Michael A. Ferrara, Jr
Cherry Hill, NJ
856.779.9500
The ultimate goal of our work as plaintiff's attorneys is to persuade a
jury that our client is entitled to damages because of the defendant's
wrongdoing. There are many steps along the way to reaching this goal and a
good attorney needs to delegate tasks and coordinate efforts in order to
be able to put his best case forward.
The paralegal can play a very important role in this process. There are
many aspects of a case that the paralegal can handle on her own. If
coordinated properly, assistance from your paralegal will be an essential
part of every case.
The Client:
The client is always the first and best source of information about his
or her legal problems. While the attorney should always be a part of the
interview process and obtain as much information as possible, it is smart
to either have your paralegal with your during the interview or have them
spend some time with the client after you have conducted the interview.
While the attorney will gather the relevant information, he will rely on
the paralegal to get the many of the details, i.e. names, addresses,
medical information etc.
It is also important that the paralegal have early contact with the
client because it is the paralegal that will be handling the day-to-day
activities on the file, i.e. handling phone calls, informing clients of
the status of their case etc. Establishing a rapport early will set the
client at ease and assure them that they are in good hands.
Discovery:
Informal investigation:
Legal investigators and/or paralegals can be used for:
1) locating and taking statement from potential witnesses;
2) photographing and/or documenting the accident scene;
3) locating, collecting, and preserving physical evidence;
4) photographing plaintiff's injuries.
Other sources of information which a paralegal should be using:
1) newspaper articles;
2) legal research on other similar incidents or claims;
3) internet research to locate information on other similar incidents or
claims;
4) ATLA Exchange
5) Corporate searches and look ups.
Formal discovery:
A paralegal should draft complaints, interrogatories, requests for
admissions, and requests for production of documents. She should also be
expected to draft answers to all of the defendant's discovery request. The
paralegal should be attentive as to whether defendant's answers to
interrogatories and requests for production of documents are responsive or
whether a motion to compel more specific answers must be filed.
In bigger cases, a separate binder or binders should be kept for each
party's responses to discovery requests. These binders should include the
original request and the response and should be tabbed for ease and
convenience in later use.
A paralegal should be responsible for all of the relevant dates and
deadlines in each case. Each date should be diaried appropriately so that
a deadline is not missed.
It is also the paralegal's responsibility to supplement discovery
responses when additional information is received.
Depositions:
Preliminary deposition preparation can be accomplished by assembling
documents and other items that may be introduced as exhibits at the
deposition.
A paralegal can also prepare outline of information that may be
elicited from each witness to be deposed.
In the case of experts, your paralegal can conduct document searches
for articles, books and documents the expert authored or other depositions
the expert has given. She should also have all of the documents that your
expert intends to rely upon ready in advance of the deposition.
If demonstrative evidence is to be used during the deposition, i.e. if
the deposition is videotaped for trial, the paralegal can assist in the
preparation of these exhibits.
In complicated cases, it may be wise to have the paralegal sit in on
the deposition so that she becomes more familiar with what is happening
with the case and can take detailed notes so that you can be sure, before
ending the deposition, that you covered all of the necessary areas.
The Team Approach:
The paralegal and attorney together, working as a team, can work
towards putting the best case together for their client. In order to work
together efficiently, it is necessary that the attorney and paralegal have
the same goals in mind. To do this, it is helpful to have a general
outline of important issues in each case that you can revisit throughout
the process to make sure that everyone is on the same page. The following
list is not intended to be exhaustive and should be expanded as the case
develops:
1) personal information about the client including prior and
subsequent accidents and injuries;
2) facts of the accident;
3) theories of liability;
4) damages - prognosis, current treatment, permanent or temporary
disability, medical expenses;
5) experts - wage loss, causation, etc.
The most important aspect of the paralegal-attorney team is open
communication. It is essential that the paralegal and attorney sit down
periodically and review the case and any issues that may arise. Doing this
will ensure that you will be ready and prepared when the case finally goes
to trial.
NECESSARY STEPS TO BE TAKEN BY
THE LITIGATION PARALEGAL IN PREPARATION
FOR A TRIAL AND IN TRIAL
I. Introduction
We all know that the likelihood that each of our case will ultimately
go to trial is slim. Instead, most case settle at some point before trial.
The only way to be successful and be sure that you are putting your
client's best case forward is to prepare as if you are going to trial in
each and every case.
While it is the attorney who stands before the jury and argues their
client's case, it is the behind the scenes work of the paralegal that is
often just as important to a successful outcome.
II. Jury Selection
In order to ensure that you are going to receive a fair trial, it is
essential to learn as much about your jurors as possible.
