The Trial Lawyer’s Screenplay
By Mark B. Wilson, P.C.
Trying a case is like directing a movie. In order to successfully try a case, trial attorneys need a compelling story: they must ensure their story is presented in the right order and that all the logistics of the trial fall into place. This article will suggest methods to accomplish these goals.
Order of Trial
Whether you represent the plaintiff or defendant, you probably have a lot of options on how to present your client’s case at trial. Moreover, almost every trial has a number of procedural issues to address. As its name suggests, an “Order of Trial” is a checklist of the events of trial, in the order you want (or expect) them to occur. A sample Order of Trial appears below. Having an Order of Trial in your trial notebook is a critical tool to assist you in:
(1) presenting all the necessary evidence; (2) addressing all the procedural and evidentiary issues you identified; and (3) presenting the case in the proper order.
I begin preparing an Order of Trial well in advance of trial and use it as a “to do” list. I then modify the Order of Trial before and during trial, as new issues arise. Some parts of the Order of Trial are fixed (e.g., motions in limine are usually addressed before trial starts, defendant’s opening statement follows the plaintiff’s opening statement, etc.), so I start with those items and work around them.
Most Orders of Trial follow a similar pattern. Set forth below are the most common issues to address in an Order of Trial.
Before most trials begin, courts hold a pre-trial hearing to address a variety of issues including motions in limine, rulings on videotaped deposition testimony, witness scheduling, jury instructions, verdict forms, etc. An Order of Trial should include a list of every motion and issue you want addressed at this hearing and the issues you expect opposing counsel to address. This list will help you prepare for the hearing and will serve as a reminder of the issues the court should cover before opening statement. The pre-trial hearing for one case I tried lasted almost a full week. Without an Order of Trial, I would not have remembered every issue I wanted the court to address.
Opening Statements and Order of Witnesses
The order of opening statements usually cannot be adjusted, but you will often have great flexibility in determining the order of your witnesses. Great care should be taken to call your witnesses in a logical order, especially in a jury trial. Usually, you want to call experts after fact witnesses; otherwise, it may be difficult for your jury to understand the purpose of the expert’s testimony. Moreover, the court will probably admit the expert’s testimony, subject to a motion to strike, if the foundation for the expert’s opinion cannot be later produced. If you introduce the fact witnesses first (and get the necessary facts into evidence), then you will minimize the possibility of having your expert’s opinion testimony stricken.
There are valid reasons to call experts before percipient “factual” witnesses. For instance, sometimes your expert is more credible than your percipient witnesses. You may believe if the jury hears the expert first, it will have an easier time believing the percipient witnesses. Sometimes you have a scheduling issue and have no choice but to put on expert testimony earlier than desired. When you introduce expert testimony before factual testimony, it is critical to ensure you eventually establish every “fact” upon which the expert relied.
Most attorneys like to start and end their presentation on a strong note and, therefore, bookmark their cases with their own clients or a compelling percipient or expert witness. Sometimes, you may want to present parts of your case in chronological order, and you will need to adjust your witness order to address this goal. If there is a particular fact you want established and need several witnesses to establish it, consider grouping these witnesses together. Otherwise, the jury might get confused when they receive “random” bits of a story out of order.
In preparing your order of witnesses, thought should be given to the following issues:
(1) witness availability; (2) the cost of having experts sit in the hall while they wait for their turn to testify; (3) whether you should call adverse witnesses in your case in chief; (4) whether some testimony can be presented by videotape; and (5) keeping the case interesting. Keep in mind, most jurors find trials boring. By mixing up percipient and expert witnesses, using demonstrative evidence and videotaped testimony, and avoiding cumulative evidence, you can keep most jurors engaged.
Once you create your order of witnesses, remain flexible. Inevitably, a witness will have a calendar conflict, or opposing counsel will need to call a witness out of order. Sometimes you will have 30 minutes remaining before the lunch hour or at the end of the day on a Friday, and you may not want to start critical witness testimony that will last longer than the remaining time. If you have other evidence you can present during the remaining 30 minutes, give serious consideration to making a change in your Order of Trial.
