by Hon. D. Douglas Metcalf
D. Douglas Metcalf
is a Pima County Superior Court
Judge and was appointed to the
court by Gov. Jan Brewer. He
currently resides on the juvenile
This column provides tips from judges
on civil practice. If there are practice tips
you’d like covered – or if you are a judge
who would like to write a column –
write to email@example.com.
CIVIL PRACTICE POINTERS
Using Exhibits at Trial
standing next to
the clerk’s desk
trying to find the
Using exhibits effectively is critical to presenting a winning case at trial.
Exhibits often lend credibility to your case, especially if they are created independently by someone with no stake in the litigation. In a “he
said–she said” contest, pointing to a document or other physical evidence can be decisive. But if you are not
prepared and end up bungling the use of
an exhibit, you interrupt case flow and
damage your credibility with the jury.
First, organize your exhibits. When
you obtain documents, bates stamp
them, note their source, and then disclose them. If an opposing party disputes
whether you disclosed them, or where
they came from, you can reference your
Next, prepare the exhibits for trial.
Pretrial orders generally require attorneys to provide the clerk with the exhibits at least a week before trial. This allows
the clerk time to mark them. If information needs to redacted, do so before
providing the exhibits to the clerk. If the
exhibit is a copy, make sure it is legible
and complete. Don’t present multiple
copies of the same document (this tends to happen with medical records
and emails). Have a plan for how to get each exhibit authenticated. If
there is a dispute about exhibits, bring it up in a motion in limine or at
the final pretrial conference.
Then, develop a system to keep track of your exhibits so that you can
find them quickly during trial. Don’t be the lawyer standing next
to the clerk’s desk thumbing through the exhibits trying to find
the right one. During a deposition you can rummage around
looking for the right exhibit. You cannot do that at trial with the
jury watching and waiting. One sure-fire system is to make a list
using the clerk’s numbers (or letters) after they are marked. Also,
write the numbers or letters on your copies.
Also, decide which exhibits need to be admitted. Exhibits used
to refresh the witness’s recollection or to impeach need not be
admitted. But an exhibit should be admitted before the witness
discusses its substance or you show it to the jury. There are four
requirements to getting an exhibit admitted: ( 1) mark, ( 2) identify, ( 3) offer, and ( 4) admit. Marking an exhibit is not the same
as getting it admitted. You would be surprised how often attorneys forget to ask that an exhibit be admitted.
If the exhibit is important, you should show it to the jury.
If you are discussing an exhibit with a witness but the jury can-
not see it, they tend to lose interest. An Elmo projector is an
inexpensive and effective way to show a document to the jury. Or
you can scan the documents and save them
to a laptop or tablet connected to a projec-
tor. The most impressive presentation of
exhibits I have seen was a lawyer who used a
tablet connected to a projector by Blue-
tooth. When the law-
yer wanted to show
an exhibit, she pulled
it up on her tablet,
which projected it
onto the screen. She
could do this while
moving around the
well, so it did not
interrupt the flow of
her witness examina-
If you project an
exhibit onto a screen,
Though exhibits can be persuasive, using
too many can be a distraction. Emphasize
the important ones. If you need to use voluminous documents, consider using a summary. A good summary extracts the relevant
data from voluminous documents and presents it in a clear and understandable way.
Also, if the exhibit is important, don’t wait
until closing to mention it. Even though it
may have been properly admitted, the jury is
unlikely to give it much weight if no witness
discussed it during trial.
Finally, be prepared. If time permits, go
to the courthouse the week before trial and
practice. If you don’t know how to use an
Elmo or a laptop, don’t use it for the first
time at trial. Technology can be a powerful
tool, but if you fumble around with it you
lose credibility. A good witness can be effective despite imperfect lawyering. But with
exhibits, it all falls on the lawyer.