Pre-Trial Preparation

CASES ARE WON OR LOST IN DIRECT PROPORTION TO THE AMOUNT OF TIME SPENT IN PRE-
TRIAL PREPARATION.
1) A prompt and thorough investigation is necessary. It borders on legal negligence not to hire an
investigator immediately.
Some things an investigator will do:
- speaking with and obtaining statements from witnesses
- taking photos of the scene
- preserving evidence (which may require you to get a court order to preserve the evidence)
- getting police and coroner reports
- getting tax records and property ownership information
- obtaining the prosecutor's file
- buying exemplars
Also consider having your investigator videotape the scene, witnesses, ect.
2) There are certain things you must do and cannot rely on your investigator for:
- go to the scene of the accident
- visit the intersection where the crash occurred so you are familiar with it
- in a product liability case, go to the plant where the worker was injured. Learn how the machine
works. Bring your engineer. Have them start the machine and explain how it works. You will need
to explain it to the jury and show how your client's hand was able to get pulled into the machine.
- if you have problems getting into the plant contact the worker's compensation carrier. They are
granted access to the employees job site and can help you get in there to conduct your
investigation.
- in a slip and fall, make sure you test the floor immediately after the fall for slip resistance. If you
wait and the defendant changes the floor before you test it you may have a malpractice case on
your hands.
3) Take a thorough initial interview. Make sure you know all there is to know about the accident
and your client.
The National Clearinghouse for Bodily Injury Claims has an index system that allows you to
discover prior bodily injury claims made by your client. By using this service you will be assured
that your client has revealed all prior injuries to you and will know what you adversary will find
during discovery.
Their phone number is 908.388.0332. The cost is $15.00. The will send you the form that must be
signed by your client in order to get this information.
4) Conduct an aggressive discovery plan, including:
a) Interrogatories, including customized questions pertaining to the specific case. Do
not rely on boilerplate questions.

b) Request for Production of Documents.

Pay special attention to the specific product involved if its a products case. Get
alternative product designs, patents, plans, and specifications. This information is
available through NHTSA, ATLA Exchange, ATLA Advocate, ATLA NET, AIEG, and
Depoconnect. There are other documents available from the government, depending
on the type of case, for example, the Department of Transportation has wonderful data
if you have a tractor-trailer case.
In medical cases, get all records of any kind. Try to get self critical analysis committee
reports, peer reviews, policy and procedure manuals.

c) Request for Admission. Probably the least utilized device. The length of trial can be
shortened by getting the defendant to admit things in advance. The nice thing is that if
they deny the request and you have to prove it, you may get costs and if they don't
respond, it is deemed admitted.

d) Depositions. Take depositions of fact witnesses, consider experts, police and

emergency personnel, corporate representatives, before and after witnesses, consider
other similar incidents witnesses. Consider pros and cons of videotape, even without
defense counsel.

In medical malpractice cases, you should serve your deposition notices, interrogatories
and requests for production of documents when you serve the complaint. This will give
you the upper hand in discovery and allow you to conduct depositions early on when
the defendants are less familiar with the case.

Also in medical malpractice cases, if a defendant does not file an answer, take a default
immediately. Then only agree to vacate the default when they consent to producing the
defendant for a deposition.

When deposing the defense expert, try to find out as much about him as possible.
Contact all of the attorneys you know and ask them to send you depositions they have
done of this doctor. Take advantage of other services that are out there such as
DepoConnect. They have a vast library of depositions that have been taken by
attorneys throughout the country.

The phone number for DepoConnect is 1.800.443.1757. Their web address is

http://www.depoconnect.com

e) Pre-trial Motions. File motions to compel discovery or depositions as often as

necessary and when the discovery deadlines are not met. Keep the pressure on and let
them know that you will not allow delays.

f) Trial Exhibits. Must be professionally done with a smaller version provided to the
defense attorney and/or adjuster.

Use blow-ups and time lines. This is the only way to easily convey your message to the
jury. It appeals to all of the senses and will ensure that the message you are sending
isn't forgotten.

g) Focus Groups. Must be done in bigger cases and they can be done relatively
inexpensively.

Litigation Groups. In bigger cases form litigation groups with other attorneys handling
similar cases. These will prove to be invaluable for exchanging ideas and theories. You
can also do focus groups with the other people in your litigation group. This will allow
you to do more focus groups while spreading the cost around.

h) Trial Notebook. This must be done. Also meet with experts, plan schedule. Prepare
voir dire questions, jury instructions, witness list and exhibit list. Consider using a jury
questionnaire, research applicable case law, summarize deposition testimony, prepare
 notices in lieu of subpoena.

i) Motions in Limine. Consider what you would like to keep out and prepare such
motions in advance. Also, prepare a verdict sheet. Remember to try to help the trial
judge as much as possible and he or she will appreciate you efforts and know that you
are serious about the case.

5) There are a number of videos that can be used to help prepare your clients and put them at
ease about the litigation process. The State Bar of Wisconsin has a number of good tapes entitled:
- Preparing for Your Deposition
- Preparing for Your Compulsory Medical Examination
- Going to Court - this is a 2 part tape that explains what is expected of the client and what the
litigation process entails. It covers courtroom personnel, direct, cross, proper attire and many
other areas.
You can contact the State Bar of Wisconsin at 608.257.3838.
6) Visit you client's home before trial. Get to know the family and the effect your client's injury
has had on the family. How has it changed them. This relaxed atmosphere is your best
opportunity to get to know your client, their family and understand their injury.
7) If you have difficulty getting medical records from doctors or hospitals, you should write to the
Board of Medical Examiners and ask them to investigate the medical provider.
In most states, patients have a statutory right to their medical providers. In New Jersey, N.J.A.C.
8:43G-15.3 outlines the providers obligations. The New Jersey State Board of Medical Examiners,
140 E. Front Street, 2nd Floor, Trenton, NJ 08608 will investigate any provider who does not
comply with the administrative code.
8) Other Similar Incidents - Try to get as much information from other attorneys on similar cases
they have. ATLA Exchange is a good source of information. Also, within your own case, make sure
you serve interrogatories and notices to produce for other similar incidents on the defendants.
9) Be sure to seek sanctions for any discovery abuses. Courts are more inclined these days to
sanction Honda, GM or other big company for their abuses. The sanctions range from money to
judgment in favor of the plaintiff.
10) Always do multiple pre-trial preparations. Trials often get postponed. Preparation each time
will make you ready when the trial actually comes.
Outline all the testimony of the plaintiffs and experts and share it with them so everyone knows
what to expect.
Outline, in general terms, the cross-examination that you plan to do of the defendants and their
experts based on their reports and depositions.
Always review the medical literature well in advance so that if there is any information you plan to
use, it is known to the defendants and they are given proper notification
Pre-trial Preparation

Home > Communicating Results > Courtroom Testimony > Pre-trial Preparation

The failure to prepare adequately for courtroom testimony can lead to disaster. Pre-trial preparation
begins upon receipt of the case. Ensuring that complete, accurate and legible case file notes are
documented will dramatically reduce the amount of pre-trial preparation required and, most likely, the
amount of time that the witness will remain on the stand.
Prior to giving any testimony the analyst should thoroughly review the entire case file along with any
source or reference material contained in the case. The analyst should be prepared to answer questions
about their laboratory standard operating procedure, proficiency testing, accreditation, and literature in
the field that directly relates to the testing performed in the instant case.
Given the large body of literature in the DNA field it would be impractical to know of every article,
study, or text that deals with DNA. When confronted with an unfamiliar piece of scientific literature,
one possible and not unreasonable response could be “I am not certain about the piece that you are
referring to. However, if you have a copy, I would be happy to take a look at it.” Special note should be
made that the response did nothing more than offer to look at the piece. It did not indicate that you
could adequately digest and apply the substance to any further questions.
Additionally, the analyst should schedule a time to meet with the attorney and review the case file and
test results. Do not expect the attorney to be fully versed in your field of expertise or know what
questions he or she should ask. Likewise, you should assist the attorney in the preparation of any
exhibits or demonstrative aides that you expect to use. This entails creating graphical presentations,
ensuring the content is accurate. If using electronic methods such as Power Point, slides, videos, jpg,
etc., you should practice and be prepared to use the media during trial. Witnesses must also be prepared
for the worst case scenario during trial. For example, the witness should always have a back-up method
ready for use in the event of an unexpected technical problem.
Appearance

Home > Communicating Results > Courtroom Testimony > Appearance

The manner in which analysts dress and carry themselves in the courtroom will speak volumes about
them, their agency, professionalism, quality of work, and self-confidence. Appearing too casual or
sloppily dressed can be seen as a weakness in these areas as well as infer a level of disrespect to the
proceedings. Likewise, overdoing it can be received as arrogant and condescending. Either extreme is
distracting and can easily be used to support or undermine the quality of an analyst’s work. Appearance
should also be understood to include gait, posture, and eye contact.
Courtrooms are traditional and conservative environments and not necessarily the best place to exhibit
the most current fashion trends or styles. Witnesses should not wear excessive or gaudy jewelry or
accessories. The mini skirt, extra wide (or narrow) tie, nose or lip piercings, and multiple ear piercings
are better left at home.
Unless mandated by agency policy, use of any uniform as court attire is normally discouraged. A
business suit is more appropriate. A suit lends itself to objectivity and is a convention normally
associated with professionals. Defense counsel can easily project the witness in uniform as nothing
more than an extension of the law enforcement agency and thus the results are predictable and not
objective.

