Creating an Effective Trial Notebook
Practical instruction on the efficient and effective preparation of trial notebooks for complex personal injury and tort trial litigation. The article focuses on both the preparation of the notebook as a device to manage and control the preparation of the case through discovery and pretrial as well as the use of the trial notebook during the case presentation before a a jury.
A blockbuster damage suit has just come into your office. Your initial investigation is completed. You are prepared to file suit and begin a two year process that you hope will result in full compensation for your client and your efforts. The case may be a medical malpractice action, a products liability suit, or a complex business tort. In any event, you can expect an aggressive defense, complex issues, extensive discovery, hundreds or thousands of pages of documents, and the knowledge that the defendants will probably not pay fair compensation to the victim until a jury does justice or they are convinced that you are prepared to take the case to trial. What do you do now?
The more successful you are in obtaining complex plaintiffs’ litigation, the more pressing the problem. We became acutely aware of the difficulty when three complex cases came on trial calendars and had to be fully prepared for trial within a two and a half week period. Years of preparation had gone into the files since they first arrived in the office. A case is never prepared for trial until the trial lawyer sits down and prepares the case to be presented before a jury. We knew that trial notebooks had to be prepared for each of the three cases and that a thousand other details must be attended to before we announced ready and began presenting the case. There were thousands of pages of documents to review, questions for the potential jurors, opening statements to be thought through, witnesses to be contacted, subpoenas to be prepared, documents and tangible evidence to be prepared, marked, and reviewed, the examination of witnesses and experts to be considered and prepared, requests to charge to be completed, and then we could consider trial tactics and strategy. Although many of these tasks had been partially considered or completed during the years of preparation in the case, we were looking at long hours of work before we could walk into court, announce ready, and begin the trial of the case.
The cases were prepared for trial. However, two cases were not reached for trial, and the third resulted in a mistrial when the defense lawyer became ill during the trial of the case. We felt like we needed a month’s vacation to recuperate, but the more mundane matters in the office had been piling up during the interim, and they were now an additional burden. We knew that there had to be a better way.
What we wanted was a system that would minimize the disruption caused by a large case coming into the office. We had three main goals:
1. Simplicity: It had to be a simple procedure so that everyone could understand and use the system.2. Reduce Duplication: A system that causes more work than it saves is a waste of time and money.
3. Results: The system had to result in a file that was prepared to be taken to trial and won with a minimum amount of last minute preparation.
The system that we devised met all three criteria, and it has been a success for us because it was devised to structure the entire litigation process with a view toward the trial of the case.THE SYSTEM
The System requires an understanding of the organization of the file from the date that suit is filed. When the process is faithfully followed, it results in a trial notebook and an accompanying file that is prepared to be carried to the courthouse for the case to be presented.
1. One quality four-inch looseleaf notebook with a label holder on the spine
2. One set of looseleaf ring binder indexes divided into eight tabs
3. Two sets of numerical 1 - 25 (or higher, depending on the complexity of the case) letter size indexes for the looseleaf notebook
4. One cardboard file storage box (letter / legal size)
5. One expanding file divided numerically 1-25 (or higher, depending upon the number of exhibits anticipated)
Preparation of the File
The first step in preparing the file is to create the trial notebook. The looseleaf notebook should be labeled, “Trial Notebook” with the case name indicated on the notebook spine. The eight looseleaf tab dividers are then labeled:
1. Voir Dire
The two sets of numerical looseleaf tabs are then placed into the Witnesses and Exhibits sections of the trial notebook. The trial notebook is now prepared and ready for use as an integral part of The System.
The expandable numbered letter sized file should be placed into the cardboard letter / legal size storage box. The box itself should be labeled with the case name and file number and be labeled, “Box 1.” The mechanics of The System are now complete, and your correspondence file and pleading index can be maintained in your usual filing system. The trial notebook should remain in the letter / legal size storage box.
Use of The System
The trial notebook is the key to The System. The notebook is divided to act as a blueprint for the trial of the case from Voir Dire through the court’s charge. The goal is to use the trial notebook at every step of the litigation so that the blueprint is being completed as the litigation progresses. Now we will review each section of the trial notebook to see how it is used during the preparation of the case.
