Trial Evidence


In-depth analysis and practical advice on topics relevant to your practice. Find all of the Trial Evidence Committee’s articles in this archive.

Untitled Document


Best Practices for Voir Dire
By Chris Barrett – February 17, 2021
Voir dire is a critical part of effective trial advocacy and deserves practitioners’ preparation, focus, and thoughtful consideration.

How to Turn Complexity into a Compelling Case at Trial
By Roger J. Marzulla – February 17, 2021
Three tips for preparing even the most complicated case for trial by distilling the evidence to core documents and testimony that can be presented as a “trial in a box.”

Admission of Administrative Agency Documents in a Federal Trial
By Michael R. Lied – February 17, 2021
When responding to arguments concerning the admissibility of documents from an administrative agency, such as the EEOC, be prepared to explain to the court how it should balance the probative value of the documents against the potential prejudicial effect on the defendant.

Exposing and Preventing the Use of Reptile Theory During Jury Trials
By David R. Kott, Natalie H. Mantell, and Meghan McSkimming – February 17, 2021
How to deal with strategies by plaintiffs’ counsel to appeal to the “reptilian” portion of jurors’ brains in an effort to get them to render a verdict based on emotion instead of the evidence and governing law.



Dos and Don’ts of Evidence-Based Opening Statements
By Ezekiel E. Cortez – November 17, 2020
An accessible guide of what to do and what not to do in opening statements from the perspective of an experienced criminal defense attorney.

Four Tips for Presenting Expert Damages Evidence
By Roger Marzulla – November 17, 2020
Work closely with your damages expert from an early point in the case to present the most complete and most compelling testimony.

Effective Use of Jury Consultants
By David C. Kent and Gary R. Giewat – November 17, 2020
Early and effective engagement of a jury consultant, well before trial, can greatly improve your ability to present a compelling narrative at trial.

Using an iPad or Other Tablet During Examinations
By William Jackson – November 17, 2020
Tablets can be highly effective for examining witnesses at trial if you plan, prepare, and practice.

Considerations on the Use of Depositions at Trial
By Kenneth M. Klemm and William D. Marsillo – September 29, 2020
Know what is permitted, know your rules of evidence, and know your themes and your audience.

Preparing Your Expert Witness to Testify
By Michael R. Lied – September 29, 2020
Practical considerations for preparing your expert to be convincing and to make a positive impression.

Know Your Risks: Limiting or Eliminating Damages Through In Limine Requests
By Anastasia L. McCusker and Daniel J. Zeller – September 29, 2020
Understand how your court treats the intersection of summary judgment motions and motions in limine.

Increasing Jurors’ Retention Through Research-Based Presentation Techniques
By Chad M. Paulin – September 29, 2020
Four techniques for cutting through recent decreases in collective attention span.

Best Practices for Remote Hearings
By Alejandra Loaiza-Delgado and Abigail Busse – June 9, 2020
A summary of resources and best practices to aid practitioners facing the new reality of operating remotely.

Preparing Your Witness to Testify at a Virtual Trial
By Ian M. Dumain – June 9, 2020
Preparing a witness to testify over a remote platform requires that attorneys bring to bear even more of the same skills and resources that are required for effective witness preparation in a live setting.

Will COVID-19 Make “Unavailable” Witnesses Available?
By David C. Kent – June 9, 2020
As pandemic emergency orders begin to expire, courts will need to turn to preexisting rules or amendments of those rules for authority to continue the use of remote witness testimony.

Dealing with High-Profile Trials in the Press
By William Ohlemeyer – June 9, 2020
Any interaction with the media has the potential to create evidence that may be admissible against a client in subsequent proceedings.

Dos and Don’ts of Demonstrative Evidence at Trial
By Hon. David K. Thomson – February 26, 2020
Guidance in navigating the not-so-clear issue of demonstrative evidence at trial, whether you are seeking to have it admitted or objecting to it.

Using Experts to Prove Damages
By Matthew S. Mulqueen – February 26, 2020
Damages experts can help tie a defendant’s conduct to economic harm and distill complicated economic concepts into jury-friendly soundbites.

Give the Jury the Tools to Decide: Expert Testimony under Rule 702
By Mark J. Schirmer – February 26, 2020
Expert testimony consisting of little more than reciting evidence and reaching a conclusion risks usurping the jury’s role.

New Jersey Adopts Daubert Factors for the Admissibility of Expert Testimony
By William D. Marsillo – February 26, 2020
A helpful reminder that practitioners should remain mindful of the evidence underlying expert opinions at all stages of a litigation.


Expert Witnesses and the Substantial Evidence Rule
By David C. Kent – November 11, 2019
The Supreme Court’s decision in Biestek v. Berryhill has implications for wider application that may make challenges to administrative agency decisions more difficult.

Consent to Class Arbitration Cannot Be Ambiguous or Silent
By Angela Foster – November 11, 2019
Unless it is clear that the parties agreed to class arbitration, an arbitration will not precede as class arbitration, the Supreme Court emphasized in Lamps Plus. Inc. v. Varela.

