100 days to trial (part i)

100 Days To Trial (Part I)Author(s): Mark A. DombroffSource: ABA Journal, Vol. 71, No. 11 (November 1985), pp. 72-75Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20758439 .Accessed: 14/06/2014 17:29

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100 Days

To Trial (Part I)

Review and finish all depositions, interrogatories, requests for admissions and document requests.

By Mark A. Dombroff

Most trial lawyers acknowledge that law

suits usually are won or lost before they set foot in the courtroom. Skillfully taken

depositions, extensive document discov

ery and the ability to put everything together into a scenario that either proves

or disproves the case is the mark of the successful litigator.

If you had to sum up the secret of

winning cases in one word, it would be all-inclusive and yet neither surprising nor innovative. That word is preparation.

As in many other aspects of life, it

really is the small things that count. Rath er than describe how to prepare a lawsuit

for trial, this article presents a checklist

beginning 100 days before trial for a

personal injury lawsuit. The purpose is to establish a series of guidelines by which a

litigator can compare the steps taken to

prepare to those needed to ensure that

preparation is complete and the case is

postured for victory. While nobody can

guarantee that the outcome will be sue

72 ABA Journal, The Lawyer's Magazine


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Finish up all interviews with nonexpert witnesses, including eyewitnesses.

cessful, it can be guaranteed that a less

than successful verdict will result from less than successful preparation.

100 days before trial _Complete discovery. Review all

depositions, interrogatories, requests for

admissions and document production re

quests. Finish those that haven't been

completed, follow up those that require responses. Make sure those that should

be filed have been filed. Review all an swers to which your opponent may have deferred responding until more discovery had been taken in the case.

_Expert depositions. Unless you have already done so, notice the deposi tions of all expert witnesses being offered by your opponent. If you do not know who the experts are, file a set of interrog atories to ascertain that. Unless you have

the right to take their deposition, seek to do so by stipulation with your opponent. The best way to do this is to offer your experts for deposition while taking those of your opponent, with each party bear

ing its own costs.

_Clean up interrogatories. File a set

of "cleanup" interrogatories that in some

measure will overlap prior interrogatories but are designed to get all that last minute information. Among other things, they could include inquiry into the names of all witnesses, the subject matter of the testimony of all witnesses, the names of

expert witnesses, the subject matter and

opinions of the expert witnesses, any factual basis for the denial of assertions of negligence or for the allegation of

affirmative defenses, inquiry into any de monstrative evidence that will be used at trial and may not have been disclosed previously.

_Based on the responses you re

ceive to these interrogatories, you are in a position to draft and file a motion in limine to preclude certain issues from the case, define the nature of other issues or

obtain preliminary rulings on certain evi dence.

_Complete investigation. To the ex

tent you have not already done so, finish all interviews with non-expert witnesses,

including eyewitnesses. If certain witness es have not been located, a final attempt should be made to do so. Statements from the witnesses already should be in your possession and should be verified. _Double-check that any wreckage or product exhibits will be available for trial and, if appropriate, take custody of those portions of the wreckage or prod uct that are important to your case.

_Double-check that any witnesses

being requested from governmental agencies will be available for trial. If they will not, obtain their depositions. _Make a list of all witnesses for whom subpoenas must be issued.

_Make a list of all documents and other materials for which subpoenas must

be issued.

_Be sure you know who the docu

Prepare a damages brochure or a day-in-the-life settlement videotape.

November 1985 . Volume 71 73



All files on the case should be reviewed to determine whether they have been organized to allow maximum access of information.

ment custodian is for the production of any documents at trial.

60-45 days before trial _Settlement. Consider whether a

final settlement conference should be re

quested. You may find that one is ordered by the judge. Preparation for this settle ment conference from the plaintiff's per

spective should include consultation with the client and the preparation of a dam ages brochure or a day-in-the-life settle ment video tape. _From the defense perspective, confer with principals to determine the latest position on settlement and, to the extent it is appropriate, a settlement offer should be made.

_Pretrial conference and order. Pre

pare for the pretrial conference by draw

ing, along with your opponent, the pretri al order. While many local rules may address the precise format of the pretrial order, the following elements should be considered: agreed facts, disputed facts, legal issues, defenses, claimed damages, exhibits expected to be introduced at trial, witnesses expected to be called at trial, pending motions and estimate of time for trial.

_Following the pretrial conference, a pretrial order based on the judge's rulings may be entered.

45 days before trial >_File preparation. All files on the

case should be reviewed to determine whether they have been organized to allow maximum access to information.

More important, determine whether they have been organized logically. _Suggested file folders in the case may be as follows: correspondence, com

plaint, answer and related motions, mo

tions for summary judgment, motion to dismiss, deposition notices, expenses, folders for individual witnesses, including experts, folders for each exhibit, and jury instructions.

_Trial notebook. The key to a suc

cessful trial notebook is organization and access.

