PREPARING FOR TRIAL WHEN A NEW CASE FILE JUST GOT DUMPED ON YOUR DESK
As a litigation paralegal, it’s inevitable that one day you will find yourself in a last-minute trial prep emergency when that new case file gets dumped on your desk and trial starts next week. We all know that the most effective and efficient way to prepare for trial is to begin preparing immediately when the complaint is served. Unfortunately, there are times when a litigation paralegal does not always have the luxury of being involved in a case from the beginning.
We’ve all been there – something unexpected happens and you are asked to jump in at the last minute to help another team at trial on a case you’ve never worked on before, or you take over a case from a former paralegal who is no longer at the firm – and you are now the lead paralegal on a case that is going to trial next month and you have never worked on the case before today. This task may seem daunting and overwhelming at first, but, whether you are a new paralegal or merely a paralegal new to the case, this will give you a roadmap for navigating the path to success.
As the lead paralegal, you will need to make a judgment call and decide on the critical projects that need to be done because you simply do not have enough hours in the day to do everything you would normally do to prepare for trial. When you do not have the luxury of time, there are some things you can do to get up to speed quickly on the case while simultaneously preparing for the upcoming trial.
The most important role of a trial paralegal is to organize and manage the evidence throughout the trial prep phase and in the courtroom. With that in mind, you can utilize building the Trial Notebook as your “multitasking tool” to quickly get up to speed on the case in addition to its main purpose of keeping the trial team organized.
The best method for organizing the contents of a Trial Notebook is to follow the natural progression of the trial. As you work on each section, you will get up to speed on the case and be ready for trial at the same time.
SECTION I: Reference
This basic reference section will allow you to get familiar with the factual and legal issues of the case as well as the important players on each side’s legal team. It will also serve as a reminder that you need to check on war room capabilities and make a site visit to the courtroom so that you can prepare how you will be setting up your workspace in the courtroom. The essential elements for the Reference section include:
- Table of contents
- Contact List – names, phone, emails for all
- Judge, Clerks, Bailiff, etc.
- Own staff at trial: attorneys, paralegals, others
- Others at trial: client, witnesses, experts, technology person, etc.
- Opposing counsel and staff
- Travel Information, if applicable (war room, courtroom directions, hotel info)
- Case Summary: factual and legal issues
- Proof chart: elements and proof in case
Paralegal Pro Tip
Each section of this Trial Notebook can be its own binder so that each notebook is easier to handle. Label the spines numerically by section and place the notebooks in boxes with the spines facing up.
SECTION II: Pleadings, Discovery, and Pretrial
While you are assembling this section, instead of just gathering the pleadings and discovery and putting them into the notebooks, you can be identifying and extracting key names into a Players List and key dates into a Case Chronology. The Players List can easily become your draft witness list. The Case Chronology can be used to identify additional trial exhibits and it can also be helpful for creating timelines and other demonstrative aids. The essential elements for the Pleadings, Discovery, and Pretrial section include:
- Counterclaim, Response
- Request for admissions
- Orders on discovery motions
- Scheduling Order
- Pretrial Order
- Order on Motion for Summary Judgment
- Other significant Orders
SECTION III: Pending Motions
Most of the pending motions relate to evidence that each side wants to keep in or keep out of the trial. Because of this, you can get up to speed on the issues of the case and the evidentiary issues easily while preparing this section of your trial notebook.
- Any outstanding pretrial motions with authority to oppose.
Paralegal Pro Tip
Organize your pending motions in separate notebooks for each pending motion. Within each notebook, you should include the motion and all responses, supporting affidavits and declarations. Then have one separate notebook containing all the case law and authorities cited by all parties, organized alphabetically.
SECTION IV: Voir Dire
When you first assemble this section, most of the content will be blank because you will not have any information about the jurors. The function of this section is to make it easy for you to quickly handwrite information about each juror during the jury selection process. The “Outline of Voir Dire Questions” will give you an idea of what the attorney is looking for in an ideal juror, but you will want to further discuss this section with the attorney so that you know what some of the more important qualities are that they will be looking for when seating the jury. Use that information to make blank Juror Profile sheets that contain boxes to check off or blank lines to easily answer if each juror has those qualities.
- Jury Challenge Chart
- Juror Profiles
- Outline of Voir Dire Questions
- List of grounds and authority for challenges for cause
- Jury panel chart (blank copies for note-taking)
- Notes section
SECTION V: Opening Statement
The opening statement is one the most comprehensive place to start if you want to quickly learn what the case is about because the attorney is essentially outlining everything she wants to prove at trial. The opening statement is the equivalent of the compass for the trial.
- Outline of opening statement
- Complete text of opening statement
- Printed slides/list of charts
Paralegal Pro Tip
If the attorney is planning to use PowerPoint slides during the opening statement, be sure that you have tested how the slides look when they are displayed on the technology that is in the courtroom. Some of the new widescreen templates and colors in PowerPoint do not display the same when using different projectors.
SECTION VI: Outline of Order of Proof
This section is the “road map” for trial. The Outline of Order of Proof maps out how the trial will progress, what order the attorney expects to call the witnesses and what order they expect to introduce the evidence. It is useful for an attorney to do this because they can see if there are any gaps in how a piece of evidence will get introduced. Thus, this section is a great way for a paralegal to get up to speed fast as it maps out the entire trial chronologically.
Paralegal Pro Tip
Give the attorney a copy of the Working Exhibit List and the Witness List when they are preparing the Outline of Order of Proof. As they are preparing the outline, they can check off each exhibit and witness to know if there is any evidence they forgot to include in their road map.
