Aitken, Aitken, & Cohn - A Law Corporation

Articles

By Wylie A. Aitken and Richard A. Cohn

I. PROPER ORGANIZATION AND PREPARATION OF YOUR CASE WELL BEFORE THE LAST 100 DAYS IS ESSENTIAL TO INSURE THAT THE LAST 100 DAYS GO SMOOTHLY.

 

A. Develop the Theme of Your Case in the First 100 Days.

1. Consult Jury Instructions at the beginning of your case.  

a. Determine exactly what the law is pertaining to your case and what facts you will need to prove in order to fit your case within the confines of the applicable law and to disprove any applicable defenses

b. Conduct investigation and discovery with an eye toward developing evidence that will tend to prove the facts which must be proved in order for the jury to render a liability verdict.

2. Consult expert witnesses at the beginning of your case.

a. Determine exactly what the experts will testify to based upon the facts known at the beginning of the case.

b. Determine what investigation and discovery the expert(s) feels should be accomplished so that the evidence necessary to support his/her opinions is obtained and developed.

c. Determine what strategies and opinions your expert feels the defendant's experts will use and do investigation and discovery to develop evidence that tends to undercut the anticipated defense expert strategy.

3. Do thorough investigation of all aspects of your case.

a. Interviews/statements of witnesses to develop facts of your case and gain witness' favorable disposition towards your side of the case.

b. Reports and statistics from governmental entities.

c. Reports and statistics from trade/industry associations and organizations (as well as Trial Lawyer Associations).

d. Scientific/medical literature research.

e. Obtain information from every possible source.  (In unique cases the creative lawyer will find himself obtaining information from sources he never thought would have existed prior to commencing investigation.) 

     *Examples:   "Elevator World" magazine
       Small Aircraft trade journals
       U.S. Patent Office - patent search
      Industry/trade journals and publications
        pertaining to your case

B. From the Beginning Be Aware of the Deadlines and Other Requirements You Will Need to Meet in the Last 100 Days.  Prepare Your Case from the Beginning with an Eye Toward What You Will Have to Do in the End to Be Prepared for Trial.

1. Deadlines in the last 100 days fall into four general categories.  Prepare from the beginning to be ready to deal with these deadlines in the last 100 days.

a. Discovery.

b. Experts.

c. Insuring the presence of parties, witness and documents at trial.

d. Pre-trial motions and other court required documents (such as witness lists, exhibit lists, stipulations, etc....) to be exchanged at Pretrial Conference.

2. Other requirements to be met in the last 100 days also fall into four general categories.

a. Witnesses (preparation and presence at trial).

b. Exhibits (preparation, foundation and presence at trial).

c. Jury instructions.

d. Legal research (trial brief and motions in limine).
3. Consider all the things you will be required to do at trial, prepare your case from the beginning with these in mind.

a. Pretrial motions.

b. Voir Dire.

c. Opening statement.

d. Direct examination of your lay and expert witnesses, including presenting admissible demonstrative/documentary evidence.

e. Cross-examination of opposing witnesses (and possible rebuttal).

f. Closing statement.

g. Jury instructions.

II. THE LAST 100 DAYS -- DEADLINES TO CALENDAR WHEN CASE IS FIRST SET FOR TRIAL.  (See Form re:  Trial Deadlines Attached).

 

A. Discovery Cut-off 30 Days Before Trial -- Written Discovery and Non-expert Depositions.

1. Answers to written discovery must be due 30 days before trial.  Thus, they must be propounded 60 days before trial, (65 days if by mail.)

2. Depositions (non-expert) must be set to commence 30 days before trial.  Thus, minimum notice requires that they be noticed 40 days before trial, (45 days if notice by mail).

3. Reminders ("Come-ups" or "Ticklers") should be calendared 120 days and 90 days before trial so that the above deadlines to not "sneak up" on you.

B. Expert Witness Deadlines (C.C.P. § 2034).

1. Demand to exchange lists of experts to be made 70 days before trial (75 days if by mail).

2. Exchange expert witness list 50 days before trial.

3. Supplemental expert witness list (20 days after original exchange).

4. Deposition of designated experts must be completed 15 days before trial (thus it must be noticed 25 days before trial -- and 30 days if notice is by mail).

C. Insuring the Presence of Witnesses and Opposing Party at Trial, (along with Documents).

1. Notify witnesses 100 days before trial of upcoming trial date (especially experts).

2. Subpena all witnesses and documents needed for trial at least 30 days before trial to avoid any problems with services.

3. Subpena your client's medical bills and medical records to trial 30 days before trial.
(Note:  Attempt to obtain stipulation regarding medical bills and records from opposing attorney to avoid this requirement.)

(Official deadline for serving subpena requiring appearance with documents is 15 days before the required appearance date.)

4. Meet or speak with your experts (including your own client's doctors) and advise them of trial date (and requirement that you "provide" them with a subpena to protect yourself in case an expert is unavailable at time of trial.)

5. Require opposing party/party affiliated witness to appear at trial with documents by serving "Notice to Appear at Trial With Documents" Pursuant to C.C.P. §1987(b) and (c) 20 days before trial (25 days if served by mail.

  6. For appearance without documents by party or party affiliated witness serve Notice Under C.C.P. § 1987(b) 10 days before trial (15 days if served by mail).

7. Consider subpoenaing adverse experts' file to trial in lieu of deposition.

D. Consult State and Local Rules Re:  Court Requirements Prior to Trial and Comply with All Pretrial Filing Requirements.
1. (e.g.) Orange County Local Rule 450 requires "Issues Conference" to be held 10 days prior to trial.  At the Issues Conference the parties must exchange motions in limine, exhibits, witness lists, stipulated facts, proposed voir dire, joint issues in controversy and a joint statement of the case, all to be filed with the court in connection with a "Statement of Compliance" by noon on the Friday before trial.

2. Oppositions to motions in limine due noon on the Friday before trial.

3. Jury instructions to be exchanged prior to commencement of trial.

4. Trial brief to be submitted prior to trial.

5. Post jury fees 25 days before trial (C.C.P. § 631(a)(5)).

III. ORGANIZATION/PREPARATION IN THE LAST 100 DAYS.

 

A. Familiarize Yourself and Comply with All Deadlines Noted above.

B. Trial Notebook Should Be Prepared At the Beginning of the Case. 
(See sample instructions re:  Preparation of Trial Notebook, attached.)

C. Individual Folders to Be Created for Each Witness Containing Deposition, Summary, Any Statements by the Witness, Any Exhibits to Be Used with the Witness, and an Outline of Expected/planned Testimony.

D. Preparation of Exhibits for Effective, Efficient Use at Trial.

1. Documents and photographs to be blown up or otherwise prepared for jury viewing.

2. Consider use of abundant new technology.

E. Witness Preparation.

1. Be sure witnesses are available for trial.

2. Meet with all witnesses whenever possible.  It's amazing how an in-person meeting with a potentially bad or waffling witness can turn things into a positive.

3. Discuss the planned outline of direct examination and issues likely to come up on cross-examination.

4. Be sure witnesses have reviewed their depositions!!!!

5. Consider all ways in which the witness can help or hurt you.

6. Have any deposition testimony or impeachment evidence readily available for adverse witnesses.

7. Be sure witnesses understand the importance of appearance and demeanor.

8. Remember -- by now you usually know more about the facts and the case than your expert does -- so do not hesitate to offer your own input regarding preparation for the expert's testimony.

F. Prepare for Presentation of Evidence in Prompt, Efficient Fashion in Light of "L.A. Law" Type Conditioning of Jurors  (i.e. Shorter Is Usually Better.).

G. Consider Amending the Pleadings If Necessary Before Trial.

H. Prepare Jury Instructions and Consider Possible Special Instructions.

I. Make Notes Before and During Trial of Any Thoughts and Ideas You Come up with for Closing Argument.  Put Them into a Separate Folder So They Do Not Slip Your Mind.

 

Contact Aitken * Aitken * Cohn today to learn more.

3 MacArthur Place, Ste 800
Santa Ana, California, 92707
Toll Free: 866-434-1424

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