A trial notebook should be everything a yellow pad is not. It should be indexed and organized, easily maintained, built as the case develops, capable of reorganiza tion as the case develops and, most im portant, provide a permanent and easily accessible means for preserving informa tion. One trial system that possesses a

number of advantages consists of two

separate notebooks?one organized by

litigation segment (litigation book) and the other organized chronologically (chronological book).

The day a case becomes a case, either

when the complaint is filed or received,

the litigation book is established. It is not a substitute for case files, but rather it is a working manual or "battle plan." While the sections it contains may vary, they would typically consist of at least the following: discovery, pretrial motions, jury selection, opening statement, direct case, expert witnesses, demonstrative ev

idence, exhibits, cross-examination, re

buttal case, closing argument, jury in structions, post-trial motions, and costs.

Obviously each section can be subdivided further. For example, the sections on the direct case or expert witnesses could be

subdivided by individual witnesses, issues or proofs. Within each section of the notebook

that particular portion of the case should be developed. For example, notes on the opening statement, including its outline, should be in that section. As the opening statement is developed further, updated notes and drafts can be included until it exists in final outline or other form which is going to be used at trial.

Cross-references to other sections of the notebook would be indicated, as would references to exhibits, documents or depositions in the case. In some in

stances, copies of transcript or exhibit excerpts might be placed in the litigation book.

The strength of this approach is that the litigation notebook provides a struc tured means of developing pretrial, trial and post-trial strategy. It is built as the case progresses and avoids the loss of an idea or thought that may have been re corded but can't be found. While this approach to a trial or litigation notebook is simple enough, it is used all too infre quently. An effective trial notebook sys tem does not stop at this point.

The chronological notebook is a sec ond and separate notebook that becomes the permanent repository of all notes from hearings, depositions and trial. It is established the first time there is some adversarial activity in the case other than the filing of pleadings or discovery. Each activity is entered on an index sheet in the front and each daily section is tabbed with the date. An example of an index sheet might reveal:

Jan. 16 Hearing?Motion to

Dismiss 2.00 Jan. 17 Deposition?John Smith 6.00 Jan. 18 Deposition?John Smith 6.00 Jan. 19 Pretrial 1.00 Jan. 23 Trial?Jury Selection

Openings 5.00 Jan. 24 Trial?Direct Case Johnson 6.00 Jan. 25 Trial?Direct Case Wilson 6.00

74 ABA Journal, The Lawyer's Magazine



The numbers in the right hand column are hours of time and provide a conve

nient place for collecting billing or time

keeping data. The notes within each sec

tion are kept only on the fronts of the pages with the backs reserved for annota

tions and trial notes. It is here that the real strength of the dual notebook system

manifests itself?the annotation and

combination of the litigation and chrono logical notebooks.

As the litigation process proceeds, those sections of the litigation notebook appropriate to what is occurring are

transferred to the chronological note

book. For example, on the day of the opening statements, the opening state

ment section of the litigation or battle plan notebook is transferred to the ap propriate date section of the chronologi cal notebook.

The advantage of this approach is that everything having to do with your open ing statement is then located in a single place. The added strength of this tech nique is that once the case is completed, you have a single comprehensive and chronological record of the case that is highly indexed and valuable for the ap pellate process and in future cases. If the same witnesses are encountered in other

cases, your thoughts and plans regarding those witnesses, as well as your notes on

their examination, can be found easily. The practical value of this approach at

the trial itself is also substantial. Because events often unfold rapidly in trial, the desirability of shifting from file folder to file folder to yellow pad to notebook is questionable. While the dual notebook approach is not guaranteed to eliminate the need to shift your focus of attention, it is guaranteed to minimize it because the pertinent portions of the litigation notebook have already been placed in the chronological notebook before to the start of the trial day.

45-30 days before trial _Outline all elements of proof. All allegations you must prove to support

your position should be drafted in detail. A listing of the witnesses and exhibits necessary to sustain those allegations should be included.

_Prepare depositions for trial. This

is the time to review your depositions and to determine which will be used and how they will be used.

_Deposition preparation means, in

the first instance, a determination of which witnesses will be presented through the use of depositions. All depo sitions, even those of witnesses who also

will be testifying live, should be indexed in detail in order to permit you to have

rapid access to the information.

_For those witnesses who will testi

fy through deposition, you should deter mine which portions of the deposition will be offered. You should next deter mine the manner in which they will be offered. For example, will they be read verbatim in open court? Will they be submitted in an underlined form? Will you use narrative deposition summaries?

_Have videotape depositions been

edited and prepared for use in the court room?

_Preparing the client. Whether you

represent the plaintiff or the defendant, preparation of the client should begin at an early date. Generally this will involve a meeting about what is going to occur up until the point of trial. In addition, you might want to brief your client on the more general aspects of being a witness.

