Using and Objecting to Evidence at Trial | Cordell and Cordell

by: Cordell & Cordell

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[10.97]
today I'm going to talk a little bit about using and objecting to evidence and trial and I'm glad that I got switched a little bit when I saw my place in the schedule right before lunch I kind of envisioned myself as one of those old-timey cartoons where after a few minutes you would start envisioning me it's like a chicken drumstick or a piece of ham or something as we got closer to lunch and you would stop paying attention to the very important information that I'm going to give you and start looking at me as a meal or counting down to to lunch so maybe that will help it's not going to help me so if you hear any grumblings that's my stomach but I'm going to try to get through this and try to make it somewhat entertaining you know I know sometimes these presentations especially me I tend to drone on and on can get long so I'm going to try to interject with some jokes some humor and hopefully we can get through this together you know when I started thinking about what am I going to talk about this year this is my third year in a row and I've talked about a lot of different topics I started thinking back to some of my more recent trial experiences and if if you practice family law you know that we tend to as family law attorneys get sloppy with the rules of evidence and part of that is that's kind of the nature of the practice judges tend to let a lot of things in a lot of things slide because our standards and our issues that we're trying to prove in court are these broad definitions things like best interest of the child and so because of that judges tend to let more things in then probably they do in other areas of law and so because of that we tend to get a little bit sloppy in the way that we manage evidence the way that we think about the rules of evidence and so I wanted to give you a topic or talk a little bit about those things just as a refresher not going to be talking about anything new for most of you this is all stuff we learned probably in our first-year law school or if you're like me days before the bar exam so a lot of this stuff is not new information this is merely kind of a refresher and maybe reboot on the rules of evidence the rules of objections and so every time I think of the practice of law the first thing I think of is movies I like to watch movies embarrassingly i watch a lot of them I tend to prefer movies about attorneys especially since I got out of law school eight years ago now I spend most of my time saying that's not true that can't really happen wish my trials would go that way and so when I started thinking about evidence and objections and trial here are some of the movies I thought my cousin did how many have seen this great movie right if you haven't seen it let me set the scene for you Joe Pesci represents the Karate Kid for murder as his star witness he calls his fiancee Marissa Tomei who is either a hair stylist or a nail salon verse and I forget exactly what she does to testify as an automobile ex now we all know there's some rules when it comes to experts apparently this judge who is the Frankenstein from the Addams Family show forgot those rules so interestingly enough they do have some realistic parts of this movie the DA for dyers Marissa Torme and in the voir dire tries to stump her with a question about a motor or an engine or something like that and she retorts with they couldn't have built that they didn't even invent fuel injection until whenever and somehow that qualified her as an expert to talk about cars so then she testifies about this vehicle and how it had split rear axle and couldn't make these tire tracks that the DA was saying tied the Karate Kid to the murder and so because of that the Karate Kid gets off one piece of evidence a little bit of testimony from a hairstylist acquitted of murder doesn't happen in real life but one of my favorite examples another one this movie I'm sure most of a with a few good men especially that scene I want the truth you can't handle the truth somehow that wins that trial what I what I love about this movie and why I pull this one up is particularly in that scene if you'll remember Kevin Bacon and if you're playing seven degrees at Kevin Bacon we just got there Kevin Bacon is the government attorney during the beginning of the questioning by Tom Cruise he objects several times the judge doesn't make a ruling instead I find this interesting he looks at Jack Nicholson and says you don't have to answer that which isn't the proper ruling but Jack Nicholson says I'll answer it and goes on to admit to the Code Red again that doesn't happen in real life it's not really up to the witness whether they answer a question or not it's really it was really up to Kevin Bacon whether or not he answered the question but again just in another example of how the movies make evidence look so easy and the rules of evidence so easy and interesting sure right if they I mean let's be real and we'll talk about this in a second if they played these movies out in real life these would be the most boring movies ever because I sit through trials even trials I'm participating in sometimes I'm like this is boring so then you think about liar liar this is another crazy movie this one kind of ties to what we're talking about today and family law if you remember most of us don't they're fighting about custody in this movie they're actually fighting about a prenup and somehow Jim Carrey who can't tell a lie gets his client to admit buy a driver's license that she lied about her age and therefore didn't sign the prenup when she was 18 she was 17 and I win the case again they make evidence look so easy testimony looks so easy it's funny but it's not real life and then lastly my favorite movie of all time about an attorney guilty pleasure I meant kind of weird my wife's not a big fan of it I am movie made me go to law school I thought it was pretty easy thought I'd meet girls like that in law school but if you remember this one again evidence is so easy in the movies objections are so easy in the movies again a murder she's representing somebody accused of killing her husband because she was having an affair with the pool boy how does she win that trial gets the pool boy on the stand to admit that he's gay and I can't even remember the movie plot okay so I can't even remember the movie right but the point is it's really easy for Rhys in this movie whatever her name was I forget but the point is movies make it look really easy and especially in the practice of family law we kind of get caught up and then we think it's easy we get we kind of get lost in the fact that there is some minutiae there is some actual law out there there are some rules that tie us to evidence keeping it in and getting it up on top of that else as