Preparing for trials: What paralegals and attorneys need to know

There may be no more stressful time for legal professionals than when we are preparing for trials, particularly the last few weeks leading up to trial.

In movies and on television, the attorneys get all the glory when it comes to handling a trial. In truth, however, paralegals are downright indispensable in trial preparation.

I hope this guide will act as an invaluable tool for both paralegals and attorneys when preparing for trials; so keep it close at hand and make sure you’re checking everything off as you go.

Whether you’re relatively new to trial work or have years of experience, here are some of the top tips for ensuring that your team has the very best shot at success when preparing for trials:

1. Own the calendar

One of the most harrowing things when preparing for trials is keeping track of all the deadlines. You have to think about jury instructions, motions in limine, trial briefs, expert reports, voir dire, and about a million other things.

The attorneys are going to be too worried about substantive projects such as opening statements and witness preparation. They need you to worry about details like calendaring. Thus, you will prove yourself a critical part of the team if you’re the one who makes sure everything gets done, filed, and delivered on time.

If you don’t already have one, it’s a good idea to pick up a “100 days to trial” resource like this one published by the Superior Court of California. Of course, you also need to consult your state’s rules of procedure, local rules, and any standing trial orders issued by your judge.

2. Be an exhibit wizard

Trial exhibits can take many forms. Depending on the type of case, your team might be presenting documents, photographs, or even physical objects. As the paralegal, it will likely fall on you to organize all the exhibits and prepare them for optimal presentation to the jury.

In a document-intensive case, for example, you might prepare document binders that are tabbed and organized by topic, originator, or date. You’ll also need to be up to date on the latest trial technology, verify that your courtroom allows for its use, and upload exhibits for presentation.

Of course, you’ll also want to take several practice runs with that technology, given that technical glitches mid-trial are every legal professional’s worst nightmare.

3. Become a local expert

We mentioned this item briefly above, but it is important enough to bear repeating. Well prior to the trial date, you’ll want to familiarize yourself with the local rules, local-local rules, and any standing orders from your trial judge regarding procedure, deadlines, court demeanor, etc.

Nothing will anger a judge faster than a party’s failure to adhere to published rules. In fact, ignoring the local rules can not only be an embarrassment to the litigants and the trial teams, but it can also impact the outcome of the case.

Additionally, the paralegal should pull a copy of the trial judge’s profile and try to find prior rulings from that judge on issues that will be litigated in your case.

If you have time, it can also be useful to have a member of your team sit through a couple of trials presided over by your trial judge. Take notes of things that may help your team.

For example, do frequent objections tend to anger the judge or does she decide each one on the merits? What is her general demeanor toward attorneys? Did you see her get irritated at any point? What caused that? These sorts of “inside tips” can help your team earn quick points with the judge that may help your client’s case.

On a lighter note, the paralegal can also add great value to the team by simply becoming familiar with the area around the courthouse.

This is particularly true when your team is litigating a case far from home. Knowing things like the location of restaurants, copy centers, and coffee shops can be invaluable for an exhausted trial team.

4. Understand what you’re getting into

If you haven’t been to trial yet, it’s a good idea for you to read up on what you’re getting into. Trials are very stressful events. The clients are worried, the attorneys are feeling rushed, and the whole team is generally filled with anxiety.

In light of all this, some pretty awful things can happen in the days leading up to trial. Tempers may flare, feelings may get hurt, and competency may be questioned (often for no good reason other than exhaustion). As long as you understand the group dynamics that may arise within your trial team, you’ll have a good chance of coming out unscathed.

5. Offer to “play juror”

At the end of the day, what’s going to matter most when you’re actually in trial are the presentations given by the attorneys and witnesses. In order to “get good” at what they need to do in the courtroom, they’re going to need to practice…and practice again…and practice again.

Offer to be a mock juror for your attorneys. Listen to their presentations and take notes on things you didn’t understand, phrases they repeated too much (um…), and even their body language.

This sort of critical feedback can be the difference between having a winning trial presentation and, well, the opposite of that.

