Advise a First Year Going to Trial

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sundance95
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Advise a First Year Going to Trial

Postby sundance95 » Thu May 21, 2015 1:21 pm

I'm a first year at a boutique, will be going to trial in the next month or two with two partners, a senior associate, and two paras. Any advice from the TLS hivemind? Am also accepting war stories, anecdotes, and NY to 190. tyia

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lacrossebrother
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Re: Advise a First Year Going to Trial

Postby lacrossebrother » Thu May 21, 2015 1:28 pm

I'm guessing you realize how vague you were and did that on purpose? Like, what's the case about, what side are you on, what's at stake, and what's your role on the team? I'm guessing you're not going to be doing much of anything at the court...or are you saying the partners are there for support and you'll be doing the open/close and examinations? Why did you start this thread and give no info?

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Capitol_Idea
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Re: Advise a First Year Going to Trial

Postby Capitol_Idea » Thu May 21, 2015 1:30 pm

Establish dominance by only referring to Judge as 'Slappy' or 'Sparky' (depending on your preferences). Maintain unblinking eye contact with judge at all times.

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JohannDeMann
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Re: Advise a First Year Going to Trial

Postby JohannDeMann » Thu May 21, 2015 1:34 pm

Leave the billing spicket flowing. You should be billing 18 hours a day during a trial. Seriously.

legends159
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Re: Advise a First Year Going to Trial

Postby legends159 » Thu May 21, 2015 1:36 pm

Make sure you bring pen and paper so you don't forget anyone's Starbucks orders.

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sundance95
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Re: Advise a First Year Going to Trial

Postby sundance95 » Thu May 21, 2015 1:36 pm

zacharus85 wrote:Establish dominance by only referring to Judge as 'Slappy' or 'Sparky' (depending on your preferences). Maintain unblinking eye contact with judge at all times.

Ty, ty, this is excellent. I'll start working on my staring endurance immediately

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LA Spring
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Re: Advise a First Year Going to Trial

Postby LA Spring » Thu May 21, 2015 1:41 pm

Going to court for the first time is exhilarating. Since this is your first time, and you are going with partners chances are your role is limited. Are you slotted to cross-examine anyone?

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sundance95
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Re: Advise a First Year Going to Trial

Postby sundance95 » Thu May 21, 2015 1:51 pm

lacrossebrother wrote:I'm guessing you realize how vague you were and did that on purpose? Like, what's the case about, what side are you on, what's at stake

Honestly, does it really matter? It's a civil trial in federal court.

lacrossebrother wrote:what's your role on the team? I'm guessing you're not going to be doing much of anything at the court...or are you saying the partners are there for support and you'll be doing the open/close and examinations?

Yeah, I'll be doing our key directs. :roll: Shit man, I dunno. I'm the low man on the totem pole. Senior para has most trial experience of anyone on team, followed by senior associate -> junior para -> service partner -> main partner & me (i.e., 0). I imagine I'll be doing whatever the hell ppl tell me to do. Above advice re: billing & starbucks are probably most credited poasts thus far

lacrossebrother wrote:Why did you start this thread and give no info?

Because doing jury instructions is dull, and because you touch yourself at night

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sundance95
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Re: Advise a First Year Going to Trial

Postby sundance95 » Thu May 21, 2015 1:54 pm

LA Spring wrote:Going to court for the first time is exhilarating. Since this is your first time, and you are going with partners chances are your role is limited. Are you slotted to cross-examine anyone?

Would be surprised if I did anything other than support/be the guy checking off that we got everything in from each witness that we needed, although juniors have been handed crosses pretty last minute in the past at my firm. I think that's unlikely here though as main partner has never had a trial and I am 4th lawyer on team.

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Re: Advise a First Year Going to Trial

Postby Anonymous User » Thu May 21, 2015 3:07 pm

You will be doing key directs, but you are low man on the totem pole? Doesn't sound like they are treating you that way. That is some serious responsibility for a first year associate. Congrats and don't fuck up!

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sundance95
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Re: Advise a First Year Going to Trial

Postby sundance95 » Thu May 21, 2015 3:11 pm

Anonymous User wrote:You will be doing key directs, but you are low man on the totem pole? Doesn't sound like they are treating you that way. That is some serious responsibility for a first year associate. Congrats and don't fuck up!

Sarcasm.

