Trial Notebooks- In many instances, trial judges are requiring attorneys to prepare and submit trial notebooks in advance of the trial of a matrimonial case. Such directions are often contained within the pre-trial readiness or pre-trial scheduling orders.
Whether or not your court requires it, a detailed and comprehensive trial notebook can be one of the best investments of your time toward your goal of achieving superior case results. A well- organized, professionally done, trial notebook not only prepares you for an impressive courtroom performance, but also provides a potent tool in your negotiations. In other words, a well-done trial notebook can produce more successful results, both in the courtroom and the conference room.
However, make no mistake about it. Trial notebooks are costly endeavors, both in terms of the time expended to prepare them, as well as the copying cost of producing four sets of notebooks which contain, at the very least, hundreds, if not thousands, of pages of exhibits, court orders, pleadings, statements of proposed disposition, statements of net worth, etc. – i.e. all of the critical documents in your case. The suggestions contained herein are designed to make the process less daunting and cumbersome. In addition, a well-organized notebook instills confidence in the client and the attorney trying the case.
Why four sets? As noted above, in all likelihood, you will need to prepare four (4) sets of notebooks:
- One for Attorney trying the case (The Trial Attorney’s Personal Notebook)
- One for the Adversary
- One for the Stenographer (the Notebook with the actual, marked Trial Exhibits)
- One for the Trial Judge (the Courtesy Copy)
Before going further, it is important to understand that the Attorney trying the case is going to have one notebook will have everything that is in the other three notebooks (the ones which will be provided to the adversary, the stenographer and the court) as well as certain additional items which are only in his or her Notebook.
Since the Notebooks being submitted to the court, the adversary and the stenographer are all identical and will also contain all of the documents in the personal notebook of the trial attorney, let us begin with the “Basic” Trial Notebook.
- Contents Of The “ Basic” Trial Notebook- How you organize the Basic Trial Notebook and what you put into it is largely a matter of personal preference. Of course, you should also review the trial court’s scheduling order to determine whether there are particular items which must be present. In addition, such orders often contain directions with regard to the marking of trial exhibits. While the following list is not all-inclusive, here are some suggested items for the Basic Trial Notebook.
- All Pleadings- Contained within the basic trial notebook is a set of marked pleadings (CPLR 4012) consisting of the Summons and Complaint with Automatic Orders; the Answer and any Counterclaims; the Reply; the Request for Judicial Intervention; the Note of Issue and the Trial Readiness Order.
- Court Orders/Reports And Stipulations- Apart from the essential pleadings, your Basic Trial Notebook should have all of the court orders issued in your case, as well as, if applicable, the reports of the court referees or court attorneys. Also, if the parties have reached an interim or a trial stipulation (e.g. Stipulations regarding grounds for divorce; custody; stipulations of fact with regard to trial issues), they should also be included.
Practice Tip: More and more frequently, courts are trying to streamline the process of trial by eliminating unnecessary, time consuming testimony. Consider submitting a joint statement of stipulated facts and/or assets. Stipulate to the names, ages and dates of birth of the parties, their children; the date of marriage, the date of separation, the date of the commencement of the action. Include within the stipulations, assets which are concededly “marital” or “separate” and, if possible, stipulate to the value of the assets as of the date of commencement or the current date. In some instances, it may be possible to agree upon the equitable percentage of particular assets to be awarded to each party (e.g. – all of the retirement accounts of the parties will be divided equally). Entering into such stipulations allows the attorney to conserve valuable court time for those issues which are truly in dispute.
- Statements Of Proposed Disposition- Include the Statements of Disposition submitted by both parties. Section 202.16 (h) of the Uniform Rules of The Trial Court regulates the content of these Statements and the timing of their exchange prior to trial. The party filing the note of issue must serve the adversary and file his or her Statement of Proposed Disposition with the note of issue. The adverse party then has 20 days to file and serve his or her responsive Statement of Proposed Disposition. Unfortunately, this uniform court rule is frequently ignored by the trial courts. Rather the courts routinely require a simultaneous exchange. The Statement of Proposed Disposition is a critical document in your arsenal since it represents your essential position at trial as to each issue as well as a roadmap of your entire case. Great care should be taken in drafting this document. The positions taken therein need to be clear, reasonable and compelling. Perhaps more than any other single document, the Statement of Proposed Disposition is the one document that Judges look to and key upon to understand the case and to follow the testimony.
