Checklist for trial countdown
The following checklist commences approximately 100 days before trial. The purpose of this checklist is not to focus upon, for example, settlement or the discovery process, but rather to establish a series of guidelines by which a litigator can compare the steps taken to prepare his or her case to those needed to ensure that preparation is complete and the case is postured for victory. Although certainly no one can guarantee a successful verdict, the one thing that can be guaranteed is that a less-than-successful verdict will not be attributable to less-than-successful preparation.
100 Days Before Trial
Complete discovery. Review all depositions, interrogatories, requests for admissions and document production requests.
Organize expert depositions. Unless you have already done so, identify and notice the depositions of all expert witnesses being offered by your opponent.
File a set of "cleanup" interrogatories that include inquiry into the names of all witnesses, the subject matter of the testimony of all witnesses, the names of expert witnesses, the subject matter and opinions of the expert witnesses, any factual basis for the denial of assertions of negligence or for the allegation of affirmative defenses, inquiry into any demonstrative evidence that will be used at trial and that may not have been disclosed previously including such things as charts, graphs, diagrams, experiments, demonstrations, recreations, videotapes, computer-generated evidence, motion picture films and photographs.
Draft and file a motion in limine to preclude certain issues from the case, define the nature of other issues or obtain preliminary rulings on certain evidence.
Finish up all interviews with non-expert witnesses, including eyewitnesses.
Double check that any wreckage or product type exhibits will be available.
Double check that any witnesses being requested from governmental agencies will, to the extent allowed by the agency, be available for trial.
Make a list of all witnesses for whom subpoenas must be issued. A list should also be made of all documents and other materials for which subpoenas must be issued.
Be sure you know who the document custodian is with respect to the production of any documents at trial.
60 to 45 Days Before Trial
Focus on settlement.
If it has not already been set, consider whether a final pretrial conference should be requested. You may find that such is, in any event, ordered by the judge.
Determine the latest position on settlement and to the extent it is deemed appropriate, a settlement offer or demand should be made.
Prepare for pretrial conference and order.
Along with your opponent you should prepare the pretrial order.
After the pretrial conference, a pretrial order can be finalized based upon whatever rulings the judge may have made, and it can then be entered.
45 to 30 Days Before Trial
Prepare file. All files should be reviewed to determine whether they have been organized in a way that facilitates maximum access of information.
Outline all elements of proof. All allegations you must prove to support your position should be listed in detail.
Prepare depositions for trial. Determine which portions of the deposition will be offered and the manner in which they will be offered. Will they be submitted in an underlined form? Will you have narrative deposition summaries? Have videotape depositions been edited and prepared for use in the courtroom?
Prepare the client.
Meet with and brief your client on the more general aspects of being a witness.
Provide the client with a copy of any interrogatory answers prepared by him or her, as well as with any deposition the client has given.
Update medical examination. Have a current medical examination of your client (or the plaintiff) in a personal injury case.
Prepare non-expert witnesses.
All non-expert witnesses should be contacted and interviewed by telephone or in person depending upon the particular witness.
Organize all exhibits and statements that are going to be used with a particular witness.
Advise non-expert, non-party witnesses of scheduling and seek to clear any conflicts.
30 Days Before Trial
Have all relevant government records, including weather records, certified.
Make sure that sufficient copies of all documents and other records are available.
Ensure that foundation is available for all records and other documents.
Review all records to determine what material, if any, may require the preparation of motions in limineparticularly relative to items of evidence that you may want to keep out of the records.
Review the investigative report of any government agency to determine what segments of the report are admissible, i.e., hearsay problems, statutory bars.
Highlight exhibits to flag key portions of them, to ensure that the information is readily available to you during the examination of witnesses.
File your exhibits in your case-organization system in a manner that is case specific.
Get stipulations from opposing counsel relative to as many of your exhibits as possible.
Prepare short evidentiary briefs on exhibits you expect will be an issue. Review all demonstrative evidence for foundation requirements.
Consider indexing medical records and tabbing them in several categories to permit ready access.
15 Days Before Trial
Consider the trial objections that may be made and, whether an in limine motion is appropriate.
Draft your trial brief.
Focus upon various issues you believe will come up during the trial and are susceptible to resolution prior to the trial by motion in limine.
Consider filing a motion for summary judgment as to certain matters susceptible to resolution before commencement of trial.
Draft jury instructions. Do your initial draft of jury instructions when you are outlining the elements of proof to ensure that you introduce all required elements supporting a particular jury instruction. At this stage, you should finalize those jury instruction.
File your instructions with the judge before the trial begins even if the judge doesn't require such a filing.
Think about the kind of jury you would like to have decide your case.
Draft your voir dire questions.
Prepare subpoenas for all witnesses. Be sure that the subpoenas are issued in sufficient time to allow their being served. Make sure checks are included covering witness' fees.
5 Days Before Trial
Learn everything you possibly can about the judge. Consider running a Lexis or Westlaw search of the judge's prior decisions to determine whether he or she has ruled on any similar matters, motions or related areas on prior occasions.
To the extent you have not already done so, find out as much as you possibly can about your opponent. Check Martindale-Hubbell to see if he or she is listed. Chat with colleagues to determine whether they have had any experience with your opponent.
Review your entire case file at least once.
Revisit your settlement position and be prepared to take a final settlement position at the trial.
Although you already may have established your order of proof, review it one final time to see if it is the most logical and persuasive order that can be achieved.
1 Day Before Trial
Double check that all professional and personal obligations have been accounted for or otherwise resolved.
If you are trying a case out of town, make sure all your hotel reservations and those of witnesses have been confirmed.
Think about your clothing for the trial so you don't have to think about it on a day-to-day basis. This is particularly important if you are out of town.
This checklist will provide trial counsel with a working outline of matters to be considered before commencing a trial. It is not meant to be all inclusive; rather, it is structured in such a way so as to permit an attorney to add elements and time frames as appropriate.
The well-organized trial lawyer starts off with an advantage that his or her opponent may never be able to overcome. The key to successful preparation is to ensure that none of the details are overlooked. Using this checklist as adapted to a particular case can help provide the added assurance of knowing that all details have been accounted for before trial.