Demeanor

Home > Communicating Results > Courtroom Testimony > Demeanor

Professionalism, competency, objectivity, and integrity: these are the concepts that should come to
mind when considering the appropriate demeanor to exhibit in court proceedings. Maintaining the
integrity of the individual as well as the science involved is critical. “Yes, sir,” “no, sir,” “yes, Your
Honor,” “no, Your Honor,” and the like are entirely appropriate.

Handling the Aggressive Attorney

Circumstances will certainly arise that will tempt the analyst to enter into a debate or confrontation
with the attorney. There are more effective methods to deal with attorneys who create such
circumstances. It is important to remember that the attorney may be doing nothing more than
intentionally trying to confuse or agitate the analyst during their testimony. The strategy has less to do
with the substance of the testimony and more to do with demeanor and presentation to the jury.

Do

• remain professional and composed;

• remain objective;
• use volume and tone to deflect hostility;
• explain answers, if necessary.

Don’t

• become agitated or argumentative,

• permit the attorney to put words into your mouth,
• become personally invested in the case or its outcome.

Presentation Skills

Home > Communicating Results > Courtroom Testimony > Presentation Skills

Presentation skills are difficult for an analyst to master. The ability to balance the highly technical field
of expertise while ensuring the jury comprehends the content is not as easy as one would initially think.
It is easy for the testimony to become overly technical and scientific, well beyond the grasp of the
jury’s ability to understand. Conversely, it is equally easy to oversimplify the subject matter and
become condescending or insulting to the jury. Witnesses should remember to enunciate clearly and
loudly enough to be heard by the jury. Always check with the attorney to get an idea of the jury
composition and education level. Remember that the most precise, technically correct and jargon-laden
statement doesn’t mean anything if the jury doesn’t understand it correctly. The analyst should double
check any materials that they expect to use in their presentation for accuracy and clarity.
Trial Preparation Settlement Conference
Pre-Trial Orders
In the Provincial Court of British Columbia
(Small Claims Court)
The following must be brought to the trial preparation settlement conference. Documents prepared by you for the 
Court
should be in typed format where possible. These documents need to be collected and put together in an 
organized fashion
with a copy for the Judge and a copy for the other party(s).
Statement of facts in the order events happened in numbered paragraphs . . . . . .
List of persons who have information and will attend trial and . . . . . . . . . . .
a brief summary of what each witness will say under oath
Details of claim calculations . . . . . . . . . . . . . . . . . . . . . . . .
Documents that are relevant to the evidence . . . . . . . . . . . . . . . . . .
(contracts, cheques, work orders, invoices, etc.)
Photographs that assist descriptions (if any) . . . . . . . . . . . . . . . . . .
Repair estimates (if any) . . . . . . . . . . . . . . . . . . . . . . . . . .
Expert reports (if any) . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other
If you intend to make a settlement offer according to Rule 10.1, Civil Rules, you may do so prior to the pre­trial, 
during the
pre­trial or within 30 days of the pre­trial. If you do not make a settlement offer you cannot ask
for the 20 per cent cost
penalty under Section 10.1(7).
REGISTRY FILE NUMBER:

Ordered:
Signature of Judge

Date:
Party:
SCL 051

Voir Dire
Pretrial Preparation Techniques for an Effective Voir Dire
Voir dire can be a highly productive process, providing a wealth of information for making astute
challenge decisions — and laying the foundation for your case — or it can be a disastrous waste of
time. Effective voir dire and jury selection require careful preparation. This article reviews the pretrial
preparation techniques that can help you develop voir dire and jury selection strategies to help you pick
the best audience for your case and to give that audience the right impression.
1. 1. Introduction
2. 2. Planning the Questioning Process
3. 3. Interacting With Potential Jurors
4. 4. Reading Potential Jurors’ Behavior
5. 5. Persuaders, Participants, and Non-Participants
6. 6. Asking the Right Questions
7. 7. Areas of Inquiry
8. 8. Questionnaires
9. 9. Assessing the Case
10.10. Conclusion
Introduction
The primary purpose of voir dire is to provide attorneys with enough information about prospective
jurors to make intelligent use of peremptory challenges. It is nothing less than the process that permits
you to find the audience that will be most receptive to your case.

But the lawyers aren’t the only participants who learn something during voir dire. While you are busy
eliciting information from prospective jurors during voir dire, the jurors are rapidly picking up clues
about you and your case. They are formulating impressions of the merits of your client’s case and your
own credibility, competence and trustworthiness. If your voir dire is haphazard or half-hearted, jurors
will undoubtedly draw negative inferences about you and your client’s case.

Planning the Questioning Process

The most fundamental aspect of planning an effective voir dire is to develop a set of appropriate
questions for the prospective jurors. This is no time to resort to a list of canned questions that may or
may not be relevant to your case. An excellent starting point for developing your questions is to list
your case themes. All of your questions should in some way aim to elicit responses that tell you which
prospective jurors will be favorably disposed to your case — and which ones you should strike from
the panel. (We will discuss specific model questions later in this article.)

Start with "How" and "Why" Questions. Structure your questions to elicit the maximum amount of
information from jurors. Ask open-ended questions that begin with phrases like, "Can you tell me a
little about…?" or "What have your experiences been with…?" In general, questions that begin with
"what" ("What did you study in college?") elicit basic facts and generalities from jurors. Questions that
begin with "why" ("Why did you study psychology?") elicit explanations; and "how" questions elicit
jurors’ feelings. Generally, you will obtain the most valuable answers with "how" and "why" questions.
Ask Easy Questions First. The order in which you ask questions is important. Most people maintain a
low profile in a group. They are nervous and uncomfortable. You give jurors an opportunity to relax if
you start the interview with easy, basic questions, such as, "What’s your occupation?" or "Where do
you work?" After you have broken the ice, move into questions that ask about feelings. You are more
likely to obtain expansive, meaningful answers if a juror is relaxed.

Review the Questions. When you finish drafting your questions, have others review them. Better yet,
have someone else read your questions out loud so that you and the reviewers can all hear them. Many
lawyers have inadvertently embarrassed an otherwise good juror with a well-intentioned, but poorly
phrased question. "Did you ever get to college?" may embarrass the potential juror; "What’s your
educational background?" probably won’t.
Plan Alternative and Follow-up Questions. Design several different ways of asking for the same
information. If you have told prospective jurors you are interested in them as individuals, and you ask
every one of them the same questions, you will reduce your credibility. Follow-up questions will help
you tailor the questioning to the juror and help the jurors expand on their initial replies. Good follow up
questions include, "Can you tell me more about that?" "Why is that?" "How so?" "I’m not sure I quite
understand; could you explain?" and "What is it like to…?"
Don’t Ask About Fairness Unless Challenging for Cause. Eliminate questions about potential jurors’
"fairness" or "impartiality" in your voir dire questions, except when you are pursuing a challenge for
cause. Jurors resent being asked if they can be fair, and you rarely get meaningful replies. Save this
term for the judge or your pursuit of for-cause challenges.

Interacting With Potential Jurors

Since the jurors are forming impressions of you and your case, remember, first impressions are lasting.
They also affect what happens to incoming information. People accept subsequent information from a
source that they view as credible, and reject information from discredited speakers. A positive first
impression will give you a halo of credibility and open the door for the prospective jurors to believe
you and your witnesses. A negative first impression will do exactly the opposite.
What Prospective Jurors Look For. Jurors will be evaluating your credibility, sincerity, and
trustworthiness from the very beginning. They will also be looking for cues about your confidence in
the case. Don’t be overly dramatic and don’t go out of character. Be real, be human. Demonstrate your
convictions.
Set the Right Tone. The tone you set is important. You want to create a relaxed informal atmosphere in
which people feel comfortable speaking up. The formality of the courtroom atmosphere does not invite
open, free exchanges. You will have to work at establishing rapport.
Self-Disclosure. Social psychologists regard voir dire as a self-disclosure interview during which an
interviewer is seeking information from interviewees about their history, attitudes, and beliefs.
Research has consistently demonstrated that self-disclosure on the part of the interviewer leads to
greater self-disclosure from the interviewee. People do not readily reveal their thoughts about sensitive
topics to strangers. Instead, they reveal themselves to those who have disclosed to them; they
"reciprocate," hence the phenomenon known as the "reciprocity effect." People seem to feel compelled
to respond in kind to another’s self-disclosure. This principle is often neglected during voir dire.

