Trial lawyers know that Rule 403 filters out otherwise relevant evidence if the risk of prejudicing the jury outweighs the probative value of that evidence. We are accustomed to thinking about gruesome photographs when we think about this rule. We often forget that Rule 403 also precludes evidence that wastes the jury’s time. I like to refer to that as trial procrastination.
We must first ask ourselves why an item of evidence should be introduced. Once we’ve established that the evidence either goes to case proof or witness credibility, we must then consider whether Rule 403 filters out otherwise relevant evidence. Since wasting time at trial must be avoided, here are some about measures trial lawyers can take to speed things up…
Before trial: The evidence code provides multiple opportunities before trial to speed up the introduction of evidence. This includes the use of requests for admissions to authenticate documents and to treat them as business records under the hearsay rule. The same can be accomplished through the use of document certifications signed by records custodians during discovery. Rule 1006 gives trial lawyers the means to summarize a voluminous set of documents into a document summary. Motions for partial summary judgment can also be an effective way to narrow the issues. As an example, an inference may be at play in the case and the opposing party has no evidence to combat the inference.
At trial: Trial lawyers should brainstorm witness selection well before trial. The same story doesn’t have to be told repeatedly. Take the time to question potential witnesses and determine which ones are most effective. As part of this thought process consider also those witnesses who could be subject to impeachment, e.g., bias. Also think about your own presentation. Rehearse opening statement and seek honest feedback. You may find out that your opening goes on too long or is not clear enough to jurors.
My trial consulting practice, TrialFocus, will be posting an evidence course with CLE credit in the near future. Rule 403 is part of the admissibility logic chain that all trial lawyers must master. Avoiding “procrastination” is part of that skill set. Here’s the admissibility logic visual I use with the course…
