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Lifecycle of a Case, Phase 8A: Trial · Coopers' Code

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Howdy, and welcome to another episode of Cooper's Code Life
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Cycle of a Case series where we provide tools and tactics for
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the different phases of a case. We're compiling all of these
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episodes into a playlist on our YouTube channel, so head on over
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there if you want to see them all.
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In the final countdown to trial, we come to what is is probably
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one of the most important phases of the case.
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That's pretrial work. And in the pretrial work, this
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is an opportunity to to really help set the stage for the case.
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So there are a number of things that need to be exchanged
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pretrial, the exhibit list and the exhibits, the witness list,
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jury questionnaire, stipulations that that one can agree to
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motions and eliminate A neutral statement or decision to do a, a
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mini opening and the verdict form.
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Those are kind of the, the big, the biggies for pretrial
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exchange in federal court. The federal court will often
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times require one to do a, a joint trial submission where one
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has to go through a lot of these things and work with the other
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side to try and refine them. We often times will try our own
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state variant of this with opposing counsel where we will
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reach out and suggest a a joint submission in terms of what we
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can agree to, what we can't agree to.
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Two reasons for this. One is we find that when we go
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into a courtroom and we've worked together like that, the
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judge tends to be very appreciative and an appreciative
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judge tends to let one try one's case, meaning you often times
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won't get cut off on jury selection the same way.
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You just stand in better stead with the judge.
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Now all that said, I'd say of the multitude of times that we
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have have suggested joint work, it's accepted probably about 10%
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of the time. The other piece where where
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joint work can be hopeful is it means that one starts discussing
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these issues early on with with the other side and it reduces
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the number of duplicate exhibits.
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It means that there one is more likely to get a jury
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questionnaire. So there there's a number of
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benefits to it. A way to start this whole
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process is with the exhibit list and that's making sure that
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everything that one might need in the case for trial has been
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listed on the list. There are various ways to handle
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medical records. Our approach typically is to
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take each visit as a separate exhibit.
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So, and this is I will tell you it's very time consuming.
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The benefit to doing it this way is it makes it a lot easier on
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the clerk. It makes it much less likely
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that something that you don't want to have come in comes in
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and you can move to admit record by record in terms of what you
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want in versus what you don't want in.
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It also makes it much easier when you're working with an
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expert and asking the expert questions.
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You know, isn't it true that on blank you blank date so and so
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went and saw. Thus in such person, I want you
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to turn to exhibit 32. And so it makes it the trial
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just flow a lot better. The downside is you end up with
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an enormous exhibit list and a lot of them are exhibits that
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that don't get referenced during the course of the case.
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But it is always easier to have it there and have it be
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available than than the other way around.
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So that's, that's the benefit of, of, of pulling those all
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out. If you're very proactive, you
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can go ahead and get the medical records in chronologic order,
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have them numbered with specific numbers and use those numbers as
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the same numbers all the way through the trial.
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And then you can give your expert the binders with or or
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digital versions of the binders that have all these so that they
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are making reference to the same numbers in the report as are
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being referenced in trial. And it smooths everything out.
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It's very streamlined when that works.
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There are lots of situations where the records just dribble
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in and it's much harder to make that happen.
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Same thing with a running exhibit list through the course
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of a case. The I would say there are
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probably less than 10 cases that I've been involved in where
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starting with the first exhibit of the first deposition as
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Exhibit 1 and running it up through, you know,
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A100200300400, whatever it is through the course of discovery
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and trial has worked. Usually someone forgets to bring
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a binder or someone forgets what number they're at and the thing
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starts falling apart. That said, it can really
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streamline cases in the cases where you work well with the
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Bozing Council and you can reach an agreement and have that just
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running exhibit list all the way through.
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So that's exhibit list. I'm going to talk about jury
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questionnaire before I talk about witness list.
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We usually like to use a jury questionnaire.
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We usually like to try and get buy in from the other side on a
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jury questionnaire. One of the benefits of a jury
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questionnaire is a good jury questionnaire incorporates the
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witness list. So the typically it's the last
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page of a jury questionnaire. You'll have a list of all the
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names of the people and entities who may be involved in the case
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and also includes the law firms and the lawyers.
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But that way the judge doesn't have to go and read through 42
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names and ask people to raise their hand as to how they know
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you know John Doe. It just kind of speeds things
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along. Jury questionnaires are also
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beneficial because people are much more likely to answer
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things honestly on paper when they're just writing it down,
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rather than answering questions in open court that might be
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embarrassing. We find that a jury
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questionnaire is a wonderful tool to help us dig into things
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in a more meaningful way and go into jury selection in a more
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meaningful way. That said, there are a lot of
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judges who will not allow them in cases under a certain
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duration or in cases that they think are going to be under a
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certain duration. So try and get one.
