Making the Record in the Trial Court
Glenn E. Bradford1 |
James R. Wyrsch2 |
It is a lazy and unthinking lawyer who suggests that all he is anxious to do is win the case in the trial court, leaving it to his opponent to worry about an appeal. If his hopes for initial victory are disappointed, such a lawyer often finds himself stripped of legal support for his own appeal. – Howard Hilton Spellman3
I. Introduction
The primary goal of all trial lawyers is to win the case at trial. And rightly so. However, there are unfortunately those times when the case is lost in the trial court despite the best efforts of counsel. In such cases it is critical to have a clear and complete record to support post-trial motions and, ultimately, an appeal. The tedious process of making an adequate record in the trial court is a task so obscure and unglamorous that many trial practice books offer nary a word of advice on proper procedure or technique. Legal pundits on Court TV and Larry King Live never salute trial counsel in a sensational case based on their dynamic and electrifying record-making abilities. It’s tedious, it’s boring, it’s mundane. But it’s necessary in order to properly serve the interests of the client. Making a good record in the trial court is a function of knowing both the applicable law and the proper practice mechanics of actually making the record. This article will discuss the primary principles involved in making a clear and complete record in the trial court with regard to both law and practice.
Making a trial record can be a rather tricky balancing act. In his book Modern Trial Advocacy, Steven Lubet noted, “It is not enough to understand the theory of the hearsay rule; one must also be able to recognize hearsay on an almost instinctual level and to articulate a persuasive objection at virtually any given moment.”4 Lubet continued, “It is not enough to comprehend the foundation for the admission of a past recollection; it is also necessary to be able to elicit the foundation in a manner that will be persuasive to the trier of fact. In other words, making the record calls for knowledge, judgment, decisiveness, adaptability, and reflexes.”5
A lawyer must balance making the record with his or her trial goals. It would be unfortunate if a trial lawyer were to miss some key point of persuasion in an effort to ensure a good record for appeal. In his classic book Trial Tactics and Methods, Judge and Harvard Law Professor Robert E. Keeton says, “Difficulties in preserving error and securing a reversal … emphasize the importance of directing your efforts primarily toward … a favorable verdict.”6 In short, lawyers who try their cases with an appeal in mind generally have to.
The basic goals for making the record are (1) to get in good evidence; (2) to keep out bad evidence; and (3) to preserve any trial error for appellate review. The record can also serve to (4) control misconduct of opposing counsel and, in rare instances, misconduct of the court and the jury. Another objective of making the record (5) can be to streamline one’s presentation and conduct of the trial so as not to leave one’s opponent with anything to appeal.
II. The Record on Appeal
According to Missouri Supreme Court Rule 81.12, the record on appeal “shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented by either appellant or respondent, to the appellate court for decision.”
It is axiomatic that record of trial is the basis for review. It is not what is done or contemplated but what is recorded that is reviewed by the appellate courts in the normal case. The physical mechanism by which an appeal is conducted requires this limitation and the physical limitation is embraced by appellate courts because it coincides with the requirements of justice and its orderly administration.7
Most experienced trial lawyers and judges subscribe to the theory that a competent trial lawyer should make as few objections as possible. This principle is based on the notion that a jury will resent repeated objections, particularly if they are overruled, and tend to feel that an objecting lawyer is attempting to hide the truth. Also, an ill-considered objection may provide the opposition with a point to appeal, perhaps on an insignificant or marginal evidentiary point. Fred Warren Bennett comments, “If you have a strong case on the law and the facts you should use objections sparingly. The trial judge may commit error by sustaining your objection, thus giving your opponent an appeal point on an otherwise losing case.”8 However, certain key objections obviously need to be made to control what is admitted in evidence and preserve the record for appeal. James F. Hewitt highlights the importance of making key objections: “Properly objecting at trial may not be sufficient to obtain reversal, but it is almost always necessary.”9 The best way to resolve this conundrum is probably to restrict objections to matters that are clearly significant to the actual merits of the case. In other words, a good trial lawyer should probably pick her battles carefully and try to refrain from making trivial objections to insignificant evidence or testimony.