Overcoming Resistance. Many lawyers offer a cursory introduction of themselves and their clients,
begin asking prospective jurors very personal questions, and are then frequently puzzled and frustrated
by the "resistance" they meet, or complain that jurors never tell the truth during voir dire. The problem,
in all likelihood, is a lack of reciprocity. They are asking for too much information while offering too
little of it themselves.
Breaking the Ice. Many attorneys very effectively break the ice by acknowledging to jurors that facing
a group of strangers can be a little unsettling during the first few minutes. They tell the jury that they
can understand how it feels to be in the jury box facing a courtroom full of strangers. Such comments
"model" self-disclosure to the prospective jurors. One of the ways we learn to behave appropriately in a
new situation is to observe other high-status individuals. Handled with poise, such "admissions" do not
diminish the attorney’s credibility, but instead enhance his or her effectiveness in jurors’ minds.
Establishing Empathy. You may want to tell jurors that you understand how difficult it is for them in
the jury box. If you’ve been there yourself, you might consider telling them so. Seek to establish a
common bond with the jurors. Suggest that by working together perhaps you might be able to help each
other feel more at ease and get through the process relatively quickly.
Let Them Know What Your Role Is. Let jurors know that is it difficult to ask some questions, but that
you know from past experience that it is helpful to everyone involved if you ask them. Don’t just tell
them that you have to ask certain questions for your client’s sake. Jurors know you’re interested in your
client. Let the jurors know that you are interested in them. Point out that questioning generally benefits
jurors as well. Explain that many jurors in other trials were grateful they had been asked about issues
and evidence that would be introduced in the trial. It allowed them to evaluate whether they could be
objective jurors for a particular case, and not find out too late that the case presented many personal,
painful connections that they could not remove from their thoughts.
"Self-Induced Challenges." You may also want to model a few so-called self-induced challenges.
Think about your own background. What type of case would be difficult for you to sit on as a juror?
Think of one, and then describe it for the jury. For example, if the situation fit, you might explain to
jurors that as a parent of a six-year-old boy who had been injured in an automobile accident involving a
drunk driver, it might be rather difficult for you to be an open-minded juror in a driving-while-
intoxicated case. It simply might be too hard for you to pay attention to the evidence, which would be a
disservice to both sides. Explain that in such a case, you feel you would need to be excused from
serving on such a jury. Then explain to the panel that you want to give them the opportunity to tell you
about the things they feel might interfere with their ability to hear the case. You are essentially inviting
jurors to "self-challenge," thereby removing some jurors you might otherwise have to eliminate through
a risky challenge for cause. Challenging a sympathetic prospective juror has its risks.
Strive for Openness. Create an atmosphere of openness rather than interrogation. Always encourage
the potential juror to tell you how he or she feels, rather than telling "us" or telling "the court." It is
easier to reveal feelings to another person than to broadcast them to strangers in a courtroom.
Listening and Reinforcement. One common complaint among former jurors is that they felt the
lawyers were more interested in recording their answers than in listening to them. By demonstrating
your interest in the replies of jurors, you can show that you value what they say. Have a master seating
chart for recording jurors’ names and a checklist of voir dire topics that you plan to cover with each
juror. You must be able to talk with jurors and not merely direct questions at them.
Reinforcing Helpful Speakers. Reinforce those jurors who provide descriptive answers. By thanking
jurors who speak up, you invoke an age-old principle of psychology; a behavior that is reinforced will
occur more often. Not only do you encourage the individual to whom you are speaking to talk more;
other jurors looking for cues on how to behave appropriately learn how to win praise. Potential jurors
value praise from a high-status individual, and the praise reinforces the praised behavior. "I admire
your honesty" and "I appreciate your willingness to be candid with me," are potent reinforcing
messages.

Reading Potential Jurors’ Behavior

Bring along co-counsel, a paralegal, or a consultant, but do not try to conduct voir dire alone! Listening
to jurors’ replies, observing their style of answering, noting their nonverbal behavior and recording
their responses—all while trying to ask coherent questions and develop a rapport—is too much for one
person to accomplish. You need someone else to record potential jurors’ replies and help you observe
their behavior.

When to Keep an Eye on Them. It is absolutely essential to have someone observe the prospective
jurors for you while you are asking the questions and to observe them yourself while your opponent is
asking the questions. You may get the impression that a juror who frowns while you interview her is
hostile to you. But if you do not observe that person’s behavior while opposing counsel interviews her,
you have no way of judging whether your impression was correct. The juror may very well throw the
same scowl at your opponent, perhaps signaling nothing more than indigestion or mere resentment at
having been called for jury duty.
Reading the Nonverbal Cues. Observe the posture of the potential jurors. Do they look defiant? Are
their arms crossed? Are they leaning forward, using gestures as they speak? Do they maintain eye
contact while speaking? While they give their answers do they let their eyes roam? Do they appear
intimidated? You cannot, of course, catalog and assess every nonverbal signal. But you should stay
alert for behaviors such as looking away, leaning back, rolling eyes toward the ceiling, and sighing as if
giving each answer is a Herculean effort. Look for the following cues:
• Are potential jurors’ eyes averted, downcast, or do they look directly at you and your client?
• Is a potential juror’s speech hedging, direct and clear, or flippant and sarcastic?
• Is a potential juror’s body withdrawn and apologetic, erect and relaxed, or still and defiant?
• Are the potential jurors’ hands fidgety, relaxed, or clenched?
Watch their Interaction. When you or your assistants observe the potential jurors, you should all try
to look at them from a number of vantage points. One very important thing to assess about prospective
jurors is their interaction with each other and the court. Try to discern the following about them:
• Are they "feelers" or "reasoners," sensitive or insensitive, emotional or unemotional, capable or
incapable of empathy, sentimental or hard-hearted?
• Do they seem to be reclusive or sociable, isolated or involved?
• Do they have a narrow or a wide range of interests?
• Do they appear timid or adventurous, quiet or talkative, secure or insecure, vulnerable or
confident, fearful of the world or imbued with a strong sense of personal safety?
• Are they introverted or extroverted, dependent or independent, hesitant or spontaneous, self-
denying or self-indulgent, humble or arrogant? Do they convey the feeling that they view the
world with trust or mistrust?
• Would you describe them as idealistic or cynical, naïve or clever?
• Do their actions appear deliberate or impulsive?
• Do their attitudes seem conventional or individualistic, rigid or flexible, indecisive or decisive?
• Would you characterize them as complainers or cheerful, lethargic or energetic, prone to
excessive worrying or happy-go-lucky?

Persuaders, Participants, and Non-Participants

One very important judgment you need to make about each juror before beginning to exercise
peremptory challenges is to determine how influential any given juror is likely to be during jury
deliberations. Often, lawyers mistakenly look only for one potential foreperson. Research has revealed
that in fact, there are three or four likely forepersons on the panel. Observations of hundreds of jury
deliberations reveal that jurors display one of three levels of participation in the deliberation room.

