I take lots of notes during trial. I’m not lucky enough to have a perfect memory. Some people have the gift of recalling what happened each day in trial. I envy them. But I need notes.
To be a good trial lawyer, you need credibility with the judge and the jury. A key part of being credible is describing evidence accurately. Unfortunately, my trial brain is an eternal optimist. I can’t tell you how many times I was convinced that I extracted the expected/hoped-for answer and then checked someone’s notes and discovered that (spoiler alert) I didn’t get it.
When I’m asking questions during a trial, someone else must take notes. My most important job at that point is listening. Taking notes distracts you from listening, and it may distract the jury too. A direct examination should appear to be somewhat conversational, and you can’t have a conversation while scribbling notes. Cross examination requires near-maniacal focus on the witness, and you can’t focus on the witness’ answers and take notes at the same time.
One exception: If a witness uses a memorable turn of phrase during cross, I jot it down in quote marks to refer to it later in the examination.
How I Take Notes
I take notes by hand. No one should be tapping away on a computer during trial if it can be avoided. The clicking is distracting. The jury may think you are doing something other than paying attention.
I have recently fallen in love with Ampad Double Sheet notepads. They have 100 pages, so they are thicker than regular legal pads. I bring all my notes for the whole trial with me every day to court, so it’s useful to have fewer notepads.
About 2/3 of the way across the page, I draw a vertical line down the sheet. The bigger left side is for my notes of what happens during court. The smaller right side is for ideas, random thoughts, and follow-up questions. I’d guess that 98% of the stuff on the right falls by the wayside. That’s ok. The other 2% is gold.
Let’s say I’m listening to a case agent testify in a criminal case. I’ll write down what he says on the left side. But my brain is mostly focused on what to ask during my cross-examination so I don’t have a lot of time to take detailed notes. I’m scrambling to add questions to my prepared cross outline and to develop impeachment points on the fly on the right side of the page.
Before I sit down after a cross examination, I scan my prepared outline and the right-side-of-the-page notes to make sure I didn’t miss a key question.
I scribble the word “closing” next to anything I may want to address in closing—good or bad. That helps me find it quickly at the end of trial when I’m in a rush to draft my closing.
When my witness is on cross examination, I track possible topics for redirect. I use the classic formulation on redirect: “Ms. Opposing Counsel asked you about topic X. Do you remember that? [insert my follow up question].” I also try to have no more than three topics, so as I’m taking notes, I start a fresh page with just a list of topics. I need to see all the possible redirect topics on one page so I can narrow them down.
How a Junior Team Member Should Take Notes
In my view, you cannot take too many notes during trial if you are one of the junior members of the team. If you are billing your time to the client to be in the courtroom, one way to bring value is to take notes.
Until I was lead counsel in a trial myself, I truly didn’t appreciate how hard it is to simultaneously manage a nervous client, react to unexpected testimony, and adjust trial strategy each day. It’s hard to keep everything straight that happened. You may not be there yet. But as the junior member of the team, you can help the lead lawyer keep it all straight. That is incredibly valuable.
After each trial day, the team will meet to debrief and plan the next day. You won’t have a transcript to review, so your notes will be critical. the rest of the team will rely on what your notes say to plan strategy. Trust me on this.
Here are the three primary elements of notetaking:
Track exhibits. Keep track of what exhibits were marked for identification, what exhibits were offered into evidence, and what exhibits were admitted.
Exhibits should be tracked both in your notes and on an exhibit list. Be sure to find out from the courtroom deputy what format to use for the exhibit list. In one trial, the judge had us confirm with the courtroom deputy at the end of each day which exhibits had and had not been admitted. That helped a lot at the end of trial because we had cleared up any issues along the way.
Document mid-trial rulings. Did the court admit an exhibit with a limiting instruction? Write it down. Did the court permit limited evidence about a certain topic? Write it down. Did the court hold a certain ruling until a later witness testifies? You guessed it: write it down. I had one judge whose rulings about the admissibility of certain evidence changed dramatically from the pretrial conference to the start of trial to the end of trial. Having notes about the rulings was key to reminding the judge what he had said the day before.
Summarize key testimony. This is obvious, but of course you should take notes about what each witness said. Even background information should be included. For example, a witness may start speculating about events that happened before she started at the company. If the lead counsel leans over to ask you, “when did she say she started at Acme Corp,” then your notes will be crucial to supporting an objection to foundation/lack of personal knowledge.
Final tip: Ask what the senior team members want you to do with your notes before trial starts and whether there is anything else you should be doing in the courtroom. Do they want your daily notes typed up each day in an email? Is there a particular issue they want flagged? Trial lawyers have their preferences, so find out what they are ahead of trial. (Then, after trial, when things have calmed down, ask them why they do things the way they do. I promise they will love to explain their oddball trial habits them.)
The Lure of Daily Transcripts
I can almost hear the response to this post: “But we get daily transcripts. Why bother taking a bunch of notes?”
There are a few reasons.
Ok, yes, if you have a well-funded client, then you can likely get “dailies” or “rough” transcripts every evening after trial. But sometimes your client cannot afford these transcripts, so you will need notes.
Often you don’t get the dailies until very late or even the next morning. That may be too late to prep for the next court day.
Also, transcripts are long and time during trial is short. Sure, AI can help summarize transcripts quickly. (Disclaimer: Don’t quote AI to a judge without checking the actual transcript.) In my view, though, it’s easier to find key points in your own notes than in a transcript.
Finally, court reporters are human. They may have an emergency and cannot finish the transcript on schedule. If you didn’t take notes, then you are out of luck.
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As writer Jack London said, “Keep a notebook. Travel with it, eat with it, sleep with it. Slap into it every stray thought that flutters up into your brain. Cheap paper is less perishable than gray matter. And lead pencil markings endure longer than memory.”