Pre and Post Trial Briefing
In popular culture, a trial decides the major issues in dispute. A jury hears the evidence and then delivers a conclusion. But at a bench trial, the trial itself is often not the end of the story. Instead, immediately after the trial is over, the parties write to the judge to tell her what she just saw and why the facts support a conclusion in their favor. And before most trials, judges invite written submissions about the evidence that will be presented and why it supports each side’s case. These written submissions take a lot of time and require a lot of work.
Why should you read this post about pre and post trial briefing?
You want to know how I could combine two small subjects into one regular blog post.
This post is the alpha and the omega of trial practice.
You’re waiting for an airplane to board and want to read something that is not so engaging that you will miss when they call your group number.
Image credit: https://en.wikipedia.org/wiki/Scrivener#/media/File:Ferrers-scrivener.jpg
Pre-Trial Briefing
Before a trial begins, judges usually have each party submit a brief that sets forth a preview of the evidence the party will submit at trial. This often includes a narrative summary of the case and a list of witnesses and the expected duration of their testimony. The brief also presents a summary of the legal theories each side anticipates advancing in the case.
A friend recently wrote that pretrial briefs are a “time consuming rehash of the summary judgment briefing…” To an extent, I agree. There is rarely new argument in these submissions and the goal is not to persuade the judge that you will win, but instead to provide notice about what the trial will eventually show. There is no decision on the trial briefs and, since they are less dramatic than the trial itself, do not naturally confer an opportunity to win. Few trial briefs become famous.
Proposed Findings of Fact
After a bench trial concludes, each side will have a copy of all of the exhibits that came into evidence and a transcript of all of the testimony. Instead of relying on the judge to comb through all of that evidence to decide what the facts are, the parties will do that themselves and then present the judge with “proposed findings of fact.”
A finding of fact is a statement the judge believes to be true. For example, “It was raining on March 3rd” or “John works at Chase Bank.” While the judge may come away from the trial believing these things to be true, she may need to cite them in her decision. So the decision may say “It was raining on March 3rd” and then cite to the testimony of a credible witness who said so. The proposed findings of fact are each side’s proposals for what the judge should conclude the facts were, together with citations to the evidence that support each of those proposed conclusions.
As you could imagine, each side’s proposed findings of fact will include very different conclusions. Part of this is because each side will cite different evidence from the same trial, proposing that the judge find different witnesses credible or credit different documents differently.
Lawyers want to draft these documents very clearly because the proposals the judge chooses to adopt in her decision will likely support the conclusion that party proposes.
Drafting these documents is a lot of work. Not only does it involve re-reading every word and document from the trial, but finding multiple citations for each proposition, to give the judge confidence that the proposed facts were well-supported at the trial.
Proposed Conclusions of Law
In addition to proposing the facts that the judge should decide, each side gets to write a proposed draft of the judge’s opinion applying those facts to the law.
Each side’s proposed conclusion of law works similar to a summary judgment motion, but instead of citing to undisputed issues of fact and explaining why those facts lead to a certain legal conclusion, the proposed conclusions of law cite to the proposed findings of fact and explain why, if the judge agrees with the conclusions of fact, the law indicates that that side should prevail on each issue.
The proposed conclusions of law present an opportunity to tie the facts presented at trial and produce a conclusion. By citing those facts in the argument, the author explains to the judge “here is why that fact at trial was important and what it means for your ultimate decision on the merits.”
While the proposed conclusions of law also have a lot of citations, the legal citations are likely not new to the parties or the judge and may be the same citations the parties cited on summary judgment or at earlier stages in the lawsuit. But sometimes an unexpected fact or issue arises, or the trial may concern an issue that was not a good fit for summary judgment, and the proposed conclusions of law allow the parties to persuade the judge to adopt them as the resolution for the issue.