Before bringing a motion, try to resolve and stipulate with opposing counsel about the matter in controversy. Courts are most reluctant to hear frivolous and unnecessary motions. Therefore, don’t schedule the motion unless it is necessary for the preparation of your case.

When the motion is other than for routine matters (i.e. motion to compel answers to interrogatories, etc.), you should provide the court with a brief and concise legal memorandum in support of your motion (i.e. motion for Summary Judgment).

Make sure to serve and file your motion pleadings well in advance of the scheduled motion so that the court may have the opportunity to consider and review your motion and legal memorandum of law in support of the motion. Be sure to check your local Rules of practice for the procedural requirements involved in bringing a motion. For this purpose, your best source of information probably would be the assignment clerk who schedules the special term motion matters for hearing.

In anticipation of your motion being granted, prepare a proposed order for the judge to sign at the special term hearing. It saves everybody a great deal of time and effort if you can bring on all motion matters relating to your case at the same time.

1. Prove the existence or non-existence of the substantive elements that entitle your client to a judgment;

2. Support your client’s version of the case;

3. Corroborate the opposing party’s version of the case; and

4. Contradict the opposing party’s version of the case.

Likewise, after discovery of all the relevant facts, you will have to analyze and weigh those facts in light of making a value judgment about them. Again, what you want to know is:

1. What can you prove?

2. Why should you prove it?

3. Who will prove it for you?

4. How will you prove it?

5. When should you prove it?

6. Where can you locate the proof for trial?

You are entitled to a wide latitude with case discovery so song as the information sought is relevant to the subject matter and appears reasonably calculated to lead to the discovery of admissible evidence.

Interrogatories

Answer opposing counsel’s interrogatories within the time allowed by the Rules. If that cannot be done, request opposing counsel to grant you a reasonable extension of time in which to do so.

Use interrogatories whenever possible. They are an inexpensive method of discovery and provide an excellent background to prepare for the taking of depositions.

Send the opposing party’s interrogatories to your client for their review. Have your client answer them in their own words. Review their answers to interrogatories and schedule an appointment for the client to go over the typewritten answers and to sign the original copy of answers.

Depositions

Schedule depositions at a time convenient to everyone. This will prevent cancellations and save everyone time and money.

Prepare yourself for the taking of depositions. Consider the lines of inquiry and questions you will want to ask of the deponent. Cover the liability and damage aspects of your case. Depositions taken of opposing parties and witnesses is permissible cross examination under the Rules. So do ask leading questions of the deponent.

Prepare your client and witnesses for the taking of their scheduled depositions. Explain to them the purpose and procedure involved in the taking of a deposition. Have them review their answers to interrogatories, previous statements, and any other documents or exhibits you anticipate will be covered in their depositions come back to haunt you during trial.

Make sure all of your witnesses (especially experts) will be available for the trial of your case. If a witness won’t be available, you may certainly want to consider taking a witness’s deposition to perpetuate such testimony for purposes of the trial.

1. Try to settle your client’s case without beginning a lawsuit.

2. If your client’s claim can’t be settled, begin your lawsuit as promptly as possible. Be sure not to have any statute of limitations problem with your client’s claim.

3. State your client’s claim and briefly and concisely.

4. Consider alternative theories of the defendant’s liability or the claim for relief.

5. Keep your addendum clause or prayer for relief reasonable in relation to the injuries actually sustained by the plaintiff.

6. If your client has insurance coverage, make sure the insurance company interposes a reply to a defendant’s counterclaim.

Defendant

1. State all of your affirmative and procedural defenses. (Check Fed. R. Civ. P.8 and 12 or your state’s comparable rules.)

2. Make any counterclaim or cross claim you may have for contribution and/or indemnity.

3. When the case warrants it, sue out your claim for contribution and/or indemnity against other potential third party defendants.

4. If the lawsuit exceeds the insurance policy coverage limits, make sure that your client is advised of the right to retain personal counsel for such excess exposure.

1. The closing argument prepared to be given at the trial;

2. The closing argument actually given; and

3. The closing argument the lawyer thinks of after.

Your careful preparation before the actual closing argument will enable you to avoid second guessing yourself later. In effect, you will be preparing for your closing argument three times — now — just prior to the trial — and shortly before you will actually be giving your final argument.

The closing argument should be the destination point for your case. It should form and structure the case you present to the jury. The final argument should not only be the goal of your trial plan, but should likewise be the focal beginning point for you to chart the course of the trial.

The purpose of the closing argument is to PERSUADE the jury that after listening to all the evidence presented by the parties your client is entitled to a verdict in the case. Therefore, your primary goal is to answer the basic questions of WHY your client is entitled to the verdict you are asking for; or conversely, if you are the defendant’s attorney, WHY the plaintiff is not entitled to a judgment. Prepare an outline of your final argument with the persuasive key facts or points to answer this question of WHY you are entitled to the jurors’ verdict.

Normally, at this point in your early preparation, the damage aspects of your case are not yet clearly defined. More than likely, you will have incomplete data and information for the specific details of your final argument (i.e. the plaintiff’s healing period has not been completed). At least, think about it. Plan for this important consideration now rather than later. What will you have to do before trial to prepare for proving the damages in your case (or conversely, the lack thereof)?

For further discussion about the closing argument, see Chapter 21. Plot the course of your destination by preparing the trial plan for your closing argument to the jury. Careful planning of your final argument now will smooth out the discovery preparation for the trial and the trial itself. Outlining your closing argument NOW will give you the necessary direction and goal for you to achieve each step along the way to a successful disposition of the case.

