CHECKIST 1 – PROCESSING A CASE FOR TRIAL

1. Interview Client
1.1. Try to get all the facts and relevant documents
1.1.1. Why did the client choose you?
1.1.2. Has client seen another lawyer before seeing you? Who? Why didn’t the other lawyer
take the case?
1.1.3. Is client a “shopper”?
1.1.4. Is client under the influence of a layman, relative, friend, co-worker, etc.?
1.1.5. How is the matter affecting client emotionally?
1.1.6. Size up client for honesty, motives, neurotic tendencies, financial standing.
1.1.7. Listen both to what the client says and the way the client says it, even the gestures,
body language and tone of voice. Be alert also to what the client doesn’t mention,
doesn’t want to say, or can’t say without help as this may become crucial in the case.
1.1.8. Be aware that you are also communicating with your client by your own choice of
words, body language, gestures and tone of voice. Pay attention not only to the
expressed content but also the emotional attachment and your reaction to the client.
Avoid expressing or showing approval or disapproval of the client’s actions or beliefs or
story.
1.1.9. Do not, at this stage, challenge or confront the client. Ask questions or areas omitted or
facts not mentioned in the spirit of helpfulness, not challenge. Leave cross-examination
for later interviews.
1.1.10. Avoid emotional over-identification with client, or cultivating a dependency
relationship.
1.2. Discuss and if possible fix fee.
1.3. Fill in RETAINER RECORD (Form 1)
1.4. List facts to be investigated and other things to be done by you and your client (Form ,
THINGS TO DO-FACTS)
1.5. List issues of law to research (Form 3, THINGS TO DO-LAW)
1.6. Clearly define goals and limitations of your retainer. There is only so much that you can do
as a lawyer, and only so much your client can pay.
1.7. If at all possible, take some action for the client before he leaves your office.

2. Marshall the Evidence

2.1. Obtain the names and addresses from client of all person whom client thinks—
2.1.1. Will testify for client
2.1.2. Will testify for opponent
2.1.3. Have knowledge of facts but are not willing to testify or may have difficulty testifying
2.2. Go through all client’s documents, official reports, newspaper clippings, etc. for additional
names and documents.
2.3. Visit crime scene/place of accident or occurrence
2.3.1. Prepare diagrams/sketches/photographs/maps
2.3.2. Get names of neighbors, other possible witnesses.
2.4. Use discovery procedures to learn the names of opponent’s witnesses and others who may
have knowledge of facts (see no. 11, post)
2.5. Trace missing witness/es, if any (Checklist 4, TRACING A MISSING PERSON)
2.6. Interview witnesses and try to get statement in writing or by means of sound/video recording
regardless of whether the witness is friendly, hostile, reluctant or claims to know nothing.
 2.6.1. Friendly witness
2.6.1.1. Be careful of over-friendly witnesses.
2.6.1.2. Find out why witness has come forward and is willing to testify (relationship
to client, other motives, etc.).
2.6.2. Hostile witness
2.6.2.1. Explain you’re looking for the truth, and would like to hear the story of the
witness.
2.6.2.2. If the witness refuses to talk to you, try to get a signed statement that s/he
refuses to talk, and why
2.6.2.3. Bring along neutral observer to witness your interview.
2.6.3. Reluctant witness
2.6.3.1. Find out reasons for reluctance and try to work on securing consent to testify.
2.6.3.2. Get witness to sign statement that s/he does not want to testify, and why.
2.6.3.3. Bring along a witness.
2.6.4. Know-nothing witness
2.6.4.1. Get the story of the witness in writing and signed, showing why s/he knows
nothing.
2.6.5. Ask all witnesses
2.6.5.1. For names and addresses of other possible witnesses.
2.6.5.2. If they have made a statement to opponent/police/anyone else and if so, to
whom.
2.6.6. Size up all witnesses you interview for strengths and weaknesses (Form 16,
WITNESS GUIDE)
2.6.7. Thank all persons you interview, regardless of how badly you think they have treated
you.
2.7. Examine every document with care and clear up any alternation or suspicious element
2.8. Get copies of all documents referred to in the documents you have.
2.9. See checklist –
2.9.1. Checklist 2, OUTLINE OF EVIDENCE RULES
2.9.2. Checklist 3, USING CIRCUMSTANTIAL EVIDENCE

