Trial Notebooks: Flipping to the Right Spot Instead of Fishing in Folders

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

I have used trial notebooks since my first trial.  I use a similar process for depositions and for a Fed.R.Civ.P. 26(f) “meet and confer.” See “The Checklist Manifesto” and the Fed.R.Civ.P. 26(f) Conference.

A recent ABA article provides an excellent guide to preparation of these organizational tools.  James W. McElhaney, The Trial Notebook (americanbar.org)(Nov. 20, 2023).  

A trial notebook permits “flipping v. dipping,” i.e., organization of questioning at trial, preparation for legal arguments and voir dire, and, speed in finding exhibits, impeachment materials, and stipulations.  J. Loveless, et al.,Trial_notebook.pdf (webbfamilylaw.com)(Aug. 2001).

Organization is vital to a successful trial. “Most lawyers use a trial notebook….  In sum, the trial notebook should be a synthesis of everything you need to know to try the case effectively.” N. Dilloff, Civil Pre-Trial Practice (Md. State Bar Ass’n. 2019), Ch. 11; accord P. Sandler, “Anatomy of a Trial: A Primer for Young Lawyers” (Md. State Bar Ass’n.), Ch. 7.

Trial notebooks help ensure that nothing is missed in the heat of trial, and that a proper foundation is laid.  In the words of the Hon. Paul W. Grimm: “[I]t makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence … because the proponent cannot lay a sufficient foundation to get it admitted.”  Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007).

Mr. McElhaney wrote that “the trial notebook is just what the name implies. It is a system of trial preparation that actually uses a notebook to organize everything in the trial…. There are many rewards to using the trial notebook system. First, and probably most important, it helps you find things during the trial, from particular passages in a deposition to the right response to your opponent’s objections.”

Mr. McElhaney’s article, originally printed in 2005, uses a paper notebook.^[1]  He provides a series of tips:

• “The table of contents comes at the beginning, but is written last.”
• “Ordinarily, an index is not used, although it can be helpful in protracted litigation. Instead of an ordinary index at the end of the trial notebook, a second table of contents, arranged alphabetically, is more useful.”
• “Whether you have any real role in jury selection depends on the court you are in…. [Y]ou cannot tell the players without a scorecard. For this you need a chart, a group of squares assembled like a map of the way the panel of prospective jurors is arranged, in which to write their names and make some notes…. [I]f the judge is going to conduct the questioning, then here is where you put the list of supplementary questions you are going to request the judge to ask.”
• Notes for an opening statement should be included.  Mr. McElhaney described the first 30 seconds of trial as “the golden moment” when you have everyone’s undivided attention.^[2]
• “A formal proof checklist is important for both plaintiffs and defendants. A good proof checklist has three levels: 1. The formal facts the law requires you to prove—the elements of your cause of action or defense. 2. The evidence that supports each element. 3. The source of the evidence.”
• For direct examination:
  • “[A] list of your witnesses in the order in which you intend to call them….  Do not just put the witnesses’ names on this list. It should also have their addresses and telephone numbers….”
  • “Next come the outlines for the direct… of all the witnesses. When the witness takes the stand, you merely turn to the appropriate page in the trial notebook.”^[3]
  • “After the outline of the witness’s examination comes the proof checklist for that particular witness. This is a short list of all the important bits of evidence you expect to elicit from the witness. When you have finished the examination of the witness, simply go down the checklist.”
• For cross examination:
  • There should be an outline of cross-examination questions.
  • “It is not enough just to take a deposition and read it through before trial. One of the most important features of the trial notebook is the deposition index.”
  • “Often a single page or two will do, listing topics and page numbers in the deposition.”^[4]
  • There should be an excerpted deposition index for each witness to be cross-examined.
• For documents:
  • “If a document, picture, or other exhibit can be entirely authenticated and explained by one witness, you may want to put it into a pocket as a part of the witness’s file.”
  • “On the other hand, if there are a number of documents in the case, it is probably better to have them in a separate section or even a separate book.” 
  • “Under some circumstances it may be a good idea to prepare a copy of the entire document book (especially if the documents are premarked and admitted) for the court, each juror, and opposing counsel.” 
  • “Before each document, include a sheet with the requirements for the necessary foundation and the names of the witnesses who can do the job. If you anticipate trouble from your adversary about the foundation, you can even include a case citation on your foundation notes.”
• Trial memoranda: 
  • “Probably the best way to argue … an [evidentiary] issue is both orally and in writing.”
  • “The writing should be a miniature brief; no more than a few typewritten sentences in the middle of an otherwise clean paper.” 
  • “The effect of this sort of memoranda is startling,” and Mr. McElhaney wrote that it works well.
• Proposed jury instructions should be included.  I include a few 3×5 cards for notes excepting to the jury charge.
• Closing argument:
  • “Preparation for final argument really starts when the case comes in the door. Here is where all your notes will go.”
  • I bring a pack of 3×5 cards to trial and take notes for closing that can be hastily re-arranged if the court gives little time to prepare.
• A copy of all stipulations (including responses to requests for admissions) should be included, along with the Pretrial Order.

