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Civil Court
Getting Ready for Trial
The Last 100 Days
[Esta página está en español;
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 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
- The last 100 days:
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.
-
Have
you done everything you can to settle?
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.
- You are not weak because you 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.
- Think of what’s most important to you, not what’s fair.
Don’t go to trial to get what you think is fair. You’ll probably be
disappointed. Think about what’s most important to you and what kind of
settlement or solution will give you what you need.
- Compromise. If you wait because you think you’ll get
everything you want at trial, or if you won’t settle because you think
you don’t owe money, you can be found wrong. If you settle, it’s like an
insurance policy. Lose a little so you don’t lose a lot.
Learn about negotiating and settling at the law library
(Section B 61) in: "Lynch et. al., California Negotiation and Settlement",
Bancroft Whitney.
-
 Get
ready for trialHere 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)
- Cotchett, California Courtroom Evidence, Lexis, 5th ed.
- 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.
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- Pleadings
Every legal paper that you file in your lawsuit is a pleading. The
court uses papers like the
complaint, cross-complaint, and
answer to decide what proof should be in the trial. What the complaint
and cross-complaint says 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. In general, you have to give disclosure 50 days before
the trial. Learn Santa Clara’s Local Court Rules and §2034 before then.
You can find other forms to help you get ready for trial at the law
library. For example:
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- 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’re not a lawyer, get help from an experienced trial lawyer. If the
other
party has a lawyer and you don’t, they can have an advantage. They can
give the judge instructions that aren’t fair to you.
Remember: Any two people can interpret legal precedent
in different ways. You can’t 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 pay fees to the
court at least 25 days before trial. If no one pays the jury fees on time,
you won’t have a jury. A judge hears your case without a jury. You will
have “waived”
the jury.
- 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. top of page
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- 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
can’t 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 can’t submit a photo or photocopy unless there is a
witness, to testify that the evidence is true. YOU can be that witness.
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 don’t, you
can be surprised by things that you need to do before trial that you
didn’t do in time. Be aggressive about trying to settle. Getting ready for
trial and the trial itself can be very expensive and very risky.
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