Trial preparation

Colin E. Kaufman Adam Leitman Bailey, PC February 14, 2013

Trial Preparation

In-‐Service CLE

ADAM LEITMAN BAILEY, PC

February 14, 2013 Colin E. Kaufman

Colin E. Kaufman Adam Leitman Bailey, PC February 14, 2013 In-‐Service CLE

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Trial Preparation

“Before beginning, plan carefully.” Marcus Tullius Cicero

“Preparation is the be-all of good trial work. Everything else – felicity of expression, improvisational brilliance - is a satellite around the sun. Thorough preparation is that sun.” Louis Nizer

“The fight is won or lost far away from witnesses - behind the lines, in the gym, and out there on the road, long before I dance under those lights.” Muhammad Ali

“The mode by which the inevitable comes to pass is effort.” Oliver Wendell Holmes

“If you don’t know where you’re going, you’ll end up someplace else.” Yogi Berra

“I find that the harder I work, the more luck I seem to have.” Thomas Jefferson

Two things win cases – facts and preparation. You can’t do anything to change the

first. You can do a lot about the second.

Factual investigation is what enables you to present your case effectively and to be

aware of the holes in your adversary’s case. No amount of courtroom brilliance, no

rhetoric, no knowledge of the intricacies of the law, is going to help you if you

don’t know all of the facts. As a trial lawyer, you are limited by time and budget in

what you can do, but in every case, you should have done as much investigation as

those two constraints admit.

Before you reach the courtroom, you should have spent as much time as you (and

your client) can afford with your client, the witnesses and the documents. You

have to know as early as possible what you are going to prove, how you are going

to prove it and what your opening and summation are going to look like in broad

strokes.


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Judicial Investigation

DISCOVERY 1. “paper” discovery (common ones follow)

a. Demand for a Bill of Particulars b. Demand for Discovery and Inspection c. Demand for witness information d. Demand for expert witness information e. Demand for collateral sources / Demand for

insurance coverage f. Demand for appearances g. Notice for entry upon land h. Deposition Notice (see below) i. Interrogatories

i. Every discovery demand and response is served on every party

ii. Papers discovery and responses do not need to be filed and almost never are

2. Depositions a. Parties b. Non-parties

i. Deposition subpoena duces tecum ii. Notice to adverse parties

c. Deposition is an out of court oral sworn statement in a question and answer format

i. Depositions are taken down by a court reporter and sometimes a videographer

ii. Normally taken at the office of one of the lawyers

iii. Transcript is sent by the inquiring lawyer to the deponent’s lawyer for client review and execution; transcript is then returning fully executed to the inquiring lawyer

3. Notice to Admit (the only one with a self-executing date) 4. Firm dates are set at a Preliminary Conference

a. Sometimes a judge, sometimes a law secretary


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Non- Judicial Investigation

1. Visit the scene 2. Background everybody (including your client) 3. Use the internet (handout from two weeks ago) 4. Speak with every potential witness

a. Investigative interviews are not witness prep b. Just because someone was a witness doesn’t mean

you should call him 5. Read

a. All the pleadings b. All the disclosure c. Facts not shown in disclosure d. PJI e. Cases

6. Winnow for your direct case

Evidence

You prove or defend cases with evidence

With minor exceptions, there are only four types:

1. Testimonial 2. Documentary 3. Real 4. Demonstrative

The Starting Point:

“all relevant evidence is admissible unless its admission violates some exclusionary rule” People v. Scarola, 71 N.Y.2d 769, 525 N.E.2d 728, 530 N.Y.S.2d 83 (1988)

AND REMEMBER

Unobjected to evidence is admissible CPLR 4017, Gamman v. Silverman, 98 A.D.3d 995, 950 N.Y.S.2d 598 (2d Dept. 2012).


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Gathering the Evidence

1. usually you only get one shot at real evidence 2. get there early 3. talk to everyone you can 4. get all your client’s documents and all your adversary’s

discoverable papers gather up everything you can 5. photograph everything you can 6. have someone mark it, bag it, tag it 7. for fungibles, you must establish chain of custody - for

everything else, you should Witness selection

1. You are telling a story 2. Use those you have to use 3. Don’t call witnesses just to please the client

a. If they don’t add to the case, don’t call them 4. The best way to deal with a problem witness is not to call

him 5. Considerations (aside from knowledge) for a “friendly”

witness a. Clarity of expression b. Smartness (not just intelligence) c. Appearance d. Sympathy e. Amenability to preparation f. Skeletons

i. Demonstrable bias ii. Prior bad acts

6. Do not assume, just because your witnesses have cooperated thus far, they will come in willingly. Subpoena them (nicely). Subpoena the records you need (but not those your adversary needs to establish a prima facie case). Make sure your expert (a) is available, (b) is prepared and (c) has read everything which could conceivably be thrown up to him.


