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How to Use Your iPad and OneNote as a Secret Weapon for Use in Trial

I was looking for a program that could emulate the structure of my paper file system that I use for jury trials. I looked at several programs that were touted as the answer for use on my iPad. I looked at all the Apple App World had to offer to no avail. I download one such program and found it to be slow and cumbersome to navigate through. I needed something with multiple tabs that could take advantage of the iPad touch-screen to navigate quickly to pull up needed information. This has always been one of the limitations of a laptop… its hard to navigate and pull up information as fast as you can with a well-organized physical paper file. After giving up hope, I came across such app called simply “Outline” for the iPad. It will import “notebooks” from the Microsoft program One-Note for ready use on the iPad. Microsoft’s OneNote works well and is affordable. It costs about $15.00 and the OneNote is likewise affordable and is typically included as part of the Microsoft Suite of Windows Business Programs. The OneNote program was designed by Microsoft as a program that could be used by students to organize their class notes and research projects. It is similar to EverNote.

I usually set up and organize my case file in the OneNote program on my desktop at work and then transfer the file to my iPad using one of several applications or programs. The iPad app can be synced with your laptop or desktop computer by a number of means, including Drop Box and iTunes. The materials are all organized just like the hard copy of my files and you can paste either links to or an electronic copy of documents such as depositions, medical journals articles and pleadings for full review.

So such as, I have major categories of documents such as pleadings, correspondence, opening, closing, instructions, pretrial motions, jury selection, evidence research, law research, medical research, settlement demands, medical records, witnesses, defense expert, exhibits, investigation, etc. These categories are listed across the top and can be scrolled through side by side. Individual documents in each major group are shown as tabs on the side of the screen and can be scrolled through up and down with a touch of your finger. I organize the tabs on top and on the side alphabetically or numerically as the case may be for ready access. If you tap the page with your finger, the program will open that page.

On each page you can paste objects or links. These can consist of Word Documents, text files, PDF, audio recordings, photographs, and deposition transcripts. These can be tapped and viewed with other applications or through “quick view” which is compatible with most of your documents. Audio files can be played with other compatible applications you have installed on your iPad. You can also electronically “print” a copy of the file onto the page as well and scroll up and down the page and read it.

It not only gives you the capability of carrying your entire file up to the podium, it will allow you to take multiple files home with you in your brief case. I can take home what amounts to twenty or thirty banker boxes home with me on my iPad. The “Outline” program accommodates multiple “notebooks” which can be search for text individually or collectively. I even have a separate notebook set up with tabs for procedural and evidentiary research notes for ready reference at Court. Below is an example of how a notebook appears:

I hope you will try this system. It is quite amazing once you get the hang of it. It is a cost-effective solution that you can easily tailor to the way that you organize your trial and case files.

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Litigation Against an Organization: Why you need to do a Rule 30(B)(6) deposition.

If you are suing an organization, it is important that you familiarize yourself with the provisions of Rule 30(b)(6).  Rule of Procedure 30(b)(6) provides in pertinent part:

Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

The organization (not you) has the obligation of designating the person or persons needed to adequately answer the questions posed in the various designated areas you wish to ask questions.  You as the deposing party have the burden of meeting the “reasonable particularity” requirement of adequately designating the subject areas of questioning.  The statements given by the person(s) designated by the organization bind the organization as an admission of a party-opponent.

This is not necessarily the case when a statement is given by a low-level employee who is not a “member of the limited liability company”  or officer/director of a corporate organization  since their statements only bind the organization if they are:

1) made within the scope of their authority and

2) the person is still employed and has a relationship with the organization.

Under Rule of Evidence 801(d)(2), “non-hearsay” for the “admission of a party-opponent” is defined as follows:

(d) Statements which are not hearsay. A statement is not hearsay if –

*   *   *

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the party’s agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

A Rule 30(b)(6) declarant/deponent’s answers to questions during the deposition are considered a “statement by a person authorized by the party to make a statement about the subject“.  The organization can only authorize such a statement if the area of questioning has been identified in the deposition notice.  The trick is to make sure your designation of the areas of questioning is specific enough to cover the questions you wish to pursue during the deposition.  Otherwise, the organization is free to argue that they were not authorized to make the statement and bind the organization.  One caveat to this point, is that the organization likely has a duty to raise the objection at the time of the deposition if the problem could have been obviated at the time of the deposition by making a clarification in the question. Rule 32(d)(3)(A) states that “[a]n objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.”

