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Freeburg Law

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What to expect the day before your jury trial

Wow. The day before a trial is an interesting day. Congratulations on getting this far. Many attorneys and clients turn back or are stopped long before this point. By this time, you may be sick of your attorney. In most civil cases, you’re likely to be a witness. In a few kinds of criminal cases, you’re likely to be a witness. If you plan to testify, then you and your attorney have spent significant time preparing for that. Try not to fixate only on your testimony, you should have a sense of the timeline and what else is important. Your trial could take just a half-day (a simple criminal case with one witness), or a month (a complicated civil or criminal case). Most likely the trial will last between a morning and a month. Your attorney can give you an estimate. What is the one thing you should expect to happen in your trial?

Expect the unexpected

While you may not know exactly what to expect, you should expect something unexpected to happen the day before your trial. No matter how much you plan, there are things that are going to come up. So plan for something unexpected, and think about how you’re going to react. And if it doesn’t happen, you will have more time. Be grateful for the extra time and use it. Here are things I have dealt with over the last 30 jury trials:

the Last-minute settlement offer

For example, it’s possible that the other side will make a last-minute settlement offer. If the settlement offer is good enough, you might want to take it. Or maybe the settlement offer is their way of distracting you from preparing. Set a threshold amount beforehand. If the offer is above it, accept it. If not, game on.

a witness disappears

Another possibility is that a witness suddenly disappears. In an actual case, for example, the prosecution subpoenaed a witness to come to court. The day before trial they realized that he was on vacation in Hawaii. Somehow, they did not explain that a subpoena (a court order to show up that a sheriff will enforce) required the witness to be there. A witness could die, be arrested, or deported. It happens.

the other side wants a continuance

The other side might ask for a continuance. They may even have a legitimate reason for a continuance. Perhaps, there is a snowstorm and their witness can’t catch a flight into town. These are the Rocky Mountains. Snow is a possibility 12 months a year. You should think in advance about whether you would agree to a continuance. Attorneys often feel trapped between professionalism (extending a courtesy to a worthy opponent), and the obligation to the client to say, “Let’s do this!”, Many attorneys dislike continuances on the eve of trial. So do judges. They’ve cleared their calendar and want to finish this case. Generally, you can get a continuance in the months ahead of trial. You can’t get one the day before (unless you have a really good reason).

A last-minute argument

The other side may ask for a last-minute hearing. There are always things for attorneys to argue about. Perhaps the other side wants to know how the judge will seat the jurors during voir dire. Perhaps they want to know their time limits. Or show you a last-minute exhibit.

something breaks

Something about the stress of trial throws people off their game. Computers break and hard drives crash with unusual frequency. People get a 24-hour flu at exactly the right instant, and it often disappears as fast as it came. In my observation, this kind of thing happens most frequently to inexperienced attorneys and to attorneys that don’t want to go trial. It’s almost as if their subconscious manifests an excuse to get them out of trial. Sometimes these reasons will be legitimate. Sometimes they won’t be.

A last-minute ruling

One of the toughest things that can happen is when the judge makes a late-breaking decision that affects how you prepare for and present your case. That’s why it’s important to get out in front of key decisions. Guess what: That’s not always possible or realistic. Things come up.

How you feel

Mostly, you should feel a mixture of fear and excitement. The jury trial is the great arena in American life. This is a competition used to settle the question of who is right (in a civil case), and whether the prosecutor can rule out all reasonable doubts (in a criminal case). It’s your courtroom, not ours. How do you deal with that mixture of fear and excitement? Take a tip from Seth Godin: You dance with the fear. Accept it. Let it in. Give it a seat at the table. But don’t let it control you. Don’t let it rule your decisions. I used to do Alpine rock climbing. Now I do some cautious back-country skiing. The real mountaineers that I’ve gotten to know (not me) have a saying: “Slow is smooth. Smooth is fast.” When they handle the ropes, they slowly tie the knots so that the ropes don’t get tangled. Likewise, if you smoothly handle yourself, you’ll go fast. And you want to go fast. Fast is safe. That’s how you should approach a trial. Slow is smooth. Smooth is winning. That and out-working the other side. Let’s get it!


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