Trial Preparation: A Complete Guide
Preparing for a trial is a long, complicated process. As the trial date gets closer, the work ramps up, and the final few weeks can be a scramble. But the real work of preparing a case begins far earlier on, as legal teams survey evidence, establish their theory of the case, and create their most compelling narrative. It’s vital that every detail of the case, every exhibit, and every possible variable is studied and cataloged so the attorneys are ready to present the best possible case. It’s a big job, and finding the most efficient way of compiling the material can be difficult.
Many attorneys find the best method for organizing and preparing a case only after years of trying on their own. There is a better way, however. The weeks and months it takes to prepare are much better spent if there is a clear set of steps to follow and a solid organizational plan for the details that make up the trial.
What Is Trial Preparation?
Trial preparation is the collection and organization of the raw materials an attorney will need for a hearing or a court case. Thorough trial preparation can give a judge and jury a fuller understanding of the facts that are presented in the case. Failing to properly research and organize the facts of a case can result in a loss in court.
Trial preparation involves creating a road map for the entire trial. It can include a massive array of tasks designed to find evidence in support of the client’s case, as well as evidence to the contrary of the case. You’ll have to find all the witnesses who can speak to your case, documents and other evidence to bolster the case, and even experts to explain complex topics to the court. The attorney has to understand every piece of evidence, be able to call it up instantly, and know precisely how it all fits together.
It can be a monumental task, and it is no longer feasible to rely on outdated manual methods if you want to win your case. Thorough trial preparation today requires the use of software that helps you build your story and organize your materials.
The materials that you’ll need to gather during trial prep include:
Evidence, depositions, and requests for admission.
Pre-trial briefs and motions.
Jury instructions to submit to the court at the beginning of the trial.
An opening statement that outlines the case for the jury.
Direct testimony of your own witnesses, including experts.
Witnesses for cross-examination.
Motions for summary judgment or directed verdict.
Cross-examination of opposing counsel’s witnesses.
Motions after testimony to the court.
A record for appeal, if necessary.
Importance of Efficient Trial Preparation
At its core, a court case amounts to a story the attorney must tell — the story of the client’s case presented in a memorable and easy-to-understand way. Typically, jury members don’t take notes during a trial, which means they’ll have to rely mostly on their memories. You can’t expect jurors to commit to memory all the details and figures you present, but the overall picture you’re painting should stick with them. When they retire to the jury room to deliberate, you want them to remember and fully understand your side of the story.
In addition, you’ll need to develop an argument against the opposing side’s case, which means fully understanding the story they are likely to tell, locating its weak points, and preparing counterarguments to their counterarguments. They’ll also be doing this to your case during preparation, so you’ll need to be prepared for that as well. Have defenses ready for all possible attacks on your case and any potential arguments against your version of the story. Thorough preparation is the only way to anticipate, plan, and have everything you’ll need ready to go.
Who Is Involved in Trial Preparation?
Trial preparation is a wide-ranging and long-lasting endeavor that takes a team to complete. Typically, a lawyer will delegate the tasks to clerks and paralegals, who are an important part of the team. The paralegal’s role in trial preparation is vital, as they help attorneys prepare and organize the documents and materials that will make up the client’s case. Since it can be such a tedious process, many legal professionals rely on trial prep software that helps them organize and share the materials they need for a case.
Though paralegals and clerks will handle a lot of the paperwork involved in preparing for trial, the lawyer still has to be familiar with every page. The right technology can help lawyers sort through the materials gathered by their paralegals in an efficient manner.
Expert witnesses are another important part of trial preparation teams. These are the subject matter experts with authoritative knowledge about a certain topic — especially scientific or technical fields — who can explain facts to the jury. According to the Federal Rules of Evidence, an expert witness has skill, experience, training, or education in a specialized discipline. The rules require experts to base their testimony on facts and information that is commonly accepted by experts in their field. Finding the right expert for your case, preparing them to testify for you and to be ready for opposing counsel’s questions, and fully understanding the testimony are all part of trial preparation for an attorney.
