For the uninitiated “Whack a Mole” is a game invented in 1976 involving a machine where plastic moles pop up from holes at random. The object of the game is to hit them on the head driving them back into their holes and adding a score for doing so. So, my question is are you a “whack a mole” trial lawyer or do you prepare for trial? There are trial lawyers who, with a minimum amount of planning and preparation, try their case and react to things as they happen during trial. They wait until something pops up in trial and then deal with it as best they can. But, there are lawyers who spend quality time thinking about their trials and developing plans as well as tactics to deal with likely developments in trial. Which are you?
Of course one cannot know for sure what might happen during trial at every stage particularly lengthy trials. However, one can make a reasonable effort to prepare for potential developments as well as plan the trial strategy in advance. The things that can be considered in planning pretrial include:
1. The ideal jury profile. Jurors you would most like to have on your jury and jurors you most would not like to have on your jury.
2. What are the three strongest points in your favor? What are the three most serious negative factors in your case? How will you deal with these in opening statement throughout the trial?
3. What is the basic theme of the entire case? What is the most fundamental and compelling issue in your favor? What is the best way in which to continually advance this theme throughout the trial? How should it be framed?
4. What are the most serious negative aspects or issues in your case? How will you deal with this in jury selection, opening statement, witness examination and summation?
5. What is the best witness sequence that you would like to have if possible? Should the defendant or defendant representatives be called in your case in chief? If so, should that be done live or by deposition? When is the best time to involve such witnesses in the sequence of witnesses?
6. How can you trim back the number of experts , exhibits and witnesses you plan to call to streamline your case and make it simple?
7. What are the likely defense tactics, including borderline unethical tactics, that might happen during this trial and how will you deal with them in trial?
8. What are the best exhibits, including Keynote or PowerPoint that you should use from opening statement through trial? How can they be improved? What are your plans if the technical equipment fails or the court does not allow use of some of them?
9. What legal issues are likely or potentially going to be raised during trial? Do you have a short brief or a copy of a compelling case on that point which you can give to the judge, the clerk, and the defense counsel?
10. Do you have a reminder to keep in front of you throughout the trial of the theme, the three key plaintiff issues and you response to the primary defense issues?
These are just ten of the things you can plan ahead for at trial. Experience has shown that it is unlikely that you will not have a surprise, an unexpected problem or an unanticipated obstacle during a trial, especially a long one. You can’t anticipate everything, but to the extent you can plan ahead and be prepared you are so much better able to respond than if you try cases “from the seat of your pants.” You should be spontaneous and not be someone who reads their opening statement or witness questions. But that doesn’t mean that you can’t fully prepare for as much as you can in advance. Be prepared. Don’t be a “whack a mole” trial lawyer.