Supreme Court Allows Registration of “Immoral and Scandalous” Trademarks—What the “Fuct”?
Donald J. Cox Jr. – November 11, 2019
At least for a limited time, the U.S. Patent and Trade Office may be willing to consider registrations that are “obscene, indecent, or profane.”

Apple v. Pepper—A Straightforward Decision Raising Complicated Issues
By Matthew Hans and Phillip Zeeck – November 11, 2019
The decision removes an important barrier to redress through the courts.

Third-Party Subpoenas and the Duty to Preserve
By Hon. J. Michelle Childs and Ethan Bercot – August 20, 2019
What duty does your company have to preserve data it would normally and legitimately dispose of when it receives a subpoena as a nonparty to a suit?

Discovery and Agency Deference to Fact-Findings in Procurement-Related Claim
By John Belinga and Colton D. Tully-Doyle – August 20, 2019
An exploration of how differences in the scope of discovery before the Court of Federal Claims, together with the growing scrutiny of deference to agency fact-findings, may combine to favor certain bid protests.



Getting the Snaps and Tweets into Evidence
By Matthew J. Hamilton, Donna L. Fisher, Jessica K. Southwick – October 5, 2018
A rundownof the best practices that will help ensure that crucial evidence is not excluded..

From Snaps to Tweets: The Craft of Social Media Discovery
By Matthew J. Hamilton, Donna L. Fisher, Jessica K. Southwick – October 5, 2018
Courts have consistently held that social media accounts are subject to established discovery principles but are reluctant to allow parties to rummage through private social media accounts.

Corporate Social Media Evidence in Civil Litigation
By Rose Leda Ehler – March 13, 2018
A few best practices for capturing social media evidence and how it may be used at each phase of civil litigation.

Appeals Court Will Not Second-Guess Trial Court’s Expert Witness Credibility Determinations
By Rose Leda Ehler – March 13, 2018
better preparation of the estate’s expert witness might have led to a different result.

Problems with Authenticity in Social Media
By Kirsten Fraser – March 13, 2018
The appeals court’s careful analysis provides litigators with touchstones for selecting experts whose opinions will pass muster.

Plaintiffs’ Experts’ Opinions Found Unreliable
By Michael R. Lied – March 13, 2018
The appeals court’s careful analysis provides litigators with touchstones for selecting experts whose opinions will pass muster.


Facebook Posts and Text Messages Support Conviction
By Michael R. Lied – June 21, 2017
There is no shortage of dumb criminals.

How, When, and When Not to Use Pattern Questions in Expert Examinations
By Robert H. Foster – June 21, 2017
The ready availability of this resource is a trap for the unwary.

Storytelling as Testimony and the Rule Against Hearsay
By Zia Akhtar – June 21, 2017
Options for admitting testimony from Native Americans in the form of oral traditions in court.

Rule 803(11): Rarely Applied, Rarely Denied
By Elizabeth Teter – June 21, 2017
As long as a document fits the definition of a religious record, regardless of whether it appears trustworthy, it will likely be admitted.

Three Things Not to Do When Defending a 30(b)(6) Deposition
By Helene Hechtkopf – March 20, 2017
Depositions of a corporate designee have the potential to be very useful, even for the party defending the deposition.

Which Hearsay Exception Admits Marriage Certificates? Rule 803(12) Says "I Do"
By Sarah P. Hogarth – March 20, 2017
Litigants should bear in mind that a certificate's survival of a hearsay objection does not mean it is properly authenticated or cannot be refuted.

Rule 803(8) and the Increasing Role of the Internet
By Cathleen Hartge – March 20, 2017
Courts have largely moved on from the era of "voodoo information."

It’s a Family Affair under Rule 803(13)
By Mary Hallerman – March 20, 2017
Litigants have several options for getting facts concerning family or personal history admitted.


Admitting Emails under Rule 803(6) Is No Slam Dunk
By Kirsten R. Fraser – August 29, 2016
Evaluating for compliance and laying testimonial foundation are necessary to ensure successful admission of the evidence.

Rules Clarified for Admitting Identification Evidence in Illinois
By Michael R. Lied – August 29, 2016
The defendant should be able to examine the officer outside the jury's presence to explore familiarity, bias, or prejudice.

Harnessing the Power of Simulated and Illustrative Evidence Without an Expert
By Justin Bryan – August 29, 2016
When to consider offering illustrations as evidence.

Summaries of Western Union and MoneyGram Records Properly Admitted
By Michael R. Lied – August 29, 2016
Seventh Circuit held that summaries of business records created in part by third parties were admissible with proper corroboration.

Cooperation Credit in Enforcement Proceedings: The Importance of Independence
By Jonathan C. Schwartz and David G. Buffa – August 8, 2016
Use of an outside investigator may curry greater credit from regulators.

Federal Securities Regulators' Enforcement Focus Turns to "Gatekeepers"
By Eliot T. Burriss and Nicole Figueroa – August 8, 2016
Tips on how audit professionals can mitigate the risk of enforcement proceedings.

A Brief Introduction to the Bank Examiner Privilege
By Mark M. Haddad – April 28, 2016
What counsel handling banking litigation need to know about this statutory privilege.