In-House Counsel, Litigators

4 Things To Discuss Long Before Trial

Discuss these issues while everyone is still calm, as in-house columnist Mark Herrmann advises.

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dartboard pen inside straightAll inside counsel talk to all outside counsel about the usual stuff: Rates; staffing; trial experience.

But there are a few trial-related subjects — some off the beaten track — that inside and outside should discuss long before trial, just to make sure everyone’s on the same page.

First: How many counsel will actively participate at trial?

Some lawyers like to try cases alone. Trial counsel is a knight in shining armor, riding alone on a white horse to the client’s rescue. These lawyers believe that a jury gets the right impression only if a single counsel is representing the client’s cause. You don’t see many of those lawyers these days, particularly for long trials or cases in which large firms are acting as counsel, but these old-timers still exist.

If the number of trial counsel is more than one, how many lawyers should ask questions at trial? I’ve seen cases tried by three lawyers without offending the jury. The case is a big one; responsibilities are naturally divided; one person can’t carry the load.

Can four lawyers ask questions at trial before the jury is offended by the size of the trial team? Five lawyers? Six? More? (“Our firm doesn’t try that many cases. We have to get everybody some trial experience.”)

Inside and outside counsel should discuss this in advance, so there are no surprises at trial.

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Second: Who should be on the trial team? Is the jury going to be racially or ethnically diverse? (That was a rhetorical question.) If so, should the trial team be diverse? (That was also a rhetorical question.) (Please note: I mean diverse in an intelligent way. So-called jury consultants say, “Don’t pander. It’s affirmatively harmful to have one African American sit at counsel table and not ask any questions.” Of course. That’s pandering, but it’s stupid pandering. How about good, intelligent pandering? Suppose you have an African American on the trial team and have that person examine half the witnesses? Does that improve your chance of success defending the race discrimination case?)

If inside counsel has an opinion on this, make it known long before trial. Folks on your trial team will spend a long time preparing; it doesn’t help to notice on the day the all-Hispanic, half-female jury is empaneled that your trial team is, to your discomfort, entirely old white male.

Third: Should “Mr. (or Ms.) Company” be present throughout trial? A witness who will testify at trial should be present at counsel table to show the company cares about the result. Must Mr. Company attend the entire trial? If so, let Mr. Company know, and be sure that he’s there. If Mr. Company has to be present even for the days when the jury is sleeping through videotaped depositions, you’d better let him know.

Finally: Must lead counsel attend the entire trial?

Many lead trial counsel insist on being present throughout trial. Counsel’s presence shows counsel’s concern and is the only way for counsel to have a sense of what happened throughout trial.

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But lead counsel occasionally think they can leave the trial when a witness for whom they’re not responsible is being cross-examined: “My colleague is cross-examining Johnson, so we don’t really need me in the courtroom. And I’m responsible for the critical witness, Dryden, who’s on the stand tomorrow. Instead of wasting time by sitting in the courtroom, I’m going back to the war room to get ready for Dryden.”

If that’s not inside counsel’s approach to trial, it’s best to get that straightened out in advance.

There’s plenty to worry about at trial, between getting subpoenas out and exhibits in order and openings prepared and examinations set. The last thing you need is for subjects that could have been covered long in advance to come up at the last minute.

So raise the subjects early, and discuss these issues while everyone is still calm.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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