How to Prepare For Trial: Step Two

(continued from Step One, here)

Now is the time to decide whether you are going to be a trial notebook (a.k.a. binder) lawyer, or a trial file (a.k.a. redweld) lawyer. Part of this is going to depend on what you were taught or what is the predominant culture in your office - I've worked in an office that didn't stock redwelds because everyone was into binders and I've worked in an office that didn't stock binders because everyone used redwelds.

I suppose there may be a third camp, but I haven't seen it yet. Actually, I've seen the technological camp, which includes uploading all of the documents, and making a file for each witness, even using a large monitor or projector to display documents and exhibits, but the courtrooms I've worked in haven't been properly equipped - ultimately I would still needed a paper copy of each document to show to a witness or to publish to the jury.

A few of the pros and cons of binders vs. redwelds. Pros of binders: Binders look neater. During trial, you walk up to the podium with this nice, organized looking binder, labeled "State v. Client" across the outside, and the jurors say, "Wow, she's got this trial organized." If you drop it, it all stays together. At the end of the trial, you could stick the binder onto your shelf, where it still looks neat, and have it to refer to whenever you have a similar case. Cons of binders: The need to hole-punch everything, or, in the alternative, wrestle with those plastic page holders. It's hard to neatly fit odd-sized papers into the binders, including legal size paper, or photographs, business cards, or cassette tapes, or little notes you've collected.

Pros of redwelds: If you come across any paper you might want to refer to, you just stick it in the folder, it doesn't matter the size, or whether you can hole punch it. It's easier to adapt during the trial, and you're not carrying a hole punch around. I also like that you can recycle the files later for future trials. For example, you could make a folder related to jury selection - keep all of your notes on jury selection, relevant case law, and blank jury box pages. Anytime you have a trial, you grab that jury selection folder and throw it into the front of your redweld. No hole punch needed, no need to slide those little divider tab labels into those little divider tab plastic things, and then they split and you have to start all over again if you want it to be neat. Cons: It looks a little messier, the redweld can split and make a big mess (I'm interested in trying the plastic/vinyl expanding folders they have now), or it can fall over and splay your papers all over the table. If you want to save it on your shelf, you have a big ugly redweld on your shelf (or taking up space in a filing cabinet) and they're not easily labeled.

I would recommend trying each one at least once, and see what you prefer. So far, I'm a believer in the redweld method. (If you've got another method, I'd love to hear it, leave it in the comments!)

Get together your materials: A redweld and folders; or a binder and dividers and those things you have slide into the dividers as labels, and a hole punch. Then make either a binder divider or a folder for each portion of the trial or witness. Using the example from Step One, I'd probably make these sections: Pre-trial motions, Jury Selection, Opening Arguments, Teller, Bank Manager, Police Officer at scene, Detective who takes defendant's statement, Defense Case, Defendant, Alibi witness, Character witness, Closing Arguments, Jury Instructions, and Exhibits.

I like to put my trial outline first, either as the first page of my binder, or at the very front of my redweld. Then put the dividers or folders into the binder or the redweld in the order you're likely to use them, using your trial outline as a reference. Now the trial outline becomes not only the outline of your trial, but also the table of contents of your binder or redweld.

Next, make a couple of copies of your entire file. Then go through all of those papers and ask yourself, "Who does this relate to?" In the bank robbery example I used earlier, let's assume that the teller had given a statement at the scene, which was written by Police Officer Smith and signed by the teller. I'd have at least two copies of that, and put one in the teller's folder and one in P.O. Smith's folder. Perhaps I'd even need four - if I want to have one clean copy to show to the witness and a second copy that might have my own notes or highlighting. If I had a diagram of the bank, I might want a copy for each witness who has been to the bank (the teller, the manager, and each police officer.)

There are some things you aren't not going to make copies of (e.g. cassette tapes or original photos). Just make a folder for them and stick them toward the back of the redweld or in the front pocket of your binder. I also like to have a folder for exhibits which will start out empty. Each time I move something into evidence, I will stick it back into that folder when I'm done publishing it to the jury. At the end of the trial, when the judge wants to send all of the exhibits back to the jury room, you'll see the disorganized prosecutor shuffling through his stack of papers and asking, "How many exhibits did I have?" while you neatly hand over your file labeled "Exhibits."