lawyers I think we chose this profession because we like to interrupt I know a lot of attorneys that I deal with like to interrupt they're like me they like to hear themselves talk but sometimes we forget the rules or the reasoning behind what we're doing and so that's really where I want to look at today or what I want to spend some of our time talking about today so what we're going to do over the next 60 minutes or so is run through kind of a recap or refresher if you will about some of the very basics of evidence look at that for just a few minutes then we're going to talk a little bit about some objection basics some strategies some thought processes behind objections talk for a couple minutes about some common errors that we make as attorneys and I got some of these from other judges that I practice in front of and then lastly what we're going to talk about are some of the ways in the reasoning etc protect our record and why we need to pay attention to what evidence comes in and what evidence we try to keep out and then what we're going to do to wrap up with what time we have left is I've given you in your materials a couple of practice examples I find that talking in small groups is helpful you know I don't have all the answers none of us do but if we sit down and maybe talk for just a few minutes with just a couple of people about some examples maybe we can start preparing for some of these issues that we might see in trial so let's start just for a couple of minutes about evidence like I said before family law attorneys tend to gloss over these rules and so I just want to spend a few minutes highlighting them there was a quote that I found or a line that I found that was really really resonated with me and it was having a working and instant knowledge of the rules of evidence is one of the most important skills a trial lawyer can have and without it you are significantly handicapped at the beginning of trial and isn't that true if you've ever been in trial and either have been on either side of that you know that's true you've made an objection the other side didn't know how to respond or someone objected to something you were trying to do you didn't know how to respond you instantly knew I only knew this thing I forgot this one thing so you know having a ready recollection of the rules of evidence and the rules of objection is going to benefit you in trial so real quick you know I took this picture because there's a bloody glove one thing that I say is rule number one when talking to clients about trial and about evidence is that their or no what I call Perry Mason moments if you remember that show again I'm talking a lot about TV and movie but if you remember that show every episode ends with him getting somebody to admit to a murder or some piece of evidence that the investigator walks in during trial and gives him that gets his client off or answers the question those moments don't really exist in trial so the first thing to do is tell your client this you know I could count I can stand here today and remember tons of times where I've had clients walk in and say here's this text message doesn't this mean I get sole custody here's this proof that my my wife's having an affair doesn't this mean I get the house those moments don't really exist and so tell your clients this upfront so that they don't have an expectation that when they dig through their bank statements and they find a transaction at a casino now all of a sudden their wife or their husband is a bad parent preparing the other sort of caveat as we know every rule has exceptions there are some times where you have what I would call mini Matlock moments Matlock's one of my favorite TV attorneys of all time and the reason I call mini Matlock moments as you can have those times where you get somebody to say something on the stand that they instantly regret right and it changes the impact of trial or you do have that piece of evidence that sways the judge just a little bit may not get you all the way to where you're trying to go but it can have some level of impact and I'll give you one example I don't like to tell a lot of war stories but this one I'm particularly fond of I had a dad on the witness stand and he had devised this scheme where when his child who was 13 at the time would be with mom in the car he would have the child take out his cell phone and call mom or call dad hit mute put his phone upside down and put it on his lap dad on the other end would start recording this phone call the child would then provoke mom into an argument dad would record it like I said and take it to the therapist that we were using the custody evaluator and say see here's what they're doing number one there are some potential wiretapping issues with that but for some reason opposing council this is why you should know the rules of evidence etc was letting his client testify about doing this for some reason he started to smile and chuckle and so I asked him if he thought this was funny he said yes the judge instantly stopped everything put him on supervised visitation for I think 120 days he saw this kid maybe three or four times during that - because the guy was a true jerk but the point is there are times where some piece of evidence may get you to an end result doesn't happen very often in fact in my eight years of practicing that's really the only one I can think of so it doesn't happen that often so prepare your clients in advance for that so why do we need evidence and and take into consideration evidences testimony as well as physical evidence documents pictures all that stuff why do we need it well first it's going to add credibility to what your client is saying to what your witnesses are saying things like what Scott and Jennifer we're talking about reports are going to validate maybe what an expert is saying or a bank statement is going to prove the fact that X number of dollars are in that account or X amount is owed on a mortgage and lastly it's going to eventually win your case and we all know if you practice any bit of family law the term winning your case very loosely described you don't necessarily win cases but those are the things that add to your case you have to have these things if you're going to be successful again I was preparing for this and I saw a quote that I really liked it actually happened to be in a Missouri Cle article and the quote was this about evidence about why we need evidence and why it's so important it says most judges I've been in front of are not going to be persuaded by my wit my flair for drama or my red power tie they're going to be influenced by the evidence and that's actually important if you practice in front of a jury some of those things actually matter Flair drama what you wear I remember a jury trial we had when I was practicing in Dallas we had a jury consultant tell us what to wear tell us how to act so all the way