...that is the question. Marking exhibits are one of those things in court reporting that can be as routine as setting up your machine, or a real hassle. So what's the big deal with marking exhibits? Don't you just make out a sticker, put it on the document and write it into the record? In a perfect world, yes, that's how it works. But time-crazed attorneys often make things harder than they need to be.
Here's what happened to me recently, that made me want to write this blog. We were about to start a hearing when one of the attorneys involved was called to another courtroom briefly. Everyone else stayed in the courtroom, except the judge. We were not on the record yet. The remaining attorney handed me a document and asked me to mark it as an exhibit. I told him I prefer to wait until we are on the record to mark an exhibit. I did make out the sticker at that time though but did not attach it to the document. The other attorney returns, the judge takes the bench and we go on the record. Then the attorney who previously was absent from the courtroom indignantly stated that she was just informed by her client that something was put onto the record while she, the attorney, was out of the room.
At this point the judge looked at me and I told him that nothing was put on the record in anyone's absence. Indignant absentee lawyer then stated that her client informed her that the other attorney gave the reporter a document. I explained to the judge that I did not mark the document because we weren't on the record yet. I'm sure I sounded totally pissed off when I said this. I was mad at the lawyer who asked me to mark something off the record. He has been an attorney for many years but still doesn't seem to know the rules. In his mind he was trying to "save time" by having it marked ahead of time, but you can see the kind of procedural landmine this can create. I was also mad at the client who had such a smug look on her face as she was sure she was "tattling" on me and the other lawyer.
After getting this cleared up we began the day's questioning. The first thing the lawyer who tried to have the exhibit marked did was refer to the "exhibit we just marked." Oh my God, doesn't anybody listen to me?! This is now the third time I've had to explain that the document hasn't been marked yet. So after three times the lawyer finally learned and asked to have the document marked on the record. Of course, this document was absolutely irrelevant to his case, and the judge said so when he refused to accept it into evidence.
Lawyers do seem to try to play with exhibit marking in order to save time. You can see by my recent experience though that it actually adds time, and confusion....not to mention making the court reporter mad.
I do have to admit that I have pre-marked exhibits in the past, sometimes without problem, and sometimes with a problem. When I worked in the DA's Office the ADAs always gave you the exhibits to mark before we got on the record. If you've ever sat in a grand jury, or reported a grand jury, you probably know that the presentments are rather short and the ADAs very well prepared. They know exactly what they're going to ask the witnesses and what exhibits they'll need and in what order. I never marked an exhibit in grand jury that wasn't used. The ADAs have got their s**t down.
There was also an extremely organized attorney at the State Attorney General's Office who handled very complex consumer fraud cases on a state-wide basis. He would often use hundreds of exhibits. One time myself and another reporter were actually paid a per diem rate to go to the Attorney General's Office and pre-mark exhibits for a half a day. But since these exhibits would be used over the course of many depositions over a span of time we just put the stickers on them and created a description sheet. We didn't actually enter then into the record until we were doing the depositions and the exhibits were used.
But as organized as that AAG was there was another who was just as disorganized. Again, hundreds of exhibits pre-marked and a description sheet made out. This one would forget to use certain exhibits, refer to and enter things out of order, leading to a very confused record. An exhibit index looks pretty crappy when you have Exhibit 1 and then its description, and then the next exhibit listed is number 13. It leads a reader to wonder what the heck happened to Exhibits 2 through 12. Those exhibits ended up in another deposition.
So what to do with exhibits and when to mark them? In a situation when there's a large amount of exhibits and I know the attorney well and am confident he's going to use the exhibits in the order we marked them I would put the stickers on them and make out a description sheet. I would only write them into the record once we are on the record and the attorney actually presents them to the witness.
If there's a large amount of exhibits and I'm unsure if the exhibits will be used in their numerical order I would not pre-mark them. I would ask the lawyer for an estimate of how many exhibits he/she will want marked, and then I would make out the exhibit stickers in advance, but I would not put them on the documents.
In a situation where there's only a few exhibits, I will not pre-mark them. We do everything as we go along, on the record. The little time you save is not worth the potential confusion and hassle.
As I've been writing this blog and I thought about the very organized AAG who used all his exhibits (he's head of the State Liquor Authority now, by the way) I was reminded of one of the funniest exhibits I ever marked; it was on one of his cases. He was investigating an investment scam where a woman convinced people to invest in, or all things, a double-headed bingo dabber. Several examples of a "double-headed bingo dabber" were marked ,and quite frankly, they looked like dildos. It was so hilarious that every time we did a deposition in this case the AAG would take out the assortment of bingo dabbers and place them right in the middle of the table. They would just be there the entire time, whether we needed those exhibits or not. He did it just for laughs. That's one lawyer and his approach to exhibits that I really miss.
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