The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

Trial: The Final Countdown
By Jennifer L. Friedland, Lauryn E. Parks and James F. McCluskey

Preparing for trial can be a daunting task. Sometimes the amount of work needed to prepare seems so overwhelming that it can lead even experienced attorneys to procrastinate. The following timeline and tips are designed to help you organize your time and streamline your efforts so that you are prepared on the day of trial.

Before trial begins. Inquire about the procedures of your judge. Each judge organizes his or her trial schedule differently. This can affect how long the trial is anticipated to last, when you will present your motions in limine and jury instructions, and how you should present your case. Well in advance of trial, find out about your judge’s practices and procedures.

Read the local rules. In DuPage County, be careful to review and follow Articles 9.01, 9.02, and 9.03 of the Rules of Practice of the Circuit Court of the 18th Judicial Circuit. In particular, Article 9.03 advises that, in all civil jury cases, the plaintiff’s attorney is responsible for submitting a Statement of the Nature of the Case. But even if you represent the defendant, make sure to have ready an objective, non-argumentative summary of the case, along with a list of witnesses. The Court is interested in moving the case along and will look to you if the plaintiff has not prepared the requisite statement. This document will be read to the jury during the selection process. Also, inquire about any standing orders.

Speak to the judge’s court clerk or assistant about how the judge normally conducts trial and what he or she usually expects in advance. Find out how many hours per day the judge allows for trial. Some judges schedule trials to begin promptly at 10:00 am. Others don’t begin their trial call until later in the morning, or even the afternoon. This can affect how long you should anticipate the trial lasting and when you should schedule your witnesses.

Speak to attorneys who regularly practice before the judge. Find out how long the judge typically allows for opening and closing arguments. Does the judge prefer oral closings if it is a bench trial, or does he or she prefer written closing arguments or bench briefs? Does your judge generally rule on motions for directed verdict and motions in limine immediately, or does he or she generally reserve the decision? If it is a bench trial, how soon should you anticipate the judges’ ruling? Some judges tend to rule immediately, while others tend to take matters under advisement. Also find out how the judge prefers to receive exhibits. Does the judge want them handed up as they are admitted into evidence, or would he or she prefer a trial exhibit binder, so that all the exhibits are contained in one place?

Documents Drafted Before Trial. Have all your motions in limine, motions for directed verdict, and jury instructions ready before trial begins. Don’t assume that you will have time to draft motions or jury instructions after the trial starts – you won’t! Some judges require motions in limine and jury instructions to be presented at the pretrial conference one week before the start of trial, but even if your judge does not have this requirement, plan ahead.

Drafting your jury instructions in advance will not only save you time once trial has started, but it will also help you prepare for trial.  The jury instructions frame the issues and assist you in preparation opening statements and closing arguments.  Drafting jury instructions will guide you regarding the burden of proof and elements of causes of action in the case. Whenever possible, pay close attention to the Illinois Pattern Jury Instructions, as these are the most likely to be given by the judge. Also, the Court’s, opposing counsel’s and your copy of your jury instructions should each contain at the bottom of each page the footer shown in table 1.

Defendant’s/ Plaintiff’s Instruction No. __


IPI _____




[Citation, if modified]  


                                                            Table 1

As you review the proposed jury instructions during the pretrial conference or jury instruction conference, mark on the bottom of each page whether the instruction was given, refused, withdrawn, or whether ruling was reserved. Then, when you get back to your office, you can print out clean copies of only those instructions which were approved after final instruction conference. Prepare a clean copy of these jury instructions for each juror.

Also, anticipate evidentiary issues and be liberal in the number of motions in limine you prepare. When you are reviewing witness deposition transcripts, try to anticipate your objections (or your opposing counsel’s objections) when the witness is called to the stand. Then, put those objections in writing in the form of a motion in limine. Having your objection in writing will ensure that your argument is clear, both for the judge and for the record, and it will also ensure that you have supporting case law readily available. Prepare an order as soon as possible detailing the rulings on the motions in limine.

