Often overlooked in preparing a case for trial is the critical step of ensuring that you have your client and all of your witnesses in attendance to testify at trial. If you do not take steps to ensure their attendance, most witnesses will not appear, and adverse witnesses almost definitely will not show up at trial. As soon as you get a trial date, advise your client and the witnesses you intend to call at trial of the trial date. Advise your client, experts, and friendly witnesses of the trial date orally and in writing. In your letter, set out the date, time, and specific location for the trial. It often helps to give them directions to the courthouse and tips for parking and related matters to help them time their arrival correctly. You should also warn the client and witnesses about possible delays in the trial. Tell them the expected length of the trial, that the time and date of the trial may change, and that they should contact you before they appear. Advise them to contact you immediately if they have any scheduling conflicts.
In your letter to your experts, pinpoint the date and time during trial that you will need the expert to testify. Schedule meetings with the experts 10 days before trial, and on the evening before trial to prepare yourself and your experts to testify. Advise your experts that their attendance is absolutely necessary for the case. When you get your trial date, be sure to ask your experts what, if any, additional work they must complete before testifying, and if they will have problems meeting trial preparation deadlines. Ask them how much time they will need to analyze the opinions of opposing experts. Also ask them what demonstrative aids or tools, such as an overhead projector or easel, they will need to testify so that you have it ready when they appear at trial. In your letter to witnesses and nonparty witnesses, let them know that the date and time of their testimony may change. Let them know that you will notify them of any changes, but because of time considerations they should check with you regularly and provide all available telephone numbers in case of last minute changes. Stress to them that you will try to minimize any adverse impact on them.
You will need to subpoena witnesses and nonparty witnesses for trial. Advise witnesses you will subpoena them for trial, they must attend, and that disobeying a subpoena without adequate excuse may be deemed contempt of the court. See Fla.R.Civ. P. 1.410(e). Florida Rule of Civil Procedure 1.410 (b) provides for subpoenas for testimony before the court. The best practice is to subpoena trial witnesses no later than 30 days before trial. A thirty day window gives witnesses time to arrange their schedules around the trial. A subpoena may be issued by the clerk of the court or by any attorney of record in the action. A subpoena contains the name of the court, style of the case, and a command to the person to whom it is directed to appear and give testimony at a specified time, date and place. On oral request of an attorney or party the clerk will issue a subpoena for testimony or for production of documentary evidence before the court. See Fla. R. Civ. P. 1.410(b) (2). The clerk signs and seals the subpoenas but otherwise leaves them blank as to the title of the action and the name of the person to whom it is directed. Id. Fill in the title of the action and the name of the person to whom the subpoena is directed. Have the subpoenas served on your witnesses. A subpoena must be served in a manner provided by law. A subpoena may be served by any person authorized by law to serve process, or by any other person who is not a party and who is at least 18 years of age. If not served by an officer authorized by law to do so, the person who served the subpoena must file an affidavit as proof of service. See Fla.R.Civ.P. 1.410(d). The better practice is to have a process server serve the witness subpoenas. The subpoena may also command the person subpoenaed to produce items such as documents or tangible things at trial. If the request is unreasonable and oppressive, the person on whom it is served may promptly, or at least before production is required under the subpoena, move the court for an order (1) quashing or modifying the subpoena, or (2) requiring that the costs of production be paid in advance by the party requesting production. Fla.R.Civ.P. 1.410(c).
Designate an associate, paralegal, or secretary to maintain contact with crucial witnesses and advise you immediately if any scheduling problems arise. Often during the course of litigation, certain members of your office develop a rapport with individual witnesses. Try to make this individual your contact person with that witness so that everyone is cooperating and working together in a friendly atmosphere. If the trial is continued, send all witnesses a certified letter advising them of the new trial date and that their appearance will be necessary when the case is reset for trial. Send this letter as soon as the trial is continued out of courtesy for the witnesses’ schedules.