Whether you have standard voir dire questions which are asked in every case or particular questions concerning unique issues or problems, they should be dictated before the trial begins and placed in the Voir Dire section of the trial notebook. A list of standard questions can be included when the trial notebook is first prepared. At any time during the litigation that you think of an appropriate voir dire question, you should dictate a memo to the Voir Dire section of the trial notebook and place it in that section. In this way, the voir dire can be reviewed when the case first comes on a trial calendar and finalized. You will know that a question is included in your trial notebook if you make a habit of dictating a memo to the Voir Dire section of that trial notebook whenever you think of an additional question that you wish to ask. In any event, once the case comes on a trial calendar and voir dire is finalized, you will not have any further preparation to make before beginning the questioning of the prospective jurors.
Different attorneys will handle the preparation of their opening statement in different ways. Whether you make an opening statement from a short topical handwritten outline or prefer to compose a complete opening statement, your notes should be placed in this section of the trial notebook prior to trial. The opening statement is generally prepared shortly before the trial of the case when there is sufficient information to bring the entire case into focus. Any ideas that you have concerning the opening statement during the development of the case should be dictated to a memorandum, and the memorandum should be placed in this section of the trial notebook for use when you sit down to prepare your opening statement before trial.
The Witnesses and Exhibits sections are the heart of the trial notebook and the case preparation system. When these sections are properly used throughout the litigation process, they result in improved discovery, organization, and a great reduction in the time spent preparing the case.
The Witness section is divided by numerical tabs. A cover sheet should be prepared as the first page in the Witness section. On the cover sheet entitled, “Witness List,” every witness and potential witness should be listed as their name surfaces. Simply list each additional witness consecutively 1 through ad infinitum. The witness’ full name should be listed and in parenthesis a brief identification.
1. James Jones (plaintiff)
2. Frank Smith (defendant)
3. Mary Jones (plaintiff’s wife)
4. Dr. Stan Smith (orthopedist)
5. Tammy Bond (eyewitness)
As soon as the witness’ name is added to the cover list, you should turn to the correspondence numbered divider and prepare a single page which includes the following information: name, home address, home telephone number, work address, work telephone number, and cellular telephone number(s). This is the basic information you will need when the case comes on for trial to either subpoena or contact your witnesses. You should also add a copy of any statements or testimony that the witness may have given to the number corresponding to their name in the Witness section of the trial notebook. If a statement must be taken or the witness must be deposed, then immediately make arrangements to obtain their testimony. When the testimony is obtained, place a copy of the statement or deposition summary in the section of the trial notebook corresponding to that witness. Finally, when you are prepared to determine what points you wish to make with that witness on direct examination or cross-examination at the trial of the case, prepare your outline (or the exact line of questioning if it is technical), and place the notes regarding the witness’ examination in this section. It is always helpful to briefly list the support for the answer you expect so that you have a ready reference if the witness strays from earlier testimony or documentation.
The doctor did not know that he cut off the wrong leg because he was drunk. (Doctor’s deposition, page 60) The doctor should have known that the right leg was supposed to be removed based on the preoperative evaluation. (Exhibit 5 - Preoperative evaluation)
The best time to prepare you notes concerning the examination of a witness will be a matter of judgment in each case. If you are not ready to prepare the entire examination but you have a question or line of questioning that you would like to remember to include in your examination of a witness, dictate a short memorandum to the file and place it in the Witness section corresponding to the number of that witness.
By listing each witness as their name appears in the case, you have created a complete witness list with sufficient information to immediately contact them or subpoena them to trial. There is also a single, readily accessible location to place statements, deposition summaries, and your notes concerning areas of questions and specific questioning. The accessibility of the information will also assist in preparing and taking of the discovery. Finally, the listing of witnesses helps avoid procrastination since it directs your attention to the existence of the witness and requires you to make a decision: Should a statement be taken from this witness? Should he/she be deposed? Or should I sit down an discuss the testimony with him/her before the trial of the case?
The use of the Exhibits section of the trial notebook is potentially the greatest time saving device in The System. It is also a marvelous tool to assist in and through preparation of the case. Again, the first page in the Exhibits section of the trial notebook should be entitled, “Exhibit List” corresponding to the numerical tab dividers that follow the list. Whenever a potential exhibit, document, or tangible evidence is obtained, you should follow the same procedure. For documents: make two copies immediately. Assign the document a number. Place one copy of the document in the Exhibits section of the trial notebook corresponding to the number that you have assigned to that document, and then place the other document in the corresponding number of the expandable file which is in your legal / letter size storage box. (In the event that it is important to have the original document to introduce into evidence, then the original document should be placed in the expandable numbered file. This expandable file contains all of the trial exhibits which will actually be marked and introduced into evidence at the time of the trial.)
