November 27, 2019 Practice Points

Planning for Objections

Do not wait until an objection is made to consider which subsection of which rule permits admissibility. Plan a strategy in advance.

By Donald R. Pocock

Evaluation of a case for trial or for a dispositive hearing must include an evaluation of the potential admissibility of all evidence upon which you need to rely. A persuasive theory of the case, slick-looking exhibits, and a thoroughly researched brief will go a long way to making a strong presentation to a trial judge, but like any recipe, it’s what you actually put in that really counts. The rules of evidence can sometimes feel like a series of roadblocks that make the trial attorney’s life more difficult. As you develop skill and familiarity with the rules, however, they are really a tool that aids in the organized, reliable, and consistent presentation of proof to any fact finder—judge or jury. The rules force an advocate to evaluate the strengths, weaknesses, and pressure points of their case. They require precision of thought. When used effectively, they help advocates shape the presentation, chronology, and vocabulary in the presentation of proof.

A common tendency when faced with an objection is to emphasize the importance of a piece of information. Admissibility, unfortunately, is an analysis that goes beyond the mere importance of a piece of evidence in the mind of an attorney. Evidence must meet both the standards for relevance and hearsay to be admissible.

The test for relevancy under the Federal Rules is whether the evidence has “any tendency” to make a fact that is “of consequence” more or less probable than it would be without the evidence. Fed. R. Evid. 401. The “any tendency” language in Rule 401 provides a wide latitude of potentially admissible evidence while the “of consequence” acts to narrow the scope of the rule. Noticeably absent from this definition of relevancy, however, is any description of the form of evidence, because evidence can take lots of forms. A murder weapon is evidence just as much as an eyewitness’s statement of what they saw.

The hearsay rule is the prohibition of a specific form of evidence, but a prohibition that comes with lots of exceptions. Distilled to its essence, hearsay is (1) an out-of-court statement, (2) offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c). A common misconception among the bar (and some members of the bench) is that a witness while testifying on the stand can testify about any statement they made since they are subject to cross-examination. This is not consistent with the rule. If the statement is one that was made out of court and is offered to prove the truth of the matter asserted, it is hearsay and must be excluded unless it meets an exception.

Critical for this stage of analysis, however, is that no amount of relevance will make a hearsay statement admissible. Likewise, no hearsay exception will make evidence relevant. Hearsay and relevance are independent grounds for admissibility. If, during the presentation of testimony, an objection is made on the grounds of hearsay, explaining how important it is to your case does not meet the objection or provide an exception to the hearsay rule. Likewise, demonstrating that an out-of-court statement that is offered for the truth meets an exception to the hearsay rule will not make it relevant.

Ten advocates can try the same case ten times and come out with different closing arguments. This is true, because the art of trying a case is not an exact science. Much of the presentation skills of effective trial attorneys come from their own personalities and ability to strike a chord with jurors or the court. Also, at work, however, are the rules of evidence themselves. How an advocate approaches a particular piece of evidence—whether it be a document, a statement, or an opinion—can impact what is ultimately admitted and what is excluded. If your case relies upon a key piece of evidence that is excluded, it can be devastating. All good trial attorneys know the importance of having a plan. Do not wait until an objection is made to consider which subsection of which rule permits admissibility. Plan a strategy in advance. Use the strategy to shape your witness examination. Lay the foundation in advance before an objection can even be asserted. Then at the critical moment, use your preparation and your plan to demonstrate admissibility. This is the goal. If your plan is sound and your understanding of the rules is thorough, you will be able to make the proof you need to support your case.

Donald R. Pocock is a partner at Nelson Mullins Riley & Scarborough LLP in Winston-Salem, North Carolina.

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