PREPARING FOR TRIAL

1. PREPARING FOR TRIAL Jasmine Diamanti Karen Greene Mary Mark Marta Stott

2. Agenda • Overview • Working with witnesses • Exhibits • Technology • In the courtroom

3. Trial prep and trial: The role of the paralegal • Organization (and re-organization) of the file materials for trial • Witnesses • Exhibits • Demonstrative evidence • Jury selection • Courtroom logistics • War room setup and coordination • Assisting at trial • Post-trial activities

4. You need to know certain information • Are you in federal court or state court? • Will it be a jury trial? • Where will the trial take place? • Will it be a courtroom trial or something else?

5. Working with Witnesses • Witnesses are a key component to presenting a successful case • Witnesses authenticate documents to be placed into evidence • Witnesses serve as the compelling storytellers who convey the heart of a case to the jury • The right witnesses provide a human context for all facts presented

6. Witness-related documents • Witness lists • Pretrial Order preparation • Witness files or kits • Prepare files for attorney preparation and witness preparation • Deposition transcript(s), exhibits and summaries • All discovery that refers to the witness’s expertise or knowledge of events • Declarations, affidavits, sworn statements by the witness • Database hits and searches, including from external databases like LexisNexis or Google • Key documents that relate to the witness • Correspondence to or from the witness • Notes, interviews, memos of fact • Subpoenas or Notice to Appear at Trial (with proof of service) • Exhibits to be used, including any demonstrative exhibits • Witness examination outlines/Q&As for direct, cross, rebuttal

7. Expert-related documents • CV or resume • All reports prepared by the expert for this case • List of all documents relied upon by the expert in the preparation of his/her report(s) • Copy of all documents relied upon by the expert in the preparation of his/her report(s) • Be sure to include all correspondence between the firm and the expert • All publications by the expert that relate to the subject matter of the case

8. Using transcripts and deposition designations at trial • For impeachment purposes or in the place of an absent witness • The transcripts need to be at the courtroom during trial • Originals or certified copies (w/exhibits) in sealed envelopes • Communication with the court (normally the Judge’s clerk) on protocol and procedure is essential (this will vary from court to court) • If the parties will use deposition testimony in lieu of or in rebuttal to testimony from live witnesses, deposition designations must be prepared • Communicate with the court on protocol and procedure • Designations are exchanged by the parties • Parties may object to the use of designated testimony • Tracking the designations, objections, counter-designations, and ultimate results is essential

9. The logistics of working with trial witnesses • Witness preparation meetings • Send a witness file to the witness prior to meeting so that they may review their testimony • Coordinating witness trial appearances • Copy of contact information at all times • Expert witness trial appearances Attention to all the details is the the key to success!

10. Trial exhibits • Potential trial exhibits come from many sources: • Deposition exhibits • Documents produced by a party or third party • Objects • Demonstrative exhibits • Public sources of information • External databases

11. Demonstrative exhibits • Used to demonstrate or illustrate key information to an audience • Types of demonstrative evidence include • Blow-ups of designated trial exhibits • Transparencies • Videos • Charts • Diagrams • Animations • Presentations using trial presentation software

12. The parties must exchange exhibits and exhibit lists before trial • The time of the exchange will vary depending on the court • In federal court, the pre-trial filings are due 30 days before trial • In state court, the pre-trial filings are often due the first day of trial • All potential trial exhibits must be authenticated before they are admitted into evidence • As the exhibits are prepared, it is important to consider how each will be authenticated • Demonstrative exhibits may need to be authenticated in more than one way, depending on the source and type of information used to create them • This process takes more time than anyone ever anticipates, so start early

13. Organizing the exhibits • Numbering schemes • Exhibit labels • There may be 3 sets of exhibits: Yours, theirs, and joint • You will need multiple copies of the numbered, labeled exhibits • Master set • The number of copy sets will vary: counsel table, workroom, attorney working copies, witnesses, judge, jurors ….

