What to Consider When Preparing for Trial

When you cannot settle your personal injury case, the next step is to file a lawsuit. After you have filed your lawsuit, the discovery process begins. After discovery is concluded and any necessary pre-trial motions are heard, the issues in the case become more apparent and become the focus of your trial preparation.
When gearing up for a trial, there are specific considerations attorneys at Curcio Law take to thoroughly prepare for your day in Court.

Witness Preparation
Witnesses are essential in every personal injury case. Whether it be the injured client testifying, an expert witness testifying about physical injuries caused by a car crash, or an eye witness explaining how an accident unfolded to a jury, witness preparation is crucial. When preparing witnesses for trial, it is critical to review any deposition transcripts and prepare for any issues that might have come to light during the deposition.

Witnesses in a personal injury case need to be prepared by discussing the evidence to be highlighted during their testimony, what to expect during their testimony, and what they should expect opposing counsel to focus on. Depending on the witness, it is crucial to take the necessary time to prepare them for trial and review any potential exhibits that they may be questioned about. This is particularly true for the injured party bringing the case forward to trial.

The majority of the focus of a personal injury trial will be on the injured person, so it may take several lengthy meetings to help prepare the client for trial and help them feel as comfortable as possible for their day in Court. Nothing should be held back during this preparation—your client should be prepared to be attacked on all fronts and feel comfortable responding to any question the opposition may ask.

Exhibit Preparation
Exhibits are any documents, photographs, or tangible objects you expect to refer to at trial and possibly introduce into evidence. Most exhibits are typically exchanged during the “Production of Documents” phase of discovery. Understanding the issues of the case can help you decide what exhibits you want to discuss with witnesses, what facts you want to be drawn out from the exhibits to the jury, and which of those exhibits you want to introduce into the trial.

Before going into the trial, you should know what exhibits you intend to use, how you intend to use them, and how you are going to introduce those exhibits into evidence. This is also an important part of witness preparation, where witnesses are shown the exhibits they will be asked about and explain the purpose of each exhibit.

Medical Illustrations
Medical illustrations are depictions of injuries and/or medical procedures. Medical experts use these to help explain to the jury how the person was injured and the medical procedures performed to treat the injuries in that particular case. Creating medical illustrations may be costly, but they are extremely helpful in demonstrating to the jury the injuries suffered and surgeries performed, adding greater value to a case.

Learned Treaties
Under Virginia Rule of Supreme Court 2:706, certain publications, periodicals, or other learned treaties can be introduced into evidence if relied on by an expert and disclosed to the opposing party within thirty days of trial. This is a great way to introduce another expert opinion into evidence without spending additional money on hiring another expert to testify at trial.

Learned treaties are beneficial if a trial includes two opposing experts with opposing opinions on an issue in the case. For example, suppose a person needs hip reconstruction surgery after a serious car crash and is relatively young. In that case, they will more than likely need a total hip replacement at a later age. If this case were to go to trial, the injured party would need to call a medical expert to testify that it is more likely than not that they would need a total hip replacement in the future. In a case like this, the defense would likely call an expert to rebut the injured party’s doctor and state that a total hip replacement is unlikely and/or unrelated to the car crash. This is where learned treaties would be very impactful to the case. The rule allows a lawyer to introduce medical publications that an expert acknowledges is authoritative in the field to further prove their point. Juries sometimes have difficulty discerning between which experts to believe and which not to believe; introducing authoritative literature in the field corroborates and supports an expert’s opinion increasing the likelihood that the jury will find the expert’s opinion persuasive.

Learned treaties are a very important tool that can be used at trial when experts have different opinions. However, it is important to get ahead of this way before the thirty-day disclosure deadline. First, you want to make sure that your expert is familiar and agrees with any learned treaties you intend to introduce into evidence. Second, you must be sure to comply with any other deadlines imposed by the Court regarding the disclosure of expert testimony and the basis of their opinions. This could be ninety days before trial in Virginia, depending on your expert’s testimony and any scheduling order entered.

Jury Instructions
Well before your day in Court, it is essential to familiarize yourself with the expected jury instructions so you can structure your case around them. Jury instructions contain the law given to the jury from the judge at the end of the trial right before closing arguments, and it is the law that the jury must follow when rendering a verdict.
Jury instructions provide the roadmap of what you need to prove in your case, the burden of proof, any potential liability issues, and the damages your client is entitled to recover. The trial attorney should use the language contained in these instructions before the judge instructs the jury on the law. This builds the attorney’s credibility by showing that they know the law and demonstrate that knowledge to the jury throughout the trial.

“If You Fail to Plan, You Are Planning to Fail” — Benjamin Franklin
Do not wait until the last minute to start preparing your case. You should have a basic understanding and idea of where the case is going well before you even file a lawsuit. As the case progresses, issues begin to be narrowed down, but preparation for trial should begin the moment a client is retained. At Curcio Law, it is always our best practice to assume every case will go to trial and prepare accordingly.