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.