A Paralegal's Guide to Preparing for a Civil Trial
Preparing for trial is a stressfull time for all involved. Here are some tips to keep your cool!
Ninety Days Before Trial
When litigating an out-of-county or out-of-district case, obtain a copy of the local rules, if any, as soon as possible. Usually the court coordinator will have them. The court coordinator will also be aware of local court holidays. In your own county or district, check for amendments every six months or so and keep copies up-to-date and secure. That is, don't let the attorneys walk away with them. United States District Court Local Rules can be downloaded from PACER. Review the rules carefully, noting all pretrial deadlines. Pay particular attention to rules regarding the marking and exchange of exhibits to be offered at trial.
Pretrial Deadline Schedules
I formulated pretrial docket schedules with Quattro Pro 6.0. I have "pages" within the spreadsheet program for Tarrant County Jury, Tarrant County Non-Jury, Dallas County Jury, Dallas County Non-Jury, and State Holidays (based on Tarrant County courts). These schedules can be modified for other counties. The deadlines key off the trial date and all dates are calculated backwards using Quattro Pro formulas. The schedules contain not only the local pretrial deadlines, but also pretrial deadlines from the Texas Rules of Civil Procedure, Texas Rules of Evidence and Civil Practice and Remedies Code.
In a complex document case, it is important to gain control of the documents from the start. Use a simple numbering system, keeping track of who has produced what, when, and which bates number range is in which box. As a number prefix, use initials of the party or witness who produced them, if possible. Keep this information on a bates number, or production, log. Keep track of individual documents with a litigation support system (database), or word processing system log. Index or log privileged documents in a separate system.
If you do not have the luxury of storing documents in a file cabinet, store documents in boxes clearly labeled on all sides with the name of the case, number range, and date produced. If the documents will be referred to frequently, file groups of documents within each box in red rope folders on which the bates number range is clearly labeled on the left and each folder is numbered on the right. This makes refiling easy and avoids the confusion of misreading bates numbers. When a document is removed, place an "out" card in its place and make every effort to replace it quickly. Don't give originals to people to work on - make copies. It's too easy to lose track of who has what when.
Sixty Days Before Trial
If attorney's fees will need to be proved up, pull and copy all fee statements and back-up data. If necessary, also pull time slips. Prepare a summary of fees, expenses, and attorney/paralegal time. Continue to update fees through trial.
Ask the attorney to prioritize the depositions in the case, and then summarize all of them. Provide copies of the summaries to each attorney who will go to trial and keep a copy with the deposition. Keep a cumulative list of all deposition exhibits-this may well evolve into your trial exhibit list.
Conform the firm copy of each deposition with the corrections that have been made by the witnesses. Do likewise for depositions on disk and summaries.
Keep a log of all depositions for purposes of tracking which have been signed, summarized, corrected, videotaped, etc. This is useful in ensuring all loose ends are tied up and taxable costs are on file with the Court.
Thirty Days Before Trial
Begin a trial exhibit list based on the rules of the Court, if any. Start with all the deposition exhibits.
Begin a trial witness list, also based on any Court rules. Start with everyone who was disclosed in answers to interrogatories.
Paralegal Trial Notebook
Keep a trial notebook or file just for yourself. Include only those items for which you will be responsible. For example, include document and production logs, deposition logs, witness and exhibit lists, copies of subpoenas issued, important telephone numbers, blank exhibit logs, deposition summaries. During trial, add jury lists, jury charts, trial notes, etc.
Two Weeks Before Trial
Marking and Copying Exhibits
Gather the exhibits that have been identified by the attorneys and mark them with exhibit stickers. Insert numbered tabs and have copies made. The originals will be for the Court, and opposing counsel and your firm should each have a set. Depending on local rules, a copy may be required to be exchanged with opposing counsel. You may be asked to keep a set of each exhibit to be offered. During trial, the attorney may ask you for Exhibit ___. You hand the attorney an original and a copy for each opposing counsel, and possibly an additional copy for the witness to use during examination. Make sure you have made enough copies so that you have one for the "admitted exhibits" folder (see below). Copying exhibits can become expensive so be sure to check with the attorney about how many copies will need to be made.
Arrange in advance for copying and mounting of oversized exhibits. Find out who does it, how long it takes, and if it can be done overnight. Consider purchasing a portfolio for carrying them; otherwise, the copy company can wrap them in brown paper. These may or may not be marked separately but that is something to consider. Is it an exact copy of a marked exhibit? If so, just make an identical sticker for it. If the blow-up is an extract from a marked exhibit or a stand-alone exhibit, be sure to mark it and keep a copy of the original for your file. Identify each oversized exhibit on the back so you can easily find the one you need during trial.
