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.

It might be the back alley of a dive bar where a man was bludgeoned to death, the potato chip aisle at a local grocery store where the plaintiff claims he slipped and fell, or a tiled and antiseptic operating room where your client’s husband died during routine surgery.  In each instance, regardless of whether the case is civil or criminal, the location is the same: it’s the “scene of the crime.” 

In your last case, how many times did you visit the “scene of the crime” before trial began?  Once?  Twice?  Half a dozen times?

Unfortunately, if you’re like many lawyers, the answer is probably “none.”  Oh sure, you looked at photos, examined a map of the area, and listened intently as your witnesses described the scene, but when it comes right down to it, you never actually left the comfort of your office to go visit the scene.

For as long as I’ve been a lawyer, I’ve always heard how important it was to visit the scene.  Law school buddies said I should visit the scene, but I didn’t listen.  Trial partners told me that I should visit the scene, but I didn’t listen.  Judges and senior attorneys said, “Go!”, but I didn’t listen. 

To be candid, I rarely went to the scene because I always came up with an excuse for why I didn’t need to go:

(Do any of my excuses sound familiar?)

Then one day, I found myself listening to someone whose advice I really trusted.  This man’s worldly wisdom was more valuable than anything I’d ever learned in law school.  He wasn’t a lawyer, but lawyers listened to him.  In fact, his influence extended far beyond the courthouse walls.  I have it on good authority that countless legislators, law school professors, judges (even a few Supreme Court Justices) still listen to everything he says, and will go out of their way to see him if he visits their town. 

So who was this sage?  Perhaps you’ve heard of him: His name is Jimmy Buffett, and the advice he extolled came from the song “Mañana” on his Son of a Son of a Sailor album.  Here’s what he told me: 

“Don’t try to describe the ocean if you’ve never seen it —
Don’t ever forget that you just may wind up being wrong…”

Buffett has given us some great advice over the years (“I took off for a weekend last month, just to try and recall the whole year,” “Come Monday, it’ll be all right,” “Barmaid, bring a pitcher, another round of brew…”) but this is probably the most useful advice he’s ever given to aid your pre-trial preparations.  And if Jimmy Buffett’s recommendation isn’t enough to get you out of the office, here are three more reasons why you’ll want to visit the scene of the crime:

1. You’ll present better opening statements.  If I asked you to tell me what one of the courtrooms in your courthouse looks like, you could probably describe it in great detail, couldn’t you?  That’s because, in your mind’s eye, you can “see” where the jury box is located, the height of the judge’s bench, and the distance between the witness box and the attorney’s tables.  When I ask you to describe the courtroom, you simply access your visual memory and tell me what you “see.”

In much the same way, going to the scene helps you “see” how the events unfolded, which lets you bring the action to life during your opening statement.  Instead of cobbling together random details from witness statements and various reports, you simply transfer the images from your mind’s eye into your jurors’ minds.

2. You’ll extract more detail during direct examination.  Possibly the greatest benefit of visiting the scene is that you’ll start pulling far more detail out of your witnesses during direct examination.  For example, compare these two direct examinations from Driving Under the Influence (DUI) cases.  The first is by a prosecutor who only read the police reports and talked with his witnesses:  

That’s not too bad, right?  You know that the driver didn’t stop his car, even though the police officer’s lights were flashing and his sirens were wailing.  You also know that he passed by several other safe places to stop his car.  At this point, you might even be thinking that the reason why he didn’t stop the car was alcohol-related.  But look at how much better the direct examination becomes if the prosecutor actually has first hand knowledge of how the scene looks:

By visiting the scene, you can ask more intelligent questions and elicit more details from your witnesses.  This lets you fill in all of the “holes” in their testimony and present a complete picture for the jurors.

3. Your cross-examination will be more lethal.  Your witnesses and investigators don’t know as much about the case as you do, so they can easily overlook cross-examination insights which would seem obvious to you.  When you visit the scene (rather than relying on second hand information) you will uncover clues that others wouldn’t even recognize as being important.  Those clues may be the winning edge you need to poke holes in opposing witness’s testimony.

