A Judge's Observations on Managing ExhibitsAuthor(s): A. Sherman ChristensenSource: Litigation, Vol. 3, No. 2, PREPARING AND EXAMINING WITNESSES (Winter 1977), pp.5-6, 54-55Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758302 .

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From

the Bench

A Judge's Observations on Managing

Exhibits

by A. Sherman Christensen

Senior United States District Judge,

District of Utah

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In many if not most cases exhibits are vital at trial. In the welter of trial

preparation, personnel, ideas and

apprehensions, they potentially are the dependable elements. Their

utility too often is masked, encum? bered or destroyed by mismanage? ment.

The management of exhibits? their organization, control and utili? zation with assurance and effective? ness?is frequently left to instinct, luck, demands of the moment or the

extemporaneous direction of the

judge. The subject is hardly touched

upon by the formalized rules. It deserves more discrete treatment than it has yet received in the treatises on advocacy. It lends itself to prin? cipled procedures.

Exhibits consist of such things as documents, maps, photographs, x-rays, slides, motion picture films, charts, videotapes, graphs, models or mock-ups, samples, articles, handwriting samples, depositions, replies to demands for admissions and interrogatories, even black? boards bearing chalk notations or illustrations made during the trial.

Unless timely investigation, prepa? ration, discovery, and disclosure have been made, needed exhibits may not be available for use or even known at the trial.

Assuming that essential prepara? tory steps have been taken at the

proper times, it is vital shortly before the trial that all potential exhibits

again be reviewed as a regular procedure. Perhaps a checklist such as the' one that follows will be help? ful:

Are all proposed exhibits phys? ically at hand? If not already furnished or obtained, are copies available for opposing counsel, the court, and the jury as required? If

originals are unavailable or des?

troyed, can copies be admitted into

evidence in the jurisdiction involved, and upon what supporting proof, if

any? Is any such required proof available?

Where documentary evidence is so voluminous as to preclude or render difficult its physical production, have fair summaries been prepared? Has

opposing counsel been afforded reasonable opportunity to inspect the

original documents? If models, articles or other things are to be utilized as exhibits, are they capable of prompt transportation to the courthouse? If bulky, have arrange? ments been made with the court or its staff for their positioning in the courtroom, their protection from

objectionable advance inspection by the jury, or their storage in an

adjacent area until needed?

Is foundation evidence prerequisite to the admission of any exhibit available? Are projectors, screens, blackboards, display stands, light boxes or other aids to exhibition

present; qualified and briefed per? sonnel to operate essential machines or devices on call? Are responses to demands for admissions, answers to

interrogatories or deposition passages marked or otherwise identified and in condition physically to be offered into evidence if not read into the record? Have arrangements been made to have co-counsel or other suitable

persons present in court to read the answers of the deponent if a deposi? tion is to be read into the record as evidence? Have demands for produc? tion by the opposing party of doc? uments or things been made to the extent required by circumstances and the rules of the jurisdiction?

Particularly if the proposed exhibits are numerous, have they been marked in advance by or under the direction of the clerk to avoid needless expenditure of time during the trial? Has reasonable effort been

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made to produce and have available at the trial all relevant evidence

peculiarly under the client's control? Has reasonable effort been made toward stipulating to the admission of exhibits into evidence which are

reasonably susceptible to this treat? ment?

Does the trial notebook contain

copies of, or suitable reference to, all

significant exhibits? Do the notes on final argument contain references to

significant parts so that they will not be overlooked? Does the trial brief contain support for questionable admissibility? Does thinking through the entire course of the trial afford assurance that no necessity for an exhibit or problem in connection with one has been left unprovided for or undetermined?

Three Problems In addition to such a searching

checkup, the management of exhibits in the trial context involves three important problems and lends itself to related beneficial procedures: the identification of proposed exhibits and their contents, their convenient and timely revelation or display to court, jury and counsel, and their preservation and retrieval for utili? zation in argument and on appeal. Whether marked during pretrial

proceedings or at the trial, the

designation of exhibits for identifica? tion should follow some regular plan compatible with the rules or practice of the particular court. It sometimes has been considered desirable to mark plaintiffs exhibits in alpha? betical sequence, for example, and defendant's numerically; but to carry out such distinctions, what about exhibits of an intervenor or third

party plaintiff? Record distinctions without obtrusiveness and with less

prospect of perplexing the jury can be

accomplished by uniform numerical

designation but with the prefixed "P"

(plaintiff), "D" (defendant), "I" (intervenor), "TP" (third party) or,

where there are more than one in a classification, an initial or initials

designating the particular party, such as 'TBM-10," or "GM-10."

