Boxers or Briefs? - No - Binders or Files?
It's no secret that organization is key to trial preparation. I thought I'd share - and invite comment - about two different organizing techniques that I've used, and the one I've found, unquestionably, to be the most effective.
First of all, I must have missed the "Trial Notebook" class in law school. No one ever really taught me how to use a binder or binders to any kind of advantage. As a result, when I tried my first cases, I basically used a file system. Each piece of discovery, that would eventually become a piece of evidence, got its own manila file, complete with copies, a scribbled sheet with any plausible evidentiary arguments, as well as caselaw in support of those arguments. Every witness - direct and cross - got his or her own file, filled with notes and scripts. The opening statement got its own file - as did the Rule 29 and closing arguments. Things were organized, all right, though it got a little messy when more than two or three files were open at one time. And, of course, the very act of organizing was immeasurably useful, since I was basically putting the government's case together, and then my own, by compiling the different files.
I've tried more than a dozen cases using the "file method" described above, but I've felt the most comfortable and secure (and, not least of all, victorious) when I've used binders instead. For some reason -and I wonder if anyone else feels the same - I get a sense of greater organization, and therefore greater power, when I punch three holes in all that paper, buy some colorful dividers and a three or four inch binder, and have everything at my fingertips in a nice straight pile. (I need to give credit to Peter Berkowitz, who I've taught with at UPR, for finally giving me the "Trial Notebook" class that I missed back in law school.)
The first tabbed divider is usually for the indictment. The second is for openings and closings - first the drafts, then the finished products. The third is for evidentiary arguments, accompanied by relevant caselaw. It's best to try to figure out the order that the evidence will come in, and stack the arguments accordingly. The fourth tab is for cross-examination - maybe different colored paper for different witnesses - and is supplemented by an accordion file for each witness with traditional manila files that are filled with copies of the witness' prior statements. Finally, there are tabs for direct examinations, defense evidence, and the Rule 29 argument.
Of course, every case is different, and may require more or fewer dividers. I once had a book filled only with pretrial motions, responses, and orders. It was great to be able to refer to them in an instant, because they were so clearly tabbed and stacked. I've seen binders filled only with evidence - some cases, I know, have a lot of evidence.
The binder's most useful function, I think, is that it can, and should, be compiled as early as possible. As the binder fills up and takes shape, so does the theory of the case, the ideas for cross and closing, and some cogent evidentiary arguments. I'm sold on this method now, and I guess the people happiest about it are the folks at Office Max. Any case that looks like it might go to trial . . . gets a binder.
