Before and during the trial, it is best to arrange the order of the exhibits on the counsel table in the same order or sequence that you will introduce them. This method will avoid your fumbling with exhibits and will give the favorable appearance that you are well organized with the presentation of the evidence in your case.
Try to use real evidence and visual aids whenever it is appropriate for the presentation of evidence. Real evidence and visual aids are very effective and a persuasive method of proving your case. Such evidence normally stimulates the overall interest and has greater retention impact for the juror with the evidence.
Real evidence can be used to depict an event which the witness has testified about or as affirmative testimony itself. The questions to resolve are: Should you use it; and how should you use it.
First, ask yourself whether the particular piece of evidence will add something to your case. If not, don’t use it. Second, consider whether or not the exhibit is simple and easy to understand. Again, if not, perhaps you shouldn’t use it. With any complicated evidence or, for that matter, in any phase of trial work, you will want to simplify it and make the evidence more understandable for the jury. Your constant goal as a trial lawyer should be to convey accurate information to the jury in the simplest direct form possible. Be creative; think about it before taking action.
As to any exhibit, the following procedure should always be followed to have the exhibit introduced into evidence (even if it is for illustrative purposes only):
- Have the court reporter MARK the exhibit for identification by the witness;
- Have the witness IDENTIFY the exhibit through appropriate foundation testimony;
- Allow opposing counsel the opportunity to inspect the exhibit for the purpose of making any objection to the exhibit;
- INTRODUCE the exhibit into evidence by giving the exhibit to the trial judge to inspect. You should make the following statement when doing so, “Your Honor, the plaintiff (defendant) offers into evidence plaintiff’s (defendant’s) exhibit (number or letter);”
- If the exhibit is received into evidence and is of the type that can be looked at and understood quickly, you might want to ask leave of the Court to allow the jurors to examine the exhibit. If such permission is granted and the jurors are examining the exhibit, do not continue with the witness’s testimony as the jurors might miss some evidence of vital importance to your case. Give them all a chance to examine and touch the exhibit; and
- If the trial judge does not allow the exhibit to be received into evidence and to preserve your record for purposes of appeal, you should make an offer of proof as to the inadmissible exhibit.
Your simple formula to remember for handling any exhibit is M.I.I. MARK IT. IDENTIFY IT. INTRODUCE IT.