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Our Paralegal’s Top 5 Priorities for Trial Preparation

In preparing for trial, these are the top 5 priorities of our paralegal.  Each priority is essential for our success at trial. Think of the trial as if it is a Broadway play. Every moment of the trial should be carefully scripted and planned.

If any of these steps are not performed, the trial will be much more difficult for our trial attorney and this can result in an adverse outcome for our client.

PRIORITY #1: Subpoenas for Medical and Employment Records

Your job is to ensure that our client’s medical and employment records have been subpoenaed at least 2-3 weeks prior to trial.  A subpoena for a municipal entity (e.g., school district, fire department, county, town or state) requires a “So-Ordered” Subpoena (a Subpoena that is signed by a Judge). All other subpoenas, e.g., a subpoena to a doctor or hospital, should be signed by an attorney.

Release Authorizations for Subpoenas: The subpoena for medical and employment records must be accompanied by a release authorization.  Employment and pension records require a release authorization that is different from an authorization for medical records. If you attach the incorrect release authorization to a subpoena, the provider will not provide the records to the Court.

Review Subpoenaed Records: On the Friday before the first day of trial, you should go to the courthouse to review the subpoenaed records at the clerk’s office, e.g., the Supreme Court Clerk’s office.  You should determine which subpoenaed records have been produced and confirm that the subpoenaed records have a certification.  You should keep a list on an Excel spreadsheet that confirms the records that have been produced at the Clerk’s office and whether they contain a certification.

Certification of the Records: A certification is a document signed by the medical records custodian of the hospital/doctor/employer that verifies that the copy of the records is complete and accurate. If the records are not accompanied by a certification, you should call the provider (hospital/doctor) and ask them to send a certification for the records immediatelyIn the absence of a certification, the records will not be admissible as a business record, pursuant to CPLR section 4518.

Why This is Important: The certified records provide a foundation for our experts’ opinions.  If a certified copy of the subpoenaed records is not in Court, there will be no foundation for our experts’ opinions. If this occurs, our experts may not be permitted to testify.

PRIORITY #2:Schedule the Testimony of Witnesses & Experts

As soon as a trial date is scheduled, you should contact our expert witnesses, lay witnesses and clients to confirm that they are available to testify at trial during the first week of the trial.  You should focus first on confirming the availability of our expert witnesses to testify at trial.

Our expert witnesses will typically be scheduled to testify on the 3rd, 4th and 5th days of the first week of trial.

Confirm Trial Testimony with a Letter: Once you confirm the availability of our experts to testify during the first week of the trial, you should confirm the date and time via email and a letter sent via 1st class mail. You should offer to make the travel and hotel arrangements for the expert witnesses.

Why This is Important: If you do not confirm a date for the experts’ trial testimony ONCE A TRIAL DATE HAS BEEN GIVEN BY THE COURT, their schedule will become full and they may not be available for trial testimony. If our experts are not available to testify at trial, our clients will lose their case.

PRIORITY #3:Premark Exhibits with the Court Reporter

The medical and employment records should be pre-marked as exhibits prior to the day of the trial.

Call the Supreme Court Clerk to inquire about name and contact information of the court reporter for the trial and then, call the court reporter to schedule a time to pre-mark exhibits for trial.  You should inform the Judge and defendants’ counsel that you will be pre-marking exhibits for trial.

Keep an Inventory of Exhibits: The plaintiff’s trial exhibits should be marked as exhibits by the court reporter beginning with “Plaintiff’s Exhibit 1” and continuing numerically.  You should keep an inventory of the trial exhibits, e.g., “Exhibit 1: Certified medical records from Albany Medical Center; Exhibit 2: Autopsy report”, etc.

Before the trial begins, you should ask the defendants’ attorneys to stipulate the subpoenaed records into evidence.  On the first day of the trial, our trial attorney will place a statement on the record in court that the records have been stipulated into evidence by counsel.

Why This is Important:  By pre-marking exhibits prior to trial, we are sending a message to opposing counsel and the Judge that we are organized, ready for trial and we won’t waste a minute of the court’s time. 

PRIORITY #4:Be Alert for Legal Memoranda from the Defendants’ Attorneys

During trial, defendants’ attorneys will frequently submit a trial memorandum or email to the Judge about evidentiary issues that arise during the trial. You need to be ready to respond IMMEDIATELY.

As soon as you become aware of an email from defendants’ attorneys to the Judge, notify our attorney ASAP, and forward the email to our attorney.  If the defendants’ attorneys cite a case in their email to the Court, retrieve a copy of the case, review it and make your own evaluation of the merit of the defendants’ legal position.

Your response to our attorney might read: 

“I was just notified that defendants’ attorneys sent an email to Judge Smith seeking to limit the trial testimony our expert. Defendants’ attorneys cited Smith v. Baker in support of their position. Click this link for a copy of this decision. I don’t believe this case applies based upon my legal research.” 

We should be ready to respond to the defendants’ legal arguments ASAP in writing.

Why This is Important: If our attorney is not familiar with the email sent by defendants’ attorneys to the Judge, he/she will not be prepared to respond and as a result, the defendants’ attorneys will likely prevail in their claim.

PRIORITY #5Keep a Schedule for Every Day of Trial

Write down on paper what you feel is needed to be done for each day. Itemize what each day will look like. There is no such thing as over-preparation for trial.

You should keep an Excel spreadsheet that lists the schedule for the trial testimony of our witnesses, e.g., Wednesday, June 8th: 9 a.m.: Dr. John Smith (cardiologist), 11 a.m.: Dr. Jane Doe (pathologist).

Why This is Important:  When you are prepared for each day of trial, your stress and anxiety levels will go down.



Image by David Mark from Pixabay

Leave a comment below telling me what surprised, inspired or taught you the most (I personally respond to every comment). And if you disagree with my take on running a personal injury law firm, or have a specific, actionable tip, I’d love to hear from you.
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