Level 1: The "Persuaders." At one level are the "persuaders." These three or four individuals
(roughly 25 percent of the group) make over 50 percent of the statements during deliberations. They
are active leaders and coalition builders. They are relatively easy to spot on a jury panel if you are
surveying the group for more than one leader. Men in their forties are most likely to be among this
group, but it is by no means their exclusive province. Jurors who are active leaders and persuaders can
be male or female. Prior jury service often gives them special credibility among other jurors, and an
otherwise quieter juror will emerge as a leader. Previous experience managing or supervising people is
also a clue that an individual may be a persuader. If you utilize a juror questionnaire (discussed below),
you can directly ask potential jurors how often they find themselves in leadership roles. Most jurors are
relatively accurate in their self-assessments.
Level 2: The "Participants." The second group of jurors includes the "participants." These jurors
(usually about half of the panel) are very verbal, active, and responsive. In contrast to persuaders, who
often offer statements of fact from the trial, participants are more likely to offer opinions. For example,
a persuader might say, "Dr. Smith testified that the test results revealed the plaintiff had a serious
depression," to which a participant might respond, "Well, in my opinion, he was a pretty unbelievable
witness. I don’t trust head doctors." Participants generally do not build coalitions themselves, but
actively support the leadership of persuaders.
Level 3: The "Non-participants." Finally, "non-participants," who make up the remaining three or
four jurors, generally say very little. They remain passive and are clearly followers. They volunteer few
if any comments, unless called upon by the group to speak, in which case they usually pass on the
opportunity to speak or say, "I agree with what Joe said." They will follow the majority inclination.
Why It Matters. The importance of these distinctions is in recognizing where to focus jury challenges.
Six peremptory challenges do not seem like a lot when looking at a group of 12. However, it would be
a waste of a challenge to eliminate a non-participant in a civil case. Even if such a juror would reject
your position, this is not the juror who could persuade others to agree. Instead, focus your challenges
on the three or four jurors who are likely to be persuaders and who are likely to oppose your position. If
you successfully eliminate them and the replacements are acceptable, you can then turn your focus to
participants. Essentially, this step forces you to look at each individual juror as a group member.
Having assessed the jurors’ experiences and background through the voir dire, you must now make one
final assessment of jurors’ likely position within the group.

Asking the Right Questions

After you have elicited the information that tells you who the jurors really are, you may want to
sensitize them to some important concepts. The form of a question influences whether you are asking
for information or imparting it; thus, you can use questions as a subtle form of persuasion.
Know When to Use Persuasive Questions. You can be creative with such questions. But remember,
they give you little information about the jurors. Ask them only after you have fully examined jurors
and gathered all the information you need. Do not ask every juror these questions or they will lose their
power.

Areas of Inquiry
Basic Areas. The following questions are basic areas of inquiry relevant to most cases. These questions
were designed for use in a prospective juror questionnaire, but most are easily asked in open court
during voir dire.
• What is your occupation?
• Who is your employer?
• What is your employment status (full-time, part-time)?
• What is the principal activity of the company where you work?
• Do you hold any other jobs at present (second job, part-time job)?
• What is your title or position?
• In your work, do you have management or supervisory responsibilities? (This is an important
question in assessing leadership on the jury panel.)
• Have you had management or supervisory duties in the past? (This and the previous question
should alert you to possible persuaders.)
• What other occupations have you worked in? (Attorneys often fail to ask about other
occupations. In our society, economic influences sometimes require people to work temporarily
in occupations that reflect little about an individual’s occupational preferences. You should be
looking to learn about their occupational identity. For example, a juror may tell you, "I’m a
sales clerk at Macy’s." Without further inquiry, you may fail to uncover the fact that this person
has worked for 12 years as an accountant in a small corporation that recently downsized.)
• Have you ever been a member of a trade union?
• Have you ever owned your own business? If yes, please describe?
• Do any other adults live in your household? (If yes, get occupations and educational
backgrounds of all; note that this question is broader than merely asking about a spouse.)
• What is your marital status?
• What city do you live in?
• What other cities have you lived in for more than one year?
• Where did you grow up? (Questions about where a juror has lived give you a sense of how
narrow or wide a juror’s exposure to different people has been.)
• What is your educational background? What was your major area of study?
• Have you attended any other educational programs (evening schools, certification programs)?
• What type of volunteer work have you done? (This is especially important in personal injury
cases, from both plaintiff and defense perspectives.)
• Do you have children? (If yes, be sure to get ages and occupations, if appropriate.)
• What are the occupations of your extended family members (Parents, brothers and sisters)? This
question is often overlooked, yet parents and siblings, especially those living nearby, exert
strong influences on jurors, certainly as important as a spouse’s.
• Do you have any friends or relatives who are judges or attorneys?
• What civic, social, religious, or other organizations are you affiliated with?
 • What are your major hobbies, interests, spare-time activities?
• Have you, any members of your family, or close friends ever filed a lawsuit?
• If yes, who filed the lawsuit?
• What was the suit about?
• How was it resolved?
• What were your feelings about the process at the conclusion of the case?
• Have you, members of your family, or close friends ever been sued?
• If yes, who filed the lawsuit?
• What was the suit about?
• How was it resolved?
• What were your feelings about the process at the conclusion of the case?
• Have you ever testified in a trial or ever given a deposition?
• Have you ever retained an attorney?
• Were you satisfied with the services you received?
• Would you describe yourself as a leader infrequently, occasionally, or frequently? (This
question is directed at uncovering possible persuaders. It is best asked on a prospective juror
questionnaire, but can be asked orally, if done sensitively.)
• Have you ever written a letter to the editor of a magazine or newspaper? (This question is a red
flag for identifying a participant. A person who has written a letter to the editor obviously has
opinions and wants to share them.)
• How would you describe yourself in 10 words? (This is an excellent question. It elicits superb
information when asked on a questionnaire. It can also be asked orally, but again, it must be
done sensitively, and the attorney may want to offer a few self-descriptions of themselves to
elicit the reciprocity effect.)
• Have you ever served as a juror? (If yes, get details.)
• Were you ever the foreperson of a jury? (This is another signal that you may be dealing with a
possible persuader.)
• Have you taken any courses, had any training in any of the following areas? (Ask about specific
fields of study or training that could give the potential juror some knowledge, or even
prejudices, about your client’s case. If the potential juror has had such training, obtain answers
to all relevant areas.)
• Have you, any of your family members, or close friends ever worked for…? (Prepare a list of
all relevant occupations or businesses.)
• What additional information should I know?
Case-Specific Questions. Obviously, there are numerous areas of inquiry that will be unique to the
case at hand. These areas will be clear from your pretrial analysis of the case. There are several ways to
generate ideas for voir dire questions and deciding how to evaluate jurors in light of their replies.

Questionnaires

Questionnaires for prospective jurors are extremely effective for soliciting background information.
Courts are permitting lawyers to use them with greater frequency and fewer restrictions. They cover far
more information than oral voir dire can and, surprisingly, the information is generally very candid and
insightful. Many jurors find it easier to express themselves on paper than in open court, and they
elaborate in response to questions, which might otherwise receive only one word replies.
Questionnaires Can Save Time. When developed and administered effectively, questionnaires
generally save court time. Judges find them useful in expediting hardship requests. In complex cases
with many important issues to cover with jurors, or in cases involving multiple parties, they can be a
very helpful tool.

Assessing the Case

Discerning which type of juror will be most receptive to the arguments and issues in a case requires
careful attention to key issues, and at times, the application of fundamental marketing research tools.
Before conducting the voir dire, or planning a jury selection strategy, it is important to understand the
emotional, psychological, or prejudicial elements of the case, which may draw the attention of jurors.
You can accomplish this by observing the reactions and thoughts of non-lawyers in focus groups and
mock trials.

Focus Groups. An informal, effective way to obtain such insights is to undertake a focus group. A
focus group is a roundtable discussion undertaken with a dozen jury-eligible community residents.
Counsel presents a summary of the case and a colleague, familiar with the issues, presents the opposing
side. With the assistance of a moderator you are able to listen to the questions and comments from the
group. You will be tempted to answer the questions and persuade the group on the merits of your case.
Resist the temptation. It is more important that you hear their reactions and their questions. Which
issues draw their attention? What assumptions do they make about matters that weren’t presented to
them? What analogies do they use in discussing the case? Their comments, questions, and observations
can provide valuable insights about what real jurors may think of the issues, and serve as important
guides for voir dire and jury selection.
Mock Trials. For more complex cases, consider a more structured investigation. A mock trial is one of
the most powerful tools for analyzing your argument strategy and assessing jurors’ likely responses.
They provide a wealth of information beyond what a focus group can offer. Mock trials force you to
think through the entire case several weeks before trial. Moreover, planning a mock trial demands that
you fully evaluate the opposition’s case, because you must present a strong case for the other side if
your mock trial is to be meaningful.
The Advantage of Large Panels of Mock Jurors. If you use several panels of mock jurors, you can
obtain a sample size large enough to yield meaningful distinctions about juror profiles. For example, in
a products liability case, you may be able to learn whether men or women, or people who have some
experience with similar products, would be more favorably disposed toward your case. Mock trials call
for extensive preparations and careful attention to the recruitment of jurors to accurately reflect the jury
pool in the trial jurisdiction. Research at the mock trial level is generally more cost-effective if
coordinated by those trained in their design and implementation. The cost for a one-or-two-day long
mock trial has become increasingly affordable, even for relatively modest cases.
Conclusion
Preparing for voir dire is time well spent. An effective voir dire can provide you with information for
making effective challenge decisions during jury selection. Together with case assessment tools such as
focus groups and mock trials, the voir dire process can give you a distinct edge in picking the best
possible jury and trying your case to a receptive audience.

