The Oklahoma Bar Journal January 2024

evidence later in the trial. Often, the document or testimony being offered is not relevant to the claim. The trial lawyer who chooses to refrain can flip this evidence to the opposing party. On redi rect, they can bring up irrelevant evidence in cross-examination to show illogical reasoning or a lack of connection. Then, in the closing argument, they can point out to the trier of fact that the opposing party is asking for a verdict based on evidence irrelevant to the claim. In this way, the trial lawyer blows up the fact that the irrele vant evidence was introduced and relied on. They use it to poke holes in the opposing case. One reason to object is to see how opposing counsel will handle the objection. When an objection is sustained, some lawyers simply move on to the next line of ques tioning. In that instance, the lawyer has just quit on that evidence. The objecting lawyer has won this bat tle as the objected evidence will not be considered by the trier of fact. Good trial lawyers will use an objection sustained against them to “teach better.” 13 They will slow down. The evidence will be highlighted as they lay a detailed foundation and show the relevance of the evidence. When executed correctly, this strategy is painful for the objecting law yer and their client’s case. This, of course, is a reason to withhold future objections. Trial work has always been, and will continue to be, a collision of facts, evidence, arguments, psychology, persuasion, emo tion, fear and human perception. Ultimately, the trial lawyer must understand objections and use discretion when employing them. The learning process never ends.

ABOUT THE AUTHOR

M. Shane Henry is a trial lawyer and a partner at Henry + Dow + Masters + Aycock, with offices in Oklahoma City, Tulsa and

Norman. He practices in the areas of personal injury and family law.

ENDNOTES 1. 12 O.S. §2401 “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” 2. 12 O.S. §2901. 3. Steven N. Peskind, The Family Law Trial Evidence Handbook 16-18 (2013). 4. Id. at 306. 5. Okla. Stat. Ann. tit. 12, §2104 (West 2022). 6. Id. ; Okla. Stat. Ann. tit. 12 §2103 (West 2022). 7. Aaron Bundy and Shane Henry, “Slaying the Speaking Objection Dragon,” 87 OBJ , 2321, 2321 (2016). 8. Okla. Stat. Ann. tit. 12 §577.1 (West 2022). 9. Whitehill v. Elkins , 389 U.S. 54 (1967). 10. Okla. Stat. Ann. tit. 12, §651 (West 2022). 11. “Law, Crime & Punishment: Mistrial,” Britannica (last visited March 6, 2023), www.britannica.com/topic/mistrial. 12. 12 O.S. 2104(D). 13. Roger J. Dodd and Larry Pozner, Cross Examination: Science and Techniques (2018).

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL