There is nothing quite like the eve of trial. It isn’t like studying for any old exam…
The night before an exam you are trying to cram a semester’s worth of information into the last precious hours before you sit down, open your brain, and dump out everything you know.
But trial is different. In some ways, it is better than an exam, because you know the questions because you are asking them. However, no matter how well you prepare your witness, will they answer the questions the way they should? Will they testify exactly the way you envision they should?
Every attorney, at some point in time, dreams of making the argument, persuading a jury to decide in favor of your client. Yet when you dream of winning that case, you don’t think of how much pressure there will be, how many eyes will be on you, and how the lives and fortunes of your clients will be in your hands.
So let’s set the stage:
You have been living this case for a year/18 months/2 years/more. Every day, for hours on end, you have studied, reviewed, investigated, and questioned. You have sent out reams of paper in discovery, taken hours of depositions, and argued motions in court ranging from the mundane to the dispositive. In some ways, you know the case better than the people who lived the events in question.
You begin to set your witnesses. You outline the testimony, go over it with the witness, making sure that all of the points that need to be made are covered. The elements of your case need to be hit in an orderly fashion. If you are claiming there was a breach of the contract, was there a contract in the first place? Did your client perform as he/she was supposed to? For the witnesses who will not come to testify willingly, you have served your subpoenas, but will they appear?
You get your exhibits together. What documents do you need to help you make your case? Do you have them ready to go? And more importantly, have you made enough copies for everyone? Your copy, opposing counsel’s copy, witness’s copy, clerk’s copy, judge’s copy… Are they all marked, in their binders, exhibit tabbed? Have you marked your copy so that you know what parts of each document to focus your questioning?
Ahh, the pre-trial motions. Is there any evidence you want to keep the other side from using? Maybe some evidence they didn’t produce during the normal course of discovery or testimony you know they will try to elicit solely to make your client look bad, with no other purpose? Better be ready to argue those before the trial starts. Of course, those motions were prepared and filed weeks ago, right?
And speaking of testimony or documents you don’t want to come into evidence. Brushed up on your evidence objections recently? Do you know your hearsay from your relevance from your best evidence from your leading/calls for speculation/asked and answered/outside the scope of direct? Because when the time comes, you better be ready to pull out any one of those on a split second’s notice.
So all of this is going through your mind the night before trial… and more. You know the mantra to never ask a question you don’t know the answer to, right? But what if you ask a question you do know the answer to but the witness doesn’t answer it the right way?
You know this case better than anyone else, but you are handcuffed. Seriously, it might be better if the courts just let the attorneys do the testifying because we know it all. We know what the witness should say, we know how the witness should say it, and we know how the opposing counsel is going to try to tear it down.
But then it wouldn’t be a trial.
So on the eve of trial all of this is going through your mind, trying to anticipate what will happen, knowing that for as much as you think you can control portions of the trial, the vast majority of it is unpredictable and out of your hands. What happens if you ask a question and the other side objects and the judge sustains the objection? Do you have a back-up question, a re-phrasing, some way to get the evidence in that will not be swallowed up by an objection? What if the judge had a bad night, didn’t get much sleep, and is sustaining every objection made by the opposing side and you can’t get any of your evidence in or, even worse, she overrules each of your objections and the other side gets everything in.
You have got to be on your A-game, thinking on your feet… Because you don’t have time to think these things through, to edit your response, to erase what you wrote and change your answer, or switch your (c) response to a (b).
Now, in the grand scheme of things, one little misstep isn’t going to mean the difference between winning and losing; but anything is possible. Fail to object in time and the witness gives an answer which is fatal to your case and you may not be able to repair the damage fast enough or capably enough. Or dismiss a witness one question too early and lose the right to re-call him or her and thus not get imperative evidence on the record.
All of this goes through your mind on the eve of trial. In the grand scheme of things, taking a test sure would be simpler.