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Retrial 101: What a Civil Litigation Paralegal Needs to Know
guest author: Stephanie B. Elliott

Many people, mostly of the non-legal variety, assume appeals are a retrial of a matter before a court. Our profession is replayed on television, in print and in the movies and well, they get it wrong. So what exactly is a retrial? The simplest explanation is that it is your case, tried again in the same court. You will have different jurors and probably a new judge, but your evidence will likely be the same. The retrial is the result of either a Motion for a New Trial (pretty rare), or an Appeal that has reversed the verdict and remanded the case back to its original Court of jurisdiction. It's important to understand the distinction, as your duties as a paralegal are different. An appeal requires a more narrow amount of documentation. The appellate rules and deadlines are tricky, and non-forgiving if you miss one. A retrial is doing what you did in trial over again, using the same exhibits, witnesses and evidence. Your trial team may chance strategy, or order, but for the most part you are repeating what you have already done. You may have additional or new evidence which has come to light since the appeal or granting of the motion, and your task as a team is to weave a new picture for your new faces in the courtroom. How is this accomplished?

The key to any trial is organization and the ability to quickly move from witness to witness, document to document. Your most important role as a trial paralegal is to act as the gatekeeper of things, people and documents. Keep up to date lists for witnesses and exhibits. You've already got exhibits marked from the previous trial. Sit down with your attorneys and go over the list of admitted exhibits (that you kept and also the copy you obtained from the courtroom clerk) to see what you will reuse, and suggest a block of time to review new documents to determine what, if anything, new you will use.  What witnesses did you have in the previous matter? Do some research, make some phone calls or email the witnesses to make sure they still have the same contact information, and reissue your trial subpoenas. Depending on your jurisdiction, you will probably have a pretrial order issued by your new trial judge and it's important to immediately calendar these new trial deadlines- pretrial motions and the actual trial session, so that you can issue subpoenas and have your marked exhibits ready to exchange with opposing counsel. Your role is to keep the engine going. As the gatekeeper, you need to know what you have, where it is, who is doing what, who your witnesses are and most importantly, be able to recall the information/put your hands on any of these things at a moment's notice. Not hard, right? It's not! If you weren't part of the trial team the first go round, ask them in a constructive way what didn't go right the first time, and make sure to assist and take control of what can ease the process this time around. To adequately prepare your off site location, find a location that will fit the needs and length of your trial. Do some research about where your courthouse is located. If this is a short trial, i.e., a couple of days, consider asking to use a conference room in an attorney's office in the same town. Your team should think about who you know, and who you are comfortable reaching out to.  Another idea is to rent a hotel conference room for the length of your trial. You can negotiate a reasonable rate if you are also booking multiple rooms. Depending on the size of your trial team, and/or any experts that are on your side, you might be able to even get the room for free. Here are some questions to ask as you consider where you book: Can your team stay set up for the amount of time you are staying there? Is it possible to secure access to the room to only your team? What resources do they have? Printer/Copier? Fax machine? Scanner? Internet access? Where are the outlets in the room? Don't be afraid to negotiate rates and don't say yes to the first location you find. I like to find several options and then explore the areas around them on the internet. Paralegals can use their organizational strengths in this capacity to ensure the trial runs as smoothly as can be predicted. The use of checklists, and an understanding of what the needs of the attorneys are during trial make this area the most important. Setting up the "well" during trial, and providing the attorneys with support will help keep your side of the table even tempered, and running like a war machine. If you have asked and gathered the answers to the questions above, setting up the war room that will serve you during trial will be a breeze. The ultimate goal of any successful trial paralegal to help create an atmosphere that allows your attorneys and client to prepare and participate in trial without worrying about the problems that will absolutely pop up. You may not be able to anticipate what the judge and jury is going to do, but you can problem solve (ahead of time) and plan for the "what ifs". Prepare by thinking outside the box, and thinking through each situation that you know will arise during the course of the trial. Provide common sense solutions and remain calm and flexible. Going to trial is really like running a marathon. There is training (pretrial work), the actual race (the trial itself) and a cool-down period (when the jury goes out). You have to continue to make it through, as a team, day after day. You can do it! Think of yourself as the fixer of all things, including the chaos that doesn't happen. When you feel stressed in the moments before the trial and during, take a deep breath and take a look at your situation from a different angle. It will help you and everyone involved if you stay calm and collected, and things will run smoother, which is the ultimately goal for a successful and savvy litigation paralegal.


Stephanie B. Elliott is a senior litigation paralegal with McNair Law Firm, P.A., where she specializes in patent, corporate and complex business litigation. Ms. Elliott has more than twenty years' experience with filings in the North Carolina Complex Business Court; state court filings in counties across North Carolina; and federal filings in the Western, Eastern and Middle districts of North Carolina. In addition, she has more than ten years' experience in law office management. Ms. Elliott is a part-time instructor for the paralegal certificate program at the University of North Carolina at Charlotte and serves on the program advisory board. She is also a part-time instructor for Gaston College's paralegal program. Ms. Elliott is a member of the Program Review Board for the Institute for Paralegal Education, and has been a featured speaker for IPE and the National Business Institute for more than ten years. She is very active in the North Carolina Paralegal Association, where she has served as president, vice president, NALA liaison, executive committee member, articles and associations news editor. Ms. Elliott is currently serving on the North Carolina Bar Association's Paralegal Division Council. Ms. Elliott earned the designation of North Carolina certified paralegal (NCCP) from the North Carolina State Bar Board of Paralegal Certification in 2005. Ms. Elliott was awarded the Paralegal Gateway's Paralegal Superstar Award in 2011 and the NALA Affiliates Award in July 2014. She earned her B.S. degree from the University of North Carolina at Charlotte and her Paralegal Technology Post-Baccalaureate Diploma graduate degree from Central Piedmont Community College.

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