Virtually every case requires expenses to be incurred. Examples of typical expenses include record retrieval fees, filing fees, court reporter fees, witness fees, mediator/arbitrator fees, and expert fees. The total amount of expenses depends on the nature of your case and the length of time it takes to pursue. The further into litigation a case goes, the more expenses are incurred and usually those incurred closer to trial are more expensive than those incurred at the early stages of a case. We take care to be mindful of the economic realities of any given case and incur expenses prudently and commensurate with the expected outcome.
Settlement is when a case resolves by agreement. Settlement can occur at anytime during the duration of a case, from before a lawsuit is filed and even after a trial is over. Among the benefits of settlement are that the agreed compensation is guaranteed, additional time and resources do not need to be expended pursuing the case, and there is no risk that unexpected rulings, unavailable witnesses, or other unknowns will change what was otherwise expected to occur in a case.
Arbitration is a proceeding in which a case is presented before a single or small group of attorneys or judges who are usually familiar with the type of case being presented. Though a bit of an oversimplification, arbitration can be thought of as an abbreviated or miniature version of a trial. The case is presented in a similar fashion as it would be at trial, but the evidence and rules of the proceeding are agreed to in advance so the time presenting the case is focused on the substance of the case itself and little time is spent on technical minutiae. Clients and witnesses usually testify in an arbitration similarly to how they would during a trial and are also subject to the same type of cross examination. Once the case has been presented, the arbitrator or arbitration panel issues the final ruling on the case. Arbitration is generally a relatively efficient and more predictable (as compared to a jury trial) way to resolve a case when the parties are unable to reach a straight settlement agreement.
Mediation is a formal negotiation session in which the parties to a case meet with an independent intermediary (the mediator) who tries to broker a resolution of the case. Usually this takes place at the mediator’s office and both parties sit with their teams in separate rooms while the mediator goes back and forth, meeting with each side independently and communicating each sides evolving positions to one another.
Mediation is much more about negotiation than it is about a formal presentation of the case. While other important junctures of a case can involve critical testimony or rulings - all of which may be binding on the case - mediation is generally limited to being a discussion of how to get the case resolved. Parties should come to a mediation mentally prepared to resolve a case, but knowing that if a case does not get resolved, the case simply continues to proceed forward as though the mediation had not occurred. Whatever negotiation occurred at the mediation generally has little impact on the evidentiary substance or procedural posture of the case.
Trial is where all of the moving pieces of a case come together and are presented to a jury or judge who determine the outcome of a case. The progress of a case may wax and wane slowly, particularly from a client’s perspective. However, a client’s level of involvement in the case cranks up considerably leading up to and during trial. So, let’s talk about what trial looks like from a client’s perspective.
Your Testimony - A common refrain in our office as we move through litigation is that we don’t ‘win’ a case at any isolated stage. Before a deposition, clients are often advised that they should not be thinking about trying to ‘win’ their case at their deposition. Do so, and you risk making a regrettable record that you can be confronted with later. The stages of litigation where we need a resounding ‘win’ are less common than one might think. You largely make a little progress, take what you can get, and move on to the next battle. Trial is different. Trial is where you try to win and try to win as big as possible. The approach to presentation of testimony is much different. As plaintiffs, we have the burden of proof, and we usually have to prove a variety of things during trial (as opposed to a deposition, where we are generally under little obligation to ‘prove’ anything). A client’s testimony is usually central to any given case, thus much time and care will be spent well in advance to make sure we put our very best foot forward. We want a jury to consider all of the evidence we feel is important to rendering a verdict in our favor.
Witness Scheduling and Coordination - Unlike the rest of the case, which is a methodical walk of independent components that need not occur at once, during trial everything needs to come together all at once. Witness testimony is critically important. Scheduling and coordinating witness testimony in the face of a fluid trial schedule is stressful. Because a client is likely to know (and often know very well) some of the witnesses who will testify, we’ll often ask clients to help us make sure those witnesses are aware of the importance of their testimony and to keep those witnesses apprised of exactly when it looks like they’ll be called to testify.