INSTRUCTIONS FOR PREPARATION AND SUBMISSION OF

FINAL PRETRIAL ORDER
Counsel are directed to meet in advance of the pretrial conference and jointly develop
the contents of the proposed Final Pretrial Order which shall be presented for the
court’s approval no later that five days before the final pretrial conference. Also, attention
is directed to Fed. R. Civ. P. 16(d) (“The conference shall be attended by at least
one of the attorneys who will conduct the trial for each of the parties and by any
unrepresented
parties.”)
Listed on the following pages is a format for matters to be included in the Final
Pretrial Order. For convenience of court and counsel, the sequence and terminology in

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
@,
Plaintiff(s),
Defendant(s).
FINAL PRETRIAL ORDER
@,
1. DATE AND APPEARANCES
2. JURISDICTION
3. CLAIMS AND DEFENSES
4. STIPULATIONS
[A statement of the basis for subject matter jurisdiction with appropriate
statutory citations. If jurisdiction is denied, give specific reason for the denial.]
[Summarize the claims and defenses of all parties, including the respective
versions of the facts and legal theories. Do not copy the pleadings. Identify the
specific relief sought. Eliminate claims and defenses which are unnecessary,
unsupported, or no longer asserted.]
[Set forth all stipulations concerning facts, evidence, and the applicability of statutes,
regulations, rules, ordinances, etc.]

5. PENDING MOTIONS
6. WITNESSES
7. EXHIBITS
a. List the non-expert witnesses to be called by each party. List separately:
(1) witnesses who will be present at trial (see Fed. R. Civ. P. 26[a][3][A])
(2) witnesses who may be present at trial if the need arises (see Fed. R.
Civ. P. 26[a][3][A])
b. List the expert witnesses to be called by each party. List separately:
(1) witnesses who will be present at trial (see Fed. R. Civ. P. 26[a][3][A])
(2) witnesses who may be present at trial if the need arises (see Fed. R.
Civ. P. 26[a][3][A])
ADDITIONAL INSTRUCTIONS: With each witness’s name, set forth (1) the witness’s
address, (2) a short statement as to the nature and purpose of the witness’s testimony, and (3)
whether he or she is expected to testify in person or by deposition.
a. List the exhibits to be offered by each party and identify those to be stipulated into
evidence. This list should be specific enough so that other parties and the court can
understand, merely by referring to the list, each separate exhibit which will be offered.
General references such as “all deposition exhibits” or “all documents produced during
discovery” are unacceptable.
(1) Plaintiff(s):
(2) Defendants(s):
(3) Other Parties:
[List any pending motion to be decided before trial, giving the filing date and the
filing date of any briefs in support or opposition. Include any motions on which the
court has expressly postponed ruling until trial on the merits. If there are no pending
motions, please state, “None.“]
[The following paragraph shall be included in the Final Pretrial Order:]
b. Copies of listed exhibits must be provided to opposing counsel no later than five days
after the Final Pretrial Conference. The objections contemplated by Fed. R. Civ. P.
26(a)(3) shall be filed with the Clerk and served (by hand delivery or facsimile) no later than
eleven days after the exhibits are provided.
8. DISCOVERY
Use the following language:
Discovery has been completed. [Unless otherwise ordered, upon a showing of good
cause in an appropriate motion, there will be no discovery after entry of the Final
Pretrial Order.]
9. SPECIAL ISSUES
List any unusual issues of law which the court may wish to consider before trial. If
none, please state, “None.”
10. SETTLEMENT
[Include a certification by the undersigned counsel for the parties that:]
a. They met (in person) (by telephone) on __________________, _________, to
discuss in good faith the settlement of the case.
b. The participants in the settlement conference, including counsel and the party
representatives.
c. The parties were promptly informed of all offers of settlement.
d. Counsel (do) (do not) intend to hold future settlement conferences.
e. It appears from the discussion by all counsel that there is
(a good possibility of settlement.)
(some possibility of settlement.)
(little possibility of settlement.)
(no possibility of settlement.)
f. The date of the next settlement conference before the magistrate judge or other
alternative dispute resolution method.
-11. OFFER OF JUDGMENT
12. EFFECT OF FINAL PRETRIAL ORDER
[The following paragraph shall be included in the Final Pretrial Order:]
 Hereafter, this Final Pretrial Order will control the subsequent course of this action and
the trial, and may not be amended except by consent of the parties and approved by the court
or by order of the court to prevent manifest injustice. The pleadings will be deemed merged
herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in
any provision of this Final Pretrial Order, reference may be to the record of the pretrial
13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION
PROCEEDINGS
State (1) whether trial is to the court or a jury, (2) estimated trial time, (3) situs (location)
of trial, and (4) any other orders pertinent thereto.
[COUNSEL AND THE PARTIES SHOULD NOTE THAT THE PROCEDURES FOR
SETTING AND CONDUCTING TRIAL AND FOR FURTHER CONFERENCES
BEFORE TRIAL VARY ACCORDING TO THE DISTRICT JUDGE ASSIGNED TO
THE CASE. THE JUDGES ALL HAVE WRITTEN PROCEDURES WHICH CAN BE
OBTAINED FROM THE CLERK’S OFFICE.]
-4-
[The following paragraph shall be included in the Final Pretrial Order:]
Counsel acknowledges familiarity with provisions of Rule 68 of the Federal Rules of Civil
Procedure (Offer of Judgment) and have discussed it with the clients against whom claims are
DATED this ________________ day of __________________, __________.
BY THE COURT
FINAL PRETRIAL ORDER SUBMITTED:
(Name)
(Address)
(Telephone Number)
Attorney for Plaintiff
(Name)
(Address)
(Telephone Number)
Attorney for Defendant
Please affix counsel’s signatures before submission of the Final Pretrial Order to the court.
-

I. ACCEPTING A CASE
Attributes of a good trial lawyer; Why to accept a case; Why not to take a case; A lawyer’s duty; Liability and
damages; What a case is worth; The Gluckstein case; Trial lawyers and insurance company lawyers; Purpose of the
initial client interview; Cases to avoid; Jurisdiction questions; Statutes of limitation; Accepting criminal cases; The
Jack Ruby Case; The lying client; The role of your investigator; Setting legal precedents; Determining
compensation; Stare decisis; Res Ipsa Loquitur; Libel and slander cases; Dramshop liability; Divorce cases; The
Frank Sullivan case; Personal injury cases; Other kinds of cases; Contributory negligence; Contingency basis and
fees; Referring cases to other lawyers; “Captain of the Ship”; A lawyer’s responsibility to his client; Avoiding legal
malpractice errors; and more.

II. PRETRIAL PREPARATION

Organizing client files; Assembling the trial team; How and where to do research; “A good investigator is worth his
weight in gold”; Locating witnesses; Deposing witnesses; The Irene Kincaid case; The race of disclosure; Key
elements of discovery; Checking and rechecking documents; Why to always examine evidence and check police
reports yourself; Preparing case law; “Trial by brochure”; Capt. Fred Rickenbeil case; Visiting the scene of the
accident; Preliminary hearings; Maintaining good calendar; Preparing civil and criminal cases; “Take nothing for
granted”; Errors in preparation; The Alaskan Twins case; Producing the “Day in the life of” films; The Case of the
Reluctant Stud; selecting expert witnesses; handling clients’ emotional demands; Avoiding mistakes; Pre-trial
settlement talks; and more.

III. PRESENTING THE CASE

Preliminary hearings; Exemptions from discovery; Counteracting your opponent’s deceptiveness; Protecting your
plaintiff; Picking the jury; Voir Dire strategies; the “fat juror”; Learning about an unfamiliar community; Preceded
by reputation; Preparing your witnesses for the stand; Purpose of exclusionary hearing; Motions: to quash, dismiss,
demur, lack of jurisdiction by grand jury, improper form, misjoinder of offenses, insufficiency of facts, consolidation,
severance, sequestration of witnesses; “Trial by ambush”; When to object; Overruled objections; How objections can
hurt you; How to
“read” a witness; “Educating” the jury; The jury’s view of the lawyer / client relationship; Dismissing a witness;
Motions during trial; The “Texas objection”; San Francisco Giants breach of warranty case; Making case
weaknesses into strengths; Handling medical experts; The chess game of courtroom procedure; and more.

