Podcast - Showing Exhibits to the Jury
In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small highlights seven basic ways to effectively show a document or other exhibit to the jury. Mr. Small shares why the implementation of these skills is necessary for trial lawyers in order to successfully communicate in court.
Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.
As a rule, lawyers talk too much and show too little. Only people who have gone through law school would think that long legal lectures are effective ways of communicating information or persuading people. People learn more, and understand better, when they are shown the things that are being talked about. One of a trial lawyer's most important challenges is to find the best ways to make that happen.
What Are Exhibits?
Let's start by focusing on exhibits.
Exhibits are part of the evidence of the underlying events in dispute. With occasional exceptions (such as crime scene photographs), they were not created in order to be used at the trial. Here are some typical examples:
- documents: contracts, emails, text messages
- social media printouts
An exhibit must be "admitted" in evidence. Once it is "in evidence," it can be shown to the jury and used by any party for any legitimate purpose (unless the judge has limited its use). If it's not admitted, it can't be shown to the jury.
When introducing exhibits, keep it simple and free of clutter. Make it simple, spare and direct. Don't "move" in evidence. Don't offer it for "the record." Don't say that you "would like to" offer it. Just offer it.
Mr. Witness, I am showing you what has been marked as Exhibit 17 for identification. Do you recognize it?
What is it?
It's a letter sent to me by John Smith of Megadeth Corporation dated April 17, 2006.
Your honor, I offer this as Exhibit 17.
There, that's it. Too often lawyers make the mistake of thinking that when they hear the magic word "admitted," their job is done. No, that's just the beginning, not the end. If a document or other exhibit really matters, show it to the jury. And if it doesn't really matter, think long and hard about why you want to put it in evidence. You may want to make sure the jury has a chance to do three things:
- Read it at their own pace.
- Digest it, even if only for a moment.
- Understand it in context by seeing the document when it matters.
7 Ways to Show Exhibits to the Jury
There are seven basic ways to show a document or other exhibit to the jury:
- You can leave the document on the table with the other exhibits and tell the jurors in closing arguments to read it on their own during deliberations. Really? Don't do this. It won't work. Now is the time.
- You can hold the document in your hand in front of the jurors and parade up and down the jury box. Really? Don't do that either. This isn't a parade. They want the document in their hands.
- Pass it around. You can ask permission to "publish" the document, by handing it to juror No. 1 and having it passed from juror to juror. Do this only if you have no other choice. The jurors often will not study the document closely, and they'll feel pressure to pass it along quickly and they'll be distracted from whatever else is going on in the courtroom.
- Put a copy in a binder. Putting copies of documents in three-ring binders can be very effective. This method is perhaps the best way to let jurors read something at their own pace and to own what they're reading. Make sure the notebooks are tabbed and that each tab is the exhibit number. Don't put Exhibit 17 at Tab 8.
- Blow it up. You can blow up copies of documents and display them on an easel. This can be expensive and cumbersome, but it is often highly effective. It also works well for closing argument.
- Show it on a document camera. Many courtrooms now have document cameras that will permit documents to be shown on a large screen and individual juror monitors. This method is typically very useful and has the advantage of being relatively adaptable.
- Show it electronically. Many courtrooms permit the electronic display of documents from, say, a laptop, onto a large screen and/or individual monitors. It often does not work as well as it should, because it can be awkward to use, or because lawyers flash documents up and down too quickly, or because technical problems can occur. But if you can practice working with it, it can be very effective.
However you display the evidence, remember that the point is to show the documents to the jurors in a way that they can feel a part of it, and to educate them with that document. Don't ever assume that the jury will simply figure things out on its own.
In the words of Rod Stewart, "Every picture tells a story, don't it?" Trial lawyers should take that to heart. Exhibits can have great persuasive power. They can tell a story. Don't hide them from the jury. Take the time to put exhibits before the jurors as clearly and directly as you can.