• “You said you were sitting in the Starbucks at 4:25 PM, looked out the window, and saw my client, Money Richpockets, run a red light and hit your best friend, Harvey Deadbeat, isn’t that right?”
• “That day was a clear day, wasn’t it?”
• “Not a cloud in the sky, right?”
• “The sun was shining brightly from the west.”
• “Earlier, you said that you had a clear view of the crash, because the sun was directly behind you as you looked out the window, right?”
• “The Morgan St. glass shop is directly across the street from the Starbucks, isn’t it?”
• “The glass shop has a 20′ x 10′ mirror in the front of the store, doesn’t it?”
• “And between 3:50 PM and 4:45 PM, the sun shines directly onto that mirrored window, doesn’t it?”
• “In fact, the light reflects directly into the Starbucks, blinding the barristas.”
• “They close the front blinds as soon as the light hits the espresso machines, so that no one in the store gets blinded, don’t they?”

Visiting the scene of the crime can make the difference between whether the jury “sees” what happened to your client or not.  Your pre-trial preparation won’t be complete until you’ve visited the scene of the crime, so block off some time in your calendar and go.  You’ll be glad you did, and so will your client!

It was Bill’s first trial.  Like many young lawyers, he was concerned about getting his exhibits introduced into evidence.  “I took a trial advocacy class in law school,” he said, “But I don’t want to make any mistakes that will stop me from introducing my exhibits.  What should I do?”

To help him get ready for trial, Bill’s trial partner encouraged him to look through a book on evidentiary predicates, write out his predicate questions word-for-word, and invest a few hours anticipating any objections that might arise.  Bill followed his advice, but he still felt a little nervous.

When it came time for trial, however, Bill was ready.  Each of his carefully worded questions were written in block print on a yellow legal pad that he held as if it were a winning lottery ticket.  He wiped away a light sheen of perspiration from his forehead, and started to ask questions.  As he questioned the witness, his eyes never left the legal pad, for fear of omitting a single word from his questions.  He visibly flinched each time his opponent moved her chair, fearing that she was rising to object.  Finally, however, he read the final question from his legal pad.  “At this time, we would ask that Exhibit A for Identification be introduced into evidence as Exhibit #1.”

The judge turned to his opponent and asked, “Any objections, counselor?”

His opponent had no objections, so the judge ruled, “Exhibit A for Identification is hereby moved into evidence as Exhibit #1.”

Bill exhaled a sigh of relief.  “No more questions, your honor,” he said, and sat down at his table.  He was visibly relieved, but you could also see the hint of a proud smile starting to bloom on his face.  He’d done it!  Despite all of his concerns, he’d actually gotten his first piece of evidence admitted.  There was only one problem…

He never showed the exhibit to the jury!

He had focused, almost obsessively, on getting his evidence admitted.  As a result, he’d lost track of the big picture.  Although he’d managed to ask the proper predicate questions, anticipate objections, and get his exhibit introduced into evidence, Bill had forgotten why he was asking those predicate questions.  We don’t ask questions because we want the jurors to hear the evidentiary foundations.  We don’t ask questions because we want to avoid objections.  And we don’t ask questions to get our evidence admitted into evidence.

The reason we ask predicate questions is so the jury can see our exhibits.

The next time you’re in trial, remember why you’re asking your questions.  Focus on the real reason why you’re asking those predicate questions.  Do you want the jurors to see an exhibit?  Do you want them to believe that a document is authentic?  Do you want them to believe your witness is qualified to render an expert opinion?  Keep in mind what you’re trying to accomplish, and you won’t lose sight of the forest for the trees.

In every football game, coaches make decisions about whether to take a timeout, to accept a penalty, or to go for it on 4th down.  These decisions must often be made in a split-second, and can affect the entire outcome of the game.  Anyone who’s watched football has probably heard the old mantra, "Every second you leave on the clock unnecessarily may be the one your opponent uses to beat you."

That’s why football coaches spend so much time studying clock management techniques.  They think their way through every timing possible scenario before they take the field, because they know that they’ll eventually run into a situation where they need to make a split second decision.