IV. OPENINGS AND CLOSINGS

The excitement of trying a new case; Purpose of the opening statement; Developing the case theme or sobriquet;
Why to prepare your closing statement first; The Escola v. Coca-Cola case; The use of parables and analogies; Use
of the “Golden Rule” when educating the jury; The Victor Hungerford case; The lawyer’s attitude toward a judge;
Brevity and succinctness; Reading the jury while orating; The Reckenbell closing; Attacking the opponents’
arguments; “Speaking objections”; Flukes and luck; Special issues and instructions; The most effective closing
words ever used; How much to allow for rebuttal; “When the doves fly”; The danger of overconfidence; Use of
demonstration evidence; Key mistakes to avoid in summation; and more.

V. DEMONSTRATIVE EVIDENCE
Original use in criminal trials; “Father of demonstrative evidence”; Ernie Smith case and the drawer of shivs; Words
vs. pictures - show rather than tell; Use of aerial photographs; Blow-up documents; Models and exhibits; “Day in the
life of” films; “Elmer” the skeleton; X-rays; The plaintiff’s physical body; The Chester Bryant case against the cable
car company; Using a blackboard to compute awards; The Katherine Jeffers case and the artificial leg; The crushed
urethra rod; “The Adequate Award”; The case of Wimbledon champion Maureen Connolly; “A Day in the Life of
Brian May”; Experiments outside the courtroom; Ways to use computer animation; Medical chart, anatomical
drawings and micro photography; Microbiological forensics; Use of common objects; Videotaped depositions; and
more.

VI. COURTROOM TACTICS

“The courtroom is a theatre”; How to enter the courtroom; Using your physical tools - hands, eyes, voice, pacing,
etc.; How to best display your witness; The Gertrude Jenkins case; Waiting for and recognizing opportunities
during trial; The Maggot Therapy case; The Salk Polio Vaccine case; Tricks to get evidence introduced; John
Knight in the Judge’s chambers; “Be yourself”; “Last clear chance”; The use of silence; The power of tears;
Candor, frankness and sincerity; The best way to use the transcript; Trial delays; Cross-examining witnesses and
experts; Discrepancies in the dispositions; Hearing “The angels sing and the cash register ring”; Gluckstein
disrobes in chambers; Things lawyers should never do in trial; and more.

VII. CRIMINAL DEFENSES

“Client is not guilty until proven guilty”; Lawyer’s job is to find that “little bit of goodness”; Bail
options; Problems imposed on a lawyer by the criminal justice system; The Soledad Brothers case;
Picking the jury; Defending Mickey Cohen; The Jack Ruby case and Texas justice; Lawyer’s instructions
 to his criminal client; Criminal trial notebook; Addressing indictment charges; Discovery process; Plea-
bargaining; Grooming defendant for the stand; How the jury views your defendant; How the defendant
can best help his attorney; Military justice; Grounds for dismissal; How to handle improper matters - go
sidebar; Motion for acquittal; Making white collar cases simple; Cases at San Quentin; Death penalty
cases; Pros and cons of the insanity defense; Drunk driving cases; “Summation is not an argument”; and
more.

VIII. WINNING ON APPEAL

Trying a case on appeal; The appeal record; Motion for a new trial; Classic grounds for appeal; Essential elements
in the appeal brief; Role of the court record; How court reporters, record clerks, and transcribers can help or hurt
you; The timeliness factor; The Cutter case - negligence and breech of warranty; The Major Victor Hungerford case
- statute precedent; The Jack Ruby case; Geographical differences in the court system; Certiorari; Stays and
injunctions; Preserving demonstrative evidence for the record; The Simon case - last fair chance; Settling using
high/low; Criminal appeal in the Sylvio Tosi case; Dealing with the client relationship through the appeal process;
When a lawyer should not represent his client on appeal; Protecting against malpractice errors; Preparation for the
U.S. Supreme Court; and more.

IX. AWARDS AND SETTLEMENTS

“The Adequate Award”; Progression of awards; Re-establishing award ceilings; How awards vary by geography;
Computing damages - extent of injury, pain and suffering, medical bills, loss of earnings, profits or enjoyment,
computing inflation, other damages; The Cutter Case; Big money cases; Adequate award and justice; Key elements
of good settlement brochures; Dealing with insurance settlers; The Japanese case; Pre-trial settlement evidence and
conferences; When to opt for structured settlements; Constructing accurate economic reports; Knowing when to
settle; Computing damages before the jury; The jury’s role in awards; Punitive damages; How a simple letter can
bring swift settlement; Awards in personal injury, product liability, breech of warranty, medical malpractice, the
future of awards; and more.

X. LEGAL ETHICS
Why people come to lawyers; The true purpose of law; The lawyer’s role as a citizen; The lawyer’s
obligation to his client; Dealing with publicity and fame; Within the boundaries of good taste and
judgement; “Ringing the bells”; Why to always defend “the little guy”; Recognizing the right causes; The
ethics of self-promotion; Balancing flamboyance and legal acumen; Advantages of membership in legal
groups; The lawyer’s role in community service; When to decline a case because of bad ethics; When
ethics supersedes profit; Dealing with ethics boards; The value of good media relations; Ethics of the
attorney-client relationship; Unethical things a lawyer should never do; Ethical traps to be aware of;
Ethics and legal malpractice; How a lawyer can best serve the legal profession; The flowering of
American jurisprudence; and more.

Trial Preparation
1. Format. The basic trial format will be as follows:
Call to order.
Opening Statements: Accuser; Defender.
Accuser's case in chief (witnesses).
Defender's case in chief (witnesses).
Accuser's rebuttal witnesses.
Closing Arguments: Accuser; Defender; Accuser.
Judge instructions to the jury.
Jury decision (secret ballot; no oral deliberations; a 2/3s vote is necessary to
convict).
2. Timing. The trials are scheduled to last two and a half class days (180 minutes).
Each side
will have a total of 75 minutes for all its activities, including: opening statement;
examination
of witnesses (direct, cross, redirect); significant objections that the group loses;
planning;
closing argument. If there is additional time available, advocacy teams can
request the judge to
allocate it to them. The judge shall be the timekeeper and her decisions shall be
final.
Each trial day will start on time. Note that lateness or absence is subject to a
grade penalty.
3. Witnesses. Each advocacy group is responsible for producing the witnesses
assigned to it in
the list at the front of the case packet. In other words, one group member will
enact each of
those witnesses. Note that many of the witness' names are gender neutral (e.g.,
"Lexi" could be
male or female). Your group may decide not to call one or more of "your"
witnesses; that can
be an excellent strategic decision. But since it is possible for the other side to call
"your" witness
(as a hostile witness), someone still needs to be prepared to "be" that witness.
The one
exception: only the Defense groups may call the accused himself to testify,
although the Accuser
is free to cross-examine if the Defense does so.
Obviously, the witnesses may say anything they want at trial. I discourage you
from making
things up, however; it is unfair. Significant variations from the previous
statements recorded in
the case packet will also obviously lead to impeachment.
4. Advocates. Every member of a group should take at least one "lawyer" role. You
may split
any task among group members—for example, having two people share the
Opening Statement.
5. Pretrial Preparation. Prior to its trial, each advocacy group will hand in to BOTH
the judge
AND the other side a set of Pretrial Documents specifying its overall case strategy:
-Theory of the Case.
-List of Witnesses that the advocacy group plans to call.
-List of Documents or other exhibits that the advocacy group plans to introduce.
-Outline of Arguments—a detailed outline of the major arguments to be used in
the
advocacy group's Closing Argument. The main claim of each argument should be
specified
(e.g., "Opportunity: The accused was at his girlfriend's house at the time of the
crime").
After the document exchange, both Accuser and Defender groups will meet with
the judge for a
Pretrial Conference, to do a "walk through" of the entire trial. Be prepared to
discuss in detail
what you plan to do during each section of the trial. Significant departures from
the case
strategies discussed at the Pretrial Conference will result in substantial grade
penalties, unless
permission of the judge is sought in advance.
Failure to meet these guidelines will result in substsantial grade penalties.
6. Objections. Objections are possible, but discouraged unless the objectionable
conduct is
likely to significantly ("materially") affect the trial's outcome. In other words, don't
sweat the
small stuff. As noted above, the team losing the objection will "pay" for it out of its
time. A list
of court rules will be passed out prior to trial; they'll include things like the rule
against
argument in opening statements; the rule against vouching; the rule requiring all
statements to
be based on evidence; and various rules involved in questioning witnesses.
7. Assessment. Good trial advocacy demonstrates:
1. A good, consistent theory of the case (see standards).
2. Good storytelling (see standards).
3. Good questioning (see standards).
4. Good arguing (see standards).
5. Ethical behavior as advocates, including:
-Not being complicit in perjury.
-Showing basic fairness to the opposing side.
-Showing respect for everyone in the courtroom.
6. A strong group spirit, including:
-Shared responsibilities—everyone taking a significant role that best uses their
personal strengths.
-Coordinated responsibilities—everyone "on the same page."
-A strong ethos: professional and fun.
7. Dealing well with the unexpected.
8. Extra credit. Any individual or group who believes or learns that their group has
made a
mistake in trial planning or performance that would affect the group's grade may
submit an
analysis of the mistake for extra credit. The analysis should include: a description
of the
mistake and a detailed discussion of what would have been the better thing to do.
For example,
if there was a mistake in the way the Opening Statement was constructed, the
analysis should
identify the exact problem, explain why it was a problem, and then construct a
new Opening that
would avoid the problem.
The extra credit analysis should be submitted to me by email no later than 48
hours after the
mistake occurred.