Practice Tip- Make sure that you ascertain whether there is a local rule or custom which affects the content or timing or exchange of Statements of Proposed Disposition. Look at the Trial Scheduling Order. Frequently, counsel are directed to “exchange” Statements of Proposed Disposition within certain fixed time periods. Moreover, for those who practice in Westchester County, attorneys are likely to encounter an “unofficial” court rule which requires “joint statements of proposed disposition”. SEE Exhibit “A”– Trial Ready Order. However, even this local rule varies from trial judge to trial judge. Upon receipt, carefully review the statement submitted by your adversary to see if trial stipulations are possible with regard to the amount or duration of maintenance, the value of assets; the equitable distribution percentage for some or all of the assets, etc.
- Statements of Net Worth- In addition, the Basic Trial Notebook should also contain the various net worth affidavit submitted by both parties during the litigation. Some attempt should be made to identify and differentiate the various Statements of the parties during the litigation (e.g. “Initial Statement of Net Worth”; “Date of Commencement Statement of Net Worth”; “Current” or “Amended Statement of Net Worth”.
- Expert Reports- All of the Trial Notebooks should contain the reports of any neutral or agreed-upon expert. These exhibits are frequently marked as Court Exhibits. This is an important distinction to make, since it reinforces the concept that neither party is bound by the neutral’s report (of course, we know the practical import of such reports) and each party may “cross-examine” the expert. The Notebooks should also contain the reports of the experts retained by the parties, whether it is a report “in chief” (e.g. the report of the husband’s expert with respect to the value of the business) or a “rebuttal report” (e.g. the neutral expert’s value is incorrect as to the “capitalization rate” or the “issue of taxes” and should be adjusted accordingly).
Practice Tip- CPLR 3101(d) provides that within 20 days of written demand, a party must identify and provide information with regard to the identity, background, findings and testimony to be proffered by an adverse expert. Make certain that a demand under CPLR 3101(d) has been served in advance of the trial. This demand is a trial device as well as a discovery notice so that it can be served after the filing of a note of issue but before trial. In addition, § 202.16(g) of the Uniform Rules requires the exchange and filing of expert reports (i.e., the so called reports “in chief”) at least 60 days prior to trial and at least 30 days for reply or “rebuttal reports.” In the discretion of the Court, written reports may be used as to substitute for direct testimony at the trial, but the reports shall be submitted to the Court under oath and the expert shall be present and available for cross-examination. The practitioner should be aware of these two conditions if he or she is trying to keep the report out of evidence or dealing with the direction from the court that the party who wishes to cross-examine the expert must pay for the expert’s appearance. As noted above, by marking the report of the neutral as a court exhibit and by reminding the trial judge of the expert’s role as a court witness, as well as the conditions contained in Section 202.16(g) for admission of the report in lieu of direct, one may be able to argue that the expense of calling the witness for cross-examination should not be borne solely by one party.
- Discovery Demands/Notices/Deposition Transcripts/ Trial Subpoenas – It is sometimes extremely helpful to insert the various pre-trial and trial discovery devices in your notebooks. This is especially important if you are going to seek to preclude the adverse party from introducing testimony or documents based upon a failure to provide discovery. In that regard it may also be important to also insert the discovery responses or correspondence of counsel regarding such issues.
Practice Tip – Apart from the traditional pre-trial discovery demands such as Notices for Discovery and Inspection (CPLR 3121) and Demands for Expert Information (CPLR 3101[d]), no one should go anywhere near a trial without serving a Demand under CPLR 3101 (e) – the demand for statements of your client in the possession of the adverse party. In the electronic age of emails, texts, instant messages , audio and video recordings it is extremely likely that the other side is in possession of some “statement” of your client that is beyond “stupid” and is now in the realm of “devastating” or at the very least “prejudicial”. There is nothing worse than watching your client being asked about such a statement, knowing that the next exhibit will belie any attempt to deny or mitigate the damage. If you have made such a demand under CPLR 3101(e) and compliance has not been made you may be in a position to limit the potential damage. If you have not previously served such a demand, do it !!!
