Preparation of a Trial Notebook

All of the sources that I used in my essay were found on HeinOnline.org, a leading database that contains hundreds of thousands of legal works. HeinOnline, (Feb.8 12:37 pm), https://home.heinonline.org/.  All articles chosen were written by attorneys and published by the ABA for the purpose of keeping practicing legal professions up to date on the latest legal practices and trends in particular areas of law. Eg., Family Advocate Archive, Family Advocate Archive (Feb. 8, 2020, 10:17 am), https://www.americanbar.org/groups/family_law/publications/family-advocate/; see also, Litigation News, American Bar Association (Feb 8, 2020, 10:23 am), https://www.americanbar.org/groups/litigation/publications/litigation-news/.

The first article chosen was The Trial Notebook, written by James McElhaney. I found this author’s work to be particularly credible because of the numerous titles earned by the author, including the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law. Jim McElhaney, Jim McElhaney - ABA Journal (Feb. 8, 2020, 10:31 am), http://www.abajournal.com/authors/447. He wrote for the ABA Journal for 25 years and wrote his Trial Notebook column in Litigation Magazine for over 30 years, authoring over 350 articles. James W. McElhaney, McElhaney's Litigation, Volume II Professional Bookshop, (Feb 8, 2020, 10:00 am), https://www.pbookshop.com/mcelhaney-s-litigation-volume-ii-9781614389620.html.

According to James W. McElhaney, The Trial Notebook, 7 Litig. 45, 45 (1980), a trial notebook is a notebook used during the course of litigation. There are several reasons to use one. The foremost reason is to ensure easy access to important documents or information during the course of the trial. Id. It can also be used for other people in the firm to review another’s work before the trial begins. Id. at 46. In the unlikely event the intended attorney is unable to try the case, a well-kept trial notebook will also allow another to take over more seamlessly. Id.

A trial notebook can be set up to fit the needs of the attorney. Generally, it is an 8 ½ x 11 binder with a folder where photos and documents can be easily kept. Id. It is helpful to have a table of contents and an index at the beginning of the binder. Id. It may be followed by a case analysis, which should include the argument that will be used to persuade the trier of fact, notes about preliminary motions, possible jury instructions, etc. Id.

A proof list is a must. It should have three major parts, the elements that make up the cause of action, the supporting evidence, and the source of the evidence. McElhaney at 46. The proof list helps to ensure that nothing is missing, ensures a firm grasp of the evidence as a whole, and can be used to refresh once’s memory about the case. Id.

While pleadings, stipulations, and pretrial order should all be included in the notebook, it is important not to overlook the witness list. In addition to a witness list with name and contact information, a second should be written to include more important information such as outlines for direct and cross-examination. Id. at 47. It should also include how the witness relates to the case and what the witness adds to the case. Id.

The rest of the notebook may contain other documents you will want easy access to during trial. Document and exhibit lists should be included, as should motions, requests for jury instructions and notes on closing argument Id. at 48.

This reference would be helpful to a paralegal preparing their first notebook because it goes into detail about the elements of well-prepared witness and proof lists. The other resources reviewed said little on these subjects.

Next, I chose Trial Family Notebook- It Is Your Script, - Like a Good Actor, You will Rehearse and Rehearse and Rehearse. This article was published in Family Advocate magazine. This magazine, published by the American Bar Association, is a quarterly magazine for family law practitioners. It also provides practice management advice and a yearly manual for clients. Family Advocate, supra.

In Jon Michael Franks, Trial Notebook - It Is Your Script - Use It - Like a Good Actor, You Will Rehearse and Rehearse and Rehearse, 12 Fam. Advoc. 6, 6 (1990), the author agrees that building the trial notebook should begin early on in the case. Each section of the notebook should be separated with side tabs for each section, beginning with “things to do” and opening statement, all the way to closing arguments. Id. The notebook should follow the order of trial proceedings. Id. at 7.

The trial notebook has ten essential sections. These sections include opening statements, pleadings and admissions, witness lists, a question list, CV’s of expert witnesses, exhibits, evidence, trial briefs, proof checklist, and closing arguments. Franks at 8.

It is wise to include in the trial notebook a list of the Federal Rules of Evidence. Carrying around a copy of all of them is a bit impractical, but flashcards can also be used for this person. Id.

At the end of the notebook should be a law and authorities’ sections. This will simply be a quick reference to authority you are relying upon to win the case. Briefs, articles, or, at minimum, a cross-referenced index should be included here. Id.

Like the previous article, this one includes items in the notebook that others don’t, such as the flashcards containing the Federal Rules of Evidence and the CV for expert witnesses. Having this information can be helpful for paralegals preparing a trial notebook

My final Source is the Trial Notebook. This article was written by Mark A. Drummond, Associate Editor or Litigation News magazine. Litig. News is published by the American Bar Association, in addition to supplying current legal practices to attorneys, this magazine supplies valuable information about cases of first impression. Litigation News, supra.

According to Mark A. Drummond, The Trial Notebook, 34 Litig. News 18, 18 (2009), being a successful litigator doesn’t require the sharpest legal mind. A successful litigator is a well-prepared litigator, and that’s where the trial notebooks come into play.

The best time to begin the trial notebook is with the filing or receipt of the complaint. Id. You first need to collect a three-ring binder. The kind with the clear plastic sheets is handy. A piece of paper with words “Trial Notebook”, the case caption, and the attorney’s information can be placed into the clear sleeves. This will let everyone know that the attorney is well prepared and maybe psych out the opponent. Id.

