You get the case. Extremely defensible on both liability and damages. You take notes, call witnesses, plot strategy.
You draft the responsive pleading and written discovery requests. You summarize your initial thoughts for the client. You do some research on the plaintiff. Bingo. A prior conviction within 15 years that is likely to be permitted at trial.
You review medical records and other important documents. Lots of them. Bingo again. Prior problems with the affected area and no credible exacerbation from the incident. You hire an expert.
Your paralegal’s medical chronology helps with the big picture, too. Organization is key. Depositions are noted; outlines are prepared.
You speak again with your client. He’s pissed he’s being sued in the first place. You agree that the claim is weak but inform him that it doesn’t take much to file a lawsuit. He wants to countersue. You explain why he can’t. He’s even more pissed. You tell him you understand.
You take depositions. Bingo again. Sworn deposition testimony you know to be false. More impeachment ammo. The jury will hate him.
You defend depositions. Whoops. Some inconsistent testimony. Damage control is developed. Another update to the client. Mediation is scheduled; case value is discussed.
You consider a dispositive motion and do the research. Should be a winner. The plaintiff lacks a fundamental witness. You consider the jurisdiction, though, and decide that, in this instance, a motion for summary judgment will be nothing more than a carefully written letter to your opponent advising him of his case’s weaknesses.
Plaintiff’s medical expert’s fact deposition. Bingo. He clearly didn’t review all records and has a damaging gap in his CV. He’s pretty smooth, though, and from a well-known organization. Attacking him on cross will be crucial.
Mediation. Plaintiff is greedy and has no idea about the extent of your impeachment evidence. It’s not a perfect case, though, and sympathy could be a factor. The case doesn’t resolve. One more chance at the settlement conference, but a trial seems likely.
Settlement conference. You’re there 10 minutes. No deal. A trial date is set. You feel a tingle of adrenaline.
Trial preparation. You pour over literally thousands of documents. You prep witnesses and prepare exhibits. You work weekends and see your family sparingly. When you do see them it’s like breaths of fresh air. Kisses on the heads of sleeping children. Back to work.
Trial day; the first of three. You can’t sleep much and breakfast is light. You lug trial bags and exhibits to the courtroom. You meet with your client then with the judge in chambers to hammer out preliminary matters.
Rulings are put on the record along with the necessary proffers. Time to pick a jury.
Voir dire – questions to potential jurors. Painfully slow but absolutely critical. You play poker; you look for tells. Yep, she’ll feel sorry for the plaintiff and award big cash. Strike. He’ll see right through the plaintiff and will be tight on damages. Damn, stricken by plaintiff’s counsel. Finally, a jury.
They’re sworn and seated.
Opening statements. Plaintiff’s sketchy past is a godsend. Your exhibit blow ups seem worth it, too. Juror 4 is with you from the get go. Juror 6, not so much.
Plaintiff’s case. Direct examination followed by the payoff for a trial attorney: cross–examination with impeachment materials at your fingertips. It’s where highlighters and sticky notes do their thing. After four witnesses, Plaintiff rests.
Motion for judgment at the mid-point. Denied “for now.” What’s that mean? The flaw in plaintiff’s case at the close of discovery wasn’t cured by the close of his case. That should mean we go home early. Not so fast. Looks like the jury will get it.
Defendant’s case. Your subpoenaed witnesses show. Most deliver. Some are intimidated by the plaintiff. Day 2 concludes. Tomorrow’s the thing. Your client and expert will testify. Another late night of preparation.
It’s 3:04 a.m., and there it is. An 18-month case, thousands of documents, and a dozen witnesses, whittled down to a 3-page hand-written closing argument. Crystallized. You get a sense of calm. Win or lose, you’ve worked as hard as you can.
Final day of trial. Your client meets you early as requested. Panic sets in when you see him. You respectfully ask him to hide the Pittsburgh Steelers knit cap he wore into the courtroom, lest the jurors see it. He thinks you’re joking. You’re not.
You call your final witnesses then rest. Motion renewed. The judge comes close to granting it but denies it again. Frustration.
The jury is instructed. Closing arguments are given. You barely look at your 3-page outline. You’ve lived the case, that’s why. The jury leaves to deliberate.
They’re out 15, 30, then 45 minutes. Your client is worried. So are you. You think about Tom Petty and how he’s right: the waiting is the hardest part.
The law clerk enters the courtroom. They have a verdict. The jurors walk in and sit down. Stone-faced, no tells.
Question 1 on the verdict sheet: “Was the defendant negligent?” The foreman stands. “No,” he responds. Your client shakes your hand. You smile and exhale.
Phone calls to the office. Phone calls home. You pack up your stuff and head to the garage. It’s mostly empty. You start the car and exhale again. Decompression.
Until tomorrow when you get another case, take notes, plot strategy.
About the Author
Jason Beaulieu is a founding partner of Timmerman Beaulieu Hinkle & Esworthy, LLC. Jason’s practice focuses on complex civil litigation in Maryland and the District of Columbia, with a focus on insurance defense, school liability, construction litigation, and the retail/hospitality industry. He also advises individuals and businesses of all sizes on general business and risk management issues. He can be contacted by phone at (410) 649-4440 or by e-mail at firstname.lastname@example.org.