down to wearing across necklace for the the female partner that was trying the case with when you're in front of a judge those things disappear most of our family law issues are tried in front of a judge so we have to really think very critically about what type of evidence what type of testimony we're offering when we're looking at evidence and testimony the very first thing we have to ask ourself is is this information relevant this is the key question the first question the threshold question before anything comes into court is this relevant and does this does this apply to what we're here arguing over I think that this this tends to be one of those things some some attorneys kind of forget about especially given the masters that we have to serve we have to when we're thinking about evidence one is the court ultimately what's relevant to the judge the other one is the client what is relevant to the client like I was talking about earlier clients will bring you in especially in family law cases boxes of text messages emails stuff that they think is relevant to their case and you have to tell them it's not you know if you if you were to introduce the ten thousand emails that your client forward to during the life span of a divorce case the judge would look at you like you're a crazy person because it doesn't matter that they were arguing about what the child ate last night for dinner he doesn't need to see an email about that or a text message and so sometimes I think we forget is this relevant so how do we answer that relevancy question the first thing is to know the elements or know what we're trying to prove this isn't a criminal case which we all know is with elements is really easy you know if you were trying to convict someone of larceny you would know you have to prove the taking and carrying away of personal property with the intent to permanently deprive that person from that so you know I have to prove the it's a little more difficult when you get into the area of family law when you're talking about best interest broad topic so you have to start asking yourself is this relevant and the way to do that family law is to ask the question what is the goal of this information what is the goal of this piece of evidence I'm trying to admit if the answer is I don't know then maybe it's not relevant and so that's really the question we need to ask ourselves because I think we we can get caught up in admitting too much evidence from time to time that's not relevant and that box trials down and long school is done the second issue when it comes to evidence or the second question we have to ask is can we authenticate this evidence and really authentication the definition is essentially can we prove that this piece of information is what we say it is this I find interesting in that a lot of lawyers that I practice with and sometimes including myself don't know what the foundation is that I need to present to the court in order to get a piece of evidence admitted so what I'm going to suggest to you is spend some time and create something that has a list of common predicates and foundations I didn't do that for you I did that for a couple of other things that we'll talk about but especially in advance of trial is understand what's there what you're going to need to prove up in order to get that particular piece of evidence admitted and a couple of the common ones that I thought about number one are business records Missouri has a very helpful statute like Texas did unfortunately like Oklahoma where I practice now does not which allows for the business record affidavit so you don't have to get an expert on the stand to testify that this document was creating the regular course of business and the business has a history of making these records at or near the time of the activity etc etc another common one is summaries if you're practicing and family law we like to use summaries a lot too to summarize volumes of bank statements or maybe income information and then lastly the last one I kind of thought about even though it doesn't happen very often it's audio recordings you know what are the what are the steps that you have to do to prove an audio recording it's accurate machine work properly I recorded it I was a witness to this conversation I can identify the voice but knowing those things in advance having some kind of a cheat sheet for you will be really helpful down the line another issue with authentication is knowing which things authenticate themselves magazines newspapers court documents certified documents all those things bypass that requirement you don't have to worry about that but you do have to know which ones are self Affinia gating and then the third example that I've got the last example is photographs and I put this one on here because I have dealt with several attorneys who don't know the requirements to authenticate a photograph I will almost now I shouldn't say everytime but regularly when I'm admitting a photograph I will have an attorney object and say he didn't take this picture that's not a requirement to authenticate a photograph if it were you could never introduce a photograph that had yourself in the picture because you can't unless you had a self-timer I guess so you have to understand these elements before you ever get into court so the trick is treat this like a law school exam unless you're like me don't treat it like a law school exam but study in advance know these things in advance put them in your outlines know what's required it's really easy in the funny part is if you google some of this stuff all that information is right there for you there's cheat sheets there's summaries there's all kinds of outlines and things that will have this information for you so it's not difficult just make sure you've got it that's one of the things that that stumped me recently and we'll talk about a little bit was I was trying to get some text messages admitted and I had become sloppy and didn't really think about how am I going to authenticate this if there's an objection to these text messages I had already thought about okay party it's a party admission how I could get around some of the hearsay objections but I haven't thought about what if he objects to authentication what if he says there's no way we can prove that the opposing party sent this text message I was stumped because I hadn't thought about it in advance in the throes of a hearing I was already thinking about other things so study these things in advance it just takes a little bit of foresight and preparation which was my last little note here so after we get through some of these basic levels of questions to ask about our evidence let's talk maybe about kind of a more common piece of evidence these days in the last 10-15 years which are emails you know if most of my divorce case files I would say are 50% emails between the client the party me