the presentation of evidence occurs at the trial court level

What is a Trial Presentation? Everything You Need to Know

by Carolina Barbalace | Jul 31, 2023 | Present in Court | 0 comments

Attorneys go to court ready with a trial presentation. So should you. 

You may be asking yourself, what is a trial presentation?

A trial presentation is a visual and legal aid designed to present your evidence, argument, and legal analysis in a way that is easy for the judge to follow and understand. 

Why is it important to use a Trial Presentation?

Make your case stronger: .

You want to be as persuasive as possible when you’re in court. A trial presentation helps you present your evidence in a way that’s easy for the judge to understand and see the strength of your case.

Preparing a Trial Presentation not only helps you present your evidence effectively but also assists you in organizing your thoughts and arguments. With a well-structured outline and identified key points, you can ensure that you cover all the important information in a logical and easy-to-follow way.

Show the Judge You’re Credible:  

When you’re in court, it’s important to come across as credible and prepared. With a trial presentation, you can showcase your evidence professionally and organized. The judge will see that you’ve made the effort to build a strong case and deserve their serious attention. It also demonstrates that you value the judge’s time and are conscientious.

Also, a trial presentation can make the judge more engaged and focused. By using visual aids, such as graphs, charts, and photographs, you can capture the judge’s attention and help them to better understand your argument. These visuals bring your case to life and make it easier for the judge to follow along.

What should be included in a Trial Presentation?

Opening statement:.

The beginning of your trial presentation is crucial. It all starts with an opening statement that sets the stage for your case. This statement introduces the judge to the important facts, aligning them with the specific legal elements involved. It’s your chance to clearly state what you seek from the judge.

When crafting your opening statement, remember that it shapes the impression of your entire case. You want to convey confidence, organization, and preparedness. Keep it concise, focusing on the key facts that support your argument. Avoid overwhelming the judge with unnecessary details.

Include a chronological timeline of the events and evidence in your case. This timeline is a valuable asset that helps the judge follow the events leading up to your case. By visually organizing your evidence on a timeline, you can demonstrate when crucial facts occurred and how they connect. Doing this gives the judge a deeper understanding of your case’s context and empowers them to make an informed decision.

To make the most of your timeline, ensure that each piece of evidence on the timeline is assigned a page number corresponding to its location in your trial presentation. This way, the judge can easily navigate to the relevant evidence, facilitating a smooth and efficient review of your case.

Damages Table:

A damages table is a vital component that showcases all the damages you claim in a neat and structured format, complete with accurate calculations. This table plays a crucial role when presenting your case to the judge, allowing you to show the exact amount of money you deserve

Think of the damages table as a handy list that outlines the money you seek. By having a damaged table, you can ensure that you cover all the different types of money you need to ask for, leaving no important details behind. This organized approach presents a compelling case and helps the judge understand your arguments easily, making a favorable decision more likely.

Finally, include copies of all the evidence supporting your case in your trial presentation. From documents and text messages to emails, photographs, and videos, leave no stone unturned in presenting the full picture.

Also, ensure that each piece of evidence is clearly labeled. Moreover, organize your evidence logically and chronologically so the judge can easily navigate each piece.  

In conclusion, a trial presentation can help strengthen your case and be more persuasive. It allows you to organize your thoughts, gain the judge’s trust, and keep everyone engaged in the courtroom. By following the steps and including these important sections in your presentation, you can clearly present your case and increase your chances of winning. Take advantage of this opportunity to confidently share your side of the story, leave a lasting impression, and achieve a favorable outcome in your legal journey.

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Evidence presentation at trial — know when and how to wow ‘em

The perks and pitfalls of using too much or too little technology at trial, with a do-it-yourself guide.

You’ve made it to trial and you are (hopefully) excited about your case. You want to find the most effective way to communicate with the jury: to show them how your plaintiff has suffered and why the defendant is responsible. You can’t wait to present your client’s story to the jury, and are thinking about the best ways to do so. In making these crucial decisions, it is imperative to consider how using (or not using) the vast array of technology available to trial lawyers plays a role in molding your case for success or failure.

Jurors’ expectations: Know your audience

It is 2014 – many California jurors will hope for more than just hearing your voice drone on for days, maybe weeks, in presenting your client’s case. Jurors are not living under a rock – they know technology is available, and many want to see you utilize it.

When deciding how high to pump up the technology volume, do not underestimate the importance of jury composition, venue, and how the use of technology will reflect on you and your client. For example, if you are trying a case in a rural area where there are mainly dirt roads, only a few stoplights, and/or your jury is composed of mainly senior citizens – it may be appropriate to scale down the use of iPads, tablets and other fancy electronics. Along the same lines it may also be a great idea to temporarily remove your Rolex watch, $2,500 Armani suit, and/or large diamond ring. As plaintiffs’ attorneys, we must be mindful of appearing too “rich” to the jury (whether or not we actually are rich) because this can negatively impact the probability of them awarding a large verdict to our client. We want to appear successful, competent and confident, but not braggadocious or flossy with respect to our wealth.

This can also play into our use of technology at trial. If the defense attorney is alone with just a yellow legal pad and a few pens, and the plaintiff’s side has three attorneys, a jury consultant, and a “technology assistant”− all armed with tablets, laptops, mobile printers, scanners, and other gadgets – it might not seem like an even match, wherein certain jurors could be inclined to sympathize with the defendant in a tacit exercise of “rooting for the underdog.”

On the other hand, if you are trying a multi-million-dollar quadriplegia case in downtown Los Angeles with a jury that is more youthful and you are facing a team of defense attorneys, it may be a perfect opportunity to pull out all the stops where the use of technology is concerned.

Correlate technology with caliber of the case

Speaking of multi-million-dollar quadriplegia cases, it should be noted that there is a difference between these and a $25,000 minor-impact automobile collision case with soft tissue injuries (also known as MIST cases). It should go without saying that the amount of technology, expense, and “glitter” you throw onto your case should be commensurate with the probability of return on that investment. The potential recovery of courtroom technology costs is discussed later, herein. However, for the sake of the current discussion, the assumption is that the costs you are spending on technology use for evidence presentation will not be recoverable.