The copy placed in the trial notebook will be used for review and preparation for depositions and for the trial attorney’s use at the time of trial. The clean copy placed in the expandable file folder will be used as an Exhibit at the time of trial.
The trial exhibit should be prepared for introduction into evidence before it is actually placed into the expandable filing system. For instance, if references to insurance must be deleted from the document, they should be removed before the document is ever placed into The System.
What happens if you have tangible evidence or a document that is either too large for the numbered filing system or is difficult to duplicate (i.e., an automobile tire, x-rays, a large blow-up)? First, you assign a number to the exhibit. Mark the exhibit with the case name, the number that has been assigned, and place it in your exhibit locker, storage room, or wherever you would normally maintain that evidence. Then prepare a memorandum that identifies the exhibit, the number you have assigned to the exhibit, and the location of the exhibit. One copy of the memorandum will be placed in your trial notebook, and a second copy will be placed in the expandable numbered file.
Johnson v. Jones
1-1985 Firestone tire; Serial No. 657246; Model No. 2801; Size: B-17; Markings: none; Warnings: none; Evidencing tread separation; Location: evidence locker, Hill & Bleiberg
This memorandum should provide you with all the necessary information that the exhibit demonstrates so that you can use it during discovery depositions and without having to unnecessarily cart all the exhibits with you around the country. By following this procedure, you are creating a set of trial exhibits as the case progresses rather than having to wait until the week before a pretrial conference or the trial of the case to gather all the evidence. The exhibits will also be available to you during the entire discovery process.
Once the exhibit has been placed into The System, there are a number of other steps that should immediately be taken. First, review the exhibit thoroughly and either index it or extract notes concerning the important language in the exhibit. This index, or your notes, should be placed in the trial notebook under the Exhibits section and immediately in front of your trial notebook copy of the exhibit. This step forces you to review the exhibits as they are obtained and placed into the file, and also extracts the important information from each exhibit so that you can quickly find the material in your trial notebook during discovery depositions or trial. Second, you should ask two questions when you review each exhibit:
1. How can I get this exhibit into evidence?
2. Do I want to use this exhibit to question any witnesses?
I you can answer those questions after reviewing the exhibit, then your job is completed. If there is a particular witness or witnesses who can identify the exhibit so that it can be admitted into evidence, then turn to the Witness section and make a note that witness number 7 must identify and authenticate document number 15. Make an additional note in the Exhibit section under document number 15 indicating that witness number 7 can identify and authenticate this document. Likewise, whenever you come to an exhibit that you want to use in the questioning of a witness, turn to that witness in your trial notebook and enter a note indicating that the witness should be examined concerning exhibit 17, page 32. In the event that you cannot determine how the document can be placed in evidence, then you should immediately research the law or investigate to determine the procedure or the identifying witness that will be necessary to have the document admitted into evidence. If there is an important point of law concerning the admissibility of the evidence, a short memorandum should be prepared, and the memorandum should be placed in the Law section of the trial notebook. There should also be a note included in the Exhibits section stating that there is a memorandum of law concerning the admissibility of this document in the section of the trial notebook on Law.
Exhibit 8 - certified copy of a guilty plea in Traffic Court (SEE legal memorandum regarding the admissibility of certified court records without further authentication)
If the admissibility of the document depends upon the testimony of additional witnesses, remember to add the witness’ name to the Witness list section of the trial notebook.
Finally, as each exhibit is added to The System, if any additional discovery or investigation is required as a result of your review of the exhibit, then schedule it immediately.
When an exhibit has been added to the file, you will know that the exhibit has been reviewed, that a copy is available for review in your trial notebook, that the important information concerning the exhibit has been extracted and can be found in the trial notebook, that a complete copy of the exhibit is contained in your expandable file and is ready to be introduced into evidence, that the admissibility of the document has been considered and the witnesses and law concerning its authentication and admissibility are contained in the trial notebook, and that any additional documents, witnesses, investigation, or discovery that is required as a result of your review of the document has been initiated. This is the bare minimum that can be expected as a result of the receipt of evidence to be used in the trial of the case. While it may seem like a great deal of work to perform concerning every document that is received, it is actually a procedure for doing everything that is absolutely necessary when the document first reviewed and avoiding the necessity of performing the same work three or four times under crisis conditions.
