The Trial Practice Tips Blog

At Trial: When to Object, When to Sit on Your Hands

From At Counsel Table: "To Object Or Not To Object," by Alex Craigie--

It’s interesting that our law school evidence classes teach us the mechanics of the rules of evidence, however, (if my memory serves) we’re not given much guidance on how to decide whether, assuming a question is objectionable, it is a good idea to object during trial. It is true that the rules of evidence have application outside the context of a jury trial, and in fact it can be years before a lawyer actually has to make the decision whether to raise an objection at trial. But the question whether it makes strategic sense to object in the presence of the jury merits some analysis.

I consulted Professor McElhaney and, as expected, he had wisdom to impart. In Litigation, he articulates rules for when to object. I’ll list the first five here.

Find the five rules at the full post.

Make the Most of Trial Graphics

Here's a useful article from Melvin Dubinsky: "Making the Most of Graphics for Trial," which is republished at his website. You'll find tips about--

• Photos and charts
• Videos ("moving graphics")
• Powerpoint

Dubinsky's points about using graphics for maximum impact at trial are illustrated with many of his real-life trial anecdotes.

How to Present Evidence at Civil Trials

In his "Letter to young lawyers—Basic tips and presentation of evidence," Judge Kenneth Wright, Jr., lists foundation questions for several types of evidence:

• photographs;
• tangible objects;
• diagrams;
• sound and video recordings; and
• illustrations.

Judge Wright also covers "mistakes that, at one point or another, have tripped up some attorneys."

The New Illinois Rules of Evidence, Pocket-Sized

The Illinois State Bar Association has published a pocket-sized edition of the new Illinois Rules of Evidence, which take effect January 1.

Cost: Either $12.74 or $17.74, depending on your status as a member.

Getting Documents into Evidence at Trial: Basic Procedural Steps

In introducing documents at trial, there are four important hurdles to overcome--that is, four important questions to answer.

• Is the document authentic?
• Is the document relevant?
• Does the document violate the hearsay rule?
• Does the document violate the best-evidence rule?

When these questions are answered, you have "laid a foundation" for the introduction of the document into evidence. These questions are generally answered by witness testimony.

If the document has not been pre-marked, a lawyer begins the process by saying something like, "Your Honor, may I have this document marked as Exhibit 1 for identification?" The "for identification" tag indicates that the document has not yet been admitted into evidence. It should be used until the judge has ruled on admissibility.

Next, the lawyer will ask questions of the witness (or witnesses) that will get the document over the four hurdles mentioned above. These questions and answers will differ according to the type and content of the document. There are many resources available that describe the substantive requirements for different types of documents.

After laying the proper foundation, the lawyer will offer the exhibit into evidence. The opposing lawyer may interpose objections at this point, after which the judge will rule on the document's admissibility.

"Immunize" Your Demonstratives Before Using Them

You don't want to slow down a trial by being met with objections to your demonstrative exhibits.  Here is how to "immunize" your demonstrative exhibits before using them in direct examination:

• Disclose your demonstratives to opposing counsel before trial;
• If you are met with objections, file a motion in limine seeking the introduction of the exhibit you want to use;
• If you do not want to give your opponent advance notice or do not have your exhibit ready before trial, maintain the goal of disclosing the exhibit at some point before its use during direct examination, outside the hearing of the jury.

Such "immunization" of demonstrative exhibits will insure that you can keep the trial moving without sidebars or breaks requiring the jury to leave the courtroom.

Source: "Add Dynamics to Direct Examinations," by Thomas J. Vesper (Trial 9/03)

Related post: "Use Demonstrative Exhibits in Opening Statements."

Create Better Demonstrative Exhibits by Making Them Memorable

The key to a good demonstrative aid is making it memorable for the jury--especially since the jury will be unlikely to take the exhibit into the deliberation room at the end of trial.

Try to involve as many senses as possible: seeing, hearing, even touch.

Example: In a case involving a plaintiff crushed by a beam, have the expert drop the beam so that jurors will get an understanding of the beam's size, weight, and danger.

