By Jeremy Pasternak
CAOC “Forum” – October 2005
I tell my clients that they should not read too much into the fact that I am constantly using phrases like “at trial” and “when the jury hears ….” After all, the statistical reality is that the majority of cases do not go to trial, and though theirs may, odds are that it won’t. But the measure of the strength of our cases, that which gives them value – whether it be for trial or settlement – is of course ultimately found in the answer to the question: “What might happen at trial?” As the articles in this issue illustrate, controlling “what might happen at trial” does not just start when you answer “ready.” Though this issue focuses on trial practice itself, it cannot help but be informed by everything that comes before it, from case selection to summary judgment to expert testimony.
For example, what might happen when you cross-examine the defense witnesses? Brian Chase and Scott Raphael write on the “Effective Use of Videotaped Depositions.” The title of their article notes that “Seeing is Believing.” Indeed, it is. Their article tells us how videotaped depositions can be used to give life to prior deposition testimony, as opposed to the cold record of written transcripts, and how to bring depositions into trial in a very real and visceral way. By having depositions videotaped, we are better able to use them – effectively – at the time of trial. By the same token, we thereby strengthen our position for resolution prior to trial.
Al Rodier writes about “Efficient Case Handling.” His article discusses not only how to control costs during discovery, but also how to anticipate costs through trial, and how important it is during case evaluation and throughout the case to review these costs with the client so as to assess, again, what might happen at trial (and what it will cost).
In a similar vein, Al Stoll’s article on “Expert Witness Containment – Smart Ways to Spend Your Client’s Money” tells us how to prepare for trial while still not wasting time and money with respect to expert discovery.
Shaana Rahman and I write about “Motions in Limine,” which obviously go to “what happens at trial.” After all, motions in limine largely define what the jury knows about. Like the others, this article also addresses the events leading up to trial, and how during discovery we can best prepare (or avoid) motions in limine.
Taking us through and then beyond trial are two articles, “Crafting a Solid Statement of Decision” by Donna Bader and “The Verdict Is In: Be Cautious” by Stuart Esner. Like the other articles in this issue, they provide solid tips not only for trial practice itself but also for that which comes before it. Jude Basile has written an article on “Making a Human Connection with the Jury.” (If you want to learn more, be sure to attend be sure to attend Jude’s presentation with Gerry Spence at the November Convention.)
Finally, going back to evidence at trial, Morgan Smith and Alex Hansen review the now defunct spoliation of evidence tort, and discuss the ways in which concepts of “spoliation” can still inform our trial techniques, despite the fact that this is no longer an independent tort.
Regardless of how often you go to trial, and regardless of whether or not you expect any of your cases to go to trial in the near future, you must always be preparing for it. These articles in this issue will help you do just that.
Jeremy D. Pasternak has law offices in San Francisco. He is a member of the Forum Editorial Board.