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Thinking About the Unexpected When Preparing for Trial

By John Day

I am an optimist.   Nevertheless, I attempt to have a "Plan B" in the event things go wrong.

For example, consider a case that Rebecca Blair and I tried a few years ago.  We needed a computer in the courtroom.  But because both of us have been around long enough to know that  things can go wrong, we brought a back-up computer with the same information loaded on it that we had loaded on Computer 1.

Computer 1 died.  No problem.  Plug in Computer 2.  It worked for a day or so.  Then it died.  A third computer was brought from the office with relatively little downtime (we had the info we needed on a CD) and it survived until the end of trial.

I use this example to demonstrate that even with appropriate planning stuff happens.  If you don't plan at all, I can guarantee you that stuff will happen.

Here is an excellent blog post on this subject from a wonderful blog, Winning Trial Advocacy Tips. Titled "What's Your Emergency Plan for Jury Trials, " the post does a very nice job describing why we need to plan for the unexpected and gives several fine examples of what can go wrong at trial.

Here is an excerpt from the post:

Being a trial lawyer is kind of like being a top notch surgeon performing an appendectomy.   Removing the appendix is easy.  Heck, I could probably teach you how to do it in a 30 minute seminar.  But surgeons don't get paid the big bucks because they know how to remove the appendix — they get paid the big bucks because they know how to respond to the thousand different complications that can arise while you're removing it.

That's why you get paid the big bucks.  Trying cases is pretty easy. A high school student could probably do it if everything went according to plan. But things never go according to plan, and that's why you get paid the big bucks.  Script out your responses to all of the different scenarios before trial begins, and you'll be the lawyer representing the prevailing party, rather than the lawyer apologizing to your client.

I agree with everything but the last sentence.  Even perfect preparation cannot turn every  bad case into a winner.  But solid preparation can make it much more likely to win the cases you should win and perhaps even win a few you would have otherwise lost.
 

Full post as published by Day on Torts on January 11, 2010 (boomark / email).