SUCCESSFUL TECHNIQUES FOR USING EVIDENCE AND EXHIBITS

I. Introduction
In today’s courtrooms, the use of evidence and exhibits has expanded from the simple one page marked exhibit to just about any type of “visual” or “sound” based presentation. People generally retain about 85% of what they see and only about 10% of what they hear, making visual aids almost a necessity in today’s courtrooms. Exhibits are generally 1) real evidence or 2) demonstrative evidence. Real evidence speaks for itself and generally does not need to be authenticated by a witness. Demonstrative evidence is used to illustrate or further explain oral testimony. It can recreate a fact or occurrence and is generally characterized by visual or audible means. Gathering and organizing your discovery documents and indexing which documents you will use at exhibits for trial, will assist you in expanding those exhibits to trial form. You must be aware of the rules of evidence in order to properly maintain organized exhibits for trial. This means determining which rules apply in your jurisdiction and venue.
II. Rules of Evidence You Need to Know About
In Nebraska, the state rules of evidence are modeled after the Federal Rules of Evidence. If you are working in another state and need to know the rules of evidence, you may verify this by using the Uniform Rules of Evidence Locator which you can find at: http://www.law.cornell.edu/uniform/evidence.html. This website will show you the states which have adopted the Uniform Rules of Evidence and where you can find those rules. Although Nebraska has modeled their rules after the Federal Rules, this does not mean that the state rules are exactly like the federal rules, only similar.
Nebraska Rule of Evidence 1101(1), similar to Federal Rule of Evidence 1101(a) covers the scope of the evidentiary rules. While the evidentiary rules for state and federal rules are substantially different, both provide for a broad application of the rules. Not all cases will apply the Nebraska Rules of Evidence. Among those cases which are not subject to the Nebraska Rules of Evidence are proceedings before grand juries, certain criminal proceedings as listed in the rule, contested cases before an administrative agency under the Administrative Procedure Act (unless a party to the case requests that the agency be bound by the rules of evidence available in the district court); and proceedings before the Nebraska Workers' Compensation Court or the Small Claims Court.
The Nebraska Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence. However, the Court may make the investigation in such a manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of the Nebraska Workers' Compensation Act. The Small Claims Court Act exempts, except for the rules of privilege, the rules of evidence from the small claims court. The informal nature of the small claims court, which was created to prompt the efficient disposition of small cases, justifies the exclusion of the rules of evidence. It is important to consider the both the type of case you have and the venue in which it will be tried to determine whether the Nebraska Rules of Evidence apply.
Once you determine that the Nebraska Rules of Evidence do actually apply, there are several rules that you need to be aware of. In proceedings where the Nebraska Rules of Evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility. For example, there are certain pieces of evidence that are not admissible to prove liability (i.e. subsequent remedial measures (Rule 407), offers to compromise (Rule 408) and payment of medical expenses (Rule 409)); however, the same evidence may be admissible for other reasons.
Rule 105 sets forth the process by which evidence can be admitted for limited purpose.
Rule 105. Limited admissibility.
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Rule 401 defines relevant evidence as having “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”.
Rule 401. Relevant evidence, defined.
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 403 addresses the reasons why relevant evidence may be excluded from trial.
Rule 403. Exclusion of relevant evidence; reasons.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Rule 503 addresses the lawyer-client privilege and exceptions to the same. The lawyer-client privilege applies to the lawyer’s staff as well; however, it is important to remember that anything the client tells you should not be withheld from the Attorney. If a client gives you information and asks you to keep it from the lawyer you work for, you must tell the client you are unable to do so and disclose all information to the Attorney. In assessing whether the privilege applies, the Attorney must focus on whether the communication was made with a reasonable expectation of confidentiality and for the purpose of obtaining legal advice. If so, then the communication is not discoverable unless an exception applies or the privilege has been waived. One such exception would be a communication of intent to commit a crime.
