Section Review

Nicole J. Cocozza

We all know as litigation attorneys that trials are time-consuming and expensive and require substantial preparation. In the months leading up to trial, an associate can add significant value to the trial team. The associate should have a more in-depth understanding of the law and facts to help prove claims and defenses and evaluate damages at trial, as associates most of the time have done the case’s day-to-day tasks, such as drafting written discovery responses, reviewing documents and performing legal research. I have been fortunate in my career to have been a part of several firms that included me as a trial team member. Most recently, I was part of a trial team in my first federal court case, where I took on multiple roles. Below are what I believe are the six most important benefits of having an associate for trial. 

1. Be the Trial Team Coordinator: Partners are busy during the final stages of the case, and your role should be to guide the partner to trial. Your role should include making a task list of assignments that need to be done before trial. The list needs to include deadlines, motions to be filed, witness outlines, documents to be marked as exhibits, demonstrative aids, and practical items such as supplies needed. You should assign a team member to each task and review the list regularly to make sure nothing is forgotten. You should volunteer to take on any and every task no matter how big or small.

2. Be a Know-It-All: Read everything — depositions, pleadings, exhibits, key cases and significant court rulings. You need to have a strong grasp of the facts that support your case and the facts that impact your case. Remember that the complaint and answer establish the burden of proof at trial. You need to be the expert in the allegations, the evidence and the law.

3. Become an Expert on Documents: There is a good chance that you have already been involved with the initial stages of discovery, including document responses. Review the documents that have been produced in discovery by making a detailed chart of relevant documents to be used as trial exhibits. You should highlight the following in the chart: (1) the content of the document, (2) who produced the document, (3) where and when the document was used during the litigation, (4) authors of the content, (5) admissibility of the document to prove or defend the case, and (6) the reasons for non-admissibility of documents that the opposing side intends to introduce. You should ensure that all documents are easily identifiable with bates numbering, which will make it easier searching for documents. At this stage, you should master the rules of evidence before trial. An associate who is also familiar with all the documents may be asked to take a last-minute trial deposition or defend an expert deposition. You can also add value if you can easily locate key documents for cross-examination of a witness at trial and on redirect examination of your own witness.

4. Become an Expert on Legal Issues: You need to think through every stage of the trial — you will want to familiarize yourself with the most recent case law pertaining to the claims and defenses at trial. You should start by reviewing the jury instructions to become familiar with the claims and defenses. You then should start making a list of any legal issues for trial that can be developed into motions in limine — which you should take the initiative to write. If you have mastered the law and are well prepared, you will often be given the opportunity to argue legal issues that may arise at the final trial conference or during trial.

5. Take the Contrarian View: Your role should also involve challenging assumptions and taking the contrarian view. You should present alternate perspectives for the trial team to consider that will encourage them to explore solutions that they had not previously considered. Presenting alternatives well in advance can become most helpful while preparing for cross-examination of a witness.

6. Understand Courtroom Technology: Visit the courtroom well in advance to identify practical or technical issues. There will be courtrooms that have the latest technology while others do not. Make sure you know how to use the technology available and address any other practical issues in advance of trial. Reach out to the courtroom clerk to set up a time to assess the courtroom technology. You may need to schedule more than one visit to access and walk through the courtroom technology that you will be using for trial. You should also have the lead trial attorney visit the courtroom to show them how the technology works and how an exhibit will look depending on the technology used, such as a projector or television — the fewer surprises, the better.

Associates are a vital part of any trial team. More firms should be giving associates the opportunity to get involved with trial. As an associate, you should feel confident knowing you have put in the effort preparing the case for trial. Indeed, the last few weeks are consumed by motions in limine, witness preparation, trial briefs, cross-examination role-play, and rehearsal and refinement of opening and closing arguments. The reason you should be second chair for this trial is that you know the facts and law as well or better than anyone on the trial team. Associates need to make an appeal to their partners as to why they should have a seat at counsel’s table on trial day.