What is a Summary Exhibit?
We’ve written before about the value of demonstratives and how you should at least try to have them sent into the jury room for deliberations. But while a worthwhile endeavor, you can never count on a demonstrative making its way to the jury. In some cases, and with some judges, the only documents allowed into the jury room are going to be admitted evidence – typically copies of original documents that have been authenticated by witnesses.
This can be a problem. There are cases that are never going to make any sense to the jury if you’re forced to rely exclusively upon original documents. Consider a fraud case involving improper medical billing – there is simply no way that a jury is going to be able to parse thousands of pages of arcane medical codes to determine whether hundreds of single procedures were fraudulently recharacterized as multiple procedures (they call this “unbundling”). Or consider a complex construction case – no jury is to sift through hundreds of pdf scans of handwritten change orders to determine which of the parties was the cause of a delay.
If you’re trying a case that turns on complex written evidence you’ve got a few options. You could take a high-level approach, and just tell a convincing story with witness testimony, highlighted in a few places by just a handful of the exhibits. In doing that, you aren’t necessarily trying to convince the jury with the content of the exhibits – the exhibits are too limited and arcane for that. Instead, you’re using the exhibits as a secondary indicium of credibility. You’re representing, “we’re on the right side of this case and the documents prove it” and essentially daring the other party to try to prove you wrong.
That can work, but it’s no sure thing. The story told by the witnesses might not be convincing on its own. Or worse, the other side might cherry-pick some documents that it likes, seeking to muddy the waters on which party seems more confident that the documents help their cause.
So, if the case turns on complex documents and you’ve got to fight it in a detailed fashion, what can you do? One solution, at least in federal court, is to prepare a prosecutor’s best friend, a summary exhibit pursuant to Fed. R. Evid. 1006. That rule currently states:
The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.
In short, this rule allows you to distill the factual content of many pieces of evidence into a user-friendly exhibit that you fashion for yourself. For example, you could take those thousands of pages of fraudulent medical bills and turn them into a chart totaling how many improper codes were submitted for each procedure. Or you could turn those hundreds of handwritten change orders into a timeline showing when changes were requested and when various portions of the project were complete. By preparing a summary exhibit, you can strip away all of the irrelevant and difficult to parse portions of complete records and reduce their content down to something a jury can easily understand.
Summary exhibits often look like demonstratives, and some appellate judges have made a real mess of the difference. This should hopefully be cleared up by proposed rule change submitted to Congress in April of this year and likely to take effect in 2025. But whether the changes are approved or not, you should keep several key things in mind.
First, in most circuits, a summary exhibit is evidence. It can be taken into the jury room without any kind of special permission and can be relied upon by the jury to reach a verdict in the same fashion as any other piece of evidence. In contrast, demonstratives are generally not permitted in the jury room. Even when they are, they often come with various warnings and provisos to discourage the jury from believing too strongly in them. In most federal courts, summary exhibits do not.
The evidentiary value of summary exhibits is fairly straightforward from the text of the rule and is the law in the First, Fourth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits. [1] However, the Second and Sixth Circuit have gone the other way, holding that a summary exhibit does not constitute evidence and requires a limiting instruction in the same manner as a demonstrative. [2] And for its part, the Eighth Circuit has held that a summary exhibit does constitute evidence, but somehow still requires a limiting instruction anyway. To eliminate this circuit split, the new proposed language of Rule 1006 explicitly states “The court may admit as evidence a summary, chart, or calculation offered to prove the content of voluminous admissible writings.” [3]
Second, in most circuits you do not have to admit the underlying evidence upon which the summary exhibit is based. It merely needs to be available, in case the other side wishes to use it for cross examination, or the court orders its production. That is not the case with demonstratives, which are often forbidden if they are not based upon admitted evidence. And this difference is very helpful! Complex commercial cases routinely involve exhibit lists with hundreds of entries, and it’s not at all unheard of to crack four digits. Authenticating and admitting (to say nothing of using) hundreds of exhibits is time consuming and difficult to work into any kind of effective presentation. Admitting a single summary exhibit is much more efficient and does not run the same risk of putting the jury to sleep.
