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Continued... Page 6 > The Visualized Opening Statement

The discretion which inheres in the trial court makes careful planning and foundation for all demonstrative evidence essential, particularly when it is sought to be used in opening statement. Use of a formal pretrial admission hearing to affirmatively admit demonstrative evidence for use in opening is invaluable. The remaining portion of this article will discuss this technique.

USE OF PRETRIAL ADMISSION HEARING TO PERMIT: SHOWING OF VISUAL EVIDENCE IN OPENING

Invariably, many lawyers take a casual approach to how and when the necessary foundation for visual evidence is to be laid. There is a pervasive tradition of sloppiness in this regard. It is common for a lawyer to bring up such admissibility questions at trial on an ad hoc basis, often just before the court is ready to bring the jury back in after a recess. Such an approach is a virtual guarantee of a hostile and inattentive reception by the judge. In addition, as discussed previously, if the visual is effective, it is certain that the opposition will do everything short of setting themselves on fire with gasoline and a match to urge the judge to keep it out of evidence. If you are off on the wrong foot with the trial judge by failure of adequate planning, you make your opponent's job in this regard an easy one.

By tradition, lawyers are accustomed to filing pretrial motions in limine to keep out evidence that is perceived as unfairly prejudicial. A formal motion in this regard is appropriately heard before the jury is impaneled, along with an accompanying brief. The court is then able to sort out these admissibility questions in a more structured and attentive manner before the pressure of a waiting jury is an issue.

Yet, the same lawyer who dutifully files a motion in limine to keep out evidence rarely thinks to prepare an equivalent pretrial motion to get in evidence prior to opening statement. This is unfortunate, because what you get in before trial starts is every bit as important as what you keep out, particularly when the requirements of an effective opening statement are considered.

The usual consequence of not setting up a formal pretrial hearing to lay the foundation for visual evidence is that the court will not permit this evidence to be used in opening, deferring a decision on it until later in the trial. By that point, later may be too late as far as persuading the jury, particularly if the opponent has taken the necessary steps to have an effectively visualized opening statement. Like the third little pig who made his house out of bricks, you have to be able to plan ahead and lay your foundation for visualize evidence to be used in opening brick by brick. Otherwise, a very effective and expensive piece of evidence may remain locked in your briefcase as a rejected effort at a time when it could do you and your client the most good.

A CASE STUDY - HOLMAN V. MULLAN 20

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