How to Prepare For Trial: Step One

I suppose, to do it right, this will have to be a multi-post topic, spread over the next few weeks or months as it fits into my schedule of actual trial preparation.

Just a disclaimer: This is not the only way to prepare a trial, nor do I believe it's necessarily the best way. It just happens to be the way I was taught, and what seems to work for me.

Today's lesson is "Step One: Create an outline of the trial."

If you're the type of person who likes to type things out in a neat, organized outline, following actual outlining formatting (you know, I. then 1. then a. or whatever), fantastic, type it in Word or whatever you'd like

I like to write it on a blank piece of a paper. For some reason, I think that the more it looks like a flow chart with circles and arrows, etc., the more it's going to work. As if the level of activity on the page indicates the level of activity in my defense.

Either way, what you're doing is giving yourself an idea of what to expect in the trial.

A basic outline might look like this:

Pre-trial motions
Jury Selection
Opening Arguments
Prosecution Case
Defense Case
Closing Arguments
Jury Instructions


Then I go back through and just start brainstorming different ideas and filling them in under their respective headings. I think through all of the possible Prosecution Witnesses and list them under prosecution case, and all of the possible Defense Witnesses and list them under the defense case.

Next, I might fill in some ideas of questions, themes, or points I want to make with each witness. I'm not trying to write my whole direct examination or cross examination into the outline, but I'm asking myself, "What is my point in standing up and asking this witness a question? What do I want to get out of him or her?" and trying to fill that answer into the outline. I might also put some thought into any evidence I might want to introduce, and which witness I would introduce it through.

Invariably, during this process, I'll think of other things I need to do, whether they're investigation or research related. I'll just jot them in a box along the right margin. Again, the more doodling that gets done in my outline, the better.

Usually, by the time I'm beginning to prepare the trial, I've completed my investigation (although there is sometimes still more I can do) and I've sometimes put some thought into what my defense or theme is going to be. I might jot this under opening argument or closing argument, or both.

Finally, I might type my outline, if, for example, (1) I just need to feel a little more organized and my free-form outline has gotten out of hand, or (2) I want to give it to a colleague who will be working on the case with me, or (3) I want to give it to my client.

I think it's worthwhile to give a copy of the outline to my client as early in the trial prep process as possible - especially for the uninitiated client who doesn't have a clear sense of how the trial works, and even more so for a client who is in jail which may limit your time to talk and prepare the trial together. I find that, in the future, it redirects our conversations from "I didn't do it, I'm not taking a plea, I want to go to trial" to "Let's actually talk about the trial, here's what I think our major theme should be, here's what kind of jurors we're looking for, here's who I think the witnesses will be... " and so forth.

Just to give you a basic idea, I'll write up a quick outline from a trial training I did a while back. This is just off the top of my head, so it'll be a little rough. I've started with the most basic outline as above, and then I've filled it in a bit more with a few hypothetical ideas. The case involves a basic bank robbery. Again, this is hypothetical, and I'm not really prepping a bank robbery right now, so cut me some slack if you think I've missed something.


1. Pre-trial motions.
a. Preclusion of defendant's statement
b. Preclusion of "enhanced" video surveillance

2. Jury Selection
a. Eliminate customers of this bank
b. Eliminate jurors with security jobs?

3. Opening Arguments
a. Teller didn't get a good look
b. Bank video grainy
c. Defendant's "confession" coerced - hours of interrogation (mention only if statement not precluded.)
d. Defendant's home searched - money not found.

4. Prosecution Case
a. Teller (introduce diagram of bank if prosecutor doesn't)
b. Bank Manager
c. Police Officer at scene
d. Detective who takes defendant's statement

5. Defense Case
a. Defendant ???
b. Alibi witness
c. Character witness

6. Closing Arguments
a. Teller didn't get a good look
b. Statement was coerced
c. Defendant denies
d. Defendant was at the movies with his girlfriend
e. Money not found (Prosecution's burden to present evidence)

7. Jury Instructions
a. Basic jury instructions
b. Special jury instruction: Alibi Defense (if alibi witness used)

During the course of sketching out the outline, I might thoughts of things I still need to do, such as "Call character witness - set up appointment." "Go back to bank - distance from teller to door?" The longer this list becomes, the more work I have cut out for me, obviously.

That's all for today, class. We'll pick this up from here the next time I feel like writing about trial prep instead of actually doing it.

5 comments:

  1. Does prosecution or defense go first on opening arguments? And on closing?

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  2. Interesting question, Gerard. In the jurisdictions where I've practiced, the prosecution opens first, and the defense opens second (but doesn't have to open at all, having no burden.) Then the defense closes first, and the prosecution closes second, so they get to answer all of your good points from your closing.

    I've heard of places that allow for a rebuttal after the closing or something, but I've never actually seen it.

    I will write more about prepping the opening and closing in a future post.

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  3. Where I practice, the State gets the first crack at closing, then the defense, then the State rebuts. Usually the first State argument is about the jury charge and they spend like 1/4 of the entire time allotted and the rebuttal is why you should convict.

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  4. how do you obtain video from store to use in trial? how do you get prosecutions witness list and evidence before trial?

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  5. My jurisdiction has the prosecution's opening statement and then the defense may elect to offer an opening statement or delay the opening statement until the beginning of the defense case. As for closing arguments after the close of evidence, the state goes first, then the defense, and then the states gets to rebut.

    I do note that we don't have opening "arguments" and argument is prohibited during the opening statement -- typically a statement about what evidence will be given or what things will be proven (or not).

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