Save Yourself Some Embarrassment by Doing it Right at Your First Trial!
Avoid Pulling a DSmizzle at Your First Trial!
Pulling a DSmizzle:
The days leading up to an attorney's first Courtroom trial are nerve-wracking; during the lead-up to their first appearance, their brains veritable breeding grounds for racing thoughts as they keeping thinking of more and more basic elements of trying a case that they have to be prepared for. Almost 10 years after trying my first case, I can look back and laugh at how the newly-admitted DSmizzle as he obsessively practiced everything from simply stating his appearance on the record (true story, even simple Court appearances in uncontested matters got my nerves going) to dealing with slightly more complicated matters such as making objections on the record while a witness is testifying (if merely stating my appearance on the record intimidated me, you better believe the idea of affirmatively interrupting the entire Courtroom during a trial was almost unfathomable!)
My first trial started off just fine. Against all odds, I was able to state my own name, my law office address, and the name of my client and identifying which party she was in that case. Thereafter, I got a little mental break to calm my nerves, as my opposing counsel represented the party who presents their case first as a matter of procedure. I even made two objections, one of which was sustained!
After the first witness finished her direct examination, it was time for my first ever cross-examination. Having obsessively prepared myself for this rather uncomplicated undertaking, despite an awkwardly robotic and blatantly overly-rehearsed demeanor, I asked the questions that I intended to ask, and elicited the answers I wanted to those questions. I got to a point where I wanted to show the Court to see a hand-written letter from the witness to my client, sent some 5 years prior.
After asking some background questions as to whether the witness had, in the past 5 or so years, sent my client a hand-written letter in which she wrote "X, Y and Z," and after a few "yes" and "I don't recall" answers, I wanted the Court to see that letter. And I froze. Despite all of my obsessive preparation for my first trial, I had totally forgotten to prepare notes of a "game-plan" for getting that document into evidence. At that moment, I was so frozen that - had the Court asked me what I wanted to do - I'm not even sure that I'd have been able to respond with a simple"Your Honor, I wish to offer this document into evidence."
Thankfully, opposing counsel had not forgotten that he was once in my shoes, and - after getting a dig in ("Mr. Smith, do you want to offer that document into evidence or something?") - he helpfully added "if so, I suggest asking the Court to mark it for identification." I was saved after having stood there frozen for more than a full minute, my humiliation increasing by the second. Everyone in the Court - including my own client who paid my office good money to handle her case - was sitting there in awkward silence, fully aware that I was lost at that moment. In any event, I regained my footing and got that document into evidence as I had intended. My client prevailed and very much appreciated my representation of her, notwithstanding her having likely suffered from severe second-hand embarrassment for me during my moment of silent shame and desperation.
While there is of course an overall, general learning process for newly-admitted trial attorneys, this specific embarrassing scenario is very common. I tell all young attorneys who I know are trying their first cases to remember to have a little "cheat-sheet" regarding how to go about offering and getting exhibits into evidence. This sort of humiliation is entirely avoidable, as the process is rather straightforward.
With the goal of helping others avoid making the same mistakes I've made, below I provide a general outline for new trial attorneys regarding the basics of offering an exhibit into evidence.
There is a famous scene in John Grisham's novel The Rainmaker and its movie adaptation in which the lawyer / main character, played by Matt Damon, stumbles and bumbles his way through the exact same situation I described above. Unfortunately, I was unable to find that scene on YouTube, so I instead linked another funny clip from the movie. If you are interested in reading the novel or watching the movie, I have provided Amazon links for them below.
The Rain Maker - a John Grisham Novel
Oh, the Things You Don't Learn in Law School!
The Rain Maker - The Movie
Laying a Foundation and Offering Exhibits Into Evidence
For the purposes of this article, I am going to pick the proverbial "low-hanging fruit" and keep things simple, creating a hypothetical similar to my own first experience in Court where I found myself attempting to get a hand-written letter into evidence (audio and video recordings aren't difficult to authenticate in most States, but in my experience, evidence in the form of a document that you believe bears some relevance to the case is the most frequent type of evidence offered at most trials.)
