Trial: Preparing Trial Exhibits, Visuals, and Demonstrative Exhibits (TX)

This practice note discusses preparing trial exhibits, visuals, and demonstrative exhibits for trial in a

Texas state court civil action, including organization, authentication, publishing to the factfinder, and

using demonstrative exhibits.

Documentary evidence and testimony work together to tell your client's story to the judge or jury. The

overarching goals in selecting and organizing trial exhibits should be to ensure that the exhibits present

the case cohesively and are a resource for the factfinder. You should implement and maintain a structured

organization for exhibits to ease your use of them during the trial, as well as the factfinder's ability to

locate key documents during deliberations. This process begins early, as evidence is reviewed and used

for depositions. It is never too soon to start thinking about how you will present evidence at trial. If you

keep careful track of documents and tangible things throughout your case, including the discovery phase,

preparing your exhibits before trial will not be a complicated exercise.

Demonstrative exhibits can be an important part of this effort. Whether high or low tech, demonstratives

aid a factfinder's understanding by pulling together information from disparate sources. Demonstratives

can be as simple as a timeline, map, or callout of a key document. But especially in complex cases, more

detailed graphics and data visualizations may be required. You should start thinking about potential

demonstratives early in the case—not just in the weeks before trial.

For additional practical guidance on preparing for trial, see Trial: Preparing for Trial (TX) and Trial

Preparation Checklist (TX) on Lexis.

Selecting and Organizing Trial Exhibits

You should begin identifying and organizing trial exhibits long before trial. Many (if not all) of your

exhibits will be used in depositions.

Identifying Exhibits

The first step is to identify the evidence you will need to establish your client's claims or defenses at trial.

Carefully review:

• The claims and defenses in the case

• The required elements for each of those claims and defenses

• Your source of proof for each of those required elements (e.g., witness testimony, exhibits, party

admissions, expert reports, pleadings) –and–

• Issues regarding admissibility

Next, you should review:

• The exhibits used at all depositions

• The exhibits attached to any pre-trial motions and briefing

• Documents marked as "hot" during discovery –and–

• Documents relied on by any expert witness

If you maintained a running list of these documents throughout discovery, determine if you should remove

or add any documents based on subsequent case developments or changes in trial strategy.

When you are first identifying potential trial exhibits, be overinclusive. You do not want to be in a

situation where the court bars you from using a document simply because it was not on your exhibit list.

But once you have identified the universe of possible exhibits, you want to winnow those down.

Introducing every possible document as evidence risks overwhelming the factfinder and could dilute the

power of your trial presentation.

Organizing Exhibits

After you have narrowed the potential exhibits down, you need to decide how to organize your exhibit

list. Check first to see if your judge mandates a specific format. Then, keeping any local rules in mind,

you should logically organize the exhibits to tell a clear and cohesive story.

Consider using a spreadsheet (rather than a word processing program) to put your exhibit list together.

Spreadsheets allow you to keep more information about each exhibit at your fingertips and then sort and

filter the exhibit list throughout trial. Consider including columns with information such as:

• Whether the document must be admitted (or is included for possible use or for rebuttal)

• What element(s) of claims or defenses that the document relates to

• How you will lay an evidentiary foundation for the exhibit

• Which witness will authenticate the exhibit

• Document information such as date, description, and Bates number

• For documents previously used in depositions, the deposition exhibit number

• Asserted or anticipated objections

• Your notes on a response to any objection –and–

• The dates the exhibit was offered and whether the admission was granted or denied

Most of these columns will not be included in the exhibit list filed with the court or served on opposing

counsel. You can copy the appropriate information from the spreadsheet into a word processing document

for the court or opposing party. However, having a spreadsheet for your exhibits will help you stay on top

of the use and introduction of exhibits at trial.

