Chapter 12

• Jurisdiction: United States

Chapter 12

How to Create Trial Modules

I’m not concerned about all hell breaking loose, but that a PART of hell will break loose . . . it’ll be much harder to detect.

—George Carlin, comedian

Overview

A trial module is a self-contained written analysis that presents and discusses the key issues to be resolved at trial, the law/jury instructions, the constructive and destructive proof points, the potential evidentiary challenges, and how to navigate around those challenges. As with all important work product, the trial module should be written so that it is understandable to any team member—the reader should immediately understand what evidence must be admitted or precluded to prevail on each issue.

Trial modules are the foundational planning documents relied on to generate the opening statement, witness-examination outlines, and closing argument. Every constructive and destructive proof point to establish must be in the trial modules. Because the modules list every witness and trial exhibit for every issue, the modules serve as a good checklist for creating trial-exhibit and witness lists. Properly prepared modules also facilitate creating direct- and cross-examination outlines because all of the necessary constructive and destructive proof points are listed in the modules on a witness-by-witness basis. (The order, flow, and punch to the proof points to be established through witness examination are decided by and dependent on the skill of the examining lawyer.)

This chapter provides a method for creating trial modules. It also explains how the method was applied to a complex patent infringement case that went to trial.

When All Hell Breaks Loose: Trial!

For most complex cases, the trial team typically arrives at the trial venue several days or even a week or more before the trial, to set up and begin the final trial preparation. The time just before trial is crazy and frenetic. The judge may have hearings scheduled to resolve in limine motions, rule on objections, or resolve other issues—meaning you and key team members are in court and not back in the war room preparing witness outlines. Key expert or fact witnesses may have also arrived early for final prep sessions. These eleventh-hour preparations consume a lot of time and energy. There is little time to engage in a thoughtful, uninterrupted analysis of the proof points.

Then the trial starts . . . and all hell breaks loose!

Once the trial starts, the litigation team members will have no time for any substantive preparation. Most trial days go long and end late. By the time the trial team gets back to the office or war room, it’s 5:00 or 6:00 p.m. Following a quick team meeting, it’s now around 6:30 or 7:00 p.m.—with still a lot left to do to get ready for the next day, like preparing witnesses one final time, responding to motions, and dealing with evidence objections. Yes, lawyers can pull all-nighters or work until 3:00 a.m., but they will be walking zombies the next day in court. If you are part of the in-court trial team trying to function on this kind of schedule and think you can prepare a meaningful direct- or cross-examination outline after a long trial day, fuhgeddaboudit. You won’t have time and, besides, you will be exhausted.

Except for motions your team gets hit with during trial, everything to be presented during trial must be completed well before the trial starts and before the team arrives at the trial venue. This means, at a minimum, that the opening statement, all witness examination outlines, bench memos on likely evidentiary fights, and ideally a detailed outline for the closing argument must be completed before the team arrives at the trial venue. The starting point for composing these items is the creation of trial modules.

The Steps/Methodology for Creating Trial Modules

The following seven steps provide a sound method for creating trial modules.

1. Hold a team meeting to finalize the trial issues and the modules needed.

Before the team compiles the trial modules, the director should hold a team meeting. At the meeting, the team should discuss key trial issues and determine the final list of issues. Having solidified the issues list, then determine the modules to prepare. There should be a module for every key issue and additional modules for important sub-issues. (I have worked on complex cases where we prepared over twenty trial modules for the key and sub-issues.)

The trial modules should cover the same key issues that the team initially identified and used from the outset of the case. (See Chapter 10: How to Ask and Answer the Key Questions). While that’s a great goal to shoot for, sometimes you will need to adapt and modify...