The hard work comes before trial

There’s much the parties can do before trial to make sure they are fully ready for trial

2025 November

When you try a case in my department, you can expect it to take a few days less than your trial estimate. I do everything I can to make sure things go as efficiently as possible. In addition to my efforts, there’s much the parties can do before trial to make sure they are fully ready for trial. This column will cover several issues that I believe can help accomplish that goal.

Pick up the phone

A fresh complaint lands on defense counsel’s desk. In all likelihood, there’s also an investigation file and other documents prepared by the client or insurance carrier. While it is certainly important to review these materials to determine the nature of the claims and the status of fact gathering, I would argue that the best resource is not in these documents – it is the name and phone number in the top left corner of the complaint.

The same is true for Plaintiff’s counsel. A few weeks after serving the complaint, you get served with an answer. Your first impulse might be to send out a round of discovery. I would urge you to do something different. Pick up the phone and call the newly appointed defense attorney.

Some questions and topics for this first conversation: What can you tell me about the case? How is your client doing now? What information can I get you informally now? What will you need before we can have meaningful settlement conversations? Are there any coverage issues that need to be resolved? What are the policy limits?

At this juncture of the case, each attorney only knows the information that’s been provided to them by their client or is publicly available – neither knows exactly what the other side knows. You might think you can get that information through discovery, but most experienced litigators know that discovery can be time consuming, costly and inefficient. As noted above, the early phone call I am urging accomplishes several things: It fills in the blanks, facilitates early informal discovery and can set the stage for settlement discussions. But perhaps the most important thing the early call can do is establish a rapport between counsel and, hopefully, even trust. Establishing this rapport and trust early on can, and I would argue most likely will, pay dividends for both parties throughout the litigation process and, should the time come, at trial.

Some of the most hard-fought trials I’ve seen were between attorneys who not only respected each other, but actually got along. Their familiarity and trust allowed them to focus on what counted – the dispute between their clients. Think about it. Do you want the jurors to focus on how much the lawyers are fighting each other or the facts of the case?

Prepare every case as if it is going to trial

It’s a fact of life: Most cases settle. There’s another fact of life that most every litigator has experienced, likely several times: The case you are “sure” is going to trial ends up settling. Sometimes it’s a week before trial, sometimes it’s the night before trial, sometimes it’s with the jury waiting in the hallway. The converse is also true: The case you are sure will settle… doesn’t. The bottom line is this – you never really know what cases will settle and what cases will go to trial. The best practice is to work up every case as if it is going to be tried.

If your practice is sending out generic boilerplate discovery that seeks everything under the sun along with dozens and dozens of contention interrogatories, I would suggest you reconsider that approach. I would submit that, in most cases, this discovery rarely reveals anything useful. I would also argue that the most common consequences of boilerplate discovery are time-consuming meet-and-confer letters and motions to compel. Is your goal really to spend time on discovery disputes? From my side of the courtroom, I hope not. Instead, focus on the goal: being ready for trial.

With trial in mind, let your discovery plan be guided by the verdict form. What do you actually have to prove? What will be the best evidence to prove an issue? Who will be the best witnesses to testify as to necessary facts? Being ready for trial also means having well-prepared experts. Get them on board early and find out what information they need to form their opinions. Get a wish list from them of documents they would like and questions they would like answered in discovery or deposition. Now that you know what evidence you need for trial, tailor your discovery to get it. Keep in mind that just getting your hands on something in discovery doesn’t mean it is admissible. If you want to have important documents introduced at trial, come up with strategies to establish their admissibility as part of your discovery plan.

An aggressive and tailored discovery plan does two things: First, you are going to be ready for trial; second, your opponent will know you will be ready to try the case if it doesn’t settle. Do you think that might make a difference in settlement negotiations? To paraphrase Samuel Johnson, nothing focuses the mind like a hanging. If you have taken the lead in discovery and demonstrated not only your desire but also the ability to try the case, your opponent will have every reason to negotiate aggressively if they have known weaknesses in their case.

A note on discovery disputes. Remember the advice above? The part about picking up the phone? Before drafting the meet-and-confer letter, call opposing counsel. “Hey, I got your discovery responses. I want to make sure we’re on the same page. The thing I’m most interested in knowing/getting is…” Reliance on the rapport and trust you established and nurtured early on will yield significantly more than a letter threatening a motion to compel. As most bench officers will tell you, the meet-and-confer process by way of antagonistic letters falls far short of the required meaningful effort to seek compromise.

Hopefully, you respond substantively and in good faith to all discovery so there won’t ever be a need for a meet-and-confer letter addressed to you, but in the event you do get one, the same rule applies: Pick up the phone. Find a reasonable compromise to avoid unnecessary motion work.

Motions in limine

So, your case didn’t settle. At least, not yet. Your calendar says deadline to file motions in limine is around the corner. From my perspective, it seems like every litigator has their own set of standard motions in limine that they file in every case. It also seems like no one ever actually meets and confers on them. In most cases, several motions are unopposed or only have conditional or limited oppositions. In many cases, both parties bring the same motion.

