February 13, 2006

Diligent pretrial preparation was an overarching theme of the advice offered by Jenner & Block Partner Robert L. Byman and others at an American Bar Association’s Young Lawyers Division seminar held at the 2006 ABA Midyear Meeting last week in Chicago.

Mr. Byman emphasized at the “Instant Mentor: Ten Things I Wish I Knew as a Young Litigator” session that although some situations may clearly be litigated without going to trial, cases should be approached with the full intention of going to trial.  Otherwise, he said, litigators may find themselves at a strategic disadvantage.

However, he cautioned that careful pretrial preparation can be a “double-edged sword.”  He explained that a young litigator must learn the point at which he or she has adequately prepared for trial as well as have the confidence not to over-prepare.  Taking for example the “rule” that witness preparation is a key to winning a case, he noted that a witness who has been over-prepared may become flummoxed in court by something unexpected, even if it’s inconsequential.  And, a witness who hasn’t been adequately prepared may become overwhelmed by the courtroom and opposing counsel.

Mr. Byman stated that the best way to prepare a witness is to make sure that person knows what piece of the puzzle he or she provides in telling your client’s overall side of the case.  “Then let him tell the story in his own words,” he said.  “That’s what the trier-of-fact wants to hear.”

Joining Mr. Byman at the panel discussion were Sidney I. Shenkier, Federal Magistrate Judge for the Northern District of Illinois, and Gabriel A. Fuentes, Assistant U.S. State’s Attorney and a Jenner & Block alumnus.  The panel was moderated by Sunil Harjani, who is also a former associate of the Firm.

Magistrate Judge Schenkier also stressed the necessity of pretrial preparation.  “The more you have thought about your argument’s weaknesses and how to address them,” he said, “the more likely you will be able to overcome them.”

Assistant U.S. Attorney Fuentes among other things stated that pretrial discovery requests should be guided by a “long-term perspective.”  Although it can be difficult in complex corporate trials, associates, he said, “need to get their arms around the entire case” in order to make the discovery phase of the trial effective.