III. It Ain’t Over Till It’s Over
In his book analyzing the personality and performance traits of what he calls America’s 14 top trial lawyers, author and nationally known jury consultant Donald E. Vinson notes a general “tenacity” in the use of the appeals process.10 “[Each of the lawyers] learn[s] from the experience and do[es] whatever is necessary to turn the loss into a win, to rectify the situation.”11
Counsel for appellant is responsible for ensuring an adequate record. A trial lawyer should speak clearly, distinctly, and slowly, and ensure that witnesses give intelligent responses, rather than “uh huh,” “huh, hum,” nods of the head, or general mumbling. Exhibits should be referred to by exhibit number. Lawyers should also describe for the record any hand motions or other imprecise descriptions of distances or things like location of injuries, since the court reporter is not required to record anything but testimony and objections.12 And of course it never hurts to make friends with the court reporter, since a lawyer will occasionally have to ask for opening statements, closing arguments, and the like to be recorded. When requesting a sidebar conference, it is essential to ensure the court reporter is close enough to hear the proceedings so that these meetings are preserved in the record.13 Lawyers should also fully summarize for the record any conversations that may have taken place in chambers.
It should be recognized that there are several types of errors that can be appealed. Did the jury hear evidence it should not have heard? Did the judge prevent the jury from hearing evidence that should have been allowed? Did any ruling by the judge or conduct of a party impair a party’s right to a fair consideration of the case by an impartial jury? Was there evident prejudice? The three categories of prejudice are: (1) prejudice that deprives a party of a substantial right, (2) prejudice to the administration of justice, and (3) prejudice that may have influenced the verdict.
IV. Motions in Limine
A motion in limine is a pre-trial motion that allows a judge to make a ruling on the admissibility of arguably prejudicial evidence before trial actually begins.14 The term “in limine” is a Latin phrase which means “at the outset” or “on the threshold.”15 A motion in limine typically seeks to prohibit the opposing party from introducing something in evidence or even mentioning it during the trial. It has been stated that the “pre-trial motion [in limine] to suppress or limit evidence, before the question is ever asked in front of the jury, is probably the most effective evidentiary tool available to a litigant. Properly phrased, such a motion asks merely that opposing counsel first take the matter up with the court out of the presence of the jury.”16
It is worth noting that neither the Missouri nor the Federal Rules of Civil Procedure provide authority for the motion in limine. The practice of filing motions in limine has grown up in relatively recent times and in the face of some considerable judicial reluctance.17 The first mention of the motion in limine in reported cases is by the Alabama Supreme Court, which in 1933 stated that a ruling on such a motion “would be wholly unjustified by, and in violation of, all precedent, and an unwarranted usurpation of judicial power and authority.”18 Missouri lawyers apparently first began using motions in limine on a regular basis around 1970.19 Missouri appellate decisions have since sanctioned the use of the motion in limine in both criminal and civil cases.20 “Authority for the use of motions in limine in most jurisdictions is found in the trial court’s inherent discretionary power to admit or exclude prejudicial evidence. This power has evolved by case law.”21 The author fondly recalls the late District Judge John Oliver disdainfully lecturing a group of lawyers in a pre-trial conference in the late 1970s regarding the failure of the Federal Rules of Evidence or Civil Procedure to provide authority for the procedural vehicle known as the motion in limine. Today, however, the use of the pre-trial motion in limine is well-established and customary.
The trial judge would generally be requested to provide a protective order prohibiting counsel, the parties, or the witnesses from referring to certain evidence during trial. In order for a motion in limine to be granted, the moving party must usually convince the judge that the evidence is inadmissible and that even its mention at trial will cause prejudice. As a practical matter, trial judges routinely reserve ruling on admissibility if opposing counsel will agree not to refer to the matter in opening statements or otherwise until the trial judge can hear the predicate for the evidence during the trial.
It is important to take care in drafting the order for the trial court:
A properly drawn order must satisfy several requirements. First, the order must specify precisely what evidence is to be excluded. Secondly, the order should state that the evidence is to be excluded for all purposes, including impeachment. Thirdly, the order must state that the court’s directives apply to the opposing party, his counsel, and his witnesses. Finally, the order should state that it precludes all direct and indirect forms of communication during all portions of the proceedings. An order drawn to meet these four requirements will preclude the opposing counsel from successfully claiming that he was not sufficiently notified of the court’s decision and will preclude him from getting evidence admitted through a loophole in a poorly drafted motion.22
For purposes of making a record, the key point to remember with regard to a motion in limine is that the trial judge’s ruling is interlocutory only.23 If the trial judge overrules an objection to evidence in the form of a motion in limine, then an objection must still be made at trial if the evidence is offered. The reason is that, since the ruling on the motion in limine is interlocutory in nature, the trial judge might conceivably change his mind upon hearing the actual evidence and its foundation. A failure to object may allow prejudicial evidence to reach the jury and at the same time waive any appropriate objection. The Federal Rules of Evidence specifically provide that “[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”24 It has been held that an objection at trial should still be made where the court reserved ruling or made a provisional ruling or permitted leave to make a proffer.25 Trial counsel has the obligation to clarify whether an in limine ruling or other pre-trial ruling is “definitive.”26 Even in federal court, good practice would seem to dictate restating an objection or making an offer of proof once the trial starts.