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Re: Advise a First Year Going to Trial

Postby smallfirmassociate » Thu May 21, 2015 3:42 pm

The one thing you can "help" with is the voodoo of voir dire. There is little legal training required for that. If a senior attorney asks for your opinion on a prospective juror, just be honest in more of a layman's way. I wouldn't say, "Well, I question whether a construction contractor from Cincinnati will fully understand our argument of how an intervening illegal activity broke the causal chain in the negligence count" or some shit. Go more with, "that guy perked up and nodded when you asked if our society is too litigious."

Ask the lawyers doing the questioning, ahead of time, if he or she would like you to pass notes if you think of a question that he or she left unasked on examination.

Pay attention to the jury and report to the other lawyers which issues, if any(!), they seem to pay attention to or care about.

Follow the facts that are making their way onto the record. Make sure you're getting everything on record that you want to. This is also good training for when you have a more active role at trial.

This is related to the last one: Try to place yourself in the mind of opposing counsel and anticipate their closing arguments; give your two cents ahead of time to the person preparing your arguments.

Good luck. Don't fart.

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sundance95
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Re: Advise a First Year Going to Trial

Postby sundance95 » Thu May 21, 2015 3:57 pm

smallfirmassociate wrote:The one thing you can "help" with is the voodoo of voir dire. There is little legal training required for that. If a senior attorney asks for your opinion on a prospective juror, just be honest in more of a layman's way. I wouldn't say, "Well, I question whether a construction contractor from Cincinnati will fully understand our argument of how an intervening illegal activity broke the causal chain in the negligence count" or some shit. Go more with, "that guy perked up and nodded when you asked if our society is too litigious."

Ask the lawyers doing the questioning, ahead of time, if he or she would like you to pass notes if you think of a question that he or she left unasked on examination.

Pay attention to the jury and report to the other lawyers which issues, if any(!), they seem to pay attention to or care about.

Follow the facts that are making their way onto the record. Make sure you're getting everything on record that you want to. This is also good training for when you have a more active role at trial.

This is related to the last one: Try to place yourself in the mind of opposing counsel and anticipate their closing arguments; give your two cents ahead of time to the person preparing your arguments.

Good luck. Don't fart.

This is helpful, thank you.

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Re: Advise a First Year Going to Trial

Postby Anonymous User » Thu May 21, 2015 4:51 pm

I am also a first-year associate at a "boutique" with a case going to trial in a few months. This will be my first trial too. My case will be a bench-trial, which might have some but not many differences with your case, which I assume is a jury trial. (I assume by boutique, you mean one that pays on the Biglaw scale, or thereabouts.)

If so, I expect you will be doing substantial amounts of prep work for trial. I am only starting to do that in my case. Here are some examples of preparation that you may be asked to do: draft cross-examination modules, draft direct modules, and prepare a pre-trial "statement of decision" - basically outlining the facts and law for the judge. I think closer to trial you will be asked to prepare exhibits, make powerpoint slides to be used, other demonstrative exhibits, etc.

You should speak to the partners or senior associates about what your role is going to be in the trial. They might ask you to be responsible for some witnesses. You will also need to become familiar with the documents that will need to be used (that's how you will be able to draft these outlines or suggest questions).

Logistically, you might think about all you need to have ready for the week(s) you are in trial. For example, do you have sufficient amounts of suits or other clothing to wear? How will you do dry-cleaning? Are you traveling for the trial? If so, you might want to have a system to take care of all the reciepts, etc. you will need to ultimately reimburse.

You also will need to make sure your other teams (to the extent you are staffed on other cases) are aware that you will be busy throughout trial.

This is what I can think of right now. I will add as I think of other things.

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Re: Advise a First Year Going to Trial

Postby Anonymous User » Thu May 21, 2015 4:56 pm

I can't give you any advise from the viewpoint of an associate on trial, but I can make some recommendations as a law clerk for a district court judge.

First thing, figure out whether you're going to be standing up or presenting anything. I could see you getting called up to establish authenticity or a hearsay exception (ie, not something controversial or particularly difficult). You should try to figure out if you need to get the proper procedure down for putting a business record into evidence or stuff like that.

If not, your job should be to watch the judge, opposing counsel, and the jury--100% agree with what smallfirmassociate said. IME, most jurors do a pretty bad job of hiding when they're bored or their facial expressions during trial. You want to note how the jurors respond to your witnesses and the other side's. Whoever is directing or crossing will likely be entirely focused on their next move/listening for potential stuff to object to, so they'll really appreciate your assessment of audience interest.

Have you/your firm appeared before the judge before? If not (or if you don't have much experience with the judge), go on PACER and skim a transcript from the last civil trial the judge handled. Often, judges will recite the same spiel about how they like things at the beginning of the trial (to the extent that it hasn't been discussed at the pretrial conference); you'll get brownie points if you do things the way the judge likes them done.