Conduct During Trial - Trial of a civil case is one of the few times a client has a front row seat to events in court. Most of the time, only a lawyer goes to court, only a lawyer attends depositions, and the lawyer negotiates on the client’s behalf. Some notable items regarding what is involved at trial include:
1 It is important to keep your reactions in check. Even in a very strong case, not everything that occurs in court will be favorable. The judge may decide to keep out evidence that we’d like to get in, and witnesses may testify in ways that you do not like (and believe it or not, they don’t always tell the truth!). Many things that seem bad in the moment are not as important as they might seem in hindsight, but the harm they do is certain to be exacerbated by any type of emotional reaction. Sighs, eye rolls, or sounds of any kind are unacceptable and likely to harm your case. Generally, the absence of a reaction in response to what is going on in the courtroom is best.
2 There is a lot that you will want to say during trial. After all, the trial revolves around you. It is easier said than done, but while court is in session, communication with anyone, including your lawyer, should be kept to an absolute minimum. For one, it looks bad (in line with the concept of being reactionless, above). Also, your lawyer must be in a state of high focus. It is best to take notes and confer with your lawyer about those notes during the breaks (there will be many breaks).
3 This next one goes without saying, but it is so important that we’ll say it anyways: be on time. The importance of being on time so that you are not wasting the time of the jury that you will be asking to award you money cannot be overstated.
4 Until the final verdict has been rendered, none of the trial participants are permitted to interact with the jurors. It is worth making a mental note of this, because trial participants and jurors go to and from the same area at similar times, so it is not uncommon that you’ll be in close quarters with someone in an elevator bank or going through security. Avoid the natural human tendency to communicate with the people that you have come to recognize.
5 Lastly, the pinnacle of a case and the fact that you are center stage causes some people to believe that they need to deliver a performance worthy of the occasion. Your authentic self is the only thing that will come through to the jury. An over the top ‘performance’ is likely to be received transparently and be reflected by a low verdict. This goes for not just how you testify, but how you carry yourself, communicate, stand up, sit down, and behave. If you are energetic and outgoing, great. If you are feeble and cantankerous, also great. Authenticity to your true self and your true condition is what the jury is there to see.
We get this question frequently and I can’t help but picture myself holstering a pistol, pulling my ten gallon hat down over my brow, tossing my lasso around an insurance adjuster and dragging them to the courthouse steps. Fun as that might sound, it’s not how litigation works in the real world. Little of the substance of a case (prior to trial) actually occurs in court (especially in these post-pandemic days). And clients are rarely present during the times we do find ourselves in court.
So how do we think about the notion of being ‘in court?’ A case can be resolved prior to litigation, which is the formal process of initiating legal action. Once a lawsuit is filed, litigation begins and the court has jurisdiction over the parties, so the defendant has then been, at least in theory, ‘taken to court’. Of course, the filing of a lawsuit is merely the beginning of what can be a long and potentially complex process. Because a trial is where much of the excitement happens, clients often perceive trial as a party being taken to court, but it is better thought of as a culmination of the litigation process if the parties have not been able to resolve the case while in court at any time leading up to the trial.
A civil case is usually resolved for a lump sum financial amount. The entities with a legal interest in the case are compensated, thus satisfying their legal interest, out of the settlement. Portions of a settlement are not prospectively earmarked for any one specific interest or another. The typical categories of damages that are addressed in a typical settlement are listed below:
1 Payment of Medical Bills – If medical care is one of the elements of damages in your case, you are entitled to the fair value of the bills for that medical care. Those bills typically need to be paid or reimbursed out of the proceeds of the case, but how such payment looks depends on if and how those bills were paid in the first place. If the bills were not paid, your lawyer will work directly with the medical provider to pay those bills. If those bills were paid by another entity, such as private insurance, Medicare, Medicaid, or MedPay, your lawyer will work with whoever paid the bills to reimburse that entity for the amount it paid. Another question that often comes up in this realm is why an entity such as private insurance is entitled to reimbursement when a client is paying (expensive) premiums every month. Because the value of the settlement to a client is often being driven by the amount of bills, if another entity is paying those bills on the client’s behalf, failing to reimburse the payor for the amount paid would result in a client receiving an unfair double recovery.
