USING NOTES AT TRIAL

Author: Mark S. Caldwell

Few lawyers can successfully try a case without the benefit of some form of notes. Notes can either be a crutch that robs the trial lawyer of spontaneity and persuasiveness or a tool that provides guidance and assurance.

The most common problem with the use of notes is a lawyer’s over-reliance on what he or she has written. This robs the examination, opening statement, jury questioning, or argument of spontaneity and persuasiveness. Worse, reading the written word aloud sounds unnatural and stilted because our brains process aural information in a different location than written information. Except for direct quotes that use specific language for a purpose or evidentiary foundations, the use of written questions should never occur at trial.

The best notes may be compared to refreshing recollection. They are there as triggers that spark our memory on specific topics. Notes are the checklist to ensure that all of the elements are covered.

Notes are as individual as finger prints – no two lawyers’ notes will look the same as we all have different memory triggers. Therefore there is no single model for the best type of notes to use at trial. Following are a list of generalized formats for your experimentation:

1. Initially write out your questions/statement to help organize your thinking and get a visual picture of what you are doing. With your presentation laid out as you want it to flow use your questions to create an outline. Use topics or phrases in place of the written questions;

2. Begin with an outline that organizes your thoughts in chronologic, topical, or relational format;

3. Write out the answers you hope a witness will give. You may even consider writing out the specific story your witness will tell once on the stand. In either case, follow up by distilling the information to outline topics.;

4. Use story boards or pictures that trigger your memory for each topic.;

5. Use the most comfortable of the above mentioned forms to craft an initial outline. Once you have organized the presentation create a chronologic list of headnotes/transitional phrases that divide the presentation into digestible pieces. The headnotes give you guidance but leave you free to craft language on the fly.

The bottom line is that you must find a system that best fits your own comfort zone and then consistently employ that system in everything you do at trial.

Notes should always be large enough that you can read them from several feet away. Consider using type that is large enough to read from two paces away from the lectern. Remember the graphic designer’s mantra, “white space is your friend” and don’t try to crowd too much information on a page. Consider separate pages for each topic. Use a typeface that you can easily read, for example Times Roman or Tahoma.

To make your notes even less of a crutch consider a process that has a headnote or transition for every five to eight questions. Everyone can ask that number of questions without the need of looking at notes for guidance. You can maintain eye contact and appear interested in the answers. It will aid in staying focused on the witness and make the examination appear to be conversational.

The most important part of the process is to experiment before you get to trial. Find out what works for you before you walk into court.