22.3 Preparing for Trial

• Library: Virginia Construction Law Deskbook (Virginia CLE) (2019 Ed.)

22.3 PREPARING FOR TRIAL

22.301 Planning the Presentation.

A. In General. As noted previously, construction litigation is one of the most document-intensive and fact-intensive forms of trial practice. It is much easier to prepare for trial if the case has been approached in anticipation of litigation from the beginning. Once all the evidence has been gathered and a document organization system has been established, the

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attorney must determine how best to present it to the finder of fact. ²³ It should be presented in a manner best suited to reinforce the identified themes of the case. Attorneys trying construction cases who are not familiar with the construction industry often rely too much on the witnesses identified by the client to make the case. It is up to the attorney to determine how to make the case and then to choose the witnesses as part of a comprehensive strategic process. Knowing what has to be proved and how the attorney intends to prove it, coupled with interviews with each potential witness, is fundamental to determining which witness to call for what purpose. The attorney must identify not only what needs to be proved and how it is going to be proved, but also which documents apply to which issues and how the testimony of each witness fits into achieving the goal.

B. Efficient Presentation. The fact-intensive nature of a construction case makes it difficult to maintain the attention of the audience, whether it be a judge, jury, arbitrator, or arbitration panel. The typical attention span of an audience is short. The goal is to prepare the presentation so that it is crisp and efficient, developing a rhythm or flow to the testimony of each witness. Questions should be kept short and understandable, and witnesses should be prepared to keep their answers short and understandable. Narrative responses on occasion may be appropriate, but guiding the narrative by periodic questions that do not interrupt the flow keeps the testimony more conversational and engaging for the court or jury. Flipping the "on" switch and letting the witness ramble along with a narrative likely will lead to sustained objections, and also may lose the fact-finder's attention. Direct testimony should be prepared in advance, with the exhibits to be used for each witness available and arranged in order so that the attorney can avoid distracted fumbling through a disorganized stack of documents. Having the questions prepared in advance spares the attorney the uncomfortable silence or uncertainty that occurs while trying to formulate a question mentally or, worse, out loud. Those pre-prepared questions should not, however, be a script written in stone. The attorney and witness must engage in what appears to be a natural conversation. Further, regardless of the attorney's level of preparation, witnesses regularly give the unexpected response, and at times there may be developments in the case since the attorney was last permitted to, or had the opportunity to, prepare the witness. The attorney must be able to rephrase a question, modify an approach, skip over a topic, or make other adjustments not readily noticeable

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to the fact-finder, without confusing the witness. The better the attorney knows the case and the capabilities of the witness, the easier that is to do.

Potential objections should be anticipated and questions should be framed to minimize the likelihood of interruptions by objections. Anticipating an objection includes having an argument prepared in response to the objection. For example, if there is a hearsay element to an exhibit, the attorney should be ready to respond to an objection with the applicable hearsay exception and authorities. A quick response and favorable ruling to an objection creates a positive impression, which may reduce the likelihood of further questionable objections. Particularly before a jury, frequent objections that are regularly overruled can have a long-term negative impact on the objecting attorney's case. Knowing the case and the applicable law also permits the attorney to respond quickly to questions posed by the court or arbitrator, again creating a favorable impression for the strength of the position being asserted.

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