Alameda County Superior Court
Civil Court Self Help
Getting Ready for Trial
The Last 100 Days
- The
last 100 days
- Have
you done everything you can to settle?
- Get ready
for trial
- The
pleadings
- Discovery
- Motions
- Expert
Witnesses
- Other
witnesses
- Jury
Instructions
- Jury
Fees and Jury Waivers
- Motions
in Limine (Motions to Limit Evidence or Argument)
- Preparing
exhibits
- Documentary
exhibits
- Conclusion
Most
trial lawyers think the last 100 days before a trial
are the most important. Get ready for your trial early. There’s a lot to do
before your trial date.
Before
you get ready for trial, think about how you got to where you are now. If you
got this far it means you couldn’t agree on a settlement. If you haven’t done all you can to settle with the
other person, do it now.
It’s very hard and expensive to get ready for trial. Here are some tips for
thinking about settlement:
- The other side probably
has a good reason to settle the case,
too.
- It is not a sign of
weakness to call the other side to try to settle, or suggest mediation. You’ve already
finished discovery. You both know the case. You both have to face the
cost and risk of going to trial. Both of you should want to talk.
- Do not go to trial with
the idea you will get what you think is fair. You will probably be
disappointed. Think about what is most important to you and what kind
of settlement or solution will give you most of what you need.
- Compromise. If you wait
because you think you will get everything you want at trial, or if you
won’t settle because you think you don’t owe any money, you could be
found wrong. If you settle, you will be in control of the outcome. It
might be better to lose a little so you that you do not lose a lot.
Learn
about negotiating and settling at the law library.
Here
are some important points to think about when you get ready for trial: You
can find more information about your trial at the County Law Library, in
Section B 61. For example:
- Bennet, et.
al., Guide to Jury Selection and Trial Dynamics, West (1994)
- Cal Practice with Forms,
Bancroft Whitney, 20 Vols.
When
you get ready, start from the beginning. Every step is important for your
trial. There are parts of the litigation
that are good opportunities for you to get ready for trial.
The
initial legal paper that you file in your lawsuit is a pleading. The court
uses pleadings like the complaint,
cross-complaint, and answer to
decide what proof should be in the trial. What the complaint and
cross-complaint say will be important. It helps the judge decide what legal
instructions the judge or jury will use. Part of getting ready for trial is
making a summary of these papers, and of what you have to prove to make your
case or defend it.
- Discovery
During discovery, you can:
- Collect facts,
- Get witness statements informally,
or
- Get witness statements
in a deposition,
- Find out what the other side
is going to say
- See how good you think
their case is, and
- Get all the important
information you need to present your case in court.
When
you get ready for trial, look over all this information and make a summary of
what you think will help you present your proof or question the other
person’s proof.
- Motions
Like discovery, motions and orders for motions can be used in trial. Go over your motion papers and orders when you get ready for trial. Begin to focus all your attention on getting ready for trial at least 100 days before the trial.
- Expert Witnesses
You don’t need an expert witness for every case. But, if you need one for your case, be ready to tell the other side the names, addresses, and phone numbers of the expert and what they are experts in. You’ll also have to give them a statement about the expert’s testimony, or what you think the expert will say in court. You are responsible for arranging for your own expert witnesses.
Code of Civil Procedure §2034 (and sometimes the local court rules) says that you must serve the other person with your expert witness information. This is called disclosure.
You can find other forms to help you get ready for trial at the law library. For example:
- Code of Civil Procedure §2034
- California Points and
Authorities
- Civil Procedure Before
Trial (CEB - One Volume)
- California
Rules of Court
- Code of Civil Procedure of California
- Link to
Local Rules
- Other witnesses
You have to get your witnesses to go to trial at the right time. A lot of witnesses, even ones that you’re friendly with, need you to subpoena them so they can leave their jobs to go to court.
The subpoena must be served by a process server. Plan everything ahead of time. If a witness is going to be out of town during the trial, you can take their deposition and use it instead of having them testify at trial.
- Jury Instructions
If you have a jury trial, you have to write jury instructions. These are the laws that support your side of the story. Both sides give the judge their instructions before trial. The judge chooses what instructions to read to the jury.
If you are not a lawyer, you should get help from an experienced trial lawyer. If the other party has a lawyer and you don’t, they could take advantage and give the judge instructions that are not fair to you.
Remember: Any two people can interpret legal precedent in different ways. You cannot expect the other side to interpret the law in a way that helps you.
- Jury Fees and Waiver
If one of the sides asks for a jury trial before the deadline, they will need to pay the jury fee deposit to the court at least 25 days before trial. If no one pays the jury fee deposit on time, you will not have a jury. A judge will hear your case without a jury. You will have waived your right to a jury trial.
- Motions in Limine
(motions to limit evidence or argument):
”Motions in Limine” are motions to limit the evidence and arguments used at trial. In general, you make these motions in writing at the beginning of the trial. Many times, the motions are made orally. Name your Motions in Limine in your Mandatory Settlement Conference Statement. File your Statement one week before the trial.
- Preparing
exhibits
At trial, you can show exhibits, like:
- Blow-ups of witness
statements,
- Deposition testimony,
- Papers,
- Photos
- Pictures made by artists
to show parts of the case
- Videos,
- Models
- Copies of things that were
part of what happened
Plan
before you spend money on exhibits. Prove to the court that your exhibit
shows what really happened, not just your side of the story. You cannot show
exhibits at trial unless you prove the exhibit is true and right in every way.
- Documentary exhibits
A lot of times you have to show the court written papers to prove:
- What you agreed to,
- What was said,
- How much you were
charged, and so on.
Ask
the other person to agree to give the court some papers or photocopies as
evidence. They may not agree to this. Then, you must prove that the papers
are true and correct. This is called “laying the foundation”.
In general, you cannot submit a photo or photocopy unless there is a witness
to testify that the evidence is true. There are a lot of rules for evidence.
Ask the librarian in the law library to help you find the Evidence Code and books that talk about the
rules for documentary evidence.
- Conclusion
The difficulty of your trial depends on what kind of case you have and how complicated the law for your case is. Always start to get ready early. If you do not, you can be surprised by all the things that need to be done before trial that you did not do in time. Be aggressive about trying to settle. Getting ready for trial and the trial itself can be very expensive and very risky.