If the opposing party designates the wrong person or fails to prepare them they risk possible discovery sanctions and ill-considered and ill-conceived answers to critical questions in the litigation.    The burden is on the organization to properly prepare and name as many people needed to answer your questions.  It is kind of like obtaining requests for admissions from your opponent on the fly.  It can be very powerful tool you can use to box in your opponent.

When is an Exhibit Sticker More Than an Exhibit Sticker?

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An exhibit sticker can do much more than identify an exhibit for the record. It can actually be used as an organizational tool to aid the jury in understanding what the exhibits are being used to prove, as well as, better understand your case and how it is being put together. When I was a federal prosecutor I handled a number of “complex” fraud cases and had to come up with my own system for tracking my evidence and proof for each count of the indictment and the various overt acts of the conspiracy count.

I used my indictment as a narrative tool to help the jury follow my evidence and cross-reference which exhibit helped prove which count and corresponded with the various overt acts in my conspiracy count. My conspiracy count was organized like a short story with each event (overt act) referenced on the exhibit sticker along with any separate substantive count for other the crimes separately charged.

For example, Exhibit 44 – OA (d) – CT 15 would tell the jury that the Exhibit 44 was being used to prove overt act (d) of the conspiracy count and Count 15 of the indictment. I would also annotate my copy of the indictment’s substantive counts. At the bottoms of each count on my copy of the indictment, I would list the witnesses that authenticated the exhibits, provided forensic testimony, or other supporting evidence as well as list the corresponding overt act of the conspiracy count. This allowed the jurors and court to easily follow my proof at trial. It also permitted me to easily address any motion for a directed verdict by specifically identifying the witnesses and evidence that proved each count.

By keying the overt act to the exhibit, the jury could easily move through the proof and see that I had established each count. The jurors had no trouble following my story. I numbered the exhibits in chronological order to fall in line with my overt acts. I numbered my counts chronologically as well. The jury could take the exhibits delivered to them by the bailiff which were submitted to them in numerical order and work through the indictment with little confusion. This would lead to rapid verdicts on very complicated cases. This also built up trust between the jurors and myself. They knew I cared about them and wanted to make their job as easy and efficient as possible. This system avoided confusion in the jury room. Using this numbering system with my organizational system discussed in my earlier post entitled: “How to Stay Organized During Trial” allowed me to gain control of the courtroom and the trust of the jury and judge.

One caveat, I would make sure you explain the system both in opening and closing, and ask the jurors to pay special attention. Invariably, jurors assume someone else will be taking down notes and fail to focus on your explanation. I learned this lesson the hard way when the only note taker on the jury was removed prior to deliberations and no one else had paid close attention to my explanation. The jurors sent a note to the judge asking for me to explain the numbering system again. The judge refused to honor the jurors’ request. Eventually, they figured out the system and made short work of the case.

How to Stay Organized During Trial

Need a system to keep all your witnesses and exhibits organized? Well sometimes the best system is the simplest one.

I use a separate folder for each witness and each exhibit. I make sure all the folder tabs line up in a single row for the witnesses and label each witness folder with their last name, first name or if it’s a record keeper I use the name of the organization. By using a single row of tabs you can quickly thumb through the files without having to scan side to side. I then alphabetized the folders from A to Z.

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In each witness folder, I keep a copy of the witness’s outline and a copy of any exhibits needed for the witness. This way if I need to run out and meet with a witness, I just pull their folder and run. Because of my preparation, I know I have everything in hand I need to deal with that witness.

Each exhibit is also kept in a separate tabbed folder or tabbed binder and is sequentially pre-numbered or pre-marked with a letter. The folders or tabs are then sequentially ordered just as was done with the witnesses.

I also prepare two lists, one for witnesses and one for exhibits. Witnesses are listed alphabetically with the number or letter for each exhibit to be shown to that witness listed in the adjacent column.

I create a second list with exhibits sequentially listed and all witnesses crossed reference for each exhibit. On this list i also have columns to note if an exhibit was tender into evidence and whether it was admitted or excluded. This way you or your assistant can know exactly which exhibits need to be pulled, shown to and covered with each witness. You also can track if you need to make an offer of proof for exhibits excluded.

I outline each element of proof for my claim(s) and list the witness and exhibit which supports each separate element of the claim(s). This way you can easily respond to a motion for a directed verdict by outlining the proof which was entered through the testimony of specific witnesses and the exhibits on your shorthand list of proof.

I have successfully use this system for trials involving dozens of witnesses and hundreds of exhibits. It is simple and it works. It also keeps your table organized and uncluttered which conveys to the jury you know what you are doing.
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