Wednesday, September 26, 2012

The Best Laid Plans: What To Do If You Go To Trial Unexpectedly

There is nothing like appearing for a settlement conference only to learn that not only is the case not going to settle, but that the trial that you thought would start in three months is actually starting in less than three weeks.  That is precisely what happened to me last week. As I walked back from court to my office, the realities of the time crunch set in.  What if my witnesses were unavailable? Would my demonstrative exhibits be able to be prepared in time? Motions in limine and a Daubert motion needed to be considered.  Having thought less than an hour before I had three months to prepare my case for trial, how was I going to get ready in such a short time?

Two hours later, I had a plan.  But before I launch into explaining the plan, I will state that in my view, the two hours spent crafting the trial plan was the most important part of the plan itself.  A trial plan, much like a project management plan, is important for any trial.  Listing out the tasks to be completed, the deadlines (both for client review and court submission), and the person or team responsible for the particular task makes for your best hope for an orderly trial preparation (if such a thing exists).  But when your time is tight either because the court surprised you by moving the trial date forward or because the press of other business made it impossible to turn your full attention to trial preparation, the trial plan is essential.

For my trial plan, the first order of business was making sure that my witnesses were available and scheduling time for their trial preparations so that they would not be unavailable to me in the days before trial.  Next, I outlined the remaining issues I wanted researched and made decisions about what motions I wanted to file.  Because of the late notice of the trial, the third task was one I wouldn’t have had to address if the trial had gone in three months, as previously planned; I worked with my partners to completely free my second-chair associate so that he would not have to worry about other work.  My legal assistant’s call to folks who create the demonstrative exhibits assured me that I would indeed have the demonstrative exhibits I envisioned.  Finally, I made a realistic schedule with respect to preparing my examinations, cross examinations and opening and closing arguments.  

That statement, naturally, begs the question as to what “realistic” means.   The “realistic” schedule I crafted built in time for the time it would take to get meetings and depositions adjourned that I needed to be at and to reaching out to my partners to cover hearings that were not essential that I argue.  The schedule also contemplated the inevitable daily calls that turn one’s attention from the task at hand and for honoring my promise to participate in this blog.   Sure, I could have asked that my turn to participate in this blog be moved to a different date, but having some time to step back from the trial preparation and put my mind to something else will allow me to return to my briefs, examinations and exhibits with a cleared mind, which is all part of the plan.