My last blog entry discussed various aspects of the settlement process.  If you can not arrive at a meaningful result for your client, you must head to trial.  This blog post discusses preparation for trial as well as the trial process itself.


One of the most important weapons of any trial lawyer is the reputation of willingness to bring appropriate cases to trial. Of course, a lawyer must develop a reputation for handling cases in the courtroom with skill and ability. The most important part of a reputation is acknowledgment of opposing counsel that you have the courage to take the case to trial and await the verdict of the jury. It is an unfortunate fact of life that many lawyers today hold themselves out as litigators, yet act primarily as settlers or brokers of cases. The insurance industry and defense counsel recognize that these attorneys will take whatever steps necessary to avoid a trial, meaning that the case will be either settled at a discounted basis or referred to competent trial counsel, rather than taking the case to trial. The defense industry preys on attorney greed by often negotiating substandard settlements with the lawyers who will discount the case rather than seeing the case passed on to lawyers who are willing to see the case through to trial. Of course, the most important aspect of representation is one of professional integrity in the representation of the client, dealing with opposing counsel and appearing before the Court.


Successful results, be they through settlement or verdict, depend on thorough trial preparation. There is no question that the more rigorously counsel prepares a case for trial, the easier it will be to negotiate favorable settlement. When enough cases have been tried to establish your reputation as a lawyer willing to advocate for his client at trial, settlement on your terms will come more easily. It is extremely important that plaintiff’s attorneys make a practice of occasionally trying some of their better cases of liability and damages, rather than falling into the rut of settling all the good cases and trying the bad ones. It is true that the problem cases more likely will come to trial, but insisting on a fair settlement number and taking the case to trial if such a number is not offered, will enhance your ability to achieve fair compensation in more cases. If you only try the most difficult cases, this will only serve to diminish your reputation as a trial lawyer with a result that settlements become more difficult rather than easier as your career progresses.  The following categories contain basic organizational tips which may help you prepare more efficiently for trial:

Trial Checklist

Organization is key at trial. In order to more effectively prepare for trial, you want to make sure that all your bases have been covered, and that you can find anything you need when you need it. A trial checklist is helpful in this regard.

Witness Contact Information

Scheduling witnesses is one of the more difficult aspects of managing a trial. The more witnesses you have, the more time consuming and stressful witness management becomes. The reason is that you can not be sure when a witness is going to testify. So what you need to do first is to determine how you want to present your evidence, which then helps you determine the order of your witnesses. Once you determine the order, you will have a better sense of who is going what day and whether it will be in the morning or afternoon.

Be sure to create one document which contains all your witness contact information. Include work numbers, home numbers, cell phone numbers and any other means of contact with your witnesses. The reason for this is that you may need to get a hold of them on short notice to testify. Whether it be the disinterested, but necessary eyewitness who does not care to take several days from their life to sit in a courtroom or your out of town expert whose plane you are awaiting so that you can put him on the stand after the lunchtime recess, you need to have a direct link to these people.

Exhibit Checklist

Create a master exhibit checklist which lists all the exhibits you want to introduce at trial. Then, look at your witness list to figure out the individuals through which you will introduce such exhibits. Consider numbering the exhibits in advance so it is one less thing you have to fumble with at trial. Then create a column on your master exhibit checklist which indicates whether the exhibit has been admitted into evidence.

Trial Notebook

A trial notebook is very helpful in terms of maintaining organization. It provides a centralized location where you may keep many of your important trial documents such as pretrial motions, notes for voir dire and opening/closing, examination outlines, etc.

Motions in Limine

Think long and hard about the motions in limine you want to bring, as well as what motions you expect to see from the other side. Obviously, such motions are case specific. However, you need to consider filing a motion if you are at all concerned a piece of evidence may be introduced or excluded against your wishes.

Not only do you need to be concerned about whether evidence will be admitted or kept out, you also need to be concerned about whether the means by which evidence is presented or summarized in opening/closing will be permitted. For example, at one trial in which I was involved, the presiding judge prohibited us from using a PowerPoint presentation in our closing statement. The PowerPoint was structured in such a way as to present certain medical records which were introduced at trial. Further, trial testimony was summarized on other slides. The judge ruled that the PowerPoint presentation looked too much like an exhibit as opposed to a persuasive closing argument. We argued the general rule of thumb that “if you can say it, you can write it [on a chalkboard or posterboard for example].” Further, that there was no real difference between writing words on a board and displaying typed words on a screen. However, the judge did not agree. Consequently, we will consider filing pretrial motions (or otherwise addressing this issue during the pretrial conference) from now on which addresses our ability to use PowerPoint during opening, closing and during trial.

