9 Critical Steps for Trial
By David J. Dempsey
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
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.
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
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.
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.
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.
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.
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.
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:
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
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.
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:
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
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.
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
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
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.