Trial Smarts: Using an Evidence Log at Trial

Building or defending a case at trial is akin to putting together a puzzle.  The well prepared advocate need not “wing it” if pains are taken to organize evidence before the trial begins.

I started my legal career as an assistant district attorney.  As a young prosecutor, I observed that the courtroom deputy or clerk completed a log during trial in which he or she identified exhibits when marked them for identification and noted when the exhibits were admitted into evidence.  I obtained a copy of the “evidence log” and subsequently used one to keep track of evidence during trial.

That log has evolved over time in my civil practice.   Trials often transpire over multiple days – not necessarily consecutive ones – and can involve extensive exhibits and witnesses.  It is critical that counsel be organized in his or her presentation of evidence.  No attorney wants to find him or herself in a position of doubt as to whether all evidence marked and necessary to the client’s case has been admitted into evidence after resting.

Accordingly, as a companion to my trial notebook, I prepare an evidence log.  Different people call it different things and include different categories in their logs.

I generally create columns for: a) the number or letter assigned to the exhibit; b) a description of the exhibit; c) the date on which the exhibit is marked for identification; d) the date on which the exhibit is marked into evidence; e) the witness(es) through which the foundation for the exhibit may be established; and f) a column for notes, e.g., grounds for the admission of the exhibit.

In advance of trial I list on the log the exhibits I intend to offer into evidence in the likely order in which they will be presented, identify the witness(es) through which I anticipate introducing each exhibit, and note any anticipated evidentiary issues that may arise and my solutions to those issues.  I keep that log in the pocket folder in my trial notebook and on hand when I am examining witnesses and offering evidence.

I never excuse or pass a witness or rest my case in chief until I have checked my log to confirm that I have moved an exhibit into evidence or elicited the testimony required of that witness to lay the foundation for later admittance of the exhibit into evidence.

The investment I make in the preparation of the log is well worth the return in knowing that, to the extent I can control it, the trial has progressed in an orderly fashion and the record is preserved for the benefit of my client.

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