This document summarizes trial preparation techniques discussed at an in-service continuing legal education (CLE) seminar hosted by Adam Leitman Bailey, PC. It emphasizes the importance of thorough factual investigation and preparation before trial, including conducting discovery, investigating facts, selecting witnesses, gathering evidence, and being prepared for trial. Specific preparation techniques discussed include taking depositions, serving discovery demands, visiting the scene, researching witnesses and facts, selecting helpful witnesses, subpoenaing records and witnesses, and preparing expert witnesses.

1. Colin
E.
Kaufman
Adam
Leitman
Bailey,
PC
February
14,
2013
Trial
Preparation
In-­‐Service
CLE
ADAM
LEITMAN
BAILEY,
PC
February
14,
2013
Colin
E.
Kaufman

2. Colin
E.
Kaufman
Adam
Leitman
Bailey,
PC
February
14,
2013
In-­‐Service
CLE
1
Trial Preparation
“Before beginning, plan carefully.” Marcus Tullius Cicero
“Preparation is the be-all of good trial work. Everything else – felicity of
expression, improvisational brilliance - is a satellite around the sun. Thorough
preparation is that sun.” Louis Nizer
“The fight is won or lost far away from witnesses - behind the lines, in the gym,
and out there on the road, long before I dance under those lights.” Muhammad Ali
“The mode by which the inevitable comes to pass is effort.” Oliver Wendell
Holmes
“If you don’t know where you’re going, you’ll end up someplace else.” Yogi
Berra
“I find that the harder I work, the more luck I seem to have.” Thomas Jefferson
Two things win cases – facts and preparation. You can’t do anything to change the
first. You can do a lot about the second.
Factual investigation is what enables you to present your case effectively and to be
aware of the holes in your adversary’s case. No amount of courtroom brilliance, no
rhetoric, no knowledge of the intricacies of the law, is going to help you if you
don’t know all of the facts. As a trial lawyer, you are limited by time and budget in
what you can do, but in every case, you should have done as much investigation as
those two constraints admit.
Before you reach the courtroom, you should have spent as much time as you (and
your client) can afford with your client, the witnesses and the documents. You
have to know as early as possible what you are going to prove, how you are going
to prove it and what your opening and summation are going to look like in broad
strokes.

3. Colin
E.
Kaufman
Adam
Leitman
Bailey,
PC
February
14,
2013
In-­‐Service
CLE
2
Judicial Investigation
DISCOVERY
1. “paper” discovery (common ones follow)
a. Demand for a Bill of Particulars
b. Demand for Discovery and Inspection
c. Demand for witness information
d. Demand for expert witness information
e. Demand for collateral sources / Demand for
insurance coverage
f. Demand for appearances
g. Notice for entry upon land
h. Deposition Notice (see below)
i. Interrogatories
i. Every discovery demand and response is
served on every party
ii. Papers discovery and responses do not need
to be filed and almost never are
2. Depositions
a. Parties
b. Non-parties
i. Deposition subpoena duces tecum
ii. Notice to adverse parties
c. Deposition is an out of court oral sworn statement
in a question and answer format
i. Depositions are taken down by a court
reporter and sometimes a videographer
ii. Normally taken at the office of one of the
lawyers
iii. Transcript is sent by the inquiring lawyer to
the deponent’s lawyer for client review and
execution; transcript is then returning fully
executed to the inquiring lawyer
3. Notice to Admit (the only one with a self-executing date)
4. Firm dates are set at a Preliminary Conference
a. Sometimes a judge, sometimes a law secretary

4. Colin
E.
Kaufman
Adam
Leitman
Bailey,
PC
February
14,
2013
In-­‐Service
CLE
3
-25-
Non- Judicial Investigation
1. Visit the scene
2. Background everybody (including your client)
3. Use the internet (handout from two weeks ago)
4. Speak with every potential witness
a. Investigative interviews are not witness prep
b. Just because someone was a witness doesn’t mean
you should call him
5. Read
a. All the pleadings
b. All the disclosure
c. Facts not shown in disclosure
d. PJI
e. Cases
6. Winnow for your direct case
Evidence
You prove or defend cases with evidence
With minor exceptions, there are only four types:
1. Testimonial
2. Documentary
3. Real
4. Demonstrative
The Starting Point:
“all relevant evidence is admissible unless its admission violates some exclusionary
rule” People v. Scarola, 71 N.Y.2d 769, 525 N.E.2d 728, 530 N.Y.S.2d 83
(1988)
AND REMEMBER
Unobjected to evidence is admissible CPLR 4017, Gamman v. Silverman, 98
A.D.3d 995, 950 N.Y.S.2d 598 (2d Dept. 2012).

5. Colin
E.
Kaufman
Adam
Leitman
Bailey,
PC
February
14,
2013
In-­‐Service
CLE
4
Gathering the Evidence
1. usually you only get one shot at real evidence
2. get there early
3. talk to everyone you can
4. get all your client’s documents and all your adversary’s
discoverable papers gather up everything you can
5. photograph everything you can
6. have someone mark it, bag it, tag it
7. for fungibles, you must establish chain of custody - for
everything else, you should
Witness
selection
1. You are telling a story
2. Use those you have to use
3. Don’t call witnesses just to please the client
a. If they don’t add to the case, don’t call them
4. The best way to deal with a problem witness is not to call
him
5. Considerations (aside from knowledge) for a “friendly”
witness
a. Clarity of expression
b. Smartness (not just intelligence)
c. Appearance
d. Sympathy
e. Amenability to preparation
f. Skeletons
i. Demonstrable bias
ii. Prior bad acts
6. Do not assume, just because your witnesses have
cooperated thus far, they will come in willingly. Subpoena
them (nicely). Subpoena the records you need (but not
those your adversary needs to establish a prima facie case).
Make sure your expert (a) is available, (b) is prepared and
(c) has read everything which could conceivably be thrown
up to him.