In 2008, I had the unique and awesome experience of being able to serve on a jury trial downtown as a practicing plaintiff’s attorney. When we finally got into the jury deliberation room, it was like looking behind the curtain and

discovering the Wizard of Oz. It was amazing what the jurors didn’t “get” even after the attorneys verbally repeated it over and over and over. In this particular trial (an employment case involving the City of Los Angeles), the attorneys on either side did not use any technology whatsoever to present their evidence. Not so much as putting a Special Verdict Form or Jury Instruction on an ELMO during closing arguments and walking the jury through it. The trial consisted of abundant and pure oral testimony over a period of ten days. In speaking to my fellow jurors, they were bored, lost, and really needed something to break up the monotony during the trial. Not one of them really understood the key jury instructions that were discussed in Plaintiff’s counsel’s closing argument. They thought a critical issue in the case was something totally different than it really was.

Since certain individuals are scientifically proven to be visual learners, sometimes seeing the text of a key jury instruction in writing (displayed on an ELMO or in a PowerPoint presentation) simultaneously as the lawyer is discussing it and how it applies to the case can make a huge difference. Studies have shown that individuals retain approximately 50 percent more information if the information is presented in both a visual and auditory manner. (http://www.cisco.com/web/strategy/docs/education/Multimodal-Learning-Through-Media.pdf).

What do you need to bring?

Every courtroom is equipped with different technology that is available for use. Most of the newer courthouses have free Wi-Fi connections throughout. You will want to check with your particular courtroom to see if they have the following available for use during your trial:

• ELMO• Projector

• Screen (consider best placement so that jury and judge can see)

• Wi-Fi connection

• HDMI, USB and other needed cables

You will need to provide your own:

• Laptop/tablet• Laser pointer• Remote control to control PowerPoint slides

• Computer programs such as: PowerPoint, Sanction, iJuror, etc.

• Power cords/extension cords

• Transparencies/print-outs

Getting evidence approved by the court

Admissibility of evidence is usually accomplished by stipulation between counsel and/or laying an adequate foundation to admit the evidence.

You should check with the Court regarding any local (or departmental) rules regarding pre-approval for the use of technology. Some departments may require the stipulation of counsel or the giving of adequate notice of your intention to use the Court’s technology equipment.

Making friends with courtroom staff

You’ve probably heard it before – but when engaged in trial, you should be a model citizen within at least a five-mile radius of the courthouse. The list of who you should be particularly kind to includes the security guard who checks you in each morning at the metal detector (be early and wait your turn in line – don’t cut to the front); the parking lot attendant; the bailiff, the courtroom clerk, the courtroom attendant; the guy in the snack bar who sells you your morning cup of coffee; and the people you share an elevator with on the way to and from your department. Why? The main reason is that the jury is always watching. Even when you don’t think they are watching – they are watching. They are looking for something that humanizes you – something to make you more believable (or less). But an underlying reason for the purposes of this topic is that these people could end up playing a key role in determining whether your use of technology to present the evidence in your client’s case will be a major perk or major pitfall.

So how does this topic translate to using technology for the presentation of evidence at trial, you ask? Very directly. Assuming you’ve followed the recommendation to establish a good relationship with the courtroom staff by simply saying good morning daily with a smile on your face, following the rules they have set for the department, speaking to them with respect, and possibly even engaging in a few jokes, the following will magically occur:

• When you need someone to turn the lights on and off for your PowerPoint presentation, the clerk or bailiff will automatically do it without missing a beat;• When you need to stay five minutes after court is dismissed to check a wire or make sure the connection from your laptop to the projector is working – it will be no problem;• When you need to come to the department a few minutes before lunch hour ends to set up the projector for the presentation of your closing argument, the door will be open for you;• When you need something to prop up the projector so it hits the screen properly, you will receive help with this;• When the ELMO in your department is broken, the clerk will check with the neighboring departments about borrowing theirs for a few hours;• When you’re in the middle of testing out your equipment, the courtroom attendant will hold the jury outside as necessary and check with you to see if you are ready.

Technology in voir dire

Although they are instructed not to…it is inevitable that one or more prospective jurors (or ultimate jurors) may use the Internet to search for your client (or you!) on Facebook, Twitter, LinkedIn or any of the other numerous social networking sites. The offending juror who does so, may never admit to it and may never discuss his or her findings with the other members or the jury. But what he or she discovered about your client jet skiing last weekend when he says he can barely walk due to chronic pain will be engraved into that juror’s brain. It has been held unethical for an attorney to tell his/her client to remove an “incriminating” picture or comment off of a social media site. However, it’s not unethical to tell them from the very beginning not to post these things in the first place. If they are agreeable, it’s probably best to advise a client in the beginning of a major injury case to suspend his or her Facebook, Twitter, Instagram etc. until the conclusion of the case.

Jury selection is a trial attorney’s first and perhaps best opportunity to connect with the jury. It is the only time during the span of the trial that you will be able to ask a juror a question and receive a verbal response. You do not want to waste these precious moments being so fixated on fiddling with your technological devices that you don’t engage each juror and look in his or her eyes.

With that being said, jury selection programs such as iJuror (available for $9.99 on iTunes), JuryTracker and Jury Duty can be extremely helpful tools if you are using a jury consultant or another lawyer/member of your office staff to help you select the jury – the opportunities for utilizing technology expand tremendously. The reason being is you can have the person assisting you control all of the technology so you can just jot down a few key notes while focusing most of your attention on engaging the jurors, reading their body language and connecting with them as much as possible. iJuror is focused more on the jury selection process, while JuryTracker is designed for use during the trial.

There are several programs (including those mentioned above) that can be used for jury selection that replace the traditional and trusty “post-it” method we are all so familiar with. Some of the best programs can be loaded right onto your iPad/tablet and you can walk around the courtroom while using the device vs. being confined to your seat or the podium (Note: your tablet and these programs will likely require an active Wi-Fi internet connection in order to function properly – most of the courthouses, including Stanley Mosk, have Wi-Fi connections that are decently reliably, but please check ahead to ensure the courthouse you will be trying your case in has the technology that you will need available. If the Wi-Fi in your courtroom is not reliable, you should consider purchasing an alternative means of Internet access).