Judges are usually reluctant to guess as to what evidence will show without first hearing witnesses. Accordingly, if an objection to a motion in limine is overruled, a lawyer must repeat the objection when the evidence is offered at trial. If such an objection is sustained, an offer of proof should be made at trial if necessary to put the questionable evidence in the record for purposes of later review.
V. Put it in Writing
It is a good rule of thumb to always file written motions and objections when circumstances permit. Certainly greater care can be taken as to the specifics of language in the quiet of the office than in the heat of battle in the courtroom. It is quite disconcerting to review the trial transcript and find that a particular motion or objection has been less than artfully stated. It is certainly an accepted standard of practice to put motions for a directed verdict at the close of the plaintiff’s case and at the close of all the evidence in writing. Pre-trial motions in limine are customarily submitted in writing. Additionally, if a particular objection can be anticipated, the objection can be typed up for the record to ensure precision in wording. If nothing else it can be read into the record by counsel so as to eliminate the chance of verbal flubs or forgetfulness as to details. Likewise, certain qualifying questions need to be stated precisely in order to make a proper record to support the admission of testimony about certain kinds of issues.27 For instance, one can have a prepared list of questions to qualify a business record through a custodian of records, or to qualify a medical expert to give an opinion about a violation of the medical standard of care.28 It is often helpful to write out such questions in advance to make certain that there are no slip-ups at trial. There are a number of good checklists available to assist in this process.29 Although authorities on the subject of persuasion universally advise against reading in the presence of the jury, making your record is not in reality an occasion when persuasion is the primary issue. Precision clearly trumps persuasion in such a case.
VI. The Offer of Proof
How many times have we all seen this exchange?
Q: What did he say to you?
Opponent: Objection – calls for hearsay.
Court: Sustained.
The questioner then moves on to another subject and assumes that he has a potential point error on appeal. In fact, he has preserved nothing. Unfortunately, most lawyers don’t even know that they are required to make an offer of proof if their evidence is excluded, much less how to do one.30
If a trial judge sustains an objection to your evidence, then you must make an offer of proof as to what your evidence would have been in order to preserve the point for appellate review.31 Otherwise, an appellate court would not have any basis to judge whether the evidence should have been admitted. The general rule is that “[a]n offer of proof must be timely and must show what the evidence would be, its purpose and object, and [the] facts necessary to [support] admissibility.”32 In these instances, a question and answer method is preferred,33 although a narrative offer is permissible as long as it is not merely “conclusory.”34 Even though there is some authority that no offer of proof is necessary on cross-examination, newer cases suggest that this rule can no longer be relied upon.35
In Beech Aircraft Corp. v. Rainey,36 the United States Supreme Court reiterated its view of the importance of the offer of proof. In that case, counsel was prevented by the trial judge from making an offer of proof. On appeal, the Supreme Court rejected a waiver argument holding that the usual requirement of an offer of proof would not be required under the circumstances. It has been held that offers of proof are so important that, if a trial judge denies the right to make an offer of proof, an abridgement of the right to make an offer of proof would virtually necessitate a finding of prejudice.37
An offer of proof must show three things: (1) what the evidence would be; (2) the purpose and object of the evidence; and (3) each fact that is essential to establishing its admissibility. In one of his articles, famed criminal attorney Bobby Lee Cook noted that, “the offer of proof should focus on the harmfulness of the ruling.”38 The old stand-by, “Just for the record, Your Honor,” is less than ideal tactically, because it tends to suggest that a lawyer didn’t really feel that evidence or that the ruling on it was harmful.
