Exhibits and Evidence

• Author: Leonard Bucklin
• Pages: 463-532

52-1 (Rev. 8, 3/13)

52. Exhibits and Evidence

§52.1 Customized Quick-Reference

Checklists for Your Trial

Notebook

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

§52.2 BUILDING TRIAL NOTEBOOKS 52-2

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.

187-188, 279 Cal.Rptr. 720, 807 P.2d 949.

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

supplied.]

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-

tion.

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,

counsel.

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.

52-3 EXHIBITS AND EVIDENCE §52.2

(Rev. 8, 3/13)