CBA Record January-February 2023

take it on faith that all the testimony from their witnesses and all the exhibits on their list will be admitted, that their proposed admission won’t even draw a squawk. When the other side does squawk, and some vital piece of evidence is excluded, they’re left hanging. Rather than assume your evidence is admissible, assume it isn’t. Then consider how you might overcome potential evi dentiary obstacles. Look at your evidence from the other side’s point of view and imagine the objections you would raise. What sort of foundation do you need to lay for the evidence’s admission? Does an exhibit have a potential authenticity problem, for example? If so, how will you authenticate it? Is there a hearsay objec tion lurking out there, either to testimony or to an exhibit? If there is, how will you counter it – by arguing that the evidence doesn’t fit the definition of hearsay, or that there’s an applicable exception? Thinking ahead helps avoid nasty surprises at trial. Don’t lay proper foundation This point is related to the last one. Most lawyers understand, at least in the abstract, that they must lay an adequate founda tion for evidence to be admitted. Often, though, they don’t understand what that entails – identifying and authenticating an exhibit – or that the necessary founda tion can differ depending on the evidence. Nor do they understand that multiple foundations sometimes must be laid, again depending on the evidence and the possible obstacles to its admission. (Entire books have been written about founda tion: Edward J. Imwinkelried’s Eviden tiary Foundations, for example, a classic now in its 11th edition.) Too many lawyers wrongly believe they can skip the identification step and then authenticate everything by eliciting an affirmative answer to the same ques tion: “Is this a true and accurate copy of X?” That one-size-fits-all, single-question approach to foundation won’t get any thing admitted – unless, that is, your opponent is laboring under the same belief and doesn’t object. Part of anticipat ing evidentiary problems involves plan

ning to lay the necessary foundation for the evidence you intend to offer. Part of trying the case involves laying it.

lawyers who never speak up force the judge to protect witnesses from overly aggressive or improper questioning and keep the trial from spinning out of control. The best course lies in the middle. Speak up when you must to protect the record and your case and to keep your opponent in line. Object when you have a legitimate objection to harmful evidence, when a witness is being mistreated, or when the other side is truly wasting time. Otherwise, give your opponent some leeway, the same leeway you would want. A motion in limine, or motion “at the edge,” is brought before trial to get an advance ruling on an evidentiary ques tion. They’re most common in jury trials because they keep evidentiary problems away from jurors and so streamline the trial. But some lawyers like to bring them in bench trials, too. And that’s fine. The question is when to bring them. Lawyers often file motions in limine when they aren’t necessary and don’t file them when they are. If you want to raise a complex evi dentiary objection, particularly one that relies on materials filed before trial (a motion to exclude an undisclosed expert, for example), bring the motion. If you don’t, and you wait until trial to object, the judge won’t have time to research the matter and mull it over. Instead, you’ll get what one judge called “my best 60-second decision.” But if all you’ve got is a rou tine evidentiary objection that can easily be dealt with at trial, especially one that might not come up at all if the testimony takes a particular route, skip the motion. Needless motions in limine are wasteful. Grandstand Judges aren’t jurors. They know about trials. They can tell the difference between a real trial and a television trial. So they neither expect nor want the kind of his trionics that TV has led non-lawyers to believe are the stuff of courtrooms. As one judge told me: “I’m a judge. Spare me the sarcasm, expressions of incredulity, and Make careless use of motions in limine

Publish exhibits before they’re admitted

After asking the unfortunate “true and accurate copy” question, lawyers immedi ately start questioning the witness about the exhibit’s content. But the content is off-limits until the exhibit is admitted into evidence. Before launching into questions about an exhibit’s content (called “pub lishing” the exhibit), first move for its admission. Once the exhibit is admitted, you can question the witness about what it says. It’s popular to have witnesses read large swaths of exhibits (letters, contracts, stock prospectuses) into the record. If the exhibit hasn’t been admitted, though, it can’t be read into the record. And if it has been admitted, what’s the point? The exhibit is in the record and available to the judge. It’s fine to highlight a sentence here and there by having the witness read it. But having the witness read the judge paragraph after paragraph wastes time. Judges can read. Some lawyers consider it their profes sional obligation to throw up as many roadblocks as possible to the other side’s case. No matter how harmless or innocu ous the evidence, they raise an objection, sometimes multiple objections. Other lawyers take the opposite tack and go out of their way not to be obstruction ist. They sit silently by as their opponents argue with witnesses, ask confusing and improper questions, and spend hours on irrelevancies, checking out blind alleys and diving down rabbit holes. Both extremes will alienate the judge. Obstructionist lawyers who object to everything, harmful and harmless, turn the trial into an evidence test. Judges neither want nor need an evidence test. Passive Have witnesses read exhibits into the record Object to everything – or don’t object to anything

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