9 Critical Steps for Trial Preparation

Important items that all paralegals should keep in mind.

By David J. Dempsey

July/August 2003 Table of Contents

The final weeks before trial are chaotic. The lead attorney is overwhelmed with enormous responsibilities that can have a significant impact on the outcome of the trial, from the smallest details to deciding on the theory of the case. Juggling all these critical tasks while maintaining focus and perspective is a Herculean task even for the most experienced trial attorney.

Paralegals play an indispensable role in the trial preparation process. It’s imperative that, in conjunction with the lead counsel, you design and adhere to a plan to make sure your energies — and those of the entire support team — are focused on the tasks that will contribute most to the success of the trial.

As the final phases of intense trial preparation approach, paralegals can wear many hats: coordinating schedules, monitoring deadlines, helping prepare witnesses and documents, organizing files and exhibits, preparing subpoenas and working with all members of the support team, including expert witnesses, outside vendors, and other legal assistants and attorneys involved in the trial.

Every trial attorney will use the talents of a paralegal in different ways. In my practice, I tend to rely heavily on paralegals and delegate a considerable amount of responsibility to them.

While the following guidelines will not work for every trial team, these are nine critical steps I believe paralegals can take to help make sure when the opening gavel falls at trial, your team is prepared to prevail.

Step 1

Create a Plan

Nothing is more vital to the success of the trial than a well-implemented detailed plan. At the outset of the trial, learn how you can be most helpful by communicating with the lawyer or lawyers trying the case. Clearly determine the team’s objectives and the role you will play in achieving those goals. As you prepare the plan, remember the costs of the trial and the amount at stake. If your trial team wins a $10,000 decision but spends $15,000 getting there, you will not serve your clients well.

Know exactly what you are expected to accomplish. All attorneys have their peculiar ways of preparing for trial. Misunderstandings late in the game exacerbate everyone’s frustration and stress levels, and in some cases, can have a significant adverse impact on the trial. Here are some of the essential elements you should consider when creating your plan:

• Task List: Prepare a task list with a timeline, including specific deadlines to accomplish each task, ideally in chart form. Summation (www.summation.com) provides excellent litigation support software for that purpose. Allow space for regular status updates from team members. Place the task list in a central location accessible to everyone at all times. The task list should provide specifics such as a description of the task to be accomplished, who is responsible for accomplishing the task and supervising its completion and any other information the team collectively deems essential to the case.

• Delegate Duties: Delegate responsibilities to team members and make sure there is a clear understanding of who will be responsible for completing and supervising each task.

• Focus on Essentials: Eliminate what you don’t have the time or the resources to accomplish. Additional depositions or research might be useful, but if the cost of completing a task, either in money or time, isn’t justified, bring it to the attention of the the attorneys on the team and discuss eliminating it from the plan.

Step 2

Communicate Clearly

After the plan is in place and your responsibilities are identified, constantly coordinate with your team and those for whom you are responsible (other paralegals, attorneys, outside assistants, investigators, experts and vendors). Hold everyone accountable, and politely but firmly let them know you expect results, not excuses.

Insist the team members notify you immediately if they encounter a problem they can’t resolve independently and quickly. Discuss the plan and timetable you have implemented with your team, and make sure they understand the importance of their contribution. In the heat of battle, team members can either lose focus, or become so focused they are unable to divert their attention to other matters as the need arises. Everyone is juggling multiple responsibilities, and everyone is pressed for time.

Update the attorneys regularly, and notify them immediately if you encounter a serious problem with the case. Be clear in all your oral communications, both with your attorneys and your team.

Periodically update everyone with written correspondence, preferably through e-mails. Assume the responsibility for eliminating confusion. Know what your team needs to accomplish based on the plan you have designed, and constantly communicate the objectives with precision.

