Exhibits and Evidence

AuthorLeonard Bucklin
52-1 (Rev. 8, 3/13)
52. Exhibits and Evidence
§52.1 Customized Quick-Reference
Checklists for Your Trial
The function of this chapter can be simply
stated: To provide quick reference evidence
checklists and materials. This chapter is pro-
vided so you can quickly find — and use — the
foundations, objections, or materials you need
to get evidence in, or keep it out. However, you
should also place in your trial notebook the con-
cise information intended to inform (or remind)
you of the most used and needed evidence
points for the litigator. Ideally, you should cus-
tomize the references, print them with your
word processor, and place them in Tab #16,
“Law,” as a permanent part of each of your trial
notebooks. Both in depositions and trials, when
you need the words or references to meet or
make objections, or ask the right questions to
lay a foundation for an exhibit, it is no help to
have your quick-references back at the office.
You need the words and references instantly
available, where you are standing, by just flip-
ping to Tab #16, “Law,” in your trial notebook.
You expect that many people involved in
your life are using checklists to be sure that
everything has been done properly. It may be
the computer hardware technician installing a
hard drive or the mechanic repairing an airplane
engine. You expect them to use checklists
because no one can remember everything. That
is the theory of one well-known educator on trial
practice. His advice is “take the trouble to write
out the elements for every foundation you will
have to lay in the trial and tuck them in your trial
notebook.” McElhaney, Litigation, Chapter 36.
We are giving you a jump-start on cus-
tomized checklists and references for your trial
notebook. Our reference forms are available in
Word format on the CD that accompanies this
text. Instead of simply making a photocopy of
our quick-reference checklists and putting the
photocopies in your trial notebook (you could
do that), we encourage you to use your word
processor. Open Chapter 52 on the CD that
accompanies this text, and copy the quick-ref-
erence evidence checklists forms (§§52.10 and
52.13 are the main ones you need) into your
word processor. As you find applicable local
cases or statutes, use your word processor to
modify our statutory or case law references,
adding and substituting your own state’s cita-
tions in the appropriate place. Then place your
customized quick reference evidence checklists
behind your chosen tab in your trial notebook.
§52.2 Making Objections at Trial
In law school, you were taught the rules of
evidence. They probably did not teach you the
mechanics of trial objections, including how,
when, and how often to object to the oppo-
nent’s testimony and exhibits. For this reason,
we offer the following formalized set of proce-
dural steps to be followed while making an
objection to offered testimony, exhibits, or
other evidence.
Below are the 11 points every attorney
must follow at trial when making objections
to evidence.
1. Stand up; say the word “Objection.”
2. State specific grounds. Optionally, say
a sentence or two about why the objec-
tion not only violates the legal ground,
but also makes common sense.
3. Specify (point out and distinguish) the
inadmissible parts of the offered evi-
dence from the admissible parts.
4. Optionally, after making your specific
grounds, tack on a broad objection.
5. If it is “Limited Purpose” evidence (the
offered evidence is admissible for one
purpose but inadmissible for another):
(1st) object to a general offer; (2nd) if
the evidence is received for a limited
purpose in a jury case, ask the court to
instruct the jury that it can only be used
for a limited purpose.
6. If it is “Limited Party” evidence (the
offered evidence is admissible for or
against some party but not against
your client): (1st) object to a general
offer; (2nd) if the evidence is received
for a limited purpose in a jury case, ask
the court to instruct the jury that it can
only be used in regard to that party.
7. Object immediately — before the evi-
dence is heard by the judge or jury.
8. If the item is already in evidence, add
“a motion to strike” after your objec-
tion; if it is a jury case, add a motion to
instruct the jury to disregard it.
9. If you need to make a substantial argu-
ment about admissibility of the evi-
dence, do not make the argument
where the jury can hear it.
10. Get a ruling on the record.
11. If the judge sustains the objection of
your opponent, and you want to pre-
serve the judge’s error in keeping your
evidence out of the case, make “an
offer of proof” describing the evidence.
Stand up; say the word “Objection.”
Always stand up. No matter how many
times in a row you have done it, and no matter
how relaxed and informal the judge is in his
courtroom. Always stand up to make an objec-
tion during a trial.
It is always surprising how many attorneys
(especially those who are used to the informal-
ity that occurs in many motion hearing calen-
dars) do not know the imperative of standing
to address the judge during a trial. It is a sign of
respect the judge expects. If you do not stand
up when addressing the judge in the court-
room, you likely will receive a judicial admon-
ishment or (even worse) an inwardly seething
judge who has no inclination to decide objec-
tions in your favor.
Besides, standing up to make an objection
is good stagecraft. If you stand up, you
become the center of attention in the room.
It’s much easier to interrupt what everyone
else is doing, and to make your objection, if
everyone is looking at you.
Unless you say the ritual word “objection,”
you are not entitled to interrupt someone else
in the courtroom. Unless you say “objection,”
you do not get the judge concentrating on what
just happened so he/she can rule. In fact, if you
do not say “objection,” what you say may not
be recognized as an objection; you may hear the
court not make any ruling but instead say
something like: “Let’s just move on now.”
