Trial Work Q&A With Wilkinson Stekloff Attorneys

What attracted you to do trial work?

Tamarra Matthews Johnson, Partner: When I envisioned myself as a lawyer, I always saw myself in a courtroom at trial. Litigation and the jury trial process in particular really appealed to be because I have always been a questioner and liked to figure things out; I enjoy making presentations and persuading others; and for some reason I am comfortable in adversarial situations.

Trial work requires you to develop and maintain somewhat competing characteristics. It is important to be detail oriented, to drill down and to master the material. Yet, at the same time, you have to be able to take that mountain of material and distill to what is most important, so that you have a clear, concise presentation that reflects the themes of your case. You have to be disciplined and develop consistent methods to prepare witness outlines, exhibit lists, motions, jury instructions, and the like. Yet, as you are executing all of your well-laid plans in the lead up to trial, flexibility is essential because trial is infinitely unpredictable. An unpredictable judge, or juror, or witness, or opposing counsel can throw a wrench into the best-laid plan. Once as an AUSA and once as a defense attorney, I had a power outage occur in the middle of my opening statement. In each instance, I continued without my presentation deck to a deliver my opening to the jury. The show must go on.

From my earliest days, I felt that trial work would be forever new, and consistently interest and challenge me, helping me to remain open to new and unexpected experiences. In those respects, trial work never disappoints.

Tania Martinez, Associate: Putting the puzzle pieces together of different facts to get an overall picture of what is going on – like reviewing depositions, exhibits, and other discovery materials. Even more exciting is how each of those puzzle pieces can be interpreted in more than one way. Without changing those puzzle pieces at all, using the exact same facts of the case, you can reach an entirely different conclusion just by emphasizing certain pieces – like crafting trial themes. And of course, the conclusion can change depending on who is looking at all the pieces (a Rorschach test, where one person sees one thing but another sees a different thing) – like picking a jury.  

Emily Clarke, Associate: The storytelling inherent in trial work drew me in.  At the end of the day, most verdicts come down to which side told the more compelling story about some set of events.  I love working with witnesses to uncover that story and figure out how to tell it in way that the jury or judge will understand and connect with. 

Who goes to trial?

Tania Martinez, Associate: Trial is a full team effort where every person’s contributions are critical to a successful outcome. The trial site is bustling with partners, associates, paralegals, legal assistants, graphics team members, jury consultants, trial support staff, printing vendors, and more.  

What does a typical day look like during trial?

Emily Clarke, Associate: The structure of trial work can seem very typical—the court establishes days and times of the week you’ll come in, plaintiffs and defendants are allotted times to try their case, witnesses take the stand, attorneys make arguments—but each day brings some new and exciting challenge to tackle.  It can range from prepping witnesses for their upcoming testimony to going to court to examine or assist with a witness to researching and writing motions on legal issues before the court to drafting a closing argument, and the list goes on. 

What surprised you the most about trial work?

Tania Martinez, Associate: After the end of my first trial with this firm, I was so amazed at how much I had learned. The people who work at Wilkinson Stekloff are phenomenal attorneys and legal professionals. Every single day at trial I learned something new that I could take with me to future cases. I felt like a different attorney coming out of trial than I was going in. 

Emily Clarke, Associate: I was most surprised by how much can change at trial. In the months leading up to trial you work to perfect your strategy, but when you get to trial, things can change in an instant based on court rulings, witness absences, and any number of things.  A trial lawyer has to be ready to pivot and reorient. 

How do you prepare for trial? 

Tamarra Matthews Johnson, Partner: I have prepared for dozens of trials in my more than 25 years of practice. My methods have evolved over the years. When I was a more junior defense lawyer and had discrete areas of responsibility, or when I first became an AUSA and had a couple of witnesses in big trials and my own small cases, I made sure I knew everything all by myself. As my role at trials became increasingly senior and the cases became far bigger, I have had to adjust my methods. I have worked with amazing teams, both as an AUSA and in private practice – fellow attorneys, paralegals, investigators, and law enforcement. So proper utilization of the full team is critical. No matter the substance, trial preparation requires a dual focus on the themes and the details; you have to see the forest and the trees. Or, to try another metaphor, you see the tip of the glacier at trial, but the depth of understanding goes far beneath the surface. Without dwelling on the substance of any one case, in my time as a prosecutor or as a defense attorney, my general method is to work a case to the point that I: 1) have crafted an order of proof laying out the witnesses I plan to call with the three key points I will cover with each witness; 2) have an exhibit list annotated to reflect the key “hot” documents and why they are helpful and/or problematic to my case; 3) have the law at hand for any arguments I anticipate needing to handle during an examination or at a side bar; and 4) have an opening statement in progress – an ever-evolving, constantly-being-edited set of ideas that in the weeks leading up to trial will be baked into thematic headings and bullets that will serve as my roadmap when I deliver the opening. 

