Chapter 15 The Final Screenplay Final Trial Preparations, Witness Selection, and Exhibits

• Library: From the Trenches III: Pretrial Strategies for Success (ABA) (2018 Ed.)

Chapter 15 The Final Screenplay Final Trial Preparations, Witness Selection, and Exhibits Lee M. Hollis

While this chapter is at the end of the book, work on this phase should occur throughout the entire life of the case. By now, discovery is complete, dispositive motions have been filed, and you are ready for the final ramp up for trial. This chapter will take the practitioner through the steps necessary to make sure you are ready when it is show time.

Legal Issues

As you start final preparations, go back to the beginning. Review the clams that are remaining in the lawsuit, and the applicable defenses. You should make a list of every element of the claims and defenses, and who has the burden of proof. You do this to remind yourself and your entire team what the other side has to prove and what you have to prove. Use that list as a roadmap to decide what elements your opponent must prove that you can disprove, and what elements you must prove, so that you are ready to do so.

I recommend making a chart of each element and who has the burden of proof. If your opponent has the burden of proof, note the ways in which you plan to attack. If you have the burden of proof, note the witnesses and documents you will use to carry your burden. This approach will help make sure nothing falls through the cracks in the fog of war.

Distill Your Case Themes

Again, your themes should have been developed from the beginning of the case and fleshed out in discovery. Now is a good time to refine them. You need to adapt your themes to whatever rulings have been made along the way, to make sure that all themes are still relevant and admissible.

Once you have refined your themes, they, along with your chart of elements of proof, become the filter through which you decide what case to put on at trial. Sometimes lawyers get so close to a case and know every detail about it through years of discovery, that they have trouble telling a story that the jury can relate to and comprehend. You can know everything about your case, but if you cannot tell a clear, understandable, and persuasive story at trial, you are hurting your chance of winning.

So, as you consider what evidence you need to present at trial, and what lines of attack to pursue, think about whether they fit with your themes. If something doesn't fit with your theme, and you do not have to prove it as an element, or knock it out as an element of your opponent, let it fall by the wayside. This is a process whereby you focus on what is most important and persuasive.

I have been involved in cases where hundreds of thousands of pages of documents have been produced, and tens of thousands of pages of deposition testimony have been taken. But, usually, most cases come down to a few key witnesses and a few key documents. Those are the ones upon which you need to focus.

Trial Responsibilities

Once you have made your chart of elements of proof, and refined your themes, I recommend making a trial responsibilities chart. This chart will serve as your battle plan for trial, from beginning to end. You should list out all of the stages of the trial, the witnesses, and who is responsible for what. For example:

Pre-trial
Preparation of exhibits
Preparation of deposition excerpts
Motions to exclude or limit expert testimony
Trial brief
Pre-trial order
Proposed jury instructions
Motion for JML
Renewed motion for JML
Voir dire
Opening
Plaintiff's witnesses to cross-examine
Arguing motion for JML at the close of plaintiff's case
Defense witnesses
Arguing motion for JML at the close of all evidence
Closing

The preceding list will vary for each case, but the idea is to list out every step of the case and who is responsible for what, so everyone is prepared and singing off the same sheet of music. Again, this will minimize the risk of things falling through the cracks. Everyone will know what they are responsible for and then they can all focus on their work assignments in the days and weeks heading up to trial.

Motions in Limine

You should have been keeping track of evidence you would like to exclude as you have learned about such evidence through discovery. This can be in the form of documents, deposition testimony, or questions asked by opposing counsel that reveal arguments they may try to make. Many inexperienced trial lawyers file too many motions in limine that contain a lot of boilerplate evidentiary issues. Over the years, I have moved away from this approach. In many courts, motions in limine are taken up on the morning of trial when there is not much time. A laundry list of motions in limine irritates the judge and distracts the court from the important motions you really need to argue. I would not file motions in limine that are basically asking that the Rules of Evidence be followed. If the Rules are not followed, you can object or move for a mistrial at the appropriate time.

Motions in limine should be focused on truly damaging evidence that you want to keep out and you want to prevent the other side from mentioning during voir dire and opening statement. I have found that most judges will rule on the clearest cut motions in limine. However, they often will defer a final ruling until the evidence comes up at trial, so they can get a feel for the case and make a ruling in better context. However, judges will often tell the other side not to mention the evidence until the issue has been decided outside the presence of the jury. In this way...