General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 2
OBJECTIONS AND OFFERS TELL IT AGAIN, SAM
BY EDWARD D. OHLBAUM
Objections and offers of proof that are timely made, factually grounded, legally based, specifically stated, intelligibly presented, and persistently argued are the hallmarks of effective and persuasive advocacy. A trial lawyer attempts to accomplish four tasks by objecting: preclude harmful information or conduct from prejudicing the factfinder; preserve error in the record for review; give the judge an opportunity to dispel the prejudice; and ensure that the same conduct does not recur. Your objection strategy and technique should be tailored to the particular case, the specific item of evidence, and what you are trying to accomplish.
The procedure for admitting and excluding evidence is set forth in Federal Rule of Evidence 103. The rule obliges the lawyer to initiate the enforcement process by objecting "timely" or when error first becomes apparent. Where error is not called to the court's attention, any right to relief is waived. Although a court may consider "plain" evidentiary errors on its own initiative, reversal for plain error occurs in civil cases only where the error is so serious and flagrant that it goes to the very integrity of the trial.
Disputes about the admissibility of evidence need not await trial. A motion in limine asks the court to rule on the admissibility of evidence before it is presented. The motion may be raised pre-trial, pre-witness, pre-speech, or during an examination. It can address any type of evidence or presentation. Although most motions in limine are used to limit the other side from presenting evidence or argument on a particular issue during the trial, they can also be used affirmatively. For example, a motion in limine might seek permission to display evidence during an opening; or it might ask the court to "pre-screen" evidence when the prospects for admissibility are questionable and trial strategy depends on knowing whether it will be allowed.
Whether a motion in limine adequately preserves error for appeal or whether the trial lawyer must again object at trial when the evidence is offered is an open question. Therefore, counsel should assume that the court's ruling in limine is advisory and renew the objection at trial unless instructed to the contrary.
The motion in limine has several advantages. First, an advance ruling assists in developing trial strategy, which is significantly affected by the admissibility of evidence. Advance rulings provide pretrial clarity and ensure that you neither make promises in your opening that the court will prevent you from keeping nor taint the jury with inadmissible and unfairly prejudicial information. A motion in limine focuses the judge's attention on key evidentiary issues at the beginning of the trial and provides the judge with both an early warning system and an analytical framework for evidentiary issues that will arise during the trial. An advance ruling also cuts down on the need for continuing objections and reduces the necessity for cautionary instructions.
Despite their value, there are sometimes good reasons to skip motions in limine. First, there is the surprise factor. Deferring evidentiary disputes until trial may catch your opponent off-guard without a backup plan. Pretrial motions in limine may educate an opponent about foundations that must be laid or conditions that must be met. Even if successful, they may result in a wiser adversary asking the judge to reconsider the ruling during trial. Moreover, your opponent may not have carefully considered the possibility that evidence may be admitted for a limited purpose, which will then affect the manner in which the issue may be argued.
Objections and offers of proof are two sides of the same coin. Just as an objection preserves errors in admitting evidence for review, an offer of proof preserves errors in excluding evidence. An offer of proof is the lawyer's way of telling the court about the nature and often the details of the evidence to which an opposing party has objected. It is an attempt to persuade the court to admit the evidence or to change the court's mind if it has already ruled. It enables the opponent to make an intelligent decision whether to insist on the objection, apprises the judge of what is at stake in a ruling, and provides a record sufficient for appellate review.
The court may permit cross-examination of the witness on the offer of proof or may give the objector the opportunity to make an offer of contradictory evidence. Both objecting and proffering invite the advocate to discuss the purpose or relevance of the evidence in question. To persuade the judge to exclude or include evidence, the lawyer must summarize the projected proof, its evidentiary basis or lack thereof, and its projected impact on the case. Objections and offers of proof summon the lawyer to present the case theory as it relates to the evidence that is subject to scrutiny.
The technique for persuasive objections and offers of proof has seven steps. First, in ordinary language and citing the rule or statute where appropriate, counsel should state the objection and its legal basis or state why the other side's objection is incorrect and give the grounds for admissibility. Second, counsel should summarize the disputed evidence. Third, counsel should apply the facts to the law and explain why the evidence is objectionable or admissible. Fourth, counsel should describe what other admissible or inadmissible evidence may be offered, depending on the court's ruling. Fifth, counsel should demonstrate how the evidence unfairly helps the other side or how the evidence is fair to all parties. Sixth, counsel should provide the court with copies of authority, if needed and if available. Finally, counsel should request specific relief-usually the admission or exclusion of the evidence at issue. In addition, avoid technical jargon that will distance you from the jury. Responses to hearsay objections should be phrased in the affirmative. Rather than telling the judge what the evidence is not offered to prove, explain why you want it in. Watch your adversary's performance. Consider whether you can accomplish more by objecting or by letting him play on.
That lawyers arguing over admissibility often deliver what have been branded mini-closing arguments is not only understandable, but also what the decisional law requires and the rules of advocacy encourage. Notwithstanding the absence of a specificity requirement in Rule 103(a)(2), counsel making an offer of proof is obliged to state the specific grounds for admissibility, just as Rule 103(a)(1) requires her to state the specific grounds when objecting. Appellate courts have more often admonished trial counsel for saying too little than too much. Repeatedly, counsel has been cautioned not to assume that the court is familiar with the theory and to err on the side of full rather than limited exposition. Even where the court has demonstrated reluctance to hear from counsel or has cut off counsel's remarks, trial lawyers have been found derelict for failing to make their objections clear and specific.
There are some rules that seem to apply no matter where you are or who is presiding. Do not address your opponent directly. All argument and responses should be directed to the court. Watch the judge and listen carefully. When the court invites you to object, accept the invitation. After your opponent states her position, stand to signal that you have a response, and ask to be heard. Do not thank the judge for ruling. If you thank the court for sustaining your objection, you will appear to be digging for brownie points. If you thank the court for overruling your objection, you may suggest that you are clueless. After you lose an objection, do not demonstrate how you feel about the ruling. Do not withdraw an objection after you lose it; it sends the wrong signal to the court and undermines your credibility as an advocate.
Objections must be gauged, guided, and governed by the theory of the case. Ask yourself, "Does my theory require the exclusion of this evidence?" If the evidence does not hurt, do not object. Ask yourself, "If the evidence comes in, can I handle it?" If so, do not object. Ask yourself, "If an objection is sustained, will the evidence come in elsewhere, perhaps in a more persuasive way?" If so, do not object.
Edward D. Ohlbaum is a professor of law and director of Advocacy and Clinical Legal Education at Temple Law School in Philadelphia.
For more Information About the Section of Litigation
- This article is an abridged and edited version of one that originally appeared on page 8 of Litigation magazine, Spring 1999 (25:3).
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- Books and Other Recent Publications: Employment Litigation Handbook; Environmental Litigation, 2d ed.; The Litigation Manual, 3d ed.; Pretrial; Trial; Appeals and Special Problems; The Attorney-Client Privilege and the Work-Product Doctrine, 3d ed.; Internal Corporate Investigations: Conducting Them, Protecting Them; Legal Tender: A Lawyer's Guide to Handling Professional Dilemmas; McElhaney's Litigation; McElhaney's Trial Notebook, 3d ed.; Model Witness Examinations; The Woman Advocate; Persuasion: The Litigator's Art; Effective Depositions; Examining Witnesses; Expert Witnesses; Model Jury Instructions: Business Torts Litigation, 3d ed.; Model Jury Instructions: Securities Litigation; Model Jury Instructions: Employment Litigation; Civil Rico: A Definitive Guide, 2d ed.