Exhibits should be so referred to whether for identification or in evidence. It will be clear at the times of the initial offers which party is

tendering them; thereafter it is unnecessary, and may be deemed even an undesirable encumbrance, to

continue to refer to an exhibit as "Plaintiffs Exhibit in Evidence," or even as "Plaintiffs Exhibit P-110," for example. (I consider the custom of

continually referring to proposed or received exhibits as "for identifica? tion" or "in evidence" anachronistic if not supererogatory. Without

confusing or annoying the jury with mere words, the context will indicate the distinction adequately.) When admitted, the exhibit ordinarily is in evidence for all purposes unless

expressly ruled otherwise by the court. A more simple reference to "P-110" would have the additional virtue of de-emphasizing an origin which will have become insignificant as far as the jury is concerned.

A kindred problem involves

components or parts of exhibits, or

closely related exhibits, with respect to which confusion has been observed in practice from failure logically to relate one to the others. Overlays for maps or diagrams often must be identified and dealt with separately until the time all of the related exhibits have been received. Photo?

graphs having close relationship may be of limited consequence when considered separately. Models or actual machinery or apparatus may have components of special signifi? cance and require focused treatment as a part of the whole. In these and similar instances it may be both

helpful and convenient to designate the primary, overall or initial exhibit in the regular sequence, with the

components, overlays or supple? mental parts similarly marked but with the suffix "-a"/"-b", or "-c"

added.

Timely, convenient and effective revelation or display of received exhibits to court, jury, witnesses and counsel ordinarily defies order and reason as well as accomplishment. In modern practice opposing counsel almost invariably will have seen exhibits prior to their admission, and the court will at least have glanced at them. But even they, as well as the

jury, experience difficulty in simul?

taneously relating them to the de?

veloping evidence. The jury especially requires help in this respect.

When witnesses are interrogated about photographs or exhibits not shown to them close up, it may be uncertain whether both counsel and the witness are talking about the same features. When face-to-face

examination is conducted, the process too often involves a little side? show from which court, jury and

opposing counsel are excluded. When exhibits have been received, a common practice is, with leave of court or as of course, for counsel to read them or to pass them one by one to the jurors. Meaningful reading often is difficult or impossible. If the trial proceeds while inspection is

going forward, the attention of jurors may be distracted from the ongoing testimony; if not, the time of most of those concerned with the trial is wasted. Even as to the juror exam?

ining the document at the time, his examination separated from testi? monial context may be of dubious value.

Display To Jurors In some cases the reading of

significant portions of the exhibit to the jury is expeditious and may be of value in permitting prompt aware? ness of content by all concerned. However, even in such instances a

helpful supplemental procedure is

physically to display the exhibit to the

jurors collectively for a sensing of its

identity and to promote their

relationship of it to the evidence. Only the portions of a document of

significance to contested issues should be read, providing that the court will permit a general explana? tion of their context.

Yet, generally as has been pointed out by experienced trial counsel:

[T]he jury should be permitted to use their eyes as well as their ears to understand the material.

Means should be used to focus the attention of the witness, the

jury, and the attorneys [and the

judge] on the same thing at the same time. (Civil Trial Man? ual, Robert McFigg, Ralph C.

McCullough II and James L. Underwood, reporters, Ameri? can College of Trial Lawyers and ALI-ABA Joint Committee on

(Please turn to page 54)

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an individual, it would be against the

public interest to restrict the ability of

corporate clients to communicate

confidentially with their attorneys? either by adopting the "control

group" test or by otherwise restricting the application of the privilege to

corporate clients. On the contrary, logic compels widespread adoption of the rule which the Seventh Circuit articulated in Harper & Row v. Decker?a rule which recognizes the

importance of the attorney-client privilege while simultaneously de?

fining its scope in a manner which is consistent with fundamental prin? ciples of agency law.

From

the Bench (Continued from page 6)

Continuing Legal Education, 1974, p. 296.) The display of enlarged photo?

graphs and other exhibits has been utilized for this purpose, but this

procedure is expensive and some? times impractical. For many years I utilized in my courtroom an opaque projector by means of which images of significant photographs and other exhibits could be projected, identi? fied, examined upon direct and cross

inquiry, and referred to in argument. More modern overhead projectors offer similar possibilities but the

necessity of advance preparation of exhibits, arrangement of equipment and control of lighting still presents burdens sometimes difficult of man?

agement. The ideal must be along these lines and present technology should permit its early achieve?

ment.