it's become our first way of communicating especially in divorce cases and custody disputes for parties can't talk to each other and so sometimes these emails become very relevant the problem is automatically they have authentication issues like I was saying with the text message how can we prove that the opposing party sent this how can we prove that somebody else didn't hack into their email and pick up their cellphone and send an email so you have to start thinking about these things in advance there's hearsay issues obviously these are out-of-court statements that are usually trying to use to prove the truth of the matter asserted and so you have to start thinking in advance how am I going to get around these hearsay issues again attorneys tend to get sloppy judges tend to get sloppy and they let all of this stuff in as admission by a party opponent even though it may not necessarily qualify so start thinking about some of these things in advance the one that I've dealt with recently is allegations of after the fact alteration and what I mean by that is you get those long chains of emails I want to me to go to a Cub Scouts I don't agree well I think he should I don't agree somewhere in there they say well I didn't actually say that I didn't type back he got in there logged in or not logged in when he went to reply he went down there this and change this wording I didn't say you blankety-blank blank or whatever and so how are you how are you going to address all of these issues in advance you have to start thinking ahead of time so what are some of those ways around these issues especially with email one way to pose the witness in advance the reason that that's helpful is with trial we tend to have to exchange evidence in advance so if they see a particularly harmful email in your exhibit list they're going to be able to prepare for what I'm going to say truthfully maybe not truthfully about that document whereas in a deposition you don't have to do those things so you can hand them an email and say talk to me about this email tell me why you sent this admit that you sent this admit that this is your email sorry jumped ahead another way to do that is to use experts this can get a little expensive but experts can come in and look at the metadata from emails and tell you if it's been alter ated they can tell you potentially what IP address it was sent from what computers it was sent from those type of things though that can get expensive and really be unnecessary probably keep getting arrow I apologize probably one of the easier ways to do this outside of a deposition is to have your client bring in the history the actual emails a lot of times nowadays clients have email on their phone like we do they can bring those first emails in they can hit print on the original email as it comes through and so they can show you a history of here's the original email I got here's the next email and they can show you that history versus bringing in that long stream of emails and that's where we start hafted having to ask is this relevant as this series of emails going to bog the court down is it really going at something important and if it is you can walk through walk through those steps and then lastly the last way around this is agreements in advance you know you can always agree with the other side these emails are going to come in or these pieces of evidence going to come in and so those are some of the ways we can get around email issues or and that a lot of stuff applies to text messaging and Facebook and those things as well so as we kind of get to the end of talking about evidence basics I've got just a few tips I'm going to run through real quick to make your presentation a little bit easier number one is used at trial notebook I started doing this probably about four or five years ago I use a notebook with for all my documents for one for me one for opposing counsel one for the court and one for the witness it makes everything nice neat succinct put together the trick is to tap it and once had a lawyer hand me a notebook no tabs just literally like five hundred pages and that was really a difficult difficult thing for everyone so so do that make sure your copies are legible these are simple tips this is like I said these are not not breaking any new ground today make sure copies are legible so that judges can read them so witnesses can read them number three I like to pre work my exhibits in my notebook and that kind of goes along with the next one which is to make a table of contents that way you don't have to run around every time you're trying to admit something and write in a number and move around and if you have a table of contents if you skip one or go out of order it's really easy for a judge to follow and I like to include a little checkbox on the side of every exhibit that says admitted or denied so that the judge can keep up with that so that you can keep up with that relatively simple and then really kind of the main point of this topic is really to anticipate objections and evidence issues don't wait till the last minute you know if you do wait till the last minute you're probably going to forget some things miss some things so study in advance so now we got a couple of evidence a little bit of an evidence refresher let's talk about objections our favorite part as being an attorney being a trial is objecting interrupting I've narrowed I've narrowed objections and lawyers into two categories there are two types of lawyers when two objections there are those who do with very well and then there is the rest of us and I'm in the other category I'm in the rest of us category you know I'm always impressed when I walk out a trial or observe a trial or a hearing and there's that attorney who knows all the rules who's making smart objections who's not just objecting to every question and having every piece of evidence you know they really impress you and I'm pretty sure that's how the judges feel about it too and so my goal has always been and is to move to that other category and so how can we do that well let's refresh kind of some of the rules about objections first there's two ways to object one is a written objection called a motion in limine that's something if you've heard that before I'm sure you have it's filed in advance of trial usually it's bigger issues exclude this this expert or exclude this entire line of testimony and they're usually arguing in advance made a ruling is made in advance of trial the other way to object or oral objections and these are what we're very familiar with in the heat of battle interrupting objection hearsay objection leading objection non-responsive those type of objections that we make in the middle of a trial when when making an objection real quick I have a pet peeve I the lawyer I used to work for a long time ago was a very adamant about standing when you object or standing when