2 Cost Reimbursement - Your lawyer will often pay the costs associated with the case on your behalf while that case is pending. Your lawyer is entitled to reimbursement of these costs. As a general rule, the costs necessary to pursue a case increase as the case gets closer to trial due to the type of work necessary to prepare a case for trial. Examples of costs include filing fees, court reporter fees, expert witness fees, and costs associated record retrieval.
3 Attorney fees - Your lawyer is entitled to a percentage of the settlement, which is proportionate to the size of the recovery.
A brief comment before sharing some of the factors that determine the economic value of any given case: There are many unique variables that impact each case, and situations can be difficult to compare. Every situation is different and without 100% of the information, a competent analysis regarding case value cannot be made.
That said, there are generally two types of factors that are most important in determining case value. 1) The damages incurred by a plaintiff as a result of the occurrence and 2) How much will the defendant be obligated and able to compensate.
1) Factors related to damages incurred include the following:
a. Amount of medical expenses incurred;
b. Amount of wage loss incurred;
c. Manner in which activities of daily life are interrupted (can you get dressed by yourself? Can you drive? Can you participate in your hobbies?)
d. Is there disfigurement, such as scarring?
e. Are any effects of the occurrence permanent (Do you suffer limited range of motion? Do you remain in pain? Is your strength limited?)
f. Did the incident leave you at an increased risk of future harm?
2) Factors related to what a defendant might be obligated to pay.
a. Is the defendant at fault? In order to be entitled to any compensation, a plaintiff is obligated to demonstrate that a defendant is at fault. That something bad happened is not, alone, sufficient to entitle someone to compensation. Another way to think about fault is that a defendant must have done something wrong to be obligated to compensate someone else for damages incurred.
b. If the defendant is at fault, do you bear any blame? Even if a defendant is 95% in the wrong, comparative negligence laws mean that the full value of damages would be subject to a 5% reduction in that situation.
c. How much insurance coverage or assets does a defendant have? Even if damages suffered are significant, in a situation where the insurance coverage and other assets available to make you whole for those damages are limited, there might not be a path to a maximum recovery.
Questions about how long a case will take are far and away the most common questions we receive from clients. Predicting the length of a case is also unfortunately difficult to do. It is difficult to predict the length of a case with accuracy because there are many variables that we have no ability to control, including an insurance company’s motivations and the court schedule that we operate within.
Any given case can go to trial, and if it does, the timeline of that case will be long, measured in years. Most cases are settled before trial, and a settlement requires a defendant and their insurance to willingly come to the table with reasonable compensation to resolve the case. Though insurance companies are often well advised to attempt to settle a case and we can put strategic pressure on them to do so, they are under no legal obligation to resolve a case prior to a judgment being rendered against them.
Though the timeline of a case is difficult to predict with accuracy, there are generally windows of time in which a settlement discussion is more germane than others, such as after a demand letter is sent, after a complaint is filed, and after depositions are taken. We will keep you advised of such matters as your case proceeds. Rest assured that though the process is not the fastest, we do everything in our power to move a case along as quickly as possible.
The specifics of any given case will dictate the particulars of what is most important, but here is a short list of what most people can do to help their case.
1) If your case involves ongoing medical care, follow up diligently on your medical treatment.
2) Regularly document all the ways in which your case has impacted your life. This includes taking pictures and videos of any physical injuries and the effects of those injuries.
3) Be sure to note the hobbies and activities of daily living – both small and large – that were changed by the injuries you suffered.
4) Keep in regular communication with our office and keep us informed of updates about your situation.
5) Send any case related correspondence that you receive to our office.
6) Avoid publicizing information on social media that would be detrimental to your case.
Dan Breen was interviewed for this Illinois State Bar Association Article about online client intake procedures. You can read the article on the ISBA website.
What do credit reports, milk and photos all have in common? Companies in these realms have all recently been hit with class action settlements. If you've ever received an email or letter giving you notice of a class action settlement and been confused about your rights, you are not alone.
Let's first define a class-action lawsuit. It Is a civil lawsuit brought on by a group of people or businesses (the class) accusing the defendant of the same harmful or unlawful action. The biggest class-action settlement was in 1998 and required big tobacco companies to pay out more than $206 billion to included states, over a 25 year period.