SECTION VII: Witness Examination
As you are preparing the list of exhibits to be introduced (section 19c), you can be updating your Working Exhibit List with the name of the witness that the exhibit will be introduced through while they are on the witness stand. This gives you the opportunity to become familiar with the exhibits and each of the witnesses.
- Your Witnesses (in alphabetic order). Each tabbed subsection for the witness contains:
- Synopsis of witness information
- Outline or chronological list of direct exam questions
- List of exhibits to be introduced through that witness
- Copies of Exhibits to be introduced (in numeric, tabbed order if voluminous; otherwise in the order that they will be introduced)
- List of demonstrative exhibits, audio-visual aids, etc.
- Conflicting testimony of the witness (a reference to prior statements, depositions, interrogatories, etc.)
- Questions to rehabilitate the witness during rebuttal
- Deposition transcript with highlighted key questions
- Copies of the subpoena with proof of service
- Their Witnesses
- Similar structure to above, but with emphasis on conflicting statements and impeachable material.
Paralegal Pro Tip
These witness notebooks are meant to be the comprehensive version so that all of the witness information is in one place, including what everyone else says this witness knows. The version that they bring up to the podium should be easier to handle. You can limit that version to just three tabs: (1) Outline/list of questions, which also contains exhibit numbers that will be introduced; (2) copies of exhibits to be introduced (with attorney’s notes and highlights to bring attention to specific areas of focus); and (3) the deposition transcript with highlighted key questions. If something comes up during the examination, you have the complete witness notebook within reach.
SECTION VIII: Exhibits
Drafting the Trial Exhibit List will allow you to become familiar with the documents that will be presented as trial exhibits. You will have your hands on all of the exhibits at least three times: (1) when drafting the exhibit list; (2) when you are putting together the exhibit notebooks and exchanging with opposing counsel; and (3) when you are assembling the witness notebooks.
Start the drafting the Trial Exhibit list first as a Working Exhibit List containing detailed information about each exhibit, which will also serve to help you find exhibits easier during the trial. Once complete, copy that document into a new one with only the columns necessary for use in the Trial Exhibit List that gets exchanged with opposing counsel.
- Trial Exhibit List (the abbreviated version that gets exchanged with the other side)
- Full Working Exhibit List (detailed version for internal use only)
- Each exhibit in numeric order (if voluminous, refer to box)
- List of audio/visual/demonstrative exhibits
Paralegal Pro Tip
If you are not exporting your draft exhibit list as a report from a document database, then use Microsoft Excel for your Working Exhibit List. With Excel, you will be able to filter your columns to quickly track which exhibits have been admitted as evidence, which exhibits got introduced by have not been admitted yet and more. Preparing the Exhibit List in a Word table will limit what you can do with organizing and tracking the evidence.
SECTION IX: Trial Motions and Authorities
Trial motions are different than the section on pending motions. Trial motions relate specifically to things that the attorney anticipates happening during the trial. For example, if it is a jury trial, there might be a Motion for Judgment Notwithstanding the Verdict or some other action that each party is asking the judge to take.
- Any trial motions (directed verdict, dismissal, etc.) with the responses, reply, and sur-reply.
- Authorities for all motions organized alphabetically by citation.
SECTION X: Closing Statement
This section is a work in progress that changes throughout the trial, depending on what happens throughout the trial. The closing statement preparation starts with the Outline of Order of Proof and is supplemented with information that you can obtain through the trial notes and the detailed information you have added to your Working Exhibit List. For example, the attorney will want to be able to reference “exhibit 236 introduced through witness Doe.”
- Outline of closing statement (and/or full text at closing)
- Props or list of props
- Notes section for recording items to be added as trial progresses
SECTION XI: Jury Instructions
The jury instructions are what the judge reads to the jury before they deliberate. Each side submits their proposed instructions and the judge rules on the exact language that will be used when the judge instructs the jury on how the law applies to the case and the evidence they heard throughout the trial.
- Attorney’s copy of all instructions proposed to be read to the jury, along with the opposition’s proposed instructions.
- The final copy of the jury instructions that will be read by the Judge.
- If no jury, copy of Request for Findings of Fact and Conclusions of Law.
Paralegal Pro Tip
Each instruction should contain the complete language of instructions, one instruction per page, plus any legal authorities supporting its use. Each instruction page should contain a check-off for: given, modified or refused.
SECTION XII: Proposed Verdict Form
Unlike the jury instructions that are read aloud to the jury before they go back to deliberate, the proposed verdict forms are something that goes into the jury deliberation room. A verdict form identifies the burden of proof that is necessary for the jury to rule on each allegation and is usually a combination of what each side proposes.
- Verdict Form
- Supporting Authorities
Paralegal Pro Tip
Each proposed verdict form should be its own document and with blank lines or checkboxes for the jury to easily indicate what the verdict is for each count.
SECTION XIII: Law Section
Think of this section as your legal research section, not on particular issues like the pending motions, but rather, general legal issues and the rules.
- Trial Memo or brief covering the law on all significant questions of law
- Notes from Judge’s Bench Book
- Pertinent Rules of Evidence and Rules of Procedures (but also bring books to courtroom)
SECTION XIV: Notes, Reminders, To-Do
This is your section to use for your reminders and notes taken throughout the trial. Be sure to check this section before the trial gets to the closing statements in case there notes on things that need to be done related to the evidence.
- To Do List
- Reminders of motions to make, whether to poll the jury, etc.
- Notes section for items that come up, notes for appeal and others
Ask any trial paralegal who has experienced the last-minute trial prep rush and they will all tell you that as challenging as it is, it is also very rewarding. Every time you attend a trial, you learn a little more and become a better trial paralegal. If you want to reduce that learning curve and jumpstart your trial prep training with tons of resources and downloads, click here to get started immediately with our Trial Prep Boot Camp.