you address the court and so my rules when making an objection or stand make the objection stay standing until the court rules some judges don't require that I was in trial last month yeah March and had a judge tell me I don't need to stand and that's they felt awkward but I stayed stayed sitting to make all my objections but those are kind of my rules not anything particular but I think it shows a little bit of respect for the court sorry I jumped that slide there are two kinds of oral objections in court there's the objection to the form of the question or the objection to the substance of the evidence being offered and that's testimony or physical evidence when you're talking about form of the question you're really only addressing the way that the attorney has phrased a particular question I can tell you that very rarely if ever is a decision reversed for failure to sustain an objection to the form of the question but we still do it and they're still helpful and we'll talk about that in just a second but the bigger category is the second when you're objecting to evidence or testimony because that involves us knowing the entire area of evidence law so why do we sometimes object to the form of the question well we tend to do it because we don't like the answer that's coming or we don't we want to break up maybe the rhythm and so they still are important even though they're probably not going to protect your record for an appeal they still do serve a pretty important purpose thinking back to any experience you've had in trial you can probably identify the three that I've listed as the most common objections in trial number one hearsay objection hearsay number two is leading and number three relevance those are the three that I think I hear most often and I think it's because these are easy ones easy to identify isn't it true that objection leading you know you can use relevance to just about anything and then he or say obviously sticks out because the answer usually starts with she told me or he told me and so those things are really easy so those are the ones we hear here the most but I want to challenge you that there are other objection and there may be better objections sometimes even when these are applicable so let's let's talk for a second about other common objections or what I consider more more common that's the right phrase but some objections that you might try using and trial I've given you a handout in the paperwork there it's in an exhibit it's essentially a list of some objections it's not very fancy but what happened when I got out of law school and joined the family law section of Texas they sent me something that they called to practice the family law practice handbook and in it had had a couple of interesting little pull outs one of them was this thing called handy objections I think is what it was called and it was essentially like what you might go find and maybe a bookstore for for cliff notes or something like that it had a bunch of different bubbles and it had all the objections and recited the relevant Texas statute I've used that every time I've gone to courts since and since I moved to Oklahoma about four years ago I had one of our attorneys convert that to the Oklahoma law and we take that in the front of every book that we take to trial of our own and the reason that's helpful is there are a lot of objections and a lot of them we don't know a lot of them we forget and so it's helpful to have a cheat sheet and the great part about it is it's not cheating if this isn't law school we're not taking a test we can take notes and so I stick that literally right under usually under my legal bed so that when I hear something and I think oh this may be objectionable but I can't think of the right objection I can slide that out pretty quickly and go through because it's organized as I've kind of done it objections barring direct objections during cross objections to evidence so that now you've made this really easy oh we're headed into that territory that didn't want her to talk about so let me get ready with these objections so I handed you that and what I would say is you might find it more helpful to make that a little more user friendly maybe include some of the Missouri statutes or case references something that would kind of guide you in that endeavor during during trial however this appendix does not substitute for preparation by no means am I suggesting use this cheat sheet and forget about preparing in advance so let's talk about my the actual strategy behind objections here we've got a squirrel objecting and so I say why do we object during trial well really there's two sort of stated reasons that we all would agree on number one is to keep evidence out the second one would be to preserve error for appeal I call these kind of the stated reasons because these are the true reasons to object however they're not the only reasons and I would argue that they may not even be the reasons we use most of the time there's kind of this other subset of unspoken reasons that we use and I use this picture to kind of illustrate the point that we use to interrupt what's going on to pop the balloon push pause to make the record scratch to kind of make everybody sort of perk up to what's going on and some of those reasons are to disrupt the actual witness get them off their game to stop what they're talking about some of it may be some of the reasons may be to disrupt opposing counsel he's really driving a point home and you want to object to kind of stop him in his line of questioning and that can be an effective tool and if you object enough maybe even move him off that topic the third one that comes to mind is to protect the witness you object they're getting they're getting hammered on something and you want to stop the bleeding for a minute give them a chance to catch their breath you object then the last reason I don't do this very often but is it's an excuse to kind of make a short speech to the court or maybe even to the witness you know sometimes they call these speaking objections where you stand up and you object hearsay and then you kind of describe something or sort of tell the witness what the answer should be or something like that you use it as an opportunity not for an appeal you're not trying to keep necessarily evidence in but you're trying to break it up so that you can say judge here's what's going on or witness here's what's going on and so these are really some of the actual reasons I think we object more often than not and this is where I think a lot of lawyers kind of get caught up I know I do I start thinking about those reasons sometimes more so than the actual reasons and so what we find is that there's a balancing act when making an objection we have to balance all these interests one is if you make too many objections judges don't like you other attorneys don't like you you know may