It’s
often
said
that
1%
of
civil
cases,
if
that,
go
to
trial.
Because
so
few
cases
go
to
trial,
many
litigators
do
not
view
their
cases
through
the
prism
of
trial,
but
rather
the
prism
of
settlement
–
what
do
I
need
to
do
to
settle
this
case?
Resolve
it
at
mediation?
Broker
a
deal?
Conventional
wisdom
would
dictate
you
play
the
percentages,
and
if
most
cases
settle,
why
prepare
them
as
if
they
may
go
to
trial?
There
is
a
misunderstanding
underlying
this
approach,
which
reveals
a
paradox.
The
paradox
is
that
if
you
treat
every
case
as
if
it
were
going
to
trial,
you’re
more
likely
to
settle
them
on
favorable
terms,
less
likely
to
try
these
cases,
and
if
you
do,
are
more
prepared
to
try
them
if
they
go.
Whenever
you
first
get
a
case,
approach
it
as
if
it
will
go
to
trial
(even
though
it
likely
will
settle,
perhaps
well
before
trial).
Do
the
following
at
the
inception
stage:
-
Review
the
jury
instructions.
They
provide
the
parameters
and
guidelines
for
your
case.
Pull
them
and
read
them
carefully.
Consider
whether
you’ll
need
special
instructions,
and
if
so,
how
they
should
read. -
Start
thinking
about
your
trial
theme
and
theory.
Trial
lawyers
talk
about
what
their
trial
theme
and
theory
are,
but
some
wait
too
long
to
develop
them
and
then
try
to
make
all
the
discovery
from
the
case
fit
into
a
trial
theme
or
a
trial
theory
on
the
eve
of
trial.
Evaluate,
consider,
and
test
trial
themes
and
theories
from
day
one
to
determine
which
ones
work
best
for
your
facts
and
the
law
(namely,
the
jury
instructions).
If
you
wait
too
long,
it’ll
feel
like
squeezing
a
square
peg
into
a
round
hole. -
Consider
what
exhibits
and
demonstratives
you’ll
use
at
trial.
Almost
every
trial
has
exhibits
and
demonstratives
to
assist
the
jury
in
understanding
your
case
and
seeing
the
case
through
your
prism.
What
documents
will
you
show
the
jury?
What
photos?
Videos?
Audio?
E-mails?
Text
messages?
Who
will
introduce
them?
Discuss
them?
Show
their
relevance?
Their
importance?
And
what
demonstratives
will
you
use
to
help
the
jury
understand
the
case
on
your
terms?
A
chronology?
A
diagram?
A
chart?
A
drawing?
A
map?
An
illustration?
Start
thinking
about
the
visuals
early
in
your
case
and
consider
relying
on
them
in
depositions,
mediation,
and
at
hearings. -
Conduct
discovery
with
an
eye
toward
trial.
If
you
serve
interrogatories,
requests
for
production,
or
requests
for
admissions,
serve
discovery
requests
with
an
eye
toward
trial.
What
interrogatories
should
I
propound
that
will
help
me
present
my
case
at
trial?
What
documents
should
I
secure
to
show
the
jury
my
perspective
at
trial?
Same
thing
with
depositions.
Ask
every
question
you
expect
to
ask
at
trial.
Go
through
the
lines
of
questioning,
the
topics
and
points,
and
the
specific
questions
you
would
ask
if
you
were
trying
the
case.
You’ll
be
relying
on
these
transcripts
to
prepare
your
examinations
at
trial,
so
to
avoid
surprises
at
trial,
test
all
your
questions
at
deposition.
And
you
can’t
impeach
a
witness
if
you
didn’t
ask
the
right
questions
in
the
deposition. -
Hire
Experts
who
will
perform
well
at
trial.When
you
hire
experts,
do
your
due
diligence
to
ensure
they
make
good
witnesses
at
trial.
An
erudite
witness
who
knows
the
subject
cold
but
chokes
on
the
stand
and
is
boring
and
does
not
connect
with
a
jury
does
you
no
favors.
Make
sure
your
experts
know
how
to
talk
to
a
jury.
By
taking
this
approach
with
all
your
cases,
you
create
certain
advantages:
-
You
are
ready
for
trial
if
your
case
falls
in
the
1%. -
The
other
side
sees
you
are
ready
to
try
the
case,
which
can
result
in
a
better
settlement
for
your
client. -
You
handle
your
cases
more
efficiently
because
you
are
focused
on
what’s
essential
for
trial
as
opposed
to
being
distracted
and
consumed
by
every
rabbit
hole. -
You
develop
your
confidence
because
everything
you
do
is
directed
toward
a
purpose
rather
than
doing
anything
and
everything.
A
rifle
approach
is
generally
preferable
to
a
shotgun
approach. -
You
see
the
weaknesses
of
your
case
and
theirs
by
seeing
the
matter
through
the
prism
of
trial,
which
helps
you
better
evaluate
the
case
and
put
a
number
on
its
value.
Some
may
hesitate
to
take
this
approach,
thinking
this
takes
too
much
time,
and
with
the
volume
of
matters
one
is
handling,
who
has
the
time?
Ironically,
by
first
taking
the
time
to
read
the
jury
instructions
and
thinking
about
how
the
trial
of
your
case
would
look,
you
can
more
efficiently
conduct
discovery,
evaluate
the
case,
and
more
likely
settle
the
case
sooner
and
do
so
on
more
favorable
terms.
So,
look
at
your
cases
and
think
about
how
best
to
try
them,
and
by
doing
so,
you’re
more
likely
to
resolve
them
short
of
trial
favorably.
Frank
Ramos
is
a
partner
at
Goldberg
Segalla
in
Miami,
where
he
practices
commercial
litigation,
products,
and
catastrophic
personal
injury. You
can
follow
him
on LinkedIn.