Prepare a trial notebook. A binder with the key trial documents is an ideal method of keeping everything in one place and staying organized. Organize a three ring binder with the following documents: (1) The court’s trial scheduling orders and standing trial orders; (2) The most recent complaint and answer; (3) A list of motions in limine to keep track of whether each was granted or denied; (4) Copies of the trial subpoenas which you issued, as well as a witness list with contact information for each planned witness (file the trial subpoenas with the Court and retain copies); (5) A checklist of your exhibits so that you can keep track of whether each exhibit was admitted into evidence; (6) Deposition summaries or thumbnail copies of deposition transcripts; (7) Outlines for witness examinations, direct and cross; (8) Copies of any Rules of Evidence or Rules of Civil Procedure which are likely to be at issue, copies of Hunter’s Trial Handbook and Evidence Manual by Cleary & Graham; (9) The parties’ Rule 213 and 214 disclosures; (10) Any key documents or exhibits; (11) Copies of relevant case law; (12) Opening argument notes; and (13) Blank pieces of paper devoted to your notes for your closing argument so that you can draft it in the evening or early morning in between trial days.

Prepare a trial exhibit notebook. Rather than waiting to hand out copies of each new exhibit to the witness, judge and opposing counsel when you wish to introduce it during trial, prepare trial exhibit binders. Mark each exhibit and keep them separated by index tabs. That way, you can hand the binder containing all the exhibits to the witness after he or she is sworn in and direct them to turn to the appropriate tab, rather than making multiple trips back to your trial table to select the exhibit you want to use and walking around the court room to distribute it to the judge and opposing counsel. This is inefficient and lacks professionalism.  Remember to make at least four exhibit binders: one for you, one for opposing counsel, one for the witness, and one for the judge. 

Timeline for trial preparation. Get started preparing for trial at least two months in advance. The following benchmarks are useful to ensure that you stay on schedule.

Two Months Before Trial. Contact your witnesses. Send out trial subpoenas to your witnesses, but also include a letter asking the witness to call you, as well as a copy of the witnesses’ deposition transcript and any important documents which he or she may need to review. If the witness doesn’t call you, make sure to follow up. Make sure that you speak to each witness before trial so you can remind them of the subject matter of their testimony, and to coordinate what time they need to appear.

Start drafting jury instructions, motions in limine, and a bench brief, if necessary. This will not only ease the pressure during trial, but it will also help to narrow the issues, prepare for trial testimony and assist you in preparing opening and closing statements.  Start reviewing deposition transcripts and outline anticipated witness examination questions.

One Month Before Trial. Begin reviewing important documents and draft a preliminary exhibit list. Select key exhibits so that you can order blow ups or power point presentations. Begin outlining your opening statement, case-in-chief, witness outlines and cross-examinations.

Two Weeks Before Trial. Prepare your trial notebook and exhibit binder. Call or meet with opposing counsel to determine if he or she is willing to stipulate to exhibits, waive foundation objections pursuant to Illinois Supreme Court Rule 236, etc.   

Conclusion. Thorough trial preparation is essential to reach an appropriate resolution of a case either by verdict or settlement.  When you come to trial unprepared, you do a disservice to yourself, the court, your client, and your profession.  Win or lose, your reputation and your success as a lawyer depends on persistence and preparation. 

Jennifer L. Friedland is an associate with Momkus McCluskey, LLC, located in Lisle, where she focuses on Commercial Litigation. Jennifer graduated magna cum laude from the University of Kentucky in 2001 and received her degree of Juris Doctor from Tulane University Law School in 2006.

Lauryn E. Parks has been an associate with Momkus McCluskey, LLC since 2008. Lauryn graduated from the University of Chicago in 2003 with a degree in Economics and received her degree of Juris Doctor from the University of Michigan Law School in 2007. Lauryn’s practice is primarily focused on commercial litigation.

James F. McCluskey is a partner with Momkus McCluskey, LLC, located in Lisle, where he practices Commercial Litigation. James received a Bachelor of Science degree in Accounting from Elmhurst College in 1976. He received his degree of Juris Doctor from Northern Illinois University in 1979. James has tried over 55 civil jury trials to verdict in the Chicago-land area, as well as the federal courts of the central and northern districts of Illinois.

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