1. Defining What Goes into the Trial Box
Preparing your trial in a box begins with carefully defining your case in your complaint or answer, discovery plan, and motion practice, and, most important, what you communicate to the court and parties during case preparation. Devices like writing your opening statement before your first filing, limiting yourself to one or two principal legal theories, and fleshing out the facts of your case right at the beginning—all help you define the size and shape of the case you will present.
During discovery and investigation, keep a folder labeled Key Facts and Evidence (digital or hard copy as you prefer) to collect your notes on key facts, testimony, and documents that you are likely to want for trial. Build this file as you go along, taking depositions, producing documents, and responding to interrogatories. Regularly review the contents—you will be surprised how much of your case you have put together well before you start actually preparing for trial.
Continuously refine your case outline as you learn new facts and discover additional evidence. Regularly cull your Key Facts and Evidence folder to discard the things you realize no longer conform to your view of the case. Be vigilant for facts that help sharpen your case outline and those that weaken the theories that you originally found compelling. If you have been diligent in maintaining your Key Facts and Evidence folder, by close of discovery it should provide a fairly complete checklist of what is needed for you to present a winning trial in a box.
2. Packing the Contents of Your Trial Box
By the time you start preparing to try your case, you should have a definite and clear concept of your case, what evidence you need to prove it, what your legal theory is—a checklist of everything that must go into your trial box for you to win in the courtroom. Now it is time for you to translate your case concept into hard reality by preparing a case script listing the order in which you will call witnesses, a summary of the evidence they will provide, and a list of the documents (or other physical evidence) each will use while testifying. Prepare (whether or not required by the rules of your particular court) checklists of witnesses, documents, and the elements of your case, and cross-check to make sure they are complete and contain no unnecessary entries.
For each witness, prepare an Examination of Witness list, outlining the topics you will cover, the questions you will ask, and the documents you will introduce through that witness. Prepare an Admitted Exhibits List so you can check off each document as it is admitted into evidence.
If you require a pretrial brief or anticipate motions in limine, cross-check those with your witness and exhibit lists and prepare a plan B, just in case an important witness or document gets excluded. Using the key facts and evidence you have identified, prepare your cross-examinations of your opponent’s witnesses to prove the elements of your case and undermine your opponent’s. Contingency plans are an important part of your trial in a box because trial plans seldom survive the opening salvo.
3. Unpacking Your Box
Trying your case is simply a matter of unpacking the contents of your trial box: witnesses, documents, facts, and argument. Because they were carefully selected, the contents of your trial in a box should fit together snugly, telling a coherent and compelling story. Because you know what you want to say and prove, your case presentation will be more direct and thus more convincing. Once you have revealed all the contents of your trial in a box, you will know you have presented the best case possible—which is the goal of every good trial advocate.
Why Does the Trial-in-a-Box Approach Work?
Increasingly complex trials are burdened by massive document productions and databases, often making it difficult to know how to focus the evidence. Faced with a massive database, it is helpful to remember that all you need for trial is a sturdy framework in which to hold all your key evidence. “Trial in a box” is an excellent conceptual framework for preparing a case for trial by giving direction to the case from start to finish.
Roger Marzulla is a partner at Marzulla Law, LLC, in Washington, D.C.