On the flip side, you can also use Facebook, Instagram, Pinterest, etc. to research your potential jurors. Again, if someone is assisting you during jury selection, he or she should take the opportunity to pull up prospective jurors’ Facebook and Twitter accounts (to the extent the information is public) and see what can be learned about the person. Prospective jurors may be hesitant to disclose details that are responsive to your questions and very important. It goes without saying, but you should ensure that the person who is searching social media sites regarding prospective jurors be physically positioned in such a way that no potential jurors (or anyone really) can see what is being pulled up on their laptop/tablet screens.

Technology in opening statements & closing arguments

Using a PowerPoint presentation during your Opening Statement and Closing Argument may be one of the best ways to stay organized and ensure you cover all of your key points. The average adult’s attention span is only about 15 minutes – so you can enhance and maximize that time period by spicing up your presentation with the use of different technology mediums.

It’s often a good idea to have a slide or two with your key points that you can leave up for the jury to consider long after the spoken words have left your mouth. Jurors are also more likely to write down and thus remember something that is displayed for them in a clear, concise manner − and also verbally stressed and repeated.

Using technology for impeachment

What could be more powerful in impeaching a witness than asking him or her a question on the stand and then immediately playing back a videotape of his deposition wherein he testified otherwise? Not much. This could be as close to a “Perry Mason” moment as you’re probably going to get.

In order to do this, clearly you must have videotaped the deposition. Then you can utilize software, such as Sanction, for videotaped deposition synchronizing. This process, if successfully executed, can be most impressive to a jury.

If you are presenting deposition testimony by video, judges will often want objections handled in advance. You should talk to your judge at the Final Status Conference (or before) to find out the Court’s rules regarding use of videotaped depositions at trial.

Reverting to Plan B

Even the most sophisticated and foolproof technology presentation can fail. Frankly, while you are clearly hoping it will not fail, you should expect it to do just that and have a Plan B on deck to which you can seamlessly transition.

If you were planning to show the jury a PowerPoint presentation in connection with your closing argument, but cannot do so because your laptop inexplicably refuses to turn on…here are a few tips that can help you transition to Plan B.

• Have a color printout of each slide of your PowerPoint presentation on hand – that way you can use the slides to refresh your memory if there is no way to publish them to the jury;• If possible, you can publish the color slide printouts to the jury by putting them on the ELMO and then continue discussing them just as you would have during your originally planned PowerPoint presentation.

Is the price of courtroom technology recoverable?

The cost of using technology at trial can be high. Sometimes even as high as your key expert witness. Expert witness fees, under the correct circumstances, are recoverable on the prevailing party’s cost bill. But what about the cost of technology used at trial to present evidence?

Traditionally, such costs have not been recoverable. However, in the recent excessive-force case Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, the plaintiff’s trial technology costs were deemed fully recoverable. In the trial court, the jury awarded the plaintiff a six-figure verdict. The court then awarded $989,258 in attorney fees, and refused to tax costs of $26,953.72 for expert witness fees and $24,103.75 for courtroom technology. Defendants filed an appeal. The Court of Appeal affirmed the lower court’s ruling and plaintiff was allowed to recover $24,103.75 for his use of courtroom technology to present evidence at trial. Plaintiff was even able to recover the cost of his “trial technician” for nine days of trial. If the costs are wholly recoverable, this is clearly a huge perk to using technology to present your evidence.

The Bender opinion explains what these costs consisted of, and shows how the plaintiff used technology at trial: “These costs consisted of ‘Trial Video Computer, PowerPoint Presentation and Videotaped Deposition Synchronizing and the cost of a trial technician for nine days of trial.’ Plaintiff used a PowerPoint presentation in closing argument that consisted of a detailed summary of trial testimony, documents and other evidence as well as a ‘comprehensive evaluation of such evidence vis a vis jury instructions.’ The costs included charges for creating designated excerpts from deposition transcripts and video, converting exhibits to computer formats (TIFF’s & JPEG’s), and design and production of electronic presentations.” (Id., 217 Cal.App.4th at p. 990.)

The test established in Bender concerning whether trial-technology costs were recoverable is this:

(1) Did the use of courtroom technology enhance counsel’s advocacy?

(2) Was the use of courtroom technology reasonably necessary to the conduct of the litigation?

If you can answer yes to both questions, there is a strong possibility that you may be able to recover courtroom technology costs on your cost bill. If that’s the case, all the more reason to use it to increase your effectiveness in reaching the jury.

Britany M. Engelman

Britany M. Engelman is the owner of Engelman Law, APC – a boutique law firm in Beverly Hills, CA, specializing in personal injury and employment law. She received her undergraduate degree from USC and her law degree from Southwestern Law School. Ms. Engelman is in her ninth year of practice and has been an integral part of several jury trials. She lives in Los Angeles, CA with her fiancé Jamon Hicks (civil and criminal defense litigator) and their son Jayden, age 3. Ms. Engelman enjoys sports, fine dining, rollerblading and practicing law.

Copyright © 2024 by the author. For reprint permission, contact the publisher: Advocate Magazine

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7.5: American Trial Courts and the Principle of Orality

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• Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, & Shanell Sanchez
• Southern Oregon University via OpenOregon

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At trial, the state will present evidence showing facts demonstrating that the defendant committed the crime. The defendant may also present facts that show he or she did not commit the crime. The principle of orality requires that the trier of fact (generally the jury, but the judge when the defendant waives a jury trial) consider only the evidence that was developed, presented, and received into the record during the trial. As such, jurors should only make their decision based upon the testimony they heard at trial in addition to the documents and physical evidence introduced and admitted by the court. The principle of orality would be violated if, for example, during deliberations, the jury searched the Internet to find information on the defendant or witnesses. Similarly, if the police question the defendant and write a report, the jury cannot consider the contents of the report unless it has been offered in a way that complies with the rules of evidence and the court has received it during the trial. The principle of orality distinguishes the functions of a trial court, developing the evidence, and the function of the appellate courts, reviewing the record for legal error.

