Adequately preparing for witnesses and clients for testimony requires many hours. However, knowing how to prepare for a trial can improve your strategy and, more than likely, the outcome.
Even the most competent attorneys with a seemingly iron-clad case can be defeated by lawyers who use their trial preparation time more wisely. The information in this article includes research and trial presentation tips to help attorneys strategically prepare for courtroom trials and legal hearings.
Former U.S. President and Army General Dwight Eisenhower once said, “In preparing for battle, I have always found that plans are useless, but planning is indispensable.”
Perhaps the final plan you employ for a trial isn’t the one you use. Nevertheless, the information gained from proper trial preparation almost always proves valuable. Whether you represent litigants or plaintiffs in a trial, understanding the case better than your opposition is wise.
The ability to grasp the right key facts gives you the advantage in controlling the courtroom, and will hopefully keep the opposing counsel against the ropes. Lawyers who prepare for a trial effectively usually have more confidence in themselves and are better perceived by the judge and jurors.
Completing most of the heavy lifting while preparing for a trial works to your advantage in most cases. Depositions are taken, exhibits are assembled, and discovery is completed. The only step left is to compile the legal information into a well-conceived and implementable plan.
Here are a few questions to consider:
- Who are the key witnesses?
- What proof is available?
- In what order will each witness testify?
- How will the opposing counsel handle my witnesses?
- How should I handle the opposition witnesses?
- What legal tactics will the prosecutor use?
- How will I cross-examine witnesses?
- Or, will I need to rebut evidence with my witness?
Compiling a list of detailed questions is undoubtedly helpful. However, also think in terms of preparing an outline for each section of your trial plan. Unless you have years of experience opposing a specific lawyer, it’s often challenging to know what tactics a talented defense attorney and even a criminal defendant might employ. Using an effective outline will help you and your team make the necessary adjustments to counter opposing tactics.
One of the benefits of preparing for a trial is how you and your legal team respond to the judge. The better-prepared lawyer can answer the judge’s questions and make objectives thoughtfully and cohesively, whether in chambers or the courtroom.
If a judge perceives one side is better prepared than another, chances are they will grant them more leeway when pushing the procedural envelope or when examining key witnesses.
One of the first things required to prepare for a trial is certified legal transcriptions of all the related depositions and hearings. Accurately transcribed legal transcriptions are a valuable tool during trial preparation. Your best options include using a CJIS compliant transcription company that employs criminal background checks on all their legal transcriptionists.
Prepare for a trial by going in the order of an actual trial
Below is the order of events for most trials. Keep in mind that complex civil and criminal trials usually include many steps. Informal hearings and straightforward trials may exclude things like opening statements and closing arguments.
Most criminal cases and civil cases are handled in similar manners. For bench trials, the judge, bailiff, or clerk will call the case. Many times, judges will summon the opposing parties to inquire if a settlement remains possible. After exhausting all settlement and plea efforts, the trial will proceed.
When the judge gavels the trial to order, each side delivers an opening statement. This is an opportunity to lay the foundation for evidence, and why you feel a verdict in your client’s favor must be considered. Remember, make your opening statement easy for any juror to understand. If a juror feels overwhelmed by either side’s opening statements, the possibility exists they may not comprehend vital testimony or evidence.
After opening statements, the plaintiff or prosecution (the side bringing the case) presents their evidence. Witnesses are called and examined. After each examination, the opposing counsel receives the opportunity of cross-examination.
Understanding when and how to object to an examination or cross-examination remains vital for the overall trial strategy. While you can plan to object to the testimony you know is forthcoming, experienced trial lawyers understand the importance of knowing courtroom procedure and when objections are warranted.
The opportunity to redirect a witness comes if an opposing attorney’s examination damages your witness’s testimony. Be mindful that the judge may also question witnesses at any point during the trial. Some attorneys prepare a checklist of potential objections.
After the plaintiff or prosecution completes its presentation of evidence, the judge calls on the defense to present their case.
