Civil Litigation Evidence Legal Topics Trial Strategy

4 Steps to Deciding How and When to Present Evidence

Your objective is to determine how and when to present each witness, exhibit, and other item of evidence most persuasively during trial. The key to meeting this objective is breaking it down into these four steps.

  1. Outline your case. Create a step-by-step outline of your case, including the points you plan to establish through each witness and all of the exhibits and demonstrative evidence you intend to offer. If you plan to offer deposition excerpts, indicate in your outline when to offer them, including volume, page, and transcript line number for quick reference. Keep in mind that your decision to introduce portions of the deposition may motivate opposing counsel to seek to introduce other excerpts; analyze how that will affect your case.
  2. Analyze your key strategy concerns. As you outline your case, make sure that it reflects your review of the rules of prima facie admissibility and decisions about timing and manner of using all of the evidence you plan to introduce, e.g., whether you should disclose the evidence during your opening statement, whether you need or want to obtain an order in limine, which witnesses you should interrogate about the evidence.
  3. Determine the sequence of your presentation. Decide the sequence in which you want to present the evidence by analyzing which order (1) will be most persuasive, (2) will allow for the clearest presentation of information, and (3) will avoid undue repetition. Remember: Less is more. Don’t add unnecessary witnesses and repetitive questions that can backfire by creating inconsistencies and testing the jurors’ patience. When selecting your witnesses, consider limiting those who will testify about the same incidents or transactions.
  4. Arrange your evidence to fit your sequence. Arrange your evidence to fit the order of presentation, keeping in mind that the exigencies of trial may require a change in the sequence. It’s important to order witnesses for the most powerful impact, but it’s even more important not to run out of witnesses in the presentation of the case. Delaying trial simply to accommodate your ideal sequence of witnesses can be disruptive and negatively reflect on your case.

Having trouble getting started? Try preparing a draft of your closing argument. This is a useful method for identifying all of the testimony and other evidence needed to prove (or defend) the case. Similarly, taking the opponent’s case and writing a closing argument that attacks your case can be the single most helpful guide to anticipating and refuting your opponent’s case.

Get more of this step-by-step guidance on trial evidence in CEB’s Laying a Foundation to Introduce Evidence (Preparing and Using Evidence at Trial). And for a comprehensive look at organizing all of your trial materials, check out CEB’s California Trial Practice: Civil Procedure During Trial, chap 3.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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