Let us also assume for the purposes of this article and our hypothetical that - assuming you don't pull a DSmizzle and go all "dear in headlights" because you forgot to go over the simple process of how to go about getting something into evidence - getting this document into evidence should be a cake-walk.
Laying a Foundation:
Laying a foundation in this hypothetical is about as simple as it gets, as the witness is the person who wrote the hand-written letter in question and there is not going to be any dispute in that regard.
Specifically, assuming that you took the time to prepare yourself to handle the mechanics outlined in the next section of this article, the questions you will be asking to lay a foundation are essentially going to consist of the following:
(1) Q: "Mrs. Doe, do you recognize this document?" A: "Yes"
(2) Q: "What do you recognize it to be?" A letter I wrote to my mother, like 5 years ago when we weren't getting along."
(3) Q: "And whose handwriting is that on the letter?" A: "Its mine; I just told you I wrote it!"
(4) Q: "And on the last page, where the letter is signed, whose signature is that?" A: "Mine."
(5) Q: "And is the copy of that hand-written letter in front of you right now a copy of the entire letter you testified a moment ago that you wrote and sent to your mother about 5 years ago?" A: [being cagey] "I can't be certain, it was 5 years ago!"
(6) Q: "Okay, that's fair enough. To the best of your recollection, is the document you have in front of you represent a complete copy of the letter you testified that you wrote to your mother about 5 years ago?" A: "Probably, yes."
Okay, I See That Laying a Foundation is Easy Enough, But How Do You Get to That Point? How Did the Witness Get a Copy of that Exhibit in Her Hands? Where am I?
The specifics may vary slightly between different tribunals, but in general the following is a step-by-step reference guide that should be applicable across the board regardless of the venue:
I. If Possible (e.g., if the Exhibit is a Document, Photograph or Other Item That Can be Readily Reproduced), Make Sure to Make Copies to be Provided to Opposing Counsel:
Many Courts will expect that you have made copies of the exhibits that you are offering into evidence, unless doing so would be unduly burdensome or impossible (for example, if you are offering a weapon into evidence in a murder trial, you simply can't have a copy made to be distributed to your adversary, but you can easily make a copy of a letter or an audio recording, etc.)
It also makes a great deal of sense to make a copy for the Judge to reference, if the Judge so desires, because the exhibit will typically be in the hands of the witness during the process of laying a foundation and authenticating the exhibit.
II. Get the Court to Mark the Exhibit:
Before an exhibit can be offered and accepted into evidence (at which point it will typically be referred to as "Plaintiff's Exhibit A" or "Petitioner's Exhibit 1," etc.), you will need to get the Court to "mark" that exhibit.
Having an exhibit "marked" is undertaken for "identification" purposes. Put most simply, this provides a method through which one out of potentially dozens (or even hundreds) of exhibits can be organized in the proceedings before the Court.
Most commonly, to have an exhibit marked for identification purposes, all that is required of you is to say, in words or substance:
"Your Honor, I ask that the Court mark this document as Plaintiff's 1 for identification purposes. I have made copies of this document for opposing counsel and the Court." [the Court and opposing counsel will often want to cross-reference the exhibit with the purported copies you circulate.]
At this point, typically a Court Officer will approach you to take the exhibit from you and bring to the Courtroom Clerk, who will literally "mark" it with a stamp or sticker that says "Plaintiff's 1 for ID." Finally, the Courtroom Clerk gives the "marked" exhibit back to the Court Officer, who, in turn, returns the "marked" exhibit to you.
That's it; you've gotten an exhibit marked! You're the next Atticus Finch!"
The evidence before the Court is uncontrovertible; there's no need for the jury to retire!
III. Ask For Permission to Approach the Witness to Show the Exhibit to Her:
Your freshly "marked" exhibit in hand, it is now time to say "Your Honor, I ask for permission to approach the witness."
The Court will almost certainly grant you the permission to do so, at which point you will say the following:
"Mrs. Jones, I am handing you what has been marked as "Plaintiff's Exhibit 1 for Identification."
