. You’re going to be deprived of sleep. Figure out what helps you: maybe it’s a Red Bull or a double shot espresso. Sometimes going to sleep is just not an option. You’ll need to not only be awake, you’ll need to stay sharp and be working. Always bring a little bag of snacks and drinks.
Wear easy clothing — things that don’t need to be ironed and can be mixed and matched and spruced up with a shot of Febreeze.
Don’t leave the office without a back-up laptop and flash drives with every document loaded onto them.
If you are responsible for setting up a war room and making hotel accommodations, do this well in advance. Make sure your experts are comfortable and that their hotel and travel arrangements have been made well in advance.
Figure out how you are getting back and forth to the courthouse. No matter where you are or where the courthouse is, you have to get back and forth, maybe with boxes of documents or demonstratives. Figure out how long it will take.
Try to think of every possible thing that could go wrong and have a back-up plan. Let’s say your expert is flying in Monday for testimony Tuesday and there is a snowstorm in Nebraska that has flights delayed all over the globe. What would you do? Suppose lightning strikes the local Internet provider’s tower and there is no Internet service for 11 hours. What would you do? Let’s say you come down with the flu or measles or Ebola? What would you do?
There is a solution to every problem — you just need to think outside of the box and always remain calm. •
Kim Walker is a litigation paralegal with the firm of Berger & Montague. She has been a paralegal in Philadelphia for 27 years. Walker serves as the chairwoman of the technology committee of the Philadelphia Association of Paralegals, the chairwoman of the medical/legal committee of the Philadelphia Association of Paralegals and is a staff writer for the Philadelphia Forum.