Getting organized for trial

Use the jury instructions as the basis for your trial planning

2014 February

In the months leading up to trial I am already beginning to think about witness order, and about how and through whom I will introduce my exhibits. This process actually begins with the very basics – the jury instructions. After these are reviewed, I determine my story and how I want to tell it at trial: the witness order, the documents and other exhibits I need in evidence, and the attack plan for accomplishing these goals.

The basics

It is easy advice to give and not always easy to follow – make sure you are seeking out and discovering the evidence you need early in litigation. This is only done by taking a look at the jury instructions. If I am doing things right, I have thought about instructions when I signed the client up, when I drafted my complaint, and when I was drafting and reviewing discovery responses. So once I begin my final trial preparation, these instructions should be handy. You should draft an outline based upon the instructions and organize your evidence and witnesses according to the instructions.

Using the jury instructions, I organize evidence and witnesses into two categories (1) Liability and (2) Damages. This will shape how and when you put the evidence and witnesses in at trial. Now some witnesses may fall into both categories, particularly your client. I personally like to tell my story in a way that makes chronological sense. I like to begin with the incident which brought us there in the first place – e.g., the car crash, the dog bite, the medical procedure, etc. Juries want to hear a story. If things are not presented in a chronological order, you run the risk of confusing the jury, which will not help. Therefore, I put my liability witnesses on first, followed by my damages witnesses.

The David Ball approach

Witness order is important. You want to keep the jury interested and thinking about the fault of the defendant from the very beginning of your case. Many jury consultants and trial attorneys have filled chapters in books regarding advice on this point. I tend to follow the “Ball Approach” described by David Ball in chapter 7 of his invaluable book, David Ball on Damages: A Plaintiff’s Attorney’s Guide for Personal Injury and Wrongful Death Cases. Ball points out that harm and money should be discussed throughout your case-in-chief, this way the jury is always thinking about money during your case. While I did mention above your witnesses should be separated into liability and damages witnesses, this is consistent with this approach. Each of the liability witnesses is, on some level, able to discuss harm. For instance, a witness to the accident might be your first witness at trial. This individual can speak to the facts of the accident, what the defendant did wrong (i.e., liability), but he or she can also discuss harm – the severity of the impact.

Ball further suggests that your first witness should be purely about what the defendant did wrong. I am a firm believer in this approach. This could be a third-party witness to the car crash or possibly the defendant. I like a police officer first in line. Police are generally viewed as trustworthy witnesses. Depending upon the case, these witnesses are almost universally shorter witnesses at trial as well. The jury should understand from the very beginning that the defendant’s conduct is the conduct that they are judging – not the plaintiff’s conduct. If you put your client on first, the jury will be hearing the case from your client’s perspective first. Additionally, you will have to talk about all of your client’s damages at the beginning of trial. Your client would then be on the stand for a while on cross-examination where the defendant’s attorney will be continuously calling into question your client’s credibility. I prefer my first witness to have a short cross; one that can do little or no damage to your case. You want to have a good first day of trial.

This is beneficial for a number of reasons. First, your jury does not want to be there. There are a million other things that they would rather be doing than sitting in this jury box and listening to someone’s troubles. If you have a long first witness, like your client, you run the risk of having the jurors believing the trial is going to be a lot longer than it will ultimately be. This could cause them to tune out or lose interest early. Second, if your first witness has a long cross, you run the risk of you and your client losing credibility with the jury. Ball suggests that your first witness should be cross-proof. I am not sure there is a witness who is cross-proof, but a defendant or a third-party witness to the accident comes about as close to this as possible. I prefer a third-party witness whenever possible. This person has no stake in the litigation. They are just relaying what they saw.

Ultimately I begin whenever possible with police, followed by other third-party witnesses, followed by the defendant. After this, I like to move on with a pure liability expert, like an accident-reconstructionist, or other expert discussing the fault of the defendant’s conduct based upon the facts that the jury just heard. At this point, I have gained the jury’s trust and have given them short witnesses. They have just heard about a bad car crash or vicious dog bite. I believe it is a good time to discuss fault.

The client’s direct examination

I like to place my client’s direct examination after my liability expert but before any causation expert (biomechanical engineer) or a purely damages expert (treating doctor). I will end any trial with folks who can discuss the plaintiff’s damages purely from the outside – that is, not a doctor. I like finishing with a spouse or friends of the plaintiff who can discuss the changes in the plaintiff’s life since the harm he or she sustained. This is a more powerful way to end a trial, and the jury is thinking about harm and losses. Just as much as needing to start strong, you need to finish strong. The last thing you want is to finish your case-in-chief with a boring or bad witness, just before the defendant’s attorney is about to start the defense case.

Another thing to consider in witness order is witness availability. Some judges are also very strict about down time for a jury. That is, they want your witnesses to go until the scheduled breaks. The last thing a judge wants to hear at 3:00 in the afternoon is that you have run out of witnesses. I have heard judges say that they will make you rest your case if this happens. Keep your witness schedule handy. Make sure you have telephone numbers, subpoenas and on-call letters handy. There are times during trial that I have one or more witnesses waiting while I have a witness on the stand.