If you receive a notice of a class action settlement, most of the time you don't even need to respond or join. In some instances, you will have a link and a specific code or number to join. One person, the named plaintiff in the lawsuit, represents the group, essentially doing the work on behalf of the group.
Class action settlements are safe and effective. By joining one - even if you didn't know you were wronged - you are holding a company responsible for their negligence. It is a way to protect consumers from misleading advertising, faulty products, and fraud. They can also help protect the environment. The BP Gulf of Mexico oil spill resulted in a class action lawsuit to the tune of $20 billion, the second-highest settlement after big tobacco. Additionally, employees are protected from things like unfair wages and discrimination.
Earlier this year our staff shared their favorite children's books for aspiring attorneys. We couldn't leave out our book picks for the mature audience. The following are picks that any lawyer, law student, or individual who's been consumed by a trial might enjoy. And with the holidays coming, these could make great gifts, too.
The 48 Laws of Power - Robert Greene’s MANIFESTO is a master class on the power games that people play. Many books have been written in this realm, but none take such a cold, amoral, look at the struggle of power and influence as The 48 Laws of Power. One of the most clarifying items gleaned in this work is a newfound understanding of otherwise inconsistent or illogical behavior by politicians. Much of what politicians do that would make little sense in typical human interactions is often done in strict adherence to Greene’s laws laid out here. While not a legal book, per se, it’s hard to read this and not see how important it is to the work we do as lawyers.
Helter Skelter (Vincent Bugliosi) - The fact that this book is about Charles Manson overshadows its brilliance from a strictly legal perspective. Vincent Bugliosi, Manson’s prosecutor, takes you through the chilling and intricate trial to convict the cult leader of murder. Manson was never alleged to have been personally involved in the killings central to this novel. Bugliosi’s approach to his craft are something for every lawyer, and every professional, to emulate.
And the Sea Will Tell - Another Vincent Bugliosi book (after he switched from prosecution to defense), about a murder that took place on an atoll in the south pacific. A surface level retelling of the facts of this case would lead anyone to believe Bugliosi’s client was obviously guilty of murder. But Bugliosi built his criminal defense practice on the impossibly principled approach of defending only those he believed to be innocent and then representing his clients with the sole goal of proving that innocence. Inch by inch, Bugliosi, walks the reader through how he became able to believe in, and then ultimately try to prove, his client’s innocence.
Influence - Many books have been written on persuasion, but this is the definitive work in the field. A telling story of how compelling this book is, after Charlie Munger read it, he gifted Robert Cialdini a share of Berkshire Hathaway’s A-stock to thank him for putting it out into the world. While not written from a legal point of view, the art of persuasion is so central to our role that makes this a must read. I’d go so far as to say it is far more important than any book assigned in law school.
Conspiracy - As billed, this book has it all: sex, conspiracy, power, money. It’s a true story, yet it feels like Grishamesque page turner. Conspiracy is the story of Peter Thiel’s plot to ruin Gawker, which he does by secretly financing Hulk Hogan’s lawsuit against Gawker because Gawker improperly published a sex tape of Hogan. Sensational as it is, at its core this book is a structured enumeration of how a novel lawsuit is built and pursued, brick by brick.
Reptile - David Ball and Don Keenan do a masterful job in putting together what might be considered the psychological guide to presenting a case to a jury. Regardless of the subject matter you are dealing with, this case presents an outline on how to best frame your arguments and communicate your position in a way that appeals psychologically by activating the ‘reptilian’ part of our brains. The term reptile has since become omnipresent in the litigation world.
Are there books you'd recommend for our staff to read? Please let us know in the comments.
As summer winds down and kids head back to school, we want to share our favorite books for the littlest legal assistants in our lives.
It was just a few years ago when we’d only have time to open legal textbooks. But life has evolved and now there is a gaggle of Breen Goril Law babies and kids, plus our many nieces and nephews. If you think we turn off the legal work when we get home, you are mistaken. One of our favorite ways to teach the kiddos in our lives about what we do, about being fair, and about fighting for justice is through children’s books.
Here are our favorites.
