TRIAL PREPARATION

Sample Trial Preparation Systems

The following are sample trial preparation systems. No one system is preferred by all attorneys or suited to all cases. You may want to adapt elements of each in developing your own system, depending on the case and your preferences.

SAMPLE SYSTEM #1: Commonly Used in Cases of Varying Complexity When Preparing for Trial in Earnest

TRIAL BINDER

Use with dividers and tabs; may include (using tab divisions):

Things to do;

Thoughts;

Pleadings;

Exhibit list/log;

Motions in limine;

Witness list;

Voir dire;

Opening statement;

Closing argument;

Jury instructions;

Research;

Chronology;

Key exhibits; and

Miscellaneous.

EXHIBIT BOX

Centralize location for documents and other exhibits you expect to use at trial, and index it for ready access; should include:

Original exhibits (premarked when necessary);

Accompanying evidence memos (see step 7, above), or other research briefs or materials on admissibility;

Sufficient copies of exhibits for you, court, and all other counsel.

NOTE: When planning to read multiple interrogatories or requests for admissions, determine whether local rule or practice will require you to prepare in advance cut-and-paste extracts of the designated portions (see step 32, above) and, if so, include them in exhibit box.

WITNESS BINDER

Prepare for each expected witness; should include:

Witness’s personal data sheet, including:

Home address;

Work address;

Home telephone number; and

Work telephone number;

Copy of deposition transcript and summary;

Copy of prior witness statements;

Copy of expected trial exhibits about which witness may testify;

Interrogation outline;

Copy of notice to attend trial or return on subpoena; and

Thoughts.

WITNESS LIST

List all expected witnesses; use this list to:

Decide the order of calling witnesses; and

Verify that witnesses’ trial attendance has been ensured through:

Proper notice;

Subpoena; or

Agreement.

EXHIBIT LIST

List all exhibits expected to be used at trial; should indicate:

Whether there has been an accounting yet for the original exhibit;

Identity of witnesses to be questioned about the exhibit; and

How and when the exhibit will be put into evidence;

Make copy of each document to bring to trial.

SAMPLE SYSTEM #2: Commonly Used for Setting Up Files When Case

Is First Accepted

SET UP FILES

Use a method for setting up and organizing your files from the outset to meet your trial objectives, e.g., by establishing as many files as you need for:

Correspondence;

Pleadings;

Motions and demurrers;

Discovery documents, including a chronological index sheet;

Witness materials, e.g.:

Statements and declarations;

Deposition transcripts and summaries;

Documents, including:

An index of document files (list source of each document so that you can quickly refer to this information if you need it to lay a foundation to introduce a document);

Summaries of any voluminous documents;

Your attorney notes;

Legal research;

Strategy ideas, e.g.:

Voir dire;

Opening and closing statements;

Other trial tactics.

NOTE: Consider using a computer software program to organize your case materials.

ORGANIZE PHYSICAL EVIDENCE

Consider the kinds of demonstrative and physical evidence you will want to introduce at trial.

REVIEW YOUR CASE FILE

As you review file, analyze uses and sources of potential evidence in light of elements of each side’s case that you have to prove and disprove.

Outline Your Case

Consider preparing an issue outline covering:

Every element you must establish to prevail, e.g.:

If you represent plaintiff: Review the elements of the causes of action you pleaded.

If you represent defendant: Review the elements of your answer, affirmative defenses, cross-claims, or counterclaims.

Any changes since complaint and answer filed, e.g., because of court orders or new law.

All facts you need to prove for each element of your claim or defense.

All evidence you need to offer to prove the facts.

Divide outline into categories that allow you to quickly identify evidence needed at trial to prove or disprove an issue, e.g., by:

Issues and subissues;

Percipient witnesses;

Foundational witnesses (if needed to authenticate evidence and these witnesses are different from percipient witnesses);

Expert witnesses;

Applicable law.

Under each category, list:

Specific issue and evidentiary and legal subissues supporting it;

Various items of proof for each issue or subissue, e.g.:

Names of percipient witnesses;

Names of foundational witnesses;

Documents; and

Demonstrative evidence;

Law applying to each issue or subissue.

NOTE: For discussion and sample issue outline form, see Civ Proc During Trial §§3.22, 3.67.

Outline Opposing Side’s Case

Use outline you developed to prove your case and fill in with elements, facts, and evidence you believe other side will use to try to prevail.

Outline Your Rebuttal

Use outline you developed to prove other side’s case and note how you would rebut each point and with what evidence.

REVIEW YOUR EVIDENCE

Use the issue outline (see above) and sort through all available evidence to:

Select what you will use;

Identify any need for additional evidence.

ARRANGE EVIDENCE

Arrange evidence in the order in which you intend to present it.

NOTE: For more detailed treatment, see Civ Proc During Trial, chap 3.

Cross-Reference: See steps 2-5, above.