Most cases do not go to trial. Parties will often voluntarily negotiate a resolution or reach a compromise with the help of a professional mediator. Sometimes matters end after a judge grants a motion (request) for summary judgment. But what if a case isn’t settled or resolved and the trial date is approaching? What does an attorney do?
While attorneys all approach their craft in unique ways, there are several steps that most trial lawyers will do before trial. For me, the pretrial preparation begins when my calender system alerts me that trial is 100 days away. I do the following:
1. Review the entire file (reading the pleadings, correspondence, notes and memorandums that were created during the initial investigation and discovery phases).
2. Identify if there are any steps that need to be completed or updated. This usually involves a review of status of the discovery. Have all the interrogatories been answered? Do they need to be supplemented? Are all the pertinent documents where they can be found? Do we have them all?
3. Update any legal issues. I review the legal issues that were previously identified and update the research that had been done. Were any cases or statutes changed since the original work had been done? Are there any new legal issues that need to be researched?
4. Identify all witnesses. Who will be testifying at trial? It is important to identify which witnesses will be testifying. Outlines of their prospective testimony need to be created. Particular attention needs to be paid to tie the documents and trial exhibits to the specific witnesses that will be used to introduce them.
5. Contact all our witnesses. I send a form letter to all of our witnesses informing them of the upcoming trial date. I follow this up with a phone call to confirm their attendance and also to schedule a time to meet to review their testimony.
6. Settlement. With the wealth of information at this point in the matter, it is a good time to revisit settlement. Both sides might be more willing to discuss settlement and, with the help of a professional mediator, this is often the point when disputes are resolved.
7. Create final pretrial list. After completing the foregoing, I will often put the matter aside for a few weeks. Then, 50 days before trial, the final trial preparations begin. I will write more about those steps in a future post.
Not only during these final stages, but throughout the litigation, it is important for there to be communication between myself and my clients about their goals. I have never had a client with a goal of “going to trial.” Their goals most often concern some underlying interest. Whether it is a lawsuit to recover money (or avoid a claim brought by one seeking money) or concerning a real property boundary, they want to dispute over with and there interests protected. Revisiting their goals, discussing their interests and advising them on the strengths and weaknesses of their positions, happens from my first contact with them, through the end of the representation.
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