Preparing for trials: Checklist and approach

Preparing for a trial requires careful planning and organization to ensure that all aspects of the case are addressed. Here’s a comprehensive checklist for trial preparation:

1. Case review and strategy

Case review and strategy are foundational components of effective trial preparation. Here’s how I would recommend to approaching these areas in detail:

1. Document review:
   • Thoroughly read all case materials, including pleadings, motions, discovery responses, and any other relevant documents.
   • Pay special attention to any inconsistencies, contradictions, or potential areas of weakness in the case.
2. Discovery review:
   • Review depositions, interrogatories, requests for production, and other discovery materials.
   • Look for potential witness testimony that may be useful for your case or harmful to the opposition’s case.
3. Legal research:
   • Conduct legal research on the key legal issues in your case.
   • Identify relevant statutes, case law, and legal precedents that support your position.
   • Be aware of any recent legal developments that may impact your case.
4. Timeline of events:
   • Create a detailed timeline of events relevant to the case.
   • Use the timeline to identify any gaps in evidence or inconsistencies in testimony.
5. Parties and witnesses:
   • Make a list of all parties involved in the case and their roles.
   • Identify key witnesses and their potential testimony.
   • Assess the credibility and reliability of each witness.
6. Evidence review:
   • Review all evidence you have, including documents, photographs, recordings, and other physical or digital evidence.
   • Identify any missing evidence and take steps to obtain it.

2. Case Strategy

1. Theory of the case:
   • Develop a clear, compelling theory of the case that explains the facts and legal issues.
   • Your theory should guide all aspects of your trial strategy.
2. Themes and messaging:
   • Identify key themes or messages that you want to convey to the judge or jury.
   • Tailor your presentation of evidence and testimony to reinforce these themes.
3. Strengths and weaknesses:
   • Assess the strengths and weaknesses of your case.
   • Develop strategies to capitalize on strengths and mitigate weaknesses.
4. Opposing counsel and party analysis:
   • Analyze the strengths and weaknesses of the opposing party’s case.
   • Anticipate the arguments and tactics that the opposing party may use.
5. Plan for examination and cross-examination:
   • Prepare questions for direct and cross-examination of witnesses.
   • Focus on extracting testimony that supports your case and challenges the opposition’s case.
6. Motions and objections:
   • Prepare and file any necessary motions, such as motions in limine, to address evidence and procedural issues.
   • Anticipate objections the opposing party may raise and prepare responses.
7. Settlement and alternative dispute resolution:
   • Consider whether settlement or alternative dispute resolution (ADR) is a viable option.
   • Develop strategies for negotiating a settlement if appropriate.
8. Trial logistics:
   • Plan for the logistics of the trial, including courtroom setup and technology needs.
   • Coordinate with witnesses, clients, and other team members for efficient trial management.

3. Witness preparation

Witness preparation is one of the trickiest aspects of preparing for trials. Witnesses play a key role in presenting evidence and supporting your case theory, and proper preparation can help witnesses feel confident and perform effectively during their testimony.

Here’s how to approach witness preparation:

Begin by identifying key witnesses, both fact and expert witnesses, who are essential to your case. Review prior statements and depositions to assess consistency and areas of potential challenge.

Establish communication with the witness early on, explaining the importance of their role and the commitment needed for testimony. Conduct a preliminary interview to gather their account of events and evaluate their reliability and credibility.

Next, prepare witnesses for their testimony by explaining the legal process and what to expect during the trial. Review relevant evidence with them and help them understand how their testimony supports your case strategy.

\Practice direct examination by asking clear questions and focusing on concise answers that emphasize key points. Additionally, prepare witnesses for cross-examination by anticipating potential questions from opposing counsel and discussing strategies for handling them.

Provide witness coaching on effective testimony, such as speaking clearly and confidently, and encourage them to answer only the questions asked. Discuss proper courtroom behavior, including attire and body language.

Address any concerns the witness may have and provide reassurance or solutions. Conduct a final review of the witness’s testimony, emphasizing key points and making necessary adjustments based on case developments.

Keep the witness informed about trial logistics and courtroom procedures to ensure they are comfortable and prepared for their role.

4. Evidence preparation

When preparing for trials, evidence preparation is essential because the quality and presentation of evidence can significantly impact the outcome of a case. Here’s how to approach evidence preparation in detail:

First, organize and review all evidence related to your case, including documents, photographs, recordings, physical exhibits, and digital media.