Rule 503. Lawyer-client privilege; definitions; general rule of privilege; who may claim privilege; exceptions to the privilege:
(1) As used in this rule:
(a) A client is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him;
(b) A lawyer is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation;
(c) A representative of the lawyer is one employed to assist the lawyer in the rendition of professional legal services; and
(d) A communication is confidential if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
(2) A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (a) between himself or his representative and his lawyer or his lawyer's representative, or (b) between his lawyer and the lawyer's representative, or (c) by him or his lawyer to a lawyer representing another in a matter of common interest, or (d) between representatives of the client or between the client and a representative of the client, or (e) between lawyers representing the client.
(3) The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary.
(4) There is no privilege under this rule:
(a) If the services of the lawyer are sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or
(b) As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivo transaction; or
(c) As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; or
(d) As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or
(e) As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.
Source: Laws 1975, LB 279, § 23.
Rule 701 addresses when opinion testimony is allowed by a fact witness.
Rule 701. Opinion testimony by lay witnesses; when.
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
Source: Laws 1975, LB 279, § 49.
Rules 703 and 705 relate to the testimony of expert witnesses and disclosure of their opinions. These two rules are especially important to Paralegals because they address our responsibility of disclosure of opinions in discovery. If you do not properly follow the discovery and evidence rules relating to expert testimony, you could end up excluding part or all of the testimony of the expert at trial.
Rule 703. Basis of opinion testimony by experts; when revealed; admissibility.
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Source: Laws 1975, LB 279, § 51.
Rule 705. Disclosure of facts or data underlying expert opinion
The expert may testify in terms of opinion or inference and give reasons therefore without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
Source: Laws 1975, LB 279, § 53; Laws 1982, LB 716, § 2.
One of the most important exclusionary rules in evidence law is the hearsay rule. Hearsay is “second-hand” information. It occurs when a witness testifies NOT about something they personally saw or heard, but testifies about something someone else told them or said they saw. Hearsay is generally used when a party is attempting to enter a crucial fact into evidence that was not able to be entered into evidence by any other means. The constitutional due process danger that this represents is that it deprives the other side of an opportunity to confront and cross-examine the "real" witness who originally saw or heard something. The confrontation clause of the Sixth Amendment has never been interpreted so literally as to preclude hearsay evidence. Rule 801 defines hearsay and sets forth a list of statements which are not hearsay. Rule 803 sets forth the exceptions to the hearsay rule.
Rule 801. Definitions; statement, declarant, hearsay; statements which are not hearsay.
The following definitions apply under this article:
(1) A statement is (a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended by him as an assertion;
(2) A declarant is a person who makes a statement;
(3) Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted; and
(4) A statement is not hearsay if:
(a) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i) inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or
(b) The statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity, or (ii) a statement of which he has manifested his adoption or belief in its truth, or (iii) a statement by a person authorized by him to make a statement concerning the subject, or (iv) a statement by his agent or servant within the scope of his agency or employment, or (v) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
Source: Laws 1975, LB 279, § 55.
Rule 803. Hearsay exceptions; enumerated; availability of declarant immaterial.
Subject to the provisions of section 27-403, the following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition;
(2) A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will;
(3) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment;
(4) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him or her to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his or her memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party;
(5) A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, other than opinions or diagnoses, made at or near the time of such acts, events, or conditions, in the course of a regularly conducted activity, if it was the regular course of such activity to make such memorandum, report, record, or data compilation at the time of such act, event, or condition, or within a reasonable time thereafter, as shown by the testimony of the custodian or other qualified witness unless the source of information or method or circumstances of preparation indicate lack of trustworthiness. The circumstances of the making of such memorandum, report, record, or data compilation, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight;
(6) Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of subdivision (5) of this section to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate a lack of trustworthiness;
(7) Upon reasonable notice to the opposing party prior to trial, records, reports, statements, or data compilations made by a public official or agency of facts required to be observed and recorded pursuant to a duty imposed by law, unless the sources of information or the method or circumstances of the investigation are shown by the opposing party to indicate a lack of trustworthiness;
(8) Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law;
(9) To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with section 27-902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation or entry;
(10) Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization;
(11) Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a member of the clergy, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter;
(12) Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones or the like;
(13) The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording of documents of that kind in that office;
(14) A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document;
(15) Statements in a document in existence thirty years or more whose authenticity is established;
(16) Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations;
(17) Statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice, to the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination. If admitted, the statements may be read into evidence but may not be received as exhibits;
(18) Reputation among members of his or her family by blood, adoption, or marriage, or among his or her associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his or her personal or family history;
(19) Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located;
(20) Reputation of a person's character among his or her associates or in the community;
(21) Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against a person other than the accused. The pendency of an appeal may be shown but does not affect admissibility;
(22) Judgments as proof of matters of personal, family, or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation; and
(23) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (a) the statement is offered as evidence of a material fact, (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (c) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his or her intention to offer the statement and the particulars of it, including the name and address of the declarant.
