§26.02 Trial Preparation

• Jurisdiction: Washington

§ 26.02 TRIAL PREPARATION

[1] Developing a Theory of the Case

A theory of the case is a unifying approach in an effort to create a logical, cohesive, compelling, and persuasive presentation to the court. See generally Thomas A. Mauet, FUNDAMENTALS OF TRIAL TECHNIQUES § 1.4 at 9 (1988). Said another way, it is the attorney's position and approach to all the undisputed and disputed evidence that will be presented at trial. The selection of exhibits, selection of witnesses, drafting of the trial brief, the opening statement, direct and cross-examination of witnesses, and closing argument should all have a logical flow and be consistent from beginning to end based on the theory of the case.

[2] Organization of Trial Materials

Once you have been retained by the client, you will begin to accumulate an extensive collection of paperwork. Over the course of the representation, it is important that your office file be organized, divided, and indexed so you have easy access to information that you will want to present at trial. There is not one "right way" to organize a case file; each attorney typically has his or her own system for organization. It is important to organize the file in such a way that you can easily assemble the materials for trial. Even if the case is one that you expect to settle, those cases often seem to end up in trial, so your system should be the same for each new file in the office regardless of whether you expect a case to go to trial or to settle.

Trial materials need to be organized in a way that is most efficient when you are in the courtroom. Attorneys have different methods and, each attorney can develop his or her own method, but the key is that the organization provides quick and easy access to necessary materials during the trial so you not only appear prepared, confident, and professional to the court and to the client, but also prepared and ready for any situation that potentially might occur during trial. There are two common methods that have been used to prepare for trial—one is the index or divider method, and the other is the trial notebook.

The index or divider method has a file folder created for each subject (e.g., direct examination, cross-examination etc.). When that issue comes up in the course of the trial, the attorney reaches for the relevant file folder and all materials should be organized and easy to follow in that folder.

With the trial notebook method, a three-ring binder contains a divider for each subject. In most cases, the binder with dividers will contain the outlines for the legal issue, opening statements, direct and cross-examination (with a subdivider for each witness), closing argument, and important or key statutes or cases. If there are pretrial matters that are expected to be addressed before the trial begins, there should be a divider for this as well. It is also helpful to have an exhibit list (prepared in advance with known exhibits for each party) on which you can indicate if an exhibit is admitted into evidence or rejected. A copy of the trial briefs of both parties should be included, as well as any documents the court requires the parties to complete, such as a joint statement of evidence.

Typically, with either method, the materials are organized in chronological order starting with any pretrial motions that are to be argued, opening statements, direct and cross-examination, and closing argument. It is helpful to have any legal issues that you believe opposing counsel may raise already briefed, or at least have key statutes or cases readily available for reference, in the notebook or files. If the trial notebook is being used, it provides the advantage of being able to take home one large binder with an outline of the entire trial and know that all of the materials are conveniently located in that one binder.

Practice Tip: Have a complete set of exhibits available (either hard copy or saved electronically) wherever you may be when you are preparing for the next court day, so that you will not have to take copies of all the exhibits with you to prepare. Then, if you take the trial notebook or file folders with you when you leave court, you can easily prepare for the next day without having to remove large exhibit books from the courtroom.

[3] Review of Requested Relief/Proposed Findings

When preparing a case for trial, it is important that the theory of the case focus on the client's requests. To do this, you must have a thorough understanding of what the client would like the court to decide.

Practice Tip: Although many clients come to an attorney with unrealistic expectations of what relief is available to them, by the time settlement discussions and/or trial are occurring, the client should have been "educated" as to what a realistic result will be. If you present a case that is not realistic because that is what a client wants, you and the client may both lose credibility in the eyes of the judge.

In most counties in Washington, by the time final preparation for trial begins, there has been mediation or direct negotiation with the other party and an exchange of settlement proposals. You should have a good understanding of the position of the other party and be prepared to not only present your client's case, but also be prepared to respond to issues raised by the other party.

Many courts will request that the attorney prepare proposed final papers in advance of trial. Washington pattern forms...