IT'S ALL RIGHT THERE: A Trial Notebook Keeps Facts and Figures at Your FingertipsAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 88, No. 8 (AUGUST 2002), pp. 54-55Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27842385 .

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1

PRACTICE STRATEGIES LITIGATION

IT'S ALL RIGHT

THERE

A Trial Notebook Keeps Facts and Figures at Your Fingertips

JAMES W. M c E L A E Y

LUNCHTIME IN THE FIRST FED eral Soup and Sandwich Shop, Julie Archuleta was sounding out some of the regulars about how to prepare a case for trial.

"I've never done it," she said. "Three years with 82 other lawyers at \ ^ ' Hermann, Oswald anck. * |.u. *

iPunderson, and all I ever did was work on appellate briefs and occasional trial motions. Which is one of the reasons I left?to go out and see what

practice is like in the real world, it's scary out here.

"There are just three other lav yers in McDougal and Garcia, an none of them has ever tried a case," she said. "Still, they insist this one is so

simple?only four wit nesses and a handful of documents?that I won't hav< any trouble. That's easy for ? to say, they don't try cases. Bi

me, I'm worried."

"If you're going to get any <

ready for trial?big or small? the smartest thing you can do is learn how to use the trial notebook system," said Dick Mudger, the insurance de fense lawyer.

"Absolutely," said Beth Golden, who does all kinds of civil litigation. A couple of others nodded in agreement.

"Aw, bishwah!" said Myra Hebert, who set her beer on

James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and Park Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston.

He is a senior editor and columnistfor Litigation, the journal of the ABA Section of Litigation.

the counter and put her arm around Julie's shoulder. "Listen, honey, these guys are full of odoriferous irrele vancies. Let me give you the straight stuff. Unless you're getting the case ready for someone else to try, nine times out of 10 ,the trial notebook is a total waste of time. Silly busywork, which is why most lawyers don't use them."

"Why is it a waste of time?" said Julie. .

"Because statistically you're going to settle most cas

es," said Mike Boatman, joining in the discussion. "Why do all that intricate detailing for a case that isn't going to trial?"

"What if it does go to trial?" said Julie. "It's still a waste of time," said Boatman. "Besides,

you'd be amazed at the beautiful music you can get out of an accordion file.

"Tell you what. Come down to Judge Romero's court room tomorrow morning, and you'll see what you can do

--?^ 5* with a simple trial file. I'm starting a little

commercial case that you'll find fascinating." I don't think Mike Boatman had any idea how

many lawyers heard what he said, and how many of them decided to take some time out of the office the next

morning to see what kind of music Mike could get out of his accordion file. There were at least seven of us sitting in the back of Judge Romero's courtroom at the start of the trial, which began about five minutes late because

Mike had trouble finding the notes for his opening state ment. And he left a big pile of papers scattered all over the counsel table when he stood up to talk.

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^9 ABA JOURNAL August 2002

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? !

"That was brilliant," whispered Myra Hebert. "He's

deliberately looking like the underdog so he can grab some jury sympathy right at the start. Brilliant."

Julie Archuleta looked like she wasn't sure. Half an hour later Boatman had his client on direct ex

amination, and Julie passed me a note that said, "Doesn't this seem a little confused and disorganized?"

I raised my eyebrows and gave a little nod.

Halfway through, Boatman's client couldn't remember some important details, so Mike decided to refresh his recollection. After Mike's client said that looking at his

deposition might help him remember, Mike started flip ping through it, looking for what he wanted. The trouble was, it seemed to be hiding.

Four full minutes later?an eternity of dead time in the middle of trial?Boatman confessed he still couldn't find what he was looking for and said he would come back to it later But then he couldn't find his copy of the contract that

was the heart of the case and he started muttering about his secretary getting his file all mixed up. That's when Barbara Swanson, who represented the other side, hand

ed Mike a copy of the contract and said, "Here, Mr.

Boatman, take mine. I've got an extra one."

