Compared with even the largest law firms, we go to trial a lot. After all, even the busiest litigators in major firms try at most 30 cases in their lifetimes. We consult on many more cases than that in a year. Indeed, we have spent 20 years going to trial, and our clients are mostly major law firms that are working on very high-stakes cases.
This unique perspective on how litigators conduct trial preparation for cases has given us enough best practices to fill this blog for a lifetime. No two litigators are quite alike. From the trial attorney who knows his case perfectly months in advance to the one who only learns the case a couple of days before trial, there is no one right way to do things.
However, it is easy to make fundamental mistakes when preparing for trial. After all, unless you have worked in a prosecutors' office or have cut your teeth at a smaller firm, the chances are that trial is a rare event for you.
Here are 14 mistakes we have seen in trial prep that are completely and easily preventable.
- Where's the story? As more and more science emerges about the proven value of storytelling as a persuasion device, it is critical that your case have a story. Many teams arrive at our doorstep with no story in place at all, so we craft one for them through mock jury work and other exercises like a Micro-Mock.
- Where's the meaning? In addition to telling a story, you have to be prepared to tell jurors why they should care about your client and the case. If you can’t do that, don’t expect a good result.
- Being penny-wise and pound-foolish: This old phrase means, of course, that one is focused on small costs, not on the ultimate result. Let’s say you or the client chooses hotel accommodations that are five miles away from the courthouse to save money, or that you adopt a software solution that isn’t tailored to your needs because it’s cheaper. These choices don’t help in the long run.
- Using paralegals or associates as trial technicians: It's not fair to these good people who support litigation partners to ask them to run software at trial that they have not had adequate training and experience with. We had a recent case where a law firm attempted to use an under-experienced person to handle trial presentation and lived to regret it. They, the judge and their jury waited in silence for ten minutes during opening statements for the technology to work. As our happy (and winning) client said, "you don't get a second chance to make a first impression." I couldn't agree more.
- Going with the low estimate on graphics: As one client said to me recently after a competitor of ours was brought into a case on a low estimate and then dismissed for performance issues, "it was a false economy." If a consultant makes your trial preparation more difficult, or even just less easy, that always costs your client hard dollars. Explaining this value to in-house counsel is critical.
- There's last minute, and then there’s really last minute: Often people think a case will settle and they put off trial preparation, only to find that the settlement didn’t occur. Unfortunately, trial preparation is just one of those things that takes time, and there really is no fast-forward button. Put off trial prep to keep the client bill down in the near time, and you will likely be the one getting blamed for a bad trial result in the end.
- Insufficient practice: We have published some very popular articles on the subject of practice. From how actors prepare to how professional athletes practice, there are countless examples of the benefits of good practice. One estimate for great presentations suggests that to be really effective, you must devote and an amount of time to practicing equal to at least thirty times the length of your presentation.
- Using PowerPoint amateurishly: I used to race cars a bit, and I noticed on the track that there is a surprisingly wide gap between adequate and great drivers. It shows up on a stopwatch of course, but I would see it more in the mistakes people made. Preparing litigation graphics on your own is quite similar. Almost all of us know how to drive a car and even drive fast, but very few people can consistently make the right choices on the track. Similarly, almost anyone can prepare a slide in PowerPoint, but making the right choices to win over your jury is much more difficult.
- Failing to survey the courtroom in advance: Just as a professional athlete will visit a new stadium or arena in advance, you should visit the courtroom wll before the trial begins. Often litigators learn too late that a courtroom is too small for a standard projector or that a timeline they want to use has no place in a particular courtroom layout.
- Failure to role play: Like an actor who tries to practice alone, an attorney must work with experts, assist in witness preparation and conduct drills of their opening and closing statements.
- Failure to test graphics in advance: I remain astounded that mock trials are conducted without litigation graphics being tested. You don’t want to find out during the trial that your graphics or your equipment are incompatible with the courtroom setup or are ineffective. As any qualified jury expert will tell you juries rely on more on what they see than what they hear, roughly by a factor of 2:1.
- Failure to understand your judge: There are many good ways to research a judge, some of which we have detailed in a popular article. You simply must understand how he or she decides things. In the court nearest me, there are judges who will not tolerate trial technology of any sort, and there are judges who get annoyed when you don't use it.
- Losing it during trial preparation: Sometimes even great trial teams go bad, but the single worst thing that can go wrong is when the leader loses his or her cool close to trial when anxiety is at its highest.
- Failing to brainstorm what could go wrong: Plan for the worst and expect the best. This should be just as true for pre-trial motions as it is for trial technology.