Trial Notebooks

By Susan K. Eggum

I. Introduction

For most cases that go to trial, a trial binder or notebook is an essential and invaluable tool. A properly organized trial notebook will assist the trial attorney in maintaining control over the organization, presentation and rebuttal of evidence and argument. A well prepared trial notebook will also assist in responding to unanticipated issues or arguments which arise during trial.

Obviously, whether the trial notebook consists of a single volume or multiple volumes is dependent upon the complexity of the case. The essential elements of a trial notebook generally remain the same, however, and should include the following:

(a) all essential pleadings (such as the complaint, answer, reply, responses to requests for admissions, or requests for production);

(b) both parties' (or all parties') trial memoranda;

(c) opening statement and closing argument;

(d) proposed jury instructions (from all parties) and objections to other parties' proposed jury instructions;

(e) proposed voir dire questions;

(f) direct examination outlines;

(g) cross examination outlines;

(h) exhibits or exhibit list and form for documenting exhibits offered, objected to, and received;

(i) motion for directed verdict and memorandum in support;

(j) other anticipated motions and supporting memoranda;

(k) case citations and other legal authorities, including copies of key cases and procedural and evidence rules; and

(l) verdict forms and/or written interrogatories proposed by all parties.III. Organization and Use of Trial Notebooks

A. General Organization

It is useful to organize the trial notebook into the categories set forth above by tabbed headings. In addition, the notebooks should contain an index or table of contents so that exhibits, deposition excerpts, legal arguments and the like can be located at a moment's notice.

1. Essential Pleadings

Essential pleadings should be indexed and tabbed with readable legends along the sides. In multi-party cases, color coded tabs for each party are also useful. Counsel may wish to consider highlighting key sections of the pleadings.

2. Trial Memoranda

Trial memoranda should be tabbed and labeled with easily readable descriptions. Trial memoranda are useful to the extent that they disclose what each party expects to show at trial, and what authorities that party will argue.

3. Opening Statement and Closing Argument Outlines

At the commencement of the case, the trial attorney should prepare a file into which notes or memoranda may be put which contain thoughts, phrases, arguments or summations of evidence that occur to the attorney throughout the case. That file may then form the basis for preparing an outline or narrative of an opening and closing statement.

Opening statement and closing argument outlines may, but need not, include entire narratives. At a minimum, these outlines should contain the theme of your case, along with what evidence will prove, or has proven, your case.

In addition, it is also helpful to include a sheet listing the key evidentiary points you anticipate outlining to the jury in the opening statement. Then, as evidence supporting each of those points is introduced, the point can be checked off. This list will then aid you in putting the final touches on your closing argument as the trial progresses. The list may also keep you from inadvertently failing to put on evidence that was originally promised to the jury.

For closing argument, extra space should be included in your outline for noting ideas that occur to you during trial.

4. Proposed Jury Instructions

In a simple case, jury instructions will comprise one section of the trial notebook. In a complex case, you may need a separate notebook for jury instructions. Either way, the instructions should be labeled or color coded by proposing party, and should have a space for counsel to note whether each was "given," "refused," or "given with amendments." Any amendments should also be noted at the time the instructions are ruled on or given.

Additionally, key arguments for or against a given jury instruction should be placed on a separate page immediately following the proposed instruction at issue. This will permit quick reference when the instructions are argued. In addition, to the extent any requested jury instruction contains a reference only to an instruction number and title from the Uniform Oregon Jury Instructions, a copy of the instruction itself should be included in the notebook. This is equally true in the event you propose a modified uniform instruction.

Depending on the case and the judge, you may wish to propose pre-instructions to the jury prior to opening statements. Any desired pre-instructions to the jury as to the nature of the case and the legal issues involved should be included here.

5. Voir Dire Questions

You will want a tabbed section containing a list of specific proposed voir dire questions, to be asked either by the lawyer or the judge, depending on the court's practice.

You may also want to outline any arguments that you wish to bar the other side from raising during voir dire.

6. Witness Outlines - Direct and Cross

Two sections should be tabbed for witness outlines; one for direct and one for cross. While it is not necessary to have each and every question set down verbatim, key questions should be set forth. The cross examination outline, and to some extent the direct examination outline, should include plenty of space to add questions, or other notations.

Additionally, for quick reference, the notebook should cross reference these outlines to the exhibits you anticipate using with that witness. In addition, the outlines should also cross reference any deposition testimony you may use for impeachment. As with all witnesses, counsel will want to outline the direct and anticipated cross examination of experts. For the lawyer's own expert, it may also be handy to include the expert's curriculum vitae at this tab. If the exhibits to be used in connection with an expert are not too voluminous, they can also be included here for easy reference.

7. Exhibits or Exhibit List

Whether the notebook includes an exhibit list, or all of the pre-marked exhibits to be offered, will depend upon how many exhibits are involved. Either way, however, counsel will want an exhibit list for both sides with spaces for "offered," "received," and "reserved" to keep track of the status of all exhibits. Additionally, if there are key exhibits which you anticipate will be disputed, you should include cross references to the key legal arguments for or against those exhibits. Although your impeachment exhibits will not be pre-marked, those exhibits should be listed on an Exhibit List prepared for your use only.

8. Motion For Directed Verdict

At a minimum, this section should contain an outline of any anticipated grounds for the motion for a directed verdict, together with citations to supporting legal authorities. Such an outline will aid you in presenting a cogent oral argument.

If circumstances permit, counsel may wish to prepare a written motion for directed verdict with key supporting authorities. If the evidence comes in (or does not come in) as anticipated, counsel can proffer the written motion to the court. If not, it will still provide a good outline for an oral motion.

9. Other Anticipated Motions, Arguments, and Supporting Legal Authorities

The trial notebook should contain a section setting forth anticipated legal issues and motions that are likely to arise (such as motions in limine and other evidentiary disputes), together with key legal arguments and authorities supporting your position. This will aid you in arguing issues fully and persuasively as they arise during trial. In addition, this section should include any proposed special or general findings or conclusions separate from the judgment.

10. Miscellaneous Rules and Authority

It is generally useful to include in this section photocopies of applicable rules regarding mistrials, JNOVs, and directed verdicts for quick reference. Depending upon the nature of the case, other materials can be included as well. For example, in a difficult damages case, counsel may want to include guidance by way of case law on additur and remittitur. Obviously, the contents of this section will vary from case to case.

Notebooks are an essential tool to be used in professionally presenting a case at trial. In addition, they are flexible, and can be adapted to fit the needs of virtually any case, whether simple or complex. The only requirement to effective use of trial notebooks is plenty of advance thought and organization of material for quick access at trial, taking into account the myriad contingencies that can and will occur.