IV. Laying the Foundation:
V: Offer the Exhibit Into Evidence:
Now that the foundation has been laid and the witness has authenticated the exhibit, it is time to move to have the exhibit introduced into evidence.
The Court will then ask the other parties whether there are any objections. Be prepared in advance to argue the most obvious potential objections, such as relevance. For example:
Point: "Your Honor, I object on relevance grounds. This letter is 5 years old; it is meaningless!"
Counterpoint: "Judge, perhaps the age of this document would not be relevant if the Defendant herself had not testified that she has assisted her mother for the past 10 years. This letter, which the Defendant has acknowledged she sent to her mother 5 years ago, very clearly and unambiguously states that - as of the date that letter was written - the Defendant hadn't seen her mother for 2 and 1/2 years. As a result, this letter couldn't be more relevant!"
Judge: "Objection overruled. The exhibit that is marked Plaintiff's 1 for ID has been accepted into evidence."
If you are now finished with this exhibit for the time being, the Court Officer will then retrieve the exhibit from the witness and deliver it to the Court (either the Judge or Courtroom Clerk.)
Later on, if you wish to ask another witness questions about this document, you will ask the Court "Your Honor, I would like to show this witness Petitioner's 1 in evidence," and the Court Officer will take it from the Court and deliver it to the witness.
Great work! By spending 5 minutes outlining the steps above, you've successfully avoided "pulling a DSmizzle" and embarrassing yourself the first time you attempt to show a document to a witness or to the Court!
Now you can move on and obsess over other aspects of your first trial. You've avoided one of the most common awkward situations many, if not most, young attorneys trying their first case find themselves in!
I hope this article is useful. However, keep in mind that being embarrassed like I was can actually help in the long run. Whereas I was a deer in headlights at the time and everyone in the Courtroom was watching me stumble, at this point in my career I am able to take everything in stride. Lose an argument about an objection? Move right along. Be reprimanded by the Judge for something? Sincerely apologize to the Judge and move on; it happens to every attorney! Did you just freeze up and lose your chain of thought and forget where you are in your line of questioning? Chill out! Just say to the Judge "just one moment, Your Honor," get your bearings (refer to your notes or even ask the Judge to have the Court Reporter read back the last question), and move on.
Now, having stated that suffering through such embarrassing incidents can actually be beneficial to a trial attorney, do everything within your power to avoid doing so; DSmizzle has suffered before you. Just pretend his experience (which seemed like the end of the world at the time) was your own. Good Luck!
Eric Dierker from Spring Valley, CA. U.S.A. on May 11, 2014:
That is really cool. That sure makes sense also. Good for you, a real lawyer!
DSmizzle (author) from Long Beach, New York on May 11, 2014:
Thanks for reading and commenting Eric. California's rule seems to make sense, but I agree with the sentiment about the art of evidence and the importance "thinking / reacting on your feet" being diminished by those practices.
Some additional background on the area of law I practice that will probably keep the present state of affairs as they are for me at least: the vast majority of the trials I handle are "Guardianship" cases, which are "special proceedings" in New York. As such, there is no discovery or pre-trial witness lists, etc. By statute, even the most highly-and-bitterly contested cases go to trial (or a "Hearing") in the State Supreme Court within 28 days of filing a Petition. It's quite a task to cross-examine, for example, a handwriting expert when you first learned they'd be testifying for the other side that same day! But, since all parties and their counsel are on "even playing ground" in this regard, the art of evidence and trial practice are not yet lost.
Thanks again for your comment.
Eric Dierker from Spring Valley, CA. U.S.A. on May 09, 2014:
Well done article. Here in California it is now all done before trial to speed up trials. Very sad and the art of evidence is missing.
My technique in your situation was to ask the court to examine the document and then ask some foundation question (voir dire in fact)and then ask it be admitted. That way it got in as it inevitably would but the jury thought I wanted it in --- and that was the rookies penalty.
Great memories -- thanks