CREATING A TRIAL NOTEBOOK – Part 1

by David A. Moyer

For those of you who don’t know what a Trial Notebook is, the Definition of a Trial Notebook: a blueprint for the trail. In other words, it’s a detailed plan of action.

A. Advantages and Disadvantages of a Litigation vs. Chronological Notebook

A Trial Notebook, sometimes called a Trial Book, is a collection of documents, arguments, and strategies that an attorney plans to use during a trial. It is often organized as a loose-leaf binder for ease of use by the attorney. The Trial Notebook becomes the attorney’s checklist for conducting the trial. It is a blueprint for the trial to come. An attorney can follow through the sections, step by step, when in the courtroom trying a case. Unanticipated situations almost always arise during a trial, but by preparing the Trial Notebook with care, an attorney can minimize surprises.

What is a Litigation Notebook? It is simply a notebook of everything to be used at trial. A Chronological Notebook is that Litigation notebook but the contents are in the order of when they’ll be introduced during the trial. This makes it a lot easier to find what you need when you need it.

The first step is to create and develop a theme for the case. This is the central story or principle around which the case must develop and which will be supported by the witnesses and evidence. To that end, the trial attorney should prepare an outline establishing the theme of the case and setting out how the theme will be proven during trial. This outline should identify what witnesses and documents will be used, what issues will be addressed, and what will ultimately be proven at trial. Create a section in the trial notebook or folder system that includes the theme of the case as the first entry.

What is a theme for a case?

A theme is the type of case it is, for example, I recently worked on an EEOC case (Equal Employment Opportunity Commission) so my theme was the fact that my client felt that her employer discriminated against her on various levels and so we had to support this complaint by producing documents and witnesses for the hearing.

Next, prepare an “order of proof outline” which will set out the expected progression of the trial. Include the order in which each witness will be called to testify, as well as the documentary evidence that will be introduced at trial. The order of proof should identify all documents that will be introduced and should also describe how and through which witnesses the documents will be introduced. The order of proof outline should be flexible, in as much as the order of witnesses’ testimony may vary; nevertheless, the exercise of planning out how and when the evidence will be presented to the jury is very important.

The paralegal’s job is to collect the material that will go into the Trial Notebook, organize it, keep it current, and help make it useful to the attorney as a tool for trial preparation and trial management.

Specifically, the paralegal might:

  • Prepare summaries of deposition testimony.
  • Prepare a list of every party and witness plus people who are expected to be mentioned during testimony; index this list to the rest of the Trial Notebook.
  • Prepare sample questions to ask witnesses, particularly when needed to lay the foundation for evidence to be introduced.
  • Prepare a summary description or log of all the exhibits to be used.
  • Prepare an abstract of the contents of every document.

What is an abstract? It’s just a summary of a document. What the key points are. This can be for any document.

State the location of documents and exhibits that will not be contained in the Trial Notebook itself.
This is important because you may have a really large document that you don’t want to keep in the notebook but you need anyway, so you want to make sure you know where it is. Same with evidence such as a video tape or disc or something you can’t put in a notebook. So you list it and where it’s located at for handy reference.

  1. Cross-index material on particular witnesses or legal theories.
  2. Collect all the information known about each juror, from voir dire and by other means.
  3. Prepare end tabs for each section of the Trial Notebook.
  4. Color-code different kinds of documents and information, such as with blue sheets for citations to authorities supporting claims, and yellow sheets for deposition testimony and other statements of the opposing party.

If you notice, all of these have one thing in common; they’re all ways to organize information so you have everything you need for trial in one centralized location. However, it should be noted that the layout and content of the Trial Notebook varies from attorney to attorney, so therefore; there is no right or wrong way to prepare it. The basic format for a Trial Notebook is a three-ring binder for 8 1/2 x 11” paper (legal-size documents can be folded to fit or, better yet, photographed at a reduced size on 8 1/2 x 11” paper). But not all attorneys use Trial Notebooks to organize their materials for trial; some use file folders or some other sorting and retrieval system.

In addition, the Trial Notebook expands as the case advances toward trial, therefore certain trial-related sections will not be finalized until right before the time of trial.There is an advantage to a Chronological Trial Notebook as compared to a Litigation Trial Notebook. The advantage is that everything in the Chronological Trial Notebook is in the order in which the attorney intends to introduce it at trial. This will allow you to find what you are looking for when you need it. However, what matters most is that there are many practical and technical matters that need to be addressed by attorneys and paralegals prior to trial; and therefore the following elements are generally addressed or included in one form or another, no matter what format you choose. The fact remains that the Trial Notebook provides the attorney with a central location that contains as much useful information as is reasonable and efficient.

Stay tuned to Part 2!

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