There will be circumstances in which our witnesses will not have strong recollection of the facts we wish them to testify to.  This will particularly be the case when you are dealing with professionals who are accustomed to drafting reports on a regular basis.  This is customary for doctors in particular who see so many clients that it becomes difficult for them to remember one client from another without reference to a report prepared for the client.  As trial counsel you are permitted to use this type of documentation of your witness does cannot recall the facts without reference to such report.  You can thus hand the report to the witness so that your witness can review the report for the purpose of refreshing his or her recollection.  If you do this know that the adverse party then becomes entitled to review and cross examine your witness with that same piece of evidence.  Understand that the rule allowing you to refresh recollection in no way makes this refreshing document admissible as evidence.  You will need a hearsay exception if you wish to introduce the document itself into evidence. 

     Remember that in trial evidence can be presented not only by way of testimony but also by way of demonstrative evidence.  This is a highly effective means of communicating with jurors so as to maintain their attention over a long trial.  Before a demonstrative will be admitted into evidence it first must be marked for identification purposes.  The clerk of court conducts this marking process.  The offering party needs to authenticate this piece of tangible evidence by way of authentication.  To do this a live witness will typically be needed to testify as to the authenticity of such demonstrative.  The opposing counsel may cross examine this witness as to the authentication of such evidence.  This is the voir dire process.  The offering party must move the court for permission to enter the item into evidence.  If the court allows as much the evidence then becomes part of the record. 

     As counsel, if you anticipate an objection to evidence prior to trial you should consider filing a motion in limine.  In this way you can stream line all the issues before trial saving yourself the burden of arguing admissibility of certain evidence at trial.  This is doubly important as you don’t want to bog down the jury in arguments regarding admissibility of evidence.  This will only create more overall confusion and ambiguity in your trial, which is your enemy as a plaintiff’s attorney.  If you don’t file a motion in limine and you are fearful that your evidence could be prejudicial to the jurors if your evidence is not admitted, which potentially could create an appealable issue then you are well served by requesting the court to hear such arguments outside the presence of the jurors. 

     Depositions are highly effective tools for counsel.  A deposition will allow you to guide your witnesses’ testimony so as to align it with your theory of the case.  Anytime that a witness contradicts his deposition statement you can thus make a formal impeachment.  This will keep your witness in line as he or she testifies.  Also keep in mind that an adverse parties’ deposition transcript may be read into evidence by the opposing party.  By the same token, you can introduce a deposition transcript of other individuals who are not the adverse party in the event that they. Are not available for trial to testify.  Thus if you are concerned that you may lose a witness prior to trial it may be best to depose them beforehand so as to capture and make a record of their testimony for trial. 

     Requests for admission are often not used as effectively as they could be.  For instance, often times counsel will submit requests for admission on dispositive issues in the case.  For one thing, it is highly unlikely that opposing counsel will allow concession to any dispositive issue of dispute by way of answer to a request for admission.  Moreover, this is not the purpose of such requests.  Requests for admission can be particularly useful for the purpose of authenticating documents or other tangible evidence prior to trial. 

     If you wish to have your jurors go to the place where the incident occurred then you should file a motion prior to trial requesting as much.  In your motion indicate the reason why the viewing is essential to the case, why other evidence will not suffice for the view, and why the property or site is essentially unchanged since the time of the incident giving rise to the action.  The trial court has discretion as to whether it should allow the jury to view the location. 

     Be advised that as trial counsel you need to put your objections on the record immediately following any objectionable questioning of the witness by opposing counsel.  You should also try to make your objections specific when possible.  This is so that your objection will be preserved for appeal.  If opposing counsel objects to your questioning as counsel then you should consider tendering an “offer of proof”.   You should do this in the case that the record does not indicate what evidence would otherwise have been introduced.  If you are in a jury trial than this offer of proof should be made outside the presence of the jury so as not to taint their views.  This offer of proof is simply a verbal representation by counsel as to what the substance of the form and extent of the evidence to be procured would otherwise be.  In this way if the objection is overturned the form and extent of the evidence that would otherwise have been introduced is apparent from the record.  You should also indicate the legal justification for admission of the evidence on the record.