3. Research the Law

3.1. Citing appropriate authorities, list all elements of:
3.1.1. Possible cause of action/crime/defenses
3.1.2. Recoverable damages
3.2. Settle upon both theory and image of the case (Form 6, THEORY)
3.2.1. Theory of liability/defense
3.2.2. Theory of damages
3.2.3. Image of case – Factual elements that appeal to the innate sense of justice of the Court.
3.3. Consider problems of:
3.3.1. Jurisdiction over—
3.3.1.1. Person
3.3.1.2. Property
3.3.1.3. Subject-matter
3.3.2. Venue
3.3.3. Parties – Capacity/real party in interest
3.3.4. Joinder of –
3.3.4.1. Parties
 3.3.4.2. Causes of action/crimes
3.3.5. Res judicata
3.3.6. Statute of limitations
3.3.7. Statute of Frauds
3.3.8. Estoppel –
3.3.8.1. By deed
3.3.8.2. In pais
3.3.9. Extinguishment of cause of action/criminal liability/criminal action by –
3.3.9.1. Payment/service of sentence
3.3.9.2. Release/waiver
3.3.9.3. Abandonment/laches
3.3.10. Compliance with conditions precedent
3.3.10.1. Exhaustion of administration remedies
3.3.10.2. Submission to arbitration
3.3.10.3. Earnest efforts to compromise in suit between members of family.
3.3.10.4. Notice/demand required
3.3.10.5. By law
3.3.10.6. By contract
3.4. Brief anticipated –
3.4.1. Objections to evidence
3.4.1.1. Your evidence
3.4.1.2. Your opponent’s evidence
3.4.2. Procedural issues

4. Determine need for provisional remedies

4.1. Notice of lis pendens
4.2. Attachment
4.3. Preliminary injunction/Temporary Restraining Order
4.4. Receiver
4.5. Replevin
4.6. Support pendente lite

5. Draft and file pleadings/motions

6. Arrange files for pre-trial and trial
6.1. Pleadings
6.1.1. After pleadings are closed, segregate or make copies and file them in your trial folder
(or trial book), properly labeled and tabbed.
6.1.2. Analyze pleadings, noting on margin of each paragraph whether admitted or denied (if
admitted in part, underline parts denied), and pertinent paragraphs of the respective
pleadings.
6.2. Witness Statements/Despositions
6.2.1. Arrange alphabetically or in order in which you expect to call the witnesses.
6.2.2. Tab each statement/deposition
6.2.3. Underline each exhibit mentioned by and each important answer of the witness.
6.2.4. Prepare WITNESS GUIDE (Form 16).
6.2.5. Fill in LIST OF WITNESSES (Form 15).
6.3. Exhibits
 6.3.1. Place all originals of exhibits in separate folder/envelope, in the order in which you
expect to mark and offer them.
6.3.2. Make copies for your files.
6.3.3. Underline all key statements in copies of exhibits.
6.3.4. Fill in LIST OF EXHIBITS (Form 19).
6.4. Trial Brief
6.4.1. See Nos. 15 and 19.7 post
6.4.2. Consider filing trial brief and pleadings in one folder affixed to opposite covers
6.4.3. Consider filing copies of exhibits and statements/depositions in one folder also on
opposite covers.
6.4.4. Open separate files for statements/depositions of adverse party’s witnesses and adverse
exhibits.
7. Prepare Statement of Issues
7.1. Of facts
7.2. Of law
7.2.1. Substantive Law
7.2.2. Law of Evidence
7.2.3. Procedural Law
8. Prepare FACT CHART (Form 13)
8.1. List ultimate facts. Leave enough space between ultimate facts for evidentiary circumstances
and corroborative facts.
8.2. Below each ultimate fact, list evidentiary circumstances and corroborative facts
8.3. Opposite ultimate, evidentiary and corroborative facts, list names of witnesses and exhibits
each will identify.
9. Prepare LIST OF WITNESSES (Form 15) and WITNESS GUIDE (Form 16)
9.1. Name, address, age, and other personal circumstances
9.2. Friendly, neutral, or hostile?
9.3. Facts to be elicited from witness, if ours; or notes for cross-examination, if adverse; possible
objections to admissibility of testimony.
9.4. Exhibits to be identified by the witness
9.5. Any peculiarities of the witness (e.g. forgetful, talkative, etc.) and cautions to be given to the
witness in final preparation
10. Prepare EXHIBIT GUIDE (Form 18) and LIST OF EXHIBITS (Form 19) for plaintiff and
for defendant:
10.1. Brief description of each exhibit
10.2. Purpose/s it is being offered
10.3. Who will identify/authenticate it
10.4. Include space for exhibit number; whether admitted or rejected; who offered it and
for what purpose/s.
11. Determine Advisability of Discovery
11.1. Methods of discovery
11.1.1. Oral deposition
11.1.2. Written deposition
11.1.3. Interrogatories to parties
11.1.4. Production, inspection, entry
11.1.5. Request for Admission
11.1.6. Physical/Mental Examination
11.1.7. Bill of Particulars
 11.1.8. Request for More Definitive Statement of Claim or Answer
11.2. Factors to consider
11.2.1. Consequences of non-availment of discovery
11.2.1.1. Interrogatories to parties – In civil cases, a party not served with written
interrogatories “may not be compelled by the adverse party to give testimony in
open court, or… a deposition pending appeal” unless the court allows it for good
cause shown and to prevent the failure of justice. (Sec. 6, Rule 25)
11.2.1.2. Request for Admission – In civil cases, a party who fails to file and serve a
request for admission on the adverse party of material and relevant facts in issue
which are, or ought to be, within the personal knowledge of the latter, shall not be
permitted to present evidence on such facts.
11.2.2. Importance of need to know facts
11.2.3. Funds available for discovery
11.2.4. Which method is most efficacious and expeditious

