Trial Preparation Tools

Description

Preparing a Case for Trial: The Last 120 Days

Tools

• Case logs, to-do checklists, and countdown calendars
• Proof rubrics, motion arguments, and evidence checklists
• Pattern themes, openings, and closings

Tips

• Effective discovery
• Picking juries
• Proving facts

Competing cases and clients can keep you from bringing enough hours, analysis, and organization to readying your cases for trial.

Beth D. Osowski’s Trial Preparation Tools can help. Use its strategies, tips, forms, checklists, calendars, and idea lists to be better prepared, organized, and efficient. You receive:

Proof rubric and trial logs

• Preparing the elements of proof rubric, with model. §1:20
• The importance of refreshing your recollection of your initial client impressions. §1:40
• The best method for organizing medical records. §1:51
• Using a log to quantify pain and suffering. §1:63
• 120-day countdown calendar. Form 1-01

Trial notebook

• Checklist of contents, with models. §2:11
• Recommended tracking aids. §2:20
• 5 samples. Forms 2-01 to 2-05

Filling gaps in your proof rubric

• 10 questions for determining what is needed. §3:02
• Investigation checklists by type of case. §3:13
• Limiting interrogatories to these types of questions. §3:42
• Using the opposition’s own terms in requests for production. §3:51

Looking at the big picture

• A lengthy list of themes to choose from.  §4:44
• Case-specific theme ideas. §4:45
• When the opponent’s strategy is not obvious in discovery. §4:51
• Guidelines for effective focus groups. §4:71
• Saving an inadequately-funded case. §4:98
• Figures to know before making that demand/offer (with chart). §5:13
• Methods for divining an acceptable settlement range. §5:14

Using motions in limine

• Checklist of non-obvious prejudicial material to consider excluding. §6:27
• Overlooked but persuasive reasons to use in your motion. §6:29
• Briefing checklist. §6:32
• Pattern motions and briefs addressing relevance, prejudice, other acts, confusion, habit, collateral source rule, family history, subsequent remediation, judicial notice, spoliation, dead man’s statutes, science, learned treatises, opinion, and severance. §6:40
• Checklist for preparing for a pretrial conference. §6:91

Effective voir dire

• The application of case themes to juror selection. §7:21
• Witness considerations. §7:23
• Juror occupations and your case type. §7:25
• Checklist of experiences. §7:32
• Learning juror characteristics and attitudes, with checklist and pattern questions. §7:42
• Voir dire questions that get quiet jurors talking. §7:44
• Non-verbal clues. §7:45
• Six types of juror matrixes, with examples. §7:70

Evidence checklists

• Motor vehicle accidents. §9:30
• Medical negligence. §9:31
• Premises liability. §9:32
• Products liability. §9:33
• Wrongful death. §9:34
• Property line dispute. §9:35
• Construction dispute. §9:36

Witness checklists

• Lay witness value checklist. §9:50
• Lay witness preparation checklist. §9:91
• Expert witness preparation checklist. §9:111

Better openings and closings

• Admitting weaknesses and neutralizing negatives, with pattern language. Form 8-04
• Prohibited arguments. §11:21
• Structural outline. §11:43
• Reasonable person analogies. §11:54
• Checklist for supporting your side of the story when witness accounts differ. §11:55
• Checklist for highlighting what the opposition promised in its opening but failed to deliver. §11:82
• 30 items to avoid in closing. §11:101
• Sample lines to end your argument. Form 11-07

Post-trial aids

• Checklist of post-trial tasks. §13:02
• Calculation tables for analyzing the monetary success of the trial. Plaintiff, §13:10; defendant§13:11.
• Court error checklist to use for appeals or negotiating post-verdict. §13:21
• Brainstorming list of potential post-trial questions for jurors. §13:42
• Checklist of improvements for the next trial. §13:50
• Analyzing the accuracy of your pre-trial juror profiles. §13:51
• Considerations for deciding to appeal. §13:70