Missouri law regarding offers of proof dictates that in case the ruling is one excluding evidence, a timely offer of proof must be made, and it must show what the evidence would be, its purpose, and facts sufficient to establish admissibility. An offer of proof may not be necessary if: (1) the context within which questions were asked indicates the expected answer and its purpose; (2) the question was asked on cross-examination; or (3) the offer would be a useless gesture where the court has ruled broadly that evidence of a particular class or type is inadmissible.39
A testimonial offer of proof is usually offered outside the hearing of the jury, for instance after a lunch recess or after the jury is excused for the day. If an exhibit is refused, you should have it marked and lay a proper foundation, thereby making a record that you are offering a refused exhibit for the record. “The marking of an exhibit for identification has two purposes: first, the avoidance of confusion in propounding questions; and, second, the imbedding into the record of proof as to what was offered in evidence, after the court has sustained an objection to the evidence.”40 It is good practice to state for the record, after an objection to an exhibit is sustained, that offering counsel is tendering the marked but rejected exhibit for the record for purposes of appeal.
In summation, offers of proof should generally be made by putting the witness on the stand out of the hearing and presence of the jury. A narrative of the offer of proof by counsel may be acceptable in certain circumstances.41 However, the better practice is clearly to put the witness on the witness stand and ask the questions out of the presence of the jury.
VII. Objections
One must clearly state the grounds for an objection. Also, it is imperative that the trial judge makes a ruling on said objection. Per Federal Rule of Civil Procedure 46, a formal ruling to an exception is not required. To object, start with the word “objection,” and then state the general nature of the objection. The time-honored trial lawyer’s practice of making “speaking objections” explaining the objection in detail (and more for the benefit of the jury than for the benefit of the trial judge) has been discredited to the point that the majority of judges prohibit speaking objections altogether. In modern practice, trial judges typically want brief general objections and will ask counsel to come to the bench for a sidebar if the judge desires further amplification of the grounds for the objection.
Objections must be timely – they must come at the earliest possible moment – theoretically made in anticipation of inadmissible evidence. If your objection is overruled, stating “note my exception” or “exception, your honor” is no longer necessary in the course of a trial, as it is obvious to the court that you are not in favor of the judge’s ruling. Judge Robert E. Keeton comments on this point in Trial Tactics and Methods, stating, “Expressions of this sort are often used for the purpose of concluding the matter without the appearance of acquiescence, rather than with the thought that such an expression is essential to the preservation of error.”42 It is also unnecessary to use phrases when objecting such as “let the record show” or “may the record reflect.” If you expressed your objection to the court, the court reporter should reflect this on the transcript. References to “the record” tend to confuse jurors and waste time.43 While the duty of an attorney is to always preserve the record for appeal, the jury should not be noticeably aware of this process.
Another danger in making objections is that of objecting too quickly and later regretting your decision. Nationally known trial practice authority Professor James W. Jeans states in his book Trial Advocacy:
Sometimes a lawyer finds himself making a knee-jerk objection, having it sustained, then on sober second thought realizing that he might have introduced reversible error into the proceedings. If this second appraisal occurs quickly enough you can withdraw the objection immediately or after the offer of proof by your opponent. If the opportunity passes, approach the bench at the conclusion of the witness direct examination and withdraw the objection. Under these circumstances the response might be unduly highlighted but it might be better than risking a reversal.44
Counsel should be aware that in criminal cases certain kinds of evidence are subject to exacting requirements in order to preserve the record for appeal. For example, a motion to suppress evidence, whether it is physical evidence, a confession, or impermissibly suggestive identification procedures, must be in writing and ordinarily filed and ruled upon prior to trial. At trial, when evidence is sought to be introduced by the prosecution, the defendant must make a timely and specific objection to the evidence that must mirror the motion for suppression that was made before trial.45 Objections and arguments that restate general allegations of error contained in a motion to suppress evidence do not preserve a later claim for appellate review.46 The objections should be made at every opportunity when the evidence that was subject to the motion to suppress is sought to be introduced. Moreover, the grounds of the objection to such evidence must be presented in the motion for new trial (see discussion below) and must be the exact same objections made in the motion to suppress and in the objections at trial.47
VIII. Motions to Strike
A motion to strike is used when evidence has come in before an objection can be made. If a motion to strike is granted, the jury is typically instructed to disregard the evidence on the request of counsel. While this works well in theory, lawyers and judges alike are well acquainted with the difficulty of “unringing the bell.” As an example, a motion to strike is employed when a question is admissible, but then its answer contains inadmissible material. Another opportunity for a motion to strike occurs when an initial objection is overruled on a representation that the evidence will be “connected up” later, which is not completed. Following a motion to strike, a lawyer can also ask that the jury be instructed to disregard the stricken evidence. A lawyer must make an objection to each question or answer unless he is allowed a continuing objection to a line of questioning. Many experienced trial lawyers feel that asking the trial judge to instruct the jury to disregard some particular item of evidence may, in fact, serve to merely emphasize the damaging evidence. Requests to have the trial judge instruct the jury to disregard particular evidence is a decision probably best made on a case-by-case basis.
