Litigators want to present their case to a jury with the same persuasive punch that famous TV attorneys like Ben Matlock or Law & Order’s Jack McCoy always seemed to do. But the truth is that behind a persuasive trial lawyer there’s always a ton of hard work and preparation With eDiscovery today inflating the size of many case files, trial preparation can seem daunting.
Trial preparation is important because it allows legal teams to present coherent and compelling narratives to the judge and jury, helping them understand and remember the key aspects of a litigant’s case. A tight and impactful story is likelier to win over a jury or judge — and tug at their heartstrings.
Today, trial preparation software enables legal teams to neatly organize documents and evidence and collaborate in a secure, shared environment. Teams can also invite expert witnesses and other stakeholders to participate in crafting the case narratives and strategy.
While the current state of trial preparation software streamlines the process for attorneys and law firms, the next generation of trial prep software will integrate AI tools and supercharge attorneys’ abilities to develop compelling arguments and factual narratives for trial.
Preparing for a Trial Today: The Do’s and Don’ts
Attorneys can put themselves and their clients in the best position for success at trial by observing a number of foundational do’s and don’ts of trial preparation:
DO: Thoroughly review the complaint to avoid missing any element you must prove (or disprove) at trial.
DO: Gather and organize your evidence in all of its forms so you know what evidence you will rely on to make your case, and which pieces of evidence correspond to which elements you must prove or disprove.
DO: Prepare your witnesses and help them anticipate trap questions from the other side.
DO: Research your judge’s prior rulings in similar cases so you have a sense of how they might rule regarding certain motions and requests in your case.
DO: Refine the themes and narratives you’ve been building so you can tell a consistent and persuasive story at trial.
DON’T: Have poor communication among your legal team and others involved in the case that prevents team members from understanding their responsibilities and deadlines.
DON’T: Fail to leverage available technology.
As to that last point, trial preparation traditionally involves hundreds, if not thousands, of pieces of information that trial teams must sort through and assemble in order to present their case. Many attorneys prefer to organize this information using hard copies of discovery documents and deposition transcripts. But doing so limits the ability of trial team members to quickly connect dots in the case and share analysis and diagrams with each other.
That’s where trial prep software comes in. It can help trial teams efficiently organize evidence, connect facts with the elements they must prove or disprove at trial, and quickly build trial preparation outlines, like direct-examination and cross-examination outlines, with links to supporting evidence.
Trial Preparation Checklist
Whether with the assistance of trial prep software or without, attorneys should begin prepping several months before their scheduled trial date so they have plenty of time to address any issues or snafus that arise. By creating a trial preparation checklist, attorneys can map out what their trial teams need to get done in the run-up to trial.
Initial trial preparation should begin with:
- Organizing the case file and evidence — which is derived from the (hopefully) effective discovery the team conducted earlier— including developing visual aids to present to the jury, and compiling the file and evidence for easy access at trial if an attorney needs a particular document to refute a witness’s statement on the stand.
- Identifying which witnesses to call at trial, including experts, and working to ensure their availability for trial or obtaining a recorded deposition if necessary.
- Securing any software, technology, or professional technical assistance that may be needed for preparation and trial.
- Establishing guidelines for how the trial team will collaborate and communicate regarding their trial preparation work, and how the team will divide up responsibilities before and during trial.
As the trial date gets closer, preparation should include:
- Issuing subpoenas and notices to appear to all witnesses.
- Outlining how witnesses and exhibits will be presented, including finalizing outlines for direct examinations and cross-examinations.
In the month or so before trial, legal teams need to resolve any lingering problems or delays with securing witnesses or technological resources for trial, along with taking care of remaining items such as:
- Meeting with clients and preparing them for their trial testimony.
- Finalizing an outline of the narratives and themes to present to the jury or judge.
- Preparing any pretrial motions or other court filings.
- Writing (and revising) drafts of opening and closing statements, making sure they weave in the established narratives and themes.
- Drafting proposed jury instructions.
- Finalizing direct-examination/cross-examination questions and organizing exhibits to admit into evidence at trial.
- Revisiting which team members will do what at trial, and confirming a plan to prepare for those tasks.
How AI-Powered Discovery Software Can Revolutionize Trial Preparation
No matter how you slice it, trial prep is a heavy lift, even with the trial prep software on the market today. But that lift will get easier when AI-powered trial prep software, including trial prep capabilities offered by AI-powered eDiscovery tools, becomes available.
Instead of relying on printouts and handwritten notes to organize the case file and discovery and build themes and narratives during trial prep, attorneys could work with their AI-powered eDiscovery software to start building the narratives in their cases from the first round of document productions or the first deposition.
Not only will AI help trial teams organize and access documents and evidence in the case file, it could also be prompted to find phrases or sentiments that can help prove or disprove elements of a case. This means AI will be able to find smoking gun sentences buried in long documents, or “We got ‘em dead to rights!” testimony tucked away hours into a deposition transcript.
Going one step further, generative AI algorithms could develop compelling case narratives and arguments tailored to the facts of the case, the judge, and even the jury pool based on the data they’re fed about a judge’s prior opinions or jury verdicts in similar cases in the same venue. Generative AI tools could also create visual aids for trials based on discovery documents or deposition testimony. Just imagine how much more compelling those terrible cartoon crime reenactments would be if they were as beautifully rendered as a Disney movie.
Conclusion
Effective trial preparation requires attorneys to gather evidence and analyze it to craft and support the themes and narratives that will hopefully persuade a judge or jury to rule in favor of their clients.
Trial prep software can help, but predictive and generative AI will change the trial preparation game. AI will transform trial preparation by optimizing the collection and organization of evidence and suggesting and supporting compelling narratives for litigators to present at trial.
Soon, eDiscovery companies integrating AI into their products like Logikcull will become extremely effective at trial preparation.
Attorneys and law firms interested in the possibilities AI-powered trial preparation solutions provide should keep an eye on eDiscovery companies’ launches of these capabilities to stay ahead of the trial prep game.
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