12. Determine Feasibility of:

12.1. Judgment on Pleadings
12.2. Summary judgment
12.3. Settling of case

13. Prepare DISCOVERY (Form 11) and PRE-TRIAL PLAN (Form 11-A)
13.1. Objectives to seek at pre-trial
13.1.1. Compromise
13.1.1.1. Opening demand/offer
13.1.1.2. Acceptable demand/offer
13.1.2. Simplify issues
13.1.3. Amendments
13.1.4. Stipulations/admissions
13.1.4.1. Of facts
13.1.4.2. Of exhibits
13.1.4.3. Limiting the number of witnesses
13.1.5. Reference to
13.1.5.1. Commissioner
13.1.5.2. Arbitration
13.1.6. Court mandated mediation
13.1.6.1. Prepare strategy for mediation
13.1.6.2. Explain the process to your client, where it may lead to, and what to expect
from it.
13.1.6.3. Other matters
13.1.7. Other matters
13.1.7.1. Judge’s disqualification
13.1.7.2. Order of trial
13.1.7.3. Consolidation or Severance
13.1.7.4. Trial with Assessors
13.2. Prepare and file pre-trial brief
13.3. Steps to take to attain objective
13.4. Probably objectives of adverse party
13.5. How to counter these objectives
 13.6. What to guard against during the pre-trial

14. Before Pre-Trial

14.1. Review THINGS TO DO-FACTS (Form 2) and THINGS TO DO-LAW (Form
3) to determine if ready.
14.2. Review files and check arrangement (see. No. 6, ante)

15. Assemble Trial Brief, properly tabbed

15.1. Statement of Issues (see PRE-TRIAL PLAN, Form 11)
15.2. PRE-TRIAL PLAN (Form 11) and DISCOVERY (Form 11-A)
15.3. THINGS TO DO-FACTS (Form 2)
15.4. THINGS TO DO-LAW (Form 3)
15.5. LAW NOTES (Form 9)
15.6. LIST OF WITNESSES (Form 15)
15.7. WITNESS GUIDES (Form 16)
15.8. FACT CHARTS (Form 13)
15.9. Blank sheets for notes

16. After Pre-Trial, analyze pre-trial orders

16.1. Determine need and calendar deadline for motion to reconsider or to amend
16.2. Modify statement of issues, FACT CHARTS (Form 13), LIST OF WITNESSES
(Form 15) and LIST OF EXHIBITS (Form 19).
16.3. List additional law issues and fact issues to be briefed or investigated.
17. Before Trial, go over Trial Brief, as modified after pre-trial order, and determine if:
17.1. Evidence is available to prove remaining issues of fact.
17.2. All anticipated issues of law have been adequately briefed
17.3. Prepare Trial Plan/Order of Proof:
17.3.1. Chronological
17.3.2. By themes or issues
17.3.3. Begin and end each hearing with strong witnesses.
17.4. Prepare anticipated trial motions.

18. Serve Motions, Notices, Subpoenas

18.1. Motion to Disqualify Judge
18.2. Motion for Severance or Consolidation
18.3. Motion to Strike Out/Expunge Information from the Record
18.4. Motion to Determine Probably Cause
18.5. Motion to Suppress/Exclude Evidence Illegally Obtained
18.6. Motion to Quash Search Warrant
18.7. Notice to Produce
18.8. Subpoena ad testificandum
18.9. Subpoena duces tecum

