By Dr. Ken Broda Bahm:
Courts across the country are wading through the pandemic backlog. At both the state and federal levels, efforts to prioritize and to adapt have turned trial calendars into an elaborate and high-stakes guessing game about when and whether any given case will proceed to trial. Some I know have compared it to the “Whack-a-mole” game: just as one is going away, another is surprisingly popping up. Amid the chaos, there are some practical challenges for trial lawyers and in-house counsel. In the run-up to your trial date, “Go, baby, go” can suddenly turn into “Cool your jets.”
When that happens, it is often the paying client’s view to stand down immediately, shutter all of the trial preparation, put a pin in it, and re-open the files down the road when you have a re-confirmed date. That can often mean that, while the panic stops for awhile, it will start right back up again at roughly the same place it was once the trial schedule is back on track. That impulse to stop the billing is understandable, but it can also be penny-wise and pound foolish. When a crowded docket knocks your case off it’s scheduled date with destiny, of course it makes sense to adapt your preparation. But it also makes sense to take a few steps to make sure that your readiness for trial is retained, or even improved, during the gap. In this post, I will share five practical ideas for keeping your pencil sharp when your trial preparation suddenly shifts from “Go” to “Stop.”
1. Build the Foundation Early
The fundamentals of the case — the themes, the story, the principal witness list, the main demonstratives — should be built as early as practical. That general outline should be developed and refined at a time and on a schedule that does not depend on a trial date. Yes, you will keep working on them up to the eve of trial, whenever that eve happens to be, but those basic building blocks should be set in place well before the final sprint to trial.
2. Create a Record
Before the date is pulled and the meter is shut off, the trial team’s thinking on the case may have gotten pretty sophisticated — Panic can have a way of sharpening the mind. But before you put the case to bed, you should find a way to record those current thoughts. If you’ve done a mock trial, then that presentation recorded on video can be a handy and succinct guide you can use to reacquaint yourself with where you were once the case wakes up. Another exercise I’ve found useful is to ask every member of the trial team to record their version of the case theme and story in a one or two page document, and save those pages.
3. Finish Your Demonstratives
Developing high-quality and clear visual aids for the jury takes time, but it is one step in trial preparation that is often compressed by a looming trial date. It is safe to say that many a graphic-designer has worked late and cut corners while asking themselves, “Couldn’t this have been done months ago?” So when your trial date is temporarily off the calendar, use that time to lock in the key demonstrative exhibits. Those exhibits aren’t just for trial, they can also be useful in capturing and retaining your themes, and can be helpful for mediation.
4. Keep Your Witnesses Fresh
So the trial date is off, chances are those last minute witness preparation meetings are off as well. If you just say to your witnesses, “We’ll get back to you…” you quite likely will be starting at zero again when you meet down the road. It can be very useful to keep the witness engaged by having a meeting or two without the challenges or the stress of an impending court date. Witness meetings are also a low-cost way of keeping that witness thinking about and potentially improving their testimony and their confidence.
5. Conduct Research in the Gap
I have found that trial teams will often skip pretrial research (mock trials or focus groups) that they need and could afford simply because, by the time trial is imminent, there is no time to conduct and to make good use of the research. In that context, an unexpected setback in the trial date creates a golden opportunity to revisit the question of research, and to use the gap to hear from mock jurors in order to get a better handle on your case assessment and to check and refine your message for trial. Conducting that research during the “gap phase” of your trial preparation is a great way to stay prepared and to learn the perspective of the other side.
Whether it is for a pending settlement or for a rescheduled trial, today’s red light will at some point turn green. And when it does, you will need to be in a position that is still prepared, if not improved. So treat a withdrawn trial date as a message from the universe: Ease off, but stay ready.
More Posts on Trial Preparation:
- Plan for Online Jury Trials
- Make it Hard on Yourself: Eight Ways to Make Your Mock Trial a ‘Worst-Case’ Test
- Deploy Your Trial Message When It Matters Most: Pretrial
Image credit: Shutterstock, used under license