The Trial Notebook Index
By Brian Rawers, Esq.
There is a certain excitement that
buzzes through an office when an attorney has a case that is actually going to
trial. So few cases seem to go to trial that, for the litigator, it seems as if
he or she is always having football practice only to have, time and time again,
the game called off the night before. The “buzz and excitement,”
however, often morphs into something that more resembles a fire drill with
everyone running around trying to find this or that and wasting precious time
that the secretary, paralegal, and attorney could use on more important aspects
of trial preparation.
After years of practice and quite a
few trials, I’ve developed a means to reduce some of the inherent stress
that arises in trial preparation. I have created what I call my “Master
Trial Notebook Index.” It is not a very creative name, but using the
Index in creating a Master Trial Notebook can help to reduce stress by allowing
you and your attorney to be more organized, to use your time more profitably
and, most importantly, to deal quickly with possible
future problems.
Here is my Master Trial Notebook
Index:
1. Telephone
Numbers
2. Complaint
and Answer
3. Jury
Deposit
4. Advance
Trial Review Order (TRC Order)
5. Judge’s
Rules/Trial Check List
6. Expert
Designations
7. Plaintiff’s
Trial Brief
8. Defendant’s
Trial Brief
9. Joint
Trial Readiness Report (Dispo. Conf. Report)
10. Statement
of Damages and 998
11. Joint
Statement of Case/Witness List
12. Joint
Exhibit List
13. Full
Schedule of Proposed Witnesses; Notice to Attend and Objections (including
Notices to Attend and Objections)
14. Motions
in Limine (Rulings only - Motions in separate
notebook)
15. Plaintiff’s
Proposed Voir Dire
16. Defendant’s
Proposed Voir Dire
17. Court’s
Voir Dire
18. Defendant’s
Voir Dire
19. Defendant’s
Opening Statement
20. Defendant’s
Closing Statement
21. Plaintiff’s
Special Injury Instruction
22. Defendant’s
Special Injury Instruction
23. Jury
Instructions (CACI's)
24. Joint
Special Verdict Forms
The general idea behind the Index is
to expect the unexpected at trial. The “trial” at the courthouse
actually starts with the Pre-Trial Conference with the judge on the day of the
trial call. The attorneys are usually called back to the judge’s chambers
to discuss various substantive and procedural aspects of the trial. Usually,
the judge starts this conference by inquiring as to whether or not the
attorneys have engaged in settlement talks. It is the rare case that has not
had settlement talk at that late stage in the game. Although many attorneys
“talk tough” about going to trial, it is quite common for
settlement demands to drop substantially at the Pre-Trial Conference. This is
where the first tab of the Master Trial Notebook Index comes into play. That
tab is “Telephone Numbers.”
When the settlement demand drops, I
have to make a call to the adjuster to pass on the new demand that could
possibly settle the case. It’s important to have telephone numbers for
the adjuster under tab 1, so that I can give him a quick call from the
courthouse to tell him that “pigs are now flying;” i.e., you won’t
believe how low the demand is and we can probably settle the case! If I don’t
have the adjuster’s phone number under the “Telephone Number”
tab, I can assure you what will happen:
The plaintiff’s counsel will
come in with a demand that I know will be able to settle the case. If the
adjuster’s telephone number isn’t handy, I have to call my office
to get the number from my secretary. My secretary is on break and no one can
find her around the office. Or, she is there, but there is a “computer
problem” and, of course, the adjuster’s number is only in the
computer and I can’t make the telephone call.
In addition to the adjuster’s
phone number, I also include the telephone numbers of my secretary (office,
cell, and home numbers), any lay witnesses, any expert witness I expect to call
and, most importantly, the judge’s clerk’s phone number. If I am
driving to the courthouse in the morning and get a flat tire, more likely than
not it’s going to be at a time of day that my secretary is not in the
office. Even if she is, we could still have the same problems finding the court’s
phone number that we had in the example above in trying to find the adjuster’s
phone number. As such, I have the courtroom’s phone number in my Trial
Notebook so that, if anything happens at night or early in the morning that
will cause me to be late for trial, I can call the court directly and leave a
message. Needless to say, once I leave my office to go to the Pre-Trial
Conference, no matter where I am, until the jury verdict is rendered, I always
have my Master Trial Notebook with me.
The next thing that happens at these
Pre-Trial Conferences is that the judge, failing to have settled the case,
likes to discuss briefly what the issues are. The judge may or may not have
read the trial briefs at the time of the Pre-Trial Conference; a discussion of
the issues arises. Plaintiff’s counsel states that issues A, B, and C
will be raised in the case. I recall, however, that my Demurrer to issue C was
sustained by the court and it is my belief that only issues A and B are at
issue. Moreover, I state that there is an affirmative defense to issue B that I
intend to raise. Plaintiff’s counsel objects that he has never heard of
that before and doesn’t believe I plead it as an affirmative defense in
the Answer. The judge has a file in front of him, which is two feet high. So
what happens? Being a highly organized defense attorney, who has a Master Trial
Notebook with an Index, I turn to tab 2, “Complaint and Answer.”
Not only does that tab contain within it the Complaint and Answer, but it also
contains any Demurrers, Motions to Strike, Orders on Demurrers or Motions to
Strike, and Amended Complaints. I can now quickly turn to that tab, pull out
the ruling on the Demurrer which struck issue C and the Answer to show that I
did in fact plead the affirmative defense to issue B.