The more logical the organization of your trial exhibits is, the easier it will be for you, the judge, and the

jury to keep track of important exhibits and their relationship to the rest of the evidence. Particularly in complex, document-intensive cases, having the trial exhibits organized logically can mitigate the

frustration and tedium that comes with large binders of documents.

Create headings for the exhibits you group together and use those headings in your exhibit list. These

headings will serve as additional signposts for the jury to keep track of complicated and large numbers of

documents. This is especially true when you use email threads as exhibits.

Many practitioners remain confused about whether exhibits that are only intended for impeachment or

rebuttal purposes need to be included in the trial exhibits at all. A good rule of thumb is that if the

document has a chance of being offered into evidence, rather than used solely for impeachment, the best

practice is to include those documents in your trial exhibit list.

In advance of trial, most trial courts require the parties to put exhibit stickers on each original exhibit and

each copy you will submit to the factfinder. Make certain that you know whether your exhibits will be identified by letter or number and whether there are other numbering protocols that the court uses, such as sub-numbers for multipage documents. Do not be caught unprepared because you failed to review the trial

court's specific procedures. You can usually find these rules and procedures in the court's pretrial order, or

if you have a final pretrial conference, you can ask the court its preference. For more information, see

Dorsaneo, Texas Litigation Guide, Ch. 110, Pretrial Conferences in Lexis.

As you organize your trial exhibits, be sure to note:

• The necessary foundation to admit each document into evidence

• The witness who will authenticate each document and provide the necessary foundation

• How you will respond to any potential evidentiary challenge –and–

• Any other witness(es) to whom you will show each document at trial

For more information on admitting evidence, see Texas Civil Trial Guide, Ch. 20 et seq. (Matthew

Bender) and Schlueter & Imwinkelried, Texas Evidentiary Foundations (Matthew Bender 6th ed. 2020) in Lexis.

Authenticating Trial Exhibits

To satisfy the requirement of authenticating or identifying an item of evidence, you must produce

evidence to support a finding that the item is what you claim it is. Tex. R. Evid. 901(a) in Lexis. In other words,

you have to be able to show that the document is not, for example, tampered with, backdated, or forged.

Trial exhibits can be authenticated if they are:

• Stipulated to

• Self-authenticating –or–

• Supported by an evidentiary foundation through a witness

See generally Tex. R. Evid. 901 et seq in Lexis.

Many trial courts require parties to enter into stipulations before trial concerning exhibits for which there

is no dispute as to authenticity and genuineness. Even where this procedure is not required, conferring with opposing counsel and attempting to obtain as many stipulations as possible is still the best practice.

Most documents produced by a party during discovery can be used against that party in any pretrial

proceeding or trial, unless the producing party objects within 10 days (or other period ordered by the

court) of actual notice that the document will be used. The producing party must raise a specific objection

either on the record or in writing and must have a good faith factual and legal basis for that objection. Tex.

R. Civ. P. 193.7. Given this rule, it is in a party's best interest to give notice under Rule 193.7 that it

intends to use the documents produced by the opposing party more than 10 days before trial.

You can also request that the opposing party admit the genuineness of a document through a request for

admission (RFA) under Tex. R. Civ. P. 198. For discussion, see Requests for Admission: Drafting and

Serving RFAs (TX) in Lexis.

If opposing counsel refuses to stipulate to the authenticity of documents you have produced in the

litigation, you may consider using a motion in limine to seek pretrial admission for all documents for

which you can use deposition testimony or business records affidavits to lay the appropriate foundation or

that are self-authenticating under the rules of evidence.

For those documents that the parties do not stipulate to and that are not self-authenticating, consider

grouping exhibits so that you can establish a foundation with a single witness. For example, photographs

depicting a crime scene can be authenticated and a foundation laid by the witness who took the photographs. The purpose of this is to be efficient and expeditious with the admission of evidence so the exhibits can be presented to the jury.

