PREPARING FOR TRIAL Jasmine Diamanti Karen Greene Mary Mark Marta Stott

Agenda Overview Working with witnesses Exhibits Technology In the courtroom

Trial prep and trial: The role of the paralegal Organization (and re-organization) of the file materials for trial Witnesses Exhibits Demonstrative evidence Jury selection Courtroom logistics War room setup and coordination Assisting at trial Post-trial activities

You need to know certain information Are you in federal court or state court? Will it be a jury trial? Where will the trial take place? Will it be a courtroom trial or something else?

Working with Witnesses Witnesses are a key component to presenting a successful case Witnesses authenticate documents to be placed into evidence Witnesses serve as the compelling storytellers who convey the heart of a case to the jury The right witnesses provide a human context for all facts presented

Witness-related documents Witness lists  Pretrial Order preparation Witness files or kits  Prepare files for attorney preparation and witness preparation  Deposition transcript(s), exhibits and summaries  All discovery that refers to the witness’s expertise or knowledge of events  Declarations, affidavits, sworn statements by the witness  Database hits and searches, including from external databases like LexisNexis or Google  Key documents that relate to the witness  Correspondence to or from the witness  Notes, interviews, memos of fact  Subpoenas or Notice to Appear at Trial (with proof of service)  Exhibits to be used, including any demonstrative exhibits  Witness examination outlines/Q&As for direct, cross, rebuttal

Expert-related documents CV or resume All reports prepared by the expert for this case List of all documents relied upon by the expert in the preparation of his/her report(s) Copy of all documents relied upon by the expert in the preparation of his/her report(s)  Be sure to include all correspondence between the firm and the expert All publications by the expert that relate to the subject matter of the case

Using transcripts and deposition designations at trial For impeachment purposes or in the place of an absent witness The transcripts need to be at the courtroom during trial  Originals or certified copies (w/exhibits) in sealed envelopes  Communication with the court (normally the Judge’s clerk) on protocol and procedure is essential (this will vary from court to court) If the parties will use deposition testimony in lieu of or in rebuttal to testimony from live witnesses, deposition designations must be prepared  Communicate with the court on protocol and procedure  Designations are exchanged by the parties  Parties may object to the use of designated testimony  Tracking the designations, objections, counter-designations, and ultimate results is essential

The logistics of working with trial witnesses Witness preparation meetings  Send a witness file to the witness prior to meeting so that they may review their testimony Coordinating witness trial appearances  Copy of contact information at all times Expert witness trial appearances Attention to all the details is the the key to success!

Trial exhibits Potential trial exhibits come from many sources:  Deposition exhibits  Documents produced by a party or third party  Objects  Demonstrative exhibits  Public sources of information  External databases

Demonstrative exhibits Used to demonstrate or illustrate key information to an audience Types of demonstrative evidence include  Blow-ups of designated trial exhibits  Transparencies  Videos  Charts  Diagrams  Animations  Presentations using trial presentation software

The parties must exchange exhibits and exhibit lists before trial The time of the exchange will vary depending on the court  In federal court, the pre-trial filings are due 30 days before trial  In state court, the pre-trial filings are often due the first day of trial All potential trial exhibits must be authenticated before they are admitted into evidence  As the exhibits are prepared, it is important to consider how each will be authenticated  Demonstrative exhibits may need to be authenticated in more than one way, depending on the source and type of information used to create them This process takes more time than anyone ever anticipates, so start early

Organizing the exhibits Numbering schemes Exhibit labels There may be 3 sets of exhibits: Yours, theirs, and joint You will need multiple copies of the numbered, labeled exhibits  Master set  The number of copy sets will vary: counsel table, workroom, attorney working copies, witnesses, judge, jurors ….

