Pretrial Law and Motion
- Even in federal court, there may be some motions in limine and/or other pretrial issues that have not been resolved prior to the first day of trial. Make sure you have the pretrial binder with you and make sure you are ready to discuss any law and motion issues on the first day of trial.
- Meet Dale in the cafeteria 10-30 minutes prior to the start of trial to discuss any law and motion issues.
Managing Counsel Table and the Attorney Room
- Arrive early on the first day of trial to unload all of the boxes upstairs outside the courtroom. The courtroom will be locked until only 10-30 minutes prior to the judge taking the bench.
- There may be an opportunity to drop off some of the boxes the Friday or Monday prior to trial. Try to get some help with this if you have voluminous materials, because you’ll also need to meet up with Dale and set up counsel table prior to the judge taking the bench.
- On the first day of trial, place the exhibit books on counsel table, along with any briefs you need for any law and motion hearing that morning and for jury selection.
- Make sure you also have extra copies of the exhibits (not hole-punched) that Dale intends to use for opening statement, as well as your witness folder for the first witness to be called, on the off chance that jury selection and opening statements finish prior to the lunch break.
- At the start of each trial day, set up counsel table with the exhibit books and the folders/transcripts for each witness to be called that day. Make sure you know which exhibit numbers will be used that day.
- At the end of each day, clean up counsel table and put the materials in the attorney room. You can leave materials in the attorney room overnight.
Assisting with Voir Dire / Jury Selection
- In federal court, you’re picking a jury of 8, and most judges give the attorneys an opportunity to question the potential jurors.
- Discretely research the jurors on social media on your phone and/or text photos of the jury roster to someone back at the office to do the same.
- Take good notes on each potential juror’s responses to voir dire and be ready to give Dale your input.
- Each side gets 3 preemptory strikes and unlimited “for cause” challenges.
Assisting with Opening Statements
- Use sticky notes to help Dale keep an eye on his time.
- Make sure you have extra copies of the exhibits Dale will use during opening statement.
- If you drafted a “story” for Dale to assist with opening statements (i.e. the decedent’s or client’s “backstory” up until the incident, with key dates, names, and timelines), bring a copy.
Trial Briefs
- The judge may request additional briefing on a legal issue at any time during trial. You may be able to go into the attorney room to work on this during trial, or you may need to ask a colleague if they have time to assist or work on the brief in the evening.
Participating in Bench Conferences and Side Bars
- The judge typically requests a 30-minute bench conference with the attorneys prior to bringing in the jury, where the judge and the attorneys will discuss things like the trial schedule, the jury instructions, and any other issues.
- The judge may also schedule times to discuss the jury instructions, etc. around 4:30 p.m. at the end of the trial day.
Organizing and Prepping Witnesses During Trial
- Keep in contact with all witnesses we intend to call during trial. Apprise the witnesses of updates to the case schedule and remind them of the witness exclusion rule.
- When it’s time for Plaintiff to bring in the next witness, get up from counsel table (or be waiting outside the courtroom for the witness) and guide the witness into the courtroom toward the witness stand.
- If your witness needs an interpreter, have the interpreter get there early to work with the witness.
- Spend time prepping the witnesses in the attorney room (for percipient witnesses, your client, and family members/those witnesses where we aren’t concerned about the appearance of bias) during the trial or in the attorney lounge/library. This includes experts. Familiarize them with the exhibits you will use, and do a practice question and answer session for inexperienced witnesses like your client.
Client Control
- Keep in contact with the client(s) and family members prior to and during the trial.
- Text or call the client(s) when you arrive (early) at the courthouse to arrange a place to meet. You don’t want them inadvertently lingering near jurors and/or the defense. You also want to be cognizant of whether the defense has subpoenaed any of the family members to testify, and whether their testimony would be detrimental to the case, in which case you want to keep them unavailable.
- Make sure the clients know what time trial starts each day, where and when they can have lunch, and where to meet at the end of the day for a recap/debrief. At the end of the day, meet your clients in the attorney room or downstairs in the cafeteria.
- Make sure your clients and their family members are dressed appropriately every day and are not disrupting the trial.
- Where your client is the person who was shot and survived, you may elect to have him sit at counsel table.
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Managing Exhibits
- Every time an exhibit is admitted, write down the exhibit number and the name of the witness who was testifying when the exhibit was admitted. This will be crucial by the end of the trial.
- Have the exhibits for each witness ready to go before the witness testifies (this is why I like to make the folders in advance) so you’re not pulling apart exhibit books in the middle of testimony.
- After the witness has testified, put the exhibits that were admitted in a new folder. If you have duplicate copies of the same exhibits in your folders for subsequent witnesses, then you don’t have to worry about putting exhibits back in the binder or scrambling to find them to re-use for subsequent witnesses.
Maximizing Breaks and the Lunch Hour
- Dale will ask you to run down to the cafeteria or to a café across the street to get food for him. This may seem like a menial task, but it is a big help to Dale. Dale’s preferred lunch is a plain grilled cheese or a turkey sandwich with no lettuce and tomato. Dale’s preferred drinks are Pellegrino, Perrier, apple juice, and root beer (when he’s not dieting).
- Keep track of when the doors to the courtroom lock (i.e., during lunch). Make sure you take your laptop with the flash drive containing the case file, as well as your organized witness folders for that afternoon’s witnesses, with you when you leave for lunch. The lunch hour is a good time to prep for the afternoon witnesses, and Dale will have questions for you.
- Assist Dale by contacting the office at the end of the day (and more frequently if necessary) to see if anyone has any updates or questions.
- Be prepared to revise the verdict form and jury instructions during trial. The court will likely hold bench conferences regarding the verdict form and jury instructions. Dale may elect to drop claims, which may affect the verdict form and jury instructions, and there may be discussions regarding qualified immunity that affect which defendants remain in the case and which defendants may need to be individually listed under the questions on the federal claims.
- The judge may request that the parties email Word versions of the revised jury instructions and verdict forms to the court, and you should also bring an extra flash drive to give the court these documents. The judge will ultimately issue the final jury instructions after much discussion, and the parties will typically review hard copies of the final jury instructions with the judge prior to the instructions being filed.
Certifying Admitted Exhibits
- At the end of the trial, one attorney from each side will be tasked with meeting with the court clerk to agree on which exhibits were admitted. You will have to sign a form certifying that the exhibits that are going to the jury were indeed admitted during trial. If you kept a good list and a separate folder of copies of the actual exhibits, then this is easy. However, you’re likely going to be running in and out of the courtroom to prep witnesses, so you may miss a few if only one associate is assisting with trial. You could ask your client or one of their family members to assist.
- If you failed to accurately record which exhibits were admitted, you may find yourself in a position where the defense tries to get you to agree that an exhibit that is not good for your case was admitted. The court reporter may or may not be able to go through her transcripts to clarify which exhibits were admitted.
Jury Deliberations and Taking the Verdict
- After the case is submitted to the jury, the attorneys must stick around to answer any questions the jury may have. If Dale is busy, you can help him by “babysitting” the jury and even taking the verdict.
Packing up
- At the end of the trial, after the verdict has been entered, you’ll need to clear out the attorney room and take all the boxes back to the office.