14. The trial exhibit list • Exchanged before trial • Usually exchanged at the same time as the exhibit exchange • The format must be correct • Check the local rules • Check with the court clerk to be absolutely sure • You will need a comprehensive exhibit list for use at trial • This is a different list than the exchanged list • Includes all the exhibits, not just your side’s • Exhibit number • Description • Sponsoring witness • Bates range or other identifying information • This list will be updated as the exhibits are marked and/or admitted into evidence

15. Use available technology tools • If it’s already in electronic format, don’t re-invent that wheel • Copy/paste features • Linking between integrated software • Import/export between applications • Maximize efficiency using your computer • Data/document storage • Sorting and re-sorting of information • Searching

16. Litigation and trial support technology tools you should know about • Deposition database products like LiveNote and Summation • Electronic file copy of the transcript • Search within a transcript or across multiple transcripts • Exhibits linked to transcripts • Real-time transcripts • Integrated with other litigation support products

17. More litigation and trial support technology tools • Document database products like Concordance and Summation • Unlimited fields plus full-text • Fast and easy search capability • Electronic foldering • Annotations • Reports • Integration with other litigation support products • The new document database products are web-enabled • Examples: Ringtail, FYI, Introspect • Hosted database solutions may also be appropriate • For very large document reviews/productions • Where multiple parties need to access the same data • Examples: Applied Discovery, Kroll Ontrack, EED, FIOS, FTI/Ringtail

18. More litigation and trial support technology tools • Case analysis tools like CaseMap and TimeMap • Timelines and chronologies made easy • Organize any way you like: by issue, by person, by location, etc. • Integrated with other litigation support products • Trial presentation tools • PowerPoint can be very effective • Presentation tools like Sanction and Trial Director are more full-featured and robust than PowerPoint • On-the-fly and unplanned changes in direction are easily accommodated • Integrated with other technologies (video, audio) and litigation support products (Concordance, Summation, CaseMap, TimeMap)

19. Consider using technology for trial prep and trial • Witness and issue files • Witness and exhibit lists • Deposition designations • Exhibit selection • Exhibit numbering, labeling, organization, tracking • Transcript management • Trial presentations

20. Using technology can make a difference at trial • To the trier of fact • Simplifies the presentation of the case • Jurors are more engaged, attentive, focused • Use of technology will save time at trial • Instantaneous access to the evidence • Illustrations and graphics can shorten presentation time • Electronic display allows exhibits to be previewed quickly when objections are raised • The court may require the use of technology • Using technology may reduce expense to the client • The trial will probably be shorter • Other expenses can be reduced as well • Time spent searching for, retrieving, then re-filing paper documents • Making and maintaining multiple copies • Shipping (fewer boxes) • Transportation • Storage

21. In the courtroom • Advance planning is essential • Check with the clerk re what will be allowed in the courtroom • Make sure you know any security requirements • Equipment and boxes may need to be delivered during off-hours or using freight elevators, service entrances, etc. • Plan extra time for metal detectors, searches, etc. • Understand the court’s expectations • You may be required to use the court’s equipment or to share equipment with opposing counsel

22. The courtroom setting • Take into account the attorney’s personal style • Familiarize yourself with the courtroom • The key to courtroom presentation is location • Where will the attorney stand or walk • Where will the court and jury have the best view of the screen or display • Ask: Who can see what from where? • Know the size and layout so you can decide on the equipment to use • Power or cabling restrictions, number of outlets, availability of power sources • Physical restraints as to placement of equipment • Visit the courtroom and map out how equipment will be placed • If you will be using the court’s presentation system, be familiar with it

23. Courtroom equipment • Check your equipment • Make sure all the equipment is compatible • Test it ahead of time (in the courtroom if possible) • Make sure the projector has a high enough brightness (lumens) level and that resolution is set correctly • Make sure the laptop or computer has enough memory • Especially if you will be using video clips or images • If you will be playing video clips, bring your own audio system • Selection and placement of the display are important • A large single screen for jurors is often best • Many experts recommend using a digital projector and 1 screen that can be seen by all jurors and all parties • Multiple LCD displays in the jury box are another option • Multiple computer monitors in the jury box may also be considered • Take backup equipment so it’s available when (not if) there’s a snafu • Again, check on the availability of electrical power sources or outlets

24. Courtroom logistics • Who will set up the equipment before trial? • You will need to work with the clerk or bailiff to schedule setup time in the courtroom • Who will operate the system during trial? • Be sure to schedule some practice time in the courtroom • Will you need technical assistance on-site during the trial? • If any trial testimony will be videotaped, make sure you’ve made appropriate advance arrangements • Court reporter, videographer, etc. • The testimony must be in the proper format • Make arrangements to safeguard the equipment

25. Summary • Trial can be the best of times and the worst of times • To keep your experience positive: • Plan ahead • Be organized • Use your resources efficiently

26. Thanks!