How to protect yourself from malpractice at trial while protecting your clients on appeal.

• Author: Winer, Michael

One of the surest ways for litigators to be sued is for their clients to witness an obvious error or omission at trial. Use of the technique addressed in this article substantially reduces the chances of this happening and protects their clients on appeal.

Many call this technique a trial brief, which is not the same as a trial notebook. It seems, though, that several law schools do not teach it and countless litigators are unaware of it, as are many firms, including some of the largest firms in Florida.

Essentially, the trial brief is a blueprint for trial preparation that is found in one document. It can easily be set up as a template on a computer and does not require special software. In its initial form, the trial brief simply lists general categories that competent practitioners must consider before trial. Reason suggests that the more time they have to meaningfully consider these factors, the more likely they will prevail at trial and on appeal, should there be one.

Properly used, the trial brief focuses litigators' attention on these factors early in ,the case. This is because the trial brief should first be used while drafting the initial pleadings. Thereafter, it is continually updated with new information and should even be relied upon in preparing closing argument, in drafting appellate submissions, and during oral argument. Parts of the trial brief can also be incorporated into pre-trial stipulations, trial memoranda, and proposed findings of fact and conclusions of law.

Using the trial brief greatly enhances the litigators' confidence at trial, because when trial begins, they know their case, and their opponent's case, inside out. They do not have to spend the last few days before trial frantically sorting things out. Rather, they know precisely what they have to do to prove their case and disprove their opponent's. Equally important, they have prepared for it.

This is not to say, though, that everything at trial will go as planned. However, having thoroughly prepared the case, and with a trial brief at your side during trial, you should have a better chance of handling the challenge than without it.

Another advantage of the trial brief is that it significantly advances the ability to recommend settlement before trial. This is the consequence of having competently analyzed the strengths and weaknesses of both yours and your opponent's cases well before trial.

The trial brief becomes especially invaluable when more than one...