If chaos reigns at your trial, try to regroup, even if this means completely reorganizing your order of witnesses. During the opening statement, it is wise to explain to jurors that they will likely hear testimony “out of order” or in a fashion that may not initially make sense. This is especially valid if you have predominately linear thinkers as jurors. If you do a good job explaining your client’s story in the opening statement and introducing the characters of the story (i.e., the trial witnesses), the jury should be able to keep up with you. The closing argument is the time to put the puzzle together into a clear picture.
During trial, if you sense you are losing jurors to boredom, fatigue, or other distractions, be willing to do what you can to get their attention back. If you have to switch witnesses around to gain momentum, do so. Let your Order of Trial be your guide, not a rule book.
Demonstrative and Rebuttal Evidence
Almost every trial will have opportunities to present demonstrative evidence. In fact, the more mundane your case, the more important it is to create demonstrative evidence to keep the jury engaged. In creating an Order of Trial, it is important to consider when best to use demonstrative evidence and which witnesses should be questioned about it. If you have a string of boring witnesses, try and break it up with an interesting videotape. If you have a colorful expert who has interesting graphics or models for the jury to see, consider when in the trial the jurors might need a “pick-me-up” and schedule the expert accordingly.
Rebuttal evidence is sometimes difficult to anticipate but, if you are able, incorporate a list of expected rebuttal evidence in your Order of Trial. Just jotting down “rebuttal evidence” on your Order of Trial will remind you of your option of presenting rebuttal evidence. Not all trial courts will ask if you have any rebuttal evidence to present. If you fail to ask for the opportunity to present rebuttal evidence, you will waive your right to do so.
Discovery, Requests for Judicial Notice, and Objections
If you have discovery responses to read or requests for judicial notice for the court to consider, be sure to include this information on your Order of Trial. Additionally, if you know you are going to raise a dispositive evidentiary objection to opposing evidence, provide yourself a reminder on the Order of Trial.
Motions During Trial
There may be motions and requests you want to consider making during trial. For instance, you may have good reason to ask for an evidentiary hearing pursuant to Evidence Code section 403, before the opposing party presents certain evidence. You may expect to file a motion for directed verdict. Be certain to include all this information on the Order of Trial.
Presentation of Exhibits
Exhibits come in all shapes and sizes. They include documents, photographs, videotapes, exemplars of equipment, the “smoking gun,” etc. Once you determine what evidence you intend to introduce, you need to consider how best to present it to the jury. Moreover, almost without exception, you should exchange all exhibits with opposing counsel before trial. To the extent you want to use any physical evidence during your opening statement, you must show the evidence to opposing counsel, and have the court rule on any objections before your opening statement.
In deciding how to present physical evidence, it is critical to understand (and follow) the court’s rules on presentation of evidence. Most judges have written rules attorneys must follow. If the judge does not have written rules, you should ask the court if it has any rules before trial starts to avoid an embarrassing admonishment in front of the jury. For instance, it is considered improper to show jurors physical evidence of any kind (i.e., documents and photographs) before the court has admitted the evidence. Moreover, most courts want you to request the court to move an exhibit into evidence as soon as you present the foundation for doing so, rather than waiting until the end of your case in chief and moving all your exhibits into evidence at once.
Before trial, talk to opposing counsel about stipulating to the admission of as much evidence as possible or, at a minimum, waiving issues of authentication. This way, you will spend a minimum amount of time laying foundational facts, which most jurors do not understand.
To keep jurors engaged, you should show them physical evidence the court admits while your witnesses are discussing the evidence. Otherwise, the jurors may have difficulty understanding testimony. For instance, if you have a photograph of the accident site, which the court has received into evidence, you should have the photograph blown up or projected onto a screen while questioning witnesses about it. The same is true for virtually every piece of physical evidence.
For documentary evidence, consider creating “pull quotes” of the important language: a technique where the critical parts of the document are enlarged and separated from the mundane and unimportant parts of the document. There are inexpensive computer programs that permit you to create pull quotes in front of the jury.
For some witnesses, a PowerPoint presentation might be an effective method to present demonstrative evidence, especially for expert witnesses. I watched an expert testify regarding an accident reconstruction and he had all his tests, videotapes, and conclusions put into a very interesting PowerPoint presentation. For these types of presentations, it is critical to obtain permission from the court (and deal with objections) outside the presence of the jury.
