TRIAL TACTICS: A Judge’s Answers on Evidence

Vol. 38 No. 2

Jeffrey Cole is a magistrate judge in the Northern District of Illinois, Chicago.

Q: To be a successful trial lawyer, is it really necessary to understand the Federal Rules of Evidence or their state law counterparts?

A: Nothing could be more essential! Great trial lawyers become great in one way only—through painstaking preparation of every facet of the case, not the least important of which is a thorough knowledge of the relevant evidentiary issues in the case.


Q: How do you go about really understanding the rules of evidence?


A: Almost no one comes out of law school with the necessary feel for the rules. A first step is to read a treatise or manual on the Federal Rules of Evidence or their state law equivalents. You should also read the decisions of the court of appeals in your circuit or state. I think it’s helpful to keep a database of the significant decisions dealing with evidentiary issues. You will have a ready source of precedent for briefs and memoranda, whether in the trial court or the court of appeals.


Q: Which evidentiary issues seem to give lawyers the most trouble?

A: Without a doubt, it’s the hearsay rule. Yet, the rule is not particularly complicated. Think of it this way: When an out-of-court statement is offered to prove the truth of what is being asserted, it is the credibility of the person making the statement that counts. And if you can’t cross-examine that person so that the fact-finder can assess that credibility, the hearsay rule bars the statement.


Q: Are there any other rules of evidence that seem to give young lawyers difficulty?

A: Surprisingly, Rules 401 and 403 are not given the attention they require. Rule 401 defines relevance and governs literally every single piece of evidence in every case. If it isn’t relevant under Rule 401, it’s inadmissible under Rule 402.


Q: Do you find that young lawyers do not understand as well as they should the rules governing objections to the admission of evidence?

A: Yes. And that follows from not knowing the rules of evidence, themselves. For example, if you don’t understand the exception to the hearsay rule for records of a regularly conducted activity under Rule 803(6), you won’t know when you can properly object and you won’t understand what the foundation requirements are for those kinds of records.


Q: What are your thoughts about experts?

A: There is scarcely a case of any significance or complexity tried today that does not involve experts. This often means extensive expert discovery, which is followed almost invariably by motions to bar the expert. It is imperative for young lawyers, who generally have the burden of preparing and responding to these motions, to have a real grasp of Rules 702 and 703 of the Federal Rules of Evidence.


Q: What is your view of the overall quality of briefs that you see and how can they be improved?

A: Most often at the trial-court level, briefs are superficial, uninformative, and sometimes not supported by case law. And, more often than not, they do not even cite cases from the highest court of the jurisdiction in which the trial court sits and almost never bother to cite a case from the judge deciding the issue in the briefs. Finally, all too many briefs with lengthy exhibits contain no reference to the particular part of the exhibit on which the brief relies, contenting itself with a citation to the exhibit as a whole.


Q: Are motions in limine important or should you just wait and object at trial so as not to give your opponent advance notice and an opportunity to prepare?

A: Motions in limine are critical, and they should be prepared with care. They should be carefully researched and explained, and if an issue is important, it should be raised before the trial.


Q: Should exhibits be marked in advance or marked by the judge’s clerk as you go along?

A: Marking exhibits in advance is imperative. In the federal court, it’s required.


Q: Should each member of the jury have a book of exhibits?

A: If you want the jurors to understand what’s going on in the case, they should each have a book of exhibits in front of them so that they can follow along as the exhibit is being discussed by the witness. The only caution is that the jury should not be allowed to look at any exhibit until it is introduced into evidence.


Q: When exhibits are introduced into evidence, are you allowed at that time to have the witness read part of the document to the jury?

A: Once a document is in evidence, not only do you have the right to have the witness read the relevant portions, but it doesn’t make any sense to keep the jury in the dark by not doing so. Sometimes you will hear an objection, “the document speaks for itself.” That objection is baseless, and it arises from a misperception of the rule that prohibits a witness from giving his or her opinion about the content of a document.


Q: When should jury instructions be prepared?

A: They should be prepared as early as possible in the case. Doing so will give you a real understanding of what you have to prove and will help you better plan discovery.


Q: What mistakes have you seen young lawyers make?

A: I think the major mistake is not having a sufficient understanding of the rules of evidence and treating motions in limine as if they were an afterthought that didn’t require much effort. There are many very significant evidentiary issues that require meaningful briefing in advance of trial. Either individually or collectively, these can determine the outcome.



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