The Honorable Matthew Donohue, Benton County Circuit Court
In the Judge’s Corner posting of June, 2015, Judge Acosta provides an excellent explanation of the issues that attorneys must consider in order to effectively communicate with a jury. I am writing this posting to further address one aspect of that issue: the effective presentation of evidence to a jury at trial.
The time between the completion of discovery and the beginning of a jury trial is the time in a case when a lawyer must create a persuasive trial presentation from what is often a disparate mass of raw evidentiary material. If done well, a successful evidentiary presentation will provide the jury with an informative, persuasive, fact-based narrative that they can easily understand. While there is no magic bullet strategy for ensuring success there are some things that an attorney should consider whenever developing trial evidence in order to maximize the chances of successfully presenting their client’s argument to a jury. This post will address some of those pre-trial evidentiary issues as well as evidentiary considerations at trial.
The first step to success is to understand the rules governing your evidentiary presentation. Ignorance of the evidentiary and procedural rules that apply at trial leaves an attorney vulnerable to everything from appearing to the jury to be disorganized and unprepared to the exclusion of critical evidence due to a violation of procedural rules. Of course, any trial attorney worth their tasseled loafers is going to understand the evidentiary and procedural requirements of the Oregon Evidence Code, Civil or Criminal Procedural Rules and Uniform Trial Court Rules. However, these may not be the only evidentiary rules that will apply at trial. In order to get a complete lay of the regulatory terrain consult the court’s supplemental local rules to determine whether any local procedural restrictions apply. In addition, review any case scheduling orders or other procedural information from the judge to have a clear understanding of pretrial evidentiary deadlines, courtroom practices and judicial preferences. Finally, contact the judge’s chambers and confirm the procedural “nuts and bolts” such as the appropriate procedures for exhibit numbering and presenting evidence for admission.
The next step toward a successful evidentiary presentation involves developing a case narrative. Without a coherent narrative explaining your client’s situation, a jury has no cognitive framework that they can use to organize the evidence you will present. The first step to developing a successful narrative is to understand the needs of your audience. By the time a case gets to trial most attorneys have spent hours reviewing the pleadings, conducting discovery, prepping themselves on the applicable law and identifying, collecting, and organizing evidence. However, your audience at trial (i.e. the jury) hasn’t done any of that. Instead, they have been dropped into an unfamiliar environment without any significant preparation and told they have to make a critical decision about people they have never met based on evidence they are about to see and the testimony they are about to hear. A successful narrative therefore involves explaining the case and your client’s position to a group of individuals who know nothing about the case, have probably never met you before and usually have no idea (until they are given the jury instructions at the end of trial) what you are talking about when you use legal jargon like causation, negligence, beyond a reasonable doubt or knowingly.
The second step to developing a successful narrative is to create a compelling story for that audience. Stories are how we have informed, entertained and persuaded one another since pretty much the dawn of human communication. And putting on a juror badge doesn’t change that dynamic. A good narrative involves identifying the legal facts and then turning them into a linear story that a non-lawyer can understand and that they will find interesting. Doing this is much more art than science and explaining it in a short Judge’s Corner post is pretty much impossible. However, there are a few essential elements to a narrative that, in my observation as a judge, are critical to a jury. The first is connecting on a level of mutual understanding. You cannot tell jurors a story from the perspective of a lawyer because, as a general rule, they are not lawyers. They are, however responsible members of the community who are capable of making complicated and sophisticated decisions and your narrative should be presented to them from that perspective. The second is context. Launching into a story that starts the day of the critical events leaves the jury with no understanding of the parties’ lives or circumstances or of the chain of events which brought them to trial. A juror cannot empathize with someone they do not know. Finally, a good narrative must move progressively along the human scale of time (i.e. minutes, hours, days, weeks, months, years), not the case scale of time (i.e. Event A, Event B, Event C, etc.). A successful narrative should therefore order the case events along the human time scale. A good barometer as to whether you have successfully accomplished the task of creating a successful narrative is to get two or three non-lawyers from your office (or a few non-lawyer friends if you are a solo practitioner) together and tell them your story of who your client is, what happened in the case, and why this chain of events leads to them making a decision in your client’s favor. If they give you a bunch of puzzled looks, or if they start asking you to define words that you used or explain gaps in your story, you still have some more work to do.
Now that you have developed your narrative, you can start organizing your evidence to support it. First, identify the relevant evidence supporting your narrative. Next, identify the weaknesses in your evidence and evaluate the best way to address them in the narrative. If the evidence all lined up in your client’s favor you probably wouldn’t be going to trial. Every trial for which I have ever prepared, and every trial that I have observed as a judge, has involved at least one unfavorable fact for each party or one significant gap in the evidence that they need to prove their case. Many lawyers tend to avoid discussing these issues with the jury at the outset of their trial presentation. However, jurors are individuals who have made serious, complicated decisions in their lives and have often done so without all of the information that they would have liked to have had at the time. If the issue is an evidentiary gap, identify circumstantial evidence that supports your client’s position and include that in your narrative. If the issue is unfavorable evidence, provide an explanation, in common-sense terms, as to why it exists. Acknowledging to the jury at the front end of the trial that you do not have an “air-tight” case or that your client is a human being who has made mistakes is generally a much easier conversation to have with them than trying to explain in closing argument why you gave them a highly selective rose-colored version of the facts that your opponent successfully undermined with evidence or inconsistencies that you consciously ignored.