be harmful to your clients case actually to reject too much second one is it kind of brings attention to maybe some area or some information that you don't want the court to know and then lastly if you don't object then there's no record for an appeal and so really what we're trying to do is get into that little triangle or all three overlap and that's why I kind of called this the art of interruption because it really is an art there's not a science it's not always object when this or don't object when this it's really trying to find and you can see there's not much ground or all three overlap is trying to get in that sliver of circles where you're hitting everything right on right on cue right where it needs to be so a couple of practical considerations and I sort of lifted this and given credit to the author from from 30 years ago he describes objecting and the strategy behind it as a baseball player when should you object he says think baseball player and really he means think batter you know st. Louis is a baseball town I'm a huge Cardinals fan my dad grew up in Memphis a huge Redbirds fan so I appreciate baseball I played baseball if you haven't when you're batting you know you're getting these pitches and so the decision when you're batting is do I swing or do I not swing when you're thinking about objections you have to have that same mentality do I swing at this particular objection do I stand up and object a lot of this stuff has to happen we have to process this information in seconds is this worth objecting to what are the risks what are the benefits but really is to think do I need to swing at every pitch you don't there may be some things that are objectionable that you don't need to object to and his analogy to that is you don't even have to swing it all the strikes so there may be you know I deal with a particular attorney in Tulsa who objects to any question that even sounds leading even if it's is your name Mary objection leading your witness you can't ask leading questions you have to start asking yourself is that worth it is it worth me objecting to this particular objectionable question and unfortunately these are hard decisions to make but you have to swing to get a hit cheesy analogy I know baseball and objections but really that's the thought process that has to go into it you have to have some kind of strategy and some kind of rationale and you're making objections objecting just to object it's not going to get you very far and failing to objects not going to get you very far so really it's a balancing act some of the things we have to consider when deciding to make an objection or some of the things that I would suggest doing in advances number one know your judge some judges in fact I you I used to practice in front of practice in front of a judge who made objections for you if he heard something that he didn't think should have come in or should be coming in as evidence he would make the objection for you even if I didn't have a problem with it and so no your judge know their style know what they like know kind of what things that they tend to do what are their tendencies with hearsay you know I know a lot of judges and family law settings particularly kind of gloss over that hearsay rule under the guise of best interests of the children so know your judge second is know your opponent is this kind of lawyer who's going to object everything as is the kind of lawyer who's going to be prepared for my objections so that way you can prepare accordingly the next consideration is know your witness and prepare that witness tell them how the the process of objecting goes tell them you know when you know the topic are of particular topics coming up maybe it's a history of abuse hey there's going to be some ugly questions here I'm going to try to object-- to try to protect you on these things so don't answer the question until the judge makes a ruling and then lastly is know your case know what's important to your case if you're arguing over custody maybe it's not relevant that your guy makes X number of dollars a year that your client has been a stay-at-home mom for so long or whatever the issues are but know your case know what's important and what's not so there are a couple of problems with objections specifically to the state of Missouri and even though I say that it really is every state they have to be specific which is certainly not a lawyer's norm in court far norm is to say objection leading objection hearsay objection relevance well unfortunately the appellate courts in Missouri I couldn't necessarily find a Supreme Court case that said this but I did find this citation several several times says you have to state in particular grounds to preserve your objection and what they described was rather than saying objection hearsay you have to say objection hearsay and here's why it is hearsay so know that because the court requires it it has to be specific enough to inform the court of what you're objecting to and the particular basis for that objections and they have said general objections are not good enough on appeal when going back to review it but give you some examples here that this court actually used and there's the citation if you are curious but there's always a caveat to every rule and in fact several courts have come back in and said this is the rule but if it's kind of clear enough to us general objections are okay so my tip is make them as specific as you can understanding that as long as the record is pretty well spoken for the reason you're objecting it's probably going to be B okay I do have a few objection tip number one is file objections in advance we talked about the motion in limine if there are big issues go ahead and and file those get a ruling on them remember you do still have to make an objection at the time of trial file a trial brief I I see other attorneys do this I don't do this as often if they see a particularly of questioning the one that I see sometimes regularly is something of a history of abuse from a prior relationship submitting a trial brief that says judge you shouldn't hear any of this essentially it's a motion in limine that they just don't argue in advance number two is like I mentioned before sort of anticipate your objections not just ones you're going to make to their evidence but potential objections that they're going to make to yours so that you can be prepared for trial and then take a cheat sheet I gave you that one maybe tweak that just a little bit but take a cheat sheet and then like we just talked about be specific in your objection and as much as you can try to avoid those general general objections so those are some basics on evidence some refreshers on the rules of rejecting and some of the strategies behind it so I went around and asked some of the judges that I'm in front of pretty regularly what are some of the common errors that you see