Keep in mind that there can be penalties for failing to admit to the authenticity and genuineness of documents in response to an RFA. Refusing to admit the genuineness of a document without a good faith basis can lead to an award to the opposing party of attorney's fees and costs incurred in proving the genuineness of the document. See Tex. R. Civ. P. 215.4(b).

Note that the Texas Rules of Evidence provide various mechanisms for establishing the authenticity of

certain business records and electronic evidence before trial. Tex. R. Evid. 902(10) is a critical tool

allowing you to authenticate evidence of a regularly conducted activity (e.g., business records) by way of

a certification of a qualified witness rather than through live testimony.

Under Rule 902(10), your proffered evidence must meet the requirements of Tex. R. Evid. 803(6). Under

that rule, the court will not exclude a record of an act, event, condition, opinion, or diagnosis as hearsay if:

• The record was made at or near the time by, or from information transmitted by, someone with

knowledge

• The record was kept in the course of a regularly conducted business activity

• Making the record was a regular practice of that activity

• All these conditions are shown by the testimony of the custodian or another qualified witness, or by

an affidavit or unsworn declaration that complies with Tex. R. Evid. 902(10) –and–

• The opponent fails to demonstrate that the source of information or the method or circumstances of

preparation indicate a lack of trustworthiness

Tex. R. Evid. 803(6).

The affidavit or declaration must contain information that would sufficiently establish the record's

authenticity as if it was offered through witness testimony at trial. See Tex. R. Evid. 902(10)(B). The record and accompanying affidavit or declaration must be served on the other parties at least 14 days before trial unless the court, for good cause, allows the record to be treated as presumptively authentic despite failure to meet the 14-day service requirement. See Tex. R. Evid. 902(10)(A). The burden of challenging authenticity then shifts to your adversary.

For a business records custodian's declaration template, see Declaration (Business Records Custodian)

(TX). For more on the business records exception to the hearsay rules, see Hearsay: Overview (TX) —

Exceptions to Hearsay Rule, "Exception for Record of Regularly Recorded Activity ('Business Records'

Exception)," in Lexis.

Note that the procedure under Tex. R. Evid. 902(10) only addresses authentication of the documents. Your

adversary still may object to the records' or data's admissibility on other evidentiary grounds, including

hearsay and relevance. One of the benefits of laying the foundation of document as a business record is

that it overcomes the challenges of both authentication and hearsay.

Determining How to Publish Exhibits to the Jury or Court

Once your exhibits have been admitted, your next task is getting those documents in front of the judge and

jury. You should first check the local rules and pretrial order for guidance. In most courts today, you will be able to count on using screens throughout the courtroom to display the exhibits throughout the course of trial. Keep in mind that you will likely need to have hard copies prepared in a binder to send back with the jury for deliberations.

For complex cases, you should consider employing a trial support consultant or paralegal tasked with publishing the exhibits electronically, navigating to the portions of the documents being discussed, and calling out specific portions of each exhibit. For cases that demand a lean trial team, however, there are applications for iPads and other tablets that will allow you to handle this yourself. Because presenting the exhibits electronically allows you to focus the factfinder on the portions of the documents that are most important to your case, you should consider these options if you can. It is critical, however, that you practice with and test your equipment to avoid embarrassing and time-consuming delays during trial.

Most trial judges will make their courtrooms available either before or after regular court hours or over

the lunch hour for you and your staff to check on available electrical outlets and placement of projectors

and screens to show your exhibits during trial. Take full advantage of this.

Some trial judges require that the parties agree on using only one person who facilitates the screening of

exhibits through a projector or other electronic device. Make certain to check your court's local rules and

pretrial order—or raise the issue during a pretrial conference—to avoid confusion and a problem with the

court.

Using Visual Aids and Demonstrative Exhibits

Visual aids and demonstrative exhibits are not evidence and therefore cannot be provided to the jury for deliberation, but they can be instrumental in communicating your trial theme and supporting your client's credibility.