Like the opening statement, the closing argument is approached differently by different trial lawyers. The Closing Argument section of the trial notebook should be used to list important points in argument that can be made at the conclusion of the case. When an argument comes to mind during the preparation of the case or during trial, simply make a note for reference in this section of the trial notebook.
The jury charges are prepared, and a copy of each charge should be placed in this section of the trial notebook. Also prepare a Charge Conference Index which lists the jury charges by number and subjects and provides for a notation to be made concerning whether the court will give the charge, not give the charge, give the general principle of law, and whether the charge was withdrawn or dealt with in another manner. The charges that you want to use at trial can be conveniently listed in the Charge Conference Index as they come to mind during the preparation of the case.
Whenever you anticipate a point of law that will arise during the trial of the case, it should be immediately researched and a very brief memorandum and/or a copy of the controlling decision can be placed in this section of the trial notebook. Some attorneys prefer to prepare a trial brief concerning the main issues in the case, and this would appropriately be placed in this section of the trial notebook as well.
The Miscellaneous section of the trial notebook can be used to retain any information that does not properly belong anywhere else in the trial notebook. We have used this section of the trial notebook as a “brainstorming” device to efficiently and creatively focus attention on specific issues and problems in the case. This is a specific technique that we have developed, although it is not an essential part of The System for organizing a complex case for trial.
Our brainstorming technique works this way: We identify a problem, legal, or factual issue. We list the issue and then make a comprehensive list of witnesses, exhibits, arguments, and tactics that can be used to effectively deal with the issue. The purpose is to spawn as many ideas as possible in a concentrated effort rather than dealing with a problem in a piecemeal fashion or defensively.
The technique can be used to deal with essentially any problem that arises in a case. As an example, assume you have a serious personal injury case involving a piece of industrial machinery, and the defendant has taken every opportunity to point out that the equipment is 30 years old. You are concerned that the defendant’s argument will prejudice the jury.
Example:Issue: Age of product
Witnesses, Exhibits, Arguments, and Tactics:
1. Design Engineer: show that the machine was designed for many years of use and they anticipated that it would still be in service decades after the equipment was sold
2. Useful Life: show that the useful life for this machine and other similar machines is typically three to four decades
3. Demonstrate the difference between the useful life of consumer equipment, i.e., vacuum cleaner, and heavy industrial equipment
4. Use an expert design engineer to educate the jury regarding the useful life of heavy industrial equipment
5. Show that other manufacturers used a safer design in equipment manufactured at the same time as the subject produce
6. Show that the defendant manufactured a safe, but more expensive piece of equipment, at the time this machine was manufactured
7. Show that the manufacturer was aware that these machines continued to be in use at the time of the victim’s injury because they continued to sell replacement parts for the equipment
8. Show that the manufacturer knew the machine was dangerous when it was designed because they had knowledge of injuries before the date this machine was manufactured
9. Show that the manufacturer never placed any limitations on the useful life of the machine
10. Show that the machine violated technical standards which were published prior to the time of manufacture
11. Request to charge that the age of a product alone does not relieve a manufacturer of the duty to use ordinary care in the design and labeling of the product
12. Opening Statement: Acknowledge the date of manufacture and tell the jury that the evidence will show that the machine was dangerous when it was designed, the manufacturer knew it did not meet the standard in existence at hte time that the manufacturer was aware of injuries caused by the machine before it was manufactured, that the manufacturer had manufactured the product for 20 years before this product was sold without making changed in the design, that it did nto meet the state of the art in the industry at the time of the manufacture, etc. In other words, undercut his argument before he gets a chance to speak.
13. Show the disparity of knowledge between the manufacturer and the victim. The manufacturer had been in this business for 50 years and knew what they were doing when they manufactured a cheaper, less safe product. The victim did not have 50 years to learn about these dangers.
Each of these ideas may lead to further investigation and/or discovery. New witnesses should immediately be listed in the trial notebook. Additional exhibits should immediately be listed in the trial notebook and incorporated into the file. New charges should be added to the Charge section of the trial notebook, and a note should be made in the Opening Statement section concerning that tactic. The list can obviously be added to many times during the course of the litigation. It can also be used as a quick reference list during closing argument.
When the case comes on a trial calendar, there will still be a great deal of work to be done before presenting the case to a jury. The hope is that the time before the trial can be spent putting the finishing touches on a case and considering tactics, strategy, and the preparation of witnesses rather than attempting to organize a gargantuan file. By the time a case reaches a trial calendar, the trial notebook, your blueprint for the trial of the case, should be completed.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.