IX. Games Judges Play?
It is the obligation of the trial judge to make a ruling on all objections, and such ruling should be entered in the record. The responsibility for obtaining these rulings, however, rests upon the shoulders of the trial counsel. If the judge fails to make a ruling, then counsel should request that it be done, and if the court refuses, then an objection should be made to the court’s refusal. The ruling should be clear and unambiguous. If it is not clear, then counsel should request the court to say either “sustained” or “overruled.” To avoid what otherwise might seem curt, the suggested procedure is to say, “Your Honor, did I understand the Court sustained my objection?”48
In his book McElhaney’s Litigation, noted trial practice authority James W. McElhaney includes a short chapter called “Games Judges Play.”49 McElhaney comments that some trial judges try to protect themselves against reversal on appeal by attempting to avoid ruling on objections. It follows that, if there is no ruling on an objection, there isn’t anything for the losing party to appeal.50 McElhaney notes the tendency of such judges to make “[d]odge ‘em [r]ulings,”51 which really are non-rulings, such as “I’ve heard enough, let’s proceed,” or “All right, I understand your positions; let’s move along.” A lawyer should be wary of judges who are not forthcoming with a formal ruling on an objection. Some judges may simply ignore objections. Some judges may simply say “proceed,” “continue,” or another similar comment, without actually saying “sustained” or “overruled.” Of course, judges are people, too, and even the most conscientious of judges can simply forget to make an actual ruling. In these instances, whether caused by intention or oversight, a lawyer should politely ask for a ruling, because no ruling means that there is nothing to appeal.52
Remember, it is the lawyer’s job to get a ruling for the record.
Absent a ruling, all you have is a forfeiture of your objection. There is nothing preserved for appeal. Don’t let the judge say: “The jury will remember the testimony;” or “Move on please;” or some other non-ruling. Ask the judge to rule on the objection and if he does not, object to the failure of the judge to rule. This preserves your error for purposes of appeal.”53
As a practical matter, if the trial judge does not use the words “sustained” or “overruled,” counsel should pursue the matter until one of those two words appears in the record. A diplomatic way to handle this situation might be to say, “Your honor, may I take it then that you have (overruled/sustained) my objection.” At this point, the recalcitrant jurist will hopefully come to understand that (a) you didn’t just fall off the turnip truck yesterday and (b) that you are a professional who will do what is necessary to protect your record in the interest of your client. Hopefully, any judicial inattention or game playing will come to an end at this point in the trial.
X. If You Got All the Relief You Asked For, Then You Cannot Appeal
On appeal you are arguing that the trial judge made an error. A key issue on appeal is the trial judge’s response to an objection or motion at trial. If an objection was sustained, was further relief requested at the time? Did the trial judge take any measure to remedy the error and, if so, was the remedy sufficient? Did the judge sustain the objection? Did she strike objectionable evidence? Did she instruct the jury to disregard the evidence or consider the evidence only for a limited purpose? Did she declare a mistrial? The trial court will not be “convicted” of error for failing to grant a remedy that was not requested at trial.54
A lawyer cannot get relief on appeal if he got all the relief requested from the trial judge. If you objected to evidence at trial, if you asked that the evidence be stricken, or if you asked that the jury be instructed to disregard the evidence, and the judge granted all three requests, then he is bulletproof. There has been no error preserved for appeal. A lawyer must demand a mistrial in order to preserve the point. The rule is that, if you got all of the relief you requested from the trial judge, then there is nothing preserved for appeal. In Trial Advocacy, James W. Jeans highlights a logical method of seeking relief from the court. He suggests that attorneys seek relief in an orderly sequential fashion, starting with the relief most likely to be granted and ending with requested relief being overruled by the judge. Jean notes that
“[i]f all these requests [for relief] are lumped together, or if only the most substantial relief sought, you will have a much more difficult time on appeal to convict the court of an improper ruling.”55 By seeking relief in a sequential fashion, it will be easier to preserve the record and have an accurate point for appeal.56
Certain instances will dictate a demand for a mistrial. For instance, if an objection to evidence is sustained and the jury is instructed to disregard, then there is nothing to appeal. However, an attorney may additionally request a mistrial. However, there have been cases where the winning lawyer was granted his request for a mistrial, so it’s probably best to only request a mistrial where the admitted evidence legitimately hurts your case.