_The client should be given a copy of any interrogatory answers prepared by him or her, as well as any deposition that he or she has given. This will give the client ample opportunity to review poten tial grounds of impeachment that may be used by opposing counsel.

_Updated medical examination. If

you represent the plaintiff in a personal injury case, at this point you should have a current medical examination of your client. By the same token, when repre

senting the defendant in the personal injury case you should update all the

medical information and, if possible, have a current medical examination.

_Preparing the non-expert witness

es. All non-expert witnesses should be

contacted and interviewed by telephone or in person. Witnesses' statements or

depositions should be reviewed and, when appropriate, witnesses should be

supplied with copies of their statements or depositions. _All exhibits that are going to be used with a particular witness should be reviewed by that witness to make certain that they understand the exhibits. _To the extent possible, you should advise the non-expert, non-party witness

es of scheduling and seek to clear any conflicts at this time.

_lournal Mark A. Dombroff is special counsel in

the Washington, D.C., office of Hughes Hubbard & Reed.

You might want to brief your client on the more general aspects of being a witness.

November 1985 . Volume 71 75



Article Contentsp. 72p. 73p. 74p. 75

Issue Table of ContentsABA Journal, Vol. 71, No. 11 (November 1985), pp. 1-82, 85-136, 139-170Front MatterPresident's Page: Toward swifter justice [pp. 8-8]Letters [pp. 12, 14]LawScope: NewsTrouble accuring: Tax plan could hurt lawyers [pp. 17-17]Business attacks: Coalition fights for tort reform [pp. 17-17]Is school for all? AIDS victims spark dilemma [pp. 18-19]Crime's payoff: Dotson sues for book profits [pp. 20-20]Food for thought: Disputes arise over sulfites [pp. 21-21]Did you miss me? Black was on 'all-white' jury [pp. 22-22]I-SEARCH is on: 6-state effort on missing kids [pp. 22-22]Flash of genius? Light tests drivers' sobriety [pp. 25-25]Road to safety: Seat belts, fewer deaths tied [pp. 25-25]Video in court: Taping sparks controversy [pp. 26-26]Full speed ahead: How to counter court delay [pp. 27-27]'Soft' judges hit: Tabloid rips 'bleeding hearts' [pp. 27-27]Double standard? Blacks sue over vote fraud [pp. 28-28]An equal split: Clash on divorce settlements [pp. 30-30]Cambodia case: Lawyer wants genocide trial [pp. 31-31]Moral morass: Fetuses' legal status touchy [pp. 32-33]Title firms dying? Industry disputes criticism [pp. 33-33]Law's human side: Tales from surrogates' court [pp. 34-34]Stormy ruling? 3 die; weather service liable [pp. 36-36]

At Issue: Are some cases too tough for juries? [pp. 38-40]LawPoll: Lawyers fall short of self-imposed pro bono standards [pp. 42, 45]TRENDS: The Liability of Corporate Officers [pp. 48-52]BANKING LAW: The Wild World of Interstate Banking [pp. 54-57]PROFILES: When the CEO Is a Lawyer [pp. 58-62]CORPORATE PRACTICE: Your Outside Counsel Needs a Corporate Handbook [pp. 66, 68, 70]Litigation100 Days To Trial (Part I) [pp. 72-75]

The Ethics of Perjury [pp. 76-78, 80]Don't Forget the Pension Plan in a Divorce [pp. 86-88]Nearly Everything You Want to Know About Data Bases [pp. 90-92]Books for LawyersReview: untitled [pp. 100-101]Review: untitled [pp. 101-102, 104]Review: untitled [pp. 104, 106]Review: untitled [pp. 106, 108]Review: untitled [pp. 108, 110-111]Review: untitled [pp. 111-112]Review: untitled [pp. 112, 114]Noted in brief [pp. 114-114]

Supreme Court Preview [pp. 115-115]Supreme Court Report [pp. 116-117, 119-121, 123-125]What's New [pp. 126, 129-134]Legal Aids [pp. 136, 139]Your FinancesHow much risk can you handle? [pp. 140-140]

Computer Corner [pp. 142-142]Lawyer on the AisleMarie's true story: exposing corruption in Tennessee [pp. 143-143]

Persuasive WritingThe wicked which of long sentences [pp. 144-144]

Must Reading [pp. 145-147]Inside ABANEWS UPDATE [pp. 149-150]LTAC REPORT [pp. 150-150]PROFESSIONAL ETHICS OPINIONS [pp. 151, 153]American Bar Association 1986 Annual Meeting New York, New York August 7-14, 1986 [pp. 156-160]PUBLIC SERVICE PROFILES [pp. 161-161]OTHER ORGANIZATIONS: Preserving the Supreme Court's heritage [pp. 162-162]EVENTS [pp. 164-164]

War Stories [pp. 170-170]Back Matter

100 days to trial (part i)

Documents