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Trial Preparation: The Trial Brief

By Robert A. Zielke

Preparation is the undisputed cornerstone of the highly successful trial lawyer. Likewise, the Trial Brief is the foundation for preparing for trial. It involves the art of setting the stage to present your case and to convince the judge that your beliefs about the case are the true reality. Just as Plato discussed in The Republic, the Trial Brief will take the shadows projected on the cave wall as will be presented at trial and will clarify the shadows so that the reality of your own case becomes the self-evident outcome.

Time spent preparing the Trial Brief will further organize the case, prepare the lawyer, and allow the lawyer to develop that special quality of care that can be a powerful tool of persuasion.

A. Purposes of Preparing the Trial Brief

The key purpose of the Trial Brief is to convince the judge prior to the trial starting that your interpretation of the case is the correct and just position - in other words, developing the stage set. The Trial Brief will attain this goal through the principals of education, organization of the overall case, amplification of key points, and specification of the ending.

Educating the judge regarding the facts of the case and your position is a paramount purpose. A well-drafted Trial Brief will set your case apart from the multitude of other matters the judge is currently handling. By educating the judge as to the factual basis and your position, you will allow the judge to see the case in context. This might even have the effect of allowing the judge to see your case as the fantastic and unusual, instead of the mundane.

The Trial Brief must persuade the judge that your version of the facts are the true facts which fully support a plaintiffs verdict. The trial lawyer must remember that persuasion is simply helping the judge to convince herself or himself to believe as you do about the case. Spend the time and preparation developing and presenting the facts in an exciting and clearly-written manner.

The Trial Brief must show the judge that your position is mandated by the law. This is done by supporting your interpretation of fact and positions with relevant and cited law. This is accomplished by cite checking relevant case law and statutes where the holding is cited. It is often best to avoid repeating the facts or circumstances of any cited case so that your theme and position remains at the forefront of thought in the readers mind. Limit factual or circumstantial discussions of case law to those unique or highly-contested areas which will need to be argued. The trial lawyer can often cite to these areas within the Trial Brief, and then save the circumstantial and factual arguments for a Legal Brief and Argument, presented often as Motions in Limine. By adopting this strategy, the trial lawyer maintains the purpose of the Trial Brief, by showing that his or her case is mandated by law.

The Trial Brief has a purpose of providing the judge insight into the plaintiffs injuries. This purpose of the Trial Brief is met by careful discussion of the injuries that the plaintiff incurred due to the negligence of the defendant driver. This is often best accomplished first by discussing the specific injuries that the plaintiff suffered. One technique is to describe in non-medical terms the injury, followed by supporting diagnosis. Establishing the injuries suffered by the plaintiff then sets the stage for allowing the judge to form opinions regarding damages.

The Trial Brief should educate the judge as to the damages the plaintiff will be seeking. Support the damages you are seeking with citation to relevant case law, just as the trial lawyer does for the legal arguments and positions that the trial lawyer is presenting. One technique is to carefully review Washington Pattern Jury Instructions (WPI) regarding damages prior to drafting this portion of the Trial Brief. By referring to the WPI section on damages, one could make sure that they are covering most of the damages that will be recoverable in the particular case. The WPI will also direct you to specific case law which can be updated through legal research.

The Trial Brief will then establish a damages overview, showing how the injuries have harmed the plaintiff. This section is not merely an outline of the special damages. One technique is to describe the damages in an overview, setting forth how the plaintiff has been impacted in enjoying their reasonable pleasures of life. All injuries and damages can then be discussed under this umbrella: deprivation of reasonable pleasures. Look for new and exciting ways to present the dry data of special damages.

A carefully drafted damages overview can convince the judge that the plaintiff has been harmed and is deserving of monetary compensation - the justice of awarding dollar damages. Or stated another way, that it is great injustice not to award the plaintiff compensatory damages for the ordeal through which they have travelled, often at no fault of their own.

The Trial Brief must present the principle of credibility. The Trial Brief must show that the case and that you, the trial lawyer, are both credible. Credibility in discussing strengths, position, and potential weaknesses, allows the judge to begin to rely upon you. This reliance on credibility can positively effect the establishment of key facts within the case and the key positions. Credibility is a central factor which often has powerful effects, allowing the judge to persuade himself or herself to believe as you do about the case.

The Trial Brief must deal with the contentions, allegations, and arguments of ones opponent or opponents. To attain this purpose, the Trial Brief points out the fallacies of the defendants allegations and the weaknesses of facts or contentions that will be presented. This section of the Trial Brief allows the trial lawyer to further convince the judge to believe as the trial lawyer does in the case.

Finally, the overall Trial Brief has the purpose of allowing a judge to see and understand your witnesses, your arguments, and your evidence in context of the entire case. A complete context of understanding becomes important when arguments arise as to the admissibility of testimony or evidence. Understanding the full contextual basis of the case allows the judge to see the relevance and importance of the evidence and/or testimony. Without a Trial Brief, the judge might be in a similar position as the jury; that is, only being able to see the case in the disjointed fashion as the jury hears it. Failure to present the contextual Trial Brief is like presenting your case to the jury without an opening statement which provides the contextual framework for understanding the evidence.

B. A Checklist Can Be Established for the Steps in Preparing, Writing, and Editing the Trial Brief.

Using a checklist for the development and writing of a Trial Brief assists the trial lawyer in following a cogent course to the final product. Appended as Exhibit A [1] is a simple checklist for the development and writing of the Trial Brief.