We live in a fast-paced visual culture, and research suggests most people are visual learners. Accordingly, the purpose of visual aids and demonstratives is multifaceted. You want to keep the factfinder's attention, educate them about your case, and make your theme and key points memorable. Connecting your verbal arguments with visuals assists in all three objectives.

When you ask a witness to step up to a diagram, chart, or map to show the jury how an event occurred, you signal to the jury that the testimony that follows contains crucial details. The demonstration breaks the monotony of the witness's testimony and allows the factfinder to visualize essential evidence. The demonstrative exhibit can later be an effective aid during closing argument to remind the factfinder of the testimony.

Keep It Simple

Although technology can be very helpful in presenting visuals, you can create memorable visual aids without it as well. Using "low tech" visuals such as whiteboards, flip charts, and foam board enlargements can have value sometimes by giving jurors a welcome break from viewing computer screens. Regardless of the means by which you present visual aids, it is best to keep them simple.

Visual Design

Do not put too much information on a single demonstrative aid. Packing lots of text into a PowerPoint slide or poster board overwhelms the viewer and defeats the purpose of the aid. Several software programs exist to help you present your best visuals to the factfinder. Using different colors, and using effective, but not argumentative labels, will help jurors identify the information later.

Types of Visual Aids and Demonstrative Exhibits

The types of visual aids you may use are almost limitless. Timelines, summaries, and charts are very common to help organize information in a more easily digestible way.

Experts often have their own demonstrative aids. For example, a treating physician may use a diagram of the human body to help explain the location and extent of an injury, an engineer may use a diagram to explain how a system works, and an eyewitness may draw a map to describe where an incident occurred.

Timelines

Timelines are an extremely helpful and an effective visual method for context and chronology. Regardless of the timeline's substance, it is best to minimize its design and text descriptions and present the events in an easy-to-interpret fashion.

The easier a timeline is to read, the more effective it will be in persuading the jurors. Keep your text large enough to read and consider using color coding and shading to help demonstrate trends. You may also consider using headers for certain occurrences that repeat. Using icons can also be an effective means of providing a visual shorthand for the viewer.

Charts and Graphs

Charts and graphs can be very effective in condensing large amounts of information into easy to grasp and often very persuasive visuals. Charts can also help jurors see the relationships between information and can quickly demonstrate comparisons.

The type of chart you use will depend on what you want to communicate and what you want the factfinder to conclude. Pie charts, bar graphs, line graphs, Venn diagrams, flowcharts, and comparison charts, among others, can all be a fantastic way to summarize and educate.

Consider using charts to summarize the evidence you introduced or will introduce during the trial. This can help synthesize relevant evidence for the jury. Evidence summaries can be especially useful in complex or document-heavy cases because it can be difficult for a jury to track the evidence as it is introduced.

Models, Illustrations, and Photographs

Using photographs, diagrams, and other illustrations at trial presents unique opportunities for persuasion.

Not every case has relevant photographs and illustrations available, but for those that do, getting these in

front of the jury can really help them grasp your facts, theme, and arguments. You should still keep it simple. Beware of stock photos and internet illustrations that were not generated by your client or case. The benefit of a visual will never overcome the need to remain credible.

Considerations for Marking Exhibits

Everything that is shown to the jury must be marked as an exhibit. Even if you prepare a chart, list, or other visual aid or demonstrative exhibit that is not technically considered an evidentiary exhibit that goes back into the jury room, you must mark it for purposes of review on appeal.

With advances in technology, most exhibit labels are now applied electronically to documents before trial. But you should check the local rules and pretrial order for any specific rules for marking exhibits that may apply in your jurisdiction.

If you have a diagram, photograph, or another exhibit that you intend to have multiple witnesses mark, consider using copies of the admitted exhibit, marking each copy as a separate sub-exhibit. For example, if the original exhibit is "Exhibit 1," the annotated copies could be Exhibit 1-A, Exhibit 1-B, etc.