Trial Notebook as Security Blanket

Jamison Koehler Law Practice, Trial Advocacy

I recently served as co-counsel in two juvenile cases with Eddie Ferrer of D.C. Lawyers for Youth.  Although neither case ended up going to trial, you do get a pretty good sense of your colleagues when working together to represent co-defendants.

I am always happy when co-counseling with lawyers from the D.C. Public Defender Service — most recently Michael Carter, Colle Latin, and Matthew Davies. They return phone calls. They have resources not always available to the rest of us. And, most importantly, they are all over a case. This is in contrast to the multi-defendant case I had a while back in which one of my colleagues didn’t even recognize his client as we sat out in the hallway on the morning of trial. My investigator joked that he might need to introduce them.

I have been similarly impressed with Ferrer. He knows the law. He has a nice demeanor with clients. There appears to be no limit to his interest in hashing through different legal issues and strategies. And it was educational for me to see how he prepares for trial, including how he organizes his trial notebook. It was confirming to see that he uses the same basic approach as I.

With six trials scheduled over the next couple of months, five juvenile bench trials and one adult jury trial, I have in fact been giving quite a bit of thought recently to trial notebooks.

Although some colleagues tell me they only use trial notebooks for major cases, I prepare a notebook for every case that goes to trial.  I do not have the confidence or experience to wing things. Preparing the notebook gets me organized. It makes sure I haven’t left anything out. And, most importantly, by serving as my security blanket, it calms my nerves. The notebook barely leaves my hands once I get to the courthouse.

I keep a file folder for the initial stages of every case. Although many of my colleagues use plain manila file folders, and others pre-printed legal files bought off the Internet, I had my own file folders printed at only a slight additional cost per folder. The files have my logo on the front. I then designed a format for the inside cover that is specifically tailored to my needs. In practice, for ready reference, much of the non-confidential information finds itself on the front cover: the client’s name, charges, case number, contact information for prosecutor and probation officer, and so on.

Sometime after the trial date has been scheduled at a status hearing, most of the papers that have accumulated in the file get transferred over to the trial notebook. That’s when the real work – the fun stuff – begins.

I am sure there are many different ways of organizing the notebook and, of course, you need to adapt any system depending on the complexity of the trial. But here, roughly, is the approach I take.

TAB A:  I begin my notebook with the materials I prepare myself.  These materials include:

  • —            notes on any pre-trial issues;
  • —            outline of opening statement in case I decide to make one;
  • —            summaries of police reports and any prior testimony from a preliminary hearing/probable cause hearing (including notations for page numbers in source document)
  • —            outlines for cross-examinations for each government witness;
  • —            arguments and case law citations for Motion for Judgment of Acquittal;
  • —            outlines for direct examination of my witnesses;
  • —            notes on closing argument.

These are the papers I take out of the notebook and keep in my hand during trial.  The other materials in the notebook are for ready reference.

TAB B:  Information/indictment/petition.

TAB C:  Jury instructions and statutory language for every charge

TAB D:  Police reports, property receipts, lab results, and other materials turned over by the government as part of discovery.

TAB E:  Notes of testimony/transcripts from any prior proceedings (e.g., preliminary hearing or probable cause hearing).

TAB F:  Exhibits (e.g., photographs, maps).

TAB G:  Motions.

TAB H:  Case law (sometimes tabbed separately depending on the number of issues I expect to arise)

TAB I:  Sentencing/disposition materials (e.g., sentencing guidelines, resumes, probation reports, certificates, letters of commendation)

Although I used to keep my trial notebooks after the trial was over, I now break them down once I get back to the office. They take up a lot of shelf space. And I can re-use the three-ring binders. I stick the materials back into the file folder. Then, marking the file closed, I lock it away in my file cabinet. There is nothing more gratifying than a well-worked file.