Are you ready? Trial preparation is crucial to every case

Every trial lawyer has his or her own way of preparing for their day in court. But going about it the wrong way can cripple your case before it even has a chance to be heard. We reached out to some Minnesota attorneys who have written or presented about trial prep in the past.

As soon as possible after you get a trial date, start keeping and preparing a trial notebook, advises Charles T. Hvass, a defense attorney with the Donna Law Firm in Bloomington. Ready-made trial notebooks are available commercially, and creating a custom notebook that's best for you can be even more effective.

"If you use it every time, it simply makes trial prep much easier as you go," said Hvass. "Collect your voir dires, get together your motions in limine. Each trial is different, but you can use the same method of organization for each one."

Assistant Waseca County Attorney Rachel Cornelius says she still writes out all her questions in advance, especially the questions that meet the elements of what she's trying to prove. "I've seen cases where someone forgets to ask about an essential element," she said. "Once you've rested your case, it's hard to go back and fix that."

Cornelius also recommends taking time to go through all the evidence with the person who provided it to you. "In a child-protection case, that would be the social worker," she said. "I would go over all their case notes with them, line by line, to make sure we're on the same page."

Along those same lines, take time to talk with your witnesses well in advance of trial, even if it's just to briefly go over the kinds of questions you'll be asking.

"It's easy to overlook how your witnesses will appear to the jury and the judge," said Duluth attorney James Balmer of Falsani, Balmer, Peterson & Quinn. "Especially for a solo or small-firm lawyer outside the metro area, witnesses are your most valuable asset. Make sure you know what you can ask them and what they're going to say when they're on the stand."

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Don't wait to prepare

Hvass points out that every trial has a technical element and an artistic element. Early on, you should be dealing with the nuts and bolts of your trial: preparing a witness list, getting it submitted on time, getting exhibits ready, and so on. If the trial is out of town, where will you be staying? Do you know how to get to court, or how to get your witnesses to court? Covering those bases during the very early stages of trial prep can keep those details from becoming a headache later.

"Don't do everything at the last minute - it won't work," Hvass said. "You've had the case for months. Why not start putting together a witness list on the first day? Name, address, what they know. You can pare it down later. Some courts will forgive a lack of preparation, but a lot won't."

Also during the early stages, Balmer recommends writing a trial brief for the judge. He points out that in Minnesota's current judicial climate, the typical state court trial judge might spend 10 percent of court time on civil claims, with rules of evidence differing in each civil area.

"When they get to a civil case, they might not have a lot of time to familiarize themselves with the background," he said. "Most trial court judges come from the criminal side. A trial brief will help them understand the case - and understand it from your point of view."

In federal court, most the judges' time is spent on civil matters, but even then a trial brief is a good idea, Balmer added.

To overcome the potential disadvantage of not having an office full of lawyers to discuss your case with, Cornelius advises solos to reach out to a trusted colleague while preparing for trial - if only to have someone off of whom to bounce ideas and theories.

"They might have a more objective view of the evidence and offer advice about how you should handle a particular problem area," she said.

Balmer says it's important to understand your adversary. Call around to get opinions on your opposing counsel.

"Don't take your opponent lightly because you don't much about them," he said. "Some of the best civil defense lawyers I've dealt with do most of their work in criminal defense. There's no excuse for not doing your homework."

Finally, recommends Hvass, read up on how some of the great trial lawyers prepared for their day in court, especially if your trial experience is limited. "Gerry Spence, Melvin Belli and those kinds of lawyers have written great books about dealing with the trial process," he said. "It's not experience, but it's the next best thing about how those people met the challenges of trial."

Published: Fri, Dec 01, 2017

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