Source: Laws 1975, LB 279, § 57; Laws 1999, LB 64, § 1.
Rules 1002, 1003 and 1004 address the requirement of the original document, and when a duplicate is admissible. They also address when it is necessary to obtain additional information regarding the evidence of contents of the original document.
Rule 1002. Requirement of original; exception.
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress or of the Legislature of the State of Nebraska or by other rules adopted by the Supreme Court of Nebraska.
Source: Laws 1975, LB 279, § 65.
Rule 1003. Admissibility of duplicate; when.
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
Source: Laws 1975, LB 279, § 66.
Rule 1004. Admissibility of other evidence of contents; when.
The original is not required and other evidence of the contents of a writing, recording, or photograph is admissible if:
(1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) No original can be obtained by any available judicial process or procedure; or
(3) At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or
(4) The writing, recording, or photograph is not closely related to a controlling issue.
Source: Laws 1975, LB 279, § 67.
Rule 1006 addresses when it is okay to create a summary of evidence. You should note that even if you choose to create a summary of the evidence, the voluminous evidence should still be produced in discovery and available to produce at the trial. If feasible, it is a good idea to create the summary and produce it as page one of the exhibit, with the voluminous documents attached. Obviously, if you have writings which are extremely voluminous, this may not be feasible, so you will need to consult with the Attorney regarding his or her preference in handling the exhibit.
Rule 1006. Voluminous writings, recordings, or photographs; summaries; availability; orders.
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The judge may order that they be produced in court.
II. Gathering and Organizing Evidence During Discovery
Although the Rules of Evidence are important, of equal importance are the Nebraska Rules of Discovery. These rules will assist you in gathering and organizing evidence from the beginning of the case through the trial. Often, discovery will not close until just before the trial. Gathering and organizing the important pieces of information and evidence takes time. This is time well spent in order to present the strongest case for your client. There are several forms that will assist you in keeping this information organized. One of these forms is a Production Log and another is a Privilege Log. The Production Log is used to keep track of all documents produced in a case by either side. A Privilege Log is a document you will use to keep track of information NOT produced in discovery because it meets one or more privilege exceptions. You should begin keeping these logs at the beginning of the case. This will help keep your documents organized. As discovery progresses, your documents will become more voluminous and it will become necessary to keep these documents organized so you know what documents have been produced, when, and in what matter.
An additional document which will become important is an Exhibit Log. All exhibits offered by either party at trial must comply with Nebraska Court Rule of Practice 5F (3), which provides, in pertinent part, as follows:
“ . . . Exhibits are to be marked in numerical order irrespective of the party producing them and shall show the date on which they were marked. The sequential numbering of exhibits shall begin with the first hearing held in the case and continue until final disposition. The same number shall not be given to more than one exhibit in any case. A multipage exhibit shall be marked such as to indicate the number of pages the exhibit contains.”
This means that as soon as an exhibit is marked, whether it originates from a deposition, a hearing, or at trial, that exhibit maintains the same number throughout the entire case. It is for this reason, it is recommended to begin an Exhibit Log from the beginning of litigation as well.
Now that you have a few basic forms to help organize your evidence, you need to determine what types of evidence you will gather and how to get it. The first thing you should do is to review the facts of your case and the causes of action from the plaintiff’s Complaint. Once you determine what you need to prove, you can format your discovery to obtain the evidence you need to prove these facts. There are basic facts to every case and basic questions you will ask in discovery to obtain information regarding your main “players” in the case. Each Firm generally has their own set of “standard” discovery requests. Reviewing the Complaint will assist you in determining the additional questions you will ask that are case-specific. You should also review the defendant’s Answer to determine what their defenses to the action are, and whether or not they intend to assert a cross-claim or counter-claim in the matter. This information will assist you in determining what evidence will be necessary to counter their defenses or other claims.
