Professional Preparedness

I often contend that it is freqently the best prepared case that wins the day rather than the best case. A good deal of The Empowered Paralegal focuses on preparedness whether the discussion relates litigation, client management, or any other aspect of paralegal work. Preparing for trial requires much more than lining up witnesses, marking exhibits, and the like. It includes knowing whatever can be known about the jury pool, court room, courthouse, witnesses, parties, and the judge. Consider, plan, and prepare the entire trial presenation from the standpoint of its effectiveness in that particular courtroom and from the viewpoint of the other participants. Having great evidence is of little import if that evidence is not presented in a way that can be seen, heard, and understood by the factfinder. Evidence is only “proof” when it convinces the factfinder.

Here in Mississippi we are fortunate to have a judge who blogs. And in his blog he tells legal teams what he expects from them in court. I suspect that what he expects is quite similar to what most judges expect. It comes as no surprise that one of his expectations is that the legal team be prepared! Consider this recent [edited] post:

Is this you? Your client, Otis, is on the witness stand. Otis is testifying about his finances from Exhibit 2 in evidence, which is his Rule 8.05 financial statement — $350 a month for groceries, $100 for entertainment, $360.48 car note, and so on — and the only ones in the court room who are looking a copy of at his Rule 8.05 financial statement while he testifies are Otis, you and the lawyer on the other side. You glance at the judge, who is sitting there staring off into some faraway void, eyes glazed, his mind drifting off into starry space where Otis’ crucial testimony will never penetrate. The judge is missing the most important evidence in your case!

Where did you go wrong?

If you answered that the Chancellor doesn’t have a copy of the exhibit about which Otis is testifying and so is deprived of the most potent tool you have for the judge to follow and later recall Otis’s testimony, you are absolutely correct. Give yourself a gold star and a pat on the back for a correct answer to this quiz. Give yourself a big, fat F for your trial technique.

…Some attorneys not only offer the exhibit; they also offer the court a separate, extra copy for the judge to mark up. That’s a pretty shrewd practice.

If you aren’t making sure that the court has the original exhibit or a copy when you ask a witness about it, you are asking the court to judge your case in the blind. Put yourself in the judge’s shoes: Without the exhibit, you are asking the judge to listen to, comprehend, copy down and digest literally dozens of figures, often delivered in rapid-fire, machine-gun fashion, when the figures are right there on the exhibit, and the judge could be following along, thoughtfully assimilating the testimony and jotting down a few helpful notes.

The principle is not limited to financial statements. I once had an attorney take a stack of photos in evidence from the bench, present them to the witness one by one, and ask the witness to describe and make observations about each. To this day, I have no idea what the witness was talking about. Had I had a separate copy, I could have looked at each photo simultaneously with the description, and perhaps that would have influenced the outcome of the case.

A week does not go by that I am put in the position of judging in the blind, and it is always to the detriment of the client. How do you expect the judge to get the benefit of your client’s testimony about her financial statement or other exhibit if you take the document away from the judge before she testifies about it?

A variation on this theme occurs when the lawyer actually begins questioning the client about the financial statement and the witness, for crying out loud, does not even have a copy to look at. That’s like sending the poor client into a knife fight without a knife.

The same principles apply to a jury. For example, it makes sense to have an exhibit projected onto a screen for the jury to see as the witness talks about it.

In any case regardless of your jurisdiction, check out the blog at this link: http://chancery12.wordpress.com/2010/08/02/judging-in-the-blind/. It is a great resource for basics such as checklists and for more subtle insight into trial preparation from the viewpoint of the bench.

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