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.