Trial Work Q&A with Wilkinson Stekloff

I was initially attracted to the drama and storytelling that trial work seemed to afford.  So I tried mock trial. I ended up enjoying everything about it and continue to volunteer where I can.  As I learned more about the actual practice, I realized that I liked the ability to interact with witnesses and engage in new material.

Getting to engage on a novel topic, whether it is hematology, or understanding the product market for flavored tobacco products, was something that I welcomed.  You become your own expert.  Then you translate that material into a compelling story.  It is definitely a challenge but one that I find interesting.  Especially because each set of facts is different, so I am always learning something new.

Most importantly, I like getting to interact with non-lawyers.  We work with experts or company employees that have a lot of expertise in their fields.  Our conversations with them are very informative on the best way to tell our story to a jury.  They are often the kindest and most interesting people we get to meet. 

Typically the entire trial team goes to the trial site.  That includes everyone that helped work up the case at each level, so paralegals, some legal assistants, all associates, counsel, and partners.  We have also had summer associates travel to trials, where they were able to substantively contribute to the legal work.

The courtroom attendance will vary depending on the needs of each trial day.  But typically you have the partners and at least one associate that was assigned to that particular witness in court that day. They are accompanied by a paralegal and another associate assisting as a backup.

While this can vary between trials, most trial days are actually two work days compressed in to one. The first “day” is spent at court. This involves arriving early with all the materials needed for the day’s proceedings, making sure whomever is standing up is equipped with what they need, and running down answers and documents as required while court is in session. And as soon as court wraps, the second “day” begins. All the information from the day needs to be synthesized, any requests from the court need to be addressed, and preparation for the next day continues.

What is most satisfying about this cycle is how functional the work product needs to be and how quickly it needs to be produced. This is the best time to have your work edited and changes implemented in real time, where the result plays out in court the next day. There are incredible opportunities to work closely with partners, and there is no better way to learn and hone your own approach to trial work than being at trial!

For those, like me, who joined a trial litigation boutique after clerking in federal district court, it was an amazing experience to be in the courtroom again in a completely different capacity. The fast-paced nature of trial work, coupled with everything going on behind the scenes during every stage, is something that can really only be understood by being in court each day. “Going to trial” is not just about close listening and observation; even for those not standing up, it is a highly-interactive process and requires quick work to anticipate what might be most important in the next five, ten, sixty minutes of trial.

I have found that one of the best ways to prepare for trial and become an integral member of the team is to develop a mastery of the relevant facts.  Sometimes that means creating timelines and memorizing the chronology of the case.  Other times it consists of getting to know the key documents or depositions inside and out.  Inevitably, factual questions arise throughout trial and in the courtroom and having the answers readily available is invaluable.   

Associates are involved in all aspects of trial preparation and execution, ranging from pretrial filings such as motions in limine to leading prep sessions with witness and preparing material for closing arguments.  Associates are also integral to in-court proceedings, attending court and assisting the lead trial attorney during cross and direct examinations. Summer associates at Wilkinson Stekloff play the same role that associates play at trial.  They are involved in all facets of trial and are viewed as members of the trial team.

At trial we take an “all hands on deck” approach. For associates and summers, this could mean working on opening and closing decks, witness assignments, or responding to courtroom requests as quickly as possible. Each day is different but the expectation is that associates and summers will work proactively to ensure that the team is ready for the next trial day. Beyond the substantive witness work, this could mean knowing what documents have to be in the courtroom and ensuring that they are there. It could also mean knowing any relevant fact at the drop of a hat.

Winning.  Few memories rival the experience of rushing into the courtroom to listen as a jury returns a verdict in favor of your client after months or years of hard work.  That experience, and the celebration that follows, are hard to replicate anywhere else.  It has also been a rewarding and memorable experience to work with a witness ahead of trial—whether an expert, a client representative, or another fact witness—and watch them take the stand, do a great job, and then recognize your efforts and assistance in helping them be ready for what is often a daunting experience for them, especially if they are doing it for the first time.     

The way you strategize can be more important than what you actually know about the case.  As a junior attorney, you feel a sense of responsibility over the subject matter and the facts. But if you fixate on this, you can miss the forest for the trees because every fact won’t be relevant to your presentation of the case.  Instead, you should think about things like jury instructions and closing arguments at the outset—not at the end.  This allows you to focus on what matters as you are developing your theories of the case.