Writings and Speaking

Retaining the Right Trial Observer

The Situation: You are involved in a litigated matter in which trial is about to start. You or one or more of the other key stakeholders believe it important to receive unbiased, accurate, real-time reporting of procedural and substantive events during the trial.

Your Standard Options (and their limitations):

Have trial counsel provide written and/or oral reports at the end of the trial day. Such reporting by one of the main protagonists in the trial is inherently (and understandably) biased and detracts from counsel’s ability to concentrate on preparing mentally and substantively for the next day of trial.

  • Send individuals from your team/staff to observe the trial and provide daily reports. While those individuals should understand both the background of the case and your general reporting needs, this option requires your team members to be away from their regular work for an extended period and might involve observation and reporting by someone with limited background/experience with trial practice.
  • Retain another counsel to observe the trial and provide daily reports. While such counsel should understand litigation generally, they might have more limited experience with actual trials and your needs with respect to the substance of the reports. This option also can be quite costly for a multi-day trial and can sometimes create unhelpful, competitive/adverse dynamics between the lead trial counsel and the trial observer.

Your Better Option:

  • Retain a neutral, third-party with significant background and experience with both trial practice and the substance of the underlying dispute to observe the trial and provide you with reliable, real-time, and actionable intelligence about how the case is proceeding. Such a neutral party:
    • Is totally without bias or agenda—their reporting can be trusted for its objectivity.
    • Can take the time needed to learn the case before the trial begins, attend the whole or key parts of the trial without jeopardizing the rest of your mission, and focus during reporting on the key issues and analysis most pertinent to your work.
    • Can be your informed and experienced eyes and ears in the courtroom to alert you in real time to problems or good news so you can continuously plan, and course correct in terms of trial strategy and/or settlement before the trial concludes and it is too late.
    • Can be available on the ground, in the courtroom, to assist you and trial counsel in negotiations with the other side. Their uninterrupted trial attendance and observation, coupled with their background and experience, creates credibility with the other parties and facilitates establishment of trust. It also enables trial counsel to remain focused on trial preparation.

The Bottom Line: Retaining an experienced, knowledgeable, and neutral third-party to observe your most important trials and provide you with real-time reports in the form, and with the substance, you require will enable you to avoid surprises, make clear to other stakeholders how seriously you are taking the trial and make the best and most informed decisions about trial strategy and resolution tactics while you still can impact the ultimate outcome of the case.

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