Podcast - Direct Examination: Offering Exhibits

Offering an exhibit is a critical and dramatic moment in many trials. It should not be random or spontaneous. Rather, it should be part of a careful, thoughtful, and well-planned process. That process includes the following steps:

1. Selection.
2. Research.
3. Timing.
4. Logistics.
5. Publishing.
6. Explaining.

Let's take them each one at a time.

1. Selection. It's an often observed irony that as we become a more paperless society, litigation has become overwhelmed with documents. Every communication, every rough draft, every thought or rumination is preserved electronically in emails, in text messages, in social media and becomes a document in discovery. Those documents not only tend to overwhelm the lawyers, they also tend to cloud their judgment as to what is actually necessary. Just because you have a document doesn't mean you need that document at trial. Prune your exhibits carefully. Pruning is a wrong word. Take a meat axe to them or your exhibits will become obstacles not aids in your presentation.

2. Research for every single exhibit you want to offer, think through why and how it's admissible. Anticipate what objections it may draw and consider how you'll respond. Your conclusions should be available to you at your fingertips and in your trial notebook and witness outline. Maybe all you need is a citation to the rule. Maybe you need copies of a case handy. If the potential challenge is more substantial. Maybe you need to have a brief memorandum ready for the judge, or you need to file a motion in limine in advance. On your feet in court is not the ideal place to be thinking about these issues for the first time.

3. Timing. Which witness is the best one to introduce and explain the exhibit? How and when in that person's testimony should you bring it up? Too often lawyers are in a hurry to get to the exhibit. Slow down. Most trials are about the testimony, not the documents. Don't be in such a hurry to jump to the document that you don't fully develop the testimony first. Many, maybe even most, exhibits are best used to confirm or corroborate the substance of the testimony that's just been given. Not to provide it in the first instance.

4. Logistics. You have the exhibit or whatever it is in your hand. You're standing next to the document camera, but the witness is all the way across the room. How do you introduce and use the document quickly and smoothly in the sometimes awkward geography of the courtroom? Use the acronym MOPS to describe the different stages of the process. MOPS, M.O.P.S. Mark. Opposing counsel. Permission. Show.

M. First mark. With rare exceptions, the exhibit should be pre marked. You should know long in advance what system your judge uses for marking letters, numbers, whatever, and you should use it to mark the exhibit for identification. Then refer to it that way to avoid confusion. Keep pronouns like this or that to a minimum.

O. Opposing counsel. If you haven't agreed on admissibility beforehand, show the exhibit to opposing counsel. I view this as an important courtesy that will comfort both the judge and the opponent, and make you look polite and respectful.

P. Permission. I believe you should always ask the judge for permission to approach the witness, unless he or she specifically tells you otherwise. Yes, it's a trivial matter, but better safe than sorry. The judge controls the courtroom and different judges exercise that control differently. Besides, why not ask? It's the easy and respectful thing to do. And what's the worst that could happen? The judge either says no, please hand it to the bailiff or the clerk, or the judge blesses you with yes, Mr. Small, or maybe even yes, Mr. Small, you don't need to ask every time. Thank you, judge, for blessing me in front of the jury.

Finally, S. Show. Show the document to the witness and get the witness to authenticate and describe it, or whatever else is required for admission. And then offer it. By the way, don't forget to offer it. Put it in your notes. The big word offer. And don't forget to do it right then and there.

5. The next issue in the process is publishing. Once the document is in, show it to the jury. If it matters enough to be an exhibit at the trial, you need to let the jurors see it. Don't just flash the document in front of the witness and move on. Few things are more frustrating to jurors than a lawyer waving exhibits around in front of a witness, or even in front of them, and then moving on without giving them the time to really see it and understand it. Pass the exhibit around if you can. Blow it up, put it on a screen if there is one. Whatever works best for that exhibit in that courtroom, but show it. Same thing if it's not a document. Plan ahead. How are you going to show it to the jury and think about what are the pros and cons, the risks and rewards of publishing that particular exhibit.

In the book that the ABA just published my trial stories talk about the Cammarata case and he drugs and multiple murder racketeering case I prosecuted in Texas many years ago, and we had a whole table set up of the many different ugly looking weapons that we had confiscated from this group. And I had the marshals assure everyone that all the weapons had been checked. None of them had ammunition. They had been spiked or otherwise made secure. And in the middle of trial, I was questioning a witness, and I asked them about the use of a particular weapon. And I went to the table and I picked up that weapon. It was an automatic, I think it was an AK 47. And without thinking, I turned to the jury with the weapon up, pointing at the jury, and everyone cringed. The jury martial jumped forward and it was a big hubbub, even though we had already well established that there was no risk from the weapon. Make sure you plan ahead in publishing any exhibit, whether it's a document or an automatic weapon.

6. Next is explaining. The witness has talked about the exhibit. You've shown it to the witness. You've had it admitted. You've shown it to the jury. Now link it to your case orally and visually, by summarizing and explaining where and how does it fit in a timeline, a workflow, a financial chart or other summary graphics and demonstrative tools. You worked hard to get that exhibit admitted. Now do something with it. Bring it to life. Make it mean something. Every case is different, but the careful planning process for using an exhibit is pretty similar in all cases. Exhibits can be powerful tools to help the case, but an exhibit that's just thrown into the record is a lost opportunity and a poor reflection on you as a trial lawyer. Don't do it. Follow the process. Make exhibits. Talk. Make exhibits mean something.