Trial Tips: Better Presentation – Exhibits

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Over the course of 100+ trials, we have learned a lot about the mechanics of trial presentation and how simple things can go a long way towards projecting an image of competence to a jury. We know that lawyers devote hundreds of hours and thousands of dollars to getting ready for trial but can often come across as not being ready because their presentation and handling of exhibits is clumsy. Watching a witness hunt around for a notebook, fumble with papers or try to organize a myriad of documents on the stand and not be able to find the exhibit or the page is not always comfortable for juries.

This is just a small sampling of the problems we have seen in trial. Many of these problems are unforeseen and, with a little preparation, can be avoided. These issues go beyond exhibits, but it’s still a logical place to start.

 

Exhibits and Exhibit Notebooks: Documentary evidence is crucial in most cases but actually handling that evidence too infrequently involves a comedy (not really that funny) of errors and miscommunication.

1. 1. A common area of confusion is that both parties have white notebooks on the stand so when you ask the witness to look in Notebook 1, there are 2 notebook 1s. One trick I have been using for years is that when we print the inserts for notebook covers (we always use “view” binders that have a clear plastic cover that allows sheets to be inserted) we print the sheets with a colored background. That way counsel can instruct the witness to find the blue notebook #1 so the witness can know exactly what they need. This technique is making its way into trial management orders but it can’t hurt to be ahead of the game.
   2. While it is not always possible, if you are prepping witnesses, it might be worthwhile to show them a sample notebook so they know what they will be seeing in the courtroom. You want your witnesses to appear competent and being facile with the documents rather than having to explain to each and every witness how the notebooks work (we’ve seen it).
   3. One technique that I believe works well, when it can be done, is to reorganize the notebooks after each witness (notebooks can be scattered around the witness box) or at least over breaks or lunch. That way the next witness doesn’t have to engage in a hunt to find a notebook.
   4. It doesn’t really need to be said that most people, even experts, are nervous on the stand. If you can get make the first few minutes of the exam go smoothly, that will go a long way towards making them credible. We suggest that if you know which exhibit will they will need first (certainly with experts, having the notebooks opened to the CV makes getting them qualified easier), prior to them taking the stand, pull out the proper notebook and even consider having it open to the proper exhibit so they can find it right away.
   5. More and more trial management orders are requiring the discrete labeling of every trial exhibit page with the exhibit number or letter plus the page number. We have been doing this for years as it was really important that counsel be able to easily identify and communicate to us what page they needed us to pull up. Early on, lawyers would often attempt to describe the page they wanted projected which did not work well at all. The other advantage of trial labeling is that the record on appeal is much cleaner with respect to what pages are being discussed. We strongly recommend that you always trial label all exhibits.5a. Another advantage of trial labeling is that Courts are typically now only admitting specific pages that were discussed and/or displayed rather than entire exhibits. That requires some labor preparing the exhibits to go back the jury but makes the volume of materials more reasonable. If you are in a jurisdiction that requires the exhibits to be filed after trial, not having to file 1000s of pages but rather the 50 or 100 pages actually used can be a huge time saver.
   6. If you are using trial display in the courtroom and have the ability to show exhibits to the witness but not the jury, it can really enhance the presentation if you can have your witness prepared to authenticate off the screen and reduce the need for the notebooks. During witness prep, discuss how the system works and have them ready to “go with the flow.” We have seen counsel’s own witness refuse to authenticate from the screen which makes the lawyer look a bit unprepared.
   7. Notebook size: we typically recommend a 3” notebook that provides the proper mix of capacity but is still easy to use. It is worth noting that we have a couple of clients who want 2” notebooks because they feel for their own prep, the 2” notebooks are easier to handle. We discourage 4” notebooks unless you have one 1000 page exhibit. The bigger notebooks can be hard for older witnesses to handle and if you need to refer the witness to a page or exhibit towards the back of the notebook, it can be difficult to get all the pages flipped and to find the right page.

It is possible, even likely, that you have different preferences but we have seen way too many attorneys adversely impact the quality of their presentations of evidence as well as making themselves look less prepared than they are because the exhibit handling was inefficient. With a little bit of thought and planning, you can differentiate yourself from opposing counsel by not wasting the jury’s time.

 

Hope these help.
Jay