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Getting Ready for Trial - the last 100 days

This page tells you about:

  1. The last 100 days
  2. Have you done everything you can to settle?
  3. Get ready for trial
  4. The pleadings
  5. Discovery
  6. Motions
  7. Expert Witnesses
  8. Other witnesses
  9. Jury Instructions
  10. Jury Fees and Jury Waivers
  11. Privately Retained Court Reporters
  12. Motions in Limine (Motions to Limit Evidence or Argument)
  13. Preparing exhibits
  14. Documentary exhibits
  15. Conclusion
  1. The last 100 days:

    Most trial lawyers think the last 100 days before a trial are the most important. Get ready for your trial early. There’s a lot to do before your trial date.

  2. Have you done everything you can to settle?

    Before you get ready for trial, think about how you got to where you are now. If you got this far it means you couldn’t agree on a settlement. If you haven’t done all you can to settle with the other person, do it now. It’s very hard and expensive to get ready for trial. Here are some tips for thinking about settlement:

    • The other side probably has a good reason to settle the case, too.
    • You are not weak because you call the other side to try to settle, or suggest mediation. You’ve already finished discovery. You both know the case. You both have to face the cost and risk of going to trial. Both of you should want to talk.
    • Think of what’s most important to you, not what’s fair. Don’t go to trial to get what you think is fair. You’ll probably be disappointed. Think about what’s most important to you and what kind of settlement or solution will give you what you need.
    • Compromise. If you wait because you think you’ll get everything you want at trial, or if you won’t settle because you think you don’t owe money, you can be found wrong. If you settle, it’s like an insurance policy. Lose a little so you don’t lose a lot.

    Learn about negotiating and settling at the law library  (Section B 61) in: "Lynch et. al., California Negotiation and Settlement", Bancroft Whitney.

  3. Get ready for trial

    Here are some important points to think about when you get ready for trial: You can find more information about your trial at the County Law Library, in Section B 61. For example:

    • Bennet, et. al., Guide to Jury Selection and Trial Dynamics, West (1994)
    • Cotchett, California Courtroom Evidence, Lexis, 5th ed.
    • Cal Practice with Forms, Bancroft Whitney, 20 Vols.

    When you get ready, start from the beginning. Every step is important for your trial. There are parts of the litigation that are good opportunities for you to get ready for trial.

  4. Pleadings

    Every legal paper that you file in your lawsuit is a pleading. The court uses papers like the complaint, cross-complaint, and answer to decide what proof should be in the trial. What the complaint and cross-complaint says will be important. It helps the judge decide what legal instructions the judge or jury will use.

    Part of getting ready for trial is making a summary of these papers, and of what you have to prove to make your case or defend it.

  5. Discovery During discovery, you can:

    • Collect facts,
    • Get witness statements informally, or
    • Get witness statements in a deposition,
    • Find out what the other side is going to say
    • See how good you think their case is, and
    • Get all the important information you need to present your case in court.

    When you get ready for trial, look over all this information and make a summary of what you think will help you present your proof or question the other person’s proof.

  6. Motions

    Like discovery, motions and orders for motions can be used in trial. Go over your motion papers and orders when you get ready for trial. Begin to focus all your attention on getting ready for trial at least 100 days before the trial.

  7. Expert Witnesses

    You don’t need an expert witness for every case. But, if you need one for your case, be ready to tell the other side the names, addresses, and phone numbers of the expert and what they are experts in.

    You’ll also have to give them a statement about the expert’s testimony, or what you think the expert will say in court. You are responsible for arranging for your own expert witnesses.

    Code of Civil Procedure §2034  (and sometimes the Local Rules of Court) says that you must serve the other person with your expert witness information. This is called disclosure.

    In general, you have to give disclosure 50 days before the trial. Learn Santa Clara’s Local Rules of Court and §2034 before then. You can find other forms to help you get ready for trial at the law library .

    For example:
  8. Other witnesses

    You have to get your witnesses to go to trial at the right time. A lot of witnesses, even ones that you’re friendly with, need you to subpoena them so they can leave their jobs to go to court. The subpoena must be served by a process server.

    Plan everything ahead of time. If a witness is going to be out of town during the trial, you can take their deposition and use it instead of having them testify at trial.

  9. Jury Instructions

    If you have a jury trial, you have to write jury instructions. These are the laws that support your side of the story. Both sides give the judge their instructions before trial. The judge chooses what instructions to read to the jury.

    If you’re not a lawyer, get help from an experienced trial lawyer. If the other party has a lawyer and you don’t, they can have an advantage. They can give the judge instructions that aren’t fair to you.

    Remember: Any two people can interpret legal precedent in different ways. You can’t expect the other side to interpret the law in a way that helps you.
  10. Jury Fees and Waiver

    If one of the sides asks for a jury trial before the deadline, they pay fees to the court at least 25 days before trial. If no one pays the jury fees on time, you won’t have a jury. A judge hears your case without a jury. You will have “waived” the jury.
  11. Privately Retained Court Reporters

    Effective July 24, 2017, court reporters will be provided by the Court in all the following cases: felony criminal, family, juvenile dependency, juvenile justice, Lanterman-Petris-Short (LPS) Act, guardianships of the person or estate, civil harassment and civil contempt - including any of these cases that are assigned for trial or long cause hearing to the Civil Division, or to be heard by a Judge assigned to the Civil Division.

    For hearings and trials in unlimited civil matters, limited civil matters to the extent not electronically recorded and probate matters, a party has the right to arrange, at the party's own expense, for the services of a court reporter if the services of an official court reporter are not available. Santa Clara County Superior Court has established a policy which sets forth requirements for qualifying as an official reporter pro tempore, click to see the Policy Regarding Privately Retained Court Reporters.
  12. Motions in Limine (motions to limit evidence or argument):

    ”Motions in Limine” are motions to limit the evidence and arguments used at trial. In general, you make these motions in writing at the beginning of the trial. Many times, the motions are made orally .

    Name your Motions in Limine in your Mandatory Settlement Conference Statement. File your Statement one week before the trial.

  13. Preparing exhibits

    At trial, you can show exhibits, like:

    • Blow-ups of witness statements,
    • Deposition testimony,
    • Papers,
    • Photos
    • Pictures made by artists to show parts of the case
    • Videos,
    • Models
    • Copies of things that were part of what happened

    Plan before you spend money on exhibits. Prove to the court that your exhibit shows what really happened, not just your side of the story. You can’t show exhibits at trial unless you prove the exhibit is true and right in every way.

  14. Documentary exhibits

    A lot of times you have to show the court written papers to prove:

    • What you agreed to,
    • What was said,
    • How much you were charged, and so on.

    Ask the other person to agree to give the court some papers or photocopies as evidence. They may not agree to this. Then, you must prove that the papers are true and correct. This is called “laying the foundation”.

    In general, you can’t submit a photo or photocopy unless there is a witness, to testify that the evidence is true. YOU can be that witness.

    There are a lot of rules for evidence. Ask the librarian in the law library  to help you find the Evidence Code and books that talk about the rules for documentary evidence.

  15. Conclusion

    The difficulty of your trial depends on what kind of case you have and how complicated the law for your case is. Always start to get ready early. If you don’t, you can be surprised by things that you need to do before trial that you didn’t do in time.

    Be aggressive about trying to settle. Getting ready for trial and the trial itself can be very expensive and very risky.

More information for the Plaintiff and Defendant:

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