Sort evidence according to its relevance and importance, and create an inventory or exhibit list for easy reference during trial. Pay attention to any gaps in evidence or areas where additional supporting materials may be needed.

Next, assess the admissibility of evidence according to legal standards and procedural rules. Anticipate potential objections from the opposing party and prepare arguments to counter them.

File motions in limine to address any questionable evidence and establish boundaries for its use during trial.

Once the evidence is organized and assessed, develop a plan for presenting it effectively during the trial.

Prepare visual aids such as charts, diagrams, or slides to enhance the impact of your evidence and make complex information more understandable to the judge or jury.

Practice presenting evidence in a clear and concise manner that aligns with your case theory and supports your arguments.

Additionally, consider the logistics of evidence presentation, such as arranging for necessary technology and equipment in the courtroom. Ensure that all evidence is properly marked and stored for easy access during the trial.

5. Jury selection

Jury selection, or voir dire, is a critical part of trial preparation that can significantly impact the outcome of a case.

During this process, you have the opportunity to select jurors who are unbiased and likely to be receptive to your case theory.

• Develop Voir Dire Questions:
  • Create targeted questions to uncover potential biases, experiences, and attitudes.
  • Focus on issues relevant to your case, such as prior knowledge of the parties or subject matter.
• Profile Ideal Jurors:
  • Define the characteristics of your ideal juror, such as background, values, and experiences.
  • Use this profile to guide your questioning and decision-making during jury selection.
• Identify Red Flags:
  • Look for signs of bias, prejudice, or strong opinions that could impact the juror’s objectivity.
  • Note any potential conflicts of interest, such as relationships with parties or witnesses.
• Utilize Challenges:
  • Prepare challenges for cause to remove jurors who may not be impartial.
  • Use peremptory challenges strategically to shape the jury in your favor.

By carefully selecting jurors and addressing potential biases, you can build a fair and impartial jury that is more likely to consider your case objectively.

6. Opening statement and closing argument

The opening statement and closing argument are critical components of preparing for trials, providing opportunities to frame the narrative and persuade the judge or jury.

Both phases require careful planning and execution to maximize their impact.

7. Opening statement

• Purpose and goals:
  • The opening statement is your chance to introduce the case to the judge or jury and outline your theory of the case.
  • Set the stage for the evidence and testimony that will be presented during the trial.
• Structure and content:
  • Begin with a clear, concise summary of the case and the issues at hand.
  • Provide an overview of the key evidence and witnesses you will present.
  • Establish your case themes and key points, linking them to the evidence.
  • Avoid argumentation; focus on presenting the facts and explaining what the evidence will show.
• Engagement and clarity:
  • Capture the judge or jury’s attention with a compelling narrative or story.
  • Keep the opening statement concise and easy to follow, avoiding complex legal terms.

8. Closing argument

• Purpose and goals:
  • The closing argument is your opportunity to persuade the judge or jury and advocate for a favorable verdict.
  • Synthesize the evidence and testimony presented during the trial to support your case theory.
• Structure and content:
  • Begin with a strong introduction that reinforces your case themes and key points.
  • Review the evidence and testimony in a way that supports your case, emphasizing key moments and witness credibility.
  • Address any weaknesses in your case and counter the opposition’s arguments.
  • Highlight the applicable laws and how they support your position.
• Persuasion and emphasis:
  • Use persuasive language and rhetorical techniques to strengthen your argument.
  • Appeal to the judge or jury’s sense of fairness, justice, and reason.
  • Conclude with a powerful call to action, asking for a specific verdict in your favor.

Both the opening statement and closing argument require practice and finesse to deliver effectively. Tailor your presentation to the judge or jury, keeping in mind their perspective and potential biases.

9. Cross-examination preparation

Cross-examination preparation is an essential part of trial advocacy, allowing you to challenge the credibility and reliability of the opposing party’s witnesses.

Begin by reviewing witness statements and depositions to identify inconsistencies or areas of vulnerability. Develop targeted questions that highlight these weaknesses and question the witness’s expertise, memory, or honesty.

Plan your approach carefully, focusing on extracting admissions that support your case theory or undermine the opposing party’s position. Use leading questions to maintain control and keep the witness on track.

Anticipate objections and prepare responses to navigate courtroom procedures smoothly.