Trial Preparation Challenges
The first hurdle in preparing for trial is the volume of material an attorney must collect, understand, organize, and present to a jury. Another is the logistics of that task — reining in the complex network of team members and materials to form a thorough and winnable case. Understanding the challenges of trial preparation can help you navigate them successfully.
Effective communication is a common challenge among trial prep teams. As multiple stakeholders collaborate on building the narrative of the case, maintaining control of the myriad edits, revising the revisions, and keeping the process moving forward is a very big job. Finding a tool to help streamline the work can be key to improving communication — especially technology that helps teams communicate in real time.
Remote work has become the norm, even in the legal profession, making the job of managing digital casework even more challenging and important. The more people participating in the preparation of a case, the more information there is to keep track of, catalog, edit, and incorporate into the case. Storybuilding and case preparation tools can help remote legal teams present their findings clearly for a more efficient workflow.
Another challenge attorneys face as they build a case is sifting through the millions of facts and figures they collect to find exactly the right ones to incorporate into the theory of the case. This is especially challenging with depositions, which can be either transcripts of recorded sessions or videos. The attorney needs a way to review all that material and glean the key portions, as well as to integrate them into the outline for witness examinations. This is another area where specialized software can be enormously helpful, as it serves as a single solution for preparing for and taking depositions so they can efficiently harvest critical testimony. Trial prep software with depositions functionality saves legal teams time, improves collaboration, reduces duplicative efforts, and increases accuracy.
Trial Preparation Checklist: What to Do Leading Up to Trial
As the date of the trial approaches, the attorney will have collected extensive amounts of material. Keeping it all straight is key, and addressing every detail before the trial starts is a big challenge. Making a checklist of the tasks that need to be completed before trial is a great solution: it keeps things in order and gives the attorney a chronological strategy so nothing is missed. Start counting down three months before trial.
Three Months Before Trial
If there is any discovery that has yet to be completed, now is the time. Review all materials and follow up on anything that’s unresolved. Additionally, be sure to do the following:
Secure your witnesses, and decide what you want your expert witnesses to testify to.
Begin assembling key evidence, including visual aids such as charts and maps.
Meet with clients and experts to go over issues, costs, options, and expectations.
Consider the technology you’ll need to present your case; secure those devices and any professional assistance, if needed.
Decide on all the witnesses you’ll want to call, and work with them to ensure their availability at trial. If necessary, take taped depositions for use in court in case problems arise.
Two Months Before Trial
During this time, you should be assessing what has or has not been done already, while also completing the following responsibilities:
Issue subpoenas for all witnesses to testify.
Prepare notices to appear and produce documents. Serve them, or have them served.
Prepare the trial road map.
Create a plan for how witnesses will be presented.
Put together outlines for witness examination and exhibits you’ll present.
One Month Before Trial
This may be the most intense period in trial preparation, as legal teams need to tie up any loose ends and see to the following responsibilities as well:
Meet with clients and prepare them for their appearance on the stand. Give them their previous responses for review.
Get witness depositions or taped statements ready in case they’re needed at trial.
Outline all the elements that will bolster your trial story.
Prepare all witnesses for upcoming testimony, including keeping them informed about scheduling.
Prepare the trial brief.
Write opening and closing statements.
Write jury instructions now to identify any legal issues that will need to be addressed.
Prepare questions for the witnesses you plan to call and all the exhibits that will be part of the testimony for each witness.
Prepare briefs on any legal issues you’ve identified.
Trial Preparation Tips
No matter how carefully an attorney has prepared in the preceding weeks, the days leading up to the trial are likely to be stressful for everyone involved. There are always last-minute tasks to finish and unforeseen problems to address. This pressure, on top of the natural stress of trial preparation over the last three months, can be unhealthy for an attorney and the rest of the team.
The best solution, of course, is to be as prepared as possible for anything that might come up. These additional tips can make things run more smoothly.