Step 3

Take Command of the Paperwork

Some cases involve a mountain of paperwork (exhibits, depositions, research, memoranda), and your ability to control the flow of that paperwork is vital to the success of the case. Few tasks are more important or more valuable to the lead counsel during the course of the trial. Mark, record and organize your documents in a manner that will be logical for you, and for the attorneys who will need to readily access them during trial. Summarize and annotate briefs and memoranda in a concise and logical fashion. If the lead attorney has not specified how he or she would like to accomplish this, talk to him or her. Offer suggestions and ideas on how you feel the documentation should be organized, and make sure your proposals are acceptable before you invest countless hours on a plan you will need to recreate at a later date. Organize the paperwork in a way that will facilitate quick and easy use at trial.

Step 4

Know Your Judge

Judges are creatures of habit and emotion, and they have a certain set of written and unwritten rules they follow in their courtrooms. Some have inflexible rules you violate at your own peril, while other judges operate in a laissez-faire manner; some are irascible; others very patient. Know as much as possible about the judge before any court appearance.

Do your part to understand the rules and idiosyncrasies of each courtroom. If there are published local rules, study them. If you know others who have tried cases before your judge, seek their insight. Learn from the mistakes of others. Know the judge’s preferences and predispositions.

Step 5

Serve as the Sounding Board

Trials are intensely stressful, regardless of how many cases one has tried. When the stakes are big, the stress skyrockets. Offer to help the lead attorney by listening and offering insight. Don’t simply agree with the lawyer’s theory of the case, trial strategy, proposed opening statement, line of questioning or closing argument. Analyze them from the perspective of the judge or juror. Are they clear? Are they descriptive? Do they flow logically and are they easy to understand? Do they tell a story that will resonate with the judge and jurors? Is the theme of the case precise and consistent with the evidence and documentation?

While it’s ultimately the attorney’s decision, the paralegal insight, if handled in an appropriate manner, can be valuable. Offer honest, constructive advice. Don’t agree with a theory or proposed course of action you find confusing or incomplete. If you have other ideas, be confident enough in your abilities and judgment to offer them. Attorneys frequently become so immersed in their cases, they lose perspective, which might cause them to pursue a line of questioning, an argument or a case theory that will be lost on the layperson hearing the evidence for the first time.

Listen to the presentation and review the arguments critically. Express your ideas diplomatically (and with the especially volatile attorney, carefully) but always with a view of what best serves the client and the case.

Step 6

Perfect Your Visual Aids

Visual images have an undeniable impact that no amount of verbal description can capture. If you are responsible for the visual aids used at trial, make sure they are designed with the listeners and the theory of the case in mind. Decide how they will be used for maximum impact. Here are a few rules:

• Avoid Complexity: Visual aids should clarify and solidify your message. Too often, lawyers use visual aids packed with complex terminology, intricate diagrams or confusing charts. These only confuse and frustrate jurors and judges.

• Limit Your Points: The starting point in designing your visual aids should be determining the essence of your message. What points are absolutely critical for the judge or jurors to understand? Design your visual aids with that concept in mind. Then use numbering, bulleting, coloring or models that allow for easy understanding. Avoid too many lines, too much artistic flair and too many distracting colors.

• Practice Using the Visual Aid: Help the attorney prepare to use the visual aid at trial. The worst time for the lead counsel to resolve the nuances of how he or she will use and display the visual aid is during the course of the trial, under the watchful eyes of the judge and jurors, and while opposing counsel is poised and ready to pounce at the slightest transgression. Resolve all the issues of moving, positioning and displaying the visual aid before the trial. Moreover, use your visual aids while preparing your witnesses so their testimony flows logically and naturally with the introduction of the visual aid.

• Plan Ahead: Know the answers to the following questions before the trial begins: How will you transport the visual aid to the courtroom? Will you be permitted to store it in the courtroom before and during the trial? Will there be an easel, stand or table on which you can display it? Will you need assistance moving or operating the visual aid? Are there any particular rules to which the judge adheres that would limit how and when you will be permitted to use your visual aid? Do you anticipate any objections by opposing counsel or reluctance on the part of the judge to your using any visual aids? Plan and prepare in order to avoid needless scrambling and anxiety.

