How (not) to Handle Exhibits in Trial*

• Publication year: 2016
• Author: By Judge Kathleen M. White and Judge Daniel P. Maguire, Superior Court of California, Yolo County

HOW (NOT) TO HANDLE EXHIBITS IN TRIAL*

By Judge Kathleen M. White and Judge Daniel P. Maguire, Superior Court of California, Yolo County

There comes a moment in every trial or hearing when it is revealed to the judge whether the lawyer is a skilled trial professional or a bumbling tyro. That moment is not in the pretrial motions, the trial brief or the opening statements. It doesn't matter whether the trial is criminal or civil. That moment in all trials is the presentation of the first document as an exhibit. If you already know how to mark, organize and present exhibits, we thank you. Read no further. But if you want to know how to irritate the clerk, frustrate the judge, baffle opposing counsel, muddy the record, delay the process, and exasperate your client, read on:

1. Don't ask the judge or clerk before the hearing how they want exhibits handled. Pay no attention to the court's local rules regarding exhibits, don't ask the clerk if the exhibits can be pre-marked, and above all, appear five minutes before trial with voluminous unmarked exhibits. Be sure they are not in the order you will use them at trial.

2. Don't give the clerk an exhibit log that lists each exhibit in order, has a description of the exhibit, and a column for "marked," "admitted" and "comment." Don't ask if the clerk has a preferred format for the exhibit log. This ensures that the clerk will have difficulty tracking the exhibits and making a clear record. This also ensures that you will not be able to track your exhibits during trial, too.

3. Don't describe each exhibit specifically on the exhibit log, so the clerk cannot discern one exhibit from the other. For example, if you have several deeds of trust, just make multiple entries of "Deed of Trust" on the exhibit log and don't distinguish them by date or other identifier. This ensures a confusing record and extends the examination of witnesses as the judge and other lawyer constantly interrupt you to ask which deed of trust you have placed before the witness. This is especially helpful for muddying the record and lengthening proceedings when there is no court reporter.

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4. Aggregate exhibits so there is more than one photograph on a page, or more than one document per exhibit, and be sure to use only one exhibit number for the aggregated exhibit. This guarantees that you will spend lots of time asking the witness to examine the third picture on the fourth row of the second page, and explaining to the judge what document you...