When the defense team finishes calling its witnesses and has presented their evidence, the judge usually calls for closing arguments. The plaintiff or prosecution presents their closing arguments first, followed by the defense.
Motions for dismissal or summary judgment are typical when a trial concludes. Sometimes the judge will take time to consider such actions. Other times judges will immediately rule from the bench.
If a jury is hearing the trial, the judge will provide instructions to the jury regarding deliberations. Jury deliberation time varies greatly and depends on the complexity of the case. Whether the case is criminal or civil is another factor impacting jury deliberation times.
Once the jury reaches a verdict and notifies the judge, all parties will reconvene in the courtroom to receive the verdict. If the judge or jury renders a conviction, the judge may immediately impose sentencing or schedule a future sentencing date.
Thinking through every possible trial scenario
It’s virtually impossible to prepare for every possible trial scenario. You can, however, whittle down the most probable scenarios when preparing for a trial.
Most civil and criminal trials never see a courtroom. Often cases will settle weeks, days, or even hours before the trial begins. The reasons for settlement are many. The primary reasons most cases settle involve uncertainty of the outcome of the trial.
However, settling a case outside of court may be considered the icing on the cake. Still, taking the time to prepare for a trial requires painstakingly long hours, combined with diligent research. And the chances are that most of your billable hours involve the month or so before the scheduled trial date.
The obvious place is to consider the most probable trial scenarios. Based on the evidence in hand, what will it take to win the case? How can the case be lost? Is your client mentally, emotionally, and physically prepared for trial? Are you witnesses ready and willing to testify?
As you can imagine, the trial possibilities are endless.
One way to positively impact the outcome of any case is whether your testimony will sway the jury. Will a judge or jury easily comprehend your trial strategy? If not, how can you simplify the evidence or break things down in a more logical manner that’s easier to understand?
Some jurors take notes. However, most trial attorneys agree that most jurors do not take extensive notes during a trial, relying on their memory of the testimony presented. Keeping the testimony of your witnesses simple helps the jury retain valuable information. If trial testimony leans toward the complex side, then make sure you simplify things during your closing arguments.
To reduce the number of likely trial scenarios, create a roadmap for how you believe the trial should proceed. Assign tasks to your legal team accordingly, paying close attention to goals and likely outcomes. Successful trial attorneys often combine this strategy with a trial book as a reinforcement for common scenarios.
Remember, circumstances in a trial can change quickly. What if the judge is indisposed and you receive notification of their replacement at the last minute? If your trial strategy takes a specific judge’s personality or style into consideration, you and your legal team must be prepared to adjust quickly.
We could fill countless notebooks by creating possible scenarios. Make sure you remember to prepare for the likely scenarios and make any minor or major adjustments as needed.
How should you prepare for a trial?
Begin preparing for a trial by summing up your case in one sentence. “My client did not fulfill the contract because the plaintiff refused to comply with the contract’s payment terms.”
As we often hear, “the devil is in the details.” However, the sentence above is simple enough for any jury or judge to comprehend.
When preparing for a trial, a good starting point is having pretrial briefs and motions outside the jury’s presence. Also, prepare to submit jury instructions to the Court at the beginning of the trial. These tasks will help you think through opening statements and how you plan to outline the case for the jury.
Remember, keep your remarks to the jury concise and straightforward.
Prepping your witnesses for direct testimony and cross-examination is equally essential. Compile a witness list, making sure everyone to notify all parties of the trial date and times. Please don’t neglect to prepare your expert witnesses adequately as well. Take the time to review their testimony and educate them on what to expect under cross-examination. Prepare your expert witnesses by reminding them that their credibility and expertise may come under scrutiny. Experts often are not prepared for their credibility to be questioned, and doing so may impact their ability to persuade a jury that their knowledge is valuable.
Jurors like simple charts and diagrams to simplify complex subjects, especially when finances and accounting issues arise during the trial testimony or opening and closing statements.
