Preparing for trial is a major feat and requires energy, strategy, knowledge, the ability to tell a good story and the persuasive power to guide the audience to one conclusion: the client’s version.
Every lawyer has a particular approach to trial, often with a list of items with deadlines to accomplish leading up to the morning of trial. Some attorneys begin this process 90 days out, while others have varying timetables, depending on the complexity of the case. Lawyers need to plan carefully to ensure that they satisfy all necessary procedural deadlines before trial.
The setting of the trial date or the pretrial conference triggers the countdown to trial. There are many details to manage, deadlines to consider and arrangements to make; leaving anything to the last minute is unwise. One important consideration, if counsel hasn’t already weighed it, is whether to request a jury trial.
Only the client can waive his constitutional right to a jury trial. In addition to conferring with and receiving confirmation from the client regarding the request for a jury trial, a lawyer must know how to request a jury trial and the deadline by which to do so. Additionally, the lawyer must ensure payment of all necessary fees in a timely manner. Texas Rule of Civil Procedure 217 governs jury trials.
Many firms have seasoned staff members who are familiar with the trial process and can be an extremely helpful resource. While it may be an attorney’s first trial, it may be a secretary’s tenth or a paralegal’s twentieth.
Additionally, there are a myriad of books and guides to help an attorney prepare for trial. Some firms have pretrial checklists that serve as a general guide and may include but are not limited to the following to-dos.
1. Check the discovery deadlines for the level of discovery requested, and ensure receipt and supplementation of all discovery responses.
2. Ensure filing of all required motions in limine, and verify that the judge has ruled on these. Motions in limine request the exclusion of potentially prejudicial information before the jury is exposed to it.
3. Give proper notices regarding evidence. These may include judicial notice, notice of intent to use criminal conviction to impeach a witness, notice of intent to use an affidavit to support the introduction of business records, etc.
4. Subpoena for trial all necessary witnesses — willing, unwilling and those who must justify their absences from work. It is best to subpoena all witnesses because it may be difficult to obtain a continuance based on the absence of a witness who the lawyer could have subpoenaed but did not.
5. Review pretrial rulings relating to evidentiary issues.
6. Evaluate the stipulations and agreements regarding evidentiary matters made or to be made with opposing counsel.
7. Decide the order in which witnesses will testify.
8. Contact and prepare witnesses. Ensure they know the time and location when and where they need to be present. Also discuss appropriate attire for court.
9. Examine and take notes on relevant depositions and discovery responses.
10. Plan cross-examination of opposing witnesses.
11. Gather and organize all exhibits in the order of introduction.
12. Obtain certificates of authenticity where needed.
13. If the client requested a jury trial, draft the jury charge. The Texas Pattern Jury Charges books are a helpful resource.
14. Research and update relevant case law.
15. Plan voir dire examination of prospective jurors.
16. Begin thinking of the opening statement. Some attorneys prepare this statement right before trial, while others do so after voir dire.
17. Read local rules.
18. Ensure that all staff and people pertinent to the case know where to be during the trial.
19. Delegate appropriate duties to staff members and associates.
20. Create a privilege log and a trial notebook.
The trial notebook is the vehicle through which the trial lawyer will reveal the client’s version of the suit. It is analogous to a football coach’s playbook.
At a minimum, the trial notebook should consist of the following: a contact sheet with essential information regarding the clients, witnesses and experts; a case overview; the docket control order; live and dispositive pleadings; motions in limine; the jury charge, the plaintiff’s and defendant’s answers to discovery; the witness list; the exhibit list; critical documents; the privilege log; legal research; the local rules; the main causes of action and elements for each on a separate sheet of paper; attorney notes; voir dire preparation; and opening and closing. It is a guiding tool throughout the trial process.
The trial lawyer must establish priorities and goals, understand that surprises can and often will happen, and be prepared for those unexpected situations. Counsel must anticipate the direction the case will take, who the audience may be, and how to relay the client’s story to the judge or jury.
There are many issues and questions to consider, but planning makes the entire process smoother, so that all that remains is what the lawyers will say in the courtroom. Attorneys’ styles differ; some rehearse their words many times before trial begins, while others have an idea but nothing concrete.
The skilled trial lawyer is able to adapt, execute skills learned, and advocate for the client while remaining calm under pressure. Each lawyer will develop a unique style. There is no one exact way to prepare (or to act), but lawyers learn something new with each trial.
Nancy J. Frachtman, owner and manager of the Law Office of Nancy Frachtman in Houston, received her B.A. from the University of Texas at Austin and her J.D. from Loyola Law School New Orleans. She serves on the advisory board of ITT Technical Institute’s School of Criminal Justice Paralegal Program, is a member of the Junior League of Houston and volunteers for the Houston Livestock Show and Rodeo.