In all of this, reasonable selectivity must be exercised. Especially in trials to the court, but also frequently in

jury trials, exhibits may be profitably processed and introduced more or less in gross or bulk. Indeed, in

complex cases involving masses of exhibits this procedure is almost a

necessity. Still here, means must be found to bring to the attention of court and jury the significant documents, or their effect, by means of inspection, projection, witness

interrogation with respect to them, summaries, graphic representations or illustrative presentation.

Especially when exhibits are received in bulk, counsel must be alert to eliminate objectionable items that may have crept into this

expediting procedure through mo? tions to strike. Depositions, without

being actually read into the record, may be introduced as exhibits with the understanding that either party

may utilize their content in argu? ment, examination of witnesses or as a part of the record on appeal, but that only to the extent of thus

being reflected in the transcript the

depositions will not be revealed to the

jury or carried up. In any event, where extensive use will be made of

deposition testimony, counsel should meet and consider possible use of a

deposition summary or verbatim extract in lieu of all or part of the

deposition. In the meantime, utilizing dis

criminately the various means at hand both for display and other communication of exhibits, the advocate should consistently seek to

capitalize upon the strengths of his own exhibits and the weaknesses of those of his opponent. Finally as to

this, there is the problem of the

preservation and retrieval of exhibits for argument and appeal.

Preparing, organizing and pre? serving exhibits as a part of pretrial preparation, and utilizing them in final argument are beyond the scope of these comments but are exceed?

ingly important to the trial lawyer. Other problems and procedures peculiar to the management of exhibits at trial or on appeal include their in-trial development, explana? tion and supplementation, their con?

tinuing immediate availability for the purposes of cross-examination and final argument, and preservation or translation for purposes of post judgment proceedings and appeals when unmanageably bulky or fragile.

It is usually most satisfactory for

drawings and maps intended as exhibits to be prepared before trial.

With rare exceptions, those sketched

by a witness during his examination, unless exceedingly simple, leave much to be desired in clarity and

accuracy and they may impart a

rather haphazard aura to the

proponent's case. On the other hand, it may be effective procedure to have an opponent's witness attempt to recreate from humanly faulty mem?

ory a map or diagram where locations and directions are vital. Such efforts often open the door to confusion and demonstrate weakness in the direct

testimony. Perhaps the best of two worlds can be achieved in support of a case by basic outlines, directions and distances drawn to scale beforehand, with items bearing upon contested issues located and designated during the trial by qualified and briefed witnesses who have been forewarned and are prepared for the task.

Markings on photographs may fall within the same area. As to either, it

ordinarily adds little for a witness to mark crosses, the significance and source of which are usually forgotten by the jury long before they puzzle over them in the jury room. Most advocates are perfectly aware of the

necessity of translating the testimony of a witness that an occurrence or

point "was here," into a definite

marking on the exhibit; in my observation most fail to make the

markings identifiable or recollectible later. The markings should be as far as possible self-explanatory and identified by the initials of the maker and preferably in a different color for each witness.

How often have we seen counsel at the decisive moment of cross-exam?

ination look or ask for an exhibit for the rendering of the coup de grace, or unable to find an exhibit which

proves indispensable to the moving force of a summation! The solution may not always be for counsel to

organize and utilize his own copies before the jury. These have served their primary trial purposes in

preparation and as notations for the final argument. The originals which the jury may take into the jury room could be more impressive and less to the jury's confusion. Other proce? dures may be effective, e.g., the

assembling of the original exhibits in

preparation for the argument. (But suppose you are presenting an

answering argument or reply and

your opponent possesses or has

misplaced the exhibits you want to

organize?) The best system, I believe, may be to have the courtroom deputy,

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with the approval of the court (should issue possibly be made of it) and with the cooperation of other counsel, keep all exhibits on the clerk's desk

numerically organized and, if numerous, in subdivided boxes, so that at the beginning of the argument or as the argument progresses the exhibits needed may be speedily supplied and promptly returned to the clerk when they have served their immediate purposes. This may not

always be feasible, but when it is it maximizes the effectiveness of sig? nificant exhibits, which the jury perceives come almost literally from the bosom of the court and are there restored, pending the time the jurors may wish to use them during deliberations. Having recognized the

importance of such a procedure as a trial lawyer, and believing that it

represented a fair expectation conducive to justice, I instructed the courtroom deputies in my court to so

keep all exhibits in order on their desks when not actually in use by court or counsel. Counsel were

instructed not to store exhibits at the counsel table or in their briefcases.

