About Trial Agreements

Better Trials Through Trial Agreements

Litigants, judges, juries, and lawyers all win when counsel can work together and agree on some simple rules at the beginning of a case to streamline discovery and trial. These agreements can reduce expense, stress, and many of the uncertainties that are associated with pretrial rulings and jury trials. We hope that these agreements can prove to be as beneficial in your cases as they have been in ours.

1. Real Witnesses May be Deposed Once Disclosed
Though this governs what may happen in the month before trial, it is an agreement that should be made at the start of discovery. Depositions are typically taken to discover facts and to pin down witnesses who will testify at trial so that there is no surprise. In taking depositions for the latter reason, counsel feel compelled to depose any possible fact witness. If, instead, counsel knows that he can wait til he sees the other side’s real witness list to depose a witness, many unnecessary depositions can be avoided.

2. Limiting the Length of Trial
Lawyers who have participated in time-limited trials usually applaud being disciplined to plan who will really testify and for how long. Most actually give time back. Jurors and courts certainly appreciate this. Again, this is an agreement that ideally should be made at the start of discovery because having an agreement on the length of the trial allows the Court to provide a firm trial date and also removes any incentive to take too many depositions. Openings should not normally last more than an hour per side and closing, not more than two hours per side.

3. “Just in Time” Deposition Designations
One of the most wasteful exercises required by most pretrial orders is the designation in advance of deposition testimony. In most cases, counsel over-designate and end up playing only a tiny portion of what they have designated. Unnecessary designations require unnecessary objections and counter-designations. Because of the speed with which video clips can be edited on the fly, it saves the parties and the court lots of work if deposition testimony need only be designated 48 hours before it is intended to be used.

4. How to Count Deposition Time
Disagreements over how to count deposition time and incentives to over counter-designate can be avoided by agreeing that only optional completeness counters count against the party who plays video clips during its case.

5. The Use of an Agreed Form Motion in Limine
Exhibit A covers things that most lawyers would agree should not be mentioned in the presence of the jury.

6. Limit Exhibit Lists to Documents Counsel Intends to Show to the Jury
Exhibit lists appended to pretrial orders frequently include the kitchen sink. Delegated to young attorneys, they include hundreds of documents that will never be shown to the jury, but that are included just “for the record.” Experienced trial lawyers recognize that this is a waste and unnecessary. That’s why is important that lead counsel commit to personally meet to try to resolve exhibit objections.

7. Admission Upon Mention of Unobjected to Exhibits
In spite of everyone’s best intentions, there are always exhibits on the Trial Exhibit List that counsel decides are not important enough to display to the jury. Pre-admission of all unobjected to exhibits has the effect of cluttering up the record with these unused exhibits. The better practice is to agree that once either side mentions an unobjected to exhibit, whether in questioning a witness or making the opening statement, the exhibit is admitted. The court reporter can easily provide the clerk and parties of a daily list of mentioned and hence admitted exhibits. This agreement allows unobjected to exhibits to be used during openings and dispenses with formal offers that require “no objection” statements by opposing counsel and “admitted” rulings by the Court.

8. Stipulation that What You Produce is Authentic
Almost all authenticity objections can be cured by deposition testimony if given fair warning. This agreement prevents either side from sandbagging its opponent with scores of such objections on the eve of trial when it is too late to cure the problems.

9. Agreed Jury Questionnaires
Even judges that would not normally permit it, are hard-pressed to deny an agreed motion to submit a jury questionnaire. Given the restrictions on lawyer voir dire in many courts, this is about the only effective way to identify jurors that should be subject to a preemptory strike.

10. The use and content of Juror Notebooks
In our experience judges and jurors appreciate these aids to comprehension. As long as they do not become argumentative, opposing counsel can readily agree on a glossary of terms, a cast of characters, and a short chronology. There will be disagreements about what exhibits, if any, should go into the Juror Notebook, but these can be handled by an agreement that each side gets to pick 5 or 6.

11. Note-taking by Jurors
Note-taking is well accepted, although there are some courts that refuse to allow jurors to take their notes into deliberations. This defeats one purpose of allowing note taking—allowing jurors to rely upon their own notes in addition to their memories. Providing the jurors with a photo of each witness helps them remember testimony.

12. Questions by Jurors
Allowing the jurors to ask questions is an innovation that courts are increasingly allowing in order to make jurors more attentive and engaged. Because it improves juror comprehension, both sides should welcome it.

13. Fair Notice of Order of Witnesses
Both sides are able to assign and prepare their crosses by knowing, the weekend before the witnesses are called, of the order in which they will be called. The second, 36-hour notice, is useful if there are any unexpected changes in the order.

14. Demonstratives need not be listed on exhibit lists and need only be disclosed at the last minute
If a chart is to be admitted into evidence and can be consulted by the jury during deliberations, it is to be listed on the Trial Exhibit list just like all other documents. But charts or power point slides prepared by counsel and intended to be teaching aids but not intended to be taken into the jury room need not be so listed. Both sides are likely to use them during openings and on direct and since they are not admitted into evidence, the only real objection would be that they violate a limine order. Because counsel prepare these up to the last minute and because the ground for objection is so limited, counsel should agree to disclose them to the other side immediately before they are displayed. There should be no need to disclose in advance those used during cross.

15. The Use of Preliminary Substantive Instructions and Pattern Instructions
Waiting til the end of the case to tell jurors about the substantive law and what to look for is akin to asking a person to assemble a complicated piece of equipment before reading the instructions. Increasingly courts are willing to consider some preliminary substantive instructions, particularly if the parties agree that they should be given. At some point in time, the parties should ask the Court when it wants them to submit final jury instructions—filing them with the pretrial order is usually much earlier than the Court needs them. The parties can save themselves a lot of aggravation if they will agree to use pattern instructions where they exist. If one side insists on preparing a tailor-made instruction by lifting helpful language from decisions, the other side will obviously do the same and the end result is an instruction that is too long, incomprehensible and a likely candidate for reversal.

16. Final instructions should be given before arguments
This is the case in many state courts, but the Federal Rules, for some reason, provide for the court to instruct the jury after the lawyers argue. This makes for a very awkward argument, with the lawyers having to argue the charge without having the court first give it.

17. Court Reporting Needs
Almost anything can be arranged if requested in advance. With many court reporters competent at real-time reporting, the parties should request this as an inexpensive substitute for daily copy.

18. Sharing Equipment and Power Point Slides
Most courts will require the joint use of equipment because of space limitations. Effective cross or redirect requires that you have available any demonstratives that opposing counsel just used with the witness.

19. Interim Arguments
Interim arguments improve jury comprehension and therefore should be encouraged. But there should be an overall time limit (e.g., each side gets an hour) and an agreement that the arguments will be made in units of a certain amount of time (e.g., 5 minutes) and be made only before or after a witness takes the stand.


About Pretrial Agreements – “Better Preparation Through Pre-Trial Agreements
About – “How It All Came About

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