TRIAL PRE PARATION

Da vid Br oad
INTR ODUCTION
It is trite to assert that careful and thorough preparation is essential to effective trial
advocacy. However, the truth of that statement cannot be over-emphasized. Sopinka,
Houston and
Sopinka, in their treatise The Trial of an Action (2d ed) at p. 37, put it this way: “The brilliant
orator
who is unprepared will seldom prevail over a well-prepared but less articulate adversary.”
Trial preparation is a continuous process in each case, commencing with the opening of
the file and continuing through to final submissions. The job of litigation counsel is to achieve
a
resolution of his or her client’s dispute in a manner that will accomplish, to the fullest extent
possible, the client’s objectives. Trial preparation involves ascertaining the client’s objectives,
gathering the facts, marshalling the evidence to prove the facts or to refute the opposite
party’s
position, applying the appropriate legal principles to the facts, developing a coherent theory of
the
case, and developing a method for presentation of the theory, the evidence and law to the
decision-maker, whether that be opposing counsel and his or her client in the context of
settlement
negotiations, or the judge or jury in a trial setting.
INI TIAL CLIENT I NTER VIEW
Preparation for trial invariably begins with the first interview with the client. It should be
focused on gaining an overall understanding of the nature of the dispute, the facts giving rise
to
and surrounding the dispute and helping the client to discover and articulate his or her
objectives
for a satisfactory resolution of the dispute. Often the client will not have determined what his
or her
objectives are, focussing more on the dispute itself, rather than upon its resolution. It is crucial
that
a complete record be kept of the first interview. If it is a matter of any complexity, I will, within
24
hours of the interview, dictate a detailed memorandum to the file, recording the entire
interview
together with my initial impressions of the facts and the issues. It is surprising how often those
initial interview memorandums are referred to in the later stages of trial preparation.
Page 2 of 10
CHECKLIST
Following the initial interview, trial counsel should begin developing a checklist of matters
to be attended to in preparation for pleadings, discovery, settlement negotiations and trial.
The
checklist would address the following matters:
Issues of fact and law
Documents
Names addresses and phone numbers of potential witnesses
Witness statements
Identification of issues requiring expert opinion
Experts’ reports and C. V.’s
Legal memoranda
Chronology
In most situations it is prudent to conduct a review of relevant law as early as possible which
will assist in identifying the issues and the nature of the evidence which may be required to
prove
or defend the case. For example, a claim by a purchaser for a latent defect in real estate
following
closing will in most cases depend on proof that the vendor had knowledge of both the
existence
and the extent of the defect. It will be important to identify and obtain statements of any
witnesses
on that issue very early in the process. Early examination of the law is also crucial to the
development of the theory of the case, which will shape the nature of the trial preparation.
THEOR Y OF TH E C AS E
The theory of the case will constitute the framework for the presentation of the facts and
law. Recognizing that counsel’s job is to obtain, by settlement or disposition, a resolution
which will
achieve the client’s objectives, the theory of the case must be founded on those objectives.
Identifying the objectives will involve a consideration of all of the client’s relevant
circumstances, as
well as any external factual and legal constraints on what is achievable. For example, a
dismissed
employee’s primary objective may be reinstatement to his or her former position due to the
immediate need for a stream of income. Except in extraordinary circumstances, that objective
will
not be achievable by judicial disposition in a non-union context and, accordingly,
reinstatement will
only be achievable through settlement negotiation. If that seems possible, that will shape the
theory
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as well as the method of presentation of the theory. If impossible, the objective will need to be
changed, which will in turn affect the theory.
There may be a number of alternative theories of the case at the early stages of the file.
Trial preparation, through the process of fact identification, evidence gathering and legal
investigation, should seek to eliminate possible theories in order to develop one single
coherent
theory which will be presented to the Court. Multiple theories tend to confuse, distract and
reduce
the impact of the case in the mind of the judge or jury.
PRE PARING FOR TH E TRIAL
Following discovery, trial counsel should be making final preparation for presentation of the
case at trial. This will involve a consideration of the manner in which facts will be proven, any
legal
conditions to the admissibility of evidence, as well as practical problems in marshalling the
evidence, including ensuring witness and document availability, and the order of presentation
of
the evidence.
(a) Manner of Presentation of Evidence
Consideration should be given as to whether certain facts will be proven by oral
evidence, by means of a Request to Admit facts or documents pursuant to Rule 51 of the
Rules of Civil Procedure, through cross-examination of a witness of the opposing party, or
by the reading in of answers given on discovery. The choice of method of presentation will
be driven in large measure by the nature of the available evidence, however in cases
where there is a choice, the impact which the evidence will have on the Court in accepting
your theory of the case should dictate the method of presentation. For example, if a crucial
admission is obtained from the opposing party on discovery, reading the admission in from
the transcript into the record will often have more impact than obtaining the same
admission by means of a Request to Admit.
Consideration should also be given to the use of demonstrative evidence, such as
photographs, videos, charts or summaries, and how such demonstrative evidence will be
introduced. Presenting evidence in a visual way will almost always increase its impact. In
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a commercial case involving a large number of documents, the preparation of charts,
spreadsheets or graphs will assist the court in digesting and evaluating complex
transactions.
(b) Use of Discovery at Trial
It is suggested that a typed summary of the examinations for discovery (both of the
opposing party and your own client) be prepared, cross-referenced and labelled according
to issue in some fashion, either manually or electronically. The summaries should be
included in the trial brief referred to below. The use of oral examination for discovery at
trial is governed by Rule 31.11. Questions and answers on discovery may be read in by a
party as part of his or her own case and may be used to impeach the testimony of the
deponent as a witness. It should be noted that defence Counsel need not put an admission
made by a plaintiff to the plaintiff during his or her testimony prior to reading it in as part of
the defendant’s case (see Canadian Imperial Bank of Commerce v International Harvester
Credit Corp. (1985) 50 O.R. (2d) 318 (H.C.J.).
(c) Request to Admit
Consideration should be given to serving a Request to Admit in every case. Rule
51.02 provides that a party may serve a Request to Admit facts and/or documents at any
time. It is important to remember that multiple Requests to Admit may be served by a
party. The recipient of the Request to Admit is deemed to admit the fact(s) and the
authenticity of the documents referred to in the Request to Admit if a Response to Request
to Admit is not served within twenty days of service. Where admissions are obtained on
discovery but would be obscured or hard to follow if they were read in at trial from the
transcript, consideration should be given to setting them out more clearly in a Request to
Admit. If there are uncontroversial facts or documents which are necessary to prove at
trial, serving a Request to Admit will save time at trial and allow the Court to focus on the
real issues more quickly. There may be documents which may be difficult to prove
formally which may become admissible through the use of a Request to Admit. In the
event that opposing counsel has, in his or her Response to Request to Admit, admitted
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some facts and denied or refused others, it is useful to prepare a separate Schedule
setting forth the admitted facts which may be filed as an Exhibit at the outset of the trial.
(d) Evidence Act Notices
Notices under sections 35 (business records) and 55 (copies of documents)
should be served in every relevant case. The section 55 notice must be served not less
than ten days prior to the trial and the section 35 notice not less than seven days prior to
the trial.
(e) Experts’ Reports
If it is intended to call an expert witness at trial, a written report, signed by the
expert and containing a statement of the expert’s qualifications and the substance of his or
her testimony must be served not less than 90 days prior to the trial. A party who intends
to call an expert to respond to an expert witness of another party must serve a report and
statement of qualifications of the responding expert not less than 60 days prior to the trial.
Any supplementary expert’s report must be served not less than 30 days prior to the trial.
These time requirements may be extended at the pre -trial or case management
conference, or on motion (See Rule 53.03).
SE TTING DO WN FOR TRIAL
Any party to the proceeding who is not in default may set the action down for trial following
the close of pleadings by serving a trial record on every party to the action, counterclaim,
crossclaim and every third or subsequent party and filing it with the court. It should be noted
that
setting down the main action will not automatically set down any third or subsequent action. A
party
to such action wishing to set it down must serve and file a separate trial record in respect of
such
subsequent action.
The consequences of setting an action down for trial must be carefully considered in each
case. A party who has set an action down, or who has consented to the action being placed
on the
trial list, may not initiate or continue any motion or form of discovery without leave of the court.
Accordingly, the pleadings, examinations for discovery and affidavit of documents and
