September 07, 2018 Articles

The Trial Bible: An Outline of Proof

Preparing an outline of proof, dismissed by some as a superfluous task, helps materially refine a litigator’s thought process and strategy as a case moves from briefing to trial.

by Edward A. Marshall

My team and I prepared recently for a trial in a putative class action involving the allegedly flawed implementation of a payments program at a nationwide chain of convenience stores. The facts, involving the simultaneous application of two massive software updates on two sets of servers, were somewhat complex. But the legal claims were relatively straightforward: negligence, unjust enrichment, breach of implied contract, and violation of a state unfair and deceptive trade practices act. So too were the defenses. We had spent months thinking about them and months more briefing all manner of legal issues at various junctures throughout the case. The steps before us now, as I saw it, were moving forward with concrete aspects of trial preparation: assembling exhibits, drafting examination outlines, and sketching out opening statements.

However, as we were feverishly putting together task lists in advance of an upcoming trial date (all while awaiting a ruling on summary judgment and class certification), my local counsel suggested that we build in time for a project that I was reflexively inclined to dismiss as somewhat rudimentary: drafting an outline of proof.

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