One of the most important aspects of trial is determining how and when to present each witness, exhibit, and other item of evidence most persuasively. Here are some helpful ideas and ten questions to ask yourself when deciding how and when to present evidence at trial.
When you are figuring out your evidence for trial, the first thing to do is to identify all of the testimony and other evidence you’ll need to prove (or defend) the case. Many experienced attorneys start by preparing a draft of their closing argument to help identify this evidence, but use whatever trial preparation system works for you to help list all of the evidence you’ll need.
Consider creating an outline of all of the types of evidence you expect to use in your case and the points you plan to establish through each type of evidence. As you make your outline, be sure that it reflects your review of the rules of prima facie admissibility and your decisions about timing and how you will use the evidence you plan to introduce.
You’ll need to decide the sequence in which you want to present the evidence. You may want to go with a most persuasive sequence, but it may make more sense to create a sequence that will allow the clearest presentation of information. In any event, choose a sequence that avoids undue repetition. Once you decide on your sequence, arrange evidence to fit this order of presentation, keeping in mind that the exigencies of trial may require a change in the sequence.
To be sure you cover all the bases, here are 10 questions to ask yourself about how and when to use evidence at trial:
- Should you disclose the evidence during opening statement?
- Do you need or want to get an order on a motion in limine to e.g., establish admissibility of the evidence?
- Which witnesses should you interrogate about evidence?
- Which witnesses should you avoid questioning about evidence, even though they have knowledge of it?
- Can you gain an advantage by surprise use of evidence?
- If it’s a jury trial, should you disclose evidence to the court before you refer to it before the jury?
- Is it procedurally necessary to disclose evidence to certain witnesses before asking others about it?
- What is the best way to reveal substance of an exhibit to jury?
- Should you specifically discuss evidence during closing argument? and
- What you will do if evidence is excluded?
For everything you need to know about preparing and using evidence at trial, turn to CEB’s Action Guide Laying a Foundation to Introduce Evidence. Also check out CEB’s Effective Introduction of Evidence in California, chaps 5-6.
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