The trial lawyer's electronic notebook
Microsoft Office OneNote 2007
By Bruce A. Olson
My opposing counsel kept looking at me with obvious envy as I made my argument to the judge why certain key evidence should be excluded from the trial we were involved in. I could tell from the look on the attorney's face that he was puzzled how I could refer to portions of the record, prior witness testimony, exhibits, case law, and a brief that I had previously submitted, all without a single piece of paper in front of me. The only thing I used was my laptop and a mouse. He sat at a table with loose papers piled haphazardly, manila folders strewn about, and a Bankers Box on the floor, stuffed to overflowing.
When my opponent was speaking, he spent as much time shuffling through his papers and folders as he did addressing the court. Eventually, his disorganization began to annoy the judge. At one point he simply could not find the case he was looking for. He begged the court's indulgence and promised he would provide the case reference later, after he'd had an opportunity to reorganize his file during a break. The judge was not amused, was not willing to wait, and ruled against him.
Later during the break, the attorney came up to me and asked how I could do it. "You did the same thing during depositions," he said to me. "How can you possibly have all those different parts of a case file organized in one place and viewable on your laptop screen?" I told him the solution was a good scanner and Microsoft OneNote 2007. I promised that when we were finished presenting the case and waiting for the jury to return their verdict, I would demonstrate how to conduct a paperless trial by using OneNote.
I was first exposed to OneNote when I received a complimentary license of what was then a brand-new product at the ABA TechShow. After I returned home and began to play with the product, I realized I had found a tool that had been an important missing link in my technology portfolio. I was already a technology power user. For many years I had scanned all incoming documents and loaded them and all internally generated documents into a litigation support program.
This kind of database program offers powerful ways to slice and dice information and to rapidly locate documents, photographs, and other electronic files. I'd also been an early adopter of trial presentation technology. This allowed me to take a document or picture, put it in front of a jury on a large screen or monitor, and highlight and annotate it just as John Madden does during Monday Night Football. However, none of these products, as sophisticated as they were, really gave me the equivalent of an electronic trial notebook. I needed an electronic legal pad, a place where I could easily organize my thoughts, create outlines of questions, create scripts for witness interrogations, and otherwise organize myself for either a deposition or a trial. I realized immediately as I played with my first version of OneNote 2003 that I could now create the electronic trial notebook I'd wanted. When OneNote 2007 became available, things only continued to improve.
Most trial lawyers organize themselves for trial in one of two ways — the "Bankers Box with manila folders" method or the "ring binder with colored tabs" method. Early in my career, I was ambivalent about the choices. Then I saw someone drop a four-inch wide ring binder on the courtroom floor. Several days worth of preparation went flying around the room, with no possibility of pulling it back together before the judge was ready to start. From then on, until I discovered OneNote, I was a "Bankers Box with manila folders" kind of guy. Because of this, the transition to OneNote was pretty simple. In many ways, what I saw on my screen in OneNote mimicked what I saw in the box and in the manila folders. However, if you happen to be a ring-binder person, don't worry. The transition to OneNote will be just as easy for you.
What makes OneNote such an ideal candidate for an electronic trial notebook? First, when you open it, the opening screen looks like a blank page on a paper tablet. I prefer starting with a nice blank white page. Once you open the program, just click the File menu, point to New, and then select Notebook. Then just follow the prompts in the wizard to create a new notebook:
Each notebook contains all of the materials that you'll need for your case. You can create multiple cases and carry them all with you on your laptop when you go on the road. Also, OneNote has a collaboration feature that allows multiple users to work together on one case, with the ability to synchronize everyone's work when desired.
After you create a case, you create sections that are like the manila folders in the Bankers Box method of organization.
In fact, each new section defaults to a tabbed manila folder view running across the top of the workspace. If you look at the pages in the section, it's just like looking at pages in the manila folders in your traditional file. Using sections in OneNote, I can organize my entire case in the same way I always did. I normally have a separate section for pretrial motions and motions in limine. I have one section for each party's opening statement. I then add a section for each witness. Finally, I add sections for exhibits, jury instructions, special verdict forms, and closing arguments. I can also color-code the tabs at the top for easy navigation.
I typically color all of my witness folders the same color. I use a different color for the witnesses called by the other parties as well as for their opening and closing statements. Each section then contains the type of materials you would ordinarily have in your paper file, just in electronic form.
It's easy to add information to a section. An important feature is the ability to blind type anywhere you want on a page. It means you don't have to be a master of a word-processing program to use OneNote. Just place your cursor wherever you want it on the page and start typing. This is just like being able to write a note anywhere on your legal pad. OneNote also supports handwriting recognition, so even if you can't type, you can use this program with a Tablet PC or with an inexpensive tablet input device like a Wacom Bamboo to handwrite your notes. To speed things up, I use voice-activated dictation, so I just place my cursor where I want the note and start talking into my headset. I let the voice-activated dictation program do the rest. As you write your notes, you create individual objects that are like text boxes. These can easily be dragged to change the order, copied and pasted to a different spot on the page, or even pasted to a page in a different section. The same is true for photos, screen captures, multipage documents, and other types of objects you might add to a section.
If you can print out a document on your computer, you can just as easily send it to OneNote. This functionality makes the program easy to use by someone who doesn't have a lot of experience with litigation software programs. All you need to do is make sure the items you want in your case are scanned into a folder somewhere on your local drive so you can easily find them. Open the item you want copied to the section in OneNote, and then open the Print dialog box and select Send to OneNote2007 as your printer.