Obviously, the best and easiest way to gain evidence is from the source. In other words, if it is information your client has, get it from your client. If it is information the defendant has, it is best to obtain it through discovery. Initial discovery requests are helpful and can be followed up with depositions, subpoenas, and/or FOIA (Freedom of Information Act) Requests.
Once you have gathered the documents necessary in the case, it is important to organize these documents. You can do so through the forms we have previously discussed, or through electronic means, such as document management software. There are a number of legal software programs available such as Time Matters, Sanctions, TrialWorks, etc., which will help organize your documents. You can also organize your documents through scanning software and creating separate folders on your server. Another option is with three-ring notebooks, eventually leading to a trial notebook. You also may want to prepare deposition summaries for your Attorney to clarify the evidence which each party who was deposed will provide at trial.
Once discovery is completed, you can begin to compile your final Exhibits List and begin making copies of your exhibits for trial. Consult with your Attorney to determine how he or she prefers his or her exhibits to be organized for trial. Some prefer numbered manila folders of each exhibit; some prefer the electronic scanning and organization of exhibits; and some prefer the exhibits to be incorporated into the trial notebook or in a separate exhibits notebook. Regardless of which method is preferred, make sure you have adequate copies of the exhibits to bring to trial. You will need a copy of each exhibit for each Attorney and a copy to be marked at trial, which will be given to the Court Reporter.
III. Preservation of Evidence
Physical evidence should be maintained in a safe and careful manner. Be attentive to the storage of physical evidence so as to avoid misplacement or accidental disposal of the evidence by others (i.e., janitors, etc.) Evidence should be kept in a clearly marked container. Remind your clients not to alter or dispose of items which may be used as evidence later. If you are working an automobile case, you will want to take photographs as soon after the accident as possible. You should collect and date these photographs by keeping a log of who took the photographs, the date they were taken, where they were taken and what is depicted in the photographs. This evidence should be made a part of your file. In certain circumstances, you may want to preserve the vehicle as well. An example of this would be a products liability case; i.e., an airbag case. The experts on both sides of the case may wish to review and inspect the evidence. In some instances, this cannot be accomplished through photographs. You may also want to file a Motion to Preserve Evidence asking the judge to prevent spoliation of evidence by other parties. Depending upon the volume of evidence in a particular case, you may also wish to keep an Evidence Log.
IV. Creating Demonstrative Evidence for Use at Trial
A picture is worth a thousand words. One problem Attorneys seem to battle in trial, especially in long civil trials, is keeping the interest of the jury. Demonstrative evidence not only helps keep the interest of the jury, it also helps explain the sequence of events or the complexity of a situation to a jury. The main reason for using demonstrative evidence is to present information in such a way that it is easily understood by most people, most specifically, the lay person who sits on the jury.
Psychologists who have studied the way people learn have discovered that a majority of the population (which amounts to approximately 2/3 of any jury pool and judges) are "visual learners." What this means to us is that people tend to process new information in a visual format much more effectively than through words. Attorneys, on the other hand, tend to be auditory learners. For this reason, you may need to coordinate with your Attorney to utilize the strengths and weaknesses of both types of learners.
There are a number of sources of demonstrative evidence including blackboards, easels, charts, graphs, PowerPoint presentations, models or diagrams, posters, blow ups of medical illustrations, or enlargements of key documents and videos. When using demonstrative evidence at trial, you should keep it simple and use variety. Although demonstrative evidence can be persuasive, on its own, it does not make a fact more or less probable than it is without the demonstrative evidence. It can, however, make the circumstances surrounding the fact make more sense to a jury. For instance, you can read an accident report, but you will tend to understand the facts of the accident better if you view the diagram on the police report. The same is true with medical evidence. Reading a doctor’s report can give you basic medical evidence. Seeing a doctor explain the medical evidence via videotape or in person using medical models certainly makes the information not only more interesting, but easier to understand. Animation through PowerPoint or other software tools also serves to enhance the exhibit. It is important to pay careful attention on your slides to use professional fonts and colors, keep it organized in a manner and order that will make sense during the presentation at trial, and most importantly, to keep it simple. A jury will not be as impressed with fancy theatrics as they will with precise, thorough presentation of evidence.