The principle of orality is one major difference between the adversarial system generally followed by the United States and the inquisitorial system generally followed in most other countries. Frequently in civil law countries (for example, most European nations), the police, prosecutors, or investigating magistrates question witnesses prior to trial and write summaries of their statements called a dossier . In determining guilt, the trier of fact is presented with just the summaries of the witness statements. The trial in civil law countries is less about the presentation of evidence establishing the defendant’s guilt and more about the defendant’s presentation of mitigation evidence which assists the court in giving an appropriate sentence , or sanction.

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A. INTRODUCTION TO EVIDENCE AND HOW IT WORKS

    The Federal Rules of Evidence were enacted in 1975 and are the controlling source of evidence law. The rules have been amended over the years and were rewritten in 2011 to modernize the language and make the content clearer. Most states have adopted versions of the rules, although there are still a few -- notably California, Illinois and New York -- that have their own codes. 

    Common law principles of evidence that fill in the gaps, apply the Rules to specific situations, or address issues not covered by the FRE are generally still good law.  

    Rules of evidence are considered an integral part of the procedure for operating the court system.  Therefore, the courts have the ultimate power to say what the rules of evidence are and may disregard legislation that conflicts.

1. Evidence Rules Do Not Apply to All Court Hearings

    (A)  Civil trials.  The Rules apply in civil trials, including bench trials. It doesn’t matter if there is a jury. The rules apply “loosely” to substantive motions, especially motions for summary judgment.

    (B) Civil small claims trials.  Small claims trials are informal and the rules do not usually apply except for those concerning privileges.

    (C) Criminal proceedings

1)    Obviously, the rules of evidence apply in criminal trials, whether to a jury or to a judge alone.  The rules mostly apply to the penalty phase of a capital case tried to a jury, although rules of relevancy are generally relaxed to permit evidence of the impact on the victim’s family.

2)    In substantive proceedings other than trials, such as motions and suppression hearings, the rules apply “loosely.”

3)    In criminal proceedings other than trials, such as pretrial hearings on summonses, warrants, extradition, and bail; grand jury proceedings; and post-trial hearings on sentencing, probation and parole, the rules of evidence do not apply except for privilege

4)    In post-conviction relief and habeas corpus factual hearings, the rules governing privilege, exhibit procedures and personal knowledge apply, but not hearsay.   The judge has considerable discretion in deciding what to consider.  

5)    The rules do not apply in a hearing on a petition to revoke probation or placement in a community corrections program. However, many states follow a rule that hearsay may be used against the accused only if it is "substantially trustworthy."  

    (D) Contempt.  In proceedings for direct contempt, even where jail is a possibility, evidence rules do not apply.

    (E) Juvenile proceedings.  In preliminary juvenile matters, such as waiver hearings, the rules of evidence do not apply.  However, in full fact-finding hearings -- the juvenile court equivalent to a trial -- the rules generally will apply.

    (F) ADR proceedings.  In mediation and arbitration proceedings, the rules of evidence do not apply, except for privileges.  

    (G) Administrative Proceedings.  The Rules do not apply to administrative hearings, which will usually have their own abbreviated set of evidence rules. Privileges still apply, but the administrative law judge may relax other rules.

2. Depositions and discovery

    In general, the rules of evidence do not apply to depositions and discovery other than the rules of privilege. In depositions, Fed. R. Civ. P. 30(c)(2) provides that objections are noted by the court reporter but “the examination still proceeds; the testimony is taken subject to any objection. [An attorney] may instruct a deponent not to answer only when necessary to preserve a privilege....” The witness must answer the question, but the objection may be made again if the deposition is offered at trial. In other words, if your client is asked during a deposition if she supported Donald Trump in the 2016 elections, she must answer, but you can object to the admissibility of that information if your opponent tries to offer it at trial.

    Nor can objections based on evidentiary grounds (other than privilege) be made to other discovery requests, such as document production. You cannot refuse on evidentiary grounds to turn over copies of cancelled checks made out to the Trump for President campaign during discovery, but you can object to their being used at trial.

3. Laying Foundations

    Under Evidence Rule 104(a), rules of evidence other than privileges do not apply when laying foundations for the admissibility of an item of evidence. In other words, if a rule of evidence requires that an entry in a hospital record must be shown to have been made by medical personnel before it can be admitted (that’s a “foundation”), then the rules of evidence do not apply to proving that the entrant was a nurse.  You can use hearsay and second-hand information that would normally be excluded by Rules 701 and 802.

4. Judicial Discretion

    Evidence Rule 102 states that the Rules should be applied by trial judges to promote fairness, justice, truth-seeking and the elimination of expense and delay.  Rule 611(a) requires the judge to control the presentation of evidence so as to make the trial effective for ascertaining the truth, avoid wasting time, and protect witnesses from harassment and badgering.  These principles give the judge broad discretion in determining the admissibility of evidence, but not license to ignore the plain language of the Rules.

    Most evidentiary disputes are worked out at the trial court level.  Errors are not grounds for reversal on appeal unless “a substantial right of the party” is affected.  Rule 103(a). It’s pretty rare for a single erroneous ruling to do much harm in a trial with 12 witnesses that takes 3 days.

B. BASIC EVIDENCE PROCEDURE -- OBJECTIONS, RESPONSES and ARGUMENT

1. THE RULES. The admissibility of evidence is controlled by "rules" of evidence. The rules say that some evidence is inadmissible, some admissible, and some might be admissible if you jump through the right hoops.

These rules come from four sources (in order of importance):

     85% -- The Federal Rules of Evidence (FRE)

     10% -- Customary local practice

     3% -- Statutes

     2% -- Case law

Items of evidence are offered one at a time -- one question and answer, or one exhibit. This is sometimes called a "proffer" for no apparent reason. We will call the person offering the item into evidence as the proponent.

