Do you have pieces of evidence that you think the judge may not admit? Is there testimony you want to get into the record, but you think the judge might exclude? If you know in advance that you may have a problem with certain testimony or other evidence, but you’re convinced that its admission would be legally correct, how do you maximize your chance to include the evidence, or make the best possible record in case your evidence is not admitted?
Use one of my favorite winning strategies… It’s called the “Brief Brief”.
Advance written preparation for each legal question you anticipate is crucial.
When I encounter a piece of testimony or evidence which I think could be a close call for the judge, and which I believe the opposing side might try to exclude, my trial strategy is to take time before trial to write a one- or two-page brief about the evidence or testimony — complete with citations to any authority that supports admission, and with the relevant portions of those cases highlighted. I attach the authority to the Brief Brief and make three copies of it — one for myself, one for opposing counsel, and one for the judge. I file them in hanging folder and bring a box of hanging folders and Brief Briefs to court.
When I know I’m going to examine a witness whose testimony I believe may be challenged, prior to my examination I take out the Brief Brief so it’s at the ready. If the objection comes, I’ve got the authority I need to support admission of the evidence. Ditto for an exhibit that might be excluded. I’ve found that judges are much more inclined to admit evidence if they know you have a strong legal foundation for admission and they can read the authority rapidly before making a decision.
The primary advantage of the Brief Brief as a trial strategy is that you’ve put your arguments in writing, in advance. You don’t risk omitting an argument on the record, and the Brief Brief is then made a part of the record. You build credibility with the judge through your preparation as well. No judge wants to make a wrong call about a crucial piece of evidence, and your Brief Brief helps the judge avoid that difficulty.
All in all, it’s a strong trial strategy to help ensure that your evidence is admitted, and to protect your record in the event you run into an obstacle to it.