The time to prepare for trial is long before trial

Posted Thursday, May 18th, 2017 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I’m always amazed when the court asks me if I can be ready for a multi-day trial it wishes to set a few weeks hence. The level of preparation necessary to determine that trial is necessary is vastly lower than the level of preparation necessary to actually try the case. It requires months–at least three months–and a substantial investment of time and fees, to move from the first level of preparation to the second. Since moving to the higher level of preparation is only necessary if the case fails to settle in mediation, moving to this “ready for trial” level is an unjustifiable expense in most cases. However, once trial becomes necessary, this higher preparation level becomes necessary–and waiting until a week, or even a month, before trial to begin this preparation makes being fully prepared impossible.

To move a case from “ready to negotiate” to “ready to try” involves many tasks. The most obvious task is subpoenaing witnesses to trial. I like to begin this task a few months before trial. This serves a few purposes. First, I like to save expenses by having witnesses personally accept service of their subpoenas rather than having process servers serve them. However I want to give witnesses a few weeks to accept service. When one issues trial subpoenas, one often encounters witnesses who are reluctant to testify or will be unavailable to testify when trial is scheduled. Issuing trial subpoenas well beforehand gives one the ability to depose unavailable witnesses and use their deposition testimony at trial. It gives one the ability to talk to reluctant witnesses and determine whether one can overcome their reluctance, forgo their testimony, or obtain similar testimony from a different witness.

Another task in getting a case “ready to try” is determining what facts one wishes to prove at trial, what facts are disputed, and how one will convince the court that one’s client’s “facts” are the correct facts on disputed issues. I like to begin trial preparation by creating an outline of disputed issues. Within that outline are the facts I wish to prove or disprove on each issue, and what witnesses and evidence might be available to prove these facts. This outline prompts a review of both parties’ discovery responses.

This review prompts both supplemental discovery requests and supplemental discovery responses. Often discovery responses from the opposing party that were sufficient for purposes of negotiation (and thus didn’t merit a motion to compel) are not complete. Further there is an ongoing duty to supplement most discovery responses–most especially requests for production–but one typically needs to ask the opposing party to supplement responses rather than expecting automatic supplementation. Finally this review will prompt one to issue supplemental discovery requests to gain useful information on disputed factual issues.

However to obtain such supplemental discovery responses requires a two month lead before trial–and preferably a three month lead. The opposing party will have 30 days to respond to these discovery requests (35 days if the requests are mailed). If they don’t respond, or if their responses are evasive or incomplete, one will have to file and set a motion to compel. Ideally any motion to compel will be set a month before trial so that any order compelling the opposing party to respond will give one time to obtain and review the responses at least a week or two before the trial. Hence, the necessity of a two to three month lead time.

This is also the time to have one’s own client supplement discovery responses. I begin trial prep by meeting with the client to discuss trial subpoenas. At that meeting we will also discuss supplementing witness lists and trial exhibits. I will ask the client to gather any yet-unproduced documents we may wish to use at trial, with the intention of setting up a meeting in approximately a month to determine witness status–who’s accepted service of the trial subpoena; who needs to be deposed; who is reluctant to testify–and to issue supplemental discovery responses. These responses will list additional witnesses we intend to call at trial and contain additional exhibits we intend to use at trial.

Serving supplemental discovery responses a month or two before trial rarely causes an objection based upon an untimely response (unless there is a scheduling order creating a prior deadline for discovery responses). However serving such responses on the eve of trial often creates objections. Hence the desirability of thinking about supplemental responses months before trial. At this second trial prep meeting, we can also begin scheduling and noticing the depositions of unavailable witnesses. Given that these depositions need to accommodate the schedule of two attorneys, sometimes a guardian, two parties, and the witness, it’s best to begin scheduling these depositions a month or two prior to trial.

Finally, with trial prep comes a decision whether to depose the opposing party. Absent good cause, one can only depose a witness once. The relevant facts in many domestic disputes, especially those involving custody, develop during the litigation period. Thus, deposing the opposing party close to the trial date is ideal. I typically like to depose the opposing party three to four weeks before trial. This gives the court reporter time to transcribe the deposition and me time to review it and determine how best to incorporate the testimony into evidence at trial. Given the scheduling issues noted above for witness depositions, the time to determine whether and when to depose the opposing party should be made two months before trial.

Considering these factors, one should begin preparing for trial three months (at least) prior to trial. It’s impossible to do this if trial is set for a time only weeks into the future. And waiting until the month, or even the week, before trial to begin trial preparation is much too late. While there are trial preparation tasks often best done on the eve of trial–witness preparation being the biggest–many of the useful trial preparation tasks described above cannot be accomplished in such a short time frame.

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