The trial exhibit list Exchanged before trial  Usually exchanged at the same time as the exhibit exchange The format must be correct  Check the local rules  Check with the court clerk to be absolutely sure You will need a comprehensive exhibit list for use at trial  This is a different list than the exchanged list  Includes all the exhibits, not just your side’s  Exhibit number  Description  Sponsoring witness  Bates range or other identifying information  This list will be updated as the exhibits are marked and/or admitted into evidence

Use available technology tools If it’s already in electronic format, don’t re-invent that wheel  Copy/paste features  Linking between integrated software  Import/export between applications Maximize efficiency using your computer  Data/document storage  Sorting and re-sorting of information  Searching

Litigation and trial support technology tools you should know about Deposition database products like LiveNote and Summation  Electronic file copy of the transcript  Search within a transcript or across multiple transcripts  Exhibits linked to transcripts  Real-time transcripts  Integrated with other litigation support products

More litigation and trial support technology tools Document database products like Concordance and Summation  Unlimited fields plus full-text  Fast and easy search capability  Electronic foldering  Annotations  Reports  Integration with other litigation support products The new document database products are web-enabled  Examples: Ringtail, FYI, Introspect Hosted database solutions may also be appropriate  For very large document reviews/productions  Where multiple parties need to access the same data  Examples: Applied Discovery, Kroll Ontrack, EED, FIOS, FTI/Ringtail

More litigation and trial support technology tools Case analysis tools like CaseMap and TimeMap  Timelines and chronologies made easy  Organize any way you like: by issue, by person, by location, etc.  Integrated with other litigation support products Trial presentation tools  PowerPoint can be very effective  Presentation tools like Sanction and Trial Director are more full- featured and robust than PowerPoint On-the-fly and unplanned changes in direction are easily accommodated Integrated with other technologies (video, audio) and litigation support products (Concordance, Summation, CaseMap, TimeMap)

Consider using technology for trial prep and trial Witness and issue files Witness and exhibit lists Deposition designations Exhibit selection Exhibit numbering, labeling, organization, tracking Transcript management Trial presentations

Using technology can make a difference at trial To the trier of fact  Simplifies the presentation of the case  Jurors are more engaged, attentive, focused Use of technology will save time at trial  Instantaneous access to the evidence  Illustrations and graphics can shorten presentation time  Electronic display allows exhibits to be previewed quickly when objections are raised The court may require the use of technology Using technology may reduce expense to the client  The trial will probably be shorter  Other expenses can be reduced as well Time spent searching for, retrieving, then re-filing paper documents Making and maintaining multiple copies Shipping (fewer boxes) Transportation Storage

In the courtroom Advance planning is essential  Check with the clerk re what will be allowed in the courtroom  Make sure you know any security requirements Equipment and boxes may need to be delivered during off- hours or using freight elevators, service entrances, etc. Plan extra time for metal detectors, searches, etc.  Understand the court’s expectations You may be required to use the court’s equipment or to share equipment with opposing counsel

The courtroom setting Take into account the attorney’s personal style Familiarize yourself with the courtroom  The key to courtroom presentation is location Where will the attorney stand or walk Where will the court and jury have the best view of the screen or display Ask: Who can see what from where?  Know the size and layout so you can decide on the equipment to use Power or cabling restrictions, number of outlets, availability of power sources Physical restraints as to placement of equipment  Visit the courtroom and map out how equipment will be placed  If you will be using the court’s presentation system, be familiar with it

Courtroom equipment Check your equipment  Make sure all the equipment is compatible Test it ahead of time (in the courtroom if possible)  Make sure the projector has a high enough brightness (lumens) level and that resolution is set correctly  Make sure the laptop or computer has enough memory Especially if you will be using video clips or images  If you will be playing video clips, bring your own audio system Selection and placement of the display are important  A large single screen for jurors is often best  Many experts recommend using a digital projector and 1 screen that can be seen by all jurors and all parties  Multiple LCD displays in the jury box are another option  Multiple computer monitors in the jury box may also be considered Take backup equipment so it’s available when (not if) there’s a snafu Again, check on the availability of electrical power sources or outlets

Courtroom logistics Who will set up the equipment before trial?  You will need to work with the clerk or bailiff to schedule setup time in the courtroom Who will operate the system during trial?  Be sure to schedule some practice time in the courtroom Will you need technical assistance on-site during the trial? If any trial testimony will be videotaped, make sure you’ve made appropriate advance arrangements  Court reporter, videographer, etc.  The testimony must be in the proper format Make arrangements to safeguard the equipment

Summary Trial can be the best of times and the worst of times To keep your experience positive:  Plan ahead  Be organized  Use your resources efficiently

Thanks! Jasmine Diamanti, senior paralegal Ray Quinney & Nebeker Mary Mark, trial consultant Mark & Associates Karen Greene, legal technology consultant Baker Robbins & Company Marta Stott, senior paralegal Berman & Savage