Introduction

The primary benefit of a checklist is that it guards against the chance of error and promotes standard approaches for steps that need to be taken in doing projects. An additional benefit is a written checklist creates a format for delegating projects to others on the trial team. . Once created is available for future use and improvement. Portions of the projects could be included in a separate checklist for a paralegal or an associate. Once one has a basic trial checklist it can be expanded and modified for specific kinds of cases. Separate checklists can also be created for different time stages pending trial by a series of trial preparation checklists.

A Basic Trial Checklist

The extent of the checklist depends in part upon the complexity of size the case as well as the way in which the case is like to be presented. This simple outline is intended to focus the attention on the basic steps in analyzing the case as well as what is required to present the case at trial and can be expanded or modified as needed.

                    TRIAL CHECKLIST

CASE ANALYSIS

The first and most important step in the checklist is the analysis of the case. All cases, no matter how complex, must be simplified to the key issues. Requiring this to be put in writing forces one to realistically analyze and evaluate the case. The best way to initiate this process is through appropriate focus studies. These are the factors to consider in this process.

CASE TITLE: __________________
(“This is the case of….”)

CASE DESCRIPTION________________________
(What is this case about – in one or two short sentences)

CASE THEME:_________________
(What is the overriding rule of conduct about this case?)

PRIMARY POSITIVE FACTS OR ISSUES IN CASE__________________________
PRIMARY NEGATIVE FACTS OR ISSUES IN CASE_________________________

THREE PRIMARY CLAIMS OF FAULT

1. _____
2. .______
3. ______
   
4. PRIMARY FRAME FOR FAULT __________________
   ( e.g. Betrayal, System failure, Cover up etc.)

THREE PRIMARY DEFENSE CLAIMS

1. _____
2. _____
3. _____
4. PLAINTIFF PROOF OF CAUSATION____________________
5. DEFENDANT CAUSATION DEFENSE___________________

PRELIMINARY STATUS REVIEW

 Review local rules regarding deadlines and requirements

DISCOVERY REVIEW

Interrogatories

 Review defendant’s answers to interrogatories. Note incomplete answers for motion.
 Index & make summary of relevant information for use at trial
 Review plaintiff answers to interrogatories. Supplement if needed.
 Index & make summary of relevant information for use at trial.
 Decide how to use at trial. Opening statement, witness examination & summation

Depositions

 Review all depositions & index for access at trial
 Create summary of relevant testimony with index to access at trial
 Decide how to use at trial. Opening statement, witness examination & summation

Production & exhibits

 Review all production materials and exhibits & index for access at trial
• Medical records
• Bills & economic claims
• Photographs liability & damages
• Medical illustrations
• Discovery files
 Prepare summaries
 Decide how to use a trial. Opening statement, witness examination & summation

ELECTRONIC DEVICES

 Decide what electronic devices needed at trial. Laptop, I-Pad, projectors etc.
 Decide what software to use with devices
 Decide who will be responsible to operate at trial.
 Review courtroom for ability to use
 Input the relevant depositions, interrogatories, production and exhibits into system
 Arrange projector, screen and electronic trial equipment.
 Input excerpts of depositions and other materials intended to use at trial with index
 Determine if depositions video clips or other video is needed for opening statement
 Determine if video illustrations can and should be created for use at trial
 Select video clips for use in examination of witnesses
 Prepare to access and show any material in opening statement, witness exam or summation

FILES FOR USE IN COURT

 Organize all documents including depositions, interrogatories, production material and exhibits in containers
 Have an index for ease of location and use as required at trial.
 Prepare any copies that need to be provided court or counsel if used
 Organize all materials for ease of access at trial.
JURY SELECTION PREPARATION

 Select major liability issues, positive and negative, to discuss
 Select major damage issues, positive and negative to discuss
 Select major legal concepts to discuss e.g. burden of proof etc.
 Decide general jury profile for exercise of challenges
 Create an outline

OPENING STATEMENT PREPARATION

 Decide from which viewpoint to describe case
 Create case story with case description, title and theme
 Include major liability & damage issues with applicable legal rules.
 Create an outline

WITNESS PREPARATION

General Witness Preparation

 Prepare clients for trial testimony
 Determine probable witnesses to be called: experts, damage witnesses, eyewitnesses etc.
 Advise witnesses of need to testify & arrange
 Arrange pretrial witness preparation and review of exhibits to be used
 Determine if subpoenas for any witness is needed
 Decide if adverse witnesses are to be called & compel attendance.
 Prepare witness examination outlines for all plaintiff witnesses

Expert Witnesses

 Schedule plaintiff experts for trial
 Arrange pre-trial preparation. Review issues & exhibits to be used

Defense Witnesses

 Review interrogatory disclosures & summarize for possible use in cross
 Review deposition testimony & make summaries
 Index any deposition exhibits
 Review any videotaped depositions for use of excerpts in cross examination
 Ensure they have reviewed all relevant exhibits involving their testimony and are prepared
 Prepare witness examination outlines for trial
 prepare cross examination outlines for trial and I might

PRE-TRIAL MOTIONS

 Review case for potential pretrial motions
 Determine issues to be raised and motion in limine

TRIAL REQUIRED DOCUMENTS

 Prepare trial brief
 Prepare proposed jury instructions

MEDICAL RECORDS

 Organize all medical records to be introduced as exhibits
 organize and select records to be used in examination of witnesses

EXHIBITS FOR TRIAL

 Select and organize photographs to be used at trial. Determine if blowups are necessary.
 Consider aerial photographs or the use of Google Earth photos
 Determine all exhibits to be used at trial and how they will be presented
 Review case for exhibits of economic loss and determined how they will be introduced
 Prepare PowerPoint or Keynote to be used at trial

TRIAL BRIEF

 Prepare a trial brief on issues in case
 Prepare short evidence briefs for possible use during trial

JURY INSTRUCTION PREPARATION

 Review case issues for WPI standard instructions to submit
 Prepare any needed specific instructions backed with citations or brief

SUMMATION PREPARATION

 Prepare a full outline of liability & damages before trial
 Review liability, damage and applicable legal rules
 Decide what exhibits, illustrations or video to use in summation
 Outline liability arguments with metaphors and analogies based on jury instructions
 Outline damage argument with same
 Decide what exhibits, PowerPoint or Keynote to be used in summation

Conclusion

The discipline required to apply a basic checklist for trial preparation results in your having to review and analyze your case in advance. It encourages us to review possible things that need to be done which have been overlooked. It also is a guard against not taking necessary steps for trial preparation. Prepare your own checklist for trial preparation and learn to use it.