I'd also ask the main trial attorneys if they want you to create a demonstrative or something for closing. Jurors fucking love charts--really anything that isn't people droning on about stuff they probably don't care about will capture their attention. (I was a big chart person pre-clerking. Now, I don't think I'd ever spend more than 10 minutes of the trial without a visual aid.) Even if they say no, I bet you'd get some points for initiative.

Two other small things. Pretty much every district courtroom is mic'd up. We can hear anything that's said in the courtroom, so don't say anything about an evidentiary ruling, opposing counsel, or anything else unless you would feel comfortable saying it to the judge's face. Also, treat jurors like they are in the middle of a cloud of sarin gas. Don't run away from them, but don't get in an elevator with them by yourself or put yourself in a situation where anyone could possibly think you could have potentially talked to a juror.

Enjoy the trial!

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Re: Advise a First Year Going to Trial

Postby alphasteve » Thu May 21, 2015 7:49 pm

Advice above is very helpful, and I've been part of a trial team twice (once present, once off-site).

I'd expect the following, if it follows a more standard big trial model:

1) Don't expect to be in court all trial, generally. Partners are superstitious about the number of attorneys each side has around, so they will likely limit it. Do be the main organizer of the atty work room in the courthouse or, if you are staying at the hotel, be prepared for anything.

2) Expect to do drafts of trial briefs or responses. ALL OF THEM. ALL NIGHT.

3) I assume you all are getting rough daily transcripts. To the extent possible, try to get the direct or cross outlines from your side in advance to have a sense of how their exam will go and be prepared to look at the transcript and make annotations of where in the testimony (and which cited exhibits) support your side for your JMOL/to defend against a JMOL when P rests. Those cites could be needed even if the court allows P to present the JMOL orally.

4) You may get to meet with the younger associate on the other side to do horse trades/negotiations on standing/existing depo designations/counters/completeness/objections, prepping and transferring demonstratives (based on court's local rules, etc regarding that exchange)

5) If you're lucky, you may get to argue an evidentiary issue on something coming up that day, before the jury comes in (probably more likely because you are boutique than biglaw)

6) Exhibit List - You may be in charge of the exhibit list - and tracking which exhibits were admitted, through which witnesses, and which will be presented the following day. Important to keep track of this. Really important.

7) Finally, ask the senior associate what you're expected to handle. Talk with the paralegals - chances are you are going to be working as directly with them as with the other attorneys. Also, ask the younger partner.

Some of what I can think of from my experiences, off the top of my head.

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Re: Advise a First Year Going to Trial

Postby Anonymous User » Fri May 22, 2015 1:44 am

smallfirmassociate wrote:The one thing you can "help" with is the voodoo of voir dire. There is little legal training required for that. If a senior attorney asks for your opinion on a prospective juror, just be honest in more of a layman's way. I wouldn't say, "Well, I question whether a construction contractor from Cincinnati will fully understand our argument of how an intervening illegal activity broke the causal chain in the negligence count" or some shit. Go more with, "that guy perked up and nodded when you asked if our society is too litigious."

Ask the lawyers doing the questioning, ahead of time, if he or she would like you to pass notes if you think of a question that he or she left unasked on examination.

Pay attention to the jury and report to the other lawyers which issues, if any(!), they seem to pay attention to or care about.

Follow the facts that are making their way onto the record. Make sure you're getting everything on record that you want to. This is also good training for when you have a more active role at trial.

This is related to the last one: Try to place yourself in the mind of opposing counsel and anticipate their closing arguments; give your two cents ahead of time to the person preparing your arguments.

Good luck. Don't fart.

Do the lawyers get to ask questions during voir dire in federal trials in your district? They don't in the districts I'm familiar with (questions get submitted to the judge ahead of time, the judge asks them). I agree with the rest, though.

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Re: Advise a First Year Going to Trial

Postby Anonymous User » Fri May 22, 2015 7:11 am

I have been in your position (a month from trial) twice before, once within the last few weeks. The only advice I can give is don't get too depressed if the case settles right before trial. It really really sucks because suddenly you don't get the experience of trial and have several weeks ahead of you with not much work to do because you had cleared everything off your plate for trial. And on the other hand you are sort of relieved that you won't be killing yourself staying up all night writing trial briefs for the next three weeks in a hotel room in an unfamiliar midwestern city after all. But mostly it is depressing.