Make Use of Technology
Technology can enhance and simplify nearly every phase of a court case, from the organization of materials during trial preparation to questioning witnesses in court. A lawyer should use every tool available to make their own work more efficient and significantly cut down on the risk of overlooking something. Providing their legal teams with technology that allows them to collaborate in a single, secure location ensures their team has what they need to build a compelling narrative. When multiple users can collaborate simultaneously, it eliminates issues associated with version control and allows teams to present arguments in an organized manner.
Again, thorough and meticulous preparation is the foundation on which a winning case is built. Without thoughtful preparation, even the best attorney will be caught by surprise and be unable to effectively argue the client’s case. Tools to aid in preparation and help with organizing and planning are especially beneficial for attorneys who want to leave nothing to chance.
Ensure Effective Communication
An attorney is the face of a court case, but in reality, every attorney relies on a team to make things happen. That includes the clients, paralegals, support staff, and anyone else
with a hand in preparing for a trial. Making sure everyone rows in the same direction is a big task and is extremely important. Communication among team members is the only way to be sure everybody knows what they’re responsible for and how to respond to anything that comes up.
When collaborators lack the tools to communicate efficiently, this leads to additional costs and burdens to legal teams and their clients. An effective trial preparation platform negates the burdens of insufficient communication. For example, it provides a central location for litigators to upload critical documents and organize them into a timeline annotated with people and events. It can also help them integrate evidence into deposition prep and identify key pieces of testimony. The ability to collaborate in real time, whether remote or in-office, is vital for effective communication during trial prep.
Prepare Your Witnesses
Almost nobody dreams of being called to the witness stand, sworn in, and asked pointed questions. It’s a stressful situation that doesn’t bring out the best in people. Preparing witnesses ahead of time by putting them through questions and mock cross-examination is a good way to alleviate some of the shock of being on the stand. Even attorneys can get nervous or flub a key point, so it wouldn’t be a surprise if a novice witness panicked under harsh questioning. Simulating a courtroom scenario helps everyone involved understand how to respond and gives the attorney the best chance for success with the jury.
Build a Strong Story
Crafting a strong narrative is an important part of trial preparation. The client’s case boils down to the story the attorney tells, regardless of exhibits, expert testimony, or any of the other details that make up a case. If the story is feasible, believable, and memorable, it’s much more likely the judge and jury will look at it favorably. In contrast, if an attorney can’t present the case well, neither the judge nor the jury will likely give a lot of credence to the evidence presented.
Simplify Trial Prep with Everlaw’s Storybuilder
Legal professionals are increasingly relying on new advances in technology to expertly and efficiently assist them in building and trying cases. One such product is Storybuilder, Everlaw’s standalone program that offers attorneys a substantial advantage in trial preparation.
Storybuilder is a collaborative tool that enables legal teams to organize documents, build cohesive narratives, and collaborate on depositions in a secure virtual environment, all for free. Storybuilder gives remote legal teams access to a virtual meeting room where they can present their findings clearly and work more efficiently.
The narrative-building capabilities of Storybuilder ensure collaborative alignment of investigative teams, improve workflows, reduce risk, and save time by organizing critical documents into a solid narrative.
Storybuilder’s deposition-preparation tools and tracking tools enable significant cost reductions and time savings by eliminating the need to print out physical copies of all exhibits, pass handwritten notes, and later transfer key information into an online repository. For example, you can effectively manage the end-to-end process of deposition and trial preparation by integrating key portions of testimony into critical documents.
Third-party cloud-hosting platforms accelerate the document review process by enabling reviewers to upload documents seamlessly. And real-time collaboration allows teams to communicate securely with internal teams and outside counsel in real time, significantly reducing delays and miscommunication.
Everlaw’s secure platform allows you to share your work product, annotate documents, and chat in real time during depositions — without security risks. Everlaw is one of the first cloud-native software solutions to become FedRAMP-certified, authorized by the U.S. Department of Justice to ensure that digital evidence remains protected at the federal level. Everlaw is also certified by a third-party HIPAA Compliance Assessment, an independent GDPR Compliance Readiness Assessment, and SOC 2 Type 2 certification.
Find out more about how Storybuilder by Everlaw can become part of your trial prep team.