Trial Preparation and Practice—how to Avoid the Most Common Pitfalls

• Publication year: 2021
• Author: The Hon. Kathleen Boriolo

Trial Preparation and Practice—How to Avoid the Most Common Pitfalls

The Hon. Kathleen Boriolo

Santa Rosa, California

Disclaimer: The opinions expressed in this article are the opinions of the author and are not the opinions of The State of California Department of Industrial Relations, Division of Workers' Compensation, or the Workers' Compensation Appeals Board.

As California attempts to emerge from the confines of the coronavirus, trials at the WCAB have continued at a steady pace, even with our virtual-only platform. Despite the high volume of trials, or perhaps because of it, compliance with procedural and evidentiary rules has seemingly diminished. This article arises from the most frequent mistakes I've observed in my courtroom in the last year. I wrote it to provide a brief overview of the important procedures to follow to avoid common pitfalls in trial, as a primer for new attorneys, and a refresher for more seasoned practitioners.

Before the Trial

How well a trial goes is largely measured by the extent of the parties' preparation, which should happen well before the day of trial.

The parties are encouraged to appear earlier than the scheduled time in order to conduct negotiations. (DWC Policy and Procedural Manual (2013) Trial Priorities, index no. 1.35.) In our virtual setting, this means the parties should have already communicated with each other to discuss potential settlement well before the 8:30 a.m. call on the judge's conference line.

If a settlement is unattainable, the parties should try to agree on as many outstanding issues as possible. Any agreement reached should be removed from the Issues page of the Pre-Trial Conference Statement and added to the Stipulations page. The precise wording of any remaining issues should be extremely clear and narrowly tailored in scope. To avoid disruption while on the record, the parties should agree on the exact phrasing of the issues beforehand.

In my experience, the most important use of time spent off the record before the trial is in the proper identification of exhibits. An offered exhibit should directly address the issues in dispute. In addition to sworn testimony presented in open hearing, the WCAB may receive as evidence:

• Reports of attending or examining physicians;
• Reports of special investigators the WCAB appointed to investigate and report on any scientific or medical question;
• Reports of employers, containing copies of timesheets, book accounts, reports, and other records properly...