Working without notes can be recipe for disaster.

Byline: BridgeTower Media Newswires

By Judge F. Dennis Saylor IV and Daniel I. Small

It should be obvious that, to try a case properly, you have to do a lot of planning and can't just make it up as you go along. It also should be obvious that you can't possibly carry around in your head everything you need to know.

How, then, should you approach the task of organizing your presentation? And what materials should you have with you, at counsel table and at the podium, to help you?

There are four basic choices:

No notes

A barebones outline

A detailed outline

A script

Each option has passionate adherents, and whichever you employ, someone is bound to criticize your choice. Dan Small prefers to use a detailed outline; Judge Saylor thinks a script is the better choice. (Both will be explored in upcoming columns.)

We agree, however, that it's a bad idea to work without notes of any kind.

The argument in favor of a no-notes approach goes something like this:

Your presentation should feel fresh and spontaneous. You want to make a human connection with the jury, and your notebooks and papers and laptops just get in the way of that. Jurors don't care if your presentation is technically perfect; they do care if it is lifeless. Plus, the jury will be very impressed if you do it without any notes.

At first blush, that may sound attractive, even seductive. But beware. Hardly anything does more damage, in more cases, to the cause of effective persuasion than this stubborn insistence on extemporaneous speech.

In a trial with any degree of complexity, the no-notes approach is almost always ineffective, and sometimes disastrous. There is simply too much to remember. It is particularly ineffective in closing arguments, at which the lawyer has the most to say with the least amount of time in which to say it, and therefore tight organization and careful word choice are critical.

Cross-examinations made up on the spot may look good on TV, but in real life they are likely to be ineffective and disorganized.

As for freshness and spontaneity, your choices are not limited to (1) fresh but disorganized, or (2) organized but dull. You can be organized and still make it sound fresh.

And as for impressing the jury, you aren't there to show off your prodigious memory or your skill at extemporaneous speaking. You're there to win.

Some lawyers use a barebones outline, or rough notes, so that they aren't doing everything completely from memory. Certainly a barebones outline...