As a trial judge, this means the parties didn’t have a legitimate meet-and-confer session. This is often further evidenced by the meet-and-confer declaration that attaches a generic letter setting forth little more than a list of intended motions and a request for a stipulation by close of business the following day. Consider setting a date for both parties to exchange a substantive description of motions at least a week before they are due and offering times for an actual conversation to discuss potential stipulations. The time spent now will avoid unnecessary time spent writing, opposing and arguing motions.

As for the subjects of motions in limine, a few suggestions. Limit the motions to evidence you want to exclude. Don’t file motions asking the trial court to apply existing law. For example, don’t ask the trial court to apply Sanchez or request sufficient time for voir dire or requesting mini-openings. Sanchez is the law, the right to adequate time to conduct voir dire is well established and the right to mini-openings is guaranteed by statute. If you feel compelled to explain the law that the bench officer almost certainly already knows, put it in a trial brief.

I suspect that legitimate meet-and-confer efforts will result in stipulations on: Kennemur, excluding witnesses/evidence not produced in discovery, limiting past medical expenses pursuant to Howell, and excluding settlement discussions and liability insurance. In addition to these stipulations, I would venture to guess that you might also be able to reach agreement on several other issues, saving everyone the time associated with unnecessary motion work.

The pre-trial meeting of counsel

Now it is time for the pre-trial meeting of counsel. Take the lead – prepare and share first drafts of the trial documents and propose dates for an in-person meeting. Ask that opposing counsel propose revisions and additions before the meeting. To ensure the meeting is productive, make sure that the trial attorney, not their second chair, attends the meeting. Show up with a fully prepared trial binder and a set of exhibits.

Some pointers on the exhibit list: Don’t include discovery responses or deposition transcripts on the exhibit list because they aren’t exhibits. Don’t include “all correspondence” or 100 photos in a single exhibit. Identify the letters and photos you expect to use and identify and group them logically. As part of this, work with your experts to determine which documents they will want to have available at trial.

If both parties will be relying on the same document, don’t list it twice. In personal-injury cases, don’t include 10 years’ worth of medical records if there’s only a handful of visits that are at issue. What about documents that you “might” need to introduce even though you don’t think you will? Again, the relationship you’ve developed with opposing counsel comes into play. Strike an agreement that the exhibit list reflects a good-faith effort to identify all documents the parties expect to use, but other documents may be added as needed.

Regarding the exhibits themselves, propose stipulating to the authenticity of any documents that would otherwise require a custodian of records to testify. Consider stipulating to the admissibility of any other documents and photographs that will undoubtedly end up in evidence so that they can immediately be published to the jury. To avoid confusion, inform the trial judge of any stipulations.

If you expect to use exhibits during your opening statement, this would be a good time to raise the issue before you invest too much time. In my department, I will allow the parties to use exhibits in opening statement so long as they have a good-faith belief they will be admitted into evidence, but I would recommend confirming your trial judge’s practice.

As for witnesses, go through each one and discuss the scope of their testimony. Again, if they are only being called to establish foundational facts or undisputed issues, consider a stipulation. Raise any issues regarding witness availability and whether some may need to be called out of order.

Generate a list of proposed jury instructions that is overinclusive so that any potentially applicable instructions are in the binder. It is much easier to pull a jury instruction from the binder than to scramble to print them out at the last minute. As for special instructions and modifications of CACIs, most bench officers are reluctant to go beyond standard CACIs without a strong showing of good cause or a stipulation of the parties. Accordingly, you may not want to spend unnecessary time drafting special instructions, absent extraordinary circumstances.

In my department, I don’t read the statement of the case if mini-openings are requested. If you won’t be doing mini-openings, the statement of the case should be brief and non-argumentative.

There are CACI verdict forms for the overwhelming majority of claims and defenses. Again, most bench officers prefer using them, so only propose modifications if they are absolutely necessary. Once you have an agreed-upon form, go through each question and confirm the directions following each answer provide the appropriate guidance as to what the jury is to do next. The caption of the verdict form should also not include any dismissed parties or “Does,” and should not have a firm listed in the caption or as a watermark in the column.

The final status conference and final words

Most bench officers require trial counsel to appear in person at the final status conference, so plan accordingly. Because significant decisions may be made at the FSC, including stipulations, argument and rulings on motions in limine, rulings on objections in deposition designations, and other orders, I would strongly urge that you have a court reporter present as well. Of course, your trial binder should be complete and you should know everything that is in it. Be ready to discuss all aspects of the trial at the FSC. If you have followed the foregoing suggestions, my guess is that you will be.

If anything comes up that needs to be addressed after the FSC, you can say the words that every bench officer loves to hear, “Opposing counsel and I have a very good working relationship. I’m sure it won’t be a problem to get that done before trial.”