I also like to copy the charges against my client and the definition of each of the charges. Here it would probably be the laws describing robbery and grand larceny. Sometimes the charges are complicated (although here they aren't really) and I find it helps me keep me focused if I can clearly see exactly what the prosecutor has to prove. So I might make a folder labeled "charges" and include the indictment, the relevant case law or definitions from the penal code, and the model jury instructions.

In each folder, or between each of the dividers, I also like to throw a few blank pieces of paper, so I always have paper on hand in case an idea strikes.

In Step 3 you're going to start formulating the voir dire, opening argument, cross-examinations, etc., but I think that having your binder or redweld in shape first gives you a clear idea what you have to work with for each witness.


  1. This is great stuff. I am a law student so it is interesting to hear how it is done in the "real world." Thanks for taking the time to write it all out!

  2. Yes, I second that. As a non-lawyer, this has really helped me get my stuff together. I anxiously await Step Three, as my trial starts next week.

  3. I'm a PD, and my office mostly uses binders. I've learned over time that I am a Redweld gal. (We call them "brownies.")

    Binders are so confining as to the order of things - if you insert a new section or remove one, the tabs no longer line up nicely unless you then shift all the little white labels.

    Another advantage to brownies is taking all of the files out and laying them on a table at once. Sometimes that makes it easier to see the big picture. You can move them around to try a different order of witnesses, etc. With a binder you can really only view one thing at a time.

    This PD votes for brownies, aka Redwelds.

  4. Practising crim lawyer, lower courts. I don't do a lot of trials, but the one's I've done have been fine with my working file holding everything. I bundle all appropriate things together with paper clips or staples (eg, staple copy of each statement with synopsis on front, thoughts on questions behind this on separate sheets, with margilia notes indicating relevance of the various elements or proof issues to that witness etc so I don't forget anything of great importance. Then, during trial, I keep handwritten notes of what's said, and paperclip this to each stapled bundle. I use variations on this theme to collect my argument on legal points, closing address, etc. I have neat handwriting and my trials aren't hugely complex, so this all works well for me. I keep cases etc separately bundled so that I can extract this sort of stuff for future reference before sending the file off to the great archive in the sky at the end of proceedings.

  5. Another vote for redwelds. While they may not appear to be as neat, shuffling through papers (as long as it's not excessive) gives you the opportunity to think for a moment, and for the jury to assess you. I've always thought that a bit of shuffling can make a lawyer appear slightly more thoughtful.

    I'm not saying that it can be used for significant dramatic effect, but I think it can have a minor influence on how a jury perceives you.

  6. I suppose that I'm a hybrid. Typically, I'm a Banker Box and redweld guy. But I also use binders for large items like discovery and motions. For example, I'll have all my discovery in order of Bates Stamps with an index in the begining. For motions I'll have a large binder with the my motion or response on white paper and my opponent's motion or response on a colored paper - short case briefs and talking points precede each motion so that I can use it as an outline of the argument.

    For each witness I usually have a hard multi-leaf folder (the kind with multiple sections and 2-hole punches at the top), which I take to the podium with me.

    I also have trial binder of things that get used in every single trial.

  7. I use a binder with plastic dividers that have pockets on both sides. Not only do the pockets hold all those odd shaped items, it also makes anything I may need to pull out during each stage much easier to find and have available quickly.

    I mainly don't like the brownie system because I'm a neat freak and my case philosophy is that, in case I'm hit by a bus, anyone should be able to open my trial notebook and be able to easily figure out the case.

  8. I belive in a combo system. I use redwelds (file jackets in my office) with specifically colored folders for different things. Exhibits are always loose (ie not bound) in their own folder, clearly marked. And then there is a copy in the witness's binder. Along with my outline and his depo (if any). My original file always stays in the office in its own file jackets and bankers box so I can't get it all marked up.

    I also use for trials only three hole punched pads. This then goes in the binder for the witness. I use the cheap ones, and each side has its own color. I label the outsides of them with witness name (or initials). I have dividers in the binders.

    But before it goes into binders, which is the week before trial, its in file jackets so I can spread it out. I find the last organization of the file is when I usually come up with the last of my trial outline, put the finishing touches on, ect. Its also when I write opening/closing.

  9. I am glad anonymous said that. I am glad to know i'm not the only in the world who writes opening/closing the week before trial.