by Tony Klapper
(former) Managing Director, Litigation Consulting
At A2L, we tend to work with the top litigators at some of the nation’s best-known firms. These men and women are obviously excellent lawyers, very good at what they do. They are also very busy. They always have another complaint to respond to, another discovery dispute to resolve, another brief to write or edit, another partners meeting to attend, another associate to evaluate, and another set of bills to review before a client sees them.
So when it comes time to thinking about what trial presentation works best, some of these lawyers procrastinate and delay developing the story. This is a strategic error. As early as possible, you should be crafting your narrative and deciding what kind of jury research exercise you might want to do or what kind of graphics to show. These things can be the difference between winning and losing the case – and they deserve high priority. It’s not a matter of self-promotion for A2L; rather, it’s an understanding, which we hope all our team members share, that these aspects of trial are crucial and should not be deferred without a very good reason.
That email to a client is important, and so is that meet and confer letter – but the essence of a trial presentation is even more important. And it has a time element that many lawyers may not be aware of. If they allow for a mock jury exercise months before the real trial, they can easily take what they have learned and apply it to their case. The sooner it is done, the better, because the lessons learned in a mock can help guide not only your ultimate trial narrative but also the evidence needed to support that narrative. If you wait too long, the admissible evidence may already be locked in because the discovery doors have closed.
But working backwards to get the timing right requires careful planning and strategic thought — something that the over-stretched, busy partner might not make time for. But making time for the building blocks of your narrative is one of the most critical things you can do as a litigator—particularly when there is a very real risk of (or opportunity for) going to trial.
If you are too busy, try to divide your team into those who handle the day-to-day “litigation” tasks and those who can allocate sufficient time to the big-picture trial thoughts. These, of course, cannot be completely placed in separate buckets, but if you start structuring your trial and litigation teams along these lines (with open and frequent communication between the two), you will end up making the time necessary to both properly litigate and properly try your case.
One way of handling this that worked very well in matters that I was involved in during my 20 years of practice was to have the trial lead do the things that only he or she could (or should) do, and have his or her top lieutenant make sure that the day-to-day things get done. The lead trial attorney can review this work but need not be hands-on. That frees time to accomplish the essential task of trial preparation, well in advance. After all, a law firm is about client service, and that is certainly what the client in a high-stakes case would want.
Other A2L Consulting articles discussing trial preparation, the timing of trial preparation, and best practices of leading trial teams include:
- 10 Criteria that Define Great Trial Teams
- The 14 Most Preventable Trial Preparation Mistakes
- The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation
- 7 Habits of Great Trial Teams
- FREE DOWNLOAD: Storytelling for Litigators E-Book 3rd Ed.
- 16 Trial Presentation Tips You Can Learn from Hollywood
- Three Top Trial Lawyers Tell Us Why Storytelling Is So Important
- 3 Trial Preparation Red Flags That Suggest a Loss is Imminent
- How Long Before Trial Should I Begin Preparing My Trial Graphics?
- Top 7 Things I've Observed as a Litigation Consultant
- Sample One-Year Trial Prep Calendar for High Stakes Cases
- 7 Ways to Prepare Trial Graphics Early & Manage Your Budget
- Practice is a Crucial Piece of the Storytelling Puzzle
- 6 Triggers That Prompt a Call to Your Litigation Consultant
- Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy
- 7 Reasons It's Okay to Procrastinate on Your Trial Preparation