Your Client

Your client need not dress as if they are in church. If your client is a metal fabricator who has never worn a suit a day in his life, he should not start now. However, it goes without saying that the client needs to dress neatly and be well groomed. The client must understand that the jurors’ eyes are on him or her at all times. While the client should not dress as if he or she is attending a funeral, he or she should project a funereal or solemn expression. Your client should not be caught laughing or joking around with friends or family members during the trial. When our client is a cigarette smoker, we ask that they not smoke anywhere near the courthouse (and even then we recommend that they refrain from smoking in public places during the pendency of the trial).

Voir Dire

Voir dire is a crucial stage of the trial. Not only do you select the jury, but you also get to educate the jury about your version of the facts. This is also the time at which you begin framing the case as a substantial one worth large sums of money. Do not forget to explore the issue of damages with the jury. You need to know the attitudes and opinions of jurors about giving money. As David Ball notes, during trial, it is difficult and often impossible to change the mind of a juror who does not believe in awarding damages for pain and suffering or punitive damages.  DAVID BALL, DAVID BALL ON DAMAGES: A PLAINTIFF’S ATTORNEY’S GUIDE FOR PERSONAL INJURY AND WRONGFUL DEATH CASES xix (Kenneth S. Broun, et al. eds., National Institute for Trial Advocacy 2005), p. 36.  When you fail to identify these jurors in voir dire, you can be setting caps on your verdict size before the trial even starts. Worst of all, jurors who dislike high damages are more likely to decide against you on liability, as they know that’s the surest way to avoid giving a large award.

When talking about damages, David Ball suggests exploring 3 categories of harms: immediate harms (ex. broken arm), consequences of immediate harms (ex. pain, stiffness, inability to work or play with kids), and measures to fix or help the harms (ex. rehabilitation, therapy). You want to ask if anyone on the jury has ever suffered similar harms (or known someone who has), what the consequences were of the particular harm, and the steps they took to correct the harm. In relating these questions to your client, you are informing jurors about the needs of your client, and you are obtaining information from them about how they view damages.

Most judges are not going to let you get specific about the amount of money a juror would or would not award in particular case. For example, you may have a hard time asking, “what problem would you have sitting on a jury where you were asked to award $1 million?” David Ball suggests another more even-handed approach: “Mr. Juror, at the end of this trial, if you think it will take fifty dollars to fix, help, and balance all John’s losses, but if you know that John wants much more than fifty dollars, what trouble would you have ignoring what John wants and deciding on a verdict of only fifty dollars, without feeling sorry for John?” Jurors will say they will have no trouble. Then ask, “Now to be fair, here’s the other side of that question. If you decide it will take, say, half a million dollars to fix . . . John, tell me what trouble you’d have deciding on a verdict like that without feeling sorry for the defendant, who’ll want it to be much smaller.” If your judge will not allow any form of “staking out,” ask general questions such as “do you ever feel that there should be a limit on how much money a jury should be allowed to give? If so, why?” These types of questions will at least identify jurors with upper limits in mind. See Ball, supra, at 31-74.

Opening Statement

“Opening statement shapes the mind-set that jurors cling to throughout trial. This stubborn mind-set powerfully influences verdict size.” Ball, supra, at 75. David Ball notes that jurors often come into a trial thinking that their job is to decide who is right and who is wrong. Id. It is important to get them thinking of themselves as fixers and balancers of harm. Id. You want the jury to realize at the outset that the case is about harm and money. Id. Consequently, you need to remember to focus a significant portion of your opening on damages. Too often attorneys focus on establishing liability, only to leave the jury wondering with regard to the harm that has befallen your client.

As in voir dire, describe for the jury the immediate, direct consequences of the wrongdoing. In other words, describe the broken arm or wrongful death in acute detail. Then, describe the consequences of the immediate harm. For example, the broken arm caused pain resulting in an inability to work; the death caused the loss of a loving parent, etc. Ball, supra, at 171. Lastly, tell the jury what they can do about it. Explain in detail how the jurors can fix, help and make up for the consequences of the harm.. Go into detail about what your evidence shows regarding how money can be used to fix, help, and make up for the harms. Id.


Remember the goal set forth by David Ball – spend half your time on harm and half on money. Among other things, this means you need more witnesses than you may think to speak to harm and damages. Ball, supra, at 89. Look for such people early on in planning for trial.

