Trial preparation starts in discovery.

Yes, that statement seems a bit ridiculous – especially considering the fact that the majority of civil matters will never see a courtroom – but working a case backwards with trial prep as a starting point is truly the only way to ensure you are truly doing everything in your power to zealously protect your client’s interests and fully develop your client’s defenses in each case. This is especially important if the majority of your practice is within the same subset of law, such as toxic torts.

Embracing the “work backwards” approach has a few key benefits:

1. It ensures that nothing will be missed or overlooked in discovery.
2. It prepares you for the unexpected.
3. It will ultimately save you time and effort down the line.

Thorough Discovery

The eve of trial is not the time to realize you still have questions about the allegations or facts in a case. Hindsight is always 20/20, and by working backwards you can ensure your path forward in a case is clear.

Preparing a trial cross of the witnesses offered for deposition forces you to conduct a more thorough examination during their deposition, which ensures that no questions are left unanswered – or worse, never even asked. You will also have to look at potential exhibits you would want to use at trial which will ensure discovery is fully developed with all the avenues explored.

If an expert deposition is coming up, drafting potential Daubert motions or motions in limine can help you to fully develop what you need to obtain from their deposition prior to same.

The Unexpected

During settlement negotiations, Plaintiff’s Counsel unexpectedly demands double what the case is worth, in an attempt to catch you off guard and force your hand as trial is approaching. However, since you have worked backwards for this case, you are ready to call their bluff or, better yet, go forward with trial on your client’s behalf.

By embracing this approach, you have already developed potential Daubert motions, motions in limine, and cross examinations of Plaintiff’s expected witnesses, which you used to draft your cross outlines for each deposition. Further, you also identified all the key documents you plan to use as exhibits and have already incorporated those in discovery or witness depositions.

Time Saved

It is true that some trial prep is best saved for right before trial – such as the final draft of your opening statement, cross examinations, etc. However, by taking the work backwards approach, the large portion of the substance – or the most time-consuming part – should already be completed for each trial task.

Arguably, it is an injustice to your client if you are not adequately preparing for all potential outcomes – no matter how unlikely or distant trial may be – but also just as important is it allows you to think outside the box and continue to develop your skills as a trial attorney.

©2024 CMBG3 Law, LLC. All rights reserved. by: John Gardella of CMBG3 Law For more on Trial Tactics, visit the NLR Litigation Trial Practice section