V. Preparing Trial Exhibits That Get Results
Preparing trial exhibits requires forethought, planning, and preparation. The first thing you should do is to schedule a trial preparation conference with the Attorney to discuss the various exhibits you will want to prepare for trial, and which of those exhibits will be demonstrative evidence. You should have your trial notebook prepared at this meeting and have both the physical and the electronic files in order at the meeting. This meeting is also an excellent time to discuss the trial theory with the Attorney prior to preparation of the exhibits and other demonstrative evidence. Not every document produced in discovery will make a good exhibit. Once you have a trial theory, you need to develop your exhibits based on what documents or other evidence is reasonable and necessary in order to prove your case. You must also consider which exhibits are admissible under the Nebraska Rules of Evidence and whether you have the sufficient foundation for such evidence. The plaintiff’s counsel should examine liability, causation and damages and determine which exhibits present or refute the damages of the plaintiff. The defense counsel should use exhibits that counter the plaintiff’s demonstrative evidence. No matter which side of the case you are on, the exhibits should assist the Attorney in creating word pictures in the minds of the jury through the use of demonstrative evidence, evocative language, storytelling techniques, and very careful word selection from opening statements through closing arguments.
Exhibits must be organized and easily accessible at trial. If your documents are logically organized in a trial notebook, you can quickly reference a witness's statement made during deposition or in an affidavit, or look at responses made to a specific discovery request. You can also refer the jury to a particular exhibit, or even add notations regarding additional points to be covered during the closing argument. Organizing your trial notebook by witness and corresponding exhibit will assist you in keeping the Attorney organized at trial.
The goal at trial is to present the evidence in a natural, logical manner. Failure to adequately prepare for trial can not only cost you the client, but also can put your Firm in a precarious position for bar complaints and/or malpractice suits should you fail to be able to enter crucial evidence into the trial. Jurors are impressed with hard data in the evidence. You can organize this data with charts, bullet points, photographs, x-rays, and basically, any other data that jurors can see and touch. Demonstrative evidence will be among the most persuasive evidence they will receive. Jurors use this data to support their decisions about the case. If an Attorney makes an emotional approach which is convincing to the juror and then fails to offer evidence to validate his or her case, jurors may subliminally punish counsel and the client alike for the unsupported theatrics.
Actual preparation of the exhibits can be done by the Paralegal, other administrative staff, or by using local vendors, such as ProCopy or Kinko’s. It is important to prepare the exhibits in plenty of time to allow for vendors to complete the exhibits. If you are preparing the exhibits for the Attorney, it is important use exhibits as close to the original documents as possible. Your summary exhibits and PowerPoint slides should be proofed for spelling, grammar, logistics, and accuracy. Your PowerPoint slides should be clear, and use simple terms and visual images consistent with the case theme. Complex terminology only serves to confuse and frustrate jurors. Your bullet points should be limited to information which is crucial to your case, while avoiding extra clipart, bright colors, and fancy fonts which can distract the jury from the information you are providing. The most successful presentations use precise language, logical storytelling, and compelling evidence.
You should review the PowerPoint with the Attorney prior to the trial so he/she is familiar with what it entails. Make sure you have the proper equipment in the courtroom in order to facilitate your exhibits. You may want to visit the courtroom or give the bailiff a phone call to determine if the courtroom maintains an Elmo, an easel, or any other items you will need to use. The bailiff will also be able to advise you as to whether the judge has any rules limiting the use of technology in the courtroom (i.e., laptops, pdas, etc.) If you get to go to trial with the Attorney, assist him with the placement of the exhibits to take into account the line of sight of witnesses, jurors, the judge, and opposing counsel. Remember that our most important job as Paralegals is to provide whatever assistance is necessary to make the Attorney more effective.

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