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The Trial Bible: An Outline of Proof

Edward A Marshall

The Trial Bible: An Outline of Proof
Arda Guldogan via Getty Images

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.

The concept of an outline of proof is, of course, a simple one. It is a five-column chart for each claim or affirmative defense. Each row reflects each element of the claim (e.g., duty, breach, causation, damages). Moving from left to right, the columns are (1) a description of the element; (2) the anticipated proof (e.g., particular witness testimony, well-defined exhibits) that the party bearing the burden is likely to put up to establish that element; (3) potential objections to that proof; (4) the anticipated evidence that the other party will use to combat the existence of the element; and (5) potential objections to the same.

I could appreciate the value of such a chart in the abstract. In a lawsuit with especially complex claims (e.g., a Racketeer Influenced and Corrupt Organizations action or an antitrust case), preparing such an outline could be almost essential. The same could be said in a case that had seen minimal briefing, where parties had not spent countless hours organizing their thoughts to address claim elements at the motion to dismiss, summary judgment, and class-certification stages of the case. But in this case? Really? The claims were the staples of commercial litigation. Both sides had spilled vast quantities of ink laying out their anticipated proof in court filings. Did we truly need to invest our finite time before trial (not to mention the client’s resources) putting together a trial aid that seemed better suited to a law school mock trial exercise?

In a word, yes. Despite my initial skepticism, I raised my hand and volunteered to draft the outline. I pored over our jury instructions and the pleadings, briefs, and deposition transcripts we had amassed in the case. Then I started populating cells with the testimony and documents that we would need to establish our defenses, as well as the testimony and documents that I anticipated the class representative would proffer in support of her claims.

The exercise, as opposed to being a mindless slog, was surprisingly illuminating. It forced me to put myself in the shoes of opposing counsel and think through what portions of the record (and facts not yet reflected in the record) they would try to put before the jury. I then had to brainstorm ways to keep certain such evidence out of the courtroom. It also prompted me to identify the countervailing evidence we would want to present, while at the same time giving thought to how the plaintiff might seek to exclude that evidence.

At the end of that process, I had developed a much deeper appreciation of my opponent’s likely trial strategy than I had when I began. I also had identified facts that we likely would need to prove that might not otherwise have made it into our examination outlines, as well as motions in limine that we would need to file to keep certain unduly prejudicial evidence away from the jury (before it even could be alluded to in opening statements).

Creating the outline of proof was not just a journey of personal litigation enlightenment, however. Once I had drafted it, I circulated the outline to my team and solicited their feedback. They added to the document in profoundly helpful ways. Even more importantly, the exercise forced all of us—a trial team made up of four attorneys, all with active roles (and strong opinions)—to hash out potential disagreements about what proof would be beneficial at trial and how best to counter our adversary’s case.

What emerged at the end of that process was a well-documented meeting of the minds about how we would approach trial, consisting of all of our best thoughts and most deliberate attempts to put ourselves in the mind of our opponent. Far from being an inefficient use of our time or our client’s resources, it cemented a trial strategy in a central document that could serve as the launching point for examination outlines, deposition designations, and exhibit lists. Simply put, it transformed a team of trial lawyers who thought they were ready for trial into a trial team that was actually ready.

So what happened at trial? Sadly, we never got the chance to find out. Our team defeated class certification and managed, through summary judgment, to narrow down the case to an individual claim for negligence with miniscule damages exposure—prompting a quick and favorable settlement. Nevertheless, the lesson learned has been no less impactful. Outline of proof? Yes, please. Every time.