Few problems are encountered in

preserving exhibits for the purposes of post-trial proceedings or appeal, except as to those whose storage or

transportation presents obstacles, or as to blackboard or similar notations received in evidence usually as part of cross-examination. In almost every case the solution is for the proponent, pursuant to stipulation, to photo? graph the exhibit, and supply copies both for the record and to opposing counsel. I have not yet encountered a case where such arrangements could not be worked out with satisfaction to the court and the parties and on

appeal. But yet without such a

pattern clerk's offices and counsel have been known to become bogged down with storage, if not transporta? tion problems.

Reasonableness, expedition, utility and fairness must be looked to for

principled solutions to those manage? ment problems. These solutions must not be considered rigid or unadapt? able. But the variations of procedures and the improvisation of subproce dures, as well as the tactics, methods and strategies thereby illuminated, must square with basic principles of

advocacy or they should be rejected.

Opening Statement

(Continued from page 2)

ing Federal Jurisdiction, Prac? tice and Procedure;

(c) Criminal Law and Pro?

cedure; (d) Professional Responsi?

bility; and

(e) Trial Advocacy. 3. He has assisted in the pre? paration and has attended the

hearing of four proceedings, either criminal or civil, in which

testimony was taken on the merits of a disputed issue, two of which must have been in a federal court. 4. In lieu of paragraph 3 he has observed six complete hearings in which testimony is taken on the merits of one or more dis?

puted issues, including three

hearings in a United States Dis? trict Court.

The proposed admission rule for the circuit was adopted, effective January 1, 1976, and requires an applicant to

certify that he has: (1) argued in either State or Fed? eral appellate courts at least three appeals of a substantive nature. The argument of an

appeal in a Moot Court program conducted by a law school recog? nized by the American Bar As? sociation shall be deemed the

equivalent of an argument in an

appellate court; (2) observed the argument of two appeals in this Court; (3) read and is familiar with the Federal Rules of Appellate Pro? cedure and the local rules of this

Court; and (4) in lieu of any of the argu?

ments required by (1) supra, argued two motions of a substan? tive nature in which briefs or

memoranda of law are submit? ted in State Courts, Federal Courts or before administrative tribunals.

The proposed admission rule for the district courts was overwhelming? ly defeated by the judges of the South? ern District of New York on Decem

ber 18, 1975, and Judge Marvin E. Frankel of that court has now become the most prominent critic of the Clare Committee Report.

The issues joined by the Clare Committee and its opponents have

emphasized the need to avoid a rush to judgment.

The Clare Report "finds there is a lack of competency in trial advocacy in the federal courts . . . directly at? tributable to the lack of legal train?

ing." 67F.R.D. at 164. Judge Frank el says that this finding is "remark?

ably devoid of evidence" to support it; that the finding of incompetency is

undefined, vague, airy and incon? sistent. (See Frankel, Ill-Advised Rules for Bar Admissions, ALI-ABA CLE Review, Nos. 7, 8, February 1976). He faults the Clare Committee for interfering with law school cur? riculum while not addressing the

problem of the currently incompetent lawyer who undertakes the trial of a case.

Perhaps Too Pious

Pointing out the committee's in?

consistency and perhaps its piosity, Judge Frankel says:

Ours is a Circuit where a convic? tion will be set aside for incom?

petence of defense counsel only when the bumbling is so horrid "as to shock the conscience of the Court and make the pro? ceedings a farce and mockery of

justice." United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert, denied, 338 U.S. 950 (1950). You will probably search in vain for a case in which our Circuit has overturned a fed? eral conviction because defense counsel fell below that standard

?a standard so tender to law?

yers, so solicitous to preserve convictions, and so chilling for the defendant?and this in a set?

ting where we have been said to

say that incompetence is ram?

pant.

It seems to me that Judge Frankel is correct in his principal point: a

great deal more empirical and spe? cific evidence is required than the Clare Committee accumulated before one is justified in concluding that "there is a lack of competency in trial

advocacy" if that conclusion is meant to indicate that the incompetence is

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