9 practice tips from the book

1. Quantifying pain and suffering. “Try to make the subjective seem a little less so with references to objective signs normal people would associate with pain, such as swelling, bruising, screaming, blood, certain facial expressions, flinching, and limping. While reviewing the file, make note of other references to pain, suffering, disability, worry, humiliation, and embarrassment. Pay attention to descriptive terms, such as deep/superficial, sharp/dull, stabbing, shooting, and burning. Scour the early medical records and list all of the different areas where the plaintiff reported pain. In addition to pain, record evidence of limitations. The injured party may be too embarrassed to freely talk about limitations in activities of daily living and self-care, but this may be the testimony that has the most impact on the jury. Use this log….” §1:63
2. Building a theme log. “The refreshing review is a good time to start brainstorming themes. Reduce your case to a couple of unifying principles that are broader than the case itself. Think of many different approaches, and then list any evidence from your review of the file that seems to support that theme. No matter the type of case, I always start with the theme of responsibility, because it seems that one overwhelming purpose of trial law is to hold culpable parties responsible. Following is a sample theme log for a typical motor vehicle accident….” §1:64
3. Past expenditures. “The one aspect of past expenditures that can be tricky is for those bills that have yet to arrive. Unfortunately, I probably settled dozens of cases in the early years only to be surprised months later with a late bill from an expert, medical record provider, or court reporter. Sometimes the problem was that I forgot about the requested service, and other times, the bill came from someone who had irregular billing practices. Regardless of the cause, doing primarily plaintiff’s work, these bills were normally paid by me rather than my client. To avoid this happening, I now ask my entire staff to keep a running list of requests that are made. Once the service is provided and the bill arrives, we check off the item. When the case is evaluated or about to be settled, we are able to make quick calls to determine the outstanding expenses. Sometimes if a case settles, we are able to cancel the service before the charge is incurred. See Form 4-07 for an example of an Expense Log.” §4:92

In the courtroom

4. Voir dire. “It seems that at the conclusion of nearly every voir dire, there is one potential juror that I failed to learn anything about: the silent juror. The silent juror always finds a way to avoid volunteering for any question that I cared enough about to follow up on. The silent juror seemingly has no relevant experiences or opinions. When faced with decisions on my peremptory challenges, the silent juror often creates the biggest challenge. I look toward the silent juror, not knowing whether the juror is the best or worst of the panel. If body language and my gut do not provide the guidance, in the end, the decision on whether or not to keep the silent juror usually depends upon how many other jurors I am confident that I want to strike. I reason that the silent juror is probably better than those I really find objectionable, but worse than those for whom I am indifferent.” §7:82
5. Effective opening techniques. “Add a little color to your presentation with some of the following 17 techniques:
   • Break up the didactic presentation with the use of rhetorical questions.
   • Highlight key points with dramatic pauses, extra eye contact, gestures, or movement.
   • Start by attacking the opposition.
   • Create a little tension to help keep attention.
   • Include short personal stories if effective and everyone can relate.
   • Place the most important items for the jury to remember first and last.
   • Double the number of adverbs and adjectives….”  §8:74
6. Witness secrets. “The last thing I usually do in preparing a lay witness is to ask: “Now, what are you most afraid you will be asked?” The witnesses frequently have something on their minds they failed to warn me about. I have also learned a lot of secrets.” §9:91

Closing argument

7. Juror reaction to injuries. “When preparing the case-specific closing argument outline prior to the start of trial, recall that jurors may observe the seriously injured plaintiff and look for reasons that the same horrific things could not happen to them. They may spend the entire trial searching for distinguishing features. Plaintiffs need to realize this potential, and rather than focusing on the victim or the harm, they should focus a good share of their arguments on the actions of the defendant. In contrast, defendants may want to capitalize on this defense mechanism and continue to stress the faults of the plaintiff.” §11:55
8. Burden of proof examples. “Lay jurors commonly believe that the standard of proof is what they hear repeatedly in the criminal trials dramatized on television. If the civil burdens of proof are not adequately explained, there is a risk that the jury will impose a higher standard than is appropriate. As percentages are not always fully understood by lay jurors, use examples that are more visual and more familiar. Consider the following more picturesque examples….”§11:56
9. Asking the jury for money. “Every time the jury awarded exactly the number I requested, I kicked myself for not asking for a little more. On one occasion, I struggled with the issue to such a degree that I found myself standing before the jury, glancing at my closing argument outline, wondering what was going to come out of my mouth to fill the blank for damages. To my horror, I heard myself saying simply that I trusted the jury to be fair. The jury’s verdict for pain and suffering was my largest ever, and according to the best information available, still the largest in that county. The award was nearly twenty-five times larger than the best settlement offer.” §11:57

REVISION 3 HIGHLIGHTS

Be even more prepared, organized, and efficient with this supplement, which includes over 15 new forms, 18 new checklists, and 48 new and updated sections.

