The Trial Notebook

Mark A. Drummond
Your copy of the trial notebook contains your voir dire, opening, closing, and witness examination outlines.

Your copy of the trial notebook contains your voir dire, opening, closing, and witness examination outlines.

Rostislav_Sedlacek via iStock

You should be assembling your trial notebook from the day you file or receive the complaint. The effect of assembling from day one is that you always have the endgame in mind. This focuses you in a way that is different from the settlement mindset. Your case may very well settle for the benefit of your client because you have convinced the other side from day one that you are actually getting ready to try the case.

Take your favorite three-ring binder and make all of the tabs for the sections listed here. I used a binder with a clear plastic sheet on the front and back. You slip into the plastic sheet a cover with the caption at the top, the words “Trial Notebook” in large, bold letters in the middle, and your name, address, and contact information at the bottom.

From this point on, you can organize the sections as you see fit. You will want a pleadings section. This has the last version of the complaint and answer and any relevant prior pleadings. You will need the pleadings for jury instructions and for motions to conform to the proof. Have your motions for directed verdict ready to go in this section.

You need a timeline of both the events in the case and the litigation. It is crucial for you to be able to find dates quickly. You also need a timeline of the events as they occurred before the lawsuit. Only by putting together a chronology will you be able to see the events as they unfolded.

Next, the judge will ask you for a statement of the case to read to the jury. Have that ready. Give the statement of the case to the other attorney early in the case and watch the reaction. You need a list of witnesses for the same reasons you need the statement of the case.

An often underutilized tool available to the trial lawyer is the request to admit facts and genuineness of documents. This simple device helps narrow the issues and gets exhibits admitted without having to mark them, show them to opposing counsel, ask for permission to approach, lay the foundation, and move for their admission.

Your copy of the trial notebook contains your voir dire, opening, closing, and witness examination outlines. The examination outlines have references to exhibits, page and line numbers in depositions, and statements that you will need to impeach or refresh recollection. You need a section for relevant discovery responses such as requests for production and interrogatories.

Have your jury instructions ready. Have memorandums of law ready. You may be trying a case where you know the law in that area better than the judge. It is one thing for an attorney to argue a point of law based upon recollection. It is quite another when the attorney backs it up with a brief memorandum of law on the point. There is nothing more impressive.

Trial is the ultimate theater. But unlike the theater, the script is not set; it is fluid. Your trial notebook helps you to control the script as it is literally being written in the courtroom, and it helps you write the ending that your client wants.

The full version of this article originally appeared in the Spring 2009 issue (PDF; login required) of Litigation News, volume 34, number 3. Reprinted with permission from the Section of Litigation. ©2009 by the American Bar Association. All rights reserved. Litigation News is a benefit of membership of the Section of Litigation. Learn more about the ABA Section of Litigation.

Mark A. Drummond

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Mark A. Drummond was a circuit judge in the Eighth Judicial Circuit of Illinois. He is in private practice, teaches for the National Institute for Trial Advocacy, and is the judicial director for the Civil Jury Project at the New York University School of Law.