Should you try a case in the Southern District of Florida anytime soon, you will undoubtedly focus on your opening statement, direct and cross examinations, and closing argument. These things will help you win your case, but you’ll also want to keep your judge and law clerks happy by being familiar with the amendments to the local rules addressing handling of exhibits.
You’ll find your roadmap to handling exhibits in recently amended local Rule 5.3. For starters, the rule provides that a copy of all exhibits should be provided to the clerk of court, so be sure to have an extra copy of your exhibits at trial. One of the judicial staff members, such as a law clerk, will likely be in charge of collecting copies of exhibits as they are introduced and providing them to the clerk of court.
As to certain physical exhibits, the rule says “narcotics, cash, counterfeit notes, weapons, precious stones, or other [physical] items, which, … require special handling” are to be introduced with a photograph of the item and directs the lawyer to keep the original. Be mindful of the length of time that the original exhibits should be retained as indicated in the rule.
The rule leaves discretion for the court on the handling of physical exhibits that do not require special handling. Many judges will allow you to introduce the physical item but direct you take the item with you at the conclusion of trial. In that case, you’ll want to have a photograph of the item, which you can leave with the law clerk or judicial staff member if requested. You may also be directed to sign a form stating that you took the original with you.
Be aware of how the court expects you to handle the timing of providing exhibits to the law clerk or other judicial staff member. If you know the exhibits are limited in number, the court may expect you to provide each exhibit to the law clerk or judicial staff member at the time it is introduced. But if you are introducing copious numbers of exhibits, the court may direct you to provide copies of all your exhibits after your case is presented. Be flexible and feel free to ask the court for guidance.
During trial, you, or someone else on your staff should keep a running list of all exhibits that are introduced by both you and your opponent. If an exhibit was offered but not admitted, note the reason it was not admitted. After the trial is concluded, it is a good idea to reconcile your list of admitted exhibits with the list kept by your opponent and the court. This will shortcut any disputes over what was admitted and what wasn’t.
Once you’re back at your office after trial, you’ll need to comply with local Rule 5.3(b)(2). This rule directs parties to file an electronic version of each documentary exhibit that was introduced at trial and a photograph of each physical exhibit. Be sure you’ve made appropriate redactions of all confidential information before filing these documents in accordance with the rule.
Local Rule 5.3(b)(3) also provides exemptions to the electronic filing requirement for certain types of exhibits, including sealed and ex parte exhibits in criminal cases, contraband images, audio recordings, and video recordings, and exhibits containing voluminous amounts of confidential information that is subject to privacy protection. These items should be delivered directly to the clerk of court or conventionally filed in the case of sealed and ex parte exhibits in criminal cases. Once the exhibits are electronically filed, or delivered to the clerk of court in the case of exempted exhibits, you’ll need to electronically file a certificate of compliance with the rule pursuant to local Rule 5.3(4).
Finally, if there are original exhibits that were left with the court or delivered to the clerk of court, local Rule 5.3(c) directs the parties to retrieve those exhibits. The rule further provides time periods for how long these original exhibits must be retained once retrieved, which varies depending on the type of case.
Here’s a summary of helpful tips:
- At trial, have an extra set of paper copies of all exhibits to be provided to the court, which should include a set of photographs of all physical exhibits.
- Feel free to ask your judge whether he prefers all exhibits to be provided to the clerk as they are admitted or at the conclusion of your case or trial.
- Keep a running list of all exhibits offered at trial and note the reason any exhibits were not admitted. Attempt to reconcile your list of admitted exhibits with the opposing party and the court at the conclusion of trial.
- After trial, file an electronic copy of all exhibits that were introduced and include pictures of physical exhibits.
- When electronically filing your exhibits after trial, be sure to comply with the rules pertaining to confidentiality and the exemptions for electronic filing certain types of exhibits.
- Once your exhibits are filed, file a certificate of compliance stating that you filed all exhibits as required.
- Make arrangements to retrieve original exhibits being held by the clerk of court and be sure to retain them for the period of time required by local Rule 5.3(c).
By following these tips and spending a few minutes becoming familiar with local Rule 5.3 before trial or an evidentiary hearing, you’ll be in a good position to keep things running smoothly with your exhibits during and after trial.
Nathaniel Edenfield is an associate at Richman Greer in Miami. He focuses his practice on complex commercial litigation.