How do they do it?  They script out their decisions in the calm of their office, before they run into the problem on the field. They know that their minds don’t work their best when dealing with distractions, time pressure, and screaming fans, so they figure out what the best possible response should be beforehand, and then implement it on the field.  

These coaches prepare charts to tell them when to kick and when to go for the 2 point conversion. They have charts to help them decide whether or not to stop the game clock.  They have charts to tell them whether or not to accept penalties.

Every conceivable problem gets mapped out before they take the field, so that they can make the best decision when it counts.

But what about you and your trial practice preparation?  Do you have a plan in place for dealing with emergencies?

Think about all of the things that could possibly go wrong in your next trial. Here are some examples:

• Your star witness is late…
• Your start witness doesn’t show up…
• Your exhibit is excluded…
• The judge reverses his pre-trial ruling and admits your opponent’s exhibit into evidence…
• The judge reverses his pre-trial ruling and doesn’t admit your exhibit into evidence…
• Your objection is overruled…
• Your opponent’s objection is sustained…

Do you have responses prepared for these scenarios?  If not, you need to invest some time burning the midnight oil and crafting a solution to each of those potential problems.

You’re not going to win jury trials because you’re the most attractive lawyer in the courthouse (even though you are, gorgeous!) or because you’re the smartest person in the courtroom (even though you are, Einstein!) Nope, you’ll win jury trials because you’re the most prepared lawyer in the courtroom, and you’ve thought of responses to every possible problem.

Being a trial lawyer is kind of like being a top notch surgeon performing an appendectomy.   Removing the appendix is easy.  Heck, I could probably teach you how to do it in a 30 minute seminar.  But surgeons don’t get paid the big bucks because they know how to remove the appendix — they get paid the big bucks because they know how to respond to the thousand different complications that can arise while you’re removing it.

That’s why you get paid the big bucks.  Trying cases is pretty easy. A high school student could probably do it if everything went according to plan. But things never go according to plan, and that’s why you get paid the big bucks.  Script out your responses to all of the different scenarios before trial begins, and you’ll be the lawyer representing the prevailing party, rather than the lawyer apologizing to your client.

Jack Bauer may be an expert with firearms, but Kiefer Sutherland, the actor who portrays him on the hit show 24, isn’t.  To make sure that the character looks like he knows what he’s doing when he handles a weapon like the Sig Sauer P228 9mm (either with or without the silencer), you can bet that Kiefer spent a significant amount of time familiarizing himself with the prop before they started filming.  Before your next trial, it’s essential that you familiarize yourself with your props, too.

“Wait a second,” you say, “What props?  My trials aren’t like the ones on Court TV.  I’m not bringing any ‘props’ into the courtroom.”

Yes, you will.  Whether you know it or not, during your next trial, you will be handling a variety of props.  Every exhibit and demonstrative aid that you’ll show the jury is a prop.  The computer and the projector that you’ll use to display images are props.  Even the lectern where you’ll place your legal pad is a prop. 

Your goal is to make sure that your prop handling doesn’t interfere with your case presentation.  You don’t want the jurors focusing on your props or how you present the information — you want them focusing on your images and on your client’s story.  To avoid looking incompetent or unprofessional during your next trial, you need to spend some time practicing with your props.   If you don’t, you run the risk of destroying the flow of your presentation or appearing foolish and clumsy.  Here are a few guidelines to ensure that your props enhance the presentation of your case.

Keep your props close at hand.  In every theater performance, the stage manager is responsible for ensuring that all of the show’s props are in place and ready to go.  Behind the scenes, they use a different “prop table” to hold the props for each act.  The prop table is covered with butcher’s paper, and then they draw an outline of each prop on the table, so they can immediately tell whether or not all of the necessary props are present.

