Preparing for trial is its own unique skill, one that not all lawyers have in equal measure. Many attorneys are exceptional in their field, whether it is construction law, real estate, employment, intellectual property, trade secrets, probate, estates or trusts. But if they do not have experience preparing for trial and presenting a case at trial, their knowledge of the subject matter of the case is not enough.
Preparing for trial begins months before trial is scheduled to begin, with discovery and targeted depositions. While discovery is proceeding, legal strategy is important, creating a record for summary judgment on all or some of the issues in the case. At the same time, trial preparation is looking to what evidence is admissible and what may be excluded as hearsay, or as opinion, or as statements made during settlement discussions. At some point during the discovery process, the parties will be required in civil cases to mediate or attend a settlement conference. Having an attorney with knowledge of the subject matter who also has years of experience in choosing mediators and then negotiating to find a possible settlement is indispensable. If mediation and settlement fail, and you are facing a civil litigation yourself or for your business, you may be at a disadvantage if your legal team has not had a career’s worth of trial experience.
Within the two months before trial, witnesses need to be interviewed; the joint pretrial statement with lists of exhibits and objections to exhibits needs to be prepared; motions in limine on evidentiary issues, and responses to motions in limine, will be due. Preparing and debating the jury instructions and forms of verdict is a matter of experience and careful judgment. Selecting a jury using scientific and demographic research is critical, and in some cases presenting the case to a mock jury for feedback is done.
Then, of course, preparing a persuasive opening statement, preparing the clients’ testimony, preparing and scripting carefully planned cross-examinations, being ready for evidence objections, and then making a closing statement that summarizes days of testimony in a final argument, all of these things take experience. Not all attorneys like going to trial, and when they find themselves facing a trial, some attorneys delay and avoid and look for options to settle when settlement may not be the best route for that particular case.
Even during trial, an experienced attorney is thinking about what comes next. Trial is not the end of the process – applying for costs and attorneys’ fees, settling forms of judgment, filing or responding to motions for new trial or for judgment notwithstanding a verdict, are all part of what is properly described as “trial.” Following all of this, there is either an appeal or collections or defending against collections. What is done at trial can have a real effect on what happens after trial.
If you have a case that you think may go to trial, and you want to be prepared in the event that happens, Horne & Slaton has years of experience in state and federal courts and administrative tribunals to provide the knowledgeable and skilled representation your case requires.