Dealing with evidentiary issues at trial

Let’s talk about pretrial and trial eviden­tiary objections, and how to preserve the record.  More important, our topic is how to properly register your objections, obtain a clear ruling, and preserve your objection (if overruled).

      First, you may see (or raise) eviden­tiary issues in any motions for summary judgment, both in the opposition or in the reply.  Code of Civil Procedure Section 437c(b)(5) and (d) provide that objec­tions must be made “at the hearing” or are deemed waived.  Rule 3.1352 of the California Rules of Court provides that a party can make evidentiary objections either in writing or at the hearing if a court reporter is present.  In Reid v. Google, Inc., the California Supreme Court confirmed that “written evidentiary objections made before the hearing, as well as oral objec­tions made at the hearing are deemed made ‘at the hearing'” under Section 437c for purposes of preserving the objection.  (Reid v. Google, Inc.(2010) 50Cal.4th 512, 531-532.)  “[E]ither method of objection avoids waiver” on appeal.  (Ibid.)

      For written objections, Rule 3.1354(a) of the California Rules of Court supplies deadlines, requiring them to be served and filed “at the same time as the object­ing party’s opposition or reply papers are served and filed.”1  At trial, my experience has taught me that your chances for getting that favorable ruling improve if you first anticipate the issue so the court is aware of it before it is formally raised in court, and second, you clearly outline your position on the record. 

      We cannot always anticipate objections that need to be made. But we can do our best to alert the court to questions and areas of inquiry that are the subject of our objections.  Judges appreciate the “heads up” so they can anticipate the issue, per­haps read any important cases, or at least fit any arguments by counsel about this issue in the trial schedule so that the process is not disrupted unnecessarily.

      At times I have even asked for an in­-chambers hearing with opposing counsel if a certain area of inquiry is going to be pursued so that I can anticipate the objections, alert the court to it, and get a determination of when it would be best to hear my pitch and make a clear record for appeal.  The latter is very important as often objections are taken up in “side bar” conferences that are not reported, so the record is devoid of your position. 

      The best way to assure you make a record of any proceedings on evidentiary issues is to file a written motion in limine.  There are good articles on this process and I recommend that anyone going to trial consider reviewing them.2  The important point here is that critical evidentiary issues which may affect the outcome of the case should be a formal part of the record.  So, a written record is the best way to do so. 

      Further written briefs relating to motions in limine should be more than a one page summary of the issue.  Include relevant citations, and all your points for argument.  I prefer a bullet point style of argument, which gives the court an “easy read” of your position.  So long as your arguments are set out, this approach should preserve them for any appeal.  One final point regarding “side bar” con­ferences.  These are seldom, if ever, done in federal court. In state court the practice can vary.  Some judges will use them (with the jury presumably out of hearing range).  I have never liked them, although I know some judges want to move things along so it is more efficient to have them with the jury still in the room.  At other times, the judge has kept the jury in the room, but had a conference with counsel in the hallway behind the courtroom (preferably with the court reporter present). 

      If the evidentiary issue is more than just one involving overuse of leading questions on direct or not a critical one which could be the subject of an appeal, any side bar is usually not reported.  If it is a critical issue, e.g., involving the character of your client such as a prior felony conviction, lifestyle issue (divorce, drinking) or an issue about a client’s or witness’s past that could affect a jury’s perception of the client or witness, I urge you to ask to have it reported.  Another way is to ask the court to record a synopsis of the “side bar” conference out of the presence of the jury at a break or before the court adjourns.  The point is – again – make that record clearly and succinctly.

      I think I have made my point here. 

      Next Stop:  More on Trial Practice – Expert Witnesses. 

These points are made in V. Wang, “Evi­dently Objectionable,” Los Angeles Lawyer, September 2015, p. 25. The article is an excellent summary of our topic. 

See, E. Hernandez, Motions in Limine, https :/ /www. plain ti recent-issues/item/motions-in-limine.


Guy 0. Kornblum is the principal in Guy O. Korn­blum, A Professional Law Corporation, with offices in San Francisco, where Mr. Kornblum has prac­ticed for over 45 years. He is Certified in Civil Trial Law by the National Board of Trial Advocacy. He has been trying civil cases his entire career and has taught at Hastings College of the Law, where he obtained his law degrees. Once on the defense side, he has been a plaintiff’s lawyer for the past 25 years. He also is an expert witness in insurance claims and legal malpractice cases. His firm handles a wide variety of civil cases which suits them because of the nature of the issue and the requirements of the case. They especially look for challenging personal injury and insurance related cases.

Prefer to email?