Motions for dismissal at the beginning of a trial are typical. Be prepared to address a motion for dismissal at any point during the trial. Additionally, motions for summary judgment and directed verdicts are tactics often used by the opposing counsel.
Legal teams are sometimes unprepared for motions presented during a trial, so make sure you think through any scenario where the opposition may use them.
When you and your team prepare for a trial, the cross-examination of the other party’s witnesses is critical. There are often several impacted parties, so spend time thinking about possible witnesses before the opposing counsel submits their list of witnesses. Also, be mindful of what witnesses the opposing attorneys may call during the trial to rebuke or support prior witness testimony.
Speaking of motions, consider what legal actions you might raise at specific points during the trial. Critical mistakes made by the opposing side can easily sidetrack a case. On the other hand, proper trial preparation will help ensure that you or your team don’t commit any egregious mistakes.
First steps in trial testimony preparation
The key to preparing for a trial is preparation, plain and simple. Without a solid foundation, no amount of intelligence or courtroom mannerism will achieve the desired outcome. Case theory is the obvious place to begin when preparing for a trial.
Given your knowledge of the case, what do you believe happened? Do the facts support your case? What is your best argument, and how will you establish your case in Court?
The best place to begin preparing for a trial is by creating extensive written notes for every aspect of the case. Gathering facts throughout the trial preparation remains essential. Failing to capture details in a cohesive and organized fashion may allow valuable information to fade away. Think of yourself as an author outlining a manuscript. However, discovery may capture mounds of information; only some of it will prove helpful.
Once you feel comfortable that you have contained all the relevant facts in the case, consider how to present the most critical points. Compile a list of potential witnesses and, as previously mentioned, plan their preparation.
Request formal and informal discovery from the opposing counsel early so key facts are available. It’s also advisable to complete background checks on all witnesses, including your own.
People tend to omit negative information about themselves. If the opposing counsel obtains such information about your client or witnesses, they will most likely negate the testimony after adverse facts reveal themselves.
Preparing for a criminal trial can be especially tricky. Make sure you understand all the facts from the police report and interview everyone involved in the case. Sometimes law enforcement officers may inadvertently omit critical pieces of information from their accounts.
Another area of importance is focusing on the types of questions asked. How will you incorporate open-ended and direct examination questions? What about narrow and leading questions? All are important and have their place when questioning different types of witnesses.
Interviewing techniques for witnesses typically involve starting with open-ended questions and narrowing the questions as you proceed. Allowing witnesses the opportunity to provide adequate details may uncover additional information you or your legal team are not aware of.
In the same light, make sure your client and witnesses understand the importance of not revealing unnecessary information that the opposing counsel can use to persuade the jury to their side.
How to prepare evidence for a trial
Evidence for a trial includes testimony, material objects such as a weapon, written items, or additional things offered to prove a defendant’s innocence or guilt. The gathering of evidence continues through the trial preparation and up to the time the trial begins.
Before proceeding to trial, analyze what evidence you’ve gathered to:
- Determine the relevance of a particular piece of evidence
- Establish the facts necessary to present such evidence
- Determine if the evidence will prove or disprove the case
- Categorize all evidence
Placing evidence into distinct categories is vital. For example, evidence may be demonstrative, experimental, or scientific. Determine the type beforehand so you may use any evidence accordingly.
Documentary evidence is probably the most common type. Which included all types of writings, anything typed, handwritten paperwork, printed, photocopied, or photographed. Written documentary evidence can be anything from checks to receipts, invoices, leases, wills, emails, texts, social media posts, or any official document.
We’ve touched on the use and importance of expert witnesses. Lay witnesses also provide valuable testimony assuming they have personal knowledge of any relevant facts. Make certain lay witnesses understand their role and what to expect under examination and cross-examination.
Once all evidence is compiled, consider how and when to present each type. For example, how relevant is every piece of evidence? How will your witnesses introduce evidence and how will the prosecution or opposing parties introduce evidence? Select witnesses based on their ability to introduce critical evidence and schedule them at crucial points during the trial.
