Alameda County
Bar Association

Trial Evidence Series: Part One 

This article is the first in a multi-part series on Trial Evidence by Tim Hallhan.

I’ll focus on the rules of evidence as an advocacy process–how to use them to win your case. A thorough understanding of the key rules that apply over and over in trial and the purpose behind those rules is crucial to success. This knowledge will help you identify what information is and is not important and credible to your factfinder, how to plead your case to ensure that the evidence with the most impact does or does not come in, how to elicit that information most powerfully, how and when to object, and how to talk the judge into the ruling you want.

The Rules. Mastering the key rules of evidence is the easy part of Trial Evidence. The Federal Rules of Evidence and the California Evidence Code are fairly simple and straightforward. Learn the key rules that arise frequently and the purpose behind those rules; don’t bother memorizing technical pre-trial issues such as privilege and all of the exceptions to the secondary evidence rule–you can look those up when the time comes.

Using the Rules. The hard part of Trial Evidence is learning how to use the rules effectively and persuasively, a skill that requires preparation, especially for the inexperienced trial attorney. During step one of the preparation stage, you must clarify your goals. Are you trying to win at trial? Preserve the record for appeal? Perhaps a combination of both. Goals determine strategy, helping you decide (1) if and when to object; (2) whether or not to offer potentially objectionable evidence; (3) whether to make a motion to strike or ask for cautionary instructions; and (4) how to handle in limine motions.

Next, anticipate the key issues. List the facts you intend to elicit, highlighting those that are questionable and making sure your authority is solid and available. Anticipate, too, the questionable evidence that opposing counsel is likely to bring out–have your authority ready on those points. Be ready to cite code sections and cases. Have a trial memo available on any key issue that may arise.

How to Object. Make clear for the judge and record (1) that you are objecting, and (2) the specific basis for the objection. In a jury trial, any discussion that’s necessary will usually take place at the bench, though some judges allow fairly lengthy arguments in front of the jury, and you need to be ready to take advantage of that.

Stand up when you make your objections. Standing shows respect, gives you authority, and stops the witness in his tracks. Be affirmative, speak loud enough to be heard, and be polite to the judge.

When to Object. You should object as soon as it’s clear that the question or answer is objectionable. Although many judges will permit objections a question or two late, tactically it’s best to intervene before the objectionable information comes out.

Tactics. Goals dictate tactics. If your goal is to win at trial, you must have the answers to some key questions to help you decide whether or not to object: Will the information hurt or help? Will an objection merely highlight the importance of the information? Will it look like you’re hiding something from the jury? Is there a viable alternative? How likely is it that the judge will agree?

If your goal is to preserve the record, do the research necessary to determine whether you should object, move to strike, or request cautionary instructions as to particular evidentiary issues. Many attorneys object to even slightly damaging material early on. This helps establish credibility and competence with the judge, and lets opposing counsel and the witness know that you are paying attention, that they better play by the rules.

Motions in Limine. The best tool for safely eliminating objectionable material is the in limine motion, which should be heard on the record but before the jury is impaneled; written memoranda are desirable, and required in most jurisdictions. Motions in limine avoid the danger of the jury hearing inadmissible material, help preserve the record so counsel does not have to object continually before the jury, and establish counsel’s credibility with the judge.

These motions may also take the form of a motion to admit, whereby counsel raises questionable material he’d like admitted but is afraid the judge will disallow if not given sufficient time to analyze the issue during the heat of trial.

Be selective in the number of issues you raise–a long list will tempt the judge to postpone her decision until the objections come up at trial. As you raise an issue, begin by telling the judge precisely what the evidence is you wish her to admit or exclude, why she should rule your way, and what you’d like her to do about it, e.g., to rule that it is inadmissible, to tell your opponent not to elicit the evidence, and to tell him to caution his witnesses not to blurt it out.

Offers of Proof. The offer of proof is a disclosure made out of earshot of the jury. Counsel, offering evidence to which an objection has been made, discloses (1) what the evidence is, and (2) the purpose of proving the particular facts. This allows the trial judge to evaluate the admissibility of the evidence more fully and provides a record sufficiently detailed to allow a meaningful review of the court’s ruling. It’s important to get to the bench with your offer of proof before the judge rules against you–people don’t change their minds readily, especially in public.

Dealing with the Judge. The rules of evidence are sparse. Trial judges are given tremendous discretion by appellate courts on evidentiary issues. Good judges may rule completely differently on the exact same issues. Therefore, the premium is on the trial lawyer’s ability to convince the judge of his position. If you have anticipated an issue, you’ll be ready with your authority and an argument that applies the reasoning behind the applicable code section to the situation at hand.

It is key to establish your credibility with the judge early–through in limine motions, memoranda, and your professional attitude. In pursuit of that proper attitude, don’t misstate the law, have your authority ready, don’t waste time with excess verbiage and pointless objections, be efficient, and show respect to everyone in the courtroom, including the courtroom staff. Be unfailingly polite, even in the face of adverse rulings. Showing anger or disgust is disrespectful and makes counsel appear weak in the eyes of the judge and jury alike.

Tim Hallahan is the director of the Stanford Law School Trial Advocacy Skills program, a national CLE speaker and in-house trainer, cofounder of The Hecht Training Group, a litigation skills training firm and a Judicial Education Attorney at the Administrative Office of the Courts.