The case was serious. The charge? Attempted Murder with a Firearm. The defendant was accused of shooting the victim in the head, and he was facing a potential sentence of life in prison. You would think that because its seriousness, my opponent and I would be fighting over every single issue in the case. But nothing could be further from the truth.

Instead, we were standing in the hallway behind the courtroom, talking with the judge and telling him that we were stipulating to nearly every material fact in the case, that we were streamlining the introduction of exhibits, and that we’d agreed to significantly reduce the number of witnesses who would testify.

Why would we do that? Why would two experienced attorneys (each hoping for a completely different outcome) agree to almost all of the issues in a case? We did it because we knew the strengths and weaknesses of our cases and were able to identify the true issues in the case. In short, we knew what mattered and what didn’t matter.

Many attorneys don’t like to stipulate. They’re afraid that if they agree about anything with their opponent, they’ll seem weak. So instead, they argue about every issue with their opponent. Typically, the attorneys who are most afraid of stipulating are also the ones who either don’t understand their cases very well or don’t know how to try cases. But in my experience, the attorneys who stipulate are usually the best attorneys in the courthouse. They understand their cases inside and out, and know where to pick their battles. They streamline their cases, identifying the important issues, and agreeing to everything else.

If you’re thinking about joining their ranks and stipulating to parts of your case, here’s a quick list of some things you might consider agreeing to:

• Witness credentials
• Authenticity of business records
• Evidentiary foundations
• Distances
• Demonstrative exhibits
• Accuracy of transcripts
• Identities of parties
• Venue
• Minimum or maximum damage amounts
• Liability (when damages are the only issue)
• Damages (when liability is the only issue)
• Allowing witnesses to testify by telephone or video
• Admissibility of exhibits
• Permitting opposing counsel to ask leading questions to expedite testimony
• Permitting witnesses to give narrative responses so they can �tell their story�
• Introducing depositions or sworn statements in lieu of live testimony

This list is just the tip of the iceberg. The better you understand your case, the more issues and items you’ll want to agree to. But, if you’re going to use stipulations during trial, you’ll want to make sure the jury actually pays attention to them. Here are three tips for maximizing the impact of your stipulations:

1. Don’t call them �stipulations.� Are you confident that each of your jurors knows what �stipulation� means? Don’t risk any confusion. Rather than titling the document �Stipulations,� consider titling the document, �Agreed Upon Facts,� �Agreement Between the Parties,� or �Facts No Longer in Dispute.� Also, consider writing an introductory paragraph like this: �Both sides have agreed to the following facts. There’s no need for any further proof of these facts — they are no longer in dispute, and you may accept them as true.�

2. Get everyone to sign the document. Not just the lawyers — have all of the parties sign the document. That way, none of the jurors will get the mistaken impression that only the lawyers agreed to the stipulations. To really add some extra �oomph� to the agreement, ask the judge to formalize the agreement by signing off on the document.

3. Introduce stipulations at the most effective time. Many lawyers fall into the trap of waiting until the end of their case before publishing all of their stipulations. The judge says, �Call your next witness, counselor,� and the lawyer responds, �No more witnesses your honor — but I do have 40 minutes worth of stipulations to read into the record.� If that’s how you introduce your stipulations, �the record� will be the only one in the room paying any attention to them. The jurors will fall asleep before you finish reading the third page of the stipulations, and they’ll ignore your carefully crafted agreements. (Even worse? Those attorneys who don’t even read the stipulations into evidence. They just introduce the agreements into evidence and then expect the jurors to read them in the deliberation room.)

To maximize the impact of your stipulations, you want to publish them at the most effective time. For example, let’s say that you and your opponent have both agreed that a firearm recovered from the house was loaded and operational. Rather than waiting until the end of your case to read that stipulation into evidence, you should publish it to the jury when the gun becomes important. After the witness testifies, �I saw a gun next to the baby’s crib,� you can read the stipulation to the jury: �Both parties have agreed that the firearm was loaded and fully operational.� Doesn’t it make more sense to publish it then, rather than waiting until the end of the trial when the jurors have forgotten about the gun?

