1. Preparation, preparation, preparation
Trial is hard work because you have to be prepared. Preparing witness outlines, documents, and other evidence takes more time than you might imagine. Especially when you have deposition transcripts that you want to use because you really need to reference the page and line numbers for the favorable testimony so you can access it quickly during trial.
And then there are all the pre-trial motions, expert depositions, document and witness subpoenas and various other tasks that must be completed. In sum, you have to be prepared and it takes a lot of time to prepare.
2. All evidence are facts, but not all facts are evidence
Before a fact (such as a documents, or witness’s testimony, or aything else) becomes evidence it has to meet the basic requirements for admission into evidence. Not all facts can do this. For example, everyone knows about hearsay evidence—it cannot be admitted. But then you may not know that there are something like twenty-three exceptions to the hearsay rule. The trick is knowing which exception applies and using it.
To become evidence, a fact must first be relevant. Then all facts must be authenticated, we call this setting the foundation. If foundation is set, it must get past the hearsay rule (hearsay is anything said outside of court that is used to prove the same fact in court—all documents are hearsay for example). And finally, the court has the discretion (under Evidence Code section 352) to block the fact as evidence if the probative value is outweighed by the prejudicial effect of the fact. If your fact can make it through that gauntlet of rules, then it is admitted as evidence.
Evidence rules limit what facts are used by the court to make its decision. Be prepared to know the evidence rules if you want your facts admitted into evidence.
3. Know your burdens
Every case brought before the court requires one of the parties to prove it true—called the burden of proof. For example, in Trust and Will lawsuits, the party seeking to overturn a Trust has the burden of proof to prove a claim such as lack of capacity or undue influence. That means the defending party does not have to prove anything, they can sit back and just poke holes in the plaintiff’s case.
At times, the burden shifts to the opposing party after an initial showing by the plaintiff. But even a burden shift requires the prosecuting party to meet an initial burden of proof. When heading into your trial, it is imperative that you understand who has the burden of proof in your case.
4. Objections: know when to make them, when to hold them, know when to fold them
First, you have to know your evidentiary objections: such as hearsay, assumes facts not in evidence, relevance, foundation, etc. But just because you could object to a question does not mean that you should object. As with everything else in trial, there is strategy involved in making objections.
At times an objection can highlight a problem area with your case; you may not want to clue the court in on your problem by making an objection. Other times an objection can work against you, such as objecting to lack of foundation and then having the opposing side ask a series of questions to establish foundation that also increases the witness’s credibility.
That’s not to say you should never object, sometimes an objection is required. But know your objection strategy before you start trial and try not to object to everything just because you can.
5. Documents speak for themselves
Few people, even attorneys, know how to properly work with documents at time of trial. Everyone’s base instinct is to put a document in front of a witness on the stand and say something like “what does this document say?” or “please read the first paragraph.” That is objectionable because under the rules of evidence a documents speaks for itself—meaning you cannot have a witness testify to what a document states on its face. This is due, in part, to the hearsay rule because if the document is not admitted into evidence it would be unfair to allow a witness to testify to the documents contents. But it also has to do with allowing each piece of evidence—including documents—to stand on their own and not have a witness testify to the language contained in the documents (plus it is just a waste of time to have a witness read a document in court).
So how do you work with documents at trial? You ask questions around the document. Such as: “what action did you take after reviewing this letter?” or “why did you state one thing in this letter, but now claim something else at trial?” You get the idea. A document is just one fact that prompts questions of actions taken or not taken; information known or not known; claims made or not made. But asking about the contents of the document itself is pointless, especially where the document is admitted into evidence.
6. There can be only one Chief in this tribe
The term “case in chief” merely refers to the order in which a trial takes place. First, the plaintiff puts on a case and the defendant cross examines, but the defendant (in theory) is not allowed to ask questions that go beyond the subjects covered in the direct examination by the plaintiff. Once the plaintiff rests his case, then the defendant starts his turn and can call direct witnesses and ask about anything he wants. And the same witness can be recalled during the defendant’s case in chief, but ONLY IF the witness was not excused after the plaintiff’s turn. The defendant has to make that clear to the judge during the plaintiff’s turn (and usually the judge will ask “can I excuse this witness?” to which the defendant replies “no your honor, we would like to reserve this witness for our case in chief”).
If you do not understand this order of things, then you will have a tough time talking about issues not raised by the plaintiff. Be sure you understand the order of things in court. The best way to learn is to watch someone else’s trial beforehand.
7. Subpoena your witnesses
Witnesses are not legally required to appear in court unless they have been subpoenaed. And the court can refuse to give you more time to find the witness if he or she does not appear. The court has a lot of discretion in how it runs a trial, so you must be prepared by having your witnesses properly subpoenas and ready to testify when the time comes.
8. Evidence: keep it out
Remember all that stuff about the evidence rules gauntlet above? Well, you can use your knowledge of the evidence rules to keep facts of the opposing party from being admitted into evidence. If you know the evidence rules well, you can use that knowledge to your advantage (1) by increasing the chances of getting your facts admitted into evidence, and (2) by blocking bad facts from coming into evidence. The rules can be used as both a shield and a sword, so know the rules and force the opposing party to play by the same rules you do.
The best example of keeping evidence out is diagnoses made in medical records by doctors. Oftentimes, people subpoena the medical records and just assume that they can be admitted into evidence to establish a mental defect (which is required to prove lack of capacity). What they do not realize is that medical opinions and diagnoses are hearsay and there is NO exception to allow them to come in. Even the business records exception will not work because that exception only applies to the recordation of an act, occurrence, or event—not thoughts and analysis that cannot be easily observed. The best example of a true business record is bank statements—it takes no analysis to observe the amount of money deposited one day and the withdrawals made another day. But in-depth analysis and diagnosis takes thought outside normal observations. And it would be unfair to allow those thoughts into evidence when the doctor who did the thinking is not present in court to be cross-examined by the opposing party.
That means the only way to admit medical diagnoses into evidence is to hire an expert witness, have them review the medical records, and then testify in court as to the mental defect. I cannot tell you how many people get this wrong—even lawyers! You cannot just go to court with a box full of medical records, you are in for a shocking surprise come trial time (assuming your opponent knows the rules of evidence that is). Plus the court does not have the time to read a box full of medical records, whereas an expert can synthesize the information and present a detailed synopsis for the court to better understand and apply at trial.
9. Start your experts
Now that you know you need an expert witness for medical diagnoses, you need to be prepared to depose the other side’s expert witness. Unlike other witnesses, who must be deposed before the 30 day trial cut-off, experts can be deposed within 15 days before trial. That means the experts are usually the last depositions you will take leading up to trial, so you must be prepared to depose the experts.
Also, there are rules where you can demand the exchange of expert witness information. If you serve a demand, or a demand is served on you, then you must exchange expert witness information. And you CANNOT call an expert witness to testify at trial if that expert was not disclosed under the demand to exchange information. So identify your experts early and have them ready to be deposed and testify in court.
10. Trial is controlled chaos
You are never truly prepared for trial because you never really know what is going to happen. You don’t know for certain what the other side will do, what the judge will do, and what a witness (even a friendly witness) will say on the stand. So you have to be a prepared as possible, but then be ready to improvise once the trial starts. As with any fight, the plan goes out the window once the first punch is thrown.
