The basics for any trial outline are:
- A list of all essential elements of the case.
- For each element of the case, a designation of which side has the burden of proof (Evid C §§115, 500) and, if different, of producing evidence (Evid C §§110, 550).
- For each element of the case, the evidence for and against, e.g., witnesses, demonstrative evidence, stipulations, judicial notice.
- Any significant evidentiary problems followed by relevant Evidence Code and case law citations.
Once you have all of this information outlined, review the relevant jury instructions—the Judicial Council’s plain English civil jury instructions (JC Cal Civ Jury Inst (CACI)) and criminal jury instructions (JC Cal Crim Jury Inst (CALCRIM))—and your notes for your opening statement and closing argument to make sure that your outline is complete.
Keep in mind that your outline doesn’t need to be formal—it should organize your evidence in a way that makes sense to you. But don’t skip the “simple” essential elements. Until the other side has formally stipulated or otherwise conceded an element, it remains a potentially fatal failure of proof. If there is a stipulation or other concession, then substitute it for the evidence in the outline so that you can track the situation.
Here’s a portion of a sample trial outline by a plaintiff’s attorney covering one element of the case:
I. Did Acme manufacture the bolt that failed?
A. Plaintiff’s evidence (burden of proof):
1. Deposition testimony of Mr. White (former Acme Vice President), p 12.
Exhibits: deposition testimony (Plaintiff’s Exhibit 5); broken bolt (Plaintiff’s Exhibit 6).
Problem: Will defense object on basis of lack of competence because White was on vacation during period the bolt was manufactured? But testimony is admissible as habit/custom (Evid C §1105).
2. Testimony of Ms. Johnson (repair person) whose shop bought all bolts from Acme.
Exhibits: Invoices (Plaintiff’s Exhibits 7–9); canceled checks (Exhibits 10–14); shop specifications (Exhibit 15); parts list (Exhibit 16).
Problem: She has vacation plans from 6/20 to 6/27.
B. Possible defense evidence:
1. Testimony of Dr. Black (Acme engineer).
Problem: Deposition not yet taken/scheduling problems with Black. Will court allow testimony if expert deposition not arranged before trial?
For more on preparing for trial, including preparing your trial notebook, turn to CEB’s Effective Introduction of Evidence in California, chap 2. And get guidance on preparing your case generally in CEB’s California Trial Practice: Civil Procedure During Trial, chap 3.
Other CEBblog™ posts you may find useful:
- 11 Steps to Preparing Your Trial Notebook
- The Key to a Persuasive Opening Statement: A Strong Outline
- Timeline to Trial
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Filed under: Civil Litigation, Criminal Law, Evidence, Legal Topics, Litigation Strategy, Trial Strategy | Tagged: elements of causes of action, evidence, legal issues, pre-trial preparation, preparing for trial |