Evidence-speak for Trial Lawyers - Stetson University College of Law

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C:\MyFiles\book\Articles.311\Galleys\Ohlbaum5.drb.wpd10 Stetson Law Review [Vol. XXXIspeeches provide the platform to teach the jury why, and preciselyhow, the governing principles or the purposes of the applicable rulesunderscore the reliability of counsel’s presentation. Speeches alsotell why, in certain cases, these principles and policies discredit anddisadvantage opposing counsel who choose to ignore them.For many courtroom lawyers, evidence is regarded as anobstacle to avoid, rather than an opportunity to persuade. Bothobjecting and proffering inevitably invite the advocate to discuss thepurpose or relevance of the evidence in question. To persuade thejudge to exclude or include evidence, the trial lawyer must summarizethe projected proof, its evidentiary basis or lack thereof, andmost important, its projected impact on the case. Making andmeeting objections provide recurring opportunities to re-argue thecase as it relates to the evidence that is subject to scrutiny. Yet, triallawyers customarily approach evidence like the mythological Greeksapproached the three-headed Cerberus who stood guard at Hades —humbly, deftly, and with trepidation — hoping to ultimately survive,but expecting to be harmed in the process. Believing that bothjudges and juries disfavor objections, many lawyers only object whennecessary to protect the record.The Federal Rules of Evidence are designed to ensure thaterrors are resolved at trial and that verdicts are upheld. 7 Rule 103is a reminder that appellate relief will not occur unless evidentiaryerror involves substantial or constitutional rights. 8 The rules placethe obligation on the trial lawyer to initiate the enforcement processby objecting “timely,” or when an error first becomes apparent.Where error is not called to the court’s attention, any right to reliefis waived.There is an inherent tension between trial judges and lawyersabout how much of the objection or offer-of-proof dialogue counselmay conduct in front of the jury. The rules provide for sidebarconferences “to prevent inadmissible evidence from being suggestedto the jury by any means, such as making statements or offers ofproof.” 9 Yet, trial lawyers frequently are asked by both judges andeach other to defend or explain the basis of an objection or offer inopen court. When such an invitation to speak is issued, it would beimpolite and certainly imprudent to refuse. I have written elsewhere7. Edward D. Ohlbaum, Objections and Offers: Tell It Again, Sam, 25 Litig. 8, 8 (Spring1999).8. Fed. R. Evid. 103(a) (2000) (“Error may not be predicated upon a ruling . . . unless asubstantial right of the party is affected . . . .”).9. Fed. R. Evid. 103(c) (emphasis added).
C:\MyFiles\book\Articles.311\Galleys\Ohlbaum5.drb.wpd2001] Evidence-speak for Trial Lawyers 11about legal, ethical, and tactical considerations that shape the triallawyer’s decision about where, when, and how to object andproffer. 10 Yet, regardless of whether the evidence skirmish occurs atsidebar or before the jury, the advocate’s job is to guide, teach, andpersuade. Many judges also listen for the buzzword or ritualisticincantation with which they are familiar, but that jurors findunintelligible. Yet, popular adages, such as “not offered for the truthof the matter asserted” and “lack of foundation,” add little morethan confusion. Some catchphrases are simply meaningless, such asthe phrase “res gestae.” 11The phrase res gestae has long been not only entirelyuseless, but even positively harmful. It is useless, because everyother rule of evidence to which it has ever been applied exists asa part of some other well-established principle and can beexplained in the terms of that principle. It is harmful, becauseby its ambiguity it invites the confusion of one rule with anotherand thus creates uncertainty as to the limitations of both. Itought therefore wholly to be repudiated as a vicious element inour legal phraseology. No rule of evidence can be created orapplied by the mere muttering of a shibboleth. There are wordsenough to describe the rules of evidence. Even if there were noaccepted name for one or another doctrine, any name would bepreferable to an empty phrase so encouraging to looseness ofthinking and uncertainty of decision. 1210. Edward D. Ohlbaum, Basic Instinct: Case Theory and Courtroom Performance, 66Temple L. Rev. 1, 44–55 (1993); Ohlbaum, supra n. 7, at 1.11. Black’s Law Dictionary 1173 (5th ed., West 1979) (defining “res gestae” as “literallythings or things happened and therefore, to be admissible as exceptions to the hearsay rule,words spoken, thoughts expressed, and gestures made, must all be so closely connected tooccurrence or event in both time and substance as to be part of the happening”).12. John Henry Wigmore, Evidence in Trials at Common Law vol. 6, § 1767, 255 (JamesH. Chadbourn ed., Aspen L. & Bus. 1976). Although the courts still use the phrase “resgestae,” many judges have condemned the phrase. For example,Holmes, J.: “The man that uses that phrase shows that he has lost temporarily allpower of analyzing ideas.” J.B. Thayer’s memo books as cited by E.R. Thayer in histeaching notes recording a report by Samuel Williston (1895). L. Hand, J.: “[A]s for ‘resgestae’ . . . if it means anything but an unwillingness to think at all, what it coverscannot be put in less intelligible terms.” [Melvin, J.:] “Definitions of res gestae are asnumerous as the prescriptions for the cure of rheumatism and generally about asuseful.”Michael M. Martin, Basic Problems of Evidence § 13.06, 357 n. 174 (6th ed., ALI 1988)(internal citations omitted, emphasis in original).
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Evidence-speak for Trial Lawyers - Stetson University College of Law

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