You have been handling a case for two years and discovery was winding down, then COVID hit. It has been a year and you not only can’t get any cooperation from defense counsel, but the Courts have not helped either. Finally, the Trial Date is selected, and you are excited and overwhelmed, what’s next?
It is now time to develop a Trial Plan. Much of this trial has been planned the day you first met with your clients. When you first heard of the plaintiff passing away, or significant surgery. As you were hearing these things you are constantly thinking “How will this play to a jury?” As time went on during litigation you are thinking of both Evidential proof as well as jury proof. If you are not always thinking about this, time to start!
The first thing listed in your Trial Plan are the jury charges, read them again for liability, credibility, and damages. Determine what you must prove and how you will make that proof. Determine what evidence you want to give to the jury, including testimonial and documentation as well as Demonstrative. Don’t forget to include expert witnesses and what facts they must recite to allow the case to go to the jury. If you are deficient with certain facts or conclusions, consider serving Request for Admissions on those issues as in many jurisdictions these are not subject to discovery deadlines.
At this stage, you can begin preparing the actual Trial Plan as to how you will weave the story to the jury including all of the above. The fact that ten depositions of fact witnesses were conducted does not mean you should present all ten witnesses, be judicious as to whom you call and what they will address. One way of doing this is to list all witnesses and the facts and documents you can obtain from them. Begin to whittle this down and streamline the presentation. After working with this you should have each fact and document you want to introduce in a sequential order based on the witnesses. Although repetition is important for memory, there is always a point of diminishing returns. Remember, you will not present any fact or document that does not advance your story.
As for the documents and demonstrative evidence, make sure you have a “cheat sheet” for each and everyone and how you intend to use them and move in evidence where appropriate.
You will also need a section to prepare the opening statement, closing statement as well as jury questions. It is best to place time deadlines for all of these tasks, beginning with 90 days from trial, leading up to one week from trial. This will also include obtaining demonstrative evidence, final focus groups,and issuing trial subpoenas and requests. Use a general form for all of your Trial plans (similar to the discovery plan) in word so you can continually add to the plan and check off what is done on a daily basis.
This method will keep you on track and eliminate the feeling of being overwhelmed. For similar suggestions head over to our Trial Tips, Art of Persuasion, and Podcast and let us know what you think