XI. Limited Admissibility
Particular evidence may be admissible for some purposes and not for others. For instance, hearsay – in limited circumstances – can be used to show notice. Similarly, some evidence, such as admissions of a party, is admissible against one party but not the other. When this occurs, it is the duty of the opponent of the evidence to provide a limiting instruction. If no limiting instruction is requested, then the lawyer cannot complain later that the evidence only had limited admissibility.57 If objecting counsel does not offer a limiting instruction, then he or she may not object to an argument by the opponent that is beyond what the limited use calls for.58 It’s helpful to have several different forms of limiting instructions drafted on the computer.
An example of a limiting instruction might be: In certain instances, evidence may be admitted for a limited purpose only. (Name of witness) (Exhibit ___) testimony (you are about to hear) (you have just heard) is such an instance. It may be used as evidence for the purpose of showing (insert description), but you should not consider it as evidence for any other purpose.
XII. Making the Record on Depositions
If a deposition is read into the record, ensure that the court reporter records both questions and answers. If a video deposition is played, label the actual video as an exhibit, along with the transcript, perhaps as Exhibits 13 and 13A. If only portions of a video are played, make an exhibit of the page and of the line that was read, or offer a marked-up copy of the deposition showing what was actually read. The offer might be something like:
Your honor, at this time we want to play portions of the video deposition of John Jones. I have marked the actual VHS tape (CD-ROM) of Mr. Jones’ deposition as Defendant’s Exhibit 13. I have also marked as Defendant’s Exhibit 13A a marked-up copy of the deposition transcript to show for the record what we are actually going to be playing for the jury. For the record, I have highlighted those portions that are to be played in yellow highlighter. Anything not highlighted in yellow was not played for the jury. I would offer Defendant’s Exhibits 13 and 13A into evidence at this time.
XIII. Continuing and Blanket Objections
In order to keep from having to repeatedly interrupt an examination – and incurring the irritation of the judge and the jury by doing so – trial counsel will often request that the trial judge grant a “continuing objection” to a line of questioning and testimony. This can be a tricky proposition. It is the trial judge’s choice whether to allow a continuing objection. A trial court may permit a continuing objection or reject a request for a continuing objection and require that any objections be made each time the evidence is offered.59 Even if the trial judge permits a continuing objection, its scope is limited to the basis upon which it was granted.60 If a continuing objection is granted, the best practice is probably to make a new objection for the record should the line of questioning vary or change even slightly. However, it has been held that, when a party has duly objected to a certain type of evidence and the trial judge has overruled the objection, it is not necessary to continually repeat the objection to evidence of the same type.61 The rule of thumb is: When in doubt, continue to make your objection for the record. One commentator has this caution about continuing objections:
The blanket objection is a dangerous procedural device. It is often impossible to determine where it is intended to begin and end, and reasonable minds may differ as to its limits, perhaps resulting in the failure of an otherwise well-taken objection. It is probably better practice to state a specific objection and adequate grounds to each successive impropriety. To conserve trial time and limit the bulk of the record, counsel can make a specific objection to the first objectionable question or exhibit, and simply state, “Same objection” to each successive question or exhibit.62
Additionally, some judges presiding over a multi-party trial will say that an objection by one defendant is an objection by all, and is likely to “join in the objection” amongst co-parties. However, if the subject changes even slightly, a lawyer should object.
XIV. Instructional Error
Under Missouri Supreme Court Rule 70.03, specific objections must be made to the giving or failure to give instructions before the jury retires to consider its verdict. The objections must be stated distinctly with regard to the matter objected to and the grounds of the objection. Otherwise, the error is not preserved. Moreover, the objections must also be raised in the motion for new trial under Rule 78.07. Under 70.02(a), requests by a party must be submitted in writing prior to an instruction conference or at such