Washington Chapter Newsletter
February 2026

PRESIDENT'S MESSAGE
 

It has been an eventful past month, culminating in our annual voir dire competition this week. Look for a full writeup about that competition next month.

In January, a strong contingent from the Washington chapter traveled to Newport Beach (CA) to attend another successful ABOTA National Leadership Conference. While there, we had a great summit with representatives of the Oregon chapter. Our two chapters will continue partnering on programming in the future.

I am very excited to announce that our chapter will again partner with the M3 FBA to host a fireside chat with Georgetown law professor (and nationally recognized legal commentator) Stephen Vladeck on the evening of October 29, 2026, in Seattle. Judge Lasnik will again serve as moderator, so if you were able to attend last fall’s fireside chat with Linda Greenhouse, you know this will be a special event. Given the proximity to the midterm elections, there is sure to be plenty legal news for Professor Vladeck to discuss. This is a real coup for our chapter, so save the date, and look for more information soon.

Finally, a personal note: On MLK Day, I had the privilege to attend a wonderful community performance of An American Pageant, an original musical revue tracing the history of the American civil rights movement, from our nation’s founding through today. The show was written and directed by retired Seattle attorney Michael King, and the cast featured several other prominent members of our state’s bar. It was an inspirational evening.


CIVIL TRIAL TIP

Hon. Shelly K. Moss
Pierce County Superior Court

Evidence Handling Refresher*

*Judge Shelly K. Moss has served on the Pierce County Superior Court Bench since 2017.  She is currently a member of Pierce County’s Local Rules Committee and SCJA’s Civil Law & Rules Committee.  In the time she has served as a judge she has presided over nearly 800 trials and is one of the few Pierce County judges who conducted jury trials prior to COVID-19.  Before her election to the bench she was a civil trial lawyer for 19 years.

For those of you who are in trial on a regular basis and who don’t need a refresher on how to handle evidence, feel free to move to the next article.  For those of you who do not find themselves in trial frequently, or who first learned how to conduct trials on Zoom or some other electronic platform, this article is for you.

Since Pierce County resumed in-person trials after COVID-19 restrictions were lifted, I have seen attorneys object to the marking of exhibits, publish exhibits without moving to admit them, and ask witnesses to read from exhibits that have not been admitted.  None of that is appropriate, and here’s why:

  1. Marking:  Marking means that the clerk/bailiff/judicial assistant is assigning a number to an exhibit which will be reflected on the exhibit record created during trial.  The lawyers, parties, and witnesses should refer to the exhibit by its number during testimony and argument to ensure that the appellate record is clear.  Just because an exhibit is marked does not mean it is or will be admitted (there needs to be a separate motion for that—see below).  Just because an exhibit is marked does not mean it can be published to the jury (it hasn’t been admitted yet and publishing requires a separate request once admission has been granted—see below).

  2. Admitting:  After a proper foundation has been laid, a party can move for admission of a marked exhibit into evidence.  If the motion is granted, the court and/or trier of fact can consider the exhibit as substantive evidence, or, where appropriate, illustrative evidence.  Substantive evidence that has been admitted will usually go back to the jury room during deliberations; illustrative evidence, even if admitted, will often not go back to the jury room.

  3. Publishing:  If the motion to admit is granted, a party can request permission to publish the marked, admitted exhibit either electronically (e.g., overhead projector or screen sharing) or manually (by holding the exhibit up and walking it in front of the jurors).  This is true for both substantive and illustrative exhibits.

In addition to seeing confusion about the above concepts, I also see quite a bit of confusion regarding use of exhibits to refresh recollection or to impeach.  Separate procedures are required for each one and exhibits are handled differently in each process.

Using an exhibit to refresh recollection: A witness’ recollection can be refreshed if the witness can’t recall something, an exhibit will refresh the witness’ recollection, and opposing counsel has had an opportunity to examine the exhibit first (if the court determines it is necessary in the interests of justice).  The exhibit used to do the refreshing should be marked, but it does not necessarily have to be admitted or even admissible (e.g., a police report).  For that reason, once a witness’ recollection is refreshed, it is improper to allow the witness to simply read from the exhibit.  If a witness cannot testify without reading extensively, there may need to be a further showing that the exhibit meets a hearsay exception or is independently admissible.