when it comes to evidence and objections and the response I got the first one kind of surprised because it's when I do a lot which is agreements in advance a lot of judges I had several tell me I find it interesting that these lawyers are to allow evidence in that's bad for their case evidence that shouldn't be able to come in otherwise and so some of those are regarding experts yeah your expert can testify even though maybe they shouldn't be able to I mean like I said before some bad evidence you've got this string of emails or maybe some damaging business records or account statements or something but agreeing to allow those things in in advance may put you at a disadvantage right off the bat the second one that I kind of identified with more a little bit or was worried myself as a failure to object they said some of the judges I talked to a lot of times I want to reach over and say object and I told you I had a judge who does that but they said that they find there's a lot of times lawyers skip very relevant objections and part of that's a strategy decision maybe by the attorney but this is what what the judge had pointed out and then one is probably more common as use of inappropriate or or not relevant objections and then lastly was a failure to introduce exhibits which is why I have a table of contents so at the end trial I can run through there and make sure I got all of my evidence admitted that I wanted to just a couple of things that the courts identified to me I put them in there just to kind of help us in advance think about some of those things lastly before we get into talking about some actual real-life application I wanted to talk about protecting the record also known as appeal


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come back after lunch there'll be more of these jokes you're welcome even though we talked a little bit about some of the objections maybe not holding water on appeal still is important to think about these things protecting the record during trial during any hearing that's that's actually on a record so how do we actually do that pretty simple there's three steps to that one is to make the objection you can do that like I said it with the motion in limine or actually at the time of trial I made a note here about running objections which I know a lot of people like to use however the Missouri courts like again like a lot of states have said there's a specific way to make a running objection the way to do that is to inform the court to have an agreement between the court and opposing counsel as to what the contents and what the extent of your running objection is and make sure that that's on the record again with everything there's a caveat to that rule which the courts have said even if there's not that agreement but it's very clear from the record that this line of questioning or this particular topic was objected to a couple of times and the lawyer didn't even object or ask for a running objection the appellate court might find that there was a running objection so know the rules because it's important and I can give you part of that citation it's Baker versus consol as I didn't write it down apparently as a Missouri 2010 case but make sure that's on the record if you're going to try to do a running objection so one make the objection number two get a ruling from the court I think sometimes we may forget that but get a ruling and then if it's contrary to a piece of evidence you're admitting don't forget especially if it's something you really think is essential to your case to make an offer of proof if you forget to make an offer of proof there may not be grounds for an appeal later so don't forget that so when our our evidence gets objected to and sustained how do we make an offer here's my reminder never forget to make an offer proof so how do we make an offer proof it's actually really easy you simply tell the port in a concise statement what your evidence was going to show you tell them a little bit about the evidence and why you think it would have been helpful for the court to hear and that way you preserve it for the appellate court to then look at example that I one of my attorneys had yesterday in trial was a retirement account statement our client didn't have access to get us the actual retirement account statement so he took a picture over the cellphone which goes back to one of my other evidence tips make sure that the document is readable and so the court didn't allow it because it couldn't really read it but the attorney made an offer of proof and whether or not this is right the judge said well I'll accept that evidence when you send me the original after trial but by doing that by making that offer proof the attorney informed the court just enough to have a little more information to change her opinion on the ruling on that particular piece of evidence so it doesn't take a lot but it's there and then lastly when it comes to objections depending on the situation don't forget to ask for a motion to strike I don't see this happen very often there aren't may be a lot of examples where this is really applicable in family law cases but it can come up when you make an objection or when an objection is sustained and the witness continues to talk if you're trying to keep it out of the record obviously it's really hard to unring a bell for a judge who heard it but it may be important for the appellate record to have that answer stricken maybe they made an object they started talking before you made an objection that was sustained and then my favorite the volunteered statement where there's a lapse there there's a little bit of silence and the court Energex or the witness starts to interject and then when you get a non-responsive answer so what I want to do now which I think I've got 20 minutes or so I'm going to 10:40 Matt's well we switched with Alison so I I think we're going to 10:40 we got 10:40 okay so what we've got here is I've got a couple of examples so we're going to spend the last 15 minutes or so here and talk in groups and what I would suggest maybe just four or five six eight of you turn together but let's take a look real quick at the examples that I gave you and this is really just to have some discussion something to break the norm of just listening to me ramble on a couple of examples from family law cases and they should be in your packet marked as practice exercise one and two the first one is a text message exchange it's kind of brief there's a couple of text messages but in essence what we're doing here we're looking at introducing this evidence to show a denial of visitation and I don't know exactly the Missouri law but Oklahoma if somebody denies visitation you're entitled to make up time you're entitled to attorneys fees we can have trials just on denied visitation and so this is a series of exchanges about that and what I'm going to ask is talk