“This case will never see the inside of a courtroom.” “This case will settle.” “We just need initial discovery and then we can file our motion for summary judgment.”
Many attorneys find reasons why they don’t think about trial. That is a mistake, even if you believe your case will never proceed to trial. You should be thinking about trial from day one. This should guide every aspect of your case. There should be a determination at the outset regarding what needs to be proven at trial. While it may change, your theory of the case should be in mind after your first client meeting.
Attorneys have an obligation to diligently and zealously advocate for their clients. If you aren’t thinking of the end game, not only is this obligation not being met, but also you place yourself at a disadvantage.
It is imperative to assess all evidence and every witness. For example, you learn the plaintiff in a slip and fall case was convicted of DUI twice last year. Well, okay, but your case does not involve driving or impairment. Will that evidence be admissible? Will it be relevant per NRS 48.015 and 48.025? If you clear that hurdle, will you be able to argue it is more probative than prejudicial per NRS 48.035?
Thinking about trial helps in formulating discovery. Solely using a template for written discovery is not thinking about trial. If you are not concentrating on what you need to prove or how to defend the case against your client, how is the discovery going to be of any benefit?
Most clients request evaluations early and often, so working towards trial helps. Rarely will a client want to know if you found any great evidence for mediation. They want to know what will likely happen at trial. Plus, unless your “smoking gun” evidence is admissible, the other side will not be concerned about it. For example, if you retain an OSHA expert with no medical background and he renders a spectacular opinion about why your client needs a future surgery, will it matter? Is that expert ever going to present that opinion?
Thinking about trial is not just about whether evidence will be admissible. This will also help to detect and prevent spoliation. Perhaps it will help you to determine whether evidence has been spoliated and whether you will be entitled to an adverse inference or rebuttable presumption. See Bass Davis v. Davis, 122 Nev. 442, 134 P.3d 103 (2006).
Sometimes you may be called to the scene of an incident right after it occurs. If you are not wearing your trial hat, the results could be disastrous. This is especially true if you are accompanied by an expert and evidence is not preserved, is altered, or is destroyed.
Focusing on trial helps to evaluate witnesses. Does the witness have personal knowledge of the event or was he told about it by his friend’s cousin’s brother? See NRS 50.025. Will the witness’ testimony about what someone told him find a way around the hearsay rule in NRS 51.065? If not, the witness has no value.
It is particularly important to think about trial during a deposition. Pursuant to NRCP 32, a deposition transcript can be utilized in a number of ways, including for impeachment. This becomes even more critical if the deposition is being taken to preserve testimony of a witness who will be unavailable. NRCP 32(a)(4). Further, making proper deposition objections is important so they are not waived at the time of trial. See NRCP 32(d).
Something as simple as obtaining records needs to be done with trial in mind. Will adverse counsel stipulate to their admissibility? It is more likely they will if a custodian of records verification is included. See NRS 52.260.
Trial mindfulness typically dictates that experts should be retained early. If a decision is made not to utilize them to testify, they can be used as a consultant. This is magnified if you know or should have known you will need an expert for a certain issue. NRCP 16.1(a)(2)(E)(ii) provides that a rebuttal expert is not one “whose purpose is to contradict a portion of another party’s case in chief that should have been expected and anticipated by the disclosing party, or to present any opinions outside the scope of another parties disclosure.” If you don’t know what you need to prove or what you need to defend against, you could miss out on retaining the proper expert at the proper time and be precluded from calling an expert at trial. For example, an accident reconstruction expert in a disputed liability auto case is probably not a rebuttal expert.
Having a trial mindset reminds you that all documentation and tangible things a party has in its control and “may use” to support its claims or defenses, including for impeachment or rebuttal, must be produced. NRCP Rule 16.1. Further, pursuant to NRCP 26(e), there is an ongoing duty to supplement any such disclosures. A failure here could result in evidence being stricken.
Trial forethought mandates keeping track of evidence which is disclosed during discovery that you may need to exclude with pretrial motions. There may be evidence provided which requires additional foundation to cure evidentiary problems so it will not become the subject of a motion. If that is not on your mind, you may lose the ability to utilize evidence.
Finally, if you have dutifully kept track of trial issues throughout, you will have a strong head start on any trial briefs you may submit to the court pursuant to EDCR Rule 7.27. And, of course, your case may actually go to trial.
There are many reasons why attorneys should think of trial ramifications from day one. Without doing so, you arguably are not zealously representing your clients and not handling their cases to its fullest extent.
About this article: This article was originally published in the Communiqué, the official publication of the Clark County Bar Association, (August 2022). See https://clarkcountybar.org/member-benefits/communique-2022/communique-august-2022/.
About the author
Kevin Diamond, Esq. grew up in Vegas and is a Shareholder at Thorndal, Armstrong, Delk, Balkenbush & Eisinger. He has practiced as a civil litigator since 1993. He serves as a Short Trial Judge, Arbitrator, Mediator, and is a CAP (Children’s Attorneys Project) attorney for LACSN.
© 2022 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.
