Tackling that first trial

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Just do it.

No, that doesn’t mean put on your Nikes and hit the basketball court. Lace on your best Allen-Edmonds, hit the courtroom, and try your first case in front of a jury.

Sure, the pressures to settle are enormous. The client prefers a guaranteed result to leaving his fate to 12 people who aren’t smart enough to get out of jury duty.

He fears that he’ll be “slammed” if he goes to trial and loses. And worst of all, if you’ve never done a jury trial before, he may sense your own apprehension.

Not to mention the whole national mindset these days that pushes cooperation over competition, and the movement favoring alternative dispute resolution.

Whatever the cause, if you gather enough old attorneys together, they’ll soon turn to bemoaning the dearth of cases that go to trial. Ultimately, there’s only one cure.

You’ve got to say, “To heck with it; I’m done negotiating; let’s try this case.”
So, having settled resolutely on trial, what are the most important things to do? A handful of veteran litigators, and some young enough to actually remember their very first trial, weighed in with their suggestions.

Moving Beyond the 3 Ps

Not surprisingly, each of them encouraged “preparation, preparation, and more preparation.” Yet, each emphasized something different.

“The only way to be comfortable trying your first case is to know it, backwards and forwards, better than anyone else in the courtroom,” said Patrick Cafferty, of Patrick Cafferty Law Office S.C. “If you do that, you can outmaneuver an older attorney who may not be as well prepared.”

Paul Benson, of Michael Best & Friedrich LLP, emphasized the jury instructions. While the court’s reading of them may be the last step in a case, that makes them all the more important to consider at the beginning of trial preparation.

“The jury instructions are the best guideline for preparing for a case,” Benson said.

“Nine out of 10 times, the judge will follow the pattern instructions or only tweak them a little. That’s what you will be held to at the end of the day.”

As a result, Benson advises pulling the jury instructions at the beginning of trial preparation, because they set forth what you ultimately will have to prove or disprove.

Visit the Scene of the Trial

Joseph Olson, another Michael Best attorney, advised watching a trial before the judge who will hear your case.

“Otherwise, things will happen that you are not prepared for,” he said. “It’s easy to get caught up in your opening arguments and plans for cross-examination, and forget about logistics, like how the court handles exhibits, displays, and motions in limine.”

Olson said he observed parts of two trials before conducting his own first trial, and found the experience “tremendously helpful.”

Quarles & Brady LLP attorney Mitchell S. Moser agreed that familiarity with the court procedures is essential. However, he emphasized preparation for opening argument as the one aspect of the trial that you can control completely.

While you can never prepare for everything that can happen once the evidentiary phase begins, Moser noted, “Your opening argument is the one thing you can practice until it’s perfect.”

I Object!

Thomas Hruz, of Meissner, Tierney, Fisher & Nichols, S.C., emphasized being prepared for evidentiary objections. Motions in limine will not resolve all evidentiary issues, and you have to be ready, on the fly, to make objections or respond to them.

Hruz said, “You can win or lose a case depending on how well you’ve anticipated objections and prepared for arguing the applicable rules of evidence during bench conferences.”

Finally, Christopher Strohbehn, of Gimbel, Reilly, Guerin & Brown, emphasized organization.

“You will be nervous, anyway,” Strohbehn said. “The best way to alleviate your nerves is to be really organized. I always have a trial notebook, with everything I will need tabbed so that I can get it quickly.”

“If you are not able to find something readily, it will be held against you more so than it will against an older lawyer.”

Strohbehn also emphasized preserving the record for appeal. “In case you lose, you need to at least have made a proper record for appeal.”

Remember, those bench conferences are not on the record. If the judge ruled against you during a conference, you need to be prepared, while the jury is out, to accurately put the substance of the conference on the record.

Ultimately, good preparation consists of a lot of rote, while still anticipating, and being ready to react to, the unexpected.