The Trial Practice Tips Weblog

Emphasizing the Important Exhibits for the Jury

A lawyer I frequently practice with offers this tip. In trials with hundreds of exhibits, the jury will understandably have a difficult time sorting them out during deliberation and might even ignore them entirely. If you want to make sure they see the ones you consider most important, gather these into a stack and hold them up during your closing arguments. Tell the jury something like this: "Here are the the exhibit we think are the most important. I'm going to set them here on the rail. If you want to look at them later, ask for the stack of exhibits I set on the rail."

If you know the trial judge is going to send all the exhibits with the jury to the deliberation room, modify the procedure accordingly.

How to Introduce Exhibits at Trial

The groundwork for the use of exhibits at trial should happen long before the trial begins. For all of your trial exhibits, think about authentication, the hearsay rule, and the best evidence rule. Try to establish the foundational elements required for your exhibits before trial by stipulation, with the use of requests for admission, or during evidence depositions. Since these foundational elements depend on the nature of the exhibit and what you are using it for, you'll  have to do further research on what the precise elements for each exhibit actually are.

Once you're at trial, there is no strict requirement that documents, if otherwise admissible, must be sponsored by a particular witness. As a practical matter, however, your documents will almost always come in through your trial witnesses. After the exhibit is marked and a copy has been provided to the judge and the opposing counsel, proceed like this:

Mr. Witness, I'm handing you what's been marked Exhibit 10 for identification. Have you seen this before?

At this point, if the foundational elements have not been stipulated to by your opponent, you will ask the witness questions to establish the foundation, then say--

The Defendant offers Exhibit 10.

The judge will ask if there are any objections. If so, you can state your position and the judge make a ruling. If not, the judge will admit the exhibit. After that, you can use it in further questioning.

Related posts:

• Documentary Foundations: A Cheat Sheet
• Police Accident Reports and the Business Records Rule
• Demonstrative Evidence: Some Tips
• Foundational Questions for Photographs
• Proving Up Medical Bills #1
• Proving Up Medical Bills #2
• Proving Up Medical Bills #3

Related web resource: "Trial Basic: Using Exhibits," from the Litigation Section of the Utah State Bar.

Free Medical Diagrams

Medcyclopaedia is free for non-commercial uses and contains 10,000 images:

The Standard Edition of Medcyclopaedia™ includes all text and images from The Encyclopaedia of Medical Imaging's eight book volumes: Physics, Techniques and Procedures, Normal Anatomy, Musculoskeletal and Soft Tissue Imaging, Gastrointestinal and Urogenital Imaging, Chest and Cardiovascular Imaging, Neuroradiology and Head and Neck Imaging, and Paediatric Imaging.

You are free to copy text and images for non-commercial use in lectures, articles, etc. provided that you refer to the source.

Link from Insurance Defense Blog.

How to Prepare--or Object to--Day-in-the-Life Videos

The most recent pronouncement by the Illinois courts on day-in-the-life videos is Velarde v. Illinois Central R.R., No. 1-02-1859 (1st Dist., November 8, 2004). The case followed Cisarik v. Palos Community Hospital, 144 Ill. 2d 339, 579 N.E.2d 873 (1991) in holding that a day-in-the-life video was demonstrative evidence that was properly provided to defense counsel at the earliest opportunity, which happened to be just before trial. According to the court, “since the purpose of the video was to illustrate the evidence regarding [the injured party's] life at the time of trial, it would make little sense to record her activities months in advance.”

The court also entertained a defense argument that the video's probative value was outweighed by its possible prejudice. This seems an obvious way for defense lawyers to argue that a jury should not be allowed to view a day-in-the-life video. Though the court rejected the argument, its language contains a lesson for both the plaintiff and the defense:

Throughout the film, [the injured party] appears anxious and easily confused and she is frequently tearful. In our opinion, however, the film does not dwell on her discomfort. Additionally, the film seems to illustrate the impact of head trauma and possibly resulting medication on [the injured party's] life, consistent with witness testimony indicating, as examples, that [she] took medication prescribed by her neurologist, had difficulty sustaining attention, needed someone to "cue her in" and give reminders, could not think flexibly or find solutions to problems, could not manage utensils, and was frustrated, fearful, anxious and extremely depressed.”  . . . “We conclude it is most improbable that the jury was unduly influenced by a film which shows [the injured party] engaging in commonplace activities in a manner that conformed with trial testimony about her injuries and disabilities.”