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documentary production of the opposing party should be carefully reviewed within the context
of
the theory of the case to be advanced at trial. The theory may have changed since the
preparation
of the pleadings and if the pleadings do not support the theory an appropriate amendment
should
be sought prior to setting the action down. An action should not be set down for trial until the
matter
is ready for trial, subject to completion of final preparation.
Following the action being set down for trial the file will be called to an assignment court, at
which time it will be assigned dates for pre -trial and for trial. In preparation for assignment
court,
enquiries should be made with witnesses, and in particular with any expert witnesses, in order
to
avoid potential scheduling problems. A realistic estimate for the length of the trial should be
developed, preferably in consultation with opposing counsel. It should be recalled that a
typical day
of trial entails only four to five hours of actual court time. It is better to overestimate the length
of
the trial, rather than underestimate it. The Court’s patience will be tested less by finishing the
trial
early than by carrying on with the trial well beyond the estimated length.
If the action is a lien action under the Construction Lien Act, it must be set down for trial
within two years of commencement. Failure to do so will be fatal to the action. Different
counties or
districts may have different methods for setting a lien action down for trial and it is therefore
important to ascertain well in advance of the expiry of the two year period what is required to
effectively set the action down for trial. Typically an ex parte order is obtained pursuant to
Section
60 (1) of the Construction Lien Act fixing a date for a settlement meeting and trial, or
dispensing
with a settlement meeting, if appropriate, or providing that the trial will be held on a date to be
fixed
by the registrar. It is important to note that obtaining the order will not by itself set the action
down
for trial. A trial record must still be served and filed in most jurisdictions. The Act further
provides at
section 60(4) that a Notice of Trial must be served, not less than 10 days prior to the trial, on
any
party entitled to notice of a settlement meeting pursuant to section 60(2).
An action under the Simplified Procedure Rule 76 may be brought before the Court for
disposition in one of three ways, namely, by Motion for Summary Judgment, Motion for
Summary
Trial or by setting the action down for a traditional trial. If a Motion for Summary Judgment or
Summary Trial is not to be utilized, the action is set down for a traditional trial by serving a
Notice
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of Readiness for Pre-trial pursuant to Rule 76.08. The party serving the notice must certify
that a
settlement conference has been held. The trial record is not served and filed until after the
pre-trial,
but must be done at least ten days prior to the trial. Because the trial record is not filed
immediately, it is suggested that enquiries be made with the Registrar following the pre-trial to
ensure than the action has been placed on the trial list.
DOCU MENT S A T TRIAL
It is suggested that attempts be made in appropriate cases to obtain agreement among
Counsel for the preparation of joint document briefs for use at trial. With sufficient advance
preparation and cooperation among Counsel, there is no reason why joint document briefs
should
not be utilized in virtually every case. The documents should be legible, arranged
chronologically,
or by issue, as appropriate, bound, tabbed and labelled with a Table of Contents. There
should be
one copy for each Counsel, one to be marked as an Exhibit, one for the use of the Judge and
one
for the use of witnesses in the witness box.
At the commencement of the trial leave should be obtained from the Judge for the filing of
Document Books as exhibits, with the individual documents to be referred to by tab, subject to
appropriate proof of the documents through identification by witnesses in oral testimony. The
originals of any key documents requiring more formal proof should be available at the trial.
If the trial will involve a large number of documents or very lengthy documents, it is
recommended that the preparation of a Compendium be considered, which will include, in a
bound,
tabbed and highlighted format, copies of the particular pages or extracts from key documents
and/or transcripts which will be referred to at trial. It is suggested that the cooperation of
opposing
counsel be sought for the preparation or a joint Compendium.
WITN ESS ES
It is important that witnesses be kept informed as to the timing of the trial and what will be
expected of them. A blank issued Summons to Witness should be obtained from the Court
Registrar as soon as the date for the trial or the sittings is assigned. A copy of the Summons
to
Witness should be served on each witness, together with the applicable witness fee,
calculated in
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accordance with the tariff, as well as an explanatory covering letter setting forth the specific
arrangements for the attendance of the particular witness. In the event that a witness is
unavailable
at the date of trial it will be difficult to obtain an adjournment for that reason unless the witness
is
under Summons. If the date or other arrangements for the trial change ensure that the
witnesses
are clearly informed of the change.
Care should be taken to explain to all witnesses the effect of the usual Order for the
exclusion of witnesses made at the commencement of the trial, and in particular that the
witness
should not discuss the evidence with other witnesses following his or her testimony.
Instructions
should be given to the witnesses regarding the proper way to address the presiding judge and
opposing counsel, the proper dress for trial and other details relating to their attendance to
give
evidence.
It is of course improper for counsel to “coach” a witness respecting the evidence which he
or she will give, however, it is important that counsel understand and appreciate fully the
nature of
the evidence which the witness will give on the issues. Any witness who has given evidence
in the
proceeding, on discovery or on cross-examination should be asked to carefully review the
transcript and to advise of any corrections or errors in his or her evidence. Consideration
should
be given as to whether to advise opposing counsel of the correction under Rule 31.09(1). If
there
are areas of the witness’s evidence which are capable of being interpreted in a manner hurtful
to
the theory of the case to be advanced, it is often good strategy to deal with those areas in
examination-in-chief, rather than leaving them to be exposed, possibly out of context, on
crossexamination.
Dealing with weaknesses in the evidence in chief will often reduce any negative
impact that the evidence would have if brought out in cross-examination or in the opposing
party’s
case.
Counsel should also familiarize himself or herself with the witness’ expected demeanour in
giving evidence. Is the witness likable? Is the witness responsive? Is the witness subject to
being
provoked to anger on cross-examination? If there are negative aspects in the witness’
demeanour,
consideration should be given to ways in which they may be mitigated, for example, by the
order of
calling the various witnesses or by the nature of the questions to be put to the witness.
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MEMOR ANDUM OF LA W AND BOOK OF A UTHORIT IES
It is recommended that a Memorandum of Law and Book of Authorities be prepared well in
advance of trial and that it be provided to opposing counsel and to the trial judge as early as
possible during the trial, preferably at the time of delivery of the opening statement, if acting
for the
Plaintiff, or if acting for the Defendant, at the conclusion of the opening statement of counsel
for the
Plaintiff. Providing the Memorandum of Law will assist the trial judge in gaining an
appreciation
and understanding of your theory of the case and assist the trial judge in placing the evidence
within the framework of that theory. It is recommended that the Memorandum of Law set forth
the
appropriate propositions of law in as accurate and fair manner as possible and without
argument.
TRIAL BRIEF
Counsel should prepare a Trial Brief in three ring binder format which should include the
following, as well as any additional aids particular to the proceeding:
(a) outline or checklist of the trial presentation, including any preliminary motions,
motion for the exclusion of witnesses, opening statement, preliminary filings, list of
witnesses, etc.;
(b) opening statement;
(c) outline of examination-in-chief of each witness;
(d) outline of cross-examination of each witness of the opposing party;
(e) outline of final submissions;
(f) summary of discovery transcripts.
All unbound documents to be used in the trial should be organized in separate labelled file
folders to allow them to be retrieved readily during the trial. These documents may include
original
exhibits, Requests to Admit with proof of service, Offers to Settle with proof of service,
Summons to
Witness with proof of service, Evidence Act Notices, and authorities on any anticipated
evidentiary
issues.
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SUMMAR Y OF F ACTS
It is often advisable, if possible, to prepare a written summary of the facts which have
come out from the evidence led at trial, to be provided to the trial judge at the time of final
submissions. The summary of facts should state the facts fairly. Where certain facts are in
dispute, the differing versions of the facts should be identified. Providing a written statement
of the
facts will assist in placing the evidence within the framework of your theory of the case, and
will
sometimes provide an outline for the Reasons for Judgment.
CONCL USION
Preparation for trial should in all cases be directed towards equipping you to persuade the
trial judge to accept your theory of the case, and to apply the appropriate remedy. In
preparing for
trial, counsel should concentrate on ways to assist the trial judge in carrying out his or her
function
as decision-maker, by presenting the evidence with clarity, and providing the trial judge with
the
appropriate legal principles and authorities within the context of the theory of the case being
advanced.
I wish to acknowledge and thank my associate Stephanie Ross and my assistant Nora
Wilson for their assistance in preparing this paper.