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Previously, I examined the discovery process and how commercial litigation is often won or lost in discovery.  But now you find yourself preparing for trial.  So let’s look at how evidence plays a vital role in whether you win or lose at trial (and on appeal) and some of my suggested approaches.

Good trial lawyers (and not those who call themselves trial lawyers who have never tried a case) have a mastery of the Rules of Evidence.  They understand how to get the evidence they want to be admitted and how to keep out evidence that may harm their case.  Each case should be prepped with an eye on the Rules of Evidence and how you will get each piece of evidence admitted at trial as each piece of evidence is one piece of the puzzle.  When you put all the puzzle pieces together, you paint the picture for the jury or the judge of why your client should prevail.


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First, what is Evidence?

Evidence can be testimony from a witness, a picture, a document, a video, a drawing, an email, and so on that is used to prove or disprove a fact.  Whether it be evidence to prove an element of your claim or to establish that your adversary failed to prove an element of theirs, trial attorneys seek to admit the evidence helpful to their claim and exclude the evidence harmful to their position.

The Rules of Evidence

The Rules of Evidence broadly speaking dictate what evidence is and is not admissible.  These Rules establish what constitutes hearsay and what exceptions may exist when a witness has the foundation to testify about a fact and who does not, and more.  While the Rules of Evidence are far too comprehensive to cover in detail in this article, just know that there is a Rule you can turn to for the evidence you seek to get in or keep out.  And there are a lot of good articles out there about what Rules trial attorneys should read, brush up on, and focus their attention towards.  This is not that article.  Instead, as a Board Certified Civil Trial Specialists and Family Trial Law Advocate, these are a couple of my practice pointers for how I approach evidence at trial.

My Approach

Whether it be representing the plaintiff or the defendant, I first look at each element of each claim alleged and defense asserted.  Knowing each element then allows me to narrow down the focus of what evidence exists.  And it also frames what is and is not relevant to the case and thus admissible.   In that regard, “relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Thus, to be relevant, the evidence must prove or disprove one of the elements of a claim or defense that has been asserted.  Other evidence may be interesting, but if it does not prove or disprove a claim or defense, it is not relevant and should be excluded at trial.


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Knowing that landscape, I then focus on what evidence I have, can get, or need to get for introduction at trial.  If it is the testimony of a witness, do they have the foundation to testify to the event or fact that establishes a claim or defense?  For fact witnesses (expert witnesses are a different story), this means establishing that the witness has “personal knowledge of the matter”.  Did the witness see the event or did someone tell them about it?  If the former, they would have personal knowledge.  If the latter, they lack personal knowledge as their information of the event comes from hearsay and not their view of the event.

If the evidence is in the form of a document, a picture, an email, or some other form beyond the testimony of a witness, I need to determine which witness I can get that evidence admitted through.  For instance, to properly introduce an email (absent certain hearsay exceptions), I need the author of the email or the recipient of the email to testify.  These individuals, often, can authenticate that the email was sent on or received on a specific date.  If not, my adversary will argue that the email should be excluded as hearsay.

Ah, hearsay.  This is one of the most misunderstood concepts in the law – both by laypeople and attorneys.  Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Now, there are exceptions to this rule (prior statements by a witness or statements by a party-opponent) which are the subject of entire law school classes.  As a general concept, however, think of hearsay as something someone said or wrote outside the courtroom while sitting on the witness stand.

And this is generally the battleground for most evidentiary fights during the trial.  We live in a time now where nearly everything is documented.  From text messages to emails, iPhone videos to cell phone pictures, there likely is a record kept of the event at issue.  The question then becomes which witness can you call to get that piece of the puzzle admitted at trial.  When I put my exhibit lists together, I have my own version (that is not filed with the court) that is more comprehensive than the version required to be filed with the court.  I include a column that designates which witness I will offer each exhibit through and a separate column addressing the specific Rules of Evidence I will rely on for such an introduction.  This puts me in a position to ensure that I have a witness with the foundation and ability to offer the exhibits I need for my client and to address evidentiary objections on the spot if raised.  Judges and juries appreciate an attorney who is able to, then and there, cite the Rule that permits the inclusion of the challenged evidence.  While you won’t always get your evidence admitted, for various reasons, immediate citation to the Rule scores you points with the judge, jury, or both.


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Similarly, I take my opponent’s exhibit list and add a column stating whether I will seek to challenge the exhibit or whether it is one that I take no evidentiary issues with.  I cite the Rule of Evidence in this column that I will rely on for my objection and a brief comment that I can use in making my argument to the court.

What evidence is admitted or excluded at trial is of vital importance to who wins or loses at trial.  The jury will hear jury instructions that they must only consider evidence admitted at trial, disregard evidence not admitted, and not rely on anything outside the courtroom they may have learned about the case.  While difficult, I believe juries try their best to do so.  Thus, what evidence you can get into the record allows you to highlight in your closing argument how you have established each element of your claim and your damages.  Or conversely, what evidence is lacking from the record that your opponent had to establish and did not?

And win or lose at trial, if the losing party appeals, the record on appeal is controlled by what was admitted at trial.  While there may be appellate arguments focused on what evidence was or was not admitted, generally, trial court judges have broad discretion on evidentiary rulings and the evidence admitted or excluded at trial is often where the appeal is won or lost.  The point being, the evidence admitted at trial is not only key to trial success, but also ultimate appellate success.

There are entire law school classes, trial advocacy classes, and continuing legal education seminars focused on the topic of evidence.  I can’t cover every possible evidentiary rule in this article and why they are each independently important, but hopefully, this helps give you at least a couple of small tips in preparing for your next trial (or helping your trial attorney approach your own trial).  Knowing the Rules of Evidence helps you control which pieces of the puzzle are admitted and which picture the judge or jury ultimately painted.

Brandon M. Schwartz

As a trial attorney at Schwartz Law Firm in Oakdale, Minnesota, Brandon M. Schwartz focuses his practice primarily on business law and business litigation involving such matters as shareholder disputes, derivative actions, non-competes and liquidated damage litigation, contract creation and litigation, company formation, patent infringement litigation and age discrimination for clients throughout Minnesota, Iowa, Wisconsin and Arizona.

Comments 1

  1. Jason Horner says:

    Great article! The Schwartz team is second to none. You’ll be more successful in legal battles if they accept you as clients. I am very thankful to be a client.

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