Now that you have developed your case narrative and organized your evidence, the two need to be integrated into an effective opening statement. While the jury may have learned a bit about your client in voir dire the opening statement is your first opportunity to introduce your client and your case to the jury. A good opening statement narrative therefore should focus on your client, their situation and the reasons why they should prevail. Your opening statement should also explain how the evidence that will be presented at trial supports the narrative. This will provide the jury with some sort of understanding as to what evidence they will be seeing, why they will be seeing it and how it supports your case. Also, be sure to save any explanation of the law governing the case for closing argument because any attempt to explain the legal justification for your client’s position at that point may confuse the jury (because they have not yet been instructed in the law) and potentially earn you an admonition from the judge about waiting until the jury instructions are read before discussing the law to apply to the case.
After developing a good case narrative and presenting it to the jury at the time of opening statement, you next have to get the evidence to the jury that supports your story. If you tell a jury in your opening statement that you will show them a piece of evidence that is critical to your narrative and that piece of evidence doesn’t get admitted, you have some serious explaining to do during closing argument. One of the more effective ways of avoiding this situation is to confer with opposing counsel prior to trial regarding stipulations as to the admissibility of non-expert evidence. Some attorneys don’t like to confer because they believe doing so may prejudice their client’s case by providing the opposing party with a preview of the evidence that they will present at trial. This however ignores the fact that both parties usually have identical sets of discovery in front of them at the time of trial. Conferral which results in most of your evidence being admitted unchallenged will eliminate the need for you to develop a bunch of unnecessary admissibility arguments. If conferral isn’t successful, it may still improve your chance of getting your critical evidence admitted by giving you a more accurate understanding as to the level of preparation that you will need to do to get critical evidence admitted. Either way, pre-trial conferral on evidentiary objections will maximize the probability that you will be able to efficiently present your critical evidence to the jury with as few evidentiary objections as possible.
If pre-trial conferral on evidentiary objections is not successful, consider resolving disputes on admissibility prior to trial. In my experience, jurors can get a bit peevish if they are not kept informed as to the progress of a trial particularly when it involves them being repeatedly removed from the courtroom for what appears to be no good reason at all. If you have a significant number of evidentiary issues to address, or believe that your opponent will raise a significant number of evidentiary objections at trial, consider filing a pre-trial motion in limine in order to address as many evidentiary issues as possible. If you have identified numerous potential evidentiary objections that are not suitable for a motion in limine, have a conversation at trial with the judge and opposing counsel regarding explaining to the jury the reason for evidence-based delays.
After determining the admissibility of your evidence, you must decide how much evidence to present to a jury and when to present it. This requires considering two competing goals. The first is to keep the jury focused on the testimony of your witnesses. The second is to maximize the impact of any admitted evidence by relating it to live witness testimony. An ideal balance is to present critical evidence to the jury contemporaneous with relevant witness testimony. If done successfully, jurors will consider the witness’s testimony and the evidence presented to them during that testimony as one seamless stream of information. While the precise method for developing this balance, like the method development of a good case narrative, is beyond the scope of this post, there are some important issues that should always be considered. The first is how to integrate evidence with witness testimony. If the evidentiary document is not too long or complex to allow a juror to review it without distracting them from the witness’s testimony publish it immediately. This will improve the probability that they consider it during their deliberations in the context of the witness’s testimony. As a general rule of thumb I recommend that an attorney always publish photos and never publish contracts. Everything in between is pretty much a judgment call. In those situations where a large number of complex exhibits are necessary, create a binder of those exhibits for the jury with an index. During witness testimony refer to the documents consistent with the title of the document in the index as jurors may make a note of your reference which will allow them to easily access the document once they retire for deliberation.
The next consideration involves determining the amount of information to present to the jury. Jurors are human beings with the same limitations that we all have for assimilating information. This means that even live witness testimony supporting relatively uncomplicated evidentiary exhibits is subject to a law of diminishing returns. If you have ten photos of the car accident or crime scene and only three or four of them are necessary to give the average person a complete understanding of the information that you are trying to convey, providing all ten to the jury, even with witness testimony, runs the risk of jurors missing critical details that may be buried under a mass of redundant information.
Having presented your case narrative and evidence to the jury, you now have to tie everything together in your closing argument. If possible take a break after the presentation of evidence (or after the presentation of jury instructions if you are in a jurisdiction which presents jury instructions prior to closing argument). Confer with your client and discuss the big issues that you think need to be addressed at closing argument. After conferring with your client, review your opening statement to ensure that you address all of the evidentiary points that you previously raised. In your closing argument, confirm the presentation of evidence mentioned in your opening statement and explain how it fits into your opening statement narrative. Discuss any evidentiary gaps in the context of circumstantial evidence and have a conversation with the jury as to how they should interpret those gaps consistent with the laws of circumstantial evidence presented at trial (assuming, again, that you are in a jurisdiction that presents jury instructions before closing argument). If the evidentiary documents submitted are voluminous walk them quickly through your theory of the case as it pertains to the critical exhibits, being sure to tie the most relevant exhibits to testimony whenever possible. You also may want to re-publish critical evidence admitted contemporaneously with witness testimony in order to give them an opportunity to review it in the context of your legal argument.
In providing the advice above, I am not advocating for creating a one-size-fits-all approach to presenting evidence at trial. Every trial attorney must develop their own method of explaining their case and presenting evidence to a jury. However my observations in the courtroom have demonstrated that these issues are frequent and persistent barriers to attorneys effectively and persuasively presenting and explaining their evidence to a jury. I therefore believe that an attorney should at least give them consideration when preparing for trial.