51 – Malorie Peacock – Preparing Yourself and Your Case for Trial

What this episode covers

In this Trial Lawyer Nation podcast, Michael Cowen talks with his law partner Malorie Peacock to discuss trial prep. Trial prep has been a topic many of our viewers asked to hear more about, so this episode covers everything from file organization, to witness prep, opening and voir dire, visuals, your exhibit list, and the mental toll trial can have on you personally. To begin, Malorie starts with how important it is to be organized. She begins her organization process 30 days out by putting her exhibits together, printing out the jury charge and witness list, then looking at everything and thinking about the game plan. Her goal from there is to create a 1 or 2 page “order of proof for trial” with exhibits, list of witnesses, and the key points to be made in the trial. Michael agrees and shares a common mistake he sees a lot of lawyers make when they “put every possible piece of paper from the case on their exhibit list.” He suggests lawyers ask themselves: A) is this an exhibit necessary for the jury to see, or B) do I need this to protect the record? Then review how many exhibits you have and what is their order. “If the focus of your case is trying to get the medical bills in your case, then your first exhibit is a summary of all of the medical bills and the medical treatment in the past … so the jury knows when they open the binder ‘this is what we’re focusing on and this is the focus of the case.’” Malorie continues. Michael also shares how he organizes his complete list of exhibits on his laptop, so if at any point in trial he needs to pull up an exhibit on the fly he can quickly find it. It takes a lot of time and energy to write a good opening and prepare for voir dire. Which is why Michael and Malorie discuss how changes in your story throughout a case, can affect the opening and voir dire work you do early on. Michael gives an example of this on a case he will try in February with Malorie. Months before trial they worked with a consultant on the case, had a theory on the case, graphics already prepared, then after they developed all of the evidence they decided it wasn’t the best story to tell. Creating a new story and theory may be extremely difficult to do after investing lots of time, money, and energy, however it’s an important part of the trial preparation process. Which leads to a conversation on storyboarding, creating visuals, and how Sari de la Motte helped Michael rethink his use of the phrase “a simple case” when talking to the jury and using visuals. Malorie brings up just how important it is to tell your witnesses where they should be looking when they answer questions. We as attorneys may think it’s obvious a witness should talk to the jury when answering a question, but in reality it’s normal for you to look at the person you are talking to. “I think people believe that trial lawyers are natural public speakers, but if you’ve ever been to a conference you know that’s not true,” Malorie explains. You might think “it’s only 12 people,” but when your entire case relies on those 12 people, on a really important matter, and your client is watching you, the nerves start to creep in so you have to practice. And practice does not apply simply to speaking, Michael shares his reasoning for adding several solid black slides in his PowerPoint in order to command the attention of the jury when visuals are involved. Michael then transitions the conversation by expressing his opinions on why every case will have a different order of witnesses. You should determine the order of witnesses based on each case, start strong, think about a witness who can prove the defendant did something wrong, think about when a witness goes on (time of day and when the jury has low energy), and be sure to end with a message of the harm that was caused but a hope of what a verdict can do to help. But emergencies happen and people are late to court, so Malorie reminds you to be flexible.