The Best Way to Prepare for Trial
Many (if not most) trial lawyers begin serious preparation for trial in the week, if not days, before trial. When you do this, your clients and witnesses won’t be prepared to testify at trial and you’ll face legal and evidentiary issues that you’re not prepared for. This is a recipe for disaster.
If the old school way doesn’t work, what is the best way to prepare for trial?
The Magic of the 12 Week Year
At least 12 weeks before trial, sit down with your team to document everything that needs to be done in the next 12 weeks to prepare for trial. Brainstorm and collaborate with your team—there are no bad ideas.
During the 12 Week Year Meeting, have a team member document:
- Every task that needs to get done,
- Assign a week for each task (week #1 through week #12), and
- Identify the person who will be responsible for every task.
With a 12 Week Plan, there will be no uncertainty as to what must be done, when it has to get done and who is going to do what.
Step #1: Drafting the 12 Week Year Plan
Every 12 Week Plan will be different, but there are a few tasks that are necessary for almost every trial. Here are a few of our favorites:
- Confirm dates and time for the trial testimony of the expert witnesses (SECRETARY)
- Schedule focus group for at least 2 weeks before trial (SECRETARY)
- Schedule meeting with expert witnesses (including treating physicians), clients and lay witnesses to prepare for their trial testimony (SECRETARY)
- Contact treating doctors to request updated medical records (SECRETARY)
- Call our client to get an update about medical treatment (SECRETARY/PARALEGAL)
- Draft subpoenas duces tecum for medical and employment records (PARALEGAL)
- Mail their deposition transcripts to our clients (SECRETARY)
- Confirm with expert witnesses that they possess entire case file* (PARALEGAL)
- Determine need for imaging films (e.g., MRI, CT, X-ray) at trial (PARALEGAL/LAWYER)
- Draft Affirmation/Affidavit for radiologist (CPLR section 4532-a) to authenticate imaging films for trial (PARALEGAL)
- Contact Trial Judge’s secretary to check for Judge’s “Trial Rules” (SECRETARY)
- Serve subpoenas duces tecum for medical and employment records (PARALEGAL)
- Schedule videographer for playback of videotape deposition at trial (SECRETARY)
- Schedule meeting with trial/jury consultant (SECRETARY)
- Contact expert witnesses to establish budget for fees (SECRETARY/PARALEGAL)
- Review defendants’ expert response to identify name of their expert witness (PARALEGAL)
- Call medical illustrator to discuss courtroom exhibits (LAWYER)
- Review Trial Judge’s “Trial Rules” (PARALEGAL/LAWYER)(*the “Trial Rules” differ for almost every trial judge)
- Schedule travel (e.g., hotel and airfare) of expert witnesses (SECRETARY)
- Conduct background search of defendants’ expert witnesses, including transcripts of past testimony and published articles/books (PARALEGAL)
- Determine need to serve a supplemental verified bill of particulars (for updated medical treatment)(PARALEGAL/LAWYER)
- Draft timeline of medical treatment for courtroom exhibit (LAWYER)
- Edit the defendants’ deposition transcript(s) for playback during trial (LAWYER)
- Draft motion in limine for the danger points in your case, e.g., client’s criminal record (LAWYER)
- Meet with trial/jury consultant (LAWYER)
- Send the edited deposition transcripts to the video editor for video editing (SECRETARY/PARALEGAL)
- Draft supplemental verified bill of particulars (with updated medical treatment)(PARALEGAL)
- Serve supplemental verified bill of particulars upon defendants’ counsel (PARALEGAL)(*must be done at least 30 days before trial)
- Serve updated medical records upon defendants’ counsel (SECRETARY)
- Draft list of trial exhibits (PARALEGAL)
- Conduct focus group (LAWYER)
- Highlight in yellow the portions of the defendants’ deposition transcripts that will be played back via videotape during the trial (SECRETARY/PARALEGAL)
- Prepare content for Trial Notebook (PARALEGAL)
- Prepare Trial Budget (PARALEGAL)
- Meet with expert witnesses to prepare for their trial testimony (LAWYER)
- Draft plaintiff’s proposed jury charge, verdict sheet and statement of contentions for submission to the trial judge (PARALEGAL/LAWYER)
- Review and approve courtroom exhibits with medical illustrator (LAWYER)
- Follow up with defendants’ counsel to request stipulation of exhibits (medical and employment records)(PARALEGAL)
- Meet with clients and lay witnesses to prepare for their trial testimony (LAWYER)
- Send letter to the trial judge requesting for a pre-trial jury instruction regarding the burden of proof (PARALEGAL)
- Call the court clerk to inquire whether the court provides audio-video equipment, such as an easel, video projector and screen, cables, Elmo for the presentation of documents and photos (SECRETARY)
- Confirm with the videographer the date and time of the videotape playback of the defendants’ deposition testimony (SECRETARY)
- Meet with clients at the courtroom to acquaint them with the courtroom (LAWYER)
- Remind expert witnesses to bring entire case file (via email and phone call)(SECRETARY)
- Prepare marked pleadings, plaintiff’s verified bill of particulars and list of witnesses (PARALEGAL)
- Submit marked pleadings, plaintiff’s verified bill of particulars, list of witnesses, plaintiff’s proposed jury charge, verdict sheet and statement of contentions to the Trial Judge and defendants’ counsel
- Submit deposition read-ins and videotape of defendants’ depositions to the Trial Judge and defendants’ counsel
- Review and pre-mark subpoenaed records with the court reporter at the courthouse (PARALEGAL)
- Call medical and employment providers if the subpoenaed records are not present at the courthouse or are not properly certified (PARALEGAL)
- Organize case file to bring to court (PARALEGAL)
*The “entire case file” should consist of the medical and employment records, pleadings and discovery responses, deposition transcripts and any other part of the case file that might be relevant to the expert’s trial testimony.
The 12 Week Year Plan should be printed and signed and dated by every team members and scanned into your case management software.
Step #2: Ensuring Compliance with the 12 Week Plan Year
At your weekly Goal Meeting every Monday, you should review the 12 Week for the previous and upcoming weeks. Did the team member do what they were supposed to? This is the time to hold them accountable. The 12 Week Year Plan won’t work if there is no accountability.
As the team members confirm that they did what they were supposed to do, check off the task on the 12 Week Year Plan. Next, focus on the tasks that need to be done in the upcoming week. Make sure everyone knows what they are supposed to do.
Your weekly goal meetings are also the time to modify and update the 12 Week Year Plan. There will always be unexpected tasks, such as the need for changes to the courtroom exhibits or a second focus group. Ask your team members whether anything else needs to be done.
And here’s the beauty of the 12 Week Year Plan: by the week before trial, you’ll realize that everything is done. That’s right, you’re ready for trial and you can’t think of anything else to do. And that, my friend, is a nice feeling.
*The 12 Week Year Plan is based upon Brian Moran’s extraordinary book, “The 12 Week Year”.
Photo by Brett Sayles from Pexels