During trial, if you’re unable to locate your exhibits or don’t know whether or not they’ve been admitted into evidence, you can lose your mind.  Luckily, you can use something similar to a prop table to guarantee that you have all of your exhibits for trial and that they’re properly admitted into evidence.  The best resource to use is an exhibit list where you’ll list every item that you intend to introduce.  You can download a sample copy here:http://www.trialtheater.com/documents/Exhibitlogs.pdf

Present your props for maximum impact.  How you handle an object affects how the jurors will perceive it.  If you treat it with reverence and respect, the jurors will think it’s more important than if you carelessly toss it about.  When you treat the firearm as if it’s loaded and eager to kill someone (perhaps even refusing to touch it, asking the bailiff or a law enforcement witness to display it to the jury), jurors will think it’s more dangerous than if you treat it indifferently or wave it about carelessly.  If you ask your witness to put on a pair of latex gloves before displaying a baggie of cocaine to the jurors, you can subtly send a message, “This stuff is dangerous – you don’t want to touch it.”  What message do you want your exhibit to send to your jurors?  Think in advance about how you’ll handle your evidence, so that you send the right message.

Know how the prop is supposed to work.  Play with the flipchart holder until you’re confident it won’t collapse in the middle of your closing argument.  Fiddle with the scale model until you know that it will work the same way every time you demonstrate it.  Mark your photos and charts so you can instantly tell which side is up.  A small amount of extra effort ahead of time will prevent you from stumbling or bumbling with your props during trial.

Make sure they can see your props.  Can the jurors see your exhibits?  Can they see over the rail of the jury box to examine your scale model?  Is the print on your poster large enough for that octogenarian juror to read?  Are the fluorescent lights creating a glare?  Do you need to adjust the blinds so that the sun doesn’t shine in their eyes?  Is your prop hidden behind the lectern or behind the witness stand?  Are you or your witness standing between the jurors and your prop?  Remember, if they can’t see your evidence, it doesn’t exist.

Be comfortable with your props.  The courtroom can be a dangerous place, especially in criminal court where it’s a regular occurrence to see kilos of cocaine or semi-automatic firearms introduced into evidence.  If you’ve never seen or handled these types of items before, your body language can affect your presentation of the evidence, especially if your hands are shaking when you publish the exhibit to the jury.  Take some time before trial to learn how to handle them safely and comfortably.

Practice with the computer projector.  By the time you get to court, it’s too late to discover your computer can’t talk to your projector or that you’re missing the connecting cables.  Get to the courtroom early to hook up your laptop, set up the screen, focus the image, and make sure everything works.  Since you’re early, go sit in the jury box and make sure you can clearly see the screen.  If you’re not using the projector until later in the trial, learn how long it takes to power up so you can turn it on before you need it.  Make sure you know how to switch the input from your laptop to your DVD player.

Practice with your laptop.  There’s a story (probably apocryphal) about an investigator who was delivering a PowerPoint presentation to a group of FBI agents.  Unfortunately, after connecting his laptop to the projector, he opened the wrong file, and unintentionally shared his collection of child pornography with more than 150 FBI agents.  (Supposedly, he was arrested on the spot and everyone broke early for donuts).

You won’t have anything that extreme on your computer, but you may have exhibits that haven’t been admitted into evidence yet or case notes you don’t want your opponent to see.  Invest some time cleaning up your computer desktop and label all of your folders appropriately, so you don’t accidentally open the wrong folder or file.  (If you have any doubt about whether you’re opening the correct document, simply place a piece of paper in front of the projector to black out the screen until you’ve found the correct document.)

Make sure your laptop is plugged in.  A few years ago, I was watching a community theater show that was using a laptop computer to present photos, audio, and video recordings above the stage.  The imagery and sound were integral to the successful presentation of the show.  Before the show started, the technician checked to make sure it was plugged it, but sometime during the performance, the power cord came unplugged.  At first, no one noticed, because the computer continued playing on battery power.  But then, halfway through the final act, the video (which was integral to the act) suddenly winked out and died! 

Don’t let the same thing happen during your trial.  You don’t want to reboot your laptop during closing argument or scramble for a power solution halfway through your direct examination.  Your laptop has an indicator which tells you if the computer is plugged in or running on battery power.  Make sure you know where it is so you can occasionally monitor it during trial.

Used effectively, props can dramatically enhance the persuasiveness and memorability of your case.  Invest time and effort learning how to properly handle your props, and your case presentation will be smooth and worry-free.