Prior to trial, the paralegal can get the list of potential jurors and
any biographical information available from the court. The paralegal and
lawyer should then sit down and draft a jury questionnaire or, if your
state does not allow questionnaires, supplemental jury questions that can
be asked by the judge. The questionnaire should try to elicit things such
as juror bias toward the legal system, insurance companies, plaintiffs and
their opinion on tort reform. You should also gear questions towards
issues that you know think may arise in your case. (A copy of a sample
jury questionnaire is attached for your convenience.)
It is often helpful to have your paralegal present during jury
selection. It is difficult for you to see all of the jurors at the same
time. The paralegal can watch jurors responses to various questions and
view their demeanor while the process is ongoing. She can also take notes
on each juror's responses so that you can use your challenges wisely.
III. The Client
Nothing can take the place of an attorney sitting down with a client
and preparing them for trial. However, a paralegal can do a great deal to
help alleviate many of the client's concerns. The paralegal should explain
the process thoroughly to the client including details of what to expect,
what to wear, when they are likely to testify, and who else may be
testifying. This will also give the client the opportunity to ask any
questions or relay any fears he has about the upcoming trial.
IV. The Witness
Once the witnesses have been selected and the order of the witnesses
has been established, it is the paralegal's job to ensure that these
witnesses are available for trial preparation and for trial. Routine
things such as transportation, lodging, directions, etc. should be handled
by the paralegal. She should also have all of the witnesses phone numbers
so that they can be reached at anytime in the event there is a scheduling
change.
V. The File
The file is always well used during the trial. The ultimate goal is to
have all of the documents and information you need without having to
search at length in front of the jury. To do this, the file needs to be
well organized. Trial documents should be filed and marked accordingly in
an separate area of the file. Depositions, deposition summaries and notes
should be easily accessible. While each attorney may have their own
organizational preference, the paralegal should strive to make the file
easily accessible and understandable so that everything is at the
attorneys fingertips during trial. Time is of the essence during a trial.
Time taken searching for documents, depositions and other materials
disrupts the flow of the case.
VI. Exhibits
All of the trial exhibits must be assembled, organized and prepared
prior to trial. This includes witness lists, charts, medical records,
pictures, or any other demonstrative evidence that may be used. It is
helpful to make copies of the exhibits so that they can be presented to
the judge, defense counsel, and the witness at trial. The paralegal should
also make sure that you have stands, easels, markers, overhead projectors,
etc. that you will need at trial.
VII. Conclusion
Despite your best efforts, no trial will ever go perfectly. Witnesses
often fall apart, lawyers ask the wrong questions, and judges make
unexpected rulings. While there are some things that you cannot control,
being well prepared help minimize the damage.
If, together as a team, you and your paralegal have put your best case
forward, you can know that, whatever the outcome, you were the best
advocate you could be for your client.
CROSS-EXAMINATION OF THE DEFENSE
BIOMECHANICAL EXPERT AT TRIAL
In order to be able to effectively cross-examine the defense
biomechanical expert at trial, you must conduct a thorogh deposition.
I. Expert's Background
a. Read all published articles related to the issues in your case
that the expert has authored.
b. Conduct database research on ATLA, ATLA Exchange, DepoConnect, etc.
to obtain a list of all the cases in which he has testified.
c. Once you have this list, get all depositions and trial testimony of
the expert through plaintiff's attorneys or the court's litigation
files. Also see if a judge has ever refused to qualify him as an expert.
II. Discovery
a. Make sure the defendant responds to discovery well in advance of
the deposition. Make sure you have:
1. a list of the information reviewed by the expert and copies of
all documents he relied upon;
2. the expert's opinions and the basis for each;
3. a copy of the final report and any drafts or revisions of previous
reports;
4. any testing that was done by the expert.
b. You should consult with your expert prior to taking the defense
expert's deposition. Your expert will be able to point out the
weaknesses with his opinion and help you develop questions to expose
these weaknesses.
III. The Deposition
a. Credentials
1. Get a complete background of the expert's education, history and
pbulications.
b. Opinion
1. Determine what materials and data were used in rendering
opinions, including texts, technical literature, studies, etc.
2. Determine whether depositions or statements were read by the expert
and examine any notes he may have made.
3. Identify any other experts which this expert used or relied upon to
reach their opinion.
c. Bias
1. Expert fees in this case, other case, on a yearly basis,
percentage of income, etc.
2. Relationship with defense counsel.
3. How often he has testified, depositions and trial. Ever testify for
plaintiffs.
d. Plaintiff's Expert's Opinion
1. Determine whether there are any point of agreement between the
two experts and, if so, where the agreement ends. You may be able to
use this witness to support part of your case.
The goal in deposing the defense biomechanical engineer is to prepare
for cross-examination at trial. The goal at trial is to attack the
foundation of the expert's opinion, reveal his bias and weaknesses and
where possible bolster your case.