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Trial preparation should begin with a careful review of the current law applicable to the case and a consideration of what legal and factual arguments will be presented to the jury. Such a review is often done in connection with the preparation of a court-ordered final pretrial order or the preparation of a trial brief. Even where such documents are not required by the court, an outline of the applicable law and the critical evidence expected to be put forth in the trial is vital to trial preparation.

As soon as possible before the scheduled trial date, you should consider whether answers to interrogatories or other discovery responses need to be amended or supplemented and whether any pretrial motions need to be filed. Motions in limine should be filed if you anticipate that certain prejudicial evidence may come before the jury in the absence of a court order or if you believe that a favorable ruling will strengthen the possibility of settlement. Again, such motions should be filed as early as possible, and, in any event, you should check all of the court’s scheduling orders to ensure compliance with any motion filing or other deadlines.

As soon as you receive notice of the trial date, check not only your own calendar but also those of clients and potential witnesses to determine whether the scheduled trial date poses a conflict. If a conflict exists with a witness’s schedule, you should consider whether it would be best to take a de bene esse deposition of the witness so that the trial can proceed as scheduled or whether it would be preferable to bring a motion to adjourn. Motions to adjourn may be granted on good cause, including the unavailability of a witness, and the motion must be brought as soon as possible after you learn the facts on which the motion is based.

One of the most important elements of the trial is the presentation of witness testimony, and obviously one of the critical aspects of trial preparation is ensuring that the witnesses will actually be available and present at trial or that their testimony is available in some other form. Subpoenas may be obtained from the court to compel witnesses to appear in court, which is a much safer procedure than relying on verbal agreements (even with apparently friendly witnesses). You should also consider whether the subpoena should contain a request to order the witness to produce documents or other tangible items. If the witness objects to the subpoena, you must either excuse the witness or notify the witness that a court hearing will be held to resolve the dispute.

Such a situation should be rare because you will have met with the witness to learn about his or her testimony and to prepare him or her for trial and will have resolved any scheduling conflicts. Of course, all witnesses should be interviewed before trial, except those persons so closely connected with the opposing party that they may be contacted only through counsel or through the regular discovery process. If the witness is likely to be questioned about documents or other exhibits, those documents should be discussed with the witness as well. Special care should be taken in the preparation of expert witnesses, particularly those who are likely to be cross-examined through the use of learned treatises.

You should also consider whether the appropriate use of discovery materials at trial may substitute for or supplement the testimony of a witness, particularly a witness whose attendance is difficult to obtain. Of course, discovery materials may also be useful for impeachment or for refreshing recollection, if an appropriate foundation is laid for their use.


This material is reprinted with permission from Trial Preparation, by Barbara McQuade, from Michigan Civil Procedure, © 1999 the Institute of Continuing Legal Education (ICLE), ICLE has granted the University of Michigan Law School permission to use this material in a non-commercial institutional repository (http:// to preserve and provide access to the scholarship of the Law School. Any further sharing, copying, distribution, display, republication, reuse, or resale of this material without ICLE’s written permission is strictly prohibited