Videotaped deposition testimony is a good option to consider, especially for some expert testimony and medical doctors. This technique saves money and, once edited, videotaped testimony tends to be shorter than live testimony. Unfortunately, most videotaped testimony is boring to watch. Accordingly, do what you can to introduce exhibits during the videotaped deposition to make it interesting. When I videotape expert depositions, I try to have them use photographs, artists renditions of physical injuries, x-rays, models, etc.
There are few rules in presenting physical evidence, and the options for keeping a trial interesting are limitless. The goal is to keep the jury focused.
I bring several “trial notebooks” to trial. The notebooks include the following:
(1) motions in limine; (2) trial exhibits; (3) legal research relevant to the case; (4) discovery the parties exchanged and the responses; (5) mini deposition transcripts and deposition exhibits; (6) trial pleadings (operative complaint and answer, trial briefs, notices of ruling, court orders, stipulations, witness list, exhibit list, issues list, trial subpoenas, pocket briefs, and any other critical pleadings); and (7) my “trial notebook.” The remainder of this article will address this last notebook.
The trial notebook is an essential trial tool. Without it, a trial attorney will have difficulty staying organized. Moreover, without a trial notebook, it is difficult for an attorney to have a coherent presentation. Preparation of the trial notebook (and its contents) assists a trial attorney in developing case themes and an organized trial presentation.
My trial notebooks have tabs for: (1) the Order of Trial (discussed above); (2) copies of demonstrative evidence, such as charts and time lines; (3) trial subpoenas; (4) opening statement; (5) direct examination of each witness; (6) cross-examination of each witness; and (7) my closing argument. Behind each tab are the relevant documents/notes.
I have seen opposing counsel prepare their opening statements while I am presenting mine. I have also seen opposing counsel cross-examine a witness from yellow pad notes made while the witness was testifying on direct. These techniques are rarely effective. The key to success at trial is preparation, preparation, preparation. It is very rare for an attorney to be able to prepare an effective opening statement or cross-examination “on the fly.” A carefully prepared trial notebook takes a lot of time, but it is worth the effort. It also reduces much of the stress associated with trial because, once you are fully prepared for trial, your confidence increases and the mystery of what is going to happen decreases.
Regardless of your method for preparing your case, some preparation is necessary. By having an Order of Trial, trial notebooks, and prepared notes for each event of trial, you will give your client the best chance of success.
SAMPLE ORDER OF TRIAL: “James v. ABC Corp.”,
1. Pre-Trial Conference
a. Plaintiff’s motions in limine
b. Defendant’s motions in limine
c. Go over jury instructions and proposed verdict form
d. Show opposing counsel demonstrative charts for opening statement and resolve any objections
e. Get rulings on videotaped depositions
f. Discuss Evidence Code section 403 hearing regarding defendant’s animation of accident
g. Discuss witness scheduling
2. Jury Selection
a. Go over questionnaire with jurors
3. Plaintiff’s Opening Statement
4. Defendant’s Opening Statement
5. Plaintiff’s Evidence
a. Direct Examination
ii. Sam Baker (percipient witness)
iii. Julie Baker (percipient witness)
iv. John Snyder (driver of ABC’s truck)
v. Dr. Samuels (client’s physician)
vi. Dr. Wang (economist)
vii. Cindy Schreiber (life care plan)
(1) Play day in life video
viii. Mandy James (client’s wife)
b. Ask court to take judicial notice of pleadings defendant filed in another case
c. Read deposition transcript of Jill Weakley (unavailable witness)
d. Play video of Dr. Klein (treating physician)
e. Read defendant’s response to request for admission no. 2 and special interrogatory nos. 4
f. Make sure I have moved into evidence Exhibit nos. 2-10, 15, 19, and 25
6. Defendant’s Evidence
a. John Snyder (driver of ABC’s truck)
b. Bobby Sanders (percipient witness)
c. Officer Garcia (reporting officer)
d. Dr. Rodriguez (defendant’s medical expert)
i. Move to exclude because not properly identified on expert designation.
e. Dr. Smith (defendant’s economist)
7. Plaintiff’s Rebuttal Evidence
8. Plaintiff’s Closing Argument
9. Defendant’s Closing Argument
This article first appeared in the OCTLA Gavel, Summer 2007.