Who and How Many?

You should not use your client as a main source of testimony about his harms or you will turn him into a whiner. Id. Jurors do not give much money to whiners. The superior practice is to get your client to talk about how he copes with and tries to overcome the problems that other witnesses describe. Even if your client is not a whiner, he is not a neutral witness so he often carries less weight than others. Id.

A spouse, if there is one, obviously should testify. Spouses are often the most knowledgeable with regard to how your client has been harmed. However, spouses have obvious interests in the result of the case, so you need other witnesses to corroborate. More distant family members, especially those that do not stand to gain, are effective. So are neighbors, co-workers, friends, clergy, and anyone else familiar with the situation. Id.

The next question is how many damage witnesses should you have? The number of harms witnesses should equal the number of liability witnesses. Three or four is a minimum for a small case. In larger cases, ten or fifteen witnesses is better. However, the witness’ testimony should not be repetitive. Different people see different things so you want to make sure that the witnesses you select convey their individual views of the harm caused. Further, the best way for witnesses to convey harm is through storytelling. It’s not enough for a witness to testify, “John’s just not the same man he used to be” or that, “John used to run but now he can’t.” Ball, supra, at 90. Such assertions do not register with jurors. They want to know how he is different. They want to hear stories about how John’s inability to run impacts him. For example, “John used to play catcher in softball games with his sons and race around the bases to tag them out. But last week, he could only watch the game from the bleachers, and had to leave after a couple innings because the pain in his back was too bad.” Id. Not only will such a story resonate with the jurors, but there is little defense counsel can do with this testimony in the way of cross examination. Id.

Use of Technology and Exhibits

As in mediations, good use of technology and exhibits at trial can be extremely effective. As the popularity of television has grown, so has the public’s reliance on visual cues as a means by which to absorb information. Consequently, it is no longer sufficient to simply present witnesses and argue to a jury why your client should win. Rather, you also need to show the jury why your client is entitled to a monetary award so they can see it with their own eyes. As technology becomes more advanced, so does the means by which we can present evidence.

A few years ago, this presenter was involved in a trial in Kentucky in which the nurse-midwife who was caring for our pregnant client during labor and delivery continued to administer pitocin (a drug used to induce labor) in the face of uterine hyperstimulation and other ominous signs. As a result, we contended that the baby was deprived of oxygen during the labor and delivery process, thus causing numerous severe developmental disorders such as cerebral palsy and requiring full-time care. One of our key exhibits was the fetal monitoring strip. The problem with such an exhibit used to be how to effectively display the strip, which can be hundreds of feet in length, to a jury. It used to be that you had to blow-up key portions of the strip. You can imagine how unwieldy this can get. Companies which create medical exhibits can now digitize an entire strip. You can download the strip on to a laptop, connect it to a projector and show the jury the strip on a big screen. The program allows you to scroll through the strip, as well as mark notable events such as when medications are administered, when the mother reaches the next stage of labor, etc. The exhibit has been such a hit, one of our experts even asked us where we got the exhibit, as he said it would make a great teaching tool for his students.


PowerPoint can be as effective at trial as it is in mediation. It allows you to show the jury key pieces of evidence on a big screen. It is particularly useful for showing photographs, x-rays (and other similar films) and documents. PowerPoint is superior to creating blow-ups particularly when you have a document with a lot of language or illegible writing such as contracts and medical records. As previously mentioned, you can “call out” and enlarge the key word(s) or sentence(s) with PowerPoint, thus immediately directing the jury’s attention directly to the crucial language. Similarly, you can use a “text box” and type in the word or words deciphering illegible language for the jury.

The next best thing to powerpoint is simply scanning the important documents on to a laptop in .pdf or .jpg format and using a program like Adobe Acrobat or Microsoft’s Photo Editor to open them up. The magnifying feature allows you to magnify the portion of the document containing the important language. Similarly, ELMO makes other devices that are gaining popularity in courtrooms, most notably overhead projectors of all shapes and sizes, which allow you to display relevant documents or other evidence.

Blow-Ups and Other Exhibits

Though this presenter is a big fan of using technology to present your case, that does not mean you should forget the basics. Creating blow-ups can still be an effective way to present evidence, not to mention the fact that it is cost-effective. If you cannot create a blow-up in-house, there are companies like Kinko’s which can enlarge relatively simple items such as black and white documents, as well as mount them on boards if you so desire. If you have more complicated evidence to blow up such as x-rays and color anatomical charts, it may be a good idea to consult a company which specializes in creating medical exhibits. They can create a board for you with all the bells and whistles for a few hundred dollars. Be sure that the company refrains from taking creative license with the board by inserting extraneous language or graphics which may render the board objectionable and inadmissible.

