Persuasive Foundations: Doing the “Exhibit Dance”

I began writing for this publication in 1996. Four times a year, I must find topics that I think will be of assistance and interest to you. In nearly 100 Practice Points columns, I have occasionally discussed exhibits, but I have never directly addressed admitting exhibits or foundations for exhibits. Why? The topic is boring … though oh-so-crucial.

In the past I have referred to what I call the “hierarchy of attention” in a courtroom. I believe that jurors and judges pay attention to things in a courtroom in this order: (1) actions; (2) objects; (3) pictures; (4) diagrams/charts; (5) the written word; (6) the spoken word. As you can see, exhibits comprise over half of the hierarchy.

When the words evaporate from the courtroom all the judge or the jury is left with are the exhibits. It was my goal in every trial to never have to take the time to lay a foundation for the exhibit—unless the foundation helped persuade.

Stipulation

There are exhibits both sides want. See if you can stipulate to their admission. Most will be uncontested. Readily agree to redact information you know the judge will exclude. For example, insurance information on a medical record. You want to be known by judges as an efficient, “wheat from the chaff” attorney. If it doesn’t matter, you don’t fight.

Requests to Admit Facts and Genuineness of Documents

I found this a useful, but little utilized, tool in getting evidence admitted pretrial. Most jurisdictions have a method like Federal Rule of Civil Procedure 36. Send these requests out well before trial asking the other side to admit or deny the genuineness of the exhibit with the exhibit attached, and add the words, “… and may be admitted at trial.” Some attorneys will object to this additional language, but most do not.

If an attorney objected, or if I received the rote and overused response that discovery was ongoing so they could not admit or deny, I asked for an early pretrial conference. I wanted the judge to know that I had done everything possible to whittle the case down to the issues and exhibits that truly mattered.

The Exhibit Dance

If I could not get the exhibit preadmitted, my trial notebook listed my acronym for the “exhibit dance” (MSALMU): (1) Mark it; (2) Show it to counsel; (3) Ask to approach; (4) Lay the foundation; (5) Move for admission; (6) Use it.

The dance takes a lot of time, especially if you have many exhibits. While on the bench, I noted many eyerolls from jurors as attorneys painstakingly went through the dance for each exhibit. I would try and save time by telling the attorneys that they did not need to ask to approach each time. I would also break to see if we could get some stipulations. However, I would always tell them that if laying the foundation was a crucial part of their case, they could do it in front of the jury. Even if the exhibit was preadmitted.

Foundations

When I was a new attorney, a judge told me that I had missed one of the four steps for what he considered the essential foundation for a business record. To say the least, I was embarrassed. From that point on, I brought the foundation handbook with me for every case. I didn’t care if other attorneys kidded me about the handbook lying on my table. Moreover, if I was in front of a newly appointed judge, I wanted that judge to know that I had the authority in front of me. I could just read straight from it if need be. Belt and suspenders.

“Magic Word” Judges

In all states, judges are appointed or elected throughout the year. However, not all judges were trial lawyers before being appointed, and “new judge school” may be held only once a year. You may be in front of a new judge who has not personally laid the foundation for an exhibit for years, if ever.

Hence, for those judges, it is crucial that you use the “magic words” that are set forth in the evidence code that will unlock the door to admitting the exhibit. No doubt a new judge will have a cheat sheet on the bench and will be listening for the words taken directly out of the evidence code. For business records, they are listening for “regularly conducted course” or “ordinary course” plus “by persons with knowledge” and “at or near the time.” But some judges know that questions using plain language satisfy the foundational requirements—in addition to being more persuasive.

Persuasive Foundations

Let’s say we are representing a shipping company that deals with products that are affected by temperature. We have a case of 1961 Château Lafite Rothschild that our client placed on a truck at midnight. After midnight there was a cold snap, and the temperature plunged. The bottles froze, then burst. We must prove that the wine left our warehouse before the cold snap. Our witness works at the trucking company. We are in front of a judge who allows plain language foundations.

Q. Ms. Jones, how long have you worked at ACME Trucking?

A. For 23 years.

Q. During those 23 years, has ACME kept shipping records?

A. Yes.

Q. Why do you keep those records?

A. We need to know when products arrive and when they leave. Many products are affected by temperature and time.

Q. Who keeps those records?

A. The clerk who takes the shipment in and sends it out.

Q. When does a clerk make the record?

A. We require the record be made within 15 minutes of arrival or departure.

Q. What happens if it is not recorded?

A. We have a three-step disciplinary process that may ultimately result in the clerk being fired.

Q. Looking at what has been marked for identification as Exhibit 1, what is it?

A. Exhibit 1 is the shipping record for the case of wine.

Exhibit admitted. Jury convinced. You win.