It’s often said that 1% of civil cases, if that, go to trial. Because so few cases go to trial, many litigators do not view their cases through the prism of trial, but rather the prism of settlement – what do I need to do to settle this case? Resolve it at mediation? Broker a deal? Conventional wisdom would dictate you play the percentages, and if most cases settle, why prepare them as if they may go to trial? There is a misunderstanding underlying this approach, which reveals a paradox. The paradox is that if you treat every case as if it were going to trial, you’re more likely to settle them on favorable terms, less likely to try these cases, and if you do, are more prepared to try them if they go.
Whenever you first get a case, approach it as if it will go to trial (even though it likely will settle, perhaps well before trial). Do the following at the inception stage:
- Review the jury instructions. They provide the parameters and guidelines for your case. Pull them and read them carefully. Consider whether you’ll need special instructions, and if so, how they should read.
- Start thinking about your trial theme and theory. Trial lawyers talk about what their trial theme and theory are, but some wait too long to develop them and then try to make all the discovery from the case fit into a trial theme or a trial theory on the eve of trial. Evaluate, consider, and test trial themes and theories from day one to determine which ones work best for your facts and the law (namely, the jury instructions). If you wait too long, it’ll feel like squeezing a square peg into a round hole.
- Consider what exhibits and demonstratives you’ll use at trial. Almost every trial has exhibits and demonstratives to assist the jury in understanding your case and seeing the case through your prism. What documents will you show the jury? What photos? Videos? Audio? E-mails? Text messages? Who will introduce them? Discuss them? Show their relevance? Their importance? And what demonstratives will you use to help the jury understand the case on your terms? A chronology? A diagram? A chart? A drawing? A map? An illustration? Start thinking about the visuals early in your case and consider relying on them in depositions, mediation, and at hearings.
- Conduct discovery with an eye toward trial. If you serve interrogatories, requests for production, or requests for admissions, serve discovery requests with an eye toward trial. What interrogatories should I propound that will help me present my case at trial? What documents should I secure to show the jury my perspective at trial? Same thing with depositions. Ask every question you expect to ask at trial. Go through the lines of questioning, the topics and points, and the specific questions you would ask if you were trying the case. You’ll be relying on these transcripts to prepare your examinations at trial, so to avoid surprises at trial, test all your questions at deposition. And you can’t impeach a witness if you didn’t ask the right questions in the deposition.
- Hire Experts who will perform well at trial.When you hire experts, do your due diligence to ensure they make good witnesses at trial. An erudite witness who knows the subject cold but chokes on the stand and is boring and does not connect with a jury does you no favors. Make sure your experts know how to talk to a jury.
By taking this approach with all your cases, you create certain advantages:
- You are ready for trial if your case falls in the 1%.
- The other side sees you are ready to try the case, which can result in a better settlement for your client.
- You handle your cases more efficiently because you are focused on what’s essential for trial as opposed to being distracted and consumed by every rabbit hole.
- You develop your confidence because everything you do is directed toward a purpose rather than doing anything and everything. A rifle approach is generally preferable to a shotgun approach.
- You see the weaknesses of your case and theirs by seeing the matter through the prism of trial, which helps you better evaluate the case and put a number on its value.
Some may hesitate to take this approach, thinking this takes too much time, and with the volume of matters one is handling, who has the time? Ironically, by first taking the time to read the jury instructions and thinking about how the trial of your case would look, you can more efficiently conduct discovery, evaluate the case, and more likely settle the case sooner and do so on more favorable terms.
So, look at your cases and think about how best to try them, and by doing so, you’re more likely to resolve them short of trial favorably.
Frank Ramos is a partner at Goldberg Segalla in Miami, where he practices commercial litigation, products, and catastrophic personal injury. You can follow him on LinkedIn.
The post Every Case May Go to Trial: Act Accordingly appeared first on Above the Law.
It’s often said that 1% of civil cases, if that, go to trial. Because so few cases go to trial, many litigators do not view their cases through the prism of trial, but rather the prism of settlement – what do I need to do to settle this case? Resolve it at mediation? Broker a deal? Conventional wisdom would dictate you play the percentages, and if most cases settle, why prepare them as if they may go to trial? There is a misunderstanding underlying this approach, which reveals a paradox. The paradox is that if you treat every case as if it were going to trial, you’re more likely to settle them on favorable terms, less likely to try these cases, and if you do, are more prepared to try them if they go.
Whenever you first get a case, approach it as if it will go to trial (even though it likely will settle, perhaps well before trial). Do the following at the inception stage:
- Review the jury instructions. They provide the parameters and guidelines for your case. Pull them and read them carefully. Consider whether you’ll need special instructions, and if so, how they should read.
- Start thinking about your trial theme and theory. Trial lawyers talk about what their trial theme and theory are, but some wait too long to develop them and then try to make all the discovery from the case fit into a trial theme or a trial theory on the eve of trial. Evaluate, consider, and test trial themes and theories from day one to determine which ones work best for your facts and the law (namely, the jury instructions). If you wait too long, it’ll feel like squeezing a square peg into a round hole.
- Consider what exhibits and demonstratives you’ll use at trial. Almost every trial has exhibits and demonstratives to assist the jury in understanding your case and seeing the case through your prism. What documents will you show the jury? What photos? Videos? Audio? E-mails? Text messages? Who will introduce them? Discuss them? Show their relevance? Their importance? And what demonstratives will you use to help the jury understand the case on your terms? A chronology? A diagram? A chart? A drawing? A map? An illustration? Start thinking about the visuals early in your case and consider relying on them in depositions, mediation, and at hearings.
- Conduct discovery with an eye toward trial. If you serve interrogatories, requests for production, or requests for admissions, serve discovery requests with an eye toward trial. What interrogatories should I propound that will help me present my case at trial? What documents should I secure to show the jury my perspective at trial? Same thing with depositions. Ask every question you expect to ask at trial. Go through the lines of questioning, the topics and points, and the specific questions you would ask if you were trying the case. You’ll be relying on these transcripts to prepare your examinations at trial, so to avoid surprises at trial, test all your questions at deposition. And you can’t impeach a witness if you didn’t ask the right questions in the deposition.
- Hire Experts who will perform well at trial.When you hire experts, do your due diligence to ensure they make good witnesses at trial. An erudite witness who knows the subject cold but chokes on the stand and is boring and does not connect with a jury does you no favors. Make sure your experts know how to talk to a jury.
By taking this approach with all your cases, you create certain advantages:
- You are ready for trial if your case falls in the 1%.
- The other side sees you are ready to try the case, which can result in a better settlement for your client.
- You handle your cases more efficiently because you are focused on what’s essential for trial as opposed to being distracted and consumed by every rabbit hole.
- You develop your confidence because everything you do is directed toward a purpose rather than doing anything and everything. A rifle approach is generally preferable to a shotgun approach.
- You see the weaknesses of your case and theirs by seeing the matter through the prism of trial, which helps you better evaluate the case and put a number on its value.
Some may hesitate to take this approach, thinking this takes too much time, and with the volume of matters one is handling, who has the time? Ironically, by first taking the time to read the jury instructions and thinking about how the trial of your case would look, you can more efficiently conduct discovery, evaluate the case, and more likely settle the case sooner and do so on more favorable terms.
So, look at your cases and think about how best to try them, and by doing so, you’re more likely to resolve them short of trial favorably.
Frank Ramos is a partner at Goldberg Segalla in Miami, where he practices commercial litigation, products, and catastrophic personal injury. You can follow him on LinkedIn.
The post Every Case May Go to Trial: Act Accordingly appeared first on Above the Law.