The selected item will be printed to the page you have open in OneNote, with the cursor position determining the insertion point. You can print the whole thing or just selected pages. After you determine the parameters of the print job, just click OK. This works ideally for printing photographs, documents and exhibits, legal motions and briefs, jury instructions, special verdicts, and all the other types of documents that typically make up a legal file. You can print from Microsoft Office programs, but you can also print from other Windows programs, including Adobe Acrobat. PDF files are not a problem in OneNote.
While even a low-tech lawyer can use OneNote successfully, this doesn't mean a high-tech lawyer would want to look elsewhere. OneNote works successfully with all of the major litigation support programs typically in use. Thus, you can have a huge case in a litigation support database and use the sophisticated search tools to find the subset of documents you are interested in discussing with a given witness. You then print the documents to the witness folder or section, and they are ready for use in OneNote. Alternatively, and particularly if you are using an online repository type of program where you are accessing images by using a browser, you can use the OneNote Screen Clipping feature to grab a copy of an image. You can also print to OneNote the different types of reports that are typically generated from the spreadsheet view of the litigation support program. Since you can also blind type at any spot on the page, it is simple to send a number of exhibits to a witness folder first and then go back and develop your outline for questioning the witness. Just insert the text next to the exhibit in the location you prefer.
Once things are on the page, you can rearrange by dragging or by cutting and pasting, using the typical shortcuts that every user of Microsoft products knows how to use.
In addition to the print to OneNote function, you can use the Screen Clipping tool to get information on the page.
This tool is ideal for capturing Web pages and other information gleaned from the Internet. It works just as well as a way to capture selected portions of a document when you don't want to print the whole thing. It's particularly useful for grabbing selected questions and answers from a deposition transcript, or for grabbing selected quotes from a reported case.
To see how this all works in practice, assume you have a document that might be tricky to have admitted into evidence. You want to set up a script for yourself to follow so you take all the necessary steps to get the document admitted without objection. You can set up your line of questioning in the following way: First, create a section for the witness you want to use to introduce the document. Then, open the document in its native application. Assume it is a two-page PDF that you've placed in a folder on your desktop. Print the entire document to OneNote, so it's now located on the OneNote page in the appropriate section.
Place your cursor above the first page of the document and start typing reminders of the types of questions you need to ask the witness to lay a general foundation for the admissibility of the document. Assume further that you have a hearsay problem with a statement on page two of the document. Insert a note between the first and second pages to remind yourself to address the hearsay problem before you try to have the witness read the statement in front of the jury. Highlight the troublesome statement by using the yellow highlighter from the OneNote annotation tools so it's easy to reference.
Assume further that you expect the witness to lie and deny that he ever wrote the document. Therefore, be sure to check his deposition transcript in advance, and find the section where he previously admitted that he wrote the document and made the statement in question. Use the Screen Clipping tool in OneNote to copy the questions and answers that relate to this admission, and paste them below the second page of the document. Now you will be prepared to impeach the witness with a prior inconsistent statement if he lies under oath at trial.
Assume you also have one of those stickler judges who requires you to cite the evidence code by number rather than by a general description of the rule in question. Use the Screen Clipping tool to grab a copy of the specific procedural rule from the electronic version of your court rules or procedural statutes. For good measure, grab a couple of quotes from cases in which it was ruled that the type of statement you're trying to get admitted should be treated as an exception to the hearsay rule. If you want the full cases instead, print them to OneNote and then highlight and underline the important sections that relate to your argument with the annotation tools.
You've now pulled together all the pieces from your case file that you'll need to get this particular item into evidence over any objection the other side might raise. Everything is located in one place, and you didn't use a single piece of paper apart from printing the actual exhibit you intend to offer at trial. You won't need to rummage around at counsel table trying to find the manila folder with the case law in it or the deposition transcript or the exhibit. Your line of questioning will be clear, concise, and focused on the witness rather than on the piles of materials.
These basic techniques can be adapted to address all of the typical functions a trial lawyer encounters during trial. Because OneNote is so simple to use, anyone should be able to use these techniques with a minimum of time invested in learning how to use the program. After you have the basics down, you can adapt the way you use the program to fit your style. Keep in mind that it's just as useful at depositions or motion hearings as it is at trial. In a sense, wherever you use a legal pad, you should consider using OneNote.
We all know that organization is the key to success at trial. Being organized is important, but appearing organized is also important. There is an intangible benefit to using OneNote at trial. If the judge and jury see you working coolly and calmly from a laptop, never struggling to find what you need, and seemingly able to adapt quickly on the fly, they will begin to give you and your case extra credibility. At least that is what my opponent told me after I'd shown him how to try a case in OneNote: "Bruce, you've made a convert out of me. As soon as I get back to the office I'm going to learn how to use OneNote. Be prepared. Next time I'll match you on the battlefield!"
Bruce A. Olson is President of ONLAW Trial Technologies, LLC, a consulting firm offering trial technology, eDiscovery, and computer forensic services. A trial attorney and nationally recognized legal technologist, Olson is AV rated and Board Certified by the National Board of Trial Advocacy. He is co-author of "The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines," published by the American Bar Association. He received the prestigious "TechnoLawyer of the Year 2002" Award, from TechnoLawyer, and was Chair of ABA TechShow 2004, Vice Chair of ABA TechShow 2003, and served on the TechShow Board of Directors from 2000-2004. You can contact Bruce at email@example.com or visit ONLAW Trial Technologies, LLC.