The Eve of Trial: A Check List

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McMurray Henriks, LLP

Los Angeles, CA


Organize Files For Trial

A. Eliminate Non-Trial Material

This is the time to get rid of anything and everything which has no relationship to your trial preparation.

The only documents needed are those which may be referred to at trial. These should be arranged in trial notebooks (with copies for the court and counsel) all other should be filed separately.

B. Trial Notebooks

Trial related material must be organized and tabbed for easy reference.

Unintentional fumbling for documents only adds to the stress of trial.

1. Pre-trial Pleadings

Tab all pleadings so that you can find what you need immediately. They should be organized chronologically, In complex cases, summaries with page and line references are helpful.

2. Correspondence

Only rarely will correspondence be necessary for trial. Generally, the only reference will be for motions.

3. Written Discovery

Interrogatories, Requests for Admission and Request for Production with responses should be indexed and tabbed. Discovery that you plan to use at trial should be prepared so that you can easily read the question and the response from a single document. Make sure that each question has a clear reference to the set number, the question number and the dates of service both of the discovery and the response.

4. Depositions

Make sure you have at least 2 copies (or original and a copy) of all depositions you intend to use at trial. The original of each deposition should be lodged with the court at the beginning of the trial and certainly prior to your cross-examination of an adverse witness. Your copy should have all areas of potential impeachment highlighted and you should have an index in the front of each adverse witnesses' deposition setting out the page and line of each area of anticipated impeachment.

C. Exhibits

Pursuant to local rules in almost every jurisdiction, exhibits must be pre-marked and exchanged prior to trial.

Your Exhibit List will be the one document most referred to by you at trial. Make sure you can read and understand it.

1. Make at least 4 copies of each document. One for the court, one for the witness, one for opposing counsel and one for your use. Whenever possible, the original should be the one shown to the witness and introduced into evidence. Nothing interrupts your flow as much as having to stop each time you refer to an exhibit to show it to opposing counsel before you can use it. (Note: documents used exclusively for impeachment may be the exceptions to this rule. Dramatic effect may be enhanced as the beads of sweat form on the forehead of your opponent as he views the smoking gun for the first time as he sits at counsel table. However, with our discovery rules, this rarely occurs.)

2. Exhibits should be kept in separate books from the other documents for ease of reference. Make sure the court has an exhibit notebook just like yours.

3. For all exhibits that will be read from extensively or refer to critical aspects of the case, you should have enlarged so that the jury can follow along. This also enables you to highlight aspects you feel are important, whereas you may not do this on the original document. This will also be important to your final argument.

D. Witnesses Testimony

Separate files should be made for each witness. In each witnesses' file you should include a copy of their deposition summary, your direct or cross-examination outline, resume and an index of all exhibits pertinent to the witnesses' testimony.

With doctors, I include all the doctor's medical records in his/her file with table on the ones I will refer to. Those documents may be separately marked and included on your exhibit list.

Redwells are generally best for keeping these documents together and easily accessible. They also make it easy to grab the files for each witness to take home to prepare for the next day.

E. Trial Documents Notebook

A Separate notebook should be made for immediate access to documents prepared for trial. They may be segregated as follows:

1. In Limine Motions: pursuant to most local rules, in limine motions must be exchanged prior to the first day of trial. Your Trial Documents notebook should have your motion, the opposition and all relevant research separately tabbed and indexed. Same for any motions made by defendant.

2. Statement of the Case: virtually every jurisdiction requires counsel to meet and confer and agree upon a short concise statement to be read to the potential jurors prior to the start of the jury selection. This should be included in your Trial Notebook.

3. Trial Briefs: Even if not required, you should always prepare a trial brief. This will make the court aware of what your contentions are and enable the court to see the big picture when ruling on motion and objections. If defendant also prepares a brief, put it in your notebook also.

4. Witness List: Your list should include every potential witness you may call. Failure to include a witness on your list may be grounds for exclusion of that witness for a variety of reasons. The list should also include every person (including treating physicians) who may be referred to during the trial. The court often uses the witness lists to read to the jury to determine whether any juror has heard of that person.

5. Proposed Voir Dire Questions: Very often areas of particular concern must be addressed carefully. Even the most experienced trial attorneys will have at least the subject areas outlined. Include your Voir Dire Outline in your Trial Document Notebook.

6. Outline of Opening Statement: This outline reflects the theme of your case as well as what you expect the evidence to be. You may need to refer to it at various times during the trial to make sure that you stay on track and don't overlook essential elements. Your examination of witnesses should also reflect statements made during your opening.

7. Exhibit List: This list should itemize exhibits with space for indication its status (i.e., marked for identifications, admitted or withdrawing).

8. Jury Instructions: Your trial notebook should include a complete set of jury instructions both special and Form with modifications. Also a list of jury instructions proposed.


Prepare Witnesses to Testify

A. Meet with each witness: Whenever possible, you should meet with each and every witness you are considering calling to testify at least 30 days before trial. Notify each such witness, in writing, of the trial date, the address and location of the trial (with directions) and that you intend to call that person to testify in the matter. At that time also arrange to interview the witness in person.

This is the only way for you to adequately assess what kind of witness that person will make at trial. The witness will also be able to become comfortable with you and your particular style. This is important for the flow of your direct examination. It will also help in making decisions about the order in which witnesses should be called.

