Civil jury trials continue to decrease in Wisconsin.
According to the Wisconsin Court System website, 0.0697% of civil cases resolved via jury trial in 2024, which is a 143% difference from the 0.42% of civil cases that resolved via jury trial
just 11 years prior in 2013.
Recent articles hypothesize the reasons for the decline. The myriad reasons notwithstanding, the modern litigator is now faced with the reality that civil jury trials – i.e., opportunities to practice and hone courtroom skills – are few and far between. As a result, not only may a litigator’s skill set oxidate by the time of their next trial, but the courtroom itself may change drastically with respect to its technology and presentation setup.
Now is as important a time as ever for litigators to seek out tools and resources to stay sharp in the courtroom. Here are a few suggestions for trial preparation in the modern era.
The Trial Notebook or Box
Whether you maintain hard copies of your case files or your file storage system is paperless and digital, you should bring your file to trial.
Figure 1: An option for a trial notebook.
But the unpredictability of trial may require you to access important documents and evidence at a moment’s notice. The way you organize your files before the trial stage may not mirror your trial organization – but should it?
Consider implementing a trial notebook or trial box system as early into a case as possible. A trial notebook will help you organize the file contents and trial information and will allow you much easier and quicker access to necessary materials at trial.
Crafting a trial notebook or box at the start of a case will help you more easily transition from intake to pretrial litigation to trial.
What your trial notebook or trial box looks like may vary from trial to trial, depending on the type of case, length of trial, amount and type of evidence, etc. You may opt for a trial notebook that consists of a 3-ring binder separated by tabs, as in
Figure 1.
Figure 2: An option for a trial box.
Alternatively, you may opt to organize the contents of your trial notebook into different file folders, red ropes, or hanging folders in a banker’s box similar to
Figure 2. The point is to have a system to organize your trial materials that works for you and that you can easily employ.
Your goal is to make your trial preparation and presentation more efficient, and therefore more effective. If a certain style of trial notebook is cumbersome, it will do more harm than good to try and use it.
Regardless of what your trial notebook looks like, you’ll want to have a few core components that stay relatively consistent from trial to trial. These core components may include:
A tab or folder for the basic necessities. Think of your basic fact sheet for the case, the trial outline, your client’s contact page, courtroom logistics, etc. If the trial is for a personal injury matter, you may want to include a summary sheet of the injuries and claimed damages in this section.
A tab or folder for the jury pool and the voir dire process. Put any jury research or any voir dire questions in this folder.
A tab or folder for your opening statement materials. Include both your notes and outline for your opening statement as well as any demonstratives you intend to use in your opening statement. Make sure to discuss the judge’s preferences for utilizing demonstratives during jury selection and opening statements at the time of the final pretrial conference. May demonstratives be used during jury selection and opening statement? Must any such demonstratives be admissible exhibits? The judge may also prefer or require you to confer with opposing counsel on these matters. The visual aids you’re allowed to use during these parts of trial may significantly impact your trial preparation.
A tab or folder for each witness. Prepare a folder for every potential witness, including possible rebuttal witnesses. You’re better served to be over-prepared by preparing folders for witnesses disclosed in discovery that don’t end up appearing, rather than failing to prepare for witnesses that make a surprise appearance. Prepare witness materials for every potential witness on each side, so that your materials are ready for either direct-examining or cross-examining any given witness. Include copies of the witnesses’ deposition transcripts in their folders, as well as copies of any subpoenas issued.
A tab or folder for your exhibit list as well as copies of your exhibits. As you prepare for trial, be cognizant of any given court’s specific procedures for presenting exhibits. Do you need to e-file all exhibits before the start of trial? Does the judge require hard copies of exhibits, or is the courtroom equipped to present exhibits electronically? Does the judge prefer a hybrid system to accommodate witnesses or the jury who may not have an ideal view of the TV screen in the courtroom (such as providing witnesses with hard copy exhibits, and providing the clerk with electronic copies to display to the jury)? The presentation (and admission generally) of exhibits should be specifically discussed at the final pretrial conference with counsel and the judge.
A tab or folder for your closing argument materials. As you prepare for trial, this folder may be relatively empty. But if you create the folder before trial, you’ll have a place to store materials for your closing argument as trial progresses.
A tab or folder for any miscellaneous additional materials you might utilize in your case in chief or rebuttal.
A tab or folder for any evidentiary motions or other evidentiary issues that may arise at trial. This section may include motions in limine, orders on motions in limine, or any research materials for any evidentiary issues you may anticipate during trial. Make sure you have access to or bring a copy of the applicable rules of evidence as well as the applicable local court rules.
A tab or folder for the parties’ proposed special verdict forms and jury instructions.
A tab or folder for any other filings that may be utilized or referenced at trial, such as a joint statement of the case, witness lists, trial briefs, proposed trial orders, any notices or stipulations, and any formal offers of settlement or offers of judgment.
Figure 3: A container of supplies to use at trial.
Finally, I never go to trial without a small storage container stocked with the supplies I most frequently utilize at trial – see
Figure 3:
pens, more pens, pencils, highlighters, more highlighters, permanent markers, and more highlighters;
an assortment of paperclips and binder clips;
sticky notes and flags;
a ruler, a protractor, and a laser pointer;
cough drops or mints;
extra charging cables;
extension cords;
a cable adapter to transition from USB to USB-C, etc. plug-ins.
Presentation Tools
A trial box will help you organize your substantive file and trial materials into an efficient and accessible system. In addition to the substantive preparation a trial notebook provides, several software options, applications, and specific products now exist to level up a lawyer’s presentation at trial.
Here is a summary of various options, organized by the technology leveraged by each product:
These tools are suggestions to explore in addition to any technology available in the courtroom where trial is located.
Technology within the courtroom can vary widely from county to county. Call the civil clerk or the judicial assistant before trial to inquire about the technology available in the courtroom where you’ll be located. Ask how evidence is displayed to both witnesses and the jury and how any laptops or tablets connect to any screens.
Some counties utilize a transmitter – called a “puck” or “dongle” – to wirelessly cast anything on counsel’s laptop to the courtroom screen. Some counties have HDMI cords for counsel to connect their laptop or document camera directly into the courtroom screen. A courtroom’s HDMI cords may be installed directly into counsel table or they may have to be shared and alternated between counsel. Call ahead to formulate your technology plan before trial.
Additionally, visit the courtroom before trial to become familiar with the technology setup and to test both the technology in the courtroom as well as any technology and tools you intend to bring to trial. Make sure your technology and the courtroom’s technology are compatible for a seamless presentation.
Conclusion
Technology advances so rapidly that the products outlined in this blog post may be outdated by the time of publication. In the era of decreasing civil jury trials, the need to plan and prepare – from a substantive, logistical, and technological standpoint – is at an all-time high.
Modern trial lawyers are highly encouraged to research, implement, and adapt systems that make trial – as well as the pretrial phase of litigation – as efficient and effective as possible.
This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section webpages to learn more about the benefits of section membership.
