Organize evidence and other materials in a trial notebook
Creating a trial notebook is a great way to keep your documents and evidence in order so you can access it quickly and easily at trial. To create a trial notebook, use a 3-ring binder with tab pages to divide the notebook into different sections.
Section 1: Pleadings
This section should include the the plaintiff's Summons and Complaint and the defendant's Answer.
These documents are important to have as a reference, because the plaintiff will not be allowed to argue theories of the case that were not identified in the Complaint, and the defendant will not be allowed to argue defenses not listed in their Answer. If a new defense arises during the trial, the defendant may ask the court to amend their Answer to include the new defense (the court may or may not grant this request), but they are otherwise generally limited to the defenses in their Answer. You will also keep a copy of any other documents that have been filed with the court in your case.
Section 2: Discovery
This section contains discovery requests and discovery from each side.
You will want to be able to find the other side's responses to any of your discovery requests very quickly because you can use any contradictory answers given during discovery to impeach (challenge the truthfulness) of the other side's witness using these answers.
TIP: Use tape flags to mark any sections that you anticipate will be critical.
Section 3: Checklist of elements
This section has a list of every cause of action and every defense in a checkbox format.
Every cause of action the plaintiff raises and every defense the defendant raises has a series of elements that must be proven for the claim to be successful. List the elements of each cause of action, and each defense in checkbox format, so that you may check off each element as evidence is provided during the case. This way you, whether you're the plaintiff or the defendant, will know whether the each side has has proven their case or defense.
TIP: A good place to find these elements in detail is to review the Judicial Council Civil Jury Instructions (CACI).
Section 4: Outline of an opening statement
This section has an outline of your opening statement.
This will help you make your opening statement, though sometimes these are waived by the judge.
TIP: Choose a large type for this, typically 14 point or higher, with generous spacing, so that you may quickly glance down at it to find your place and continue without reading from it.
Section 5: Outline of direct examination/testimony
This section contains an outline of the questions that you wish to ask each witness you call to back your case as well as the points you wish to make in your testimony.
For your testimony, it should be an outline of the facts you wish to testify about. For each witness you have, create a list of questions. This list is important so that you can make sure that either you or your witness gets out all of the testimony that is necessary for your case.
Section 6: Outline of cross-examination of each side's witnesses
This section will contain an outline of all of the points that you might cross-examine the other side's witness about.
You'll only need this if the the other side is producing a witness rather than a declaration in lieu of live testimony. Again, use a large font, and generously space any pages in this section.
TIP: You may also write notes on this page as the witness is examined, so that you may remember any additional points, or narrow your questioning.
Section 7: Miscellaneous documents
Use this section to hold miscellaneous documents that you may use during the trial. Some examples of things that you might keep in this section include:
- A list of all exhibits you intend to enter into evidence
- A list of common objections
- Copies of some of the Evidence Code that give rise to the common objections
- Names and telephone numbers for any witnesses in case you need to call them from court
Loose in your notebook: Exhibits
Have original and two copies of each exhibit you intend to introduce at trial. Each exhibit should be clearly labeled on the back. The plaintiff's exhibits use numbers ("Plaintiff's Exhibit 1," "Plaintiff's Exhibit 2," and so on). The defendant's exhibits use letters (Defendant's Exhibit A," "Defendant's Exhibit B," and so on.
The two copies are so you have one to present to the other side or their lawyer, and one to hold onto so that you may refer to it.