1. Discuss all issues that may be raised both on direct and cross-examination.

2. Review all documents that may be referenced with the witnesses.

3. Review deposition testimony and any prior statements made.

4. Make the witness aware of why his/her testimony is important.

5. Ask the question that will be asked at trial, both on direct and cross-examination.

6. Discuss responses.

7. Prepare witness regarding style of opponent and how to best respond.

8. Find out days and times witness is most available to testify.


All discovery is complete. Experts have been deposed. Documents have been reviewed and organized. Now is the time to perfect your presentation.

A. Redefine Your Theme

The "theme" of your case was developed much earlier. It has guided your discovery and provided focus for depositions, both lay and expert.

1. Review jury instructions. The jury instructions not only set out the elements of your case that must be proven, they also set out what the defense must prove.

2. Re-evaluate and adjust your theme as necessary to take into account the final state of the evidence and the law.

3. Finalize your Opening Statement and Closing Argument Outline taking into account all of the evidence and the law.

4. If there are any weaknesses in your case, this is your last opportunity to shore them up. Make sure every element of your case has admissible evidentiary support.

B. Outline Witness Examinations

1. Prepare an outline of each witnesses expected testimony.

2. Write out those questions which require precise phrasing.

3. Make sure you have covered each element and exhibit to be used with the witness.

4. Prepare cross-examination of each defense witness.

5. Include easy references to deposition testimony and exhibits for impeachment.


Knowing the disposition of the judge may be as important as any other aspect of your final trial preparation. A judge with the wrong predisposition can adversely affect virtually every aspect of your case.

A. Master Calendar Courts

1. Contact attorneys who have tried cases in the particular district. Find out which judges are best and worst for your type of case.

2. Rand the potential judges based upon the information available to you.

3. Decide which judge(s) against which you will exercise a CCP §170.6 challenge, if assigned.

4. If possible spend some time in each judge's court during a trial to assess how the court is run.

5. If practical, discuss the court's calendar with the court clerk to get a feel for whether or not that court will be open on your trial date.

6. Once assigned, if time permits, go through items 2-6 a All Purpose Courts, out lined below.

B. All Purpose Courts

By the time you finish your Initial Status Conference, you should have a good idea of your judge's demeanor and any predispositions.

1. If practical, spend some time watching the judge in trial. Very often trial demeanor differs from demeanor during law and motion, status conferences and settlement conference.

2. Prepare in limine motions, voir dire, opening statement, presentation and witnesses keeping in mind how you anticipate the judge will rule on objections.

3. Discuss with the court and the clerk the likelihood you will start trial on schedule.

4. Discuss with the court staff the judge's preferences and any particular areas of concern.

5. If possible, establish a friendly relationship with the staff. You will need them much more than they will need you.

6. Get a copy of the policies and procedures applicable to the particular court. If possible, discuss them with the court staff.

V. DEADLINES (all deadlines are regular calendar days unless otherwise indicated)

A. Final Status Conference Deadlines

5-days - pre-numbered exhibit lists

- jury instructions

- trial witness lists

- short statement of the case for the jury

- motions in limine (see also Evidence Code §453)

B. Pretrial Deadlines

70 days - Last day to hand serve Demand for §2034 (Note: §2034(b) expressly states this limitation refers to the initial trial date set)

These deadlines apply to most districts in California. Some courts have additional or different deadlines for Ming and/or exchanging documents. I say check local rules and with the clerk of the particular court or district where your action is pending for applicable court orders or rules. If service is by mail, add 5 days. CCP §1013.

60 days - Last date to hand serve written discovery. CCP §2024 [Note: §2024(a) expressly states this cutoff relates to the "initial" trial date.]

58 days - Last day to hand serve Summary Judgement Motions. CCP §437c.

50 days - Last day to hand serve Request for Production.

50 days - Last day to hand serve Notice of Deposition and subpoena to produce personal records of a consumer at the deposition. CCP §2025(f).

50 days - Exchange of expert information. CCP §2034 ©).

45 days - Last day for hearing Motion to Bifurcate. CCP §598.

40 days - Last to hand serve Deposition Notice. CCP §2025(f).

30 days - Last day to hand serve Supplemental Expert Witness list. CCP §2034(h).

30 days - Discovery must be completed.

30 days - Last day to file and hand serve discovery motions. (Note: This assumes the court will have a hearing date available 15 days prior to the initial trial).

25 days - Last day to post jury fees. CCP §631(a)(5).

20 days - Last day to hand serve CCP §1987c Notice for Production of Documents at Trial. (See also Evidence Code §1503).

15 days - Last day to hand serve Subpoena for Personal Records for Production at Trial (includes medical records) CCP §19853(b).

15 days - Expert discovery must be complete (parties may agree upon later date). CCP §2024(d).

15 days - Pre-trial discovery motion deadline. CCP §2024(a).

14 days - Last day for all counsel to meet and confer regarding exhibits, jury instructions statement of case, in limine motions. (Trial Setting Conference Order 2 LASC Local Rules).

10 days - Final Status Conference (LASC Local Rules).

10 days - Last day for hearing motion relating to §2034 witnesses. CCP §2024(d).

10 days - Last day to hand serve CCP §998 Offer to Compromise.

10 days - Last day to hand serve Notice for Parties to Attend Trial. CCP §1987b.

3 days - Last day to file Certificate of Compliance (LASC Local Rules)

Trial - In Limine motion heard (LASC Local Rule 7.9(d).

Trial- Trial Brief due.

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