For litigators, trials can bring out both the best and worst in people. It is usually a circumstance of high tension, short tempers, conflict and, in some circumstances, exhilaration. The run up to trial often presents the Second Chair with substantial challenges related, primarily, to his or her efforts to decipher what it is the First Chair actually wants in order for the case to be ready. Despite the best laid plans, mishaps often occur. Nonetheless, there are several common sense items which the Second Chair can manage which are necessary in virtually all trials. Here is a representative list.
1. Depose all Disclosed Witnesses.
Not all witnesses show up on the witness list right away. Some witnesses are added later. Sometimes, an “Amended” witness list contains the name of a newcomer, someone who is not previously known. The First Chair will often miss this. He or she needs the wise Second Chair to bring this to his or her attention and send out the deposition subpoena, if appropriate, prior to the discovery cutoff to ensure that the testimony is preserved prior to the trial.
2. Prepare and Timely File Motions in Limine.
Prior to the trial, the Second Chair should be thinking about what irrelevant and/or prejudicial evidence the other side is likely to present at the trial. The Second Chair should know what this is because the Second Chair sat in or has read the deposition transcripts. Sometimes, it is easy to see where opposing lawyers are coming from and what irrelevancies and inflammatory statements they will likely raise. It is the wise Second Chair that identifies the issue, researches it and proposes that a timely Motion in Limine be filed in order to prevent this evidence from being considered by the Court.
3. Serve Subpoenas.
Non-party witnesses do not show up at trial by magic. Most often, they have been subpoenaed. It is the wise Second Chair that identifies who those witnesses are and prepares and timely serves trial subpoenas on them. This will prevent further tension and conflict at the trial when the First Chair turns to the Second Chair and says something like: “How come John Smith did not receive a trial subpoena?” More often than not, the First Chair will presume that the Second Chair knows or has done this.
4. Coordinate the Appearance of Trial Witnesses.
Every trial should have a game plan in which the order of witnesses to be presented is discussed in advance. The Second Chair should have a list of witnesses and their phone numbers so that a determination can be made as to when these witnesses will be contacted and at which point in the trial they will be required to appear. It is wise to have a schedule and a best estimate of when witnesses will arrive to testify. This is the job either of the Second Chair or his or her paralegal. This will make the Judge happy too when he or she does not have to adjourn the trial because you have run out of witnesses.
5. Gather the Case Law.
You have been litigating the case for three (3) years. During the course of that time, there have been substantial research projects conducted regarding the Motion to Dismiss, the Motion for Summary Judgment and various discovery issues. The case law has been thrown haphazardly into files. Your job, as Second Chair, is to gather the case law, determine what might be relevant for the trial and place it into files in a manner designed for easy retrieval. Do not leave the case law back at the office.
6. Anticipate Objections.
The well-versed Second Chair will be able to anticipate the frivolous, irrelevant and hearsay testimony the other side will seek to elicit which has not been eliminated by a motion in limine (see Point 2 above). The Second Chair who is well prepared will be ready with case law armed to argue against the admission of this evidence and will be able to seek to exclude it during the trial. Throughout the depositions, both parties have likely elicited substantial hearsay which may or may not be subject to an exception. These issues should be considered by the Second Chair before he or she enters the courtroom on the morning of the trial.
7. Make Extra Copies of your Exhibits
It is always the important exhibits that seem to get lost. The irrelevant documents are usually easy to find. Therefore, the wise Second Chair should make multiple copies of the exhibits and avoid giving your only copies to your First Chair who may lose them.
8. Using Exhibits
Once the trial starts, your opposing counsel will act like he or she has never seen or heard of the exhibits you are offering into evidence. They will pretend that they did not attend the deposition, that they did not move to compel production of the very same documents or that they have not analyzed or scrutinized, months in advance, the exhibit you are offering into evidence. They will plead ignorance. They will feign surprise. The only sure fire way to shut them up is to make sure that you can point to the bates stamp number in your production of documents and to the exhibit on your exhibit list which you have hopefully served well in advance of the trial.
9. Coordinate the Delivery of the Boxes.
In some trials, the lawyer is able to walk into the Court holding a single file. In others, transportation is required. The Second Chair should make an adequate assessment of the volume of documents necessary to bring to the trial and make arrangements for those documents to be delivered there before opening statements. The careful trial lawyer almost never leaves documents behind at the office. It is always the documents that you leave behind at the office that you will need. Accordingly, it is a wise practice to bring almost everything space permitting.
10. Keep Track of the Exhibits.
Trials tend to move quickly because some Judges are impatient and some juries, believe it or not, have other things to do. Sometimes, exhibits can be marked into evidence at a furious pace. The confident Second Chair will keep track of the exhibits by keeping a list of them and ultimately obtaining copies to take home after the completion of the trial. The First Chair is usually consumed with the testimony coming out of the witness’ mouth; that is understandable. It is, however, the job of the Second Chair to keep track of the exhibits because these are important during the course of the trial to show to other witnesses and to argue in closing and later on appeal.
Depending upon who is your First Chair, being the Second Chair at a trial can be an unpleasant and sometimes harrowing experience. This is because litigators sometimes lose their ability to communicate with junior lawyers as they age. This causes junior lawyers to sometimes comment: “does she expect me to read her mind ?” The answer to that question is, unfortunately, yes. However, since that is likely impossible for most people, following the simple rules set forth above will make it seem to the First Chair like that is precisely what you have done.