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Re: Advise a First Year Going to Trial

Postby smallfirmassociate » Fri May 22, 2015 9:49 am

Anonymous User wrote:
smallfirmassociate wrote:The one thing you can "help" with is the voodoo of voir dire. There is little legal training required for that. If a senior attorney asks for your opinion on a prospective juror, just be honest in more of a layman's way. I wouldn't say, "Well, I question whether a construction contractor from Cincinnati will fully understand our argument of how an intervening illegal activity broke the causal chain in the negligence count" or some shit. Go more with, "that guy perked up and nodded when you asked if our society is too litigious."

Ask the lawyers doing the questioning, ahead of time, if he or she would like you to pass notes if you think of a question that he or she left unasked on examination.

Pay attention to the jury and report to the other lawyers which issues, if any(!), they seem to pay attention to or care about.

Follow the facts that are making their way onto the record. Make sure you're getting everything on record that you want to. This is also good training for when you have a more active role at trial.

This is related to the last one: Try to place yourself in the mind of opposing counsel and anticipate their closing arguments; give your two cents ahead of time to the person preparing your arguments.

Good luck. Don't fart.

Do the lawyers get to ask questions during voir dire in federal trials in your district? They don't in the districts I'm familiar with (questions get submitted to the judge ahead of time, the judge asks them). I agree with the rest, though.


Yep, lawyers get to ask questions in voir dire in my federal district and also in state district court here, and in both jurisdictions it's pretty broad / open-ended. Judge might try to hurry things along here and there, but that's about it.

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Re: Advise a First Year Going to Trial

Postby NotMyRealName09 » Fri May 22, 2015 1:43 pm

I'll add that you should KNOW THE DOCUMENTS cold. As a first year, I suspect you are to be the document monkey. While the paralegals may supersede you as far as physically maintaining the file and keeping exhibits organized, you should be the attorney who knows exactly where to find a specific document if the need arises. Typically at trial, some random issue will arise and there will be a scramble to get X document now even though no one was needing that document yet in the case. If an attorney is thinking of some document that says "XYZ" but doesn't know where to find it, you should know, or be able to quickly figure it out. I always view it like this - the more senior the attorney, the more big picture their focus. Conversely, the more junior the attorney, the more they are focusing on trees, not the forest.

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sundance95
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Re: Advise a First Year Going to Trial

Postby sundance95 » Fri May 22, 2015 3:03 pm

I've been too busy to post, but appreciate the insight from all. Steve, your post was particularly helpful in fleshing out the bits and pieces of what I've been told to expect.

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lacrossebrother
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Re: Advise a First Year Going to Trial

Postby lacrossebrother » Fri May 22, 2015 6:24 pm

Sure no problem. Stinks a lot of people told you about voir dire even though you didn't say it's a jury trial

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Re: Advise a First Year Going to Trial

Postby rpupkin » Fri May 22, 2015 6:37 pm

lacrossebrother wrote:Sure no problem. Stinks a lot of people told you about voir dire even though you didn't say it's a jury trial

He also didn't say it was a bench trial. The vast majority of trials are jury trials. I don't see anything wrong with assuming a jury trial. And why are you even posting in a thread like this? You don't know anything.

Anyway, when I saw the OP yesterday, I figured this thread would be useless. But I was wrong. There's a lot of excellent advice here.

ETA: I wanted to add something to alphasteve's solid advice:

7) Finally, ask the senior associate what you're expected to handle. Talk with the paralegals - chances are you are going to be working as directly with them as with the other attorneys. Also, ask the younger partner.

In addition, I suggest talking to other associates who have worked with the partners on other matters. They can give you a heads up about any pet peeves.
Last edited by rpupkin on Fri May 22, 2015 6:42 pm, edited 1 time in total.

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lacrossebrother
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Re: Advise a First Year Going to Trial

Postby lacrossebrother » Fri May 22, 2015 6:40 pm

rpupkin wrote:
lacrossebrother wrote:Sure no problem. Stinks a lot of people told you about voir dire even though you didn't say it's a jury trial

He also didn't say it was a bench trial. The vast majority of trials are jury trials. I don't see anything wrong with assuming a jury trial. And why are you even posting in a thread like this? You don't know anything.

Anyway, when I saw the OP yesterday, I figured this thread would be useless. But I was wrong. There's a lot of excellent advice here.

I'm a first year and also I've been to trial, I just wish people would ask better questions

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fats provolone
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Re: Advise a First Year Going to Trial

Postby fats provolone » Fri May 22, 2015 7:50 pm

whatever you do, don't testify




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