I would add that I include all parties’ answers to interrogatories and responses to requests for production.  Any interim rulings, especially partial summary judgments and rulings in limine, can also be included.

Mr. McElhaney’s advice remains solid today.  “The Trial Notebook helps the practitioner see the ‘Endgame’….” Hawley Troxell, Slide 1 (idaho.gov)(Feb. 19, 2021).  It is “one long evolving play by play as the case progresses.” Id.;  see, e.g.,Court Deadlines,  How to Prepare a Trial Notebook (courtdeadlines.com)(Jan. 19, 2019)(“Your ultimate goal in preparing this trial notebook is to have every relevant part of your case organized and crafted into the story you plan to present a judge or jury at trial.”).^[5]  

Eight reasons to use a trial notebook are

“1.  You’ll master the details of your case…  2.  Allows you to prepare your strategy in advance… 3.  Helps you stay organized during trial… 4. Allows anyone to quickly understand the case basics… 5. Helps you fine-tune your legal arguments… 6.  Helps you better prepare your client for trial… 7.  Helps you better examine the witnesses… 8.  Helps you organize your thought[s].”  

Trial Notebook: Why It’s Important (All You Need To Know) (incorporated.zone)(Jul. 2, 2020); see D. Ducote, “Building a Trial Notebook the paralegal Way.” 

Of course, no method of preparation is perfect and a trial notebook played an evidentiary role in a habeas case.  “Mr. Brown testified that he did not see this document in the trial notebook, so he did not know that Mr. Wilmore recanted.”  Wilson v. Nero, 2009 WL 2169897, at *12 (D. Md. July 17, 2009).

“Everything in the Law is a story.”  New York State Bar Ass’n., Thoughts on Legal Writing from the Greatest of Them All: James W. McElhaney – New York State Bar Association (nysba.org)(undated).  A trial  notebook helps tell it well.^[6]

Resources:

^[1] Mr. McElhaney was a prolific writer.  He passed away in 2017.  Parts of the article are a bit dated: “There are new binders on the market with plastic rings that have a silent slide fastener, although there are some lawyers who enjoy the authoritative snap produced by the old metal rings of the more traditional binders. The snap, they claim, eventually produces a fearful anticipation on the part of the opponent as surely as Pavlov’s bell made his dogs expect that dinner would be served.”  However, the passage of time does not detract from the overall value of the article.

^[2] P. Luvera, THE “GOLDEN MOMENT” ACCORDING TO JIM McELHANEY | Plaintiff Trial Lawyer Tips (May 15, 2017).

^[3] Mr. McElhaney wrote: “Next is an outline of your examination. Whether it is direct or cross-examination, write your outline on the left-hand side of the page…. You might even consider drawing a line down the middle of the page to force you to do this…. Why?…  By leaving a wide right-hand margin, you have room for supplemental notes, and more important, a place to write particularly colorful language or important concessions from the witness you will later want to work into final argument. These are essential notations you simply will not make unless you have a place to do it.”  I still find this useful.

^[4] In my experience, even sophisticated electronic transcript searches are not a substitute for a deposition index.  However, a searchable index is often useful.

^[5] Hawley Troxell adds that an exhibit list should be included, showing what has been marked for identification and what has been admitted into evidence.

^[6] “McElhaney wrote the Trial Notebook column in every issue of the quarterly [ABA] Litigation journal from its inception in 1975 until 2006.” J. Podgers, The World of McElhaney: Jim McElhaney Closes the Book on a Storied Career, But Angus Lives on (abajournal.com)(Oct. 1, 2012).