It is 8 o’clock A.M., Alicia Florrick, star attorney on the “Good Wife,” a weekly television legal drama, meets a potential corporate client who within minutes retains her firm’s services. By 12 o’clock P.M. Noon, Alicia and her team of attorneys are at the courthouse in trial. By the close of the hour long program, the jury has rendered a verdict.
Fortunately, and unfortunately, this is not how it works in the real world. Although many civil trial courts have become more efficient recently, it may still take years before a case goes to trial. Fortunately, although civil cases are set for trial earlier and earlier, there is still sufficient time for an organized paralegal to ensure the case is fully prepared for the attorney(s) to commence trial.
To ensure an organized and methodical approach to preparing for trial, a paralegal should remember the following practical pointers:
Witnesses
Review the witness list and determine whether a Notice to Appear (California Code of Civil Procedure “C.C.P.” §1987(b)) or a Civil Subpoena for Appearance at Trial (C.C.P. §1985 and Federal Rules of Civil Procedure “F.R.C.P.” §45(c)(d) and (d)) is necessary to compel each witness to attend trial. A Notice to Appear may be served by mail to counsel for the party and it is sufficient to compel attendance by a party to the action or anyone who is an officer, director or managing agent of a party. Personal service of the witness is required for State and Federal Civil Subpoenas to compel the person to appear at trial.
- As a “rule of thumb” try to serve subpoenas at least 10 days before trial and at least 15 days for subpoenas demanding production of records at trial. Note, neither the C.C.P. nor the F.R.C.P. require a minimum number of days for service of a subpoena before trial (in fact subpoenas may be served during trial). The ONLY requirement is that subpoenas compelling attendance at trial must be served so as to allow the witness “a reasonable time” to prepare and travel to the place of attendance, i.e. to comply. (C.C.P. §1987(a) and F.R.C.P. §45(c)(3(A)(i).) But, delayed service could result in the subpoena’s being quashed.
- Consider whether opposing counsel might agree to accept service of trial subpoenas, rather than require personal service on each witness. Under certain circumstances, opposing counsel may agree to accept service of the subpoenas. For example, an employer may agree to accept service of subpoenas issued to its employees, providing both time and cost savings.
- As a courtesy to the witnesses, prepare on-call letters to accompany the trial subpoenas. By executing the on-call letter and providing contact telephone numbers, witnesses agree to appear at trial on specified notice by telephone (i.e. 24 hours). Otherwise, they would be required to appear on the first day of trial and everyday thereafter until called to testify.
- Whether the trial subpoenas are served by a process server or opposing counsel agrees to accept service, make sure the subpoenas are accompanied by a check for the witness fee, which includes the standard fee plus mileage from the witness’ residence, to and from the courthouse. State Court witness fees are $35.00, plus .20 cents per mile (Government Code §68093). Federal Court witness fees are $40.00, plus .565 cents per mile (28 USC §1821(b)). (Note, the amount of witness fees may change, so make sure to confirm the amounts before issuing the checks.)
Exhibits
- Contact the Judge’s clerk to determine the court’s preference for marking exhibits. If no preference, confirm whether the parties should agree on an exhibit numbering scheme. A typical scheme is for the plaintiff to use exhibit numbers 1 to 499, while the defendant uses 500 to 999 and any joint exhibits are marked 1000 and up as needed. This ensures there is no duplicate exhibit numbering. Note, in State Court the clerks typically mark the exhibits themselves as the trial progresses, while in Federal Court the clerks rely on the parties to pre-mark their own exhibits (preferably electronically).
- In preparing exhibit binders, confirm whether opposing counsel will designate different color covers for the binders for easy recognition. As trial progresses, update each binder by marking the exhibits that have been admitted (preferably in red for recognition at a glance).
- Prepare a master exhibit chart for tracking during trial. The chart should list the parties’ exhibits and any joint exhibits chronologically, to use for tracking the date the exhibit is admitted, any limiting instructions and tracking the next exhibit in order.
Additional Pre-trial Preparation
- Make sure you have the original sealed transcripts for all depositions taken by your firm and prepare a Notice of Lodging listing the original deposition transcripts to be submitted to the court.
- Your firm’s trial binder should include the following: copies of the operative complaint and answer; for all parties, their respective witness lists, exhibit lists, motions in limine, the related oppositions and orders; proposed jury instructions and verdict forms; proposed voir dire; trial briefs and any pre-trial orders by the Court; and any other items desired by the trial attorney(s). Organization of the binder may be determined by attorney preferences; otherwise it should be organized chronologically.
- Before trial, contact the Judge’s clerk to schedule a time to meet and inspect the courtroom. A pre-trial visit to the courtroom allows you to determine the layout of the courtroom and establish the foundation for a positive relationship with the clerk. Introducing yourself to the clerk before the first day of trial will provide an opportunity to gather information about the Judge’s preferences for conducting trial. Inspecting the courtroom will assist you in directing witnesses to the courthouse and the specific courtroom, and provide you information needed for setting up equipment for trial presentation.
Since we are not all actors on the set of the riveting television show, “The Good Wife,” pre-trial planning and preparation is key to a successful trial experience and positive outcome.