NITA Publications

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

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.

• >> TABLE OF CONTENTS
  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
  
  Index

• >> AUTHORS
  
  
  • David M. Malone
    
    
    • David M. Malone is a trial attorney, author, consultant, and teacher who has worked with the National Institute for Trial Advocacy (NITA) since 1979. He is the founding principal of Trial Run Inc., a litigation training and consulting firm. Mr. Malone practiced as a federal prosecutor for seventeen years before entering private practice for thirteen years, concentrating on complex civil litigation. He has been an adjunct professor in advocacy at the University of Virginia School of Law and at the George Washington University School of Law. He is a graduate of the University of Notre Dame (B.A.) and the University of Virginia School of Law (J.D.). Mr. Malone is the author NITA's deposition text, The Effective Deposition; of the companion pocket-sized book, entitled, Deposition Rules; and of NITA's Effective Expert Testimony. Through Trial Run Inc., he has written and published a number of other litigation "rule" books, including Daubert Rules and Effective Deposition Defense Rules. Until recently, he was the program director and team leader for the Washington Advanced Program, which he started, and he has taught in hundreds of other NITA programs. He is a past recipient of NITA's Robert E. Oliphant Award.

  
  

  • Paul J. Zwier
    
    
    • Paul J. Zwier is a professor at Emory University School of Law, where he directs the trial advocacy and litigation skills programs and teaches torts and advanced negotiation, mediation, and international dispute resolution seminars. He has taught courses in advocacy, litigation skills, and ADR at more than 250 law firms and legal organizations in the U.S., and internationally in Africa, Canada, China, Great Britain, Guam, and Saipan. He also consults on ADR strategies as well as case theory and presentation in trial cases. Professor Zwier directs the Appellate Court Advocacy program as well as the Advocacy Teacher Training/Lawyer without Borders program. Prior to joining the faculty at Emory, he was a professor of law and director of the Center for Advocacy and Dispute Resolution at the University of Tennessee Law School and a professor of law at the University of Richmond School of Law. He has been a visiting professor of law at both William and Mary Law School and Temple University School of Law. He is the former director of Public Education for the National Institute for Trial Advocacy (NITA).