The lesson seems to be a day-in-the-life videos are least objectionable if they serve to visually depict damage testimony from experts and other witnesses.

Foundational Questions for Photographs

To lay the foundation for admission for a photograph into evidence, ask questions such as these:

Q.  Mr. Witness, I'm handing you a photograph that's been marked Exhibit 2 for identification.  What is depicted in that photograph?

A.  A stoplight at the intersection of 4th and Pine.

Q.  Is that photograph a fair and accurate representation of the stoplight at 4th and Pine as it existed on the day of the collision?

A.  Yes, it is.

At this point, you can move for admission of the photograph into evidence. 

What if something about the scene depicted in the photograph has changed since the date of the collision?  In the example above, for example, what if the collision occurred on a snowy day, but the photograph was taken on a day without snow?

If you are using the photograph not to demonstrate the type of ground cover, but the position of the stoplight, ask the second question like this: "With the exception of absence of snow from the ground, is the photograph marked as Exhibit 2 for identification a fair and accurate representation of the intersection at 4th and Pine on the date of the collision?"

Source for post idea: James W. Jeans, Trial Advocacy p. 11.6 (West 1975).

More Tips for Demonstrative Evidence

You'll find them here: "Demonstrative Evidence," by Ervin Gonzalez.

Gonzalez notes that demonstrative evidence includes "models, medical devices, diagrams, photographs, sketches, and objects at issue, as well as a variety of other items."  Although Gonzalez cites Florida law, Illinois lawyers will be able to use the general information anyway.

Documentary Foundations: A Cheat Sheet

There are entire books devoted to describing the proper foundation for the various sorts of evidence you might need to introduce at trial.  Ervin Gonzalez has prepared a list of the most commonly-encountered sorts of foundational problems, with a short explanation of what to do in each situation.  Titled "Trial Foundations," it deals with the following issues:

• Business records
  
• Tape recordings
  
• Photographs
  
• Letters
  
• Diagrams
  
• Refreshing recollection
  
• Handwriting

Finally, there is a section on what to do if you encounter a new foundational issue at trial and get stuck. 

Police Accident Reports and the Business Records Rule

Illinois Supreme Court Rule 236, titled "Admission of Business Records in Evidence," sets forth the foundation that must be established to use business records as substantive evidence at trial. Subsection (b), however, specifically states that police reports are not admissible as business records--

Although police accident reports may otherwise be admissible in evidence under the law, subsection (a) of this rule does not allow such writings to be admitted as a record or memorandum made in the regular course of business.

As Rule 236(b) makes clear, while you cannot escape the effect of the hearsay rule by establishing a police report as a business record, there might be other ways to get the evidence admitted. For example, diagrams are not rendered inadmissible just because they are part of a police report. By laying the foundation necessary for demonstrative evidence, you might be able to use the diagram apart from the report. See, e.g. , Hargrove v. Neuner, 485 N.E.2d 2 1355 (5th Dist. 1985).

Make Your Own Demonstrative Exhibits

That's the advice offered by Ben Riley in his article "Use of Demonstrative Evidence at Trial"--

We suggest using your law firm’s own resources . . . to produce computer graphics in-house. Not only will it cost much less than using an outside vendor, the results will be better because of the trial lawyer’s central role in the development process. And with the myriad of sophisticated software publishing programs now on the market, you can achieve amazing results in-house.

Though the 1997 article is slightly out of date, it contains a number of tips that will be useful to you if you want to try creating your own computer-generated charts, graphs and animations.

How to Think About Learned Treatises

By making use of learned treatises, you can add to your stable of experts highly-credentialed writers who will testify for you for free. As Henry G. Miller puts it in his book On Trial: Lessons from a Lifetime in the Courtroom, "You don't even have to take anybody to dinner."

Miller continues:

In some jurisdictions, the expert can try to frustrate the cross-examiner by refusing to concede the treatise is authoritative . . . Trot out the same ten books and the same meaningful looks.

"You don't admit the Einstein is an expert on the theory of relativity?"

"Did you know that Professor Gallen is Chair of the Department of Solar System Medicine at Harvard--Yale--Johns Hopkins--Mayo Clinic? You don't admit he's an authority?"

"You admit that you have Professor Galileo's book in your library? Isn't he an authority?"

"You admit you were taught by Isaac Newton at Princeton and you still deny he's an authority?"

"You say you are the only authority in your field?"

And so on.