Building a Trial Team
“If you think it’s expensive to hire a professional to do the job, wait until you hire an amateur.” —Red Adair, oil well firefighter and American hero
Getting ready for trial can be a complex process, but putting your team together doesn’t have to be. You have some people on your team that you wouldn’t dream of going to trial without, and that’s as it should be. However, every trial is different and will require different skills. This means you may need to look outside your firm for specialized expert support, rather than asking the paralegal to also be the graphic designer.
When there is a need to hire an expert in trial preparation, follow these tips to make sure you get the right team in place.
Hiring: A Two-Way Street
Make no mistake, as much as you are interviewing potential trial support consultants and other vendors, they are interviewing you. If you expect to work with the best, it’s important to bring your “A” game to the hiring process.
Define the needs. Do you want to focus on documents or is this a complicated patent case that would benefit from serious 3-D animation? Taking time to understand what is needed is the first step in deciding what outside support to hire.
Define the timeline. Is trial right around the corner or (potentially) years away? Will you want materials for pretrial hearings or unusual exchange deadlines? Understanding what will be needed and when is key to successful trial prep. Bear in mind that some things (like jury research and testing of arguments) should take place periodically throughout the process, to ensure that your themes and arguments resonate with potential jurors as the case develops.
Know when to ask for help. You may be fortunate to work in a large law firm, with unlimited resources at your disposal, including an army of attorneys, paralegals, administrative professionals, IT managers and other support teams. But even large firms may need help with trial graphics, trial presentations or jury analysis.
Dig a little deeper. Anyone can do a quick Google search for a trial graphics firm or ask a colleague for jury consultant recommendations. This is a fine way to start the search, but it shouldn’t end there. Attorneys who create the most successful teams take the time to ask questions, meet with prospective consultants, and understand that what they really want is a new member of their trial team who can add to the case strategy. That means that at the very least, you should ask:
- Have they worked with your firm before? If so, with whom and on what matters?
- How many trials have they worked on? Have they worked on trials similar to the current matter?
- What exemplar case materials can they show?
- What references can they provide?
- Do they have the capacity/staff to handle the matter?
Be honest about your budget. Nobody likes surprises—not you, not the client and not the vendors and consultants. If there’s a budget in mind (or your client has given you a budget), be honest from the outset and see if the prospective consultant can work within it. If they aren’t willing to work with your budget, they are not the right people to add to the team.
Engage outside support early. Trial support consultants are subject to the same conflict rules as attorneys and have to run cases through a conflicts check before accepting work. Engaging outside support early will ensure that you get the team you want to work with, rather than the team you have to work with.
Get it in writing. Make sure that before any work product is produced you have signed a formal engagement agreement (most consultants and vendors have a standard agreement that can be altered to suit particular needs), paid any retainers, and had the new team member sign any confidentiality agreements required by the court or the client.
Getting to Work
Now that you have vetted your team and have them in place, you need to put them to work. Regardless of whether you are swimming in a pile of papers or are ready to start creating demonstratives, follow these tips for getting the best results with the team you have assembled:
Keep the lines of communication open. If key dates change for trial or if the motion for summary judgment goes stunningly well, remember that it’s important to keep the entire team up to date on both internal and external milestones. This allows them to plan the best ways to support you. It also gives them a chance to celebrate (or commiserate) with you.
Set clear expectations. People will live up or down to your expectations. As the lead on the case, it’s up to you to set clear, concise and achievable goals—for the entire team, not just the vendors and consultants.
Be available. We all have had the client who has gone “radio silent.” Consultants understand how busy attorneys are, especially in the thick of trial prep. But they need to be able to get a hold of you (or a trusted colleague also working on the case) in order to vet materials, decisions and plans. Not making yourself and/or your team available can potentially cost you, the firm or the client far more than necessary if work continues to progress on projects when in fact the case is at a standstill or in serious settlement negotiation.
Stay open to new ideas. I’m not advocating making choices that are risky to the case, but if someone wants to provide you with a PDF instead of a PowerPoint, you might find that it works just as well (or even better, if you are trying to view it on a mobile device). Just because you have one way that you have always done something, doesn’t mean it always has to be done that way.
Stay involved. As a consultant, there are few things more disheartening to hear from a lead attorney than “That isn’t what I meant at all!” after having worked closely with a designated junior team member. Clients also don’t like to find that work has not progressed in the expected direction. The best way to avoid this is to stay involved and review work in progress often.
Provide feedback. Your team does not just want feedback; it needs it. The goal is a favorable result in court. If you are not headed in that direction, the support team needs to hear from you directly.
But know the difference between feedback and confrontation. There are constructive ways to provide feedback and not-so-good ways to provide feedback. Constructive feedback lets the team members know how they’re doing and how they can improve. It gives them a clear goal and the inspiration to reach it. Not-so-constructive feedback involves blaming, personal attacks, unclear mandates and often, a raised voice. That doesn’t inspire anyone to do anything—except maybe quit.
Understand what’s next. In other words, what does the team need to do in order to keep the vendors and consultants on track? And what do the vendors and consultants need to provide to keep you or your internal team moving forward? Stay on top of these ever-changing to-do lists or get someone who can.
Monitor your costs. Make sure your consultants keep you up to date on your spending. Getting to closing argument, only to discover that you have spent every penny your client has approved on expert graphics is both disappointing and potentially disastrous. Staying on top of your spending is strategically and fiscally critical.
A large part of winning in court is building a trusted, skilled and motivated trial team from inside and outside the firm. By choosing the right people, keeping the lines of communication clear, and being sure everyone understands the goals of the case, you can create and sustain a team that knows what you need, when you need it, and how you’re going to get it.
This article is reprinted with permission from the February 2, 2012 issue of The Recorder.
©The Recorder, ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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Appeared in The Recorder
February 02, 2012