It is often said that what really happens in a trial is the product of intensive preparations beforehand. Generally, you are in grave trouble if your adversary is better prepared than you. It is sometimes helpful to remember what the judge often charges the jury in connection with the term “preponderance of the evidence.” If the scales of justice tip ever so slightly in favor of the plaintiff, the defense loses. In order to win, the defense must overcome sympathy, surmount the “deep pocket” image and make the defense scales tip lower. This takes preparation.
Some counsel are great trial lawyers but poor organizers. Others are very methodical but fail to appreciate the realistic problems associated with a trial, like logistics. The following matters may generate further productive thoughts. For simplicity the context I use here is the defense of a complex products liability trial. The basic concepts, however, are also applicable to preparation for the plaintiff’s side and to trials in other types of cases. However, no attempt is being made here to provide an exhaustive checklist of relevant considerations. That is up to you.
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