I always have copies of all
parties’ Jury Deposit documents in the Trial Notebook. At the Pre-Trial
Conference the judge always asks, “Who is requesting a jury?”
Although that is what the judge says, what he really is asking is, “Who
is paying for the jury?” Plaintiffs’ counsel generally
doesn’t want to pay for a jury; they would rather have the defense pay
for the jury. They know that 99.9 times out of 100 the defense is not going to
waive the right to a jury trial. Therefore, many plaintiffs’ counsel,
despite the fact that they posted jury fees, will, in response to the
judge’s question say, “Oh, we waived the jury.” As a defense
counsel, I like to point out that they did request a jury and they did deposit
jury fees. This can impact opposing counsel’s credibility at a very early
phase of the trial.
Tabs 4 and 5 are “Advance
Trial Review Order and Trial Check List.” Roughly thirty days before
trial, the attorneys meet with the judge and go over an Advanced Trial Order.
In that Order, the court orders the parties to create a Joint Statement of the
Case, a Joint Exhibit List, sometimes a full schedule of proposed witnesses
with time estimates for direct and cross-examination, and to draft any
additional proposed voir dire. An attorney does not
want to violate any of those trial review orders. Sometimes the judge adds
things orally to this document. Those orders, 9 times out of l0, are the ones
that many attorneys forget to comply with. So, I write those down on the Trial
Readiness Conference Order and put that document in my Trial Notebook. The odds
are I won’t forget to do something and I won't get in trouble with the
judge. Also, many of the judges have their own particular rules. I make it a
point to grab a copy of their rules and put them in my Trial Notebook.
The sixth tab in the Trial Notebook
Index is Expert Designations. It seems to be a trend for judges to request that
the parties, on the day of trial, provide the court with copies of the Expert
Designations. Not all judges require it, but I find it is a good idea to have a
copy of all parties’ Expert Designations in my Trial Notebook. The reason
it’s a good idea is: An expert witness is going to get up on the witness
stand and testify about issues A, B, and C. One of the attorneys objects and
argues that the expert shouldn’t be able to testify about issue C because
the expert didn’t discuss that at the time of his deposition. The
counter-argument is that the expert wasn’t asked any questions about
issue C at his deposition and it’s not the expert’s problem, but
rather the objecting party’s problem because they didn't ask that
question. The objecting party then answers that they didn’t ask such
questions because there was no indication in the Expert Designation that the
expert was going to testify about issue C. You’re the judge. What do you
do? You ask for the Expert Designations. Expert Designations are not, however,
going to be in the court’s own file. The only people who have the Expert
Designations are the attorneys themselves, and being in the middle of trial, I
don’t have time to call my office, have them find the Expert Designations
in the file and run them on over. Rather, I need a copy of the Expert Designations
at that very moment and, of course, with the Trial Notebook Index, under tab 6
I have everybody’s Expert Designations, which I can then present to the
court for reference as to whether or not issue C was or was not identified as
something that expert was designated to opine about.
I find it is always a good idea to
have a copy of my Trial Brief, as well as opposing counsel's Trial Brief, in my
notebook. Again, the court has a lot of papers that it is shuffling around and
oftentimes, the court's file on a case is very thick. The court can't always
put its finger on Trial Briefs, so if I have a copy of my Trial Brief - and
even the opposing party's Brief - in my Trial Notebook, I can give the court
extra copies.
Tabs 9, 10, 11, 12, and 13 are
documents that are created as a result of orders that the court gave at the
Advanced Trial Readiness Conference. The court will ask for a Statement of
Damages that should have been drafted. The court will also ask for a copy of
the Joint Trial Readiness Conference Report, the Joint Statement of the Case,
the Joint Witness List, and the Joint Exhibit List. The court may also require
a full schedule of proposed witnesses. All of these documents are in my Trial
Notebook, including an extra copy to provide to the court.
The remainder of the Trial Notebook
addresses the order of how things will go in the trial. After the Pre-Trial
Conference, Motions-in-Limine will be addressed, voir dire will be done, opening statements and closing
arguments will be made, jury instructions will be read to the jury, and a
special verdict form will be provided to the jury. A good attorney has copies
of all these things in his Trial Notebook and can add or delete things as the
trial progresses. It keeps the attorney organized, efficient, reduces his
stress level, and allows him to focus. The only “constant” at trial
is that things are constantly changing. The more organized the attorney is, the
better he or she will be at handling the changes.
The easy part of a trial, believe it
or not, is standing up in front of the jury and giving the opening statement,
questioning witnesses on direct or cross-examination, and giving the closing
argument. The hard part about trial is ensuring that I have everything I need
to have an effective voir dire, make a good opening
statement, conduct an effective direct and cross-examination, have the exhibits
that I need when I am conducting those examinations and, finally, to ensure
that I have the correct and proper jury instructions ready for the judge to
read to the jury. Having a Master Trial Notebook (and all the matters
identified in the Master Trial Notebook Index) goes a long way towards allowing
me to work on the substantive aspects of the case. The topics in the Index are
simple topics and appear to be self-evident, as they should be. The Master
Trial Notebook Index helps to create a Master Trial Notebook that follows me
around for the entire trial and helps to make everyone's life less stressful.
___________________________________________________
Brian A. Rawers
is a partner at Lewis, Brisbois, Bisgaard & Smith in the firm’s
This
article is provided with the permission of the author and of Legal Secretaries,
Incorporated, publisher of The Legal Secretary
magazine, in which it originally appeared in the February, 2007 issue.