OVER 45 NEW TEXT SECTIONS, INCLUDING:
• Key Federal Tort Claims Act Considerations [§1:12]
• Motions for Summary Judgment [§1:13]
• Settlement Thoughts Log [§1:71]
• General Personal Injury Checklist [§3:13]
• Construction Dispute Checklist [§3:20.1]
• Injury on a Construction Site Checklist [§3:20.2]
• Bookmarkable Websites [§§3:25-3:27]
• Avoiding Deposition Disasters [§§3:75]
• Hints to Working With Doctors [§3:105]
• Checklist: Checking on the Insurance Company [§4:37]
• Using the Information—The Insurance Company [§4:38]
• Technology [§§4:100-4:106]
• Considerations for Minors’ Settlements [§5:07]
• Making Demands in Tough Economic Times [§5:21]
• Oral Argument Hints [§6:35]
• Ancient Document Rule [§6:57]
• Economic Waste Doctrine [§6:58]
• Ethics of Juror Research [§7:14]
• Personal Injury Evidence Checklist [§9:30]
• Injury on a Construction Site Evidence Checklist [§9:37]
• Nursing Home Evidence Checklist [§9:38]
• Trucking Case Evidence Checklist [§9:39]
• Traumatic Brain Injury Evidence Checklist [§9:40]
• Checklist: Bringing Your Direct Testimony to Life [§9:99]
• Nursing Home Cases [§10:45]
• Damaged Credit Cases [§10:46]
• iPad Use [§10:85]

OVER 15 NEW FORMS, INCLUDING:
• Settlement Thoughts Log (Personal Injury Case) [Form 1-24]
• Completed Settlement Thoughts Log for Sample Case [Form 1-47]
• Sample Responses to Summary Judgment Motions [Forms 1-60, et seq.]
• Deposition—Direct and Cross of Police Officer Responding to MVA [Form 3-17]
• Websites to Have on Hand [Form 3-54]
• Response to Motion in Limine: Economic Waste Doctrine [Form 6-18]
• Response to Motion in Limine: Ancient Document Rule [Form 6-19]
• Response to Motion in Limine: Punitive Damages for Texting [Form 6-20]
• McDonald’s Coffee Case Key Facts [Form 7-08]
• Sample Section of Closing Argument—Damaged Credit [Form 11-09]

ABBREVIATED TABLE OF CONTENTS

Chapter 1 File Review, Proof Rubric, Trial Logs and Checklists
Chapter 2 Trial Notebook
Chapter 3 Discovery and Investigation to Fill Gaps in Proof Rubric
Chapter 4 The Big Picture: Strategies, Themes, Funding and Jury Considerations
Chapter 5 Alternative Dispute Resolution and Settlement
Chapter 6 Pretrial Submissions and Conferences: Stipulations, Motions in Limine, Trial Briefs and Jury Instructions
Chapter 7 Jury Selection
Chapter 8 Opening Statement
Chapter 9 Testimonial and Documentary Evidence
Chapter 10 Demonstrative Evidence and Tools
Chapter 11 Closing Argument
Chapter 12 Deliberations, Verdict and Judgment
Chapter 13 Post-Trial Activities

ABOUT THE AUTHOR

Beth Driscoll Osowski graduated summa cum laude from the University of North Dakota in 1987 with a Bachelor of Science in Education and received a Juris Doctorate with Distinction from the University of North Dakota School of Law in 1993, after having been ranked first in her class all three years. She served as Case Comment Editor and published author for the North Dakota Law Review, was awarded Moot Court Champion and “Best Oralist,” and was inducted into the Order of the Coif.

Since law school, Osowski has practiced law in the state of Wisconsin, representing civil litigants in many areas, including motor vehicle accidents, premises and product liability, medical and legal malpractice, contract and business litigation, construction disputes, will contests, real estate, and landlord/tenant matters. She has presented many legal seminars as well as authored dozens of outlines for continuing legal education courses, including: Trial Techniques, Selecting a Jury, Themes for Maximum Jury Appeal, Quantifying Pain and Suffering Damages for the Jury, Expert Witnesses, Crossing the Defense Medical Examiner at Trial, Rebuttals, Problematic Jury Deliberations, Building the Plaintiff’s Case, Nuts and Bolts of Discovery, Pros and Cons of ADR, ERISA Subrogation, Construction Cases, Premises Liability Cases, Legal Malpractice, Tort Reform, and Civility. She is a frequent guest on the local public television show, It’s Your Law.

In 2007, she received what is believed to be the largest jury verdict in her county’s history on a premises liability personal injury case.

Osowski is a member of the Winnebago County Bar Association, the State Bar of Wisconsin, the Wisconsin Association for Justice, the American Association for Justice, and the American Bar Association. She serves as a district committee member for the Wisconsin Office of Lawyer Regulation, is on the board of directors for the Wisconsin Association for Justice, is on the Litigation Section Board for the State Bar of Wisconsin, and serves as Chair for the City of Oshkosh Board of Review.