10. Legal and procedural issues

Legal and procedural issues must be accounted for when preparing for trials. Begin by identifying any outstanding legal issues, such as disputes over evidence admissibility, witness credibility, or interpretation of laws and regulations.

File motions in limine to address potential objections and exclude problematic evidence.

Stay current with court rules and procedures, ensuring compliance with deadlines, filing requirements, and trial protocols. Prepare for challenges to jury instructions or verdict forms and be ready to argue legal points that may arise during the trial.

11. Jury instructions and verdict forms

Jury instructions and verdict forms are crucial components of preparing for trials that guide the jury in their decision-making process.

Draft proposed jury instructions that clearly outline the legal standards applicable to the case, using language that is precise and easy to understand. Submit these instructions to the court for review and approval, ensuring they align with the judge’s preferences and legal precedents.

Prepare detailed verdict forms that allow the jury to record their decisions on each issue presented in the case. These forms should be clear and straightforward, providing options for each potential outcome.

12. Logistics and administrative tasks

Logistics and administrative tasks are essential for ensuring that the trial runs smoothly and efficiently. These tasks include coordinating schedules, managing documents, and ensuring the courtroom setup meets your needs.

Scheduling and coordination:

• Confirm trial dates and times with the court and all parties involved.
• Coordinate the schedules of witnesses and ensure they are available when needed.
• Arrange for transportation and accommodations for witnesses if necessary.

Courtroom setup and technology:

• Ensure the courtroom is equipped with the necessary technology for presenting evidence, such as projectors and screens.
• Verify that the courtroom has the appropriate space for your team, witnesses, and exhibits.

Document management and accessibility:

• Organize case files, exhibits, and legal documents for easy access during trial.
• Prepare binders or digital folders with relevant materials for each day of the trial.

Team communication and support:

• Establish clear communication channels with your legal team to coordinate tasks and updates.
• Provide administrative support for your team, such as making copies of documents and arranging for meals and breaks.

13. Final review and practice

The final review and practice phase of preparing for trials is a critical step in ensuring your case is ready for presentation in court. Begin by conducting a comprehensive review of all case materials, including evidence, witness testimony, and legal arguments.

Pay special attention to any updates or new information that may have emerged during the preparation process.

Practice your opening statement and closing argument, refining your delivery and timing for maximum impact. Conduct mock trials or run-throughs of witness examinations and cross-examinations to identify potential weaknesses and areas for improvement.

Work closely with your legal team to ensure everyone understands their roles and responsibilities.

14. Client preparation and communication

Client preparation and communication are vital for building trust and ensuring your client is ready for the trial. Here’s how to approach these aspects effectively:

• Inform the client:
  • Keep your client updated on trial progress and potential outcomes.
  • Explain the trial process and what to expect at each stage.
• Prepare for testimony:
  • Coach your client on how to testify clearly and confidently if they will be taking the stand.
  • Discuss appropriate courtroom behavior and decorum.
• Discuss strategy and options:
  • Go over the case strategy and legal arguments with your client.
  • Discuss potential settlement opportunities and alternative dispute resolution.
• Answer questions and address concerns:
  • Be available to answer your client’s questions and address their concerns.
  • Provide emotional support and reassurance to help them feel more at ease.
• Coordinate logistics:
  • Organize transportation and accommodations if necessary for the trial.
  • Ensure your client knows when and where to arrive for the trial.

By maintaining open lines of communication and preparing your client thoroughly, you can help them feel confident and supported throughout the trial process.

Conclusion

Preparing for trials is an intense and complex process that requires collaboration between attorneys and paralegals to ensure its success. Paralegals play a vital role in managing the calendar, organizing evidence, coordinating logistics, and assisting with witness preparation.

Their attention to detail and expertise contribute significantly to building a strong case.

Attorneys rely on paralegals to handle critical tasks, such as legal research and document management, so they can focus on developing case strategy and preparing opening and closing statements.

By understanding the intricacies of the legal process, local rules, and the judge’s preferences, paralegals can navigate challenges and help the legal team make strategic decisions.

Additionally, paralegals play a key role in client communication, courtroom logistics, and final practice sessions. Their support helps attorneys present a well-prepared case, increasing the chances of a successful outcome.