Saying the ritual word is so important that
in the discussion of objections later in this
chapter, you will see us placing the word
“Objection” in all caps at the start of the form
of each objection.
State specific grounds.
After the ritual word “objection,” tell the
judge the specific grounds for your objection.
You must be specific. A “specific objection” is
one which enables the trial court to understand
the precise defect, and — equally important —
gives the offering party the opportunity to
respond directly and remedy the defect if pos-
sible. E.g., De Los Angeles Garay v. TEIA, 700
S.W.2d 657 (Tex.Civ.App. Corpus Christi 1985,
no writ); or Texas Municipal Power Agency v.
Berger, 600 S.W.2d 850 (Tex.Civ.App. Houston
[1st Dist.] 1980, no writ).
Optionally, say a sentence or two about why
the subject of your objection violates the legal
ground, and also why your objection makes
common sense. From a tactics viewpoint this is
important in a jury case. You want the jury to
understand you are seeking justice, not simply
being a pettifogger and nitpicker trying to pre-
vent the jury from getting the truth. E.g., do not
just say “Objection, your honor, hearsay.” Say
instead, “Objection, your honor, hearsay, the
person is not in court, so we cannot check what
was said and what exactly the person truly and
actually knew.”
A broad general objection will not suffice.
The trial judge can — but does not have to —
decide which of the multitude of possible parts
of an exhibit, or an expected answer to a ques-
tion, has an objectionable feature, or what item
of foundation or authenticity is missing. It is
your duty to specify the particulars of what is
wrong with the question, answer, or exhibit.
The trial judge who overrules your general
objection will be upheld by the appeals court.
An objection is not specific if the objection is
only a broad claim such as “no proper founda-
tion” [e.g., United States v. Michaels, 726 F.2d
1307, 1314 (8th Cir.1984) (“Foundation objec-
tions require specificity.”); “immaterial” [e.g.,
Hunt v. Jones, 451 S.W.2d 943 (Tex.Civ.App.
Waco 1970, writ ref’d n.r.e.)]; or “prejudicial,
irrelevant and immaterial” [e.g., Peerless Oil &
Gas v. Teas, 158 S.W.2d 758 (Tex. 1942)].
The trial judge is justified in considering
your broad objection to be meaningless. If the
judge overrules your broadly stated objection,
the appellate court will hold that your failure to
draw the trial court’s attention to the specific
grounds of your objection renders your objec-
tion meaningless. See, e.g., United States v.
Laughlin, 772 F.2d 1382, 1391-92 (7th Cir. 1985)
(To preserve an issue for appellate review, a
party must make a proper objection at trial that
alerts the court and opposing party to the spe-
cific grounds for the objection).
“The reason for the requirement is mani-
fest: a specifically grounded objection to a
defined body of evidence serves to pre-
vent error. It allows the trial judge to con-
sider excluding the evidence or limiting
its admission to avoid possible prejudice.
It also allows the proponent of the evi-
dence to lay additional foundation, mod-
ify the offer of proof, or take other steps
designed to minimize the prospect of
reversal.” People v. Morris, 53 Cal.3d at pp.
Cf., Fed. Rules Evid., Rule 103:
A. Preserving a Claim of Error. A
party may claim error in a ruling to
admit or exclude evidence only if
the error affects a substantial right
of the party and:
1. if the ruling admits evidence, a
party, on the record:
a. timely objects or moves to
strike; and
b. states the specific ground,
unless it was apparent from
the context; [Emphasis
Or, N.H. Rules Evid., Rule 103:
Error may not be predicated upon a ruling
. . . admitting evidence, [unless] a contem-
poraneous objection appears of record,
stating explicitly the specific ground of
objection. . . . [Emphasis supplied.]
Thus, a broad objection stating only “no
proper foundation,” will not be regarded as a
valid objection. Collom v. Pierson, 411 N.W.2d
92 (ND 1987) is an instructive illustration. In a
deposition in Collom (a medical malpractice
case), the following exchange occurred.
MR. SAEFKE: My objection is there’s no
foundation for him to answer that ques-
MR. ZUGER: And can you be more spe-
cific so I can have an opportunity to cure
your objection?
MR. SAEFKE: No, I’m not going to try
your lawsuit, counsel....
MR. ZUGER: And, so that I have an
opportunity to cure this before I conclude
this deposition, where is he lacking in
foundational qualifications?
MR. SAEFKE: That’s not my obligation,
In Collum, the state’s Supreme Court found
the objection invalid:
“Objections to foundation can frequently
be obviated by further testimony. There-
fore, an objection to foundation at a dep-
osition is futile unless it is sufficiently spe-
cific to afford the opposing party
opportunity to cure it.. . . Collom’s coun-
sel failed to specify what was lacking.
Therefore, we cannot consider Collom’s
deposition objection to foundation for
any of Dr. Eisenberg’s testimony.”
The lesson to be learned: whether at deposi-
tion or trial, make your objection specific.
(Rev. 8, 3/13)

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