Next, prepare the inside of the binder. This starts with the “To Do List”, which will include everything the attorney needs to do before, after, and during the trial. Id. Though the notebook can be organized anyway the attorney wants, there should be a section for relevant pleading that the attorney will need to jury instructions and motions. Id. at 19. Timelines should also be included. It may be a good idea to have one for the case and one for the litigation. Id. A statement of the case should also be included, as the judge will want one anyway. Id. A contact list of all witnesses and their contact information should be included as well as copies of their respective subpoenas. Id. A request to admit facts and genuineness of documents may be included to aid in getting exhibits admitted without the formalities that may otherwise be needed. Id.  Outlines for voir dire, opening, examination, and closing should be next in the binder. Id. The last thing in the litigation should be a memorandum of law, should any obstacles arise about the evidence.

This article would be immensely helpful to a paralegal when trying to compose a trial notebook. It is incredibly detailed and includes information that my other sources did not, for example, the addition of the request to admit facts and genuineness of documents.

The attorney I am working for has asked that I prepare a trial notebook for his upcoming malpractice trial.  A Trial notebook can be a useful tool in the courtroom. With the attorney I am assisting being so disorganized, it is up to me to make sure his notebook is well planned and has an easy logical flow. Franks, supra, at 6. I would begin by preparing a three ringed binder with several folders for things that should not be hole-punched, like photos and other exhibits. I would include side tabs to aid the attorney in locating important sections easily. I would write the attorney’s name and case name on the front.

The most logical thing to do from this point would be to work on the timelines for the case and the litigation.  I would start by going through the files and setting up my preliminary timeline for the case, noting the events that led up to, include, and followed the incident. I would then go through all four years of filings and set up a case timeline, noting everything from when the client first contacted the office to the present point in the case. This will also help me put the documents in a logical order and more easily find if something may be missing from the file.

I would then begin preparing the first sections of the notebook, leafing the first tab free for the attorney’s “Things to Do” sections. The next tab in this section would be for the attorney’s opening statement. This is where I would put the outline of the attorney’s opening statement as well as notes regarding the sequence the trial is going to follow. This way the lawyer can use it as a guide to explain the expected course of the trial to the jury. I would also include a list of any demonstrative exhibits that the attorney intended to use during his opening. Since it is a medical malpractice case, he may want to use a chart that defined technical medical terms that may be used during trial. I would likely also add the elements required to prove a malpractice case here.

The following section would include tabs for the plaintiff’s and defendants’ most recent copies of the pleadings. This will allow the attorney to have then to use for jury instructions and motions to conform to the proof. Drummond, supra, at 19.  The section would also include tabs for any temporary orders. 

The next section would be devoted to witnesses. This would include two main subsections, one that includes a list of witnesses in the order in which they will be called, their contact information, and if they have been subpoenaed, and a note indicating what the witness brings to the case. McElhaney, supra, at 47. The second subsection will include the outlines of the direct examination of our witnesses and the cross-examination of all the defendant’s witnesses. I would cross-reference here any evidence that the witness may be authenticating. Also, in this section I would make sure to cross-reference any pertinent information found about the witnesses that can be used for impeachment and other purposes. For example, if a past article written by the defendant-doctor that explained the standard of care under the same situation as the current matter was X, the location of this article within the binder would be referenced here. Should the defendant-doctor then testify that the standard of care for the same was Y, the attorney in the binder the pertinent evidence it is located. That location will be in the following section, which would also include CV’s for expert witnesses, any articles they wrote, etc.

The next tab for would be exhibits. This would include a list of witnesses, if any, that is expected to authenticate each exhibit. Id. at 48. I would also include a list of any demonstrative evidence expected to be used by my experts. This section would also include a folder or folders with information including, but not limited to, copy expert reports, defendant-hospitals relevant policies, protocols, and procedures. All relevant finding of legal research done on this case will also be included as well as a proof checklist. 

A jury section would also be included. I would have a seating chart available for the attorney to fill in with the names of each juror or panelist and pertinent information collected during voir dire. Franks, supra, at 8. This section would include a brief statement of the case, questions for the panel and individual jurors. Id. at 9.

Last would be the section for final argument. I would put the attorney’s outline of his final argument here, which should include important evidence and qualifications of experts that we presented. 

Hopefully, the research I’ve done has paid off and I was able to prepare a trial notebook that allows the attorney I assist to best represent our client.

Cited Works

• Family Advocate Archive, Family Advocate Archive (Feb. 8, 2020, 10:17 am), https://www.americanbar.org/groups/family_law/publications/family-advocate/
• HeinOnline, (Feb.8 12:37 pm), https://home.heinonline.org/.
• Jim McElhaney, Jim McElhaney - ABA Journal (Feb. 8, 2020, 10:31 am), http://www.abajournal.com/authors/447.
• James W. McElhaney, McElhaney's Litigation, Volume II Professional Bookshop, (Feb 8, 2020, 10:00 am), https://www.pbookshop.com/mcelhaney-s-litigation-volume-ii-9781614389620.html.
• James W. McElhaney, The Trial Notebook, 7 Litig. 45, 48 (1980), Litigation News, American Bar Association (Feb 8, 2020, 10:23 am),https://www.americanbar.org/groups/litigation/publications/litigation-news/.
• Jon Michael Franks,Trial Notebook - It Is Your Script - Use It - Like a Good Actor, You Will Rehearse and Rehearse and Rehearse, 12 Fam. Advoc. 6, 8 (1990).
• Mark A. Drummond, The Trial Notebook, 34 Litig. News 18, 19 (2009).