Another effective and simple technique this presenter has used is to create “jury notebooks.” In previous trials, I identified pertinent medical records and other documents and created an organized notebook replete with a table of contents and tabs. In addition, all the documents have been Bates-stamped for easy reference. Then, I simply made copies for myself, every juror, the judge, opposing counsel and the witness taking stand. That way, each juror has a copy of the document you are discussing in their own hands, which they appreciate. It conveys the notion that you want them to see the records, that they support your case and that you have nothing to hide. While we also flash the relevant document on to a big screen by way of laptop, the juror notebooks provide a good back-up, particularly if you run into technical difficulties which is the primary drawback of the use of technology at trial.


Most jurors have made up their mind about the case before you begin your closing. Nevertheless, what you say in closing is crucial to your case, especially with regard to your damages. However, to be effective, you need the jurors to listen to you. To do that, tell the jurors that they will have two jobs after they enter the deliberation room. Ball, supra, at 103. They’ll be surprised because they probably think they have one job – decide the case. Id. Tell them that their other job is to explain to the other jurors why they feel the way they do about the case. Id. Tell them you are going to give them some ways to help them do just that. Id. The jurors will pay attention to you because you have just tapped into a common juror fear – speaking in front of a group of people they don’t really know. Id. Consequently, they will look to you for guidance. This technique is most effective if employed during the second part of your closing if you close first and last. Ball, supra, at 104. This way, they may not listen as closely to defense counsel’s closing. Id.

Calculation of Damages

As in every other stage of trial, it is important to emphasize damages in your closing. In cases where liability is a complex and hard fought issue, as is commonly found in the medical malpractice arena, it is easy to get caught up spending most of your time addressing liability.

In order to obtain large verdicts, you need to arm jurors with the tools they need to give you what you ask for. You are probably not going to persuade jurors who are already against your position. So you are really speaking to those jurors that are already on your side. Essentially, you will be asking these jurors to persuade the hostile jurors for you in the deliberation room.

For example, if you have a life-care plan, you need to do everything you can to protect that figure because any damages awarded for intangibles are often based, in part, on the tangible damages total. Ball, supra, at 107. To do so, prepare a line-item chart of every important life-care item or group of items. Show the cost of each and create a blow-up or PowerPoint slide with this information so the jurors can view along with you. Suppose the list begins as follows:

Speech therapy, 6 years                                       $13,500

Leg braces, lifetime                                               $24,567

Pain medication, lifetime                                     $57,400


TOTAL                                                                     $3,527,450

Tell the jurors that the TOTAL figure is the amount you need to take care of John Smith. Let them know that you can’t tell them what amount to give, that it is up to them. Id. Tell them that if there is something on the life-care plan they do not think John should have, to cross it off the list and reduce the plan by the corresponding amount. Id. If you have removed any unnecessary or “luxury” items from the plan, and if you have made sure every price is legitimate and sounds reasonable, then this method will help you from losing life-care plan money. Id. It makes it very difficult for the hostile juror to simply say, “$3 ½ million dollars sounds like a lot. Let’s give him half of that,” because it will be hard for that juror to explain what he would remove from the plan and why. Id.

You’ll also want to create a calculation of damages chart for intangible losses. For example, separate the losses as follows:

Past loss of use of leg                    $ ___________

Future loss of use of leg                $ ___________

Past physical pain                          $ ___________

Future physical pain                      $ ___________

Past emotional suffering               $ ___________

Future emotional suffering           $ ___________

Past loss of life’s pleasures            $ ___________

Future loss of life’s pleasure         $ ___________

Ball, supra, at 108. This attorney has created such charts with blanks left for counsel to suggest and write in a figure. Take time to explain the dramatic impact each element of human loss has had on your client. Repeat several times how the pain is the worst harm in the case. Ball, supra, at 106. This allows the friendly jurors to explain to hostile jurors why they want to put such a large number on the pain element – because it is the worst harm in the case. Ultimately, you want to empower the jury when they go to deliberate. Consequently, be sure to tell them you are only suggesting a figure for them to award your client and that they are free to select an entirely different (and even higher) figure than what you’ve quoted.

I hope you have enjoyed my 6 part series on how to maximize your settlements and verdicts.

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