Consider making stipulations an integral part of your trial practice. The sooner you understand why to stipulate to issues in your case, the faster you will develop your trial skills. The better you understand your case, the more you’ll stipulate to. The more you stipulate to, the more focused your case will become. The more focused your case becomes, the better you’ll try your case. Keep it up, and before long, you’ll be one of the best trial lawyers in your courthouse!

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One of the best ways you can quickly improve your trial advocacy skills is to watch yourself on video. When you watch yourself presenting an opening statement or conducting a direct examination, you’ll see yourself the same way the jury sees you. (That may be wonderful, or it may be horrifying). But even better than watching the video by yourself is to watch it with a more experienced attorney who can critique your performance and point out what you’re doing well or identify areas for improvement.

This past weekend, I got the opportunity to sit down with nearly two dozen different trial lawyers and evaluate their trial advocacy videos. After watching several hours of video, I observed that many of them were making the same mistake in their examinations: They were ignoring their witnesses.

�Surely you can’t be serious,� you say. �These were experienced attorneys. I can’t believe they would purposely ignore their witnesses. �

Yes, I’m serious… and don’t call me Shirley.

Here’s what I saw on most of the videos: The attorney would look directly at the witness and ask a question. But as soon as the witness started to answer the question, the lawyer would break eye contact and start looking someplace else.

Why would they do that? Why would they ignore their witness’s answers? The truth is, they really weren’t ignoring their witnesses answers. They’d invested a lot of time preparing their cases, so they already knew what the witness was going to say. Rather than fully focusing on the witness, they just listened to the witness, breaking eye contact to look down at their legal pads and start forming their next question. Yes, they were paying attention to the witness, but the problem was it didn’t look like they were paying attention to the witness.

What type of message do you think that sends to the jury? Some of the jurors probably think to themselves, �If the attorney doesn’t think the witness’s answers are important and isn’t paying attention, why should I?�

You may think that’s not fair, but just like �The customer is always right,� your jurors are always right, too. If they don’t like what you’re doing, then they can discount or even ignore your evidence. In the end, they’ll make the final decision about your client’s fate, so they’re always right. (Even when they’re wrong, they’re still right.)

You can’t afford to let the jurors think you’re ignoring your witnesses. You must pay attention to your witness’s answers, even though you already know what they’re going to say. The easiest way to do that is follow this guideline: Whenever the witness is speaking, your eyes should be focused on 1) your witness 2) your jury, or 3) the exhibit your witness is talking about. If you look anywhere else, the jurors may think you’re ignoring the witness.

The next time you participate in a mock trial or do a dry-run of your direct examination, make sure you videotape yourself. Don’t just focus the camera on the witness — make sure that you’re in the frame, too. Pay particular attention to where your eyes are focused. Where are you looking when your witness is talking? Is your gaze focused on the witness, or are you buried in your notes? Force yourself to avoid looking at your notes until the witness has finished answering your questions, and your direct examinations will dramatically improve.

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Normally, when you’re seeking to introduce items into evidence, you need a live witness to testify and establish your evidentiary predicates. But some evidence is so trustworthy that it doesn’t require a witness. These forms of evidence are inherently reliable, and are deemed to be �self-authenticating.� Examples of self-authenticating evidence include:

• State and federal laws
• Contents of the Federal Register
• Laws of foreign nations
• Acts of Congress
• Court records
• Rules of court
• Municipal and county charters
• Ordinances and resolutions of municipalities
• Administrative agency rules
• Items under official governmental seal
• Facts that are not subject to dispute

The last item on the list is also the most interesting: Facts that are not subject to dispute. There are two different sources of indisputable facts. The first source is facts which aren’t subject to dispute because they’re generally known within the territorial jurisdiction of the court. For example, here in Orange County, Florida, everyone knows that Central Blvd. and Orange Ave. intersect in the middle of downtown. You wouldn’t need a geography expert to establish that fact — everyone in the jurisdiction is expected to know it, so you can ask the court to take judicial notice of the fact.

