by Brian Mitchell and Clark Donat
Your first trial as a new associate can be a daunting task. Although you are likely expected to understand all of the facts and legal issues in the case (which you may or may not have been involved with from its beginning), the reality is that you’re probably just trying to figure out where the courtroom is, in addition to everything else that is being dumped on your plate. While the main key to preparing for trial is hard work and preparation, these tips should help you to have a successful first trial experience, regardless of whether you ultimately win or lose the case:
Know the Details of Your Case
Knowledge of the details gives you a valuable position on the trial team and an opportunity to show your worth. Do not assume that others on your trial team have picked up on the details in the same way you have. Read the deposition transcripts, discovery responses, pleadings, and trial exhibits. You will quickly become the go-to person who can easily pull and point to impeachment evidence at trial, assist in preparing your own witnesses, and develop nuances in trial strategy.
Know the Rules
Be knowledgeable of the Rules of Civil Procedure, the Rules of Evidence, and the Local Rules for the County or District in which you are appearing. Also, know the judge’s specific rules if he or she has them (check the Court’s website to determine if they do, as many judges have specific guidelines/deadlines or standard orders for pretrial matters, in particular). Keep a copy of these rules with you at all times. As the newest associate, you will likely be responsible for ensuring that each filing is in compliance with the applicable rules.
Take a Seat in the Box
A great way to truly understand, in real time, the way that your judge conducts his or her trials, especially voir dire, is to watch a trial in the weeks leading up to your own setting. Typically, judges are glad to see a young associate taking initiative and the judge will often allow you to sit, observe, and take notes during voir dire from a seat in the jury box. In addition to learning how the judge handles things like voir dire, time allocations, objections, challenges, jury questionnaires, etc., it provides you with a personal introduction so that the judge remembers YOU when you appear for your own trial. You can also pick up a few good tips or themes from a more seasoned lawyer while watching (or things to avoid from mistakes made by other lawyers).
Get the Evidence Admitted
Know how to get your evidence admitted at trial. Many times, noncontroversial exhibits are pre-admitted with the agreement of the parties, so attempt to get an agreement from opposing counsel, if possible. When that is not available, figure out which witnesses will be necessary to authenticate each exhibit. Also, think through potential objections to the admission of each exhibit so that you are prepared to effectively argue why the exhibit should be admitted (this often happens in front of the jury, which allows you the opportunity to demonstrate your superior understanding of the law and develop credibility).
Know How to Use Courtroom Technology
An item that is often overlooked until it is needed is an understanding of the audio/visual equipment in the courtroom. PowerPoints, demonstratives, and video depositions can be extremely effective, but tech-related delays and blunders will only annoy and confuse. Be sure to visit the courtroom, set up early, and ensure that everything is functioning properly each day of the trial.
Know When to Shut Up
Oftentimes, lawyers simply cannot help themselves. They continue to talk when they’ve already won. This can happen during a hearing, when you insist on having the last word when it’s unnecessary (which can annoy the judge who has already made up his or her mind), or when you present superfluous evidence at trial through repetitive witnesses (which can annoy the jury).
Reference the Jury Charge
While it is subject to change during trial depending on the admission of evidence or bench rulings, be sure that you develop your case around the ultimate questions the jury will be asked to answer in the charge. This includes the elements of your own claims, as well as affirmative defenses and instructions that have been asserted by each of the parties. Thus, you need to draft an adequate jury charge so that it’s ready before the trial starts.