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If you can recognize you're more likely to get it if you could
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reach agreement with the other side and recognize that there
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are course where even when you're in agreement, they won't
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allow it. So witness list.
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The witness list is pretty straightforward.
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List everyone who you think may be called in the case.
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There are some jurisdictions where they will ask for a brief
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description of what they will be talking about and a time
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estimate. This gets harder.
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And the reason I say it gets harder is because sometimes when
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you're listening all the witnesses, you're doing it in a
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way where you want to make sure that you don't overlook anyone,
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even if there's a a low likelihood that they're going to
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be called. You may think that you might
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need a radiologist for a a Sanchez issue to to to lay some
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foundation, but realistically the treating radiologist is not
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going to be called at all. It's just your expert ortho
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who's going to be testifying about things.
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The time estimates tend to be loose.
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We tend to overestimate time because it is always easier to
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overestimate the length of the a trial and then come in under
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that time limit, then have a judge telling you you are out of
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time and the jury's going to be going home, so you're doing the
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closing tomorrow. So just consider that in terms
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of the time estimates, stipulations, there are
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typically things that the parties should agree to without
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them having any emotions in limine.
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Things like witnesses not being in the courtroom until after
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they've testified, unless they're the parties letting the
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other side know who you're going to be calling roughly 24 hours
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in advance. Demonstrifs in in opening, no
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reference to mediation or insurance.
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These are all things that should be done and shouldn't be a
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fight. Sometimes with opposing counsel,
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you're going to have fights. So then you just have to have
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your stock motions in lemonade. So in the motions in lemonade
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department, there are stock motions in lemonade, the ones
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that you do in almost every case.
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An example here is you know, no new opinions from experts absent
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appropriate notice the other side.
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And then there are are case specific motions in lemonade
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and, and these are ones where they can make significant
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difference in the outcome of a case, either by getting the
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court to order to allow certain evidence to come in or getting
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the court to or to keep certain evidence out.
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If you have these types of issues where you think it's
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going to be pivotal in a case, it is wise to start these early
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so that you're not doing it in the flurry of the the tight
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window before trial. It also can be beneficial if you
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have a direct calendar judge, direct assignment judge and you
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think that these things are going to, to alter settlement
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negotiations to say so to the judge.
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And then sometimes they'll be a pretrial conference or there
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will be a a final status conference.
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And that's an opportunity to say to the judge, hey, judge, as an
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aside, we've been to two mediations.
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We've made headway, but at this point we're still headed to
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trial. There are a couple of
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evidentiary issues. If, if certain evidence comes in
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or certain evidence is kept out, it's going to completely alter
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the landscape of this case. And with that in mind, we would
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love it if you would be willing to schedule a motion, eliminate
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hearing early, say sometime in the next two weeks so that we
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can reap these issues, get rulings on them, and then that
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that may help us in a way where this case may not be in your
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court. Judges often times will try to
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help you when they can as far as that's concerned.
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So neutral statements or many opening requests, courts now are
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are obligated to allow the parties to do a mini opening
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should they choose to do so. There has been a lot written
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about many openings versus neutral statements, whether 1 is
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better than the other. There are people who have very
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strong beliefs about one versus another.
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The short version of this is a mini opening is very different
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than the actual opening. A mini opening is an opportunity
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to be very factor neutral, to not be passionate or persuasive.
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And the reason for this is if you are a compelling trial
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attorney and you are passionate, what you'll find after your mini
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opening is a lot of your good jurors are going to end up
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getting off for cause because you have told such a compelling
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story. So the the other approach that
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that is recommended by most of the trial consultants at this
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point is if you're doing a mini opening to disclose in a fact
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neutral way some of the bad facts in your case that you want
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jurors to be thinking about. Because then you start being
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able to get the people who who are very much against your case,
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you can start focusing on them and getting some of those jurors
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off for cause. If you're going to possibly need
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a neutral statement, just recommend getting that done in
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advance. So there are some courts that
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will give you static about the mini opening.
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If you think you're going to get static, it's wise to have
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something that's agreed to beforehand.
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So the judge is not writing something from the bench and and
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choosing to write their own story just before the jury panel
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is coming in, which we've seen judges do sometimes final piece
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verdict form. It it is wonderful to have an
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agreed verdict form before you are trying the case.
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It is wonderful to have an agreed verdict form before
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closing. Sometimes this is the verdict
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form is simple. It's, it's a, you know,
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negligence, comparative negligence and damages and, and
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two parties and, and that's it. Sometimes things get
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complicated. So if it's going to get
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complicated getting the judge's eyes on it early in the process,
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we like to use the verdict form as the frame for closing
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argument. And because we want to use the
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vert form as a frame for closing argument, meaning you're going
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to get question one question one asks, was defendant so and so
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negligent? Here's the information that you
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need when you're in the jury room to be able to focus on
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answering this question. And when other jurors come up to
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you and say, you know, gosh, I don't think they're negligent.
