chapter 16 sixteen trial preparation post discovery to pre-trial

Civil Litigation:Process and Procedures

Chapter SixteenTrial Preparation – Postdiscovery to Pretrial

Civil Litigation: Process and Procedures Goldman/Hughes

© 2009 Pearson Education, Upper Saddle River, NJ 07458.

All Rights Reserved.2

Pretrial Preparation Determined there is a valid cause of

action or defense Researched the legal claim Identified the necessary elements

Careful investigation & evaluation Perceived credibility of the client Gathered enough admissible evidence to

meet the burden of proof Made settlement efforts




Legal Issues Points of dispute on which law is

applicable and/or how the law should be applied Procedural issues – how the case is

conducted Substantive issues – does the law permit

recovery? Claims – allegations that all the

necessary facts exist to prove each element




Inadequate Claim Discovery reveals insufficient proof

of the claim The π’s attorney withdraws the claim Either attorney makes a summary

judgment motion (on claim or defense) Motion for judgment on the pleadings

Forces the attorneys to focus on the legal claims/defenses & elements




Summary Judgment States there are no material facts at

issue (uncontroverted facts) States the only remaining dispute is

one of law Argues that, according to the law,

their side should win Can resolve the whole case or

remove one or more issues from the trial




Conflicting Facts




Stipulations Like a request for admissions,

stipulations remove agreed-upon issues from the trial

Facts that have been stipulated to are presented as uncontested to the trier of fact

Reduces court time & costs of litigation

Demonstrates the ability to cooperate, and underscores the remaining issues in controversy




Trial Memorandum I A lawyer’s summary of the case, prepared

as a guide for the judge, pursuant to court rule or the judge’s preference.




Elements of a Trial Memorandum I

Jurisdiction, facts & contentions (identifies disputed facts), legal issues & authority

Description of damages, proof of settlement authority

Identity/contact information of witnesses & qualifications, summary of reports of expert witnesses

Discovery issues, medical reports, desired stipulations




Elements of a Trial Memorandum II

Estimated length of trial

Schedule of proposed, numbered exhibits

Special verdict questions




A More Formal Version Signed by both attorneys, to become

a court order May also include

Questions for voir dire Proposed jury instructions Evidentiary & equipment issues Deposition testimony to be used in court

Exact content varies from court to court




Trial Brief Prepared for court Sets forth a legal argument &

authority Will usually address

Substantive law issues (claims or defenses)

Procedural issues, e.g., Evidentiary issues Jury instructions




Duty of Candor A lawyer shall not knowingly

Make a false statement of fact or law Offer false evidence

Must also disclose a controlling case or statute, even if It is adverse to that side’s position The other side failed to discover it




Costs of Litigation Parties are generally responsible for the

cost of litigation, win or lose Exceptions include

Statutory authority allows for a transfer (e.g., counsel fees awarded in a divorce, some civil rights actions)

Costs awarded in enforcing a court order Costs awarded in defending a frivolous claim By agreement of the parties




Contingency Fee Arrangement Makes litigation possible for clients

who cannot muster a retainer for an hourly charge

The percentage of the recovered amount pays for the time that would otherwise be billed

The client remains responsible for the expenses of litigation, win or lose




Cost/Benefit Analysis The probability of winning the case The amount of money to be won or lost Whether the Δ is judgment-proof Lawyers’ fees & other costs Loss of time by personnel (business-party) Long-term effects on relationships & reputation Availability & amount of prejudgment interest Aggravation & psychological costs Unpredictability of a trier of fact or law




Client and Witness Preparation

Issues related to personal style that may affect credibility Appropriate attire, hair, make-up Appropriate demeanor

Testimony Not conversational, under oath One speaker at a time (for recording ease) Stop at an objection & wait until

instructed to answer




Questions Prepare the witness or party for the

type of questions to expect Leading or narrative Review chronology of events Review prior statements Perhaps practice responding to a hostile

examination, although “over-rehearsed” adversely affects credibility

Try to practice in the courtroom, if possible




Pretrial Instructions Subpoena all witnesses

Hostile – puts the power of the court behind the request to appear

Friendly – makes it easier to make work arrangements, and enhances credibility (appearance is pursuant to a court order)

Special arrangements may need to be made for witnesses who cannot appear at the outset & wait to be called much later




Witnesses “On-Call” Usually possible in a very long trial Witness must be near enough to

appear on short notice Need court permission Must be able to contact the witness

quickly if the trial proceeds at an unexpected pace




Subpoena Duces Tecum




Preparation of Exhibits Organize documentary evidence

May need to produce paper copies, marked & numbered

May be using electronic material, with courtroom presentation equipment

Prepare demonstrative evidence Photographs, charts, diagrams May be prepared in-house or by outside

services May be posters, models, or electronic

presentations




Effective Demonstrative Evidence Can be

PowerPoint or other electronic presentation

Overhead projection of transparencies or by document camera

Posters on easels Should be

Large enough to be seen Acceptable as an accurate

representation




Jury Investigation Begins with determining the profile of

an ideal, or sympathetic, juror for each case

Jury pool is identified & reviewed Online research

Public records News archives, professional sites, etc. Previous court involvement (π or Δ, liens,

etc.) Jury questionnaire Voir dire




Extraordinary Preparation Only cost-effective in a trial with a

very large judgment at stake (high damages)

Mock jury trial Create a mock jury with the jury profile Present the case Jury critiques the testimony,

presentation Helps fine-tune the presentation &

validate the jury profile




Trial Notebook Hard copy (binders) or electronic

(litigation support software) Contents vary in each case, but

generally include Copies of legal authority, jury instructions Sections for each witness Outlines for opening, closing, questions Exhibits, and how they will be authenticated Copies of discovery document to be used for

impeachment (prior sworn statements)




Continuances Once set, trials may be postponed if

Judge or an attorney is not available Due to another trial running long Serious illness

At the discretion of the court, but usually granted for good cause

If the attorney is “attached” or the trial is set with a “date certain,” continuances will probably not be granted




Sanctions

chapter 16 sixteen trial preparation post discovery to pre-trial

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