Outline of a Lawsuit – The REAL “pre-trial conference” on Day One

After you have spent an entire weekend, 12 hours a day, preparing your witnesses, reading all depositions transcripts, contacted your expert witnesses to schedule their appearance, reviewing police reports, and written a draft of your Opening Statement, you are now ready to have a real trial conference with the judge assigned with your case.

It is your first opportunity to meet your adversary and to make key observations about him or her.  Is the attorney cooperative on stipulating to the most basic evidentiary issues? Will the perfunctory matters of admitting records and photos be taken care of without little drama?  Day One establishes the tone of the trial and the relationship between you, your adversary, the judge, and the jury.  My philosophy is to pound your fist on important matters and to be cooperative on matters that are clear.

You should know the issues for any motions in limine before your enter the judges chambers.  A Memorandum of Law on the issues should be exchanged with your adversary in chambers.  (Do not tip your hand and give your adversary an opportunity to think.  You have done your homework and they should have done theirs!)

Be prepared to discuss the cases in the Appellate Division where your case is being tried.  Anticipate your adversary’s position and be sure to have a reply to their legal arguments.  Distinguish their cases (and READ their cases and understand the fact patterns and legal conclusions for each case).  On matters of evidence, prepare to argue probative value versus prejudicial effect.

At this important conference, you need to also prepare a list of all witnesses.  Give the Court a reasonable timetable for the trial.  If your witnesses have scheduling problems, be sure to let the Court know immediately so as to not cause any surprises.

Be polite to your adversary, but do not make small talk.  It is fine to be courteous, but do not endear yourself to your adversary.  It is time to enter into battle and your need to clear your mind of everything except those issues that pertain to your client’s case.

Your adversary will appreciate that you are prepared and serious after this conference is concluded.

Leave a Reply

Your email address will not be published.