Emily Clarke, Associate: The details of how we prepare for trial can really change depending on when our firm is brought into a case—years before or weeks before the trial starts.  But in both circumstances our firm applies the same overarching principle: work backward from trial.  This means understanding the themes of the case, simplifying those themes and simplifying them again, coming up with answers to the hardest questions for our client, figuring out who can be the key storytellers, and then filling in those stories with the facts and documents that support it. 

What role do associates and summer associates play? 

Tamarra Matthews Johnson, Partner: Associates are typically assigned a variety of roles at trial, but the primary buckets are live witnesses (expert and fact/company witnesses, crosses and directs), witnesses called by deposition (requiring designations of testimony), briefing/legal issues, and presentation decks for opening and closing. With respect to live witnesses, lead trial attorneys count on associates to develop a granular understanding of a witness, the documents and exhibits associated with that witness, and how that witness fits into the case. Associates will create the initial drafts of cross and direct outlines weeks in advance of trial, and these outlines will continue to be refined until the witness has testified. With respect to defense witnesses, associates at our firm are often included in witness meetings, and so in addition to gaining comprehensive knowledge about the witness, we rely upon our associates to develop a rapport with a witness. It’s the associate who will be with that witness just before he or she takes the stand, as trial counsel is in court all day every day. I have always encouraged members of trial teams, in government and in private practice, to sit in on meetings of not only their witnesses but also witnesses that they are not assigned to, in order to deepen a comprehensive understanding of the case. We also try to make sure every summer associate has an opportunity to attend a trial, and we have been successful in that regard for several years running, with three trials in the summer of 2023, and trials set in summer 2024 as well. We value trial attendance over any other experience for our summer associates. And once at the trial site, we encourage our summer associates to get exposure to what our associates are doing, and to assist on the projects that are appropriate for a lawyer in training. 

Tania Martinez, Associate: Active roles! Associates and summer associates are often those on the team who have the best grasp of the facts of a case. For months before trial the associates and summer associates are the ones reading the deposition transcripts, discovery responses, and more. As such, associates and summers are encouraged to speak up in strategy meetings and flag ideas for outlines. As for substantive work, typically each associate takes on a handful of witnesses to draft direct or cross examination outlines for. That associate will be responsible for collecting exhibits and impeachment materials for the outline and will be the person in the “hot seat” next to the partner in the courtroom on the days the witness takes the stand. If the examining attorney has any requests, the associate in the hot seat is the point person. Summer associates put together immensely useful work product that we continue to reference and use throughout the trial. And assuming the courtroom does not have a limited capacity, summer associates are likewise encouraged to sit in the courtroom to observe the proceedings and assist with any requests that arise.

Best memory from trial. 

Tamarra Matthews Johnson, Partner: My best memories from trial are the team moments. Many arose during a crisis – a missing witness, preparing for a cross-examination overnight when a last-minute witness was called to testify, shenanigans by opposing counsel that set off a fire drill. When you see how a team will rally together to face the unexpected and treat each other so well in the process, all of those memories are the best. And after a verdict, I have always made sure to shake the hand of every single person on the trial team the moment after the jury departs the courtroom. As an AUSA and in private practice, I want to share that moment with my team and thank them individually for their contributions.

Tania Martinez, Associate: My favorite moment at trial is when the partner uses the outline that you drafted to cross examine the witness in court. It’s a great moment when you get to see all the work come to fruition. More specifically, my best memory is our cross examination of a plaintiff’s expert epidemiologist. We knew ahead of time that this witness was particularly tricky so we made sure to have plenty of evidence for impeachment handy – and we made sure to have this evidence placed in red binders, for pizzazz. Exactly as we expected, the expert testified contrary to her prior testimony several times, and we had the receipts ready in the notorious red binder. Every time that red binder came out, you could visibly see the increased interest from the jury and increased discomfort from the expert witness on the stand. The witness came off the stand with her credibility deflated, an undoubtedly successful cross examination!  

Emily Clarke, Associate: During a products liability case our firm co-chaired, a partner and I worked closely together prepping one our expert witnesses for trial testimony.  At trial, the direct went off without a hitch but due to some unexpected lines of questioning and court rulings during the cross examination, we had to completely change our redirect on the fly.  Working with the same partner to come up with a responsive and effective redirect while under immense time pressure was everything I love about trial coming together—teamwork, creativity, and thinking on your feet.

What do you wish you had known before you went to trial?

Emily Clarke, Associate: I wish I had known the importance of being a pinch hitter.  Leading up to trial, everyone has their areas and witnesses they’re focused on.  But because so much happens at trial so fast (and often unexpectedly) the best thing you can often do at trial is be willing to jump in. Going in with a full picture of the case and a willingness to do any job goes a long way.