Preparation is Key

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If worst comes to worst and you cannot settle your case with what seems like a reasonable compromise, your lawyer should be calling and scheduling a meeting with you well before trial to prepare for the trial itself.  First of all, for most cases I am scheduled to try, a pretrial statement must be filed.   When the trial was originally scheduled, it is likely that trial judge entered what is called a “pretrial order” setting forth discovery deadlines and due dates for the parties’ pretrial statements to be filed with the judge or the court clerk.  Some jurisdictions have rules that set forth the due dates and contents of pretrial statements, so there are not individual orders for each case.  However, before the pretrial statement can be filed, the lawyer and the client should meet to discuss strategy and the identities of witnesses that they may want to call to testify, and to identify the documents which will need to be offered into evidence, to prove their case at the trial.

There are numerous rules that govern what evidence can be offered at trial; evidence cannot be “hearsay,” that is, the person who offers testimony or authenticates documents that they want to put into evidence must have FIRST HAND KNOWLEDGE of the events or issues they want to testify about.  With limited exceptions, witnesses will not be allowed to testify to anything someone told them. I wish I had a dollar for every time a client offered to bring a letter from a proposed witness, (notarized or not), that lays out that person’s testimony.  Sorry, hearsay.  Not permitted.  Testimony must be given in person.

This is probably an appropriate time to explain what notarization of a document means.  Most people seem to think that if a document is notarized, that it has some official recognition as being true, or accurate.  Actually, all that a notary seal means is that the notary public is guaranteeing that the person whose name is signed to the document is that actual person; normally the notary is going to require that the person whose signature they are notarizing SIGN THE DOCUMENT IN FRONT OF THEM and that they produce I.D. to prove who they are.  Don’t bring a signed document to the notary and ask them to notarize it; it is against the law.

Unfortunately many lawyers don’t involve the client in the trial preparation process; if they did, the client would have a better understanding of the strengths and weaknesses of his or her case, and what evidence or witnesses the lawyer intends to call at trial to prove their case, or in the event they are the defendants in the case, what evidence they can put on to disprove the plaintiff’s case.  I have found that involving the client in the pretrial process is extremely valuable,   both to me and to the client, in preparing for trial.

Before the trial, the lawyer should plan to meet with everyone whom they intend to call as a witness in their case.  If they have expert witnesses, such as a real estate appraiser, a physician, pension expert, or whatever, it is unlikely that they will meet to review their testimony personally.  However, most expert witnesses are used to testifying, and usually the lawyer can go over their testimony with them by telephone.   In the case of lay witnesses, I have an ironclad rule.  If they cannot meet with me to go over their testimony so that I can know what questions I should be asking them and also to  prepare them for cross-examination by opposing counsel, I will not put them on the witness stand.  That doesn’t mean that I have to meet with everyone individually; many times I hold group witness preparation sessions with numbers of witnesses.  However, the key is preparation.  If I don’t know exactly what the witness will be testifying about, I would be foolish to call them to testify, and if they are not prepared for tough cross-examination by opposing counsel, all of their good intentions can come to naught.

In trials, as in most things in life, proper preparation is required to reach the desired result.  Thorough trial preparation doesn’t always mean you are going to win your case, but it sure as heck makes it more likely.  And frankly, it often intimidates the opposing counsel, who may not have his or her case as well prepared.  Many times I have settled cases on terms satisfactory to my client, on the way into the courtroom when my client and I are better prepared for trial, and opposing counsel is aware of the disparity in preparedness.

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