3. OBJECTIONS.

a. Items of evidence are objected to one at a time.  

b. It is the responsibility of the opponent to make an objection. If no objection is made, the issue has been waived, and the evidence is admitted and may be considered by the jury, even if it is a privileged irrelevant hearsay opinion. Therefore, we do not ask whether evidence is "admissible" as if there were some objective determination. We ask whether there are grounds for making an objection.

c. The objection must be made on the record when evidence is offered at trial; objections made in chambers or in pretrial proceedings are not adequate to preserve the issue for appeal.

d. Objections must be TIMELY. An objection must be made as soon as the grounds become apparent.

    1) If the grounds are apparent from the question (Q: Is Ben a member of Al-Qaeda?), the objection should be made to the question before it is answered.

    2) If the question is innocuous and the grounds arise for the first time in the answer (Q: Do you recall anything else? A: Oh, yes. Ben is a member of Al-Qaeda.), the objection should be made to the answer before the next question is asked.

    3) An objection to a document or other exhibit should be made when the opponent offers it into evidence (before the judge rules).

    4) If the grounds do not become apparent until some time after the evidence has been received, an objection will be considered timely if made at that time. For example, if a doctor appears qualified as an expert on direct examination, but on cross-examination admits he has no experience or training in obstetrics, an retroactive objection to his expert testimony is considered timely.

e. Objections must be SPECIFIC.  A good objection should do three things:

    1) Designate what item of evidence is being objected to.

    2) State the controlling rule by name ("The Prejudice Rule") or by number ("Rule 403")

    3) If a rule has subparts, specify which subpart controls.  For example, Rule 403 says evidence may be excluded if it is unfairly prejudicial or confuses the issues.  A good objection tells the judge which concept you rely on.

4. MOTION TO STRIKE. A motion to strike the testimony is required if the jury has already heard the evidence. They are used in six common situations where objections alone are inadequate because the jury has already heard inadmissible evidence.

    1)     By examining counsel when a non-responsive answer is given to a proper question.

    2)     By opposing counsel when the witness volunteers improper testimony in answering a proper question.

    3)     When it was not apparent until the answer that inadmissible evidence was going to be introduced.

    4)     To the gratuitous remarks and sarcastic comments of a witness or attorney.

    5)     When subsequent testimony demonstrates that earlier testimony was inadmissible, or the opposing attorney fails to connect up earlier testimony that was admitted conditionally and show its relevance.

    6)     When an objection could not be imposed before the evidence was admitted, as when there is not time for objection.

    It is not a remedy for negligence, however. If the objectionable nature of the evidence was apparent from the question, failure to object waives the right to have the answer stricken. If you realize too late that you should have objected earlier, a motion to strike the previous evidence will not save you. The court in its discretion may grant a late motion to strike if an objectionable question was answered so quickly there was not time to object, or if some other justifiable excuse exists for an attorney’s failure to object at the time the evidence was offered.

5. RESPONSES TO OBJECTIONS.

    a. A response is optional. The proponent may argue, may withdraw the evidence and try again, or may remain silent and let the judge rule.

    b. Responses if made must be specific in three respects: which items of evidence you think are admissible, which rule applies, and what specific language in the text of the rule supports admissibility.

    c. You can make three kinds of arguments:  1) the evidence at issue is not the kind of evidence prohibited by a rule, 2) although the evidence is prohibited by the main rule, it falls within an exception (either explicit or implicit)  that allows it, or 3) admitting the evidence is within the judge's equitable discretion to admit because it will make the trial more fair or better advance the search for truth.

6. ARGUMENTS BY LAWYERS.. Arguments in opposition to and support of admissibility are supposed to be conducted outside the hearing of the jury. You do not have a right to argue, and some judges rule very quickly.

7. THE JUDGE MUST RULE ON THE OBJECTION. Rule 102 gives the judge broad discretion. The judge's choices are:    

    a. SUSTAIN the objection and exclude the evidence entirely.

    b. OVERRULE the objection and admit the evidence entirely.

    c. Issue a CONDITIONAL ruling, either admitting or excluding the evidence tentatively, pending other evidence that is important to its ultimate admissibility. Rule 104(b).

    d. Admit the evidence for a LIMITED purpose while instructing the jury not to consider it for a different purpose.

8. AFTER THE RULING

    a. REMAINDERS. (Rule 106 and common law "rule of completeness"). If the judge has admitted part of a document, conversation, or transaction that is potentially misleading in relation to the whole item, the opponent may request and the judge may rule that other relevant parts be admitted at the same time.

    b. OFFER OF PROOF. If evidence was excluded and the offering attorney wants to include that issue in his or her appeal, the attorney must at the time of the adverse ruling make an offer of proof that places the substance of the excluded evidence into the record. .  A party has a right to make an offer of proof and it is reversible error for the judge to refuse it.  

    1). Complicated version. The jury is removed from the courtroom, and the witness is questioned exactly as if the jury were present.

    2) Simple version. The attorney submits a written or oral summary of the excluded evidence out of the hearing of the jury. No particular level of detail is required, as long as the record is clear what the anticipated testimony would have been and is in sufficient detail for the court of appeals to determine whether it would have been admissible.

    3) If a witness is ruled incompetent to testify or otherwise prevented from testifying, the attorney usually must make a detailed offer of proof containing a full description of the evidence the witness would have given, including the foundation showing the witness's competence to testify.

    4) If the ruling excludes an exhibit, a copy of it should be included in the record.

c. ADMONISHING JURY TO DISREGARD. Upon request, the court should admonish the jury to disregard information which has been struck or limit the way it can be used.  However, counsel usually should not request such an admonition. Empirical studies show that the effect of such an admonition is to aggravate rather than ameliorate the harm from improper evidence.  See Tanford, Thinking About Elephants:  Admonitions, Empirical Research and Legal Policy, 60 UMKC Law Rev. 645 (1992).  

9. APPEAL. Bad evidentiary rulings are rarely appealable. Rule 103 says "A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party." In a long trial with lots of witnesses and 50 hours of testimony, it is highly unlikely that any one erroneous evidence ruling will have affected a substantial right of a party.

