The raw material used in trial, which is created during the course of investigation, discovery and trial preparation, generally falls into one of the following categories:
- Original notes obtained from client interviews.
- Investigation reports.
- Written discovery.
- Medical records.
- Information from experts
The problem of assimilating all of this information and preparing for trial is like carving a statue out of a block of solid granite. A famous artist once said, "The statue was always there - all I did was remove the excess granite. " But trial preparation is not so simple because the raw material may not be there and it may be necessary to take additional depositions, conduct further investigation or serve additional written discovery. For this reason, serious trial preparation should take place at least six months before trial.
Depositions tend to be a gold mine, a synthesis of not only the information collected by the plaintiff's attorney, but also the strategy and thinking of all of the other parties. As a result, the most logical place to start in doing serious trial preparation is to summarize depositions in excruciating detail. Reading through depositions and taking occasional notes is fraught with dangers and may result in not only missing vital bits and pieces of information, but also making the task of trial preparation cumbersome and difficult. A general summary of the deposition, dictated at the time the deposition was taken, is also no substitute for a page and line summary.
The best approach is to utilize a page and line summary. That is, a memorandum is dictated as each deposition is carefully read, and every important point is noted as to its approximate page and line number. It isn't critical that the exact inclusive line numbers be noted, since the only purpose is to find the material quickly during further preparation or trial. If these summaries are carefully dictated, with sufficient detail, it may never again be necessary to refer to the depositions themselves, and you will have a much more manageable pile of papers with which to complete preparation and/or conduct the trial. A careful thought out page and line summary of a 100-page deposition may be five pages long. If the witness says something particularly important, then the summary should contain an exact quotation. Other significant points can be put in bold type.
All of the attorneys and investigators involved in the preparation of the case for trial should receive copies of these summaries as the painstaking work of diligently plowing through all of the depositions is conducted. It is not a good idea to do the page and line depositions until most of the depositions are completed because statements made in a deposition may not become important until the whole picture is clearer. And what was once thought to be important material may now be obsolete in light of new, significant information which redirects the focus of the case.
The next step is to review investigation for the purpose of comparing and correlating the signed or recorded statements and other investigative materials with the testimony given by the witnesses in their depositions. This is most easily done while dictating a memorandum to the file as to each witness, noting any differences that exist between the investigation materials and the depositions. Since the deposition page and line summaries have been completed, specific references can be made. In the case of a witness who is particularly inconsistent, it is best to prepare a chart in which the locations of various statements, including depositions, investigative statements, etc., are noted so as to be in a position to effectively pace a vigorous cross-examination.
By this time in the trial preparation, especially when dealing with a major case involving dozens of depositions and piles of investigation reports, the picture will begin to emerge and a real understanding of the theme of the case will begin to develop.
It is my feeling that written discovery is overused and not very helpful, except as a preliminary step to taking depositions. Reviewing written discovery after one thoroughly understands the depositions and investigation is a relatively easy task because there are blessed few points developed in written discovery which have not also been developed in depositions or investigation. Again, if there are such critical points, then these should be the subject of dictated memoranda rather than merely folding over pages or using stick notes or some other cumbersome method. The human mind is simply not able to clearly grasp a sizeable amount of material unless it is organized into manageable memoranda. Again, cross references and charts can be built if it appears that there are major inconsistencies between depositions, investigation and written discovery as to any particular witness. Likewise, written discovery should be correlated with the deposition summaries so that significant points are not forgotten.
The sheer volume of medical records can be overwhelming. For the inexperienced trial lawyer, this can lead to reliance on someone else's medical summary or review of the records. But there is no substitute for the trial lawyer himself pouring through the records, and there is no way out of reading every page and every entry in those records. Many cases are lost, and many insignificant and small verdicts are handed down, because of inadequate preparation and impeachment of key witnesses that need never occur at all.
Some lawyers rely on a doctor's review of records and delude themselves into thinking that they need not dig any further. But the doctor doesn't know all of the issues, is not the conductor of the trial and does not know the big picture so that he can understand the significance of particular pieces of information in the records that may affect other parts of the case. Medical records often contain devastating entries that should be the subject of motions in limine or could be washed out with immaculate trial preparation.
Much like the summarizing of depositions, medical records should be highlighted and a summary dictated. Pages of medical records can be easily numbered, various volumes can be appropriately labeled and easy reference can be made, for example, to the top third, or bottom one-quarter of a page where significant information appears. The summaries should be carefully prepared in sufficient detail so that the information is comprehensive and accurate, condensed and synthesized for organized preparation. If there is a particularly important entry, then again, the summary should contain a verbatim quotation. Other critical pieces of information can be typed in bold face or capital letters.
The page and line summary is important, not only for review and discussion with experts, but also for preparation of the plaintiff and other important lay witnesses. Charts and cross-references can be generated if it appears that there are discrepancies in the various records or inconsistencies between the records and depositions, investigation or other material as it pertains to any particular issue or condition. Likewise, the page and line summary should be correlated with the written discovery, depositions and investigation so that important points are brought out and inconsistent information is appropriately explained.
One should never undertake the expert phase of trial preparation without having gone through the thorough preparation described in this article. The worst possible situation is where the expert has committed himself based on some facts that are simply not provable. The next worst thing is to elect too many experts who are going to disagree with each other. The byword in trial preparation is to reduce the amount of material and limit the number of witnesses and the same thing is true in electing and utilizing experts. Less is best.
Careless Use of Subpoenas
A major mistake is to simply go out and subpoena everybody under the sun, including every possible doctor and every possible custodian of records. This is an excellent way to create a large group of very angry, uncontrollable people who will kick and scream their way all the way to the courthouse. Witnesses should be coddled and not hit over the head with a sledge hammer. Every doctor should be personally contacted, interviewed and prepared, and his schedule arranged in the best possible way consistent with the demands of trial. The same is true of lay witnesses, who should be contacted, interviewed and re-interviewed and only incidentally subpoenaed. Efforts should be made to contact the witnesses' employers to make sure that the impact on their employment is kept to a minimum. In a word, everything should be done to make the experience as painless as possible for the various witnesses, doctors and experts. The witnesses will appreciate it and eventually begin to develop an esprit de corps, more or less rooting for your side of the case.