Much has been written about trial notebooks as an organizational tool to house all the important information for use at trial. Undoubtedly, a trial attorney should begin assembling a trial notebook sufficiently in advance of trial – arguably months before the docket call. But what about the months or sometimes years of litigation that precedes trial? How best should a trial attorney keep critical case information closely at hand? In this brief article, I suggest creating “case notebooks” as a trial notebook precursor that can serve an attorney throughout the life span of a case.
A case-notebook system should not be confused with the firm’s typical litigation folder and filing system. That system is designed to be the repository of all documents in a matter and is typically set up and maintained by staff for their purposes. Such system would house all file correspondence and administrative paperwork in addition to other critical and non-critical case documentation.
A case notebook is primarily intended to serve the trial attorney. Envision a binder with critical case documents you can review at a glance to get up to speed quickly in preparation for case meetings, depositions, hearings or mediation. By definition, the documentation in this notebook, while also appearing in the regular client file, is only a fraction of the total volume of all case paperwork. That is the beauty of the system.
Of course, I’m mindful of the fact that this information could also be kept digitally on a laptop or tablet. This may well be a better alternative for the particularly tech savvy amongst us. But some, even with that skillset, still want to have at least some tactile tools to lay hands on. After all, technology is not infallible, and should it fail when you need it most, well, having a tangible paper case notebook would save the day.
A case notebook could be broadly divided into multiple “reference” sections consisting of various critical documents, and a “brainstorming” section as a place holder for argument outlines and trial-specific attorney notes. A case notebook should include the following sections.
1. Pleadings at Issue
This is where you store the pleadings upon which the case will be tried. Don’t overload the notebook with earlier versions of a court filing. A notation as to whether an allegation is admitted or denied on the face of a pleading can be helpful.
2. Selected Discovery Responses
This is where to put responses to interrogatories and requests for admissions that matter in the case. Don’t clutter it up with trivia. It should be the place for critical admissions and information.
3. Deposition Summaries
Don’t put the full text of depositions here unless there are only a handful and then condensed text is preferable. A better use of this space is for summaries, especially those that are tagged by issue. More about issue tagging in a future article.
4. Hot Documents
If your case is reasonably compact, consider putting a copy of the most important exhibits here. If space won’t permit, consider at least a table of exhibits cross referenced to the collection itself, which could be stored digitally.
5. Jury Instructions
You should have a handle on the operative jury instructions in your case from the outset. They identify the elements of the causes of action and defenses and will literally drive the jury’s decision.
6. Attorney Notes: Argument Outlines and Miscellaneous
In previous articles, I’ve urged aspiring trial lawyers to begin the process of developing arguments, case themes and other thoughts about case storytelling as early as possible. This is where to put those notes.