Countdown to Trial
James W. Quinn and David J. Lender are partners with Weil, Gotshal & Manges LLP, who have both chaired the big firm's litigation department at different times. They have collaborated on a guide, Countdown to Trial, available on the Weil website here.
These are some key points made by Quinn and Lender that are good advice even if they are not entirely obvious to support teams with considerable trial experience.
· “no time is more critical for preparation of a successful jury trial in a complex case than the 30 days before trial commences—the countdown to trial . . . Trial lawyers have many things to do in that month. First and foremost, a massive litigation that may have millions of pages of documents and thousands of pages of deposition testimony must be distilled to a simple but thematic story for the jury. Paring down the case and focusing on only those facts and legal issues that really matter are crucial to a winning presentation. Among the host of topics a trial team must consider in the countdown to trial, three critical points should always be at the forefront:
Whether the issue is how many trial exhibits to have, which video deposition clips to use, or which witnesses to present and in what order, an effective trial team will present it all in a simple, consistent, and credible manner.”
In my own experience it's necessary to spend at least a month preparing for a trial. Keep in mind that the team is working towards preparing a very direct and clear message, and will not want to get lost in the weeds.
· “Nothing can damage your credibility more before a jury than waiting for exhibits to be located, especially as unexpected changes occur ‘on the fly’ during a cross-examination.”
It's crucial that there be no delay in presenting exhibits - whether on the laptop of the trial tech in the hot seat, or from the hard copy files that a paralegal has on hand in the courtroom. Stay focused on the witness examinations and make sure there is no digital lag or scrambling through files.
· “Put the most important exhibits in the first 25 slots of the trial exhibit list, assuming the court you are in will permit pre-marking of exhibits. Some counsel put their exhibits in some other order, such as chronological order, anticipated order of presentation, or alphabetical order. This is a mistake. A trial team will appear more organized if it is constantly referring back to exhibit 1 or 2, as opposed to exhibit 267 or 388”.
Different categories of documents may be assigned different number ranges on an exhibit list, but testimony may be elicited more smoothly if the attorneys, judge, and trial tech can easily recall 10 or 12 documents by exhibit number which are used for multiple witnesses.
· “There is nothing more damaging to a witness’s credibility than when he or she says one thing on the stand, and then a second later, the jury is shown a video of that witness saying exactly the opposite.”
· “The most powerful depositions played to the jury are single admission clips, where you identify who the witness is, why the witness is important, and then play the admission for the jury. Try to limit the video to 5 minutes if possible, and it should almost never be more than 15 minutes. Some counsel play hours and hours of videotaped deposition during trial. This tack is not persuasive, and such videos are largely ignored. It can also undermine your credibility before the jury.”
Don't turn down the lights and play back clips of deposition testimony without comment. Have a cheat sheet of video clips that can be pulled up as needed for impeachment.
· “In most cases, we believe that direct examinations should last no more than an hour (and preferably less) and focus on a handful of core issues. They need to have a beginning, which identifies who the witness is and why he or she is important to the story; a middle that lays out the core factual testimony; and an end that culminates in a key point. We have been involved in many trials in which an adversary uses too much time with a witness and fails to make crisp points during the examination, leaving the entire courtroom to wonder what points the witness was trying to make. These types of rambling exams are easy to undermine with a pointed cross-examination because the jury will easily understand the purpose of the cross, unlike the direct.”
· “Most complex cases involve presentations that use technology, such as Trial Director or Summation. Although generally it is best to have an associate who has lived with the case be responsible for running this technology during trial, it is critical that whoever is responsible for this task be familiar with the facts and core themes of the case. . . Many trial teams hire an outside consultant to be responsible for running the technology system in the courtroom. This is a huge mistake, unless the consultant becomes fully integrated into the trial team and learns the case as well as any other team member.”
I haven't seen many associates operating Trial Director, but Quinn and Lender make a fair point. Attorneys will often not take the time to learn how to coordinate with a trial tech, and need to recognize that they will not be able to pull documents by referring to them by other than the exhibit number.