Step 7

Help Prepare Courtroom Presentations

This might be one of the more sensitive, yet vital, tasks a paralegal can perform in assisting the attorney prepare for trial. Ironically, while the actual presentations (opening statements, closing arguments) attorneys make at trial are vitally important, they seldom receive the attention they deserve. Powerful and persuasive communication in the courtroom results only from focused practice, and every exceptional attorney knows the importance of communicating with utter confidence and conviction. There is only a tiny window of opportunity to make your points in a convincing, persuasive fashion. Paralegals can play a critical role at this juncture by making sure all prepared presentations are concise, logical and have impact. How? Follow these tips:

• Ensure Clarity: The sage philosopher Yogi Berra opined, “You’ve got to be very careful if you don’t know where you are going, because you might not get there.” With this in mind, make sure the attorney’s presentations are consistent with the theme of the case. Share only the essential facts and details because the minutia will overwhelm the jurors. Help the attorney reduce the presentation to the key points and somehow compress it into a tiny package that will inform and touch the jurors.

• Ruthlessly Edit: Your attorney might want to heave a blizzard of information at the jurors and expect them to hack through the thicket of complex details associated with your case in order to grasp the key elements. This is typically unproductive, particularly where the evidence or testimony will be confusing and technical. Keep the attorney focused, and make sure he or she gives the jurors a clear road map. The most memorable and persuasive presentations are powerful because the message was clear, the language was precise and the storytelling was logical and compelling.

• Practice: In the final stages of trial preparation, help the attorney hone the presentations with practice. Videotape the presentations, and help the attorney identify problems or distractions and refine points. Study and polish every aspect of the delivery, including timing, pacing, pausing, vocal variety, gestures, movements and eye contact. Critically analyze the presentations and identify any distracting habits. Does your attorney tightly cling to the lectern, mumble, speak without enthusiasm or vocal energy, stare at the floor or the visual aid, or nervously shuffle to dissipate energy? Help the attorney identify and eliminate any aspect of the presentation that diminishes its impact.

Step 8

Don’t Overlook the Details

Visit the courtroom before trial if possible. Identify details that will provide an advantage to your team, such as line of sight for the jurors, the witnesses and the judge; where you will position your visual aids and documents; and layout of the courtroom and the courthouse area (where to park, where to eat, the locations of the electrical switches, the restrooms, and so forth). Do everything possible to eliminate all uncertainty about details that might contribute to additional stress for your team.

Step 9

Be Calm and Confident

Be the calm in the storm. Act confident in dealing with the trial attorney, your support team, the courtroom personnel and members of the opposing team. Speak with conviction and confidence. Don’t cower or badger. Your team and your client will be best served if you offer insights and constructive suggestions. Ultimately, your objective is to win the case; every successful attorney recognizes this is a team effort, a concept requiring unusual confidence, maybe even courage, if your attorney is particularly tyrannical in the heat of battle. If handled diplomatically, you are the attorney’s indispensable aid, and your contributions to the ultimate success of the trial are indeed invaluable.

Paralegals indisputably play a critical role in the courtroom drama. While much of your work is preformed out of the limelight, it’s nonetheless essential to the ultimate success of the case. There is no substitute for detailed preparation, a precise plan and regular follow up. Trials are won, and lost, based on the thoroughness of the paralegals’ preparation. Help your attorney prepare for the moment on the stage, and when that favorable verdict is announced, you will know you made a huge contribution.

David J. Dempsey, Esq., is a practicing trial attorney and general partner in the Atlanta law firm of Coleman & Dempsey, a professor of public speaking at Oglethorpe University in Atlanta, and the author of “Legally Speaking: 40 Powerful Presentation Principles Lawyers Need to Know” (Miranda Publishing, 2002). He can be reached through www.legallyspeakingonline.com or (800) 729-2791.