Attorney Dan Breen reads Alabama Spitfire: The Story of Harper Lee and To Kill a Mockingbird to his son and daughter. This book is a true story about Harper Lee, the girl who grew up to write the Pulitzer Prize winning To Kill a Mockingbird.
When he’s not reading Little Blue Truck (which is basically every night) to his two sons, attorney Chris Goril shares Lillian's Right to Vote: A Celebration of the Voting Rights Act of 1965. As the names says, this book follows an elderly African American lady’s uphill journey to vote.
I Promise, by LeBron James is a favorite of attorney Maggie Ledford. An inspiring book about doing your best today for a brighter future tomorrow.
Legal Assistant Lesley shares The Youngest Marcher: The Story of Audrey Faye Hendricks, a Young Civil Rights Activist. An incredible true story about a brave little girl marching to protest segregation.
Marketing Assistant Andrea likes to read I Dissent: Ruth Bader Ginsburg Makes Her Mark with her three young daughters. This book tells how RBG always stood up for what was right – especially in the lives of women and minorities.
The legal framework that governs our practice is not always reflective of the real world issues we navigate, and, as I’ve recently come to learn, such is the case with back injuries.
Back pain is one of the most common types of pain that human beings suffer, so it’s no surprise that it is one of the most typical injuries that we assist clients with. It’s easy for the groupthink de jour to dictate the framework that we, our opponents, judges, and jurors understand back injuries. Such groupthink concepts include the fact that a true back injury is caused by a certain pathology, and that can be seen on a diagnostic study (such as a disc herniation shown by an MRI), or that there is a therapeutic framework for recovery from back injuries and one need to little more that follow that roadmap to recovery.
Suffice it to say that my mind was a bit blown recently to learn that accepted framework for understanding back injuries is not nearly as settled as it may seem. Dr. Stefi Cohen, in an interview on the Tim Ferriss Show Podcast, explained just how much we still have to learn about back injuries.
Dr. Cohen, who also happens to be a world record holding power lifter, explains that despite the fact that back pain is one of leading cause of disability in the world, there is no discernable cause for pain in 95 to 99 percent of cases. The validity of a back injury is therefore not dictated by the existence of a diagnostic finding, such as a bulging disc. Back injuries also likely require a much more personalized approach to healing than the therapyàinjectionsàsurgery framework often used in the medical community to and then accepted as fact by the legal community. As advocates, we must also venture to build cases recognizing that a binary picture of medical causation not always going to be apparent for back injuries.
Of course, the challenge for us, operating in a world of a ‘reasonable degree of medical certainty’ and burdens of proof, an established framework of understanding gets you places in terms of doing what you need to do to prove your case. The challenge becomes demonstrating the legitimacy and severity of back injuries where the pathology causing the pain and injury is not obvious – which is more often the case that is widely appreciated.
I would urge anyone practicing in this area to give the episode a full listen.
https://tim.blog/2021/01/06/stefi-cohen/
Answer:
Even before the pandemic hit, the reality of litigation is that it is not a fast process. We lawyers have many one liners to neatly explain this and my personal favorite is that “the wheels of justice turn slowly.”
Litigation moves at a much more methodical pace than other economic activity that people are used to. The practical reasons for this can include uncooperative opponents, constraints of the judicial calendar, scheduling coordination, and the sometimes lengthy process of obtaining records and other important information from disinterested third parties. The overarching reason things are not as fast as people might be used to is because, more so than other realms of society, litigation is the process of getting it right, however long getting it right might take. If a party needs to obtain thousands of pages of records before they are ready to take a deposition, they will typically be afforded the time to do so. If 20 witnesses need to be deposed to ensure that litigants know everything there is to know about an incident, then 20 witnesses will be deposed. If a doctor’s calendar is booked for the next three months, the deposition will be scheduled four months later and little progress might be made on the case in the interim.
As a lawyer involved in litigation, it becomes easy to acclimate to the methodic pace, so we need to continually remind ourselves how unexpected the pace might be to a client who works in a different industry. Imagine working in logistics and being told that it is going to take a month to get a full set of records - and that when those records come, they will likely be sent in the mail, or worse yet, by fax!
