Is Your Lawyer Ready For Trial? Why Don’t You Know?

I spoke with a colleague last week who was readying his case for a bench trial to be held outside of his customary jurisdiction.  He commented that the lead lawyer for the plaintiff did not know his file.  Always a fun piece of information to know heading into trial.  He also commented that his team (the defense) had been working until 9 pm every night for several weeks and through the weekends without breaks.  Query:  was either lawyer ready for trial?  Did the client know the state of readiness of the case it was about to submit to a stranger (the judge who knew nothing about the case or subject matter) to decide the outcome at a cost of thousands of dollars?  I don’t think so.  And the danger of not knowing could mean the difference between winning and losing.

What is Readiness For Trial?

At its most basic level, Readiness means the lead lawyer knows the parties, the issues, what issue must be won and what issues cannot be lost.  He knows what evidence is marked and ready for presentation to the court and he has supervised the preparation of exhibits to enhance their presentation to drive home a point.  Most importantly, he personally has met the witnesses, knows who he will call in his case in chief and why, and who he will likely cross-examine and why.

It Can’t Be Done On The Way To The Courthouse?

Some lawyers are so busy and so in demand that they think they can pick up the basics of the case from an associate on the way to court and they rely on the associates to do all of the work expected from the lead lawyer.  This is not Readiness for trial.

A very successful trial lawyer, Louis Nizer, observed about the trial process that, “[p]reparation is the be-all of good trial work.  Everything else-felicity of expression, improvisational brilliance-is a satellite around the sun.  Thorough preparation is that sun.”  There is simply no substitute for knowing  the strenths, the weaknesses and the nuances of the case.  The prepared lawyer knows if his opponent was sloppy in his expert’s preparation, knows the case law on the case critical issues, knows the jury instructions the jury (in a jury trial) will likely see and the law the judge must follow in a bench trial, and has his witnesses lined up and prepared to stand and deliver.  Anything short of this is a disservice to the client who has put his trust in the lawyer.  Non-disclosure of the unpreparedness of the file to the client is a disservice of the greatest magnitude if not an ethical violation in itself.  Yet everyday, trial lawyers don’t know their case and start a trial as if they do.

This is not a malady limited to plaintiff or defense lawyers; both fall victim to other demands and deadlines and short-change the trial preparation.  Sometimes the unprepared lawyer is playing the odds that the case will settle at the eleventh hour because that is what statistically 95% of the cases do.  But sometimes, the client insists on a trial, unwittingly walking into battle with a lawyer who is neither mentally or physically prepared.

What Other Type of Readiness For Trial is There?

The second type of lack-of-readiness is more insidious than the first.  This second type is exemplified by the defense lawyer mentioned in the first paragraph above.  The lawyer has devoted his life to the case and so has his team of partners and associates.  They have worked long hours and arrived home exhausted only to return the next day to the office for more labor- and mentally-intensive work.  This team will show up to the courtroom with the briefs, witnesses, exhibits and notes ready to begin the battle.  However, they will show up physically exhausted; they will have drained their brain of creativity, strength, mental acuity, reaction time and all the mental functions that go with a well-fed, well-rested, clearly thinking brain.   And it will show in their presentation.

The unrested, unfed, exhausted trial lawyer does as much a disservice to the client as the unprepared.  This lack of physical and mental preparation will emerge when quick thinking and creative responses are required.

What is the Client to Do?

First and foremost, the client must ask the lead trial lawyer specific questions about the level of preparation of the case at least 60 days in advance of trial.  The client should not accept a written report penned by an associate and signed by the partner.  A conversation should take place on the critical aspects of the case, those parts that led the client to decide to take the case to trial, and confirm that the case is well in hand.  The client should know who is on the team, the amount of work those lawyers are doing on the team, and what they are doing.  When red flags arise during this conversation, sailors take warning that rocky seas are ahead for that case.  You will see a breakdown in the trial team and how they interact in the courtroom, with witnesses and with each other.  Trials these days are as brutal on the body as marathons and it behooves the client to take the time to find out if its trial team is keeping its eye on the big picture.

Second, the client should be assured, again through dialogue not a form report or a photocopy of lunch menus, that the intense preparation for trial is not coming at the expense of the lead trial lawyers health or welfare.  Any client or law firm working its lawyers to 9 pm and beyond each night for weeks at a time should have arranged adequate break time, i.e. portions of days off to get personal matters taken care of, or weekends off, and most importantly, insured through supervision and oversight that the trial team is being well-fed.

Aha, you say, I had to read this far to find out my trial lawyer wants a free lunch!  Not true.  The trial team needs to be well-rested, well-nourished and have time to stop and reflect on what is being done, by whom and when, all of which can be accomplished during a lunch or dinner break brought into the law firm.  The cost?  Less than one associate billable hour.  The benefit?  A team that is not so drained or so rushed that it cannot think straight as it heads into and through the trial.

Law firms work for clients.  Clients don’t send in files for a law firm to have its way with the case then rollover and settle the claim.  It behooves the law firms to think about the client’s needs at all times and in all aspects.  The client has put an enormous amount of trust and resources into the law firm to get to the eve of trial.  The ABA Model Rules of Professional Conduct Rule 5.1 place a burden on supervising lawyers to make reasonable efforts to oversee the work of other lawyers and personnel in the firm.  It is time to make sure the trial lawyers are ready for trial and the clients know exactly who is walking into the courtroom and with what degree of stamina in order to prevail.  Law firms, it is time to oversee your trial teams readiness at both levels.  Clients, it is time to ask the questions.

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