Most civil cases that are filed in the state or federal courthouse eventually settle- some cases settle early in the action, some cases settle after 6 months, and other cases settle on the eve of trial. A few cases may settle during the course of a multi day trial! Some cases are disposed of by a motion for summary judgment or even a demurrer. There are a certain handful of cases that for whatever reason will not settle, and the case will go to trial if the plaintiff wants to go forward and will try the case, or the defendant cannot or will not settle and has to go forward to take its chances at trial.
The preparation of a major case for trial is largely the responsibility of your attorney- that is what he or she is getting paid for- to complete discovery and present your claims or defenses and put on your best possible case. But, there is a lot you can do as a party to assist and support your attorney in the process of getting ready for a big trial. Also, you should be well informed about all of the issues and preparation that go into preparing your case for trial- after all, it is your case, and no party wants big surprises!
So, if you or your company are a party in a legal action that is destined to go to trial, you have to be prepared, and you should actively assist your counsel in the trial preparation.
If you are a party in a case that will likely go to trial, this article presents some important action items that you can do to prepare for trial and to help your attorney prepare for trial. The case is your case- so you should take an active role, to the extent you can, and you should know the strengths and weaknesses of your case or defenses. You should understand the best case scenario and the worst case scenario if the case goes to a verdict or judgment. You should understand your anticipated costs, exposure, and maximum actual damage. Here is a list of some important items you should be discussing with your attorney starting at least eight months prior to trial:
- Trial Witness List: Please review the trial witness list, and make sure that everyone and anyone who your attorney may call as a witness is on the list. Just because a person is on the witness list- that does not mean that you are obligated to call them as a witness- you are just preserving your right to do so. That includes you as a party and the person that will represent your corporation or LLC or partnership. A party to a case may be excluded from testifying in trial if he or she is not on the witness list. You should also list all opposing parties, and their representatives, and all third party witnesses. You should also list all expert witnesses, and any custodians of records who can produce records at trial.
Have all of your witnesses been subpoenaed to appear? Your attorney should be serving subpoenas to all witnesses, including expert witnesses, about 60 days before trial. People are busy and have hectic work and family schedules- they need to know in advance that they have to be in Court and need time to make arrangements. Some witnesses may not show up in Court without a subpoena. This is especially the case with former employees- who may not care if you win or lose the case. This type of witness may be important to making an important point at trial or even winning the case, but you have to subpoena the witness to appear at trial. If they fail to show up, the trial judge can force them to comply with the subpoena. Please check and recheck your witness list, and have your attorney serve the subpoenas in a timely manner.
- Trial Exhibit List: In addition to live witness testimony, you should review the exhibit list and the actual exhibits. Exhibits are generally documents, records, and other writings that fit in a binder. Exhibits are very important – and you should review the exhibit list, and the actual exhibit documents well before trial. Please make sure that your exhibit list and exhibit binder are complete and up to date. Are the documents complete and legible? Are pages missing- are copies clear? Are there additional documents that should be added to the exhibit binder? The documents need to be in good order- the Judge will read them, and if they are not clear, and not in good order- the Judge will get frustrated with you as a party and with your attorney. You should be familiar with the exhibits because you and your witnesses will discuss them in your testimony. If there are certified or public records in your list- such as grant deeds, have certified copies been obtained from public agencies? Have documents that will be used as exhibits been subpoenaed or requested from the opposing party? Have documents that will be used as exhibits been subpoenaed from third parties? Your attorney may have to complete additional document discovery to obtain missing documents to complete the exhibit list so the client is prepared for trial.
- Conduct Required Discovery: The term “discovery” is an amorphous term that describes various methods of obtaining documents, records, information, data, testimony, and names of witnesses in a civil case. Both parties can serve discovery on opposing parties and non-parties. The main discovery methods in a civil case are depositions, form interrogatories, special interrogatories, requests for admissions of facts and genuineness of documents, demands for documents and things, subpoenas, expert witness testimony, and real property inspection. Responses to discovery can make or break a case- an admission or inconsistency in a deposition can influence a judge or jury or help win a summary judgment motion. It is highly recommended that you and your attorney have a formal discovery plan, a reasonable discovery budget, and that you implement the discovery plan early in the case.
In a case where the trial date is at least one year from the time of filing the case, you have a long time to commence and complete discovery, and the cut off to complete most forms of discovery in state court cases is generally 30 days before trial. At least 6 months before trial, discuss with your attorney whether there is any additional discovery that has to be done in the form of depositions, document production, interrogatories, request for admissions, or subpoenas. Is there a need to inspect the subject property with a formal discovery demand? I would suggest having a written discovery plan that tracks the pleadings and the main claims in the case. And you should have a budget for discovery that has some flexibility given the needs of the case.