about some of the ways that maybe if you're on one side or trying to get that evidence in what are some of the issues you might face and how would you respond to them and then on the other side if you're trying to keep that evidence out what are some of the things that you would object to what are some of the things we jump to this slide some of the things that can keep it out so what I want to look at is you know what are some of the things we can do to get it in other witnesses maybe some ways that the court might validate this information and then what are some of the objections that we can make and in the second okay somehow this the second one that I want to look at as a printout of a Facebook page which is becoming increasingly popular in our divorce cases and kind of from time to time fun to read but this one is a pronoun from a business a pizza business that the other party was trying to reduce child support the owner of the business is trying to reduce child support saying he doesn't make any more money or he makes less money and the issue is he's opening a second location that he's talking about on his Facebook page on his business Facebook page so there's a couple of issues here maybe the opposing counsel objects to authenticity how do we know he typed this Facebook message how can we attribute this to him he says he doesn't even operate the account maybe his wife does or a manager and so for discussion maybe let's talk about are these Facebook printouts even relevant are they relevant to show that his income has changed one way or the other and if they are can we often acade them enough to get them admitted into evidence and then lastly what are some other objections outside of authentication that we could use so if we could let's just take a few minutes and huddle up with each other for I don't know maybe 10 minutes and just talk about some of those things and I'll kind of walk around if you have questions or want to talk about particular issues and then we'll gather back right at the end and we'll just spend the next couple minutes talking about these things but before we do a couple of things I wanted to talk about that we're in the presentation that a couple of people brought up number one is that I talked about the running objection you may be more familiar with the term continuing objection they are the same thing so if that kind of threw you for a loop and then another example that someone mentioned was in an example of a pro se litigant talking a lot about what a child had told her and repeatedly making objections that it was hearsay and the judge continuing to deny those though it was very obvious it was hearsay at some point another attorney I think it was a Gao leaned over and said you know why he's doing this the judge is letting all this in so that she has no basis for appeal so sometimes judges may not act exactly according to the law and so just be aware of that that may throw you for a loop I mean it was clear this witness was saying my daughter told me my daughter told me my daughter said continuing to object and then being denied but it turned out it was for good cause it eliminated any way that this lady could raise an objection or argue with what the court had done because he had heard it all and I think sometimes that's what makes us a little bit and I say lazy I don't really mean lazy but we tend to kind of be more relaxed about the rules of evidence because judges in family law situations are sometimes as well so real quick I just want to hit on these two examples talk about a couple of things with the text message and really with Facebook emails etc when you're going to prove authenticity which is oftentimes a question you may not be able to say we have proof the opposing party typed this text message and sent it that's a very common issue what we have found is that if you look to the Federal Rules 901 I believe it's B 4 says you can't authenticate evidence by distinctive characteristics and the like and there have been several cases from the pellet from the federal level that have said with email you might need something more than just this came from John Smith at gmail.com and the way you can get there is look at the context of the message look at maybe some of the back-and-forth similar to maybe the reply doctrine that's used with letters look at some of the other characteristics within the email maybe there's a signature in fact there's a a a case out of South Dakota or north Dakotah where in the the mom on her text message had an automatic signature on every text message and it was distinct to her phone only and the judge said that's enough to tell me it came from her so with text messages and the like think outside the box in ways to prove that this came from someone you don't have to have a person saying I saw her type that text message or him I saw him sitting there in putting this stuff into Facebook we know it came from him you can take this as authentic because of the context and the same rule kind of applies with that Facebook print out that I gave you if you read through all of that I'm sure you didn't and you don't really have a reason to but most telling to the judge in that case was a slide on the back page that are a picture on the back page which was the party's new wife and she had written look what Travis bought for me or something like that so it became very apparent that he knew the contents of the Facebook page his wife was operating it talking about their business they had just purchased a new facility in the court used this to say you can afford this type of second location for your business most businesses that are growing means income is growing I'm not going to believe that you went from ten thousand dollars a month in March true story to two thousand dollars a month in August and if you did it's because you're paying for stuff like this and so all I would say is in advance start thinking in advance about these issues if they come up in your case be it a civil case a family law case a criminal case there are other ways to introduce these type of this type of evidence in particular and the other side of it is is when you're looking at keeping this evidence out think of the ways that you can object to this type of evidence maybe it's hearsay and there's not an exception or maybe there's some other foundational issue that you could raise to keep this evidence out and so keep all those things those things in mind and I think that that is all I have for my presentation - yes it is so thank you very much for paying



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Cordell & Cordell attorney Brad Cunningham presents "The Art of Interruption: Using and Objecting to Evidence at Trial" during the firm's 13th Annual Domestic Litigation forum, a continuing legal education event for fellow attorneys held in April 2013.
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