- Witness Lists- Apart from CPLR 3101[d] which deals exclusively with “expert witnesses”, there is no statutory or court rule which compels disclosure of the names of all trial witnesses. However, more and more frequently, trial judges are requiring parties to disclose such information in their Trial Readiness Orders. If that is the case then such a list should be included in your Notebook.
- Trial Exhibits- Almost all trial courts have some requirement that trial exhibits be pre-marked prior to the commencement of the trial. Typically, Plaintiff’s exhibits are “numbered” exhibits (e.g. “1”, “2”, “341” etc.) and Defendant’s exhibits are “lettered” (e.g. “A”, “B”, “CC”, “DDD”). An exhibit sheet should be included with the number /letter of the exhibit; spaces to track whether it has been marked for ID or in EV; the date received and the name of the stenographer who marked it. Some courts require attorneys to exchange their exhibits and to agree upon which exhibits will be introduced, leaving to the Court the limited task of dealing with the non-agreed upon exhibits. Whether this is required or not, it is a good idea to see if you and your adversary can agree upon some exhibits since this process greatly cuts down on the time spent in the courtroom marking and reviewing exhibits as prelude to introduction.
Practice Tip – Deciding upon the order of Exhibits can be a real challenge. It is somewhat easier if you represent the Plaintiff. In that regard you know the order of witnesses and the testimony and exhibits you intend to introduce. Thus you can set your exhibits up to correspond to the testimony. While it truly does not matter whether you take exhibits out of turn (i.e. skip what was pre-marked “5”, “6”and “7” and use “8” as your next number), some judges take note of the “missing exhibits” and want everything to be strictly sequential. This is an issue that you can clarify at your pre-trial conference. Most judges will accept the notion that you do not have to have a precise sequence if you alert them in advance that you have pre-marked exhibits. Obviously, it is more difficult to deal with this if you are representing the Defendant. Not only do you have your own exhibits to introduce but also you may have a number of exhibits which you have marked and used upon cross-examination of the plaintiff’s witnesses. Sometimes you can anticipate this problem to a certain degree and mark as exhibits items that you know you will need right away (exhibit “A” might be the deposition transcript of the Plaintiff and “B” Plaintiff’s Net Worth Affidavit). In the end, you just have to do the best that you can if you have to pre-mark. The more difficult question is whether the court requirement that you pre-mark your trial exhibits means that you have to pre-mark everything that you intend to use on your direct case or anything you intend to use at trial. Do you have to pre-mark and turn over cross-examination material? What if you have some document (like a loan application) or tape recording that is devastating? Do you have to turn it over with your trial exhibits? Can you hold it back? Do you face its exclusion if the court takes the position that “All court exhibits” means “ All court exhibits” ? I believe that most judges will take the position that you must pre-mark only the exhibits that you intend to introduce on your direct case – not necessarily your cross-examination material, since you may not need to utilize the document if the adverse party testifies “truthfully”. Of course this is another issue which can be addressed at the Pre-Trial Conference (i.e. So, your Honor’s practice is to pre-mark everything which we intend to use on our direct case?)
- Pre-trial Memorandums- In some instances pre-trial memorandums may be helpful, particularly where there is an anticipated trial issue with respect to an evidentiary point or a point of law . For example, are you suggesting that the date of valuation should be a current date rather than the date of commencement? Is it your position that the Defendant should be estopped from asserting a position contrary to his previously filed tax return (See Mahoney v. Mahoney-Buntzman, 12N.Y.3d 415). In such instances it would be wise to prepare a pre-trial memo and include it in your Notebook.
