January 2007 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Personal identifying information in exhibits

How often have you seen personal identifying information in exhibits that are offered and received into evidence in trial or attached to motions or pleadings? This happens in civil litigation, as well as criminal cases and family law cases.

Along with the name of the person whom the exhibit references, we commonly see Social Security numbers, dates of birth, addresses, next of kin, etc. While this most commonly occurs with medical records, many other types of exhibits we see in court also contain this type of information.

While in civil and family law litigation exhibits are generally withdrawn at the end of trial, the court retains the exhibits after criminal trials. With trial exhibits and certainly with documents that are attached to motions and pleadings as exhibits, there is a very real risk this personal identifying information could be inappropriately used (read: identify theft).

Practice tip: Redact personal identifying information from exhibits before using the documents as exhibits to court filings or in trial. Be sure to tell the other side what has been redacted.

Witness diagrams and charts during trial

In trial much time is wasted using the easel for diagrams, etc. Despite years of CLEs and law school trial practice classes, it remains common for lawyers to ask a witness to step to the easel in trial to draw a diagram of the scene of the crime or accident or do calculations illustrating some point for the jury. Frequently the lawyer asks the witness to use different colored pens for different parts of the diagram or chart.

Most of the time the witness is either a lousy artist or is unprepared to draw the diagram or make the calculations for the chart. The witness is usually very slow and does a poor job of it. Also, frequently the diagram or chart suffers from the poor handwriting of the witness. Frequently the witness has to acknowledge that he/she does not remember the details very well.

This same problem occurs when the trial lawyer attempts to write at the easel while the witness is testifying.

Practice tip: Prepare the diagram or chart ahead of time. Come to court for trial with good diagrams of the scene that your witnesses are prepared to acknowledge are accurate. Have someone with good handwriting prepare these materials ahead of time. If you must prepare them during trial, try to give your witness a chance to do so during a break in the trial, to avoid the delays and other pitfalls associated with having the witness do the diagram or calculations in front of the jury during trial.