6. Colin
E.
Kaufman
Adam
Leitman
Bailey,
PC
February
14,
2013
In-­‐Service
CLE
5
Trial Files
1. This is not the time to be bashful about killing trees
2. One file per witness
a. Contains everything that witness previously said
b. Contains exhibits you want her to sponsor
3. Exhibits for direct - original exhibit (clearly identified)
a. Copy for you (so you can question about contents)
b. Copy for Court
c. Copy for opposing counsel
d. 8 copies for jury notebooks (if you are doing that)
4. File for cross
a. Prior testimony, indexed and MARKED
b. Impeachment materials
i. Copy for you
ii. Copy for court
iii. Copy for opposing counsel
c. Everything else
5. Pleadings file (marked pleadings if you are Plaintiff)
6. Motions files
7. Photos, maps, diagrams (other than those specific to a
witness), each x 4
8. Correspondence (usually in chron order)
9. Trial memoranda
10.Your trial bag of tricks
a. Magnifying glass
b. Ruler
c. Colored markers
d. Magnifying glasses (specs)
e. Tabs & yellow stickies of various sizes
11.Your reference books
a. CPLR
b. Other applicable statute(s)
c. Freedman – NY Objections
d. Case-specific treatises

7. Colin
E.
Kaufman
Adam
Leitman
Bailey,
PC
February
14,
2013
In-­‐Service
CLE
6
Theory
of
the
Case
and
Themes
Theory of the Case
1. Structural
a. What happened? Why? How?
2. Everything you do at trial has to support your
theory of the case
3. How do I as a juror do the right thing
4. Unstructured evidence will confuse the jury and
lead to a loss
Themes
1. Themes are the trumpet calls you want sounding in
the background of everything you do – a reason that
the jury wants emotionally to follow your theory of
the case.
2. A good theme should have an “Oh, come on – that’s
obvious” quality
3. Examples
a. Honest people pay their debts
b. A man’s word should be his bond
c. This lawyer was responsible to do what other
lawyers would do in the same situation
PREPPING THE WITNESS
Ideally, you meet the witness at least four times
First - during your factual investigation
Second - depo prep
Third - initial trial prep
Fourth - immediately before trial testimony
Deposition prep is very different from trial prep

8. Colin
E.
Kaufman
Adam
Leitman
Bailey,
PC
February
14,
2013
In-­‐Service
CLE
7
1. you can’t win at deposition, you can lose (but note
contrarian theory – come on strong at deposition to settle)
2. at deposition you are being interrogated, at trial you are
telling your story
3. you will never convince the opposing lawyer
that you are right; you can convince a jury
4. 10 word rule v. tell your story
5. speaking for the record v. discussing what happened.
In almost every case, the witness has never done this before
- remember that
Familiarity with the courtroom
1. if you can, take the witness to a
courtroom - best is if you can take her to
the courtroom - if you can’t take him there,
diagram it
2. tell him how to walk up to the stand,
how to take the oath (find out if he needs to
affirm), and how to leave
don’t discuss the case within a mile of the courthouse
Familiarity with procedure
-first direct by me, then cross by the other lawyer, maybe
redirect, maybe recross - the judge may ask questions
-how will I show you the evidence?
- what do you call the judge?
- how should you dress?

9. Colin
E.
Kaufman
Adam
Leitman
Bailey,
PC
February
14,
2013
In-­‐Service
CLE
8
Familiarity with events and objects
-tell me what happened; do it again
- review the documents
- what do you do if someone hands you a
document? - what do you do if the other lawyer
reads from a document?
- what do you do when the other lawyer reads
from a transcript?
-here are the areas we are going to cover
-here are the areas the other lawyers may ask you about
Preparing the substance of the examination
- tell the witness what the issues are in the case
- tell the witness why he is here
- let her tell you the story, not the other way around
- do a lot of who, what, when, where, why & how
- find out how it smelled, felt, sounded
- show the witness the evidence - have him handle it, let him
tell you about it
- drop your buzzwords into the questions (in great
moderation) - don’t script the testimony - tell the witness
that the questions won’t be the same, although the areas
will be

10. Colin
E.
Kaufman
Adam
Leitman
Bailey,
PC
February
14,
2013
In-­‐Service
CLE
9
The Rules - Ten Commandments (one with subparts) plus a hint
1) TELL THE TRUTH
2) Show up when you are supposed to
3) SLS – communicate
a) look at the jury
b) remember who has to be told what happened
4) Don’t guess or speculate
5) Don’t answer a question you don’t hear or understand
6) Make times, dates and distances estimates (unless you
know)
7) When you hear an objection, wait. You can answer if it
is overruled; you don’t answer if it is sustained; ask the
judge if you’re not sure what to do
8) You will be nervous - it’s okay - breathe deep and hold on to
the chair - don’t fidget
9) Know what you said before, but your deposition transcript is not
a script
10) Deal with cross-examination
- Same obligation of courtesy and truthfulness as on
direct, but don’t volunteer and don’t explain
- don’t try to anticipate
- don’t try to outsmart the cross-examiner
- don’t get mad
- Cross-examiner gets to suggest an answer, you don’t
have to accept the suggestion
-You don’t have to answer “yes” or “no”, even if
someone tells you that you do
Hint: Go to the bathroom before you testify (while you’re there,
check how you look)