Trial Exhibit Lists
The rules in American courts discourage surprises at trial. The parties often already know what the witnesses will say because they have already been examined at deposition. And they know what documentary evidence will be introduced because the parties must identify it before trial in exhibit lists.
But making exhibit lists requires some strategic thinking, and requires attorneys to do a lot of preparatory work before trial.
Why should you continue to read this post about trial exhibit lists?
This blog post was on your adversary’s exhibit list
You want to know why the exhibit numbers at a trial are so high
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Lawyers Often Make Spreadsheets of Exhibits Before a Pretrial Conference
The process for making an exhibit list often begins several weeks before a “pretrial conference” with the judge to discuss the trial. Often the judge’s rules or the court’s rules will instruct the parties to exchange proposed lists of exhibits. By exchanging these lists before the conference, the parties can identify the subjects of agreement ahead of time and then present their disagreements to the judge at the conference.
In my experience, lawyers often use Microsoft Excel to make exhibit lists. And they identify nearly all exhibits by their Bates number. Some exhibits, however, may not have a Bates number, and those exhibits will often be identified by a brief description. But lawyers do not usually provide more information than this; the lists contains no explanation of why the evidence is relevant or how it will be used.
Lawyers Often Prefer Expansive Lists
There are good reasons to offer a short exhibit list. In a case with thousands of relevant documents, it may not make sense to offer every single one as evidence at a trial. A judge or jury only has a limited attention span and time spent explaining many weak exhibits may be better spent focusing attention on a smaller number of strong exhibits. Moreover, it may be easier and less expensive to prepare a smaller number of exhibits at trial than a larger number.
But in my experience, parties often submit large exhibit lists, containing hundreds of exhibits that are unlikely to feature prominently at trial. There are several reasons for this.
First, lawyers often try to preserve flexibility at trial. Just because a document is on an exhibit list does not mean the lawyer needs to introduce it at trial, but if it is not on the exhibit list, then the document becomes much harder to introduce. Accordingly, lawyers prefer to retain the ability to easily use a wide variety of documents should the need arise.
In a similar vein, some documents on the list may be ruled inadmissible or become less useful than originally thought. For example, if the lawyer’s favorite exhibit was authored by a witness who later recanted it, then its value diminishes significantly. As a result, lawyers may include exhibits on their list that serve as alternates for the primary document.
Lawyers may also try to submit a large number of exhibits, even if they are not discussed at trial, to bolster the official trial record. This way, if there is an appeal about the sufficiency of the evidence, the lawyers may argue that some of the exhibits that were introduced as evidence supported the verdict, even if they were not substantially discussed.
Lawyers Often Must Prepare Objections to Their Adversaries’ Lists
After the parties exchange exhibit lists, a lawyer reads her adversary’s list and reviews each exhibit on it. In my experience, this could be several hundred exhibits, comprising tens of thousands of pages, so it takes a long time.
The immediate purpose for this work is to provide objections to the exhibits. Parties are often asked to disclose the exhibits to which they object and, usually, what their objection is. Most objections concern whether the document is inadmissible because of the hearsay rule or whether it is relevant. Often courts will automatically admit exhibits when there is no objection to them.
An additional purpose for this work is to identify exhibits that the adversary may introduce in her case and prepare to respond to them. A review of the exhibits may also help an attorney identify themes that the adversary may introduce at trial, or prompt the attorney to ask the judge to exclude general themes or specific evidence at trial.
Once the parties identify their objections, they exchange their lists again. It is not uncommon for attorneys to add or subtract a small number of exhibits (and to remove duplicates) at this stage. And after disclosing their objections, lawyers then go through each objection and write out what their responses are. For example, they may state that a document is relevant to the issue of what the plaintiff’s damages are or that it falls under a specific exception to the hearsay rule. And after lawyers do this for each exhibit, they usually exchange the lists again and submit the list to the court.