- Maintenance and Child Support Calculations – It can be extremely helpful to set forth your statutory child support and/or spousal maintenance calculations in the Basic Trial Notebook. While the Spousal Maintenance guidelines formula only applies to interim awards (see DRL section 236 B [5-a]) the formula and the new statutory factors can be utilized as part of your request for a final award as well. Not only will such calculations assist the Court in reaching an appropriate trial award but also it is useful to have it available as a settlement tool. Moreover if you need to place the settlement on the record you have to set forth the child support calculation as part of your settlement. Thus having these calculations in the Notebook is invaluable
- Contents of “Trial Attorney’s Personal Notebook” – As noted above the Personal Notebook of the Trial Attorney will have all of the items in the Basic Notebook provided to the adversary, the stenographer and the Court (see items 1-10 set forth above) as well as other additional items. Once again, this is a matter of personal preference. However, here are some suggestions :
- Copy of Trial Judge’s Rules
- List of Witnesses; contact information (addresses, telephone, email) schedules
- Opening Statement
- Deposition Transcripts of all Parties and Witnesses
- Outline and/or Questions for Direct Examination
- Outline and/or summary of Questions to Ask to Lay Foundation for Introduction of Exhibits (i.e. Business Record foundation [CPLR 4518], Foundation for Introduction of Tape-Recording [People v. McGee 49 NY2d 48])
- Copies of Relevant Statutes and Cases related to your trial issues
- Evidence Handbook (ie. Evidence in Matrimonial Actions by Gassman & Tippins)
- Outline and/or Questions for Cross-Examination
- Summation Notes/Outline/Closing Argument
- Organization Of Trial Notebooks – The three Basic Trial Notebooks should all be identical in terms of organization and content. The personal Notebook of the Trial Attorney can follow that identical pattern and then have additional sections or volumes which contain those items intended for the Trial Attorney alone. It is best to use large three ring binders for all notebooks. If possible select a color that is different from your adversary so that the Court can easily differentiate the two sets of notebooks. Your notebooks should be broken down into numbered volumes (e.g. Volume I; Volume II; III; IV, etc). Clearly identify the caption and label it as Plaintiff’s or Defendant’s Notebook. In addition, you should also specify the intended recipient of a particular set of Notebooks (i.e. “Plaintiff’s Trial Notebook”; “Court’s Trial Notebook”, etc.). The name and address of counsel should be on the outside, as well. Each volume should contain a table of contents with tabbed sections corresponding to the table of contents. Here are some suggestions:
- Volume I - Basic Trial Notebook
- Table of Contents Keyed to Tabbed Sections
- Section 1 – Pleadings
- Section 2 – Court Orders/Reports/ Stipulations
- Section 3 -Statements of Proposed Disposition
- Section 4 – Statements of Net Worth
- Section 5 – Expert Reports
Volume IA – Personal Notebook of Trial Attorney
- Table of Contents Keyed to Tabbed Sections
- Section 6 - Contact Information of Witnesses
- Section 7 - Rules of the Trial Judge
- Section 8- Opening Statement
- Section 9 – Outline and/or Questions for Direct
- Sections 10 – End - See list above
Volume II to V - All Notebooks
Exhibit List with Numbered or Lettered Trial Exhibits in that Binder
Conclusion - The organization and preparation of Trial Notebooks is a costly endeavor, both in terms of the stress and impact upon the individual practitioner and the cost to the client. Many practitioners do not have the legal staff to embark upon such an endeavor or must devote their full time attention to such preparation thereby requiring them to give less attention to other clients. For clients, the economic outlay required can be quite significant. In the first instance, one must ask whether and to what extent the parties and counsel can afford such an enterprise. However, in many instances there is simply no choice to be made either because it is clear that the matter will be tried or because the trial court has directed counsel to submit such notebooks. Moreover, a well- organized , professionally prepared trial notebook may in fact engender a settlement since it will signal to the adverse attorney that you are indeed ready to try this case. Faced with these realities, the Attorney must utilize all of the resources available to prepare and submit trial notebooks which will maximize the likelihood of success for their clients whether at trial or in the process of settlement.
RONALD J. BAVERO, ESQ
PREP my Case, LLC
222 Bloomingdale Road – Suite 303
White Plains, N.Y. 10605
(914) 339-2700