10. WAIVER. An objection to evidence must be properly preserved in order to raise that issue on appeal.  Failure to preserve the issue is considered a waiver.  There are three main ways that the ability to appeal may be lost even though a timely, specific objection was made:

    (1)    If the proponent offered similar evidence, the issue is usually waived. However, if a specific objection is overruled, the losing party may introduce rebuttal evidence on that issue to minimize the damaging effect of the evidence objected to without waiving the objection.

    (2)     If the proponent did not object to similar evidence from the same or a different witness, the issue is waived.  This includes failure to renew an objection to the same evidence if it is re-offered at a later time.

    (3)     If co-defendants are being tried together, failure of a defendant to join in a co-defendant's objection is a waiver. 

11. CONTINUING OBJECTION. If the first objection to a line of testimony or series of exhibits is overruled, it may not be necessary to repeat the same objection to every subsequent similar item of evidence.  The objecting party may ask the trial court for permission to enter a continuing objection, which preserves the issue for appeal without the disruption of a series of identical objections. The proper procedure is to ask the court to consider the same objection made each time a class of evidence is offered, being specific as to the grounds and the definition of the class of evidence. Whether to permit a continuing objection is a matter for the trial judge's discretion.

12. OBJECTIONS TO INTERROGATION BY JUDGE. Judges may question witnesses as long as they do so impartially. If the judge asks improper questions, seeks to elicit incompetent testimony, or acts partially, an objection must be made either at the time of the misconduct or at the next available opportunity outside the hearing of the jury.

13. OBJECTIONS MADE BY THE JUDGE. The court on its own motion may object, strike testimony, and prevent inadmissible evidence from reaching the jury to preserve the fairness and integrity of the trial.  The judge may make sua sponte objections as long as the judge does not thereby become an advocate for one side.  Although a judge must remain impartial and refrain from unnecessary intervention, the judge also has a duty to see that the trial is properly conducted.

14. PRETRIAL EVIDENTIARY MOTIONS

(A)  Motion to exclude evidence.  Inadmissible evidence may be tentatively excluded by a pretrial objection commonly known as a “motion in limine.” However, a ruling on this motion is not final and preserves no issue for appeal.  If the motion is denied, a new objection must be made at the time the evidence is offered at trial.  If the motion is granted, the proponent of the excluded evidence must approach the bench during trial and make an offer of proof in order to preserve the issue for appeal.  

(B)  Motion to admit evidence.  Although less common, a pretrial motion also may be made to admit evidence, e.g., a motion requesting that the court take judicial notice.  This procedure may be used when a party seeks to introduce evidence which is presumptively inadmissible, such as a polygraph test or a rape victim’s sexual history.

(C)  Motion to suppress illegally obtained evidences.  In criminal cases, a pretrial motion may be made to suppress evidence obtained through illegal or unconstitutional means.  If the motion is denied, the defendant must still make an objection to the evidence when it is introduced at trial to preserve the issue.

(D)  Motion to exclude unreliable scientific evidence.  The so-called Daubert rule (see topic 13) conditions the admissibility of expert scientific testimony upon the judge’s finding that it is scientifically reliable.  This determination will usually require a pre-trial hearing on a motion to exclude the proposed expert.

15.  “EXCEPTIONS” NOT REQUIRED. In some older movies, you will hear attorneys say the word “exception” following an adverse ruling on an objection. This was an antiquated procedural device under California law for designating issues for appeal. Exceptions are not required under the FRE or any modern evidence code.

Trial Presentation 101: Impactful Courtroom Demonstratives

• Michael Beumer

TRIAL PREPARATION SERIES | PART THREE of THREE

A looming trial or hearing date is no reason to panic. As we have described in PART 1 and PART 2 of our blog series, if your trial team has kept a well-organized and thoughtful document review and deposition process, your trial preparations and courtroom presentation should come together naturally. 

The key to making impactful trial presentations and graphics is not necessarily doing anything novel, but creating a cadence and drawing attention to the key points you’re trying to make. Your review team should have identified most of your key points when reviewing evidence. Organize it so that the most important and clear-cut examples can be easily found by the trial team.  

You must relate the most compelling story possible when your matter is tried in front of a judge, panel, or jury. Here’s how to do it.

★  In Trial Presentation, Simple Is Better

Above all, keep your courtroom presentation simple. Even if you have uncovered a mountain of damning evidence, your job in presenting your case is to tell a simple and clear story. When presenting, don’t overwhelm your audience and don’t die by bullet point. The less clutter on a slide, the more memorable your language and imagery, the more powerful the message will be. 

Once ESI has been reviewed for relevance, only a few key pieces or passages might actually be presented at a deposition , hearing, or trial. Consider how you’re organizing your presentation. 

The bullet points you use should be descriptive but succinct. Your timeline should be clear and easy to understand. Use charts, quotes and visual images to draw the viewer in and tell your story, not just illustrate a chronology. As discussed in our Taking Depositions post, a timeline not only organizes your evidence, but helps find patterns to define and accentuate your story. 

★  Timelines in Trial Presentation

To ensure your courtroom presentation is on point, use analytics to see date ranges and help determine your starting and ending points. Metadata can sort evidence by date so that you can organize it in a timeline view and can see patterns over time. 

These timelines are functional, but they can also be given to a professional graphic designer who can create a simplified, polished timeline slide for presenting in court. ( Reach out to Nextpoint for help with your trial graphics.)

Once your trial team and creative team understand key themes, the timeline becomes a roadmap or case brief. It will help set the stage for the audience and identify your cast of characters. Just like a good novel, consider the conflicts. Consider the rising action that brought conflict in the case. Then help lead the audience to a logical conclusion.  

One of the most difficult questions is how to manage complex electronic data. Data is an important part of most litigation today. The aim is to create custom graphics to complement the data and make it more digestible for a judge, arbitration panel, or jury to follow. 

Alternatively, you can employ a true exhibit presentation platform (such as Nextpoint, Trial Director or OnCue) to present data using callouts to make the data or financial information easily comprehensible. 