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You can say, ah, but did you consider 12345 the testimony of
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so and so the photo of this? So the vert form becomes a a
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powerful advocacy tool for closing.
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So getting that agreed upon as early as you possibly can so
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that it's not being argued about while the jury has gone back to
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deliberate. That's that's something that
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that is useful in the process. Moving from the pre trial
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documents to the trial phases itself.
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There is jury selection, opening statement, the plaintiff's case
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in chief, the defendants case in chief, rebuttal witnesses, if
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any rebuttal witnesses are being called.
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There's closing, there's the deliberating, there's the
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reading of the verdict, and then there's polling of these phases.
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Jury selection is the one that sometimes surprises people by
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how much time it takes. And I don't mean to be insulting
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and saying this having been a juror, it feels like a cattle
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call when one is being called in as a panel.
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So you you get the call group number 108-1091, ten 111, go up
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to department 5O2, go down the elevator, take the elevator to
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the fifth floor. And so you shuffle along, you go
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up an elevator and you go into a jury room with a bunch of other
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people wondering what the heck this is going to be about.
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So just waiting for the panel to come up and reading the names
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and making sure nobody got lost between the jury room and the
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courtroom can take, you know, 20-30 minutes.
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Then doing the hardships can also take an extended amount of
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time. If there's a questionnaire, then
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having the questionnaire filled out, going home, making copies,
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reviewing those, then coming back the next day to do the jury
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selection. So each part of this can take
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time. There was a period where some
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judges were limiting people to 15 minutes of questioning for
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jury selection. The arbitrary time limits are
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something that can't be done now by statute 1 still sometimes
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comes across judges who limit time on jury selection, but on
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the whole it's much better than it was, say, 10 or 15 years ago.
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As long as you don't look like you're wasting the court's time,
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often times you'll be given the time that one needs to pick a
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jury. The jury selection process is is
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fascinating. It it is an episode unto itself
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in terms of how to do it. There's a lot of strategy, a lot
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of game theory, a lot of planning based on who one is
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losing or who one thinks the other side is going to be
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getting rid of. The short version of this is
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that most courthouses use what is sometimes referred to as the
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six pack model, which means they'll have 12 in the box,
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that's the jury and then 6IN chairs in front and you'll
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question those first eighteen people.
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You then use your cause challenges saying judge, I think
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jurors 47 and 12 are off for cause.
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The judge will try to rehab them.
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There is a good case law on jurors not being able to be
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rehabbed once they say they can't be fair.
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It's an 1899 case involving the title railway.
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If you can't find it, feel free to reach out to us.
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We'll be happy to provide some briefing on that.
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But the goal is to to identify people who you can get off for
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cause, get them to agree that they cannot be neutral and that
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they are a not a good juror for this case and that they in fact
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can't be fair. It's a delicate process to get
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them to, to say those words. But if you have them say those
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words, usually they they can't stay.
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And then after you do your cause challenges, there are
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peremptories. So each side gets 6
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peremptories. You don't want to be in a
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situation where you're using that last peremptory and the
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defense has more remaining and suddenly you end up with a bunch
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of really terrible people who you can't get off for cause
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going into the box. But that's the macro.
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If you want the micro, I would suggest going back to the Ed
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Lazarus interview on jury selection.
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That is from probably about a year or more ago, but he's a
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jury consultant who we've worked with and, and has some good
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input on, on the jury selection process.
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Opening statements. Opening statements are often
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times referred to as the cover of a jigsaw puzzle.
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That's a a very common line, but it's it's a way to tell the
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story in a coherent fashion so the jury understands what
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happened. Some people refer to as opening
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argument, meaning there are people who will push the
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envelope on the persuasiveness in opening statement even though
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it's supposed to be fact neutral.
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The the common tactic in any opening statement when you start
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getting objection argument sustained, then the common way
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that people handle that is they just go back and say the
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evidence will show and then they say the same thing.
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The evidence will show that the defense behavior was
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reprehensible objection argument.
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I said the evidence will show. He said the evidence will show.
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Go on counsel. So after opening a statement
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comes the case in chief. As an aside, this is an area in
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a modern case where we feel it is wise to have more than one
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attorney doing the lift. And the reason for that is going
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from jury selection to presenting a compelling opening
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statement to taking meaningful first witness, which often times
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is an adverse witness. It is frequently say the the
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defendant's designated agent that one is taking as a cross
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examination under Evidence Code 776 where you can lead the
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witness and so it can be a very challenging examination.