Again, this is currently the law in First, Ninth, Tenth, and DC Circuits. The Fifth and Eighth Circuits each have intra-circuit splits on the issue, with some appellate decisions holding that that the underlying evidence must be admitted and others suggesting that it must not. [4] Nobody said it was easy to be a trial judge! To eliminate this circuit split, the new proposed language to 1006 states that the summary exhibit is admissible “whether or not” the underlying exhibits “have been introduced into evidence.” [5]
Third, no matter where you are, a summary exhibit needs to be authenticated by a witness with knowledge of how it was made. This is usually done by the person who created the exhibit, though in situations where a team was involved it can be accomplished by the person supervising or otherwise responsible for the work. [6]
But beware! A summary witness is not a mere records-custodian. If the other side has any sense at all, you can expect them to mercilessly cross examine the summary witness regarding the preparation of the exhibit. If the summary exhibit concerns a key issue in the case, the other side has every incentive to attack it by questioning the manner in which it was prepared, the degree to which it accurately represents the underlying documents, or the credibility of the witness that you put up to authenticate it. If the other side can convince the jury that the summary (or its creator) isn’t trustworthy, they’ve defeated all of the work that you put into fashioning it. So, you need to be extremely careful about whom you select to authenticate the summary exhibit. Your summary witness needs to shrug off the toughest punches opposing counsel can deliver and still come across like an honest person.
Fourth, a summary exhibit is uniquely suited for a pretrial motion in limine seeking to have it preadmitted into evidence. You may want to refer to the summary exhibit in opening, which is far easier if it’s already in evidence. And there’s a huge presentation difference between offering a clean summary exhibit and offering a hundred scattered exhibits. The last thing that you want, days into trial, is any ambiguity about which of those paths you’re pursuing.
But beyond simply eliminating uncertainty, a pretrial motion in limine can also make your summary exhibit stronger. To the extent that the other side opposes your motion in limine, you may bait them into marshalling their best attacks on the summary exhibit into their papers. This gives you the opportunity to prepare your summary witness for those attacks or even alter the summary exhibit to eliminate them.
Finally, the whole point of a summary exhibit is to fashion something that is easier for the jury to rely on than the underlying evidence. So, make it look good! As a trial lawyer, you are often at the mercy of the bizarre formatting, blurry scans, or cryptic language of the evidence in the case. If you have the opportunity to actually make an exhibit that the jury will see, you have no excuse not to make it look as clear, attractive, and persuasive as humanly possible. If your summary exhibit looks like an excel chart or something dropped into a legal brief, you have not done your job. The content has to accurately reflect the underlying documents, but the form of the document should encourage the jury to look at it. Newspapers, magazines, and other media websites summarize information for lay readers all the time. Your aim is to look like that, not like something filed on ECF.
Done properly, a summary exhibit can be the difference between an efficient, effective trial of complex facts and a long confusing slog through business records. You know which one you want – the only trick lies in ensuring that your exhibit and your witness are up to the challenge.
[1] See Daniel J. Capra & Jessica Berch, Evidence Circuit Splits, and What to Do About Them, 56 U.C. Davis L. Rev. 127, 183 (2022) (“Most circuits, including the First, Fourth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits, have recognized that Rule 1006 summaries are substantive evidence, and so do not require a limiting instruction, because they substitute for the voluminous documents themselves (which would have been admitted in evidence but for the fact they are too unwieldy to review)”).
[2] United States v. Bailey, 973 F.3d 548, 567 (6th Cir. 2020) (“The summary should be accompanied by a limiting instruction which informs the jury of the summary's purpose and that it does not constitute evidence.”); United States v. Ho, 984 F.3d 191, 210 (2d Cir. 2020) (stating that a judge must instruct the jury “that it is not to consider the charts as evidence.”).
[3] https://www.supremecourt.gov/orders/courtorders/frev24_9o6b.pdf
[4] Daniel J. Capra & Jessica Berch, Evidence Circuit Splits, and What to Do About Them, 56 U.C. Davis L. Rev. 127, 187 (2022) (“The Fifth and Eighth Circuits have conflicting intra-circuit caselaw regarding whether the underlying materials must be, or must not be, admitted. Both circuits have some cases that require the admission of the underlying materials. …But both circuits also have some cases that preclude admission of the voluminous records.”).
[5] https://www.supremecourt.gov/orders/courtorders/frev24_9o6b.pdf
[6] United States v. Behrens, 689 F.2d 154, 161 (10th Cir. 1982) (“A proper foundation for such a summary can be laid through the testimony of the witness who supervised preparation of the exhibit.”).