★  The Tools of the Trial Presentation Trade

As you receive designations from opposing counsel, organize them side by side with yours. In Nextpoint, reporting features allow you to discover what designations have been made. You can also see if there are any discrepancies and any objections you might raise. Issue tagging and coding in review will help make your key points and themes clear. We pointed that out in our recent post  on trial preparation.

In addition, you can view designation types and search across all depositions easily. This means information can rise to the top so you can have a vertical view to leverage transcripts of depositions . This is especially useful for MDLs or large scale litigation which may involve depositions and evidence from other jurisdictions or matters. 

If you’ve done this work ahead of time, creating final exhibits will be much easier. In fact, many of our clients will run presentations from their trial database . Simply call up documents and video as needed and replay important designations or clips. 

Callouts make great visuals. But professional designers or a good slide template can make even more powerful presentation materials. 

Modern trial databases are great tools for organizing and presenting your case. But we also believe in old-fashioned courtroom presentation materials. As courts go back to in-person meetings, a mixed media presentation should include digital exhibits on your presentation platform. You can also include a poster board that you can point to in the courtroom or arbitration room to hammer home important points. 

★  Want to Learn More?

Check out Parts 1 and 2 of our Trial Preparation Series:

• Trial Preparation 101: Strategies for Building Winning Arguments outlines the strategic aspects of trial planning
• Taking Depositions: Preparation Strategies for Attorneys   explains how to get the most out of your depositions and manage them alongside the rest of your case

And download our comprehensive eGuides on case building and deposition prep

If you’re looking for help with your courtroom presentation or any part of the litigation process, please reach out to the experts at Nextpoint . We can help you create custom graphics for your presentation, provide assistance in person when you go to trial, and so much more.

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• Trial Presentation
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8 Essential Attorney Tech Tools for Trial Presentation

Nextpoint trial preparation and oncue software, how to prepare for your next hearing, conference or trial.

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• Getting Ready For Trial

Most of the progress of a federal case happens in what is called the pretrial phase, and will include actions that must occur before the start of the trial.  Strict rules and policies dictate what happens at the pretrial stage of both types of cases.  This is to be sure both sides are treated fairly and are afforded their rights equally.   At the federal level, all filings, including briefs , are made electronically online.  All hearings and trials happen in a courtroom that is open to the public, except in rare cases such as when a juvenile is involved.

• Civil Pretrial
• Criminal Pretrial
• A person or entity (the plaintiff ) files a civil complaint against another person or entity (the defendant ).
• The plaintiff must serve the defendant with the complaint by officially delivering it to them in person or electronically.
• The defendant files and serves an answer , which is their response to the complaint.
• If the defendant fails to respond, the plaintiff can request default judgment , meaning the case would be decided in favor of the plaintiff.
• After the complaint and answer, the judge meets with the lawyers to work out a schedule.  The judge issues a case management order , setting all dates and deadlines needed to manage the case.
• The judge may refer the parties to alternative dispute resolution / mediation , where the parties may reach a settlement without the need for a trial.
• If settlement cannot be reached, the case moves toward trial.
• To prepare for trial, both sides will conduct discovery .  During discovery, both parties gather all the information and evidence they will present in court.  Both sides can take depositions of witnesses.  Either side can request documents and statements from the other side when building their case.
• Both parties are required to disclose everything they’ve collected about the case to each other, during the pretrial phase.  It’s common for a settlement to be reached after discovery, but before trial.
• For example, either party can file a motion to compel the other party to give up certain evidence needed for discovery.
• A motion in limine asks the judge to exclude certain evidence from being used by the other side.
• Another common motion filed is for summary judgment , which requests the judge to rule for the party filing the motion. The party filing the motion for summary judgment will argue that no facts are in dispute, so there is no need for a trial.
• The attorneys for both parties are required to attend a final pretrial status conference to inform the court how they are proceeding in preparation for trial.
• Suspicious activity occurs and is investigated.  An arrest may happen at this stage.
• The U.S. Attorney in that federal district seeks an indictment from the Grand Jury .  The grand jury sees evidence and hears testimony.  Only the prosecution presents evidence to the grand jury.  The accused person does not have any right to present evidence to the grand jury.
• The grand jury decides if there is enough evidence to proceed with prosecution or not. If not, the case is dismissed.
• If an indictment is issued, the prosecuting attorney for the government seeks an  arrest warrant  from a judge.  The  defendant  can surrender, or may be arrested by the U.S. Marshals Service.
• The defendant meets with a Pretrial Services Officer , who prepares a report recommending whether or not the person should be released on bail.
• The defendant appears before a  Magistrate Judge  to hear charges – called an initial appearance .   At this hearing, the defendant is asked if they have an attorney, or if they need an attorney appointed for them because they can’t afford it.
• If the government’s attorney seeks to have the defendant detained until trial, a detention hearing is held.  The defendant is present, and is represented by a lawyer, at this and all future hearings.  The judge will use the report from the pretrial services officer, among other things, to make the decision.
• The defendant is either released on bail or kept in custody until the next court date.  If released, the defendant usually must follow conditions like submitting to drug testing and reporting to a pretrial services officer while awaiting trial.
• The defendant appears before a magistrate judge to be formally advised of the charges, and to enter  not guilty plea  – this is called an  arraignment .
• If plea is later changed to guilty, a hearing is scheduled before the  District Judge for the defendant to enter the  guilty plea .  After entering a guilty plea, the defendant will then meet with a  Probation Officer , who prepares a pre-sentence report.  The defendant will appear before a district judge at a separate hearing, to be  sentenced .
• If the plea is not guilty, then the attorneys will begin preparing for trial.  During pretrial  discovery , the defense attorney and the prosecuting attorney conduct an investigation to gather all the information and evidence they will present in court.
• The government must  disclose  the information and evidence they have against the defendant, so that the defendant and their attorney can prepare the defense.
• Both sides can file  pretrial motions  seeking information from the opposing side or  rulings  from the judge.  The defendant can seek to  suppress   evidence, statements, or identification that were obtained in violation of his/her constitutional rights, or otherwise challenge the charges.

Let’s Make a Deal

Realistically, only a small percentage of federal cases, criminal or civil, actually go through the entire trial process.  Because trials are risky, many parties look to settle their differences during the “pretrial” phase of the process.

