Most civil cases never make it to trial. The parties might settle. One party might drop out along the way and get a judgment against him. Others may simply not show up at all. For self-represented litigants, a defeat usually comes early in the case. Quite often, we don’t show up at all. So, if you’re pro se, and you’re going to trial, congratulations. You’ve jumped a lot of hurdles to make it here.
So now, let’s make a trial notebook.
After months or years of hearings, motions, and pleadings, you’ve got a real date with a judge or jury. Are you prepared? If you haven’t thought about a trial notebook until now, you’re not. So, let this be your crash course in getting it together.
What is a Trial Notebook?
One of the most beneficial and important tasks to undertake for a trial is the preparation of a trial notebook. It is a blueprint for organizing key documents, outlines, and other information into one place. That done, you can more effectively present your case to a judge or jury.
To be honest, the best time to start organizing and writing a trial notebook is at the very beginning of the case. So if you’re reading this and nowhere near trial, you’ve got an advantage. Read on.
- If you are the Plaintiff: Begin preparing a trial notebook before filing a petition or complaint.
- For Defendants: Begin preparing a trial notebook right after receiving a copy of the complaint or petition.
- If you are either party and nearing trial, you can catch up.
Formatting a Notebook for Trial
In the olden days, pre-2020, the trial notebook was a three-ring binder with tabbed sections. This format allowed for quick access to key documents, outlines, and other needed material during a trial. Now, since a lot of court work is going online due to COVID-19, seek out alternative formatting for your trial notebook.
Sections typically included in the trial notebook are Pleadings, Discovery, Trial Outline, Opening Statement, Direct Examination Outline, Cross-Examination Outline, and Closing Argument Outline. Every case is different, so additional sections may be warranted. To prepare a trial notebook, consider the next section as kind of a checklist or guide for organizing information for trial.
Sections of a Trial Notebook
Section 1: Pleadings — Create the first section in the trial notebook and label it Pleadings. For ease of organization and access, add pleadings in reverse chronological order, with the newest ones in the front. Also, flag any particular documents you will want to access quickly. This section will contain:
- Court Orders
Section 2: Discovery — During the formal process of Discovery, evidence was uncovered through interrogatories, depositions, and requests for admission. Keep track of these in the trial notebook and include relevant parts to be used in the trial. The results of a deposition or set of interrogatories may be voluminous. So create summaries of each. In each summary, be sure to reference specific pages in a deposition or an interrogatory number so you can refer back to the original source if necessary.
Section 3: Trial Outline — The Trial Outline goes next. This is often referred to as a Legal Claim Outline and is a listing of the claim elements to be proven or disproven during the trial. Both a Plaintiff and a Defendant need to compile this critical outline. If you’re a defendant, you should do this for any affirmative defenses that remain standing.
The outline will serve as a roadmap for trial, including the testimony sought and arguments to be made. At this point, you should think through the case and each point you need to make or your opponent needs to make. Prepare the trial outline with the following:
- List each element of the case (claims and affirmative defenses) to be proven or disproven
- Add identifier (number or letter) of any evidence for each
- List names of witnesses
- Compile relevant statutes or cases, if any
- As the case proceeds, this outline should be annotated based on actual witness testimony and presented evidence.
Section 4: Opening Statement — The Opening Statement kicks off a trial and is a summary of the information that will be presented to the judge or jury during the trial. The best practice is to create an outline of your opening statement, or create a bullet list of main ideas or points to be made, and in what order. Reading out a written statement is not recommended, as it may lose its effectiveness in the delivery.
Section 5: Direct Examination Outline — A Direct Examination Outline will identify witnesses and specific questions and exhibits to be used with those witnesses. While it may be challenging to write exact questions for each witness, providing clues to questions that need to be asked will serve as a guide. If there are expert witnesses, however, exact questions might be necessary. In the trial notebook, give each witness their own page(s), and include the following:
- Witness name
- Witness background information
- Testimony to elicit from witnesses
- Exhibits for witnesses to validate
- List of questions to ask
Section 6: Cross-Examination Outline — This outline identifies information pertaining to adverse witnesses and how to go about cross-examining them. This outline can be drafted early on and added to as the trial progresses and actual testimony is given. Provide separate pages for each adverse witness and include the following:
- name of anticipated adverse witness
- cross-examination questions
- expected testimony that might harm your case
- copies of any evidence to reference (e.g., deposition with conflicting statements)
Section 7: Closing Argument Outline — Create a Closing Argument Outline during the trial and continue to edit it as the trial progresses. This will consist of a layout of the closing argument that ensures that important evidence or arguments aren’t overlooked.
The ultimate goal of a trial notebook is to have each and every part of the case organized and thought out ahead of time. By setting it up early in the case, and editing during the trial, a plaintiff or defendant will be better prepared to present in a case in the best possible way.
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