19. Final Review before Trial

19.1. Pleadings – are they properly:
19.1.1. Marked
19.1.2. Arranged from easy access
19.2. Witneses
 19.2.1. If your witnesses have executed prior statements, have you gone over those
statements with them?
19.2.2. Are they thoroughly familiar with the exhibits they will identify?
19.2.3. Have you cross-examined your witnesses so as to spot and correct their weaknesses?
19.2.4. Have you outlined the testimony of each witness (WITNESS GUIDE, Form 16)
19.2.5. Will they be available for the trial?
19.2.6. Have you served subpoenas?
19.2.7. Have you given them proper instructions re:
19.2.7.1. Going to scene of accident/crime
19.2.7.2. Going to court to familiarize themselves with court procedure
19.2.7.3. Dressing properly
19.2.7.4. Avoiding laughing or talking about case in halls, rest rooms, etc.
19.2.7.5. Listening carefully to questions and understanding them before answering
19.2.7.6. Answering truthfully, without thinking of effects of answer, but visualizing
what actually happened
19.2.7.7. Answering positively, directly, clearly, and politely
19.2.7.8. Avoiding trick questions
19.2.7.9. “That is all I can remember now.”
19.2.7.10. Not volunteering information
19.2.7.11. Not to be surprised about receiving a subpoena from the court
19.2.7.12. Not to argue with the lawyer or judge
19.2.7.13. Not exaggerating or being cocky or smart
19.2.7.14. Not losing temper
19.3. Experts
19.3.1. Have you read enough material to familiarize yourself with the specialized subject/s
involved in your case?
19.3.2. Have you prepared your hypothetical question/s and reviewed them with your expert?
19.3.3. Have you met with prospective experts and discussed contrary views in textbooks,
and how to overcome them?
19.3.4. Is the testimony of an expert really necessary?
19.3.4.1. Consider how expert testimony can help your case and also how not having it
can harm your case.
19.3.4.2. Consider cost, not only of the expert’s professional fees but also the cost of
any tests, analysis, laboratory procedures, etc., and the cost of presenting visual
aids at the trial.
19.4. Exhibits:
19.4.1. Are you ready with witnesses to identify every exhibit?
19.4.2. Are the certifications on certified copies sufficient?
19.4.3. Are your documents the best evidence? If not, are you ready to prove: (1) execution,
(2) loss of all originals, (3) authenticity of copy?
19.4.4. Are your exhibits “electronic documents” covered by the Rules on Electronic
Evidence?
19.4.4.1. Different rule for authentication
19.4.4.2. Different Best Evidence Rule
19.4.4.3. Functional Equivalence Rule
19.4.5. Are there alterations in any document?
19.4.6. Are you documents in an official language?
19.4.7. Are your exhibits complete and arranged in the anticipated order you will mark them?
 19.4.8. Do you have copies of all exhibits?
19.5. Adverse Case
19.5.1. Have you tried to anticipate the evidence that adverse party will offer?
19.5.2. Have you planned the cross-examination of his key witnesses?
19.5.3. Are you ready to support with authorities, your objections to his anticipated exhibits?
19.6. The Trial Judge
19.6.1. Do you know the peculiarities, preferences and manner of conducting trial of the trial
judge
19.6.2. If not –
19.6.2.1. Check with your colleagues
19.6.2.2. Visit his courthouse and watch him conduct a trial
19.6.2.3. Talk to his clerks and stenographers
19.6.3. Take these personal traits into account in your trial plan and manner of presenting
evidence
19.7. Assemble your Trial Book
19.7.1. Trial brief as modified, containing:
19.7.1.1. Trial plan
19.7.1.2. Pre-trial order
19.7.1.3. Other papers per no. 15, ante.
19.7.2. Trial Manual, containing:
19.7.2.1. Citations, quotations on recurring problems of evidence and procedure.
19.7.2.2. Samples of laying foundation for certain kinds of exhibits.
19.7.2.3. Sample questions to prove certain facts (e.g. qualifying experts, common
reputation, dying declaration, refreshing recollection).
19.7.2.4. Review contents of Trial Book to make sure it is complete and up-to-date,
particularly:
19.7.2.4.1. Have you reviewed recent decisions that may affect your case?
19.7.2.4.2. Is your statement of issues accurate and clear?
19.7.2.4.3. Is every material fact on your FACT CHART (Form 13) supported
by admissible and credible evidence
19.7.2.4.4. Is your Trial Plan practical and effective in view of availability of
witnesses and peculiarities of the trial judge?
19.7.2.4.5. Are your legal memorandum on anticipated objections ready and up-
to-date?

20. Trial
20.1. Prepare the Trial Book, files and other documents you will take to court at least one
day before the trial.
20.2. Bearing in mind the theory and image of your case, take note of how each major
witness, exhibit and/or other important evidence will advance your theory and image.
20.3. Review the major evidentiary objections and doctrines that you and/or your opponent
may raise at the trial.