The second source of indisputable facts are those which are capable of accurate and ready determination by resorting to sources whose accuracy cannot be questioned. For example, if you were trying to establish which day of the week August 3, 2007 fell on, your judge could take judicial notice that it fell on a Friday. Why? Because the fact isn’t subject to dispute — anyone with access to a calendar can quickly and easily determine its veracity.

The great benefit of these forms of self-authenticating evidence is that you can introduce the items into evidence without the time and expense of calling a live witness to the stand. For example, I recently tried a case where my opponent was seeking to introduce a medical document. He didn’t use an expert witness or records custodian to admit the document. Instead, he introduced it using our state’s version of Federal Rule of Evidence 803(6). In case you’re unfamiliar with it, FRE 803(6) establishes another form of evidence that is (basically) self-authenticating: Records of Regularly Conducted Activity. When the evidence code was amended in 2000, they eased the business records hearsay exception by no longer requiring live testimony from a business records custodian. Instead, they now allow you to simply certify that the records are kept in the normal course of business.

Using this evidentiary rule, my opponent didn’t need to call a single witness to the stand. Instead, he simply handed the document and the certification to the judge, then asked to have them admitted into evidence. That was it! Without asking a single question, he satisfied the entire evidentiary predicate for admitting the document.

That was when I noticed the problem with �self-authenticating� documents.

After the document was marked into evidence, the attorney asked for permission to publish it to the jury. The judge granted permission, and the document was handed to the first juror. The juror received the document and quietly stared at it. If the document could have spoken, it would have said, �I’m important, because I show that the witness had alcohol in his bloodstream when he was admitted to the hospital. In fact, the witness had an alcohol level of .089, which is more than the legal limit to drive a car. You might want to question whether or not this witness knowingly and voluntarily gave up his right to remain silent before he gave that statement to the police…�

That’s what the document would have said, if it could speak. But it couldn’t. It just sat there while the juror stared at it. You could tell from the look on his face that he wasn’t sure what he was supposed to be looking at. He didn’t have any medical training, so medical codes and terms like �mg/dl� probably didn’t mean anything to him. He was just as confused as he would have been if the document had been written in Sanskrit. He stared at it for a moment longer, then passed it to the next juror. What might have been an important element in the case was completely overlooked, because the document didn’t get a chance to speak.

Many attorneys make the same mistake. They believe that if a document is self-authenticating, it should be able to �speak for itself.� But nothing could be further from the truth. Documents don’t speak. They don’t explain themselves. If a juror doesn’t know how to read them, or if they don’t know which parts of the document are important, the document just sits there and silently stares back at them.

Don’t make the same mistake. As the trial lawyer, it’s your responsibility to ensure that the jury understands your evidence. Even when your evidence is supposed to �speak for itself,� you still must give it a voice. The most effective way you can help your self-authenticating evidence �speak� is by strategically publishing the exhibits to the jury. If my opponent had waited until closing argument to publish his exhibit, he could have shown the jurors which parts of the document to examine closely, and told them why it was important. Instead, they examined the document in a vacuum, and had no idea why it was important or why they were looking at it. The importance of the document was lost, never to be regained.

Don’t fall into the trap of automatically publishing your exhibits immediately after they’ve been admitted into evidence. Wait until the most opportune time to publish them. This may mean that you don’t publish your self-authenticating documents until much later in your case, when a witness can use the document to explain or enhance his testimony. It may even mean that you wait all the way until closing argument (when you can explain the document or highlight the important elements) before publishing the documents to the jury.

Self-authenticating documents don’t speak for themselves. It’s up to you to give them a voice. Find a way to work the document into another witness’s testimony, or hold off on publishing the document until closing argument. Regardless of which method you use, you’ll breathe more life into your evidence, making it more persuasive than it ever could be on its own.

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