McELHANEY ON LITIGATION
Put Away the Accordion
A well-organized trial notebook keeps your case close at hand
BY JIM McELHANEY
McELHANEY AT HIS BEST
AT LUNCHTIME IN THE FIRST FEDERAL SOUP
and Sandwich Shop, Julie Archuleta was
sounding out some of the regulars about
how to prepare a case for trial.
“I’ve never done it,” she said. “Three
years with 82 other lawyers at Hermann, Oswald and
Punderson, and all I ever did was work on appellate
briefs and occasional trial motions. Which is one of the
reasons I left—to go out and see what practice is like
in the real world. And it’s scary out here.
“There are just three other lawyers in McDougal
and Garcia, and none of them has ever tried a case,”
she said. “Still, they insist this one is so simple—only
four witnesses and a handful of documents—that I
won’t have any trouble. That’s easy for them to say.
But me, I’m worried.”
“If you’re going to get any case ready for trial—big
or small—the smartest thing you can do is learn how
to use the trial notebook system,” said Dick Mudger,
the insurance defense lawyer.
“Absolutely,” said Beth Golden, who does all kinds of
civil litigation. A couple of others nodded in agreement.
“Aw, bishwah!” said Myra Hebert, who set her beer
on the counter and put her arm around Julie’s shoulder.
“Listen, honey, these guys are full of odoriferous irrel-evancies. Let me give you the straight stuff. Unless
you’re getting the case ready for someone else to try,
nine times out of 10 the trial notebook is a total waste
of time. Silly busywork, which is why most lawyers
don’t use them.”
“Why is it a waste of time?” said Julie.
“Because statistically you’re going to settle most
cases,” said Mike Boatman, joining in the discussion. “Why do all that intricate detailing for a case
that isn’t going to trial?”
“What if it does go to trial?” said Julie.
“It’s still a waste of time,” said Boatman.
“Besides, you’d be amazed at the beautiful
music you can get out of an accordion file.
“Tell you what. Come down to Judge
Romero’s courtroom tomorrow morning,
and you’ll see what you can do with a
simple trial file. I’m starting a little commercial case that you’ll find fascinating.”
I don’t think Mike Boatman had any
idea how many lawyers heard what he
said or how many of them decided to
take some time out of the office the
next morning to see what kind of
The ABA Journal is occasionally reprinting some of Jim
McElhaney’s most popular columns from past years. This
article originally appeared in the Journal’s August 2002
issue under the headline “It’s All Right There.”
music he could get out of his accordion file. There
were at least seven of us sitting in the back of Judge
Romero’s courtroom at the start of the trial, which began about five minutes late because Mike had trouble
finding the notes for his opening statement. And he
left a big pile of papers scattered all over the counsel
table when he stood up to talk.
HITTING THE WRONG NOTES
“THIS IS BRILLIANT,” WHISPERED MYRA HEBERT. “HE’S
deliberately looking like the underdog so he can grab
some jury sympathy right at the start. Brilliant.”
Julie Archuleta looked like she wasn’t so sure.
Half an hour later, Boatman had his client on direct
examination, and Julie passed me a note that said,
“Doesn’t this seem a little confused and disorganized?”
I raised my eyebrows and gave a little nod.
Halfway through, Boatman’s client couldn’t remember
some important details, so Mike decided to refresh his
recollection. After Mike’s client said that looking at his
deposition might help him recall,
Mike started flipping through it,