10.4 Witnesses, Experts, Exhibits & Trial Presentations

Section 10.3 walked the trial from pre-trial motions to verdict. This section is the paralegal's actual trial workload: getting the right people in the courtroom and the right paper in front of the jury. The blueprint lists Witnesses/experts and Exhibits/presentations as separate Trial Practice line items, and PCCE questions on them are usually rule-specific.

Lay witnesses

Competency. FRE 601: every person is competent to be a witness unless the rules provide otherwise; in a civil case on a state-law claim, state competency law applies. FRE 602 adds the real filter — a witness may testify to a matter only if evidence supports a finding of personal knowledge.

Lay opinion — FRE 701. A non-expert may give opinion testimony only if it is (a) rationally based on the witness's perception, (b) helpful to clearly understanding the testimony or determining a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. That is why "the car was going about fifty" or "he smelled of alcohol" is fine from a bystander, while "the fracture was caused by the second impact" is not.

Expert witnesses

FRE 702, as amended effective December 1, 2023, is the version to know. A qualified expert may testify in the form of an opinion if the proponent demonstrates to the court that it is more likely than not that:

• (a) the specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue;
• (b) the testimony is based on sufficient facts or data;
• (c) the testimony is the product of reliable principles and methods; and
• (d) the expert's opinion reflects a reliable application of those principles and methods to the facts of the case.

The 2023 amendment made two things explicit: the preponderance burden sits on the proponent, and admissibility is decided by the judge rather than left to the jury as a weight question. The Daubert reliability factors — testability, peer review and publication, known or potential error rate, standards controlling the technique's operation, and general acceptance — remain non-exclusive guides, and Kumho Tire extended that gatekeeping to technical and other specialized expertise, not just science.

FRE 703 lets an expert rely on facts or data that would themselves be inadmissible, if experts in the field reasonably rely on that kind of material. But if the underlying material is inadmissible, the proponent may disclose it to the jury only if its probative value in helping the jury evaluate the opinion substantially outweighs its prejudicial effect — a reversed balancing test worth memorizing. FRE 705 lets the expert state the opinion without first testifying to the underlying facts, subject to disclosure on cross-examination.

Expert disclosure under FRCP 26(a)(2)

Protection. FRCP 26(b)(4)(B) protects draft reports as work product, and 26(b)(4)(C) protects most communications between the attorney and a testifying expert, with three exceptions: compensation, facts or data the attorney provided that the expert considered, and assumptions the attorney provided that the expert relied on. A consulting expert who is not expected to testify is discoverable under 26(b)(4)(D) only on a showing of exceptional circumstances (or under Rule 35(b)).

This is a live paralegal trap. Emailing a testifying expert a draft opinion is protected; emailing that expert a set of assumed facts you want relied on is discoverable.

Subpoenas — FRCP 45

A subpoena ad testificandum commands attendance. A subpoena duces tecum commands production of documents or things. Rule 45 points a paralegal must know:

• The subpoena issues from the court where the action is pending.
• Geographic limit: a subpoena may command attendance at a trial, hearing, or deposition only within 100 miles of where the person resides, is employed, or regularly transacts business in person — or anywhere within the state where that person resides, is employed, or regularly transacts business in person if the person is a party or a party's officer, or is commanded to attend a trial and would not incur substantial expense.
• Serving a subpoena on a non-party requires tendering the fees for one day's attendance and mileage.
• Before serving a documents subpoena, notice must go to the other parties.
• The issuing attorney must take reasonable steps to avoid imposing undue burden or expense; sanctions are available.

Preparation versus coaching

Witness preparation is proper and expected: review prior statements and deposition testimony, explain the process and the courtroom, refresh recollection with documents, practice answering only the question asked, and discuss demeanor and pacing. Coaching — suggesting facts, scripting answers, or encouraging a witness to shade testimony — is unethical and, at its extreme, subornation of perjury.

For a paralegal the boundary is sharper still. You may schedule, organize exhibits, review documents with the witness at the attorney's direction, and take notes. You may not tell a witness what the answer should be, and you may not conduct substantive preparation on your own authority. And note FRE 615: on a party's request the court must order witnesses excluded so they cannot hear other testimony, and the court may extend the order to bar disclosure of trial testimony to excluded witnesses. Do not let a sequestered witness read the transcript in the hallway.

Exhibits

Marking and listing. Exhibits are pre-marked under the pretrial order — commonly numbers for plaintiff and letters for defendant, though local practice varies. The exhibit list tracks number, description, Bates range, sponsoring witness, and columns for offered, objected, and admitted. The paralegal maintains that list in real time; it is the trial team's only reliable record of what is actually in evidence.

Authentication — FRE 901. The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims. Rule 901(b) lists illustrative methods: testimony of a witness with knowledge, non-expert opinion on handwriting, comparison by an expert or the trier of fact, distinctive characteristics, voice identification, and evidence about a process or system.

Self-authentication — FRE 902. No extrinsic evidence needed: domestic public documents under seal, certified copies of public records, official publications, newspapers and periodicals, trade inscriptions, acknowledged documents, and — critical for e-discovery — 902(11) certified domestic business records, 902(13) certified records generated by an electronic process or system, and 902(14) certified data copied from an electronic device, storage medium, or file. Those last two let a certification replace live foundation testimony if the proponent gives reasonable written notice and makes the record available.

Best evidence — FRE 1002: an original writing, recording, or photograph is required to prove its content, subject to the exceptions; FRE 1003 admits a duplicate to the same extent as an original unless a genuine question is raised about authenticity or fairness.

Substantive exhibits versus demonstratives. A contract, a photograph of the intersection, and a medical record are substantive — offered as evidence and sent to the jury room if admitted. A timeline, an enlargement, an anatomical model, or an animation is usually demonstrative — an aid to understanding testimony. Demonstratives are generally not admitted into evidence and often do not go back with the jury, so mark them separately and keep them off the evidence list.

Presentation logistics. Confirm what the courtroom actually has: document camera, monitors, HDMI versus adapters, whether counsel may publish electronically. Bring paper backups of every key exhibit. Prepare the trial notebook — pleadings, witness outlines, exhibit list, motions in limine rulings, jury instructions — and a bench copy and opposing-counsel copy of the exhibit binders.

Worked path

Two weeks out, the paralegal finalizes the exhibit list, orders certified copies of the hospital records with a 902(11) certification and serves the written notice, and confirms the treating physician was disclosed under 26(a)(2)(C) rather than as a retained expert. She issues Rule 45 subpoenas to two non-party witnesses with witness and mileage fees tendered, checking that both live within 100 miles of the courthouse. She flags for the attorney that opposing counsel's email to their engineer listed assumed load figures — likely discoverable under 26(b)(4)(C) even though the draft report is not. On the morning of trial she marks the accident-reconstruction animation as a demonstrative, not an exhibit, and keeps a paper set of every admitted document at counsel table.