Setting up your case for success through trial documents

Why Are Trial Documents Important?

Trial documents may seem tedious, especially when you are trying to prep witnesses, create your opening statement, and take expert depositions all at the same time. However, trial documents are just as integral to your case as a solid voir dire outline. Your trial documents will frame your case from the judge's and jury's perspective and will serve as a guidepost throughout the trial.

Despite their name, trial documents should not wait until the time of trial to be prepared. Instead, consider holding a meeting 60 to 90 days before trial to begin planning out your case. At this point, discovery is nearly complete and the theories of your case should be clear, which makes this the perfect opportunity to (1) determine which witnesses and exhibits you will need (and disclose any that you haven't already); (2) plan out what issues or facts in your case you may want to exclude on a motion in limine; and (3) conceive of any special jury instructions you might need to shape your case. In addition, you could consider at this point whether the two sides can reach any stipulations or admit any issues to narrow your case.

Consider the sample trial plan in the above slide which lays out final discovery, anticipated issues and motions in limine, witnesses, trial schedule, etc.

Of course, things may change as you get closer to trial, but this will provide a solid road map of your case in the last few months before trial begins.

Creating Trial Documents

Each County has specific rules for creation of trial documents that need to be followed in order to "pass" your Final Status Conference or Trial Readiness Conferences and proceed to trial. These rules are occasionally updated. For example, in the past few years the Los Angeles Superior Court implemented an electronic trial binder requirement to accommodate remote appearances at the Final Status Conference in the Personal Injury Hub. Therefore, it is important to check your applicable court website to ensure you are working off the most up-to-date set of rules. In addition to county specific rules, some courtrooms have their own rules in place that can be found on the court websites. Generally speaking, however, all courts will require the same basic trial documents: (1) Trial Briefs; (2) Motions in limine; (3) Joint Statement of the Case; (4) Joint Witness List; (5) Joint Jury Instructions; (6) Joint Verdict Form; (7) Joint Exhibit List; (8) Video Testimony Designations.

One common theme that you will find across all county or courtroom rules is the requirement that parties meet and confer over trial documents and file everything jointly. (See, e.g., Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts (Effective Oct. 10), Los Angeles Superior Court (requiring all documents to be jointly prepared); Orange County Superior Court Local Rules, Rule 317 (requiring an issue conference and joint submission of trial notebook); San Bernardino County Superior Court Local Rules, Rule 411.2 (requiring all documents to be jointly submitted); Riverside County Superior Court Local Rules, Rule 3401 (requiring the parties to hold an issue conference and jointly prepare documents).)

This requirement can be extremely beneficial to your case, and there is never a downside to trying to work with the other side on your case to reach agreements where you can. Doing so will streamline your overall case presentation and show the judge that you and your opponent will be able to work well during trial, despite being on opposite sides of the case.

Setting up an issue conference or meet and confer session is easy to do, especially in the age of video conferencing. Have shell documents pre-filled in and go over your proposals with your opposing counsel one by one. During this call, you can: (1) agree on language for a Statement of the Case that is not partial to either side; (2) fill in realistic time estimates for witnesses; (3) ensure all applicable jury instructions are included on the list; (4) discuss terms on the verdict form; and (5) implement stipulations on authenticity/admissibility on the exhibit list and delete duplicative exhibit entries. You can also discuss splitting the costs of trial and exhibit binders, trial technicians, and court reporters. It may take some time to get through everything, but will save you hours in the end and will ensure you are fully complying with the rules in creating your trial documents.

In addition to the above, it is important to stay on top of the other trial documents as well, including trial briefs, motions in limine, and video testimony charts. Consider whether your case is one that merits the filing of a trial brief, to lay out the facts and issues of your case. Many judges appreciate having a concise trial brief to orient them to the case before trial begins. Your motions in limine need to be prepared in accordance with the local rules of court and should be narrowly tailored to seek exclusion of a specific piece of evidence or testimony so that it is clear what the judge will be ruling on. Finally, video testimony charts are a great opportunity to use pre-recorded deposition testimony of non-retained medical doctors and retained experts in lieu of live testimony, or to play key pieces of testimony during your case in chief of the opposing party or their witnesses. (Cal. Code Civ. Proc. §2025.620.) Make sure to keep your designations concise and to the point, as opposed to over-designating, and provide easy-to follow charts for the judge to review designations, objections, counter designations, and provide their rulings, such as the above captioned.

Consider trial documents as a vehicle to drive your case towards success. Clean and well-prepared trial documents will focus your case and keep you on track. Take the lead on creating trial documents and reap the benefit of a well-organized trial.