A proponent of evidence can counter anticipated objections with a motion in limine before trial starts, but usually counsel counters objections to evidence after the opponent objects at trial. Here are eight ways to do it.
- Submit a previously prepared memorandum briefing the admissibility issue. Have a memo ready to go when the objection is made. Make sure to keep written evidence memos short and to the point. Don’t argue with opposing counsel; address your points to the judge.
- Contest objections orally with the appropriate evidence rule permitting admissibility. Here’s a tip: As you prepare your examination outline, anticipate objections and write the Evidence Code section and case citations supporting admissibility in the margins.
- Propose “conditional admissibility” to the judge—subject to Evid C §§403, 405. The evidence rules permit conditional admissibility subject to proof of facts, or subject to showing their relevance later in the trial.
- Make an offer of proof. Either summarize the testimony that this witness (and other witnesses) will provide or have the witness testify outside the jury’s presence so that the court can “preview” the evidence and determine its admissibility. Be sure to explain the relevance of the evidence.
- Propose alternative theories of admissibility. For example, if the evidence isn’t admissible in its entirety, part of it may be admissible, or the entire piece of evidence may be admissible for a limited purpose under Evid C §355.
- Ask to be allowed to pursue further questioning. If the relevance of a line of questioning will become apparent in a few minutes, ask the court to permit you to proceed. But be careful that you don’t make promises you can’t keep.
- Request an opportunity to brief the issue. You should have already prepared a brief or memorandum of law if the issue is novel or otherwise requires such attention. But if the objection comes as a surprise and is of sufficient complexity to warrant it, request the opportunity to brief the issue overnight. Before making this request, consider the impact of any delay on the jury.
- If all else fails, move on. If your opponent’s objection is well taken, it’s best to proceed without skipping a beat so you don’t accentuate the matter before the jury.
Other CEBblog™ posts you may find useful:
- Know Trial Objections Cold
- Be Ready to Pounce on Objections in a Deposition
- In Limine Motion Might Be the Perfect Tool for Trump
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