EVERYTHING AT THE READY WHEN JUDGE ROMERO DECLARED A RECESS A FEW MIN utes later, Beth Golden said, "This is too painful. I can't take any more of it." The rest of us didn't say anything, but we all walked out and headed for the Donut Hole.

Later, holding a mug of Dark Mountain Roast, Dick

Mudger said, "Poor Mike. That was the best endorse ment of the trial notebook method I've ever seen."

"But I'm not sure whether a notebook would have made any difference," said Julie Archuleta. "Mr. Boatman was so rattled he couldn't find anything?even something that was in his client's own deposition."

Beth Golden smiled. "That's the whole point," she said. "Like my father used to tell me, 'If you can't find

something, you might as well not have it.' "That's what the trial notebook does: It keeps all the

important stuff for the whole trial in one place, or tells

you exactly where it is. And you have everything in the notebook behind labeled dividers so you can find any thing you want."

"Look at this, Julie," said Dick Mudger. "This is my trial notebook for a railroad crossing case I defended."

"Wow. This is impressive," said Julie. "Besides jury se lection and opening statement, you've got a divider for

every witness, one for stipulations and admissions, anoth

er for motions in limine, then jury instructions and final

arguments." "That's right," said Mudger. "And notice the dividers.

They're made with pockets at the bottom of the page. All the office stores have them. With pocket dividers you've got the perfect place to put your notes instead of throw

ing them into some file folder where you won't be able to find them later.

"Say you're working on another case when suddenly

you get a great idea for your final argument in the train

crossing case. You write yourself a note and it takes no more than 30 seconds to put it in the right pocket of your trial notebook.

"Now turn to the divider labeled 'Arnold Bamberger' and look in the pocket. What do you see?"

"An 8x10 black-and-white photo of a railroad cross

ing, and a copy of a handwritten note," said Julie. "Stuff

you used when cross-examining Mr. Bamberger?"

"Right," said Dick. "Now look at the next page." "You call it a focus sheet," said Julie, "and it's got all

kinds of information about the witness. Let's see ...

Bamberger's 72 years old, a retired banker. He claims the

gate didn't come down before the train entered the

crossing, the red lights didn't flash and the bell didn't

ring.

"Deposition evaluation: Starts out sounding pleasant and thoughtful but gets testy whenever his powers of ob servation are questioned. Doesn't hear well. Hates the

old AT&SF Railroad?they ran some track through a corner of his father's farm when he was a boy in Kansas. He blames the Great Depression on the railroads."

"Doing all this must take a lot of time," said Julie. "Not for me," said Beth Golden. "I figure it takes me

about 10 percent to 20 percent less time to prepare a case with the trial notebook system than by using the old-fashioned manila folders and brown accordion files.

Just look through the file and you're instantly up-to-date on what needs to be done. I save 15 to 20 minutes every time I pick up my notebook over what it used to take me to shuffle through stacks of paper."

"OK," said Julie. "I'm sold, except I still have one

question: How does a notebook help you find something that's in the middle of a 200-page deposition?"

"That's the best part of all," said Dick Mudger. "Look at the section on Arnold Bamberger again. After my cross-examination outline is a list of important points in his deposition. See if you can find anything about the Great Depression."

"Here it is," said Julie. "

'Blames Great Depression on the railroads. Page 137.' That's wonderful?but it must take a lot of time to write a table of contents for every deposition."

"Less than half the time it takes most lawyers to read a

deposition taking notes on a legal pad?which are use less for finding anything in trial," said Mudger.

"You can talk a lot faster than you can write. So instead of taking longhand notes, dictate your notes on the depo sition?including the page numbers?on one of those lit tle handheld tape recorders that use the microcassettes.

Then put the cassette in the pocket divider for that wit ness. It's only a quarter-of-an-inch thick. If the case shows

signs of going to trial, your secretary types up your notes and makes two copies?one for your trial notebook and the other to staple on the cover of the deposition."

Julie Archuleta went back to her office grateful that Beth Golden and Dick Mudger had told her about using a trial notebook. I didn't tell her they learned it all from

Angus, who was off hiking in the Rocky Mountains.

August 2002 ABA JOURNAL 55

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