Persuasive Foundations: Doing the "Exhibit Dance"

• Pages: 30-31
• Date: 01 January 2024
• Author: Hon. Mark A. Drummond (Ret.)
• Subject Matter: Civil Law

By Hon. Mark A. Drummond (Ret.), Litigation News Associate Editor

I

began writing for this publication in 1996. Four times a

year, I must nd topics that I think will be of assistance

and interest to you. In nearly 100 Practice Points col-

umns, I have occasionally discussed exhibits, but I have

never directly addressed admitting exhibits or founda-

tions for exhibits. Why? The topic is boring … though oh so

crucial.

In the past I have referred to what I call the “hierarchy of

attention” in a courtroom. I believe that jurors and judges pay

attention to things in a courtroom in this order: (1) actions;

(2) objects; (3) pictures; (4) diagrams/charts; (5) the written

word; (6) the spoken word. As you can see, exhibits comprise

over half of the hierarchy.

When the words evaporate from the courtroom all the

judge or the jury is left with are the exhibits. It was my goal in

every trial to never have to take the time to lay a foundation

for the exhibit—unless the foundation helped persuade.

Persuasive Foundations: Doing the

“Exhibit Dance”

Stipulation

There are exhibits both sides want. See if you can stipulate

to their admission. Most will be uncontested. Readily agree

to redact information you know the judge will exclude. For

example, insurance information on a medical record. You

want to be known by judges as an efcient, “wheat from the

chaff” attorney. If it doesn’t matter, you don’t ght.

Requests to Adm it Facts and Genuinenes s of

Documents

I found this a useful, but little utilized, tool in getting evi-

dence admitted pretrial. Most jurisdictions have a method like

Federal Rule of Civil Procedure 36. Send these requests out

well before trial asking the other side to admit or deny the

genuineness of the exhibit with the exhibit attached, and add

the words, “… and may be admitted at trial.” Some attorneys

will object to this additional language, but most do not.

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PRACTICE POINTS