The Plan

• Author: Leonard H. Bucklin
• Pages: 51-74

1. The Plan

The “Plan” section is the first section in your trial notebook. Behind the Plan tab

divider you will find two documents:

1. A form called “Litigation Checklist,” which provides your Standard

Operating Procedure (SOP).

2. The attorney’s and legal assistant’s Notes of Additional Tasks.

The Plan section of the trial notebook tells the entire staff what needs to be done, and

when. It will not let you as the attorney forget a time deadline or what needs to be done,

if you always look at your trial notebook’s Litigation Checklist when you are reviewing

a case.

A form litigation checklist serves as a Standard Operating Procedure. The SOP form

combined with the attorney’s and legal assistant’s notes of things to do instructs all con-

cerned what has been done and what still needs to be done. This eliminates paging

through the file to check on the progress of the case. You can see at a glance where you

are in the preparation of the case. Others can quickly understand what needs to be done,

particularly if you are not available.

For example, when checking behind the Plan tab your staff might find:

__ Draft for dictation of Motion for Judgment as Matter of Law put behind

“Motions.”

Your staff will see that it has not been checkmarked as done, and when they look at

the trial notebook “Motions” tab they will see:

Before the trial starts, the attorney needs a format to use to dictate into the

record our Motion for Judgment as a Matter of Law, also known as a Motion

for Directed Verdict. Go to the CD accompanying Building Trial Notebooks.

Print out either the plaintiff or defendant version (depending on whose side

we are on in this case) of the form Motion for Judgment as a Matter of Law.

Put it in this section of the trial notebook.

Your staff can thus independently get you off and running to court with something

you can dictate into the record at the close of the adversary’s evidence.

As an attorney you can direct your staff that if you are gone from the office, or they

otherwise have some spare time, they should look in the trial notebook and begin work-

ing on tasks that remain to be done. After a few cases they will know your variations

and your preferences and will be able to work quite independently.

(Rev. 3, 6/07)

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§1.1 Litigation Checklist

Building Trial Notebooks includes a six-page Litigation Checklist, which is a unique

and important feature of our trial notebook system.

Today’s litigation is not the litigation of Abraham Lincoln’s day, when a lawyer could

arrive on horseback with one lawbook in his saddle bag, meet the client for the first

time, go to court the same day, and be finished with the case in time to ride on with the

judge to the next courthouse on the circuit. Today’s lawyer has to keep 30 or more cases

actively in process at all times. And each of those dozens of cases can become a

labyrinthine nightmare of pretrial discovery and preparation.

The only way to keep your dozens of cases moving ahead without dropped opportu-

nities, missed deadlines, and lack of applicable facts and law, is to have a checklist style

Standard Operating Procedure, or SOP. Of course, you must not only have an SOP, you

and your staff must use it, and check off each item as it is done.

Too many lawyers say, “I know what needs to be done,” and then keep mental notes

of where they are in the case. Those are the lawyers who wind up in malpractice claims

for missed deadlines and forgotten tasks. That does not have to be you. Use a written

SOP. The result will be that both you and your staff will:

1. Stay organized

2. Stay on time

3. Stay on top of the case

A good SOP system will help you chart your entire course through the litigation

process. A good SOP system will lead you to success in depositions, settlement negotia-

tions, and trial. Building Trial Notebooks provides you a good SOP system through its

Litigation Checklist. The Litigation Checklist is intended as a guide. It is not an all-

encompassing checklist. It does not substitute for thinking. Use the Litigation Checklist

to move your case forward in an organized fashion.

You may modify the included Litigation Checklist for particular items in your juris-

diction or your practice. Open the CD version of the Litigation Checklist in your word

processor, modify the checklist for your own practice, and print out enough copies to

use for each of your cases in litigation.

Use the Litigation Checklist as a starting point for your SOP. Be sure to have an SOP

guiding you in each new case, and that you put this SOP behind the Plan tab of the trial

notebook. That way, everyone has the same framework for reference on what needs to

be done, and both the attorney and also the legal assistant or secretary will know where

to find the SOP.

SOPs are essential to prevent mistakes of omission. For example, you must alert your

client not to delete digital files subject to discovery. Failure to instruct your client can

cause the client the pain of court sanctions that could include direction of judgment

against the client. Attorneys have been personally sanctioned and fined for failing to

affirmatively instruct the client not to delete discoverable electronic materials in the nor-

mal courses of company record retention programs or routine erasing and reuse of

backup media. On the other side of document discovery, a failure to demand electronic

§1.1 BUILDING TRIAL NOTEBOOKS 1-2