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So those three things back-to-back can be a heavy
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lift. It can be great if the attorney
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doing jury selection can sit down, another can do the opening
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and then that same attorney that did jury selection then does the
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first witness. Then you kind of scattered as
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you go forward from there. There is an art to the order of
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witnesses. The art is to care deeply and
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also be open to outcome. There are beliefs about primacy
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and recency, and so when you can order the witnesses precisely
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the way you would like, it's really nice.
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It is important to have the first few witnesses really be
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ones that you want to have in that order, realistically.
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Between expert schedules, court schedules, and the other things
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that just occur in in the nature of trial, often times they don't
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come in from that point forward in the order that you would
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like, and it always all works out and it always all comes in.
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It's like watching Tetris fall from a really good player.
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The holes all get filled and everything works out just fine.
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But you need to be mindful that there are judges who will tell
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you that if you don't have a witness, you rest.
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So if you're in one of those departments, make sure that you
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always have a backup plan. So the backup plan can be your
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plaintiff. The backup plan can be a video
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deposition that you're ready to hit play on should a witness
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fail to show up. But just be aware of the
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temperament of your judge and and have backup plans for backup
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plans with the defendant's case. Usually the defendant's case is
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much shorter than the plaintiff's case.
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That's oftentimes because most of the witnesses that they might
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have called, you've already called under 776 as an adverse
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witness. The defense sometimes will ask
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for the courtesy of having their expert go out of order because
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of challenges with schedule. We try to be professional and we
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try to be courteous and where it will not harm the flow of our
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case, we will allow something like that.
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There can sometimes be challenges for this.
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We would not want the defendant's neuropsychologist to
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be the first witness in the trial because there's no other
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time for that that witness to go.
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That's where we would say I'm so sorry, but you may need to play
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a videotape deposition or read it on the rebuttal witnesses
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front after the defense rests their case done a lot of trials.
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I know rebuttal witnesses exist. I have yet to have been in a
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case where a rebuttal witness has been has been necessary and
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I should go back for a second. After plaintiff's case in chief,
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the defense will often times move for a directed verdict, you
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know, and usually the court will just, it will be an oral motion
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and the court will deny it as a matter of, of of course, on rare
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occasion they may ask for briefing.
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If you have a judge where you think that's going to be a case,
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just think about staffing your trial appropriately so that
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you've got some research support so that you're not trying to
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oppose a motion for directed verdict.
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At the same time that the you will need to be preparing your
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cross examination of the defendant's witnesses for the
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next day. Closing, closing.
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We do try and build around the verdict form and we tried to
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make it persuasive, we tried to make it compelling.
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We tried to tell a story, stick to a theme and and what we
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really want to do is arm our jurors with evidence and
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citations to the evidence. When somebody in the jury room
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says that it's not the defendant's fault, here are the
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things you can show to them to help them understand.
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Because your jurors are in essence your your counsel, the
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ones who are friendly to your side, you want to help them be
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the best advocates possible in the jury room.
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That comes from building that closing around the verdict form.
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Then comes the the hardest part of the case for for many lawyers
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I know for me, which is deliberation.
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So whether it's an hour or a day or a week, you sit there, you
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sit there with your client, you watch the jury go in, you watch
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the jury go out. And at some point, and it's
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always at a point where you're not quite expecting it, you'll
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get a buzz or a phone call or the bailiff will spot you and
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say verdict. And then your heart shoots up to
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the back of your throat. I've done this many times.
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It is never done anything different.
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And you gather your client, you go in, you wait to hear what the
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jury has said. Regardless of what the verdict
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is. We tell our clients to try to be
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as expression neutral as possible.
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No cheering, no crying, no screaming, no fist bumping, just
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an acknowledgement that the verdict has come in.
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The judge will ask if the jury, if you'd like to pull the jury.
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We always pull the jury. We pull the jury because we want
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to know which jurors were in our favor, which jurors were
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against. That's an area where it can
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become very useful if one is going to need to work on a
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motion for new trial because one is unhappy with the outcome, or
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if one is going to worry about the defense working on a mission
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for new trial and you want to help preserve the verdict.
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So getting that polling done is helpful.
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The the other piece that that's not listed here on trial phase
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is chatting with jurors. Often times after the case is
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done, the judge will let the council go out and talk in the
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hall. This is the best focus group
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that one could ever have. It's where one can get feedback
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on what was useful, what was not useful, what worked, what didn't
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work, and one can start seeing where there may be issues in the
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case should there be a motion for for new trial.
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Thank you for tuning in. If you enjoyed this, check out
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To all of you doing justice out there, happy hunting.