In criminal cases, the defendant will likely get a shorter sentence or less harsh punishment by accepting responsibility by pleading guilty.  The prosecutor may agree to drop some of the charges if the defendant admits guilt.  The defendant’s attorney works with the prosecutor to come to terms both sides can agree with.  These pretrial negotiations, sometimes called a plea bargain , do not involve the judge until the defendant formally changes their plea from not guilty to guilty.  At that time, the judge will put the defendant under oath, and ask a series of questions to determine not only that the defendant is competent to enter the plea, but also that he is doing so truthfully and willingly.  Once the judge accepts the guilty plea on the record, a sentencing hearing is scheduled for a future date. Visit the Student Center page about Your Day in Court to learn more.

In federal civil cases, the judge often recommends or requires the parties to attempt to reach a settlement in the pretrial phase.  This often takes the form of Alternative Dispute Resolution(ADR) or mediation .  This provides a cheaper and faster way for parties in a civil law suit to settle their disagreement without a full trial.  This process is non-binding until an actual settlement is reached, so the parties can request an actual trial at any time.  An impartial person, sometimes called a neutral or a mediator , facilitates discussions between the two sides, to assist them in coming to an agreement.  Many civil disputes must first go through the mediation process, by order of the judge.  All mediation proceedings are confidential, and never become part of the court record.  If the parties don’t reach a settlement this way, the case will continue to proceed through the court system.

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The Trial Process

This webpage presents an overview of the formal processes and proceedings in any civil trial and a link to separate webpage that presents the specific chronology of events in the Woburn Toxic Trial . Links are also available to videoclips of Ohio State University students performing these tasks in a mock trial.

There are four main stages to a trial. In sequence, they are:

• Pleading Stage - filing the complaint and the defense's motions.
• Pretrial Stage - discovery process, finding of facts.
• Trial Stage - seating of the jury, testimony on behalf of the plaintiffs and testimony on behalf of the defendants.
• Post Trial - concluding arguments, judge's charge to the jury, jury deliberations, announcement of judgment, motions for new trial or appeal.

Pleading Stage

• Filing a Complaint - In civil proceedings the complaint is the official engagement of the plaintiff with the defense regarding the proposed "injustice" caused by the defense. This is a formal document submitted by the plaintiff to the court having jurisdiction over the complaint.
• Summons - Notification by the court in which the complaint is filed as an action being brought against the defense. Service of the summons typically requires a response from the defense within a 30-day period. No response from the defense can trigger a default judgment for the plaintiff.
• Motions to Dismiss - These are the defense's response or answers to the plaintiffs complaint. The responses are typically filed as motions and are intended to dismiss the claims expressed in the complaint.
• Motion for Judgment - Following the defendants response to the plaintiffs claims, the parties can either choose to settle or request a judgment based on the evidence presented, or the court can decide to continue toward resolving conflict at trial. If there is no judgment made, the case proceeds to the pre-trial stage.

Pretrial Stage

• Discovery or Finding of Facts - There are generally two aspects of discovery. One consists of a series of questions, known as interrogatory questions , which are posed by the plaintiff's attorney to the defendant's attorney. The other consists of recording a witnesses sworn testimony, known as a deposition . Depositions typically take place outside the courtroom, before a court recorder, with opposing counsel asking questions of the witness.
• Motion for Summary Judgment - At the conclusion of discovery, the court will typically review the facts of the case and determine if there is sufficient merit to proceed to trial or to encourage the parties to settle. If the finding of facts determines the case to be frivolous or non-substantiated, the case is dismissed.
• Pretrial Order - If a substantial basis for the case is determined, the court will meet with and notify the parties of the trial schedule.
• Jury Selection - From a pool of potential jurors, individuals are questioned in a process known as voire dire to determine suitability to serve as impartial juror in the specific case. The judge and counsel for both parties are involved in voire dire process, with each party trying to impanel individuals who may be sympathetic to their cause.
• Opening Statements - Statements to the jury made first by the plaintiffs' attorney and then by the defense attorneys setting up the circumstances and rationale of the legal complaint (plaintiffs) and the reasons for dismissing the claim (defense).

Click here to see a videoclip of opening statements from one of the Ohio State mock trials.

• Plaintiff Testimony - The first part of the actual trial proceeding consists of the plaintiffs presenting their witnesses and experts to present the arguments and justifications for the complaint. The defense is permitted to cross-examine each witness in an attempt to dismiss, discredit, or disprove the witnesses statements.

Click here to see a videoclip of direct testimony from one of the Ohio State mock trials.

• Defense Testimony - After the plaintiffs' case is presented, the defendants present their case in much the same way using witnesses and experts that present direct testimony, followed by cross examination by the plaintiffs' counsel.

Click here to see a videoclip of cross examination from one of the Ohio State mock trials.

• Redirection and Recall - At the discretion of the judge, each witness can be redirected after cross examination by either the counsel. If critical information is not divulged during the initial testimony, counsel can request to recall a witness to the stand for additional questioning and cross examination.
• Closing Arguments - Counsel for the plaintiffs and defense summarize their clients positions to remind the jurors of the facts presented in their case and to convince the jurors of veracity of their cause. Closing arguments are typically intended to be dramatic and pointed for effect.
• Charge to the Jury - The judge orally provides the jury with specific instructions regarding its evaluation of the case. The jury is then dismissed to deliberate, in private, the outcome of the case.

Click here to see a videoclip of the jury charge from one of the Ohio State mock trials.

• The Verdict - Following deliberation, which may take hours to days, the jury presents their finding(s) to the court.
• Judgment - Following the receipt of the verdict, the court can rule and concur requesting final judgment, or determine if a new trial is required, or if the case should be dismissed.

Post-Trial Stage

• Appeals - The party that the court ruled against has the right to file an appeal for the case to be heard in a court at a higher venue.

Handbook given to jurors serving in U.S District Courts.

Some of the key issues related to the Woburn Toxic Trial are shown on the time table presented in Chronology of the Woburn Toxic Trial .