- Who will Decide Your Case- Judge, Arbitrator or Jury?: One important question to discuss with your counsel is whether a judge or a jury will decide your case. For some claims, there is a right to jury trial- if the law allows it, and if you post jury fees prior to or at the time of the initial case management conference held in state court. Your attorney must follow the rules to preserve the right to a jury trial. For other claims- like contract specific performance or real estate quiet title claims- there is no right to a jury trial allowed by law. For many claims, if you have a smart and fair judge, there is no need to have a jury.
Completing a jury trial is more expensive and more time consuming than a bench trial- some attorneys don’t disclose this fact to their clients. The reason for the added expense is you have to post jury fees, you have to prepare jury instructions, you have to prepare special verdict forms and a statement of the case to be ready to the jury, and you need to spend real court time picking a jury. No one in the courthouse prepares jury trial documents for you as a party- your attorney has to prepare them. Preparing jury instructions is a ton of work because the instructions have to be drafted to name the parties and the specific facts of the case. Picking a jury also takes preparation, time, and examination of jurors in a process called “voir dire.” There are reasons that you may want to have a jury, and there may be reasons that you do not want a jury to decide your case. Sometimes jurors may award greater damages to a sympathetic plaintiff- this is why large corporate defendants often times have a fear of letting a jury decide a claim. You may not want a judge or jury- in the appropriate case you may want to arbitrate the case.
An arbitrator is a private judge who is paid by both sides to decide the case. Arbitrators are usually affiliated with an organization, called JAMS or the American Arbitration Association that have lists of available arbitrators. Sometimes there is a mandatory arbitration provision in a contract between the parties. For example, in a real estate purchase agreement, the parties agree to binding arbitration. There are advantages and disadvantages to utilizing arbitration, and you should discuss these factors early with your counsel. The main disadvantage of completing arbitration is the cost- arbitrators charge a lot of money- hourly rates can be as high as $ 600.00 per hour, and you may be stuck with footing at least half of the bill. Also, if you get an award and decision from an arbitrator- you most likely have to go back to the original trial court and get the arbitration decision affirmed and certified as a civil judgment. This is costly and somewhat time consuming. Often times if you agree to arbitration, you waive rights to appeal.
One advantage of arbitration is that your case may get more immediate attention and a faster decision by using a private arbitrator who is an expert in this area of law. You should review your real estate purchase agreements, employment agreements, and investor agreements, and see if there is an arbitration provision. Then, weigh the pros and cons of utilizing arbitration, and determine whether your opponent wants arbitration.
- Motions in Limine: Ask your attorney whether is it worth the money for your attorney to prepare and file Motions in Limine. These Motions are usually filed if the case is going to be a jury trial, and you are seeking to exclude certain prejudicial evidence, facts, or information from the view and consideration of the jury. The assumption is that these facts will “taint” the jury. Motions in limine are filed toward the end of the case, and often times are heard on the same day as the final status conference before the trial. These motions are a mixed blessing. They must be filed and served according to the applicable rules of civil procedure and the local rules. Trials are governed by applicable rules of evidence- the hearsay rule and foundational rules. Sometimes attorneys go overboard and draft and file these motions for every conceivable issue- that is not necessary, because an evidentiary objection can be made at trial or to the exhibit. If the attorney is filing two dozen motions in limine – he or she is probably not serving the client properly and is wasting your money. So you should only file limine motions for the main issues of concern- or what I call, the “big ticket” items. For example, if an opposing party has withheld important documents in discovery, and wants to sneak the discovery into the exhibit list, then a motion is limine may be an effective way to exclude the discovery from the jury’s consideration.
- Rehearse your testimony and the testimony of key witnesses with the exhibit list in hand: If you are a key witness- your testimony at trial is important. You can do a “mock trial” or mock examination to rehearse your direct testimony, and your anticipated cross- examination. It may be worth the time spent with your attorney. When you rehearse your testimony with your attorney- you will discover issues and problems and “kinks” with the examination questions and your answers and you can resolve them. In the mock examination, you will also be forced to read, handle and discuss documents and exhibits- you may discover missing or unclear documents. You will then have a better understanding of how to approach and discuss documents during your testimony.
If you have an important third party witness- then your attorney should go over the testimony with the witness before trial. The witness may not have experience testifying or may be scared of the court process. When you testify in Court- you want to put on your best case, and you only have one opportunity for a first impression. Rehearsing your testimony and the testimony of third party witnesses with your attorney is highly advisable.
Obviously, in major litigation there are many other factors to think about and the list is not exhaustive. See next month’s issue for Part Two.
Nate Bernstein, Esq., is the Managing Counsel of LA Real Estate Law Group, and a member of the State Bar of California and his practice concentrates in the areas of complex real estate litigation, commercial litigation, employment law, and bankruptcy matters. He is a 22 year veteran Los Angeles real estate and business attorney and trial lawyer. Mr. Bernstein also has expertise on bankruptcy law, the federal bankruptcy court system, creditor’s rights and debtor’s bankruptcy options and created www.laquiettitleattorney.com a leading educational resource on quiet title real estate litigation. For more information, call (818) 383-5759, or email firstname.lastname@example.org