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December 14, 2018 Practice Points

A Guide to Using Documents at Trial for First-Time Trial Lawyers

How to avoid frantically shuffling through piles of paper while the jury is watching your every move

by Miriam J. Manber

The physical mechanics of using documents at a trial can often be overwhelming to attorneys preparing for their first trial.  Below are a few tips and best practices that will help things go smoothly, and keep you from frantically shuffling through piles of paper while the jury is watching your every move.

Paper documents

Even though many courtrooms are equipped with technology which will allow you to use electronic documents, sometimes the old-fashioned paper approach is still best, especially in small cases with a fairly constrained set of documents being used as exhibits, or in a bench trial where only the judge needs a copy of the exhibit.

Once the parties have exchanged exhibit lists, and any disputes over admissibility have been settled or ruled upon by the court, you’ll want to start making binders.  You will want a binder for yourself, containing your marked-up working copies of each exhibit.  Your colleagues or co-counsel may want similar binders for themselves. 

The most crucial is to have two clean copies of the exhibits – one is for the Court, and one is to leave at the witness stand.  You will thank yourself every time you don’t have to ask the Court for permission to approach the witness or the bench to hand up a copy of a document you want to use in your examination.  Instead, you can just direct the witness and the Court to a particular tab in the binders in front of them.  Depending on the volume of exhibits, you may wish to consider preparing witness-specific binders for this purpose, rather than have a huge mountain of documents in front of a witness that don’t pertain to that witness.

Don’t forget to bring copies of all of your adversary’s exhibits as well – do not count on them to be as prepared as you.  On more than one occasion I have scored major points with the judge by having an extra copy of my adversary’s exhibits to hand up to the Court when opposing counsel didn’t think ahead about how many copies to prepare.

Electronic documents

Many courts are upgrading their technological infrastructure beyond overhead projectors and ELMO machines.  They may be wired with monitors so that the attorneys, witnesses, judges, law clerks, and jurors can view documents on a laptop hooked up to the courtroom’s system.  There are even control panels which will determine who can see the screen at any given time – for instance, if a document is being used to refresh a witness’s recollection but hasn’t been admitted into evidence, a press of a button will ensure that the document is only viewable by the witness, judge and attorneys, and is not published to the jury.

To take full advantage of this technology, you will have to bring along a laptop.  Make sure that you read your court’s local rules carefully – you may need the judge to sign an order permitting you to bring a laptop and any other necessary equipment into the courthouse, and you may need to request that order in advance of trial.  You may not have wifi in the courtroom, so plan to store all your documents locally on the laptop or bring along a reliable hotspot to provide connectivity.  (And remember to list the hotspot in the technology order!)

The court will often open the courtroom to counsel before trial to allow them to test out the technology and make sure everything is working smoothly.  Although many attorneys elect to send only their paralegals or trial technology specialists, you should attend as well and make sure that you are comfortable with the technology in the courtroom, especially the screen at the lectern.  Take the opportunity to test out the touch screens, as well as any controls for preventing the jury from seeing particular documents.

Taking the time to make sure your documents are organized and prepared can seem daunting in the run-up to trial, but you’ll be glad you made the investment when you have everything you need at your fingertips in the middle of examining a witness – you’ll be able to focus entirely on the substance, and not on shuffling paper.

Miriam J. Manber is an associate at Hoguet Newman Regal & Kenney, LLP, in New York City, where she practices commercial and employment litigation.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).