Arrange in advance for copying and editing of videotapes for exchange with opposing counsel. Find out who does it, how long it takes, and if it can be done overnight. Find out if the service needs a list of page and line references or copies of the transcript marked.
Week Before Trial
Arrange for the issuance and service of subpoenas including necessary application forms, filing fees and cash witness fees. If documents are to be produced, give the clerk an Exhibit "A" to be attached to the subpoena. This saves the clerk the time and trouble of having to retype the list of documents for the witness to bring. Provide process servers with all addresses. Follow up with the process servers until the witnesses are served. File the returns with the court clerk. Check with the clerk daily to obtain a list of all subpoenas issued by the other side. Keep with you a list of witnesses (and their addresses) who may need to be served during trial.
Talk to the security guards at the courthouse and let them know you will be coming, how many days you expect to be there, and how many boxes, etc. you will be bringing in each day. Find out from them if there are certain procedures that will ease your burden and help them do their job. Anticipate having to have all your boxes X-rayed and plan for the time necessary to do that each morning.
Visit the courtroom in advance to examine the layout of the jury box, counsel tables, electrical plugs, lighting, best places to set easels, overhead projectors, TV/VCRs, your boxes, etc. Find out if the court has its own video equipment, easels, chalk boards, dry erase boards and the procedures for using them. Sometimes they have to be reserved in advance. Find out the locations of the nearest copy machine, telephone and fax machine. On the morning of trial, plan on arriving at the courthouse first so you can hold the counsel table of choice for your attorneys.
Court and Courthouse Personnel
Introduce yourself to the security guards, courtroom bailiff, court coordinator and court clerk. Leave your business card with them. Find out if they have any special procedures during trial, when you can obtain a copy of the jury list and how they will seat the jurors for voir dire. Find out when you can get in to the building and into the courtroom. Find out if someone will need to escort you. Make yourself available for anything they might need.
A child's school box makes a nice trial box. If you need something bigger, a small tool box or tackle box work very well. Keep in the trial box extra exhibit stickers, pens, post-it notes, band-aids, mints, rubber bands, paper clips, binder clips, staples, post-it tape, markers, stapler, staple remover, scotch tape, chalk, chalkboard eraser, scissors, utility knives, etc. Don't forget extra legal pads.
Take a cellular phone if available. Large equipment that might be needed include an easel, dry erase board, chalkboard, newsprint, extension cord, power strip, overhead projector, light bulbs for an overhead projector, batteries, etc. Who is going to get you to the courthouse with all this equipment? Find out who has a truck or large vehicle and ask them to take you up there early. It will take a while to set up. Consider purchasing a cart for yourself that you can use to tote only those few items you want to keep with you at all times - like your admitted exhibits folders, notes, exhibit lists, exhibits to be introduced next, subpoena file, deposition summaries, etc.
Important Phone Numbers
Keep phone and pager numbers handy for your favorite vendors as well as your witnesses and clients. Copy services, video technicians, couriers, etc. can be lifesavers during trial. Most will come to the courthouse to assist you and even deliver the oversized exhibits for you.
In the jury's eyes, you, too, are a reflection on your firm's client. Dress conservatively but becomingly and neatly. Keep your voice low and be courteous. Don't chew gum or violate other courtroom rules. Stand while the judge and jury enter and leave the room. Be respectful of the place, the parties and the system. Introduce yourself to the other attorneys and paralegals. Be helpful even if they aren't.
Jury List/Jury Chart
As soon as the jury list is available (it is usually provided to the attorneys by the bailiff), fill in the names of the jurors and other important information from the jury cards on as many charts as necessary for your attorneys and clients. It is helpful to write the chart directly on the inside of a manilla file folder. The folder is stiff to aid in writing and can be closed for confidentiality.
As the attorneys ask questions, jot down your thoughts about the jurors' responses. Share your thoughts with your attorneys.
While the attorneys will be taking notes about the issues, busy yourself with noting the times things happen, including times opening statements and closing arguments are begun and ended, the discussion, offering and admission of exhibits, voir dire of a witness, presentation of objections, approaching the bench, bills of exception, direct and cross examination of witnesses, breaks, when the court reporter changes tape, reading of depositions into the record, discussion of individual exhibits, etc. Times will be helpful for many reasons, for example, if the court reporter is asked to transcribe a portion of the record or if there is a question about when an exhibit was admitted and displayed to the jury.
