Module 11: Preparing for Trial

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Module Goal

Appreciate the effort necessary to to bring a case to trial.
Learn which types of audio and visual aids are most effective in the courtroom setting.
Organize your teams approach for testimony and rebuttal.

Student Assignment

Overview

Trial preparation begins after pleadings have been reviewed by the court and the court determines there is significant merit to the complaint to proceed to trial. In most cases, the intent is to develop trial strategies and begin finding of fact as soon as possible. But, like most projects and 80% of the effort is completed during the last 20% of time available. So as the trial date nears, expect the level of activity expended by the parties to increase exponentially.

Pretrial Posturing

Part of the trial preparation strategy is presenting a compelling case that causes the opposition to avoid going to trial. The form of posturing is akin to playing card game where some cards are in view of all players and the rest are held tightly in confidence by each player. So, part of the plaintiff and defense teams' effort is to evaluate the value of the displayed cards and estimate the potential of the cards yet to be shown. Interrogatories, affidavits and depositions are intended to put all the cards into play so the parties can evaluate the strengths of their case. Only in extremely unique circumstances does the court allow new evidence to be entered after the pretrial stage. Once the trial has begun the court intends to have the parties working with the same "cards". The only uncertainty after the trial begins is the jury's reaction to what they see and hear.

What do the parties prepare for trial?

Keep in mind that no new information is allowed following the impanelling of the jury; the focus is convincing the jury of your case. Knowing what it takes to convince the jury -- that question is probably best answered when the jury has been polled following their presentation of the verdict.

Effective litigation requires each party to "tell a compelling story". Counsel has to use whatever means necessary to help the jury understand their clients story. Visual aids are usually very effective if they are clear, concise and easily recognizable by the jurors. Videos, photos, charts and cartooned illustrations are typically used during testimony to help illustrate the points that experts want to make. So, considerable effort is made to present visual aids in a format that is simple to manage in the courtroom. Chalk drawings are also used in the court. Chalk drawings can be done in the format of flip charts, overheads or overlays to prepared visual aids. One drawback of chalk drawings is they often cannot be formally entered as part of the testimony record.