For written exhibits, use pictures as well as words. Pictures are easier to remember than words.

Pictures alone without written words--supplemented only by the spoken words of direct testimony--are even better.

Source: "Add Dynamics to Direct Examinations," by Thomas J. Vesper (Trial 9/03)

Related posts:

1. "The Use of Demonstrative Evidence in Civil Cases: A Brief History."

2. "An Example of the Use of Demonstrative Evidence in a Modern Case."

The New Rule 502 and Waiver of Privilege: A Podcast to Keep You Informed

The weekly law-related podcast Coast to Coast has done a podcast about new Federal Rule 502, which establishes a new rule of evidence and is expected to reduce litigation costs--

Every lawyer knows the costs of discovery can escalate. Last month on September 19, 2008, President Bush signed Senate Bill 2450 into law, which establishes Federal Rule of Evidence 502 and is effective immediately. This law creates a new rule of evidence limiting certain attorney-client privilege and work product waivers. Law.com bloggers and co-hosts, J. Craig Williams and Bob Ambrogi, welcome Attorney Robert D. Owen, a partner in Fulbright & Jaworski L.L.P., to take a look at New Federal Rule of Evidence 502 and see how this new rule will affect litigation and litigation costs as well as clients.

There's more about Rule 502 in this article from the National Law Journal: "New Rule 502 to Protect Against Privilege Waiver," by Alvin F. Lindsay. Meanwhile, if you are new to the idea of getting legal information by way of podcasts, take a look at this article by Coast-to-Coast's Robert Ambrogi: "Ten Legal Podcasts to Keep You Informed."

Related post: "Podcasts for Lawyers."

The Top Ten Federal Rules of Evidence, Part 2

As promised in my last post, here's the rest of the Top-10 list of federal rules of evidence, according to lawyer Stephen Saltzburg--

• FRE 404, Character Evidence. The exceptions to this rule about character evidence should be committed to memory.
• FRE 607, Impeachment. According to the common law, you can't impeach your own witness. Rule 607 changes this.
• FRE 702, Expert Testimony. According to Rule 702, the trial judge plays an important role in deciding whether expert testimony is proper.
• FRE 801, Hearsay Definitions. Rule 801 contains a number of definitions that help to determine what is, and what isn't, hearsay.
• FRE 806 and 602, Tied. Rules 806 allows you to impeach a hearsay declarant, while Rule 602's requirement of personal knowledge can be used to challenge a hearsay declaration.

Source: Saltzburg, Stephen, "The Top Ten List: Rules Lawyers Must Know," Litigation, Fall 1995, 6-10.

The Top Ten Federal Rules of Evidence, Part 1

Want to ramp up the speed at which you make objections at federal trials? According to lawyer Stephen Saltzburg, there are ten federal rules of evidence that you should make sure you know backwards and forwards. Here are the first five--

• FRE 401, Relevant Evidence. This rules gives a judge "tremendous discretion" in deciding what evidence is relevant.
• FRE 402, Relevant v. Irrelevant Evidence. Rule 402 gives a judge additional grounds to let evidence in--it makes all relevant evidence admissible, even if no other rule says so expressly.
  
• FRE 403, Exclusion of Relevant Evidence. By means of Rule 403, a judge can exclude relevant evidence even if not excluded by some other rule. According to Saltzburg, the rule "can knock out the prejudicial, the confusing, the misleading, the cumulative, the time-consuming, even the 'unnecessary.'"
• FRE 901, Authentication or Identification. Only minimal evidence is required to prove that "the matter in question is what its proponent claims." Lawyers who understand Rule 901 know that there are multiple ways to authenticate evidence.
• FRE 611, Order of Questioning. Rule 611 gives a judge broad discretion to control the trial. Using this rule, the judge "may impose time limits on parties, permit witnesses to testify out of turn, and take virtually any step that he concludes will avoid prejudice, waste of time, and cumulative evidence."

Five additional rules will be featured in my next post. Source: Saltzburg, Stephen, "The Top Ten List: Rules Lawyers Must Know," Litigation, Fall 1995, 6-10.