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The Art of Trial Prep (while Writing) on Deadline

Trials can be fun for trial lawyers when they get there, however as Dan Fogelberg would say, “But the traveling was hell!” The last piece, the prep time before packing up for the courtroom isn’t so much fun. There’s a lawyer on the other side that’s doing the same thing, but his or her goal is to achieve about the exact opposite results. The one who wins is often the one who works the hardest.

There are obvious things to prepare for, like picking a jury, crafting an opening, picking up your shirts at the cleaners, direct exams, depo designations, and getting a haircut. But then there are all the other things that get in the way, like opposing lawyers calling to settle the case. Oh sure, that can be advantageous, but the constant posturing and the back and forth negotiations take a lot of time and effort. Then if the settlement talks fail, it’s back to trial prep, but now with even less time to get ready.

In the case I am preparing for trial, I have five teams of lawyers on the other side. That’s right, five. They probably count about 750 lawyers in their combined firms, and in the days just before trial it seems like they all want a piece of me. And that doesn’t count the pesky paralegals they employ who are irritating me too. Of course, I have assembled my own crack team, but still, five against one doesn’t seem fair. Now, I know odds like that don’t at all intimidate real-life American heroes such as the Terminator, Indiana Jones or even Batman and Robin. By the way, if you really want to get a chuckle, check out the old Batman TV show that is generally available on one of the networks that show mid-century TV reruns. Unlike today’s fully muscled, high-tech armed superheroes, those skinny little twerps (armed with barely more than a Bat-arang) somehow manage to rough up volumes of villains with very little work put in at the gym.

That’s the thing about trial law. You really do have to put the work in at the metaphorical gym. Otherwise there is no way you can beat five-to one-odds. Don’t get me wrong, I’m not suggesting that I am more akin to the Terminator than to young Dick Grayson. In fact, my body style is much more like The Boy Wonder, but it’s not for lack of effort lifting heavy caselaw.

As a lawyer gets ready for a trial, he is keenly aware that the hopes of his client are riding with him. What’s more, the lawyer may have been paid a lot of money to get the job done. Of course, no matter how hard the lawyer works, or how knowledgeable he is, there will often be the finicky facts and sometimes the even more finicky law with which to contend. Then there are the clients. In preparing for a case last year I explained to the client that my most important task was to make the jury dislike her opponent and love her. I pointed out that if the terrible pain she had been forced to endure was properly demonstrated by a requisite show of emotion, a/k/a her tears, it would make a very important and appropriate impact upon the jury. Her response was, “Oh that’s not going to happen Mark, I don’t cry. It’s up to you to get my pain across.” Hmm.

So, for the near future I will be reading through thousands of pages of depositions, depleting yellow highlighters and contemplating using this or that document. I will try to think about what my best punches will be and ready myself for the inevitable counterpunching. Of course, the rest of the world tends to disappear for a while as we prepare for trial. Our spouses ask us about dinner. Sometimes we join them, usually we don’t. Apparently as I have been preparing, there has been the approval and swearing-in of a new U.S. Supreme Court justice, Syria has used poison gas on its people and the United States has responded, the president has defended Bill O’Reilly (whoops), we have dropped the “Mother Of All Bombs” in Afghanistan, and an “armada” of ships has been sent to North Korea (although initially headed in the wrong direction). I, however, cannot concentrate on such trivial things, as the ghost of Clarence Darrow is sitting on my shoulder, scowling every time I check my iPhone for a hockey playoff update.

In the old days, lawyers went to trial often. Discovery was not so broad. Insurance companies sent out lawyers to fight over a thousand bucks, and so-called “trials-by-ambush” were commonplace. Today, the cost of modern discovery, and the costs of modern lawyers have made the confrontations less frequent and settlement more common. Still, once in a while, parties line up on their respective sides of the courtroom – certain they are right, or at least certain the other side’s position is unreasonable – and they fight it out. The truth is that even though in general people ought to be able to resolve their disputes short of trials (and usually do), sometimes it’s best that the parties get their day in court. It’s just a little unfortunate when it comes right in the middle of a column deadl…

Levison, Mark© 2016 Under Analysis, LLC. Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm of Lashly & Baer. Contact Under Analysis by e-mail at comments@levisongroup.com.


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