Using an exhibit to impeach:  Any exhibit that is used to contradict a witness’ testimony for purposes of attacking the witness’ credibility must be marked before the impeachment process begins so that it can be referred to properly on the record.  During the impeachment process the witness is typically asked to read from an exhibit which highlights a change in the witness’ testimony or some other reason to question credibility.  Consequently, the exhibit used to contradict the witness’ testimony on a material matter must be admissible, since the jury will hear its contents.  In contrast, an exhibit used to contradict a witness’ testimony on a collateral matter is not admissible because if a matter is collateral, the exhibit is, by definition, not relevant.  For this reason, the trial judge has discretion to deny a request to impeach on a collateral matter.

I’ll close with some practical tips on evidence handling: 

  • If you are unsure of how and when your trial judge would like exhibits to be presented, double check the judge’s pre-trial order or contact the clerk/bailiff/judicial assistant to get that information.  Do what judicial staff tells you.  There is nothing that stresses judicial staff more than receiving hundreds of exhibits (even if organized) on the morning of trial and having to mark them while everyone waits.  The more time you can give judicial staff to complete the marking process prior to trial, the better. 
  • More often than not, bundling similar exhibits (e.g., a group of photos of the same object) into packets causes more, not less, confusion and hassle.  Unless the trial judge tells you otherwise, list exhibits separately in the Joint Statement of Evidence so that each one will be marked with a different number (exhibits 1-20 rather than exhibits 1A, 1B, 1C…etc.). 

  • DO NOT write or alter in any way an exhibit that has been marked and admitted.  If you want a witness to draw or write on an exhibit, be ready with a duplicate of the exhibit which can be marked with a different number.  Example:  You want to have a witness mark where her car was stopped in a photograph of an accident scene.  The original photograph is marked Exhibit 3 and has already been admitted into evidence.  DO NOT have the witness write on Exhibit 3.  Instead, be prepared with a duplicate marked as Exhibit 3A and have the witness write on that one.  Judicial staff will be eternally grateful.

  • If you have exhibits that need to be redacted, it would be easiest for marking purposes to have the redactions done in advance so that judicial staff only has to mark the exhibits once.  If the redactions are not agreed, the next best option is to be prepared with an original and a redacted copy, so that no matter what redactions are ultimately allowed, you can provide a redacted version to judicial staff for marking as quickly as possible.  If an exhibit is marked before redactions are done, the redacted version can only be substituted in if there has not yet been any witness testimony based on the exhibit.  If there has been testimony, the original exhibit must remain in the record and the redacted copy should get a separate number.  For example, if witnesses have testified about Exhibit 4 before it is redacted, then once the redacted version is ready it should be marked as Exhibit 4A

I look forward to seeing you and your exhibits in court!

BEST IN THE WEST VOIR DIRE COMPETITION - FEB 12/13

Our 3rd annual voir dire competition will take place on February 12 & 13. This year's program has expanded to include Oregon as well as a Zoom voir dire round. The in-person rounds will take place at the US District Court in Seattle. ABOTA National President Bill Shapiro will also be in attendance.

We need your help to make this program a success.

UPCOMING EVENTS

February 12
2026 Voir Dire Competition Welcome Reception
Join us in welcoming the teams, judges, and volunteers participating in our 3rd annual voir dire competition with a reception at Seattle University. There is no cost to attend. 

March 5
Threats to the Judiciary: A Judicial Perspective from Seattle to Spokane
Hear from Judge Robert Lasnik, US District Court - Western District of Washington, Judge Breean Beggs, Spokane County Superior Court, and Judge Andrea Robertson, King County Superior Court Judge about the impact of threats on the judiciary.

March 26
Everett Judicial Reception
Help us recognize the longest-serving judges in Snohomish, Skagit, Whatcom, Island, and San Juan counties. These events have been very successful in past years and we are excited to continue recognizing judges around the state. 

October 29th
Fireside Chat with Steve Vladeck
Save the date. More details available soon.

NOMINATE A NEW MEMBER

Nominees must have a minimum of 7 civil jury trials to verdict or hung jury as lead counsel, and 100 trial points. 

If you know someone who has the required trial experience and has a strong reputation for professionalism and civility, please fill out the Nomination Form and the membership committee will begin the vetting process.


2026 SPONSOR OPPORTUNITIES

We were able to accomplish a great deal last year thanks to the generous support of our sponsors. The feedback we have received regarding the judicial recognition events, voir dire competition, rapid response team, CLE programs and more have increased the visibility of ABOTA throughout the bench and bar.

We have big plans to continue and expand those efforts in 2026, but we need your support to make it all happen. Please review firm sponsor options below. Reach out to nicole@wa-abota.org with questions or to confirm your sponsorship.

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