The introduction of evidence can allow you to lay the foundation for all evidence. The admissibility of evidence must be shown in most cases. Without a proper foundation for presented evidence, the opposing legal team may object and a judge may rule such evidence as inadmissible. The preferred method of evidence is through an expert’s testimony.
Now is the time to think through any potential logistical problem of evidence introduction. Are computers or other electronic equipment necessary for evidence introduction? Is the courtroom equipped with updated technology or will you need to furnish any equipment? Is the size of evidence an issue or will any evidence be ruined if not kept in a preferred environment?
The information above provides important tips when presenting trial evidence. Remember to prioritize any evidence and protect it so when presented in a court of law, it’s valuable to your overall case strategy.
When should you start to prepare for a trial?
Trial lawyers and their clients often focus on 30 days prior to a trial’s start date. However, most attorneys begin preparing for a trial in earnest about 90 days out.
Three months before a trial begins, the completion of all discoveries remains a priority. Reviewing depositions, interrogatories, and case evidence start, with follow-up on nonresponsive discovery initiated. Expert witnesses are identified, followed by witness research to analyze and identify critical issues and file required motions. Next, you’ll implement witness research to analyze and identify key issues and paperwork motions that may need to be filed.
Confirm completion of all case investigations three months before the trial begins. Inexperienced attorneys often neglect to confirm the availability of key witnesses, so complete this task now to negate any last-minute surprises. Indisposed, or elderly witnesses who cannot physically appear in court may need their testimony videotaped for later use.
Don’t forget to consider any potential settlement opportunities. Preparing for a trial is costly and time-intensive for all parties. If a viable settlement is possible, now is the time to make any final offers. Meeting with clients to explain realistic expectations for a jury trial might expedite a settlement opportunity.
Sixty days before the trial start date, confirm the issuance of all witness subpoenas and begin preparing for jury instructions, including a special verdict form, if needed. Experts witnesses often require advance notice to produce trial documents.
About 45-days out, begin assembling the trial notebook. How will witnesses be presented at trial? Summarize all depositions, and confirm the order of certified court transcripts asap. Begin prepping key witnesses, making sure they are familiar with any evidence presented during the trial.
Thirty days before the trial starts, schedule final preparation meetings with clients—present clients and witnesses with transcription copies of any prior discovery or depositions to review. Sending reminder letters to all witnesses will help keep them informed and aware of their responsibilities.
Before preparing the trial brief, consider one final settlement offer. Begin drafting the opening statement and closing argument. It’s important to anticipate any last-minute legal issues that may arise. Planning is essential, but remember, plans constantly change, so prepare accordingly.
The final two weeks before the trial is consumed with last-minute preparations and finalizing the trial notebook. The hard work of trial preparation is ending and now showcasing you and your team’s legal skills become more manageable.
Certified transcripts are required for trials
In most depositions, hearings, and trials, good transcriptionists will capture all verbal and non-verbal responses. The importance of accurate and complete legal transcripts remains a vital part of the trial preparation process.
Court reporters are capable of producing certified legal transcriptions. However, court reporters and court reporting firms charge much higher rates to complete their legal transcriptions, and will more than likely take a long time (30 days) to return their work.
Make sure you know if there is going to be a court reporter there for your hearings, because if not you will have to find a reputable legal transcription company to do your transcripts for you.
At Ditto Transcripts, we take pride in producing certified legal transcripts for hearings, depositions, court proceedings, or any other legal situation that’s been recorded. The standard turnaround time for legal and court transcription services is 3-5 business days when working with us. Our legal transcriptionists are U.S. citizens that use high-quality equipment and undergo a thorough criminal background check during our hiring process.
How you prepare for a trial makes all the difference. That’s why the legal transcriptionists at Ditto Transcripts will produce quality legal transcriptions quickly and at affordable rates. Give us a call at (720) 287-3710 or complete our “contact us” form in the upper right-hand corner of the page today.