Breaking down the movie montage of a trial lawyer at work
If you have a civil lawsuit, you probably won’t ever get to see the inside of a courtroom. That’s because the vast majority of cases reach a negotiated settlement rather than going to trial. At one point or another, both sides usually weigh their risks and reach a compromise. An out-of-court settlement can happen any time. I myself have experienced the clichéd settlement at the courthouse steps.
That said, lawyers need to get ready for trial when the time comes. The preparation itself is a long and arduous process. It can take weeks or, more typically, months. So what goes on behind the scenes?
For the lawyer, trial preparation is about developing the “theory” of the case. That’s the story they wish to tell over the course of trial. This story will be told with the help of documents, photographs, physical objects, expert reports, and, of course, testimony. It’s up to the lawyer to piece this all together before trial. Sometimes you see movies capture this process in the form of a montage. The late nights at the office, the takeout-food containers, researching at the library, and rehearsing closing arguments to yourself—there is a fair bit of truth to these scenes.
For the client, trial preparation is when things get ratcheted up. Up until that point, a client might have dealt with their lawyer only occasionally. All of a sudden, they need to become much more involved to get ready for trial.
Clients may work closely with their lawyers to come up with the theory of the case. Lawyers need to explain to their clients the law, the legal issues at trial, and the arguments to make. With this understanding, clients can identify potential witnesses that would help the lawyer make the case. Witnesses can be anyone: spouses, family members, friends, colleagues, supervisors, business partners, police officers, eyewitnesses to an event, and treating health professionals. It’s basically anyone with knowledge of relevant facts.
Before a lawyer decides on calling someone as a witness, they often meet with them in advance. Lawyers want to know what evidence—good and bad—would come out if that person is called on at trial. After all, the witness is there to tell the truth. The witness is not there to campaign or lobby for a party.
Since much of the evidence at trial is given as testimony, it shouldn’t be a surprise that a lot of lawyers’ time is spent with clients and witnesses. Trials just aren’t done by “winging” it in the courtroom.
At these meetings with lawyers, clients and witnesses often go over documents to help refresh their memory. They learn how to give testimony effectively. The lawyer can even do practice runs of their questions for trial. These questions are designed to draw out testimony that supports the theory of the case.
Lawyers may also practise cross-examination with their clients and witnesses. This will give them an idea of what to expect when the opposing lawyer tries to discredit them or reframe their testimony.
These meetings can take hours. There might be several. They can be physically and emotionally draining. The whole point of all of this work is to ensure that, by the time trial comes around, the testimony will be focussed and clear.
When trial finally begins, everything will have been planned out in painstaking detail. It is often a relatively smooth process. Court is in session Mondays to Fridays, from 10 a.m. to 4 p.m., with breaks in between. The majority of time in a trial is spent on hearing testimony. Individuals take the witness stand and give their evidence, one after another, day in and day out. When both parties have finished presenting all of their evidence, it’s time for closing arguments.
And here’s just one more comment: a civil trial is not like the movies—there really aren’t jaw-dropping moments or gasp-inducing testimony. A civil trial might even seem downright boring for onlookers. That’s mostly because of the vast amount of work done ahead of time.
A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.