The first step is to consider audience. Your Trial Brief will be read by two different audiences. The primary audience is the judge that will preside over the case. Assume that the judge has no knowledge or understanding of the case, even if the judge has made previous rulings throughout the discovery phase. Remember that your knowledge of the case comes from confidential discussions with your client, discovery depositions, witness interviews, medical records, etcetera, all of which have been acquired over a substantial length of time. The judge does not have the time or resources to become as familiar with the case as the trial lawyer. Next, consider the judges personality, idiosyncrasies, and background. Talk to other lawyers who have tried cases before the particular judge, and look at the prior cases tried by the judge as you develop the Trial Brief. This again is simply considering the audience.

The secondary audience to consider is the defense counsel. By considering the defense counsel as an audience, you can utilize this audience knowledge in an attempt to devastate and demoralize the opponent. In considering this audience, develop the Trial Brief in such a way as to create doubt in the defendants facts and positions.

One method of analyzing audience is to list out factors known to the trial lawyer regarding the judge and opposing counsel. With this list of information, specific points or analogies can be developed which are powerful in allowing the judge and/or opposing counsel to convince themselves to believe as you do about the case.

Review the materials and evidence. Trial lawyers should gather and review the discovery materials gained in the case, read depositions, and otherwise immerse oneself in the factual basis of the case. This is a good time to highlight and record discrepancies within the evidentiary framework of the specific matter. Deposition outlines and cross-reference charts are extremely helpful. Another method is to begin assembly of the trial notebook. This organization review of the materials as being placed in the trial notebook can provide an adequate review of materials.

Analysis of facts and positions is performed prior to the writing of the Trial Brief. Even though analysis is continually occurring during the review of materials, once the materials have been reviewed, spend extra time thinking and analyzing the key points and contentions in the case. This is often the beginning outline for the Trial Brief.

Develop one theme for the case after the materials have been reviewed and a complete analysis has been performed. Most trial lawyers consciously or subconsciously develop a theme of the case beginning as early as the initial interview of the client. Consider the various themes that have been developed throughout the case, but wait to pick and commit to your final theme until a complete analysis of all materials has occurred. This is often just a simple check that the theme developed earlier remains credible, relevant, and persuasive. As your develop your theme, recall classical music. Classical music is often written using one theme, even though there are sub-parts within the particular piece, the one theme remains true throughout the piece.

Create a Trial Brief outline for your facts, points, and authorities, using as a model, a standard Trial Brief format. Do not be afraid to add new headings or present materials which are not normally presented in a Trial Brief. The purpose of the Trial Brief is not to present a legalistic and robotic analysis of your case. Consider the purposes of the Trial Brief as discussed above, for developing new headings.

Once the Trial Brief outline is completed, write, edit, and re-edit your Trial Brief prior to presenting it to the judge and opposing counsel. It goes without saying, that the language used in the Trial Brief should be concise and simple language. This language should paint a memorable picture of the case in which your readers relive the collision as they read your brief.

Conclusion

The purposes of the Trial Brief is to educate and persuade the judge and the opposing counsel that the facts and supporting law mandate the specific outcome of a plaintiffs verdict with an award of just damages. These purposes can be met through careful analysis and clear drafting. Consider your audience as you complete your Trial Brief and remember that you are helping the judge, as well as opposing counsel, to convince themselves to believe as you do about the case. Set the stage with the Trial Brief for a successful and just plaintiffs trial and verdict.

Zielke, WSTLA Automobile Accident Litigation Deskbook, Chapter 12(C), at 438-81 - December 2000


[1]

Exhibit A: Checklist for Preparing and Drafting The Trail Brief

  1. Consider audience
    1. The Judge
      1. List out what you know about the judge
      2. Identify strategies that are likely to persuade
    2. Opposing Counsel
      1. List out what you know about opposing counsel
      2. Identify strategies that are likely to persuade
  2. Review the materials of the case
    1. Initial client intake
    2. Depositions
    3. Interrogatories
    4. Materials generated from Requests for Production
    5. Evidence to be presented
    6. Illustrative exhibits to be used at trial
    7. Notes from witness interviews
    8. Declarations
    9. Pleadings
      1. Complaint and Answer
      2. Motions for Summary Judgment or Partial Summary Judgment
    10. Medical records
    11. Doctors reports
    12. X-rays
  3. Analysis of case, facts, and potential contentions
    1. Cross-reference discrepancies and factual base
    2. Analyze and outline all areas of contention within the case
    3. Review supporting law
    4. Review potentially contrary law
  4. Theme
    1. Develop one theme for the case
      1. Consider sub-parts, but maintain one theme
      2. Check theme for proper fit for the case
  5. Outline Trial Brief utilizing standard format for the Trial Brief
    1. Statement of facts
    2. Analysis of liability
    3. Causation analysis
    4. Damages
    5. Personal profile
    6. Injuries
    7. Effects of injuries
    8. Post-collision medical progress
    9. Special damages
    10. Property damages
    11. Wage loss
    12. Other special damages
  6. Witnesses
  7. List out Exhibits to be appended to Trial Brief
  8. Conclusion
  9. Draft, edit, and re-edit Trial Brief prior to publishing the document

 

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