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December 02, 2021 Practice Points

Trial Preparation for Young Lawyers: Exhibit Lists

Failing to introduce a key piece of evidence can happen to even the most experienced litigators. Learn about one basic technique to ensure that all exhibits are identified and entered.

By John S. Austin

When I sent a young associate attorney to try his first case, I asked him if he was prepared. He responded he was. The case involved a summary ejectment action in which our firm represented the landlord. The landlord and tenant had entered an oral lease for over five years, thereby violating our state’s statute of frauds regarding oral five-year leases. With no lease, the relationship became a tenancy by will that required reasonable notice of default prior to termination. In order to prevail on our claim, we only needed to present one piece of evidence: a notice of default letter.

When the young associate returned with a scowl on his face, he muttered that he had lost the case. The magistrate obviously found the oral lease was invalid and that it was a tenancy by will. When I asked if he had introduced the letter, he said he had forgotten until after the both parties had rested their cases.

Failing to introduce a key piece of evidence can happen to even the most experienced litigators unless they employ some technique to ensure that all exhibits are identified and entered. A sloppy and somewhat effective way is to review the pretrial order (if you have one) or the exhibits themselves and compare that with your trial notes to see if they have been accepted by the court. This technique is both time-consuming and fraught with error. In fact, in a bench trial that only lasted a few hours, my opposing counsel employed this technique and, like my young associate, failed to move to enter a key exhibit. Mind you, I only had fifteen exhibits and he had six.

In your “form file,” I recommend that you have an list of exhibits that provides the following information: Exhibit Number, Identified by Witnesses, Entered by Judge, and Exhibit Name and Description. Here’s mine, for an example:

Exhibit ID'ed Entered Name and Description
1     Express Network Total Customer Balance Detail dated 6/8/20
2     Payment Receipt Dated 8/14/19
3     Invoice No. 1091 dated 6/14/19

As a personal preference, I like checking off on the left, but you can order your list anyway you wish. My list is also very simple. You may wish to identify the witness who can identify the exhibit and lay the foundation for its introduction. You may wish to include questions to your witness and possible cross-examination questions for the opposing party. Regardless of how simple or complex it may be, just make sure you have the columns showing it has been identified and entered into evidence.  

John S. Austin is with Austin Law Firm in Raleigh, North Carolina. He also serves as cochair of the ABA Litigation Section's Trial Practice Committee.

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