Long Trials Require In-House Counsel to Be the Lead Coordinator

Lengthy trials present unique challenges for corporate counsel and their trial attorneys, who must work hand-in-hand to ensure success for their clients. Good communication between the trial team and in-house counsel can reduce friction and stress on both the litigators and their witnesses.

No matter if you’re in-house or outside counsel, here are some valuable lessons to consider before entering the courtroom.

Longer trials require bigger teams. This is true no matter how many people stand up in court or present witnesses. My first trial lasted two days and included four witnesses. I tried it with one attorney, one box of documents, and no paralegals. As my cases grew in complexity, the teams got bigger. Later in my career, I had a six-week trial with a seven-attorney trial team, and a nine-week trial with a 16-attorney trial team.

The standard preparation of friendly witnesses (reviewing exhibits, discussing the deposition transcript, preparing for expected cross) can take hours or days, depending on the witness’ role in the case. This prep often takes place while other witnesses are on the stand. If three witnesses are called to the stand on Wednesday, some may need to be prepared on Monday or Tuesday while the court is in session.

The people performing this prep must be familiar with the case and (hopefully) with the witnesses (from discovery). The stakes at risk, the complexity of the facts, the number of experts all affect team size. One surprisingly important variable is the length of the trial day—longer days mean the need for more testimony and less time at night to prepare for the next day.

Trial counsel and in-house counsel who agree on what the trial, and trial team, will look like ensure the resources and expectations are aligned for success.

Continuity requires effort. The case you put on is never exactly the case you plan for. A good trial team must be dynamic and flexible. Adapting to what’s going on in court is easy for short trials, as the whole team is usually in the room.

For longer trials, most of the team won’t be in court at the same time, and information can get siloed. Earlier in my career, I watched a colleague examine a witness about a defense that the team’s leadership had abandoned weeks earlier.

Continuity, however, is more than just avoiding glaring inconsistencies between witnesses. Sometimes, it’s as simple as not asking multiple witnesses to re-explain the same concept, unaware that the jury has already heard days or weeks of testimony on that point.

An attorney focused exclusively on continuity during lengthy trials will strengthen the trial team. At the counsel table every day, this person can review outlines, watch witness prep, and offer real-time insight to the lead counsel. If a member of the in-house counsel team is available to contribute to this function, it can give in-house counsel the same confidence as the trial lead for the purpose and direction of each planned exam.

Creating a witness schedule is challenging. At trial, each side tries to tell a story through their witnesses, and there’s an optimum order in which to present the witnesses.

This order is rarely achieved. Each witness (even the experts) must take time away from their planned work to prepare for trial and then to testify. And each witness comes with parameters that make scheduling difficult (childcare responsibilities, board meetings, long-scheduled vacations).

For company employees who will serve as witnesses, corporate counsel has a vital role in interpreting the trial team’s needs, setting the witnesses’ expectations, and ultimately getting their buy in for the process. This is made easier if the witnesses’ expectations and needs are discussed when the witnesses get deposed—and again when a trial date is set—so there are fewer surprises. Because there will be surprises.

Once a trial begins, the witness schedule may be useless. The quickest way to anger a judge is to waste the court’s time, such as not having the next witness available when the one on the stand finishes. For a three-day trial, this is relatively easy; the plaintiff’s case must end by the middle of the second day, and the defense’s case closes at the end of the third day.

Logistics are much more complex for lengthy trials because there is no reliable way to determine how long each witness will be on the stand. Although attorneys can clock their own witnesses’ exams, the other side’s cross may run long or short. If a cross goes short, the next witness may need to be available earlier than planned. String a few of these together and witnesses may appear days earlier than expected.

The person responsible for managing the witness schedule must stay in regular (sometimes hourly) contact with in-house counsel, who must help the witnesses appreciate the range of possible outcomes. Honest discussions early on with these witnesses about the need for flexibility at trial will help.

An on-and-off strategy can be employed for witnesses with conflicts, if the judge permits. This process involves asking the court to set aside a specific time for testimony (say starting at 10 a.m. on Tuesday). If another witness is on the stand at that time, they are excused so the time-challenged witness can testify on schedule. When that testimony is finished, the prior witness can resume.

This creates disruption, of course, and only so many of these passes can be offered without undermining trial strategy, so in-house counsel must be involved in selecting the witnesses who get this preferred treatment.

By working together—and anticipating the demands arising from lengthy trials—in-house counsel and litigating counsel can ensure the court sees the best presentation possible, with the least stress on lawyers and witnesses.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Kenneth Dintzer is partner in Crowell & Moring’s antitrust and competition, government contracts, and litigation and trial groups.

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