Above all, the most important thing to remember regarding the pace of a case is that the speed and which it progresses is not typically relevant to the substantive value of the case. In other words, delays, unwelcome as they may be, do not mean there will be a lower financial outcome when all is said and done. After all though the wheels of justice do grind exceedingly fine.
Answer:
Because the legal world is complex, this most simple and important question requires a less-simple response. The framework used to determine how a settlement will be allocated is described below. The economics of the cases vary greatly, but as a general rule, there are a few buckets of entities that are entitled to a portion of the settlement funds. Everything left after the following groups are paid belongs to the client.
Payment of Medical Bills
If your case is one based on medical care, you are entitled to the fair value of the bills for that medical care. Those bills need to be paid or reimbursed out of the proceeds of the case, but how that will look depends on if and how those bills were paid in the first place. If the bills were not paid in the first place, your lawyer will work directly with the medical provider to pay those bills. If those bills were paid by another entity, such as private insurance, Medicare, Medicaid, or medpay, your lawyer will work with whoever paid the bills to reimburse that entity for the amount it paid. Another question that often comes up in this realm is why an entity such as private insurance is entitled to reimbursement when a client is paying (expensive) premiums every month. Because the value of the settlement to a client is often being driven by the amount of bills, if another entity is paying those bills on the client’s behalf, failing to reimburse the payor for the amount paid would result in a client receiving an unfair double recovery
Reimbursement of Costs
Your lawyer will often pay the costs associated with the case on your behalf while that case is pending. Your lawyer is entitled for the reimbursement of these costs. As a general rule, the costs necessary to pursue a case go up as the case gets closer to trial due to the type of work necessary to prepare a case for trial. Examples of costs include filing fees, court reporter fees, expert witness fees, and costs associated record retrieval.
Attorney Fees
Your lawyer is entitled to a percentage of the settlement, which is proportionate to the size of the recovery.
There are other interests that need to be accounted for, from time to time, but the big ones are above. A client is entitled to the balance once the above items are all taken care of.
Answer: Ultimately, for better or worse, we are trying to fit every civil case that we handle into an economic framework. Imperfect as it may be, the civil system is set up to provide money for individuals to reimburse them for the harms suffered, regardless of what the form that harm took in the first place. In a situation like property damage, this system works pretty well - an individual can be paid for the replacement or repair value of his or her property. In a situation where the harm is something awful, like death, it is much more difficult to fit such profound damages into a financial framework. Nevertheless, this is the system we have, and we strive to get as close to justice as we possibly can.
The factors that drive value in an injury case are generally, the following:
Loss of Normal Life: A change in or loss of one’s ability to experience life’s activities in the way you could before an incident, such as an inability to do yard work.
Pain and Suffering: The physical pain resulting from an injury.
Disfigurement: The physical manifestation of an injury, such as a scar.
Wage Loss: Income that a person would have earned, but for the injury.
Medical Bills: Charges for medical services rendered to treat an injury.
Emotional Distress: The psychological trauma resulting from an injury.
Future expected hard can be applied to all of these categories.
One of the best tools to use to determine how a case might be valued is the jury verdict reporter, which is a database of past case results. A rough comparison here can inform what an expected result might look like. It is important to keep in mind that cases wildly vary. Subtle differences in injuries can lead to vast differences in an assessment of financial damages. You could imagine that the difference between minor and life-changing for harms like facial scars or brain injuries is a very fine line.
Of course, the underlying factor that must also be considered is liability. If you are going to have a hard time proving that someone or something else is the cause of the harm suffered, the risk of losing at trial or walking away with a compromised award must be recognized.
Answer:
It usually happens at a point in the case when a client is frustrated with a defendant’s unreasonably low offer. The client tells me that “we’ll just have to take them to court.” Enthusiastic as I may share in the sentiment, my response is usually something along the lines of explaining to a client that we already have ‘taken them to court.’ Of course, anyone not involved in the daily practice of law could be excused from missing this since so little of the substance of a case (prior to trial) actually occurs in court (especially these days). And clients are rarely present during the times we do find ourselves in court.
