How to Prepare for Trial: A Note

(An occasional/sporadic series, with Parts One, Two, Three, and Four.)

Here's a tip, it's not really a step.  And it's something you already know, but it bears repeating.

Start early.  Stop procrastinating.

Sometimes you'll hear lawyers say, "Well, we'll get through jury selection and opening arguments today, so I'm ready for that, and tonight I can prepare my cross-examinations for the first few witnesses."  Yes, there are times when you get stuck "winging it" like that, but that should be the exception, not the rule.  That should be the last resort, not the plan.

Because things happen.  And if you leave your cross-examination until tonight, that means that if an unexpected issue comes up out of nowhere, and the Judge asks you "Why don't you write a short memo on that for tomorrow morning?"  Then you will spend the night frustrated, staying up later than you should, writing that memo and thinking "I still need to write my cross-examination!" 

Or, when your expert flakes on you, and you have to spend the night finding a new expert, or going out to check the scene for one more thing you hadn't thought of the first few times you visited it, or when your client starts talking crazy things during the trial (like "I think I'm going to have to testify, because you're not saying what I want you to say!" but you've only gotten as far as voir dire!), it's good to know you're already at least as prepared as you can be.

Sometimes trials don't start.  We've all been there for the appearances when the cop doesn't show up, the DA is out sick, and finally the Judge has some lame excuse of why the case can't start, and you start thinking, "Blonde Justice, I followed your advice and I wasted my time.  This case is never going to start and I didn't have to write my cross-examination written yet."  But, the truth is, it can always be improved upon right?  Each time the case is on, you will read through your trial prep materials and edit them and find something you can do, something you can investigate, something you can research, a question you can tweak to make it a little more descriptive.  And, if you end up spending a few hours researching something you can't use in this trial, you'll use that information that you learned somewhere, someday, for some other trial.  That time was not wasted.

And if you truly are completely prepared, and nothing unexpected happens, God bless you, you are luckier than me.  Get some good sleep, knowing that you are as prepared as you possibly can be.  Make something delicious to sustain you through the trial - I recommend a spicy soup like tom yum gai.  The way I see it, it's the perfect trial food:  It makes your throat feel good when you're doing a lot of talking, it unstuffs your sinuses so you can hear the witnesses, you can make a big batch and easily reheat it as needed when you're busy and hungry, and, well, if you don't have time to make it, you can pick it up fairly cheaply at the nearest Thai restaurant.

There you have it, two tips for the price of one:  don't procrastinate and eat spicy soup. 


  1. Blonde Trial Practice Professor would love you for this post!! As he has said, "The number 1 thing to remember is the key to success in a trial is: Preparation, Preparation, Preparation!! :)

  2. Hey, great pointers! Gosh, I wish I got to spend more time in court...this really makes me realize how boring my job is in comparison to yours!!

  3. I don't know what you said, but I'm glad you are back.

  4. When you're prepared, you can also push the case to move at a faster pace. That will completely terrify your opposing counsel since he/she is not usually prepared to move that fast.

  5. I spent my first two years practicing in a court where everything gets marked for trial and hardly anything goes. Loads of cases are dismissed for want of prosecution. That was where I learned to prep, and not to procrastinate. We prepped our cases as if we were going to trial when we knew they weren't, and there's a benefit you don't mention here: it becomes routine. You get good at it. You can write motions in limine in your sleep!

    Concommitantly, prepping every case like it's murder takes the edge off the anxiety when you're prepping one that really will go.