Using Exhibits During Trial
Hopefully, the attorney will have planned in advance which exhibits will be offered and through which witness. In that event, you can pull the exhibits in advance and have them ready for the attorney when, and if, needed. There will always be that time during trial when you will be asked to find something on the spur of the moment. Be prepared. Know where everything is. Have everything clearly labeled. If you have prepared the exhibit list yourself, you know what is in the trial exhibits. If you did not prepare the list, make sure you are familiar with it. By the same token, if you are not familiar with the documents, make sure you become familiar with them prior to trial. If you have room and if the attorney thinks it may be necessary, plan on bringing all documents to trial.
Finding That Document
Don't ever let 'em see you sweat. Maintain your composure while you are searching frantically for that one document in a million. Don't look at your attorney with that "I don't know what you're talking about" look when he asks you for "that document." Don't shrug your shoulders. The jury will see you and notice. Your attorney will lose faith in you. Stay calm and search methodically. If you are unsure, ask the attorney to describe it in more detail. The pause will give the attorney time to gather his or her thoughts. What may seem like an eternity is really only a moment or two. Don't let the attorney's panic break your composure. Your calm will help him regain his. Be professional. Check your logs and lists. You will find it if you are prepared and, of course, you are. Just in case, keep copies of "hot" documents handy at all times. When the documents are found, everyone will be amazed at your prowess.
Marking and Admitting Exhibits
Keep a couple of sheets of exhibits stickers filled out and don't lose track of the last number used. Keep track of exhibits marked, offered and admitted and through which witness. Remind your attorney if exhibits were discussed but not offered before the witness leaves the stand. Go over the admitted exhibits at the end of each day with the court reporter. Review not only the court reporter's list, but also the actual exhibits. Keep them in numerical order if possible. Keep blank exhibit logs handy for those times exhibits not already listed are offered.
Keep your attorneys' counsel table clean. Check it during the lunch break and at the end of each day. Keep your area clean as well. It will make an impression on the jury. Fill the water jug if the bailiff is busy. Keep track of exhibits and documents pulled by the attorneys. When they are through with them, put them away where they belong, not just anywhere.
Back to the Office
Take back only what you will need that evening to prepare for the next day or two. Update exhibit lists from your notes and provide copies to your attorneys. Find out what will be needed the next day and pull exhibits per witness, if possible.
Admitted Exhibits Folders
Every evening during trial make copies of, or place copies of, each admitted exhibit in an "admitted exhibits" folder-one for each party, with number tabs. Include drawings on newsprint that may have been identified and offered. Make a sketch in your legal pad, then copy that for the folder. At the end of each day, make a list of each exhibit admitted that day, in the order they were admitted, and keep that list with the admitted exhibits folder. Make a list and folder for each party. Use these cumulative lists to conform your list with the court reporter's list, or visa versa. The court reporters will be amazed at your efficiency. At the end of evidence and before the exhibits go to the jury, make a numerical list of all exhibit numbers admitted and the date admitted. With this list, go through the exhibits one more time to ensure your records jive with the court's. Conform your copies of the exhibits to the court's. Since you have kept at least two lists during trial and have made copies of everything every evening, your lists may be more accurate than the court reporter's-at least they probably will be more accurate than anyone else's.
If requested, be prepared to provide the court reporter with page and line numbers of portions of depositions read into the record. This is especially important if a statement of facts will be requested.
Consider sending a juror survey to poll the jury as to why they decided as they did.
Juror Thank-You Letters Send thank-you letters regardless of the verdict.
Now that you're armed, you're ready! Good luck!
APPENDIX A - Pretrial Deadlines
APPENDIX B - Document Logs
APPENDIX C - Jury Chart
APPENDIX D - Exhibit Logs
APPENDIX E - Note-taking
APPENDIX F - Juror Survey
APPENDIX G - Juror Thank-You Letter
Betsy Horn has been a litigation paralegal with the firm of Harris, Finley &Bogle since 1984. She received her CLA designation in 1990. She is the immediate past president of the Fort Worth Paralegal Association and that organization's Legal Assistant of the Year for 1995. She is a member of the Legal Assistants Division of the State Bar and the American Bar Association.
Editor's Note: Betsy's article refers to a number of lists, logs, and charts that she uses in preparing for trial. We have included some of these (formatted for the www) in the Appendices. If you would like WordPerfect copies you may contact the author directly.
TEXAS PARALEGAL JOURNAL
©1997 Legal Assistants Division, State Bar of Texas