1. Civil Litigation:
Process and Procedures
Chapter Sixteen
Trial Preparation – Postdiscovery to Pretrial

2. Pretrial Preparation
 Determined there is a valid cause of action
or defense
 Researched the legal claim
 Identified the necessary elements
 Careful investigation & evaluation
 Perceived credibility of the client
 Gathered enough admissible evidence to meet
the burden of proof
 Made settlement efforts
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3. Legal Issues
 Points of dispute on which law is applicable
and/or how the law should be applied
 Procedural issues – how the case is conducted
 Substantive issues – does the law permit
recovery?
 Claims – allegations that all the necessary
facts exist to prove each element
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4. Inadequate Claim
 Discovery reveals insufficient proof of the
claim
 The π’s attorney withdraws the claim
 Either attorney makes a summary judgment
motion (on claim or defense)
 Motion for judgment on the pleadings
 Forces the attorneys to focus on the legal
claims/defenses & elements
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5. Summary Judgment
 States there are no material facts at issue
(uncontroverted facts)
 States the only remaining dispute is one
of law
 Argues that, according to the law, their
side should win
 Can resolve the whole case or remove one
or more issues from the trial
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6. Conflicting Facts
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7. Stipulations
 Like a request for admissions, stipulations
remove agreed-upon issues from the trial
 Facts that have been stipulated to are
presented as uncontested to the trier of
fact
 Reduces court time & costs of litigation
 Demonstrates the ability to cooperate, and
underscores the remaining issues in
controversy
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8. Trial Memorandum I
 A lawyer’s summary of the case, prepared as a
guide for the judge, pursuant to court rule or
the judge’s preference.
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9. Elements of a Trial
Memorandum I
 Jurisdiction, facts &  Identity/contact
contentions information of
(identifies disputed witnesses &
facts), legal issues & qualifications,
authority summary of reports
 Description of of expert witnesses
damages, proof of  Discovery issues,
settlement authority medical reports,
desired stipulations
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10. Elements of a Trial
Memorandum II
 Estimated length of  Special verdict
trial questions
 Schedule of
proposed, numbered
exhibits
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11. A More Formal Version
 Signed by both attorneys, to become a
court order
 May also include
 Questions for voir dire
 Proposed jury instructions
 Evidentiary & equipment issues
 Deposition testimony to be used in court
 Exact content varies from court to court
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12. Trial Brief
 Prepared for court
 Sets forth a legal argument & authority
 Will usually address
 Substantive law issues (claims or defenses)
 Procedural issues, e.g.,
 Evidentiary issues
 Jury instructions
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13. Duty of Candor
 A lawyer shall not knowingly
 Make a false statement of fact or law
 Offer false evidence
 Must also disclose a controlling case or
statute, even if
 It is adverse to that side’s position
 The other side failed to discover it
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14. Costs of Litigation
 Parties are generally responsible for the cost
of litigation, win or lose
 Exceptions include
 Statutory authority allows for a transfer (e.g., counsel
fees awarded in a divorce, some civil rights actions)
 Costs awarded in enforcing a court order
 Costs awarded in defending a frivolous claim
 By agreement of the parties
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15. Contingency Fee Arrangement
 Makes litigation possible for clients who
cannot muster a retainer for an hourly
charge
 The percentage of the recovered amount
pays for the time that would otherwise be
billed
 The client remains responsible for the
expenses of litigation, win or lose
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16. Cost/Benefit Analysis
 The probability of winning the case
 The amount of money to be won or lost
 Whether the Δ is judgment-proof
 Lawyers’ fees & other costs
 Loss of time by personnel (business-party)
 Long-term effects on relationships & reputation
 Availability & amount of prejudgment interest
 Aggravation & psychological costs
 Unpredictability of a trier of fact or law
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17. Client and Witness Preparation
 Issues related to personal style that may
affect credibility
 Appropriate attire, hair, make-up
 Appropriate demeanor
 Testimony
 Not conversational, under oath
 One speaker at a time (for recording ease)
 Stop at an objection & wait until instructed to
answer
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18. Questions
 Prepare the witness or party for the type
of questions to expect
 Leading or narrative
 Review chronology of events
 Review prior statements
 Perhaps practice responding to a hostile
examination, although “over-rehearsed”
adversely affects credibility
 Try to practice in the courtroom, if possible
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19. Pretrial Instructions
 Subpoena all witnesses
 Hostile – puts the power of the court behind
the request to appear
 Friendly – makes it easier to make work
arrangements, and enhances credibility
(appearance is pursuant to a court order)
 Special arrangements may need to be made
for witnesses who cannot appear at the outset
& wait to be called much later
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20. Witnesses “On-Call”
 Usually possible in a very long trial
 Witness must be near enough to appear
on short notice
 Need court permission
 Must be able to contact the witness
quickly if the trial proceeds at an
unexpected pace
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21. Subpoena
Duces
Tecum
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22. Preparation of Exhibits
 Organize documentary evidence
 May need to produce paper copies, marked &
numbered
 May be using electronic material, with courtroom
presentation equipment
 Prepare demonstrative evidence
 Photographs, charts, diagrams
 May be prepared in-house or by outside services
 May be posters, models, or electronic
presentations
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23. Effective
Demonstrative Evidence
 Can be
 PowerPoint or other electronic presentation
 Overhead projection of transparencies or by
document camera
 Posters on easels
 Should be
 Large enough to be seen
 Acceptable as an accurate representation
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24. Jury Investigation
 Begins with determining the profile of an
ideal, or sympathetic, juror for each case
 Jury pool is identified & reviewed
 Online research
 Public records
 News archives, professional sites, etc.
 Previous court involvement (π or Δ, liens, etc.)
 Jury questionnaire
 Voir dire
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25. Extraordinary Preparation
 Only cost-effective in a trial with a very
large judgment at stake (high damages)
 Mock jury trial
 Create a mock jury with the jury profile
 Present the case
 Jury critiques the testimony, presentation
 Helps fine-tune the presentation &
validate the jury profile
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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26. Trial Notebook
 Hard copy (binders) or electronic
(litigation support software)
 Contents vary in each case, but generally
include
 Copies of legal authority, jury instructions
 Sections for each witness
 Outlines for opening, closing, questions
 Exhibits, and how they will be authenticated
 Copies of discovery document to be used for
impeachment (prior sworn statements)
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27. Continuances
 Once set, trials may be postponed if
 Judge or an attorney is not available
 Due to another trial running long
 Serious illness
 At the discretion of the court, but usually
granted for good cause
 If the attorney is “attached” or the trial is
set with a “date certain,” continuances will
probably not be granted
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28. Sanctions
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