Legal research helps you to build your model trial plan from several viewpoints:

1. It may uncover alternative theories of recovery or suggest to you likely theories of defense in the case which you may not have considered before.

2. It helps you to avoid a dirrect verdict. as you will now know the necessary elements you must prove for prima facie case. A prima facie case consists of sufficient evidence for that type of case to get the plaintiff past a motion for a directed verdict in a jury case, or a motion to dismiss in a non-jury case. It simply means the plaintiff’s evidence is sufficient to allow the case to go to the jury and requires the defendant(s) to proceed with their case.

3. You will have essentially completed your requested jury instructions at a time when you can best afford to do so; rather than during the course of trial, when you are not able to devote time necessary for this important matter.

4. Finally, you know well in advance where you stand as to the applicable law of your case to prepare for a better possible settlement of your claim.

Most jurisdictions have adopted standard approved jury instructions for different kinds and types of civil cases. This could be the logical and natural place for you to begin your legal research for the necessary elements to prove a prima facie case.

I would strongly urge that you prepare and complete your requested jury instructions now, as a formal pleading, ready to give to the trial judge and your opponent at the time of trial. I suggest that you prepare any memorandum of law or trial brief that will be necessary to support your theory of the case or to confront any special problems you might encounter.

Proper legal research provides form and shape to your case by building a solid legal basis for the foundation of your model trial plan.

The investigation of any case should focus on collecting and analyzing FACTS which will:

1. Prove the existence or non-existence of the substantive elements that entitle your client to a judgement;

2. Support your client’s version of the case;

3. Corroborate the opposing party’s version of the case; and

4. Contradict the opposing party’s version of the case.

The primary thrusts of your investigation should be to concentrate on obtaining all relevant witness statements and physical evidence. A written statement, signed by the witness whenever possible, is certainly more preferable than just a witness interview. Don’t forget to consider taking a negative witness statement (i.e. that an alleged witness is in fact not a witness at all).

After you have assembled all of the relevant facts (when both investigation and discovery have been completed), you will have to analyze and weigh those facts in light of making a value judgment about them. What you want to know is:

1. what can you prove?

2. Why should you prove it?

3. Who will prove it for you?

4. How will you prove it?

5. When should you prove it?

6. Where can you locate the proof later at the time of trial?

Perhaps no other area in the litigation process requires as much priority for completion as does a fact investigation. As time lapses, the facts grow colder and dimmer. Witnesses and physical evidence will fade out and become increasingly more difficult to locate. Begin the factual investigation soon after the client interview has been concluded. Complete it as soon as possible. Having a reliable claims investigator, law clerk or paralegal assistant promptly complete the entire fact investigation for you.

The purpose of the interview is to:

1. Identify the client’s legal problem;

2. Elicit the facts chronologically to provide perspective; and

3. Develop alternative legal solution to resolve the client’s legal problem (this may not be possible in the first interview).

Listen to the client’s entire story and then go ahead and elicit the specific details of your client’s claim. Take handwritten notes. For future reference, make the notes as detailed and extensive as need to be.

What does a client expect of you? how can you fulfill the client’s expectations? You must answer the client’s often unasked questions: What are you going to do for me? How are you going to solve my legal problem? Basic matters should be dealt with from the very beginning. Go over the attorney-client relationship, on how it is confidential, and how it should be open and honest. Explain the procedure and time involved in processing a lawsuit to conclusion. At the appropriate time you should discuss the law that is applicable to your client’s case, as well as any problems you anticipate. You must discuss your legal fees and cost with the client and explain the relationship between the value of your legal services in comparison with what the client is expecting from you for your services. Establish your fee arrangement in writing.

The client interview should last some time. Remember to avoid surprises. Ask your client if there is anything else you should know about him or her that the other attorney may use at trial. An excellent way to conclude a client interview is for you to ask the following question: “Is there any other concern or particular question you want to be answered before you leave today?”.

In summary, be friendly and courteous. Don’t be condescending nor superior in attitude. Likewise, don’t be impatient, impersonal or indifferent in manner. Above all, always keep your client fully informed of your progress with their case. Communicate with your client!

The Total Trial System works as a road map to plot the most direct route or in your case to provide you with a step-by-step guide for a favorable settlement or verdict.

How does The Total Trial System work? It’s very easy and simple. You begin your trip by working forward from your stated goals, as will be expressed in your proposed closing argument to the jury. In other words, with The Total Trial System you start preparing for the trial by beginning to plan for the closing argument you will give to the jury. Obviously, before you can plot your trip destination, you must of necessity have a beginning point.

When you are driving around the city I am sure you have seen the billboards or maybe heard on the radio the Public Service Announcements about not texting and driving. Some people listen and some don’t but the announcements make an impact on most people and it is a general rule of thumb that it is not safe to text and drive.

What if you saw someone typing on a computer and driving, not safe at all right? That is exactly what some police officers in Dallas and Fort Worth are doing. These officers that represent safety are driving and typing and getting into accidents.

A recent story by NBCDFW documented that the Dallas and Fort Worth Police Stations do not have a policy against typing while driving and that the Dallas Police Department has had three crashes involving officers using computers in the past two and half years. It would be a little different if there was a rule on the books and a few officers were disobeying the rules, but this is two huge police departments that don’t even have a policy against it. Who knows how many police offers are out there on the road causing potential harm when they are supposed to be protecting us.

If you have been injured in a car accident, whether it was by a police officer or not, you need someone to protect you and Haire Law can help. Contact us for a free case evaluation; we are here when you need us.

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