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Exhibit Rules: Tips, Rules, and Tactics for Preparing, Offering, and Opposing Exhibits

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In this compact and easy-to-use handbook, David Malone and Paul Zwier provide practical advice on every aspect of creating, discovering, using, offering, and opposing exhibits in litigation.

•  Does your expert need some excitement in his presentation?
•  Are you unsure what the judge means when she says, "What's the foundation for this exhibit under the Original Document Rule, counsel?"
•  Are you worried that your opponent's graphics--or your own--may be misleading?

If your questions have to do with exhibits--from intersection diagrams on the blackboard to computerized re-creations in the courtroom--you can find the answers in Exhibit Rules.

Authors / Contributors

Table of Contents


Chapter One—Foundation for Exhibits

1.1 The OPRAH Elements

1.2 Original Document Rule

1.3 Duplicate Originals

1.4 When an Original Is Not Required

1.5 No Preferred Status

1.6 When Oral Evidence Is Not Precluded

1.7 Rarity of Successful Original Documents Rule Challenge

1.8 Authentication

1.9 Authentication and Oral Testimony

1.10 Relevance

1.11 Relevance Defined

1.12 Authentic and Relevant Documents May Be Excluded

1.13 Privilege

1.14 Effect of Privilege on Laying Foundation

1.15 Hearsay

1.16 Hearsay Exceptions

1.17 Exhibits

1.18 Exhibit Used to Impeach, Refresh Recollection, or as Past Recollection Recorded

1.19 Rule of Completeness

Chapter Two—Foundation for Specific Exhibits

2.1 Photographs

2.2 Admissibility of Photographs, Movies, and Computer Graphics

2.3 Admissibility of Video

2.4 Admissibility of Reenactments

2.5 Admissibility of Computer-Generated Simulations or Reenactments

2.6 Competent Witnesses

2.7 Connecting Data Input

2.8 Medical Imaging

2.9 Unique Identification and Chain of Custody

2.10 Limit of Chain of Custody

2.11 Keep Counsel Out of Chain of Custody

2.12 Substantive, Demonstrative, and Illustrative Evidence

2.13 Demonstrative Evidence

2.14 illustrative Evidence

Chapter Three—Common Problems with Graphic Exhibits

3.1 Comparison Exhibits

3.2 Misleading Icons

3.3 Misleading Labels

3.4 Exclusion of Misleading Exhibits

3.5 Visual Impact

3.6 Graphic Evidence v. Enlargements

3.7 Trimming Irrelevant Detail

3.8 Marking or Editing and Exhibit

Chapter Four--Handling Documents in Court

4.1 Marking an Exhibit

4.2 The Three-Step Exhibit Circuit

4.3 Laying the Foundation

4.4 Offering the Exhibit

4.5 Distributing the Exhibit

4.6 Offering for a Limited Purpose

4.7 Publishing the Exhibit

      4.7.1 Camera to Screen

      4.7.2 Computer to Screen

      4.7.3 Computer/DVR to Monitor

      4.7.4 Other Tips for Visual Presentations

4.8 Ordering Exhibits

4.9 Jurors' Notebooks

4.10 Sightlines

Chapter Five—Choosing the Medium and the Occasion

5.1 Using Exhibits in Opening Statement

5.2 Using Exhibits in Closing Argument

5.3 Timelines

5.4 Magnetism

5.5 Multiple Easels

5.6 Monitors v. Big Screen

5.7 Cards

5.8 Do Not "Publish"

Chapter Six—Experts and Exhibits

6.1 Disclosures

6.2 Persuasive Exhibits

6.3 Theme

6.4 Foundation for Illustrative Exhibits

6.5 Work the Exhibits

6.6 Keep Opposing Expert on the Stand

6.7 Attacking the Exhibit

6.8 Creating New Exhibits during Cross-Examination

6.9 Counter Opposing Counsel's Attempt to Create Cross Exhibits

Chapter Seven—Evidentiary Principles for Certain Types of Documents

7.1 Foundation Formulas

7.2 Business Records

7.3 Past Recollection

7.4 Opposing Party Statements

7.5 Self-Authenticating Evidence

7.6 Learned Treatises

7.7 Summary Exhibits

Chapter Eight—Exhibits Divulged or Obtained as Part of Mandatory "Voluntary" Pretrial Disclosures and other Discovery

8.1 Problems with Voluntary Disclosure

8.2 Exhibit Requests

Chapter Nine—The Mechanics of Pretrial Listings and Pretrial Rulings on Exhibits

9.1 Before the Final Pretrial Conference

9.2 Pretrial Objections

9.3 Motions in Limine

9.4 Exhibit Book

9.5 Keeping Track of Your Objections to Opponents Exhibits

9.6 Bench Brief

9.7 Trial Notebook

Chapter Ten—The Next Level of Persuasion with Exhibits

10.1 Persuasive Foundation

10.2 No Walking and Talking

10.3 Value Your Exhibits

10.4 Get and Deal with the Bad

10.5 Tell a Story

10.6 The Fourteen-Document Rule