Published on:

Preparing to Win: What Happens Before Trial?

Carolyn Woodruff

Shows like Law and Order depict lawyers winning cases with confident arguments and saucy comments. However, charisma doesn’t make a trial lawyer successful – trial preparation does. Each case hinges on having the proper information prepared and having the right evidence to build on. Because lawyers prepare for trial behind the scenes, we don’t often see how much work goes into trial preparation.

First, the lawyer files their pleadings with the court. A pleading is a document that states the party’s position. In divorce, the lawyer files a “complaint for divorce.” If one spouse files the complaint (rather than both filing jointly), then the other will respond to it by filing answering pleadings. The lawyer must be meticulous and make absolutely sure they file the pleadings correctly.  If they don’t, it will undermine the rest of their trial preparation.

After filing the pleadings, the lawyer begins discovery.

What is Discovery?

Discovery, the second step in trial preparation, is where the lawyer obtains all the evidence for the case. The cheapest option is paper discovery.

With paper discovery, the lawyer sends requests for the documents and evidence they need. In addition to requesting documents, the lawyer also sends the opposing party interrogatories (written questions) and requests for admission. While interrogatories ask questions, requests for admission only ask that someone confirm or deny the truth of a statement under oath.

It’s important for the lawyer to send out the correct questions so that they can gather the correct information. Lawyers have to understand all of the elements of the claims they are trying to prove in order to determine what discovery to send.

How is Discovery Evaluated?

After sending discovery, the lawyer must work hard to ensure that the other side answers their request. It’s not enough to just receive the discovery either. A lawyer’s success relies upon evidence, and so they must analyze every detail of what they are sent – details win trials. This evaluation process is an exhaustive part of trial preparation.

Lawyers use an excel spreadsheet to evaluate discovery received from the opposing counsel. They must mark down any missing documents. Lawyers must ensure, for example, that they received all of the credit card statements for a date range. If a month is left out, they must record that in the spreadsheet.

The lawyer also looks at the documents themselves. For example, say the lawyer has asked for and received the January credit card statement. They must confirm that they received all pages, and that the documents are legible. Lawyers cannot just collect the evidence; they must also examine it for quality, completeness, and usability. The lawyer also must find out if any documents are incomplete, as partial documents rarely can be admitted into evidence.

What if Something is Missing?

In addition to evaluating the discovery, the lawyer must identify what they received compared to what they requested. Our firm generally sends materials stamped with a legend. If the other side did not send their documents to us in a similarly identifiable fashion, we stamp them and mark the sender and date sent. The lawyer also notes if there is a protective or confidentiality order on the document. Therefore, each document will list its status, method of delivery, date of delivery, and whether or not it has a protective order.

When it comes to analyzing discovery, no stone is left unturned. This stage of trial preparation has a profound effect on the lawyer’s ability to succeed in court.

After completing the excel spreadsheet, the lawyer goes over it. They must identify every deficiency, both of missing documents and missing pages. The lead counsel also decides which documents are necessary. This prepares the lawyer to send the letter to cure.

What Happens After Discovery?

After discovery, the lawyer sends a letter to cure to the opposing attorney. This letter outlines what the lawyer failed to receive during discovery. The lawyer usually gives about ten days when they send this. The lawyer must be prompt in sending the letter, as they may need to follow it with a motion to compel.

If needed, the lawyer sends a motion to compel, which includes the spreadsheet and the letter. This motion asks that the court order the opposing party to produce any missing information or documents requested in discovery. After the court sets a date and hears the motion to compel, the lawyer follows up and gets the documents.

Next, the lawyer must prepare the witnesses. Lawyers typically have a witness notebook that outlines the key points for each witness. Lawyers must get their subpoenas out at least 21 days before a scheduled hearing, and must follow up to make sure their subpoenas have actually been served.

Once they have their discovery and the documents they’d like to produce, the lawyer must outline their claims and what they are trying to prove. This uses research done during the complaint stage.

Ready for Trial

These preparations ensure that the evidence and witnesses are ready for trial. Lawyers must work meticulously in all stages of trial preparation, as the work they do during this time can determine whether they succeed or fail in the courtroom.

Learn more about law on my firm’s blog.

by Carolyn Woodruff
edited by Venn Crawford

Contact Information