Six Steps to Building Your Exhibit List and Preparing Exhibits
Article by Jennifer Anderson
A jury trial is very much like live theater. In the courtroom, however, the judge and jury are the audience and the lawyers/witnesses are the actors. And, just like in a live theater, the audience will judge the actors from start to finish.
This is one of many reasons why a seamless presentation of evidence is critical in a trial. If the lawyers are fumbling and bumbling every time they try to introduce an exhibit, the “audience” will surely take note. And, if this happens repeatedly, it can have a devastatingly negative impact on the client’s case.
Proper preparation and organization of exhibits are critical to the overall outcome of a trial. Fortunately, this is one area of trial preparation where paralegals and junior associates can have a great impact on the case. If exhibits and exhibit lists are prepared with care, the trial lawyers can present evidence with ease and confidence.
Here are some core tips for building user-friendly exhibit lists and exhibits for trial.
#1: Know the rules
Any seasoned litigation professional understands this is the first step for handling just about anything that happens in a courtroom. The preparation of your exhibits and exhibit list are no exception. Before you begin, you need to check the applicable laws, rules, local rules, and standing orders pertaining to this procedure.
In eFiling courts, your exhibits still need to be bookmarked, but the steps are slightly different as you prepare your PDF filing. To learn more read our blog on “How to add electronic bookmarks to a PDF.”
Fortunately, many courts (like state courts within California) publish guidelines for exhibits with links to relevant rules and procedures. While these lists are a great starting place for your research, they should not supplant a thorough individual examination of the rules that apply to your specific venue.
#2: Have enough copies on hand for trial
As you prepare your exhibit list for trial, you will no doubt be simultaneously preparing the actual exhibits for presentation. Much has been written about this process. It is important, however, not to forget the basics. For example, your exhibit binder should contain at least three copies of each exhibit: (1) an original that will be entered into evidence, (2) a copy for opposing counsel, and (3) a copy for your own use. This sounds simplistic but if you forget this basic step and need to stop the trial to make copies, your team may suffer from the perception that you were ill-prepared to try the case.
#3: Make your exhibits easy for use in court
Your exhibit list will, of course, include numbered exhibits. Just because you’ve numbered something in a certain order pre-trial does not mean that is how those exhibits will be entered into evidence at trial. You can help out court staff by placing blank “Exhibit #” stickers on each item your side intends to introduce. This way, exhibits are quickly and efficiently tracked by the court and the parties throughout the trial. Perhaps more importantly, court staff will not have to stop the trial to apply their own exhibit markings.
#4: Make sure your internal exhibit list is user-friendly
As noted in tip #1, you absolutely must follow the laws and rules in preparing the exhibit list that you present to the court and opposing counsel. Note, however, that your internal exhibit list may vary slightly from the formal list so that it is easier for the attorneys to use at trial. The easiest way to do this is to prepare an Excel spreadsheet that can be searched by date, relevant witness, document number, or description. You should also be in communication with the actual trial attorneys to see exactly how they want the internal list organized.
#5: Think about objections to each item on the list
In a perfect world, your team could introduce every exhibit into evidence at trial. In reality, however, your opponents will levy all sorts of objections to the evidence you seek to introduce. If you want to make yourself invaluable to your team, try to expect those objections and do the research necessary to try to overcome the objections.
#6: Be prepared with respect to technology
Modern trials often include much more than documentary evidence. Your team may need to introduce videos, social media posts, pictures, or electronic renderings prepared by forensic experts. Some courts now mandate that even documents be presented in an electronic format. Once you understand your specific court’s technology capabilities and requirements, undertake a thorough analysis of how your team will use that technology at trial.
Moreover, you should take charge of ensuring that you and/or your team know precisely how to use that technology once the jurors have been seated. You should also find a way to note on your internal exhibit list exactly which type of technology each exhibit will require at trial so that attorneys aren’t left fumbling at the exact moment they need to introduce that evidence.
There are millions of things to do as your trial date approaches. You will be wise to make your exhibit list and exhibit preparation a top priority during that time.