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Trial Files

1. This is not the time to be bashful about killing trees 2. One file per witness

a. Contains everything that witness previously said b. Contains exhibits you want her to sponsor

3. Exhibits for direct - original exhibit (clearly identified) a. Copy for you (so you can question about contents) b. Copy for Court c. Copy for opposing counsel d. 8 copies for jury notebooks (if you are doing that)

4. File for cross a. Prior testimony, indexed and MARKED b. Impeachment materials

i. Copy for you ii. Copy for court

iii. Copy for opposing counsel c. Everything else

5. Pleadings file (marked pleadings if you are Plaintiff) 6. Motions files 7. Photos, maps, diagrams (other than those specific to a

witness), each x 4 8. Correspondence (usually in chron order) 9. Trial memoranda

10. Your trial bag of tricks

a. Magnifying glass b. Ruler c. Colored markers d. Magnifying glasses (specs) e. Tabs & yellow stickies of various sizes

11. Your reference books a. CPLR b. Other applicable statute(s) c. Freedman – NY Objections d. Case-specific treatises


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Theory of the Case and Themes

Theory of the Case

1. Structural a. What happened? Why? How?

2. Everything you do at trial has to support your theory of the case

3. How do I as a juror do the right thing 4. Unstructured evidence will confuse the jury and

lead to a loss

Themes

1. Themes are the trumpet calls you want sounding in the background of everything you do – a reason that the jury wants emotionally to follow your theory of the case.

2. A good theme should have an “Oh, come on – that’s obvious” quality

3. Examples a. Honest people pay their debts b. A man’s word should be his bond c. This lawyer was responsible to do what other

lawyers would do in the same situation

PREPPING THE WITNESS

Ideally, you meet the witness at least four times

First - during your factual investigation

Second - depo prep

Third - initial trial prep

Fourth - immediately before trial testimony

Deposition prep is very different from trial prep


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1. you can’t win at deposition, you can lose (but note contrarian theory – come on strong at deposition to settle)

2. at deposition you are being interrogated, at trial you are telling your story 3. you will never convince the opposing lawyer that you are right; you can convince a jury

4. 10 word rule v. tell your story

5. speaking for the record v. discussing what happened.

In almost every case, the witness has never done this before - remember that

Familiarity with the courtroom

1. if you can, take the witness to a courtroom - best is if you can take her to the courtroom - if you can’t take him there, diagram it

2. tell him how to walk up to the stand, how to take the oath (find out if he needs to affirm), and how to leave

don’t discuss the case within a mile of the courthouse

Familiarity with procedure

-first direct by me, then cross by the other lawyer, maybe redirect, maybe recross - the judge may ask questions

-how will I show you the evidence?

- what do you call the judge?

- how should you dress?


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Familiarity with events and objects

-tell me what happened; do it again

- review the documents

- what do you do if someone hands you a document? - what do you do if the other lawyer reads from a document?

- what do you do when the other lawyer reads

from a transcript?

-here are the areas we are going to cover

-here are the areas the other lawyers may ask you about

Preparing the substance of the examination

- tell the witness what the issues are in the case

- tell the witness why he is here

- let her tell you the story, not the other way around

- do a lot of who, what, when, where, why & how

- find out how it smelled, felt, sounded

- show the witness the evidence - have him handle it, let him tell you about it

- drop your buzzwords into the questions (in great moderation) - don’t script the testimony - tell the witness that the questions won’t be the same, although the areas will be


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The Rules - Ten Commandments (one with subparts) plus a hint

1) TELL THE TRUTH 2) Show up when you are supposed to

3) SLS – communicate

a) look at the jury

b) remember who has to be told what happened

4) Don’t guess or speculate

5) Don’t answer a question you don’t hear or understand

6) Make times, dates and distances estimates (unless you

know)

7) When you hear an objection, wait. You can answer if it is overruled; you don’t answer if it is sustained; ask the judge if you’re not sure what to do

8) You will be nervous - it’s okay - breathe deep and hold on to the chair - don’t fidget

9) Know what you said before, but your deposition transcript is not a script

10) Deal with cross-examination - Same obligation of courtesy and truthfulness as on

direct, but don’t volunteer and don’t explain

- don’t try to anticipate

- don’t try to outsmart the cross-examiner

- don’t get mad

- Cross-examiner gets to suggest an answer, you don’t have to accept the suggestion

-You don’t have to answer “yes” or “no”, even if someone tells you that you do

Hint: Go to the bathroom before you testify (while you’re there, check how you look)

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Trial preparation