So how do we think about the notion of being ‘in court?’ A case can be resolved with litigation, which is the formal process of taking legal action. However, if the parties are unable to come to a resolution, a lawsuit is filed. Once lawsuit is filed the court has jurisdiction over the parties, so the defendant has been ‘taken to court’. Of course, the filing of a lawsuit is merely the formal beginning of what can be a long and potentially complex process. Because a trial is where all of the action happens, clients often perceive trial as a party being taken to court, but it is better thought of as a culmination of the litigation process if the parties have not been able to resolve the case while in court at any time leading up to the trial.
Answer:
Trial is where all of the moving pieces of a case come together. The progress of a case may wax and wane slowly, particularly from a client’s perspective. However, a client’s level of involvement in the case cranks up considerably leading up to and during trial. So let’s talk about what trial looks like from a client’s perspective.
Preparing to Testify
A common refrain in our office as we move through litigation is that we don’t ‘win’ a case at any isolated stage. Before a deposition, clients are often advised that they should not be thinking about trying to ‘win’ their case at the deposition. Do so, and you are more likely to put something regrettable on the record. The stages of litigation where we need a resounding ‘win’ are less common than one might think. You largely make a little progress, take what you can get, move on to the next battle, and gain what additional ground you can there.Trial is different. Trial is where you try to win and try to win as big as possible. The approach to presentation of testimony is much different. As plaintiffs, we have the burden of proof, and we usually have to prove a variety of things during trial (as opposed to a deposition, where we are generally under little obligation to ‘prove’ anything). A client’s testimony is obviously central to any given case and, thus much time and care will be spent well in advance to make sure we put our very best foot forward and check all of the boxes that we need to. Thus, jury can consider all of the evidence we feel is important to rendering a verdict in our favor.
Coordinating Witnesses
Unlike the rest of the case, which is a methodical walk of independent components that need not occur simultaneously, at trial, everything needs to come together all at once. Witness testimony is critically important. Scheduling and coordinating witness testimony in the face of a fluid trial schedule is stressful. Because a client is likely to know (and often know very well) some of the witness who will testify, we’ll often ask clients to help us make sure those witnesses are aware of the importance of their testimony and to keep those witnesses apprised of exactly when it looks like they’ll be called to the stand.
Conduct During Trial
Trial of a civil case is one of the few times a client has a front row seat to events in court. Most of the time, only a lawyer goes to court, only a lawyer attends depositions, and the lawyer negotiates on the client’s behalf. Some notable items regarding what its like to participate in a trial include:
It is important to keep your reactions in check. Even in a very strong case, not everything that happens is going to be favorable. The judge may decide to keep out evidence that we’d like to get in, and witnesses may testify in ways that you do not like. (believe it or not, they don’t always tell the truth!). Many things that seem bad in the moment are not as important as they might seem in hindsight, but the harm they do is certain to be exacerbated by any type of emotional reaction. No sighs, eye rolls, sound of any kind. Generally speaking, no reaction to what is going on in the courtroom is a good reaction.
There is a lot that you will want to say during trial. After all, the trial revolves around you. It is easier said than done, but while court is in session, communication with anyone, including (and especially) your lawyer, should be kept to an absolute minimum. For one, it is a bad look (in line with the concept of being reactionless, above). Also, your lawyer must be in a state of high focus. It is best to take notes and confer with your lawyer about those notes during the breaks (there will be many breaks).
This next one goes without saying, but it is so important that we’ll say it anyways: be on time. The importance of being on time so that you are not wasting the time of the jury that you will be asking to award you money cannot be overstated.
Until the final verdict has been rendered, none of the trial participants are permitted to interact with the jurors. It is worth making a mental note of this, because trial participants and jurors go to and from the same area at similar times, so it is not uncommon that you’ll be in close quarters with someone in an elevator bank or going through security. Avoid the natural human tendency to communicate with the people that you have come to recognize.
Lastly, the pinnacle of a case and the fact that you are center stage causes some people to believe that they need to deliver a performance worthy of the occasion. Your authentic self is the only thing that will come through to the jury. An over the top ‘performance’ will be received transparently and likely reflected by a low verdict. This goes for not just how you testify, but how you carry yourself, communicate, stand up, sit down, and behave. If you are energetic and outgoing, great. If you are feeble and cantankerous, also great. Authenticity to your true self and your true condition what the jury is there to see.