HOW (NOT) TO HANDLE EXHIBITS IN TRIAL*

By Judge Kathleen M. White and Judge Daniel P. Maguire, Superior Court of California, Yolo County

There comes a moment in every trial or hearing when it is revealed to the judge whether the lawyer is a skilled trial professional or a bumbling tyro. That moment is not in the pretrial motions, the trial brief or the opening statements. It doesn’t matter whether the trial is criminal or civil. That moment in all trials is the presentation of the first document as an exhibit. If you already know how to mark, organize and present exhibits, we thank you. Read no further. But if you want to know how to irritate the clerk, frustrate the judge, baffle opposing counsel, muddy the record, delay the process, and exasperate your client, read on:

1. Don’t ask the judge or clerk before the hearing how they want exhibits handled. Pay no attention to the court’s local rules regarding exhibits, don’t ask the clerk if the exhibits can be pre-marked, and above all, appear five minutes before trial with voluminous unmarked exhibits. Be sure they are not in the order you will use them at trial.

2. Don’t give the clerk an exhibit log that lists each exhibit in order, has a description of the exhibit, and a column for "marked," "admitted" and "comment." Don’t ask if the clerk has a preferred format for the exhibit log. This ensures that the clerk will have difficulty tracking the exhibits and making a clear record. This also ensures that you will not be able to track your exhibits during trial, too.