I like structure. As a result – I like the idea of a trial notebook. In my notebook, I break the notebook into various chapters. The chapters will relate to various aspects of the case. As I describe these chapters, I think you will see the wisdom of using such a system to get organized.
When I start to develop a trial notebook,
I start with identifying the elements of proof.
These are the things that are in play – the things that must be proved to make out a case. I’ll illustrate with a DUI case. There are five elements: (1) driving; (2) a motor vehicle; (3) on a public way; (4) while under the influence; and (5) of intoxicating liquor or drugs. Every case canbe defined by its basic elements. A civil negligence action has four elements: (1) the existence of a duty; (2) the breach of that duty; (3) causation; and (4) resulting harm/damage. I say again – every case can be broken down into basic elements whether it be a custody case in Family Court; a negligent homicide case in a criminal case; or a negligence case in a civil case.
In the next chapter of the notebook, I take note of the possible witnesses. I list them by name and indicate whether they are witness for the State or for the Plaintiff or for the Defendant. Next to each name, I put a brief note indicating what these witnesses have to say about one or more of the elements. For example, there may be a witness in a DUI case who wants to testify about the defendant’s impairment. I take note of that. I also take note to see if there a witness covering every one of the elements in the case. I then put the witnesses in groups. For example there may be eye witnesses to an event. I put them altogether. I then may find a group of police witnesses. I put them altogether. When I get this list done, I’m beginning to get a feel for the case.
In the next chapter, I take note of any expert witnesses. Sometimes, I simply note the need for an expert witness on a given subject or two.
The next chapter contains documentary evidence. The word document is used broadly. It includes photographs, letters, emails, text messages, facebook items and more. Basically, all evidence that isn’t physical evidence is included in this chapter. I put next to each item how that items relates to the elements of proof.
I then look at physical evidence. Is there a thing or an item out there that might become a piece of physical evidence. When there is, I take note of it. I write it down and note how that tends to prove or disprove an element of proof that is in issue in the case.
I then create a chapter putting the witnesses in order. I try to predict the order of my opponent’s witnesses. If I was my opponent, in what order would I call my witnesses? I also put my own witnesses in an order. How do I want to tell the story of my case? Which order is most persuasive?
This chapter is more important than you might think at first glance. There are a variety of ways of telling a story. How do you want to tell yours?
I then prepare a procedure and evidentiary memo. In this document, I take note of court procedure – it differs between New Hampshire and Vermont, so I take note of that fact. I then review the rules of evidence. Will any of the evidence be challenged? If so, I take note of the particular rule of evidence that will be in contention. That may lead to some legal research on the subject.
I then create a chapter for motion practice. Do I need the court’s assistance on anything? If so, I begin to identify the motions I need to file.
I’m now ready to put the case together. I create a chapter for my opening statement. I also create a chapter for my closing argument.
I then create a chapter for jury selection – assuming it is a jury trial. I create questions for voir dire; that is, for interviewing prospective jurors. I also prepare proposed jury instructions.
Sometimes, I prepare all of the proposed jury instructions, to include general instructions. It helps me hear what the case is all about. In non-jury cases, I use this section to prepare requests for findings and rulings. I try to keep this document within a 6 page limit. It serves as a nice road map for the case.
I’m now ready to write the final two chapters. These chapters are short – less than one page, but they are important. I create a chapter that describes clearly and succinctly how I intend to win the case. I also create a chapter describing how I believe my opponent will try to win the case.
Whenever I’ve informed a client about this type of approach, they immediately see the wisdom of handling matters in this fashion.
When they see the wisdom of what I’m doing, my stock goes up.