Preparing your witnesses

Yes, you need to be preparing all of your witnesses.  In the past, I have had doctors or other witnesses testify so horribly that I was uncomfortable. Do not assume just because you have sent your expert everything they have requested and everything you need them to review that they have, indeed, looked at it. Also do not assume that because your expert has testified numerous times at trial and deposition they will therefore be fine on the stand. You need to personally schedule appointments and sit down with witnesses before trial. In most cases this means “in person,” particularly with treating doctors.

At times, we all have our treating doctors testify as expert witnesses, we give them medical billing and prior treatment records so that their opinions are fully developed and not vulnerable on cross examination. By way of example, your client may have had prior history of complaints to the same part of his/her body as are being claimed in the subject incident. We have all experienced locating prior medical records with a complaint of neck pain or low-back pain, for instance. This needs to be discussed in their direct examination and explained in a way that your client does not lose credibility. Recently in trial, I knew that my client had seen a chiropractor from time to time in the past before a rather horrific car crash that was the subject of our case. I asked my doctor on direct about prior neck or back complaints, and to my horror, my expert stated that there were not any! Well, I had discussed this with my expert; he had the records; yet, he testified there were no prior complaints to neck and back. At this point I had to walk him through the past medical records and gently impeached him. This is not a position you want to be in during trial.

You should also be preparing your lay witnesses, again in person. Your lay witnesses may need a little more time to prepare. Lay witnesses can be some of the most powerful witnesses at trial. They are not slick; they are nervous. This all lends credibility to them. But, you do not want them so nervous that they do not testify well. Use your instincts when preparing these witnesses, if you do not think they will do well, don’t put them on the stand. Further, keep in mind that your conversations with these witnesses are not privileged. I always tell these witnesses the most important thing they can do is tell the truth. I say it at the beginning of our meeting, then when we finish our meeting. I say this every time we meet. If the defendant’s attorney asks about conversations with me, they will inevitably respond: “The attorney told me to tell the truth.”

What is more, for your client, your lay witnesses, and experts, make sure that they have a copy of their deposition and for your client, their discovery responses. Additionally, if there are prior recorded statements, either from an insurance company or police report, make sure they have those statements as well. You need to make sure that there are no inconsistencies in their testimony at trial with what they have said before. It is always uncomfortable when on cross-examination, a prior inconsistent statement is read to the jury.

In addition, when you prepare your lay witnesses in person, get on-call letters signed. This is an agreement that they do not have to show up to court when subpoenaed. But, they will be “on call.” You will notify those witnesses within 12 to 24 hours in advance of when they need to appear. This makes for a more friendly witness. Further, make sure you have cell phone numbers for all of your witnesses.

Bottom line, never believe that a witness does not need much preparation. There are no shortcuts.

Witness outlines and gathering evidence

Early in my career I found myself stumbling and fumbling around to find the exhibit I wanted. I was worried how this looked to a jury. I am a firm believer in making things easy for myself at trial. I want to find exhibits fast so there is no interruption in the flow of the testimony where I try to find something. I want to appear polished and prepared. In this regard, I recommend a trial notebook with tabs for each witness. Behind the outline, I place a copy of each exhibit that will be introduced through that witness, and any prior testimony (depositions and statements). This means that in advance of making your witness outline, you should be thinking about what exhibit should go into evidence with which witness. Make sure you are using the appropriate witness for each item of evidence. Some evidence may be discussed through multiple witnesses.

For friendly witnesses, the outline should be just this – an outline. This should not be questions and answers. If you draft complete questions, you will run the risk of not listening to the answers. If you don’t hear the answers, you will not ask the appropriate follow-up questions. I also put thumbnails of the exhibits with exhibit number into the outline itself for each exhibit I am introducing through the witnesses. Then I will not only know what the exhibit number is, I will also know what the exhibit looks like. This will insure that I grab the correct exhibit when I am marking and admitting it at trial. This cuts down on the fumbling for the right exhibit.

Additionally, in my outline I anticipate arguments to exhibits being introduced into evidence. There are many non-controversial exhibits that will come in without objection. You need to worry about the ones you need in evidence that are controversial. If you have already thought about this and have your arguments ready, then you are going to be well prepared if the judge wants to hear oral argument at side bar outside the presence of the jury.

For your cross-examination outlines, I actually do type out my questions and answers I anticipate based upon responses to discovery responses, deposition testimony and statements. You should also include page and line questions and answers from the witness’s depositions or statements. I actually go one step further and paste the questions and answers into my outline so I am clear what the answer should be. You will be ready to impeach with this preparation.

You should also think about how each exhibit will be shown to a jury and when. What I mean here is will you be using an Elmo (document camera)? Do you want to blow up an exhibit? Will you be using charts, diagrams or a timeline?

By the time I am finished with my trial binders, behind each witness tab I will find my outline, followed by my exhibits, followed by deposition mini-transcripts.

Bench briefs or pocket briefs

There are some cases where we all have particular pieces of controversial evidence that we know we don’t want into evidence that the defense wants in or that we want in that the defense does not. Sometimes this evidence will not be the subject of a motion in limine. When it is not, on important evidence, I like to prepare a brief setting forth my position on the admissibility of the evidence. If things don’t go your way, you have a better record on appeal.

Conclusion

In the end, being organized and not procrastinating will save you in trial. I am not suggesting that you will not be making last minute changes, staying up late and shifting around your schedule. However, once you are prepared you can handle all of the other inevitable curve balls that will be tossed your way.