Calling Albert Einstein to the Stand (and Other Seldom-Used, but Effective, Trial Tactics), 0720 SCBJ, SC Lawyer, July 2020, #48
| Author | By Judge Joseph F. Anderson, Jr. |
| Position | Vol. 32 Issue 1 Pg. 48 |
By Judge Joseph F. Anderson, Jr.
Technological changes of the past few decades have made significant, and positive, changes to the common law trial. No longer do we rely exclusively on eyewitness testimony—everyone has a video camera in their pocket and there is one on every street corner. Satellite transmission makes possible the live testimony of witnesses from remote locations. In the old days, jurors had to laboriously pass documents around the jury box for viewing. Today, software programs and video monitors in the jury box make the process much easier and faster.
But there is a handful of useful—yet rarely employed—devices that have been around for years. They ought to be in the toolbox of every courtroom lawyer. In no particular order, here are my top seven unappreciated and underused devices for use at trial.
Don’t do a “document dump” on the jury— Use Evidence Rule 1006
The digital age has affected modern pretrial practice in a monumental way. In the old days, information was gleaned from depositions of witnesses, some of whom were then called to testify at trial. Then, there were the documents: a few letters, a contract or two, and some photographs. That was it. Today, communication between people, in person and on the phone, is on the wane. Most conversations are now captured on digital media. In a recent case of which I am aware (a breach of contract action for the sale of real estate), there were 2.6 million emails produced in discovery!
Unfortunately, in my view, many attorneys mistakenly believe that since terabytes of discovery have been produced and examined pretrial, then by golly when trial rolls around much of it needs to be seen by the jury.
Shortly before his death, I was fortunate to hear the legendary Irving Younger deliver a lecture on trial advocacy. He said that no jury is going to look at more than about 75 exhibits. In the years since I heard Younger’s speech, attention spans have gotten shorter, and 75 may now be a high number. So, pare your list of trial exhibits down to those really important documents. If, after doing so, you still have three bankers boxes of exhibits (about 6,000 pages), there is a handy evidence rule that can come to your aid.
Rule 1006 of the Federal Rules of Evidence (“FRE”) provides that when you need to prove the contents of “voluminous” documents, you may use a “summary” or “chart”.[1] And, although Rule 1006 is silent on the subject, most judges will allow the chart to go into the jury room as an exhibit.
Jurors like professionally lettered charts; they do not like thumbing through bankers boxes. Often, it’s just a small bit of information from each document that you need. A summary chart allows you to display that information in a visually pleasing way. Summaries save valuable court time and also clarify evidence or testimony for the jury.
Laying the foundation the easy way
In order to have evidence admitted, FRE 901 requires that the proponent first have it properly “identified” (if it is real evidence) or “authenticated” (if it is demonstrative evidence).2 Under the so- called “business records exception” to the rule against hearsay set out in Rule 803(6), the proponent must first satisfy three requirements set out in the Rule before the document qualifies as a business record.3
I frequently see lawyers struggle in attempting to lay the foundation for the admissibility of their exhibits. For those who successfully lay the foundation, the process is often cumbersome and even boring to the jury. It should always be remembered that most jurors come to court with expectations formed by watching Hollywood depictions of trials—and Hollywood never wastes time with foundations for documents.
A readily available device that I rarely see used is good old Civil Procedure Rule 36—Requests for Admissions.4 Although Rule 36 is most often used to get an adversary to admit to certain undisputed facts, it is broad enough to encompass the foundational requirements for document identification and business records.
And the process could not be simpler. As trial approaches, stack up all of your trial exhibits and attach a request to admit—properly tailored to the foundational requirement you must meet—and serve the other side. Your opponent then has 30 days to either admit or deny.5 If your opponent admits, you no longer need a witness, the trial is shortened, and you score points with the jury. If your opponent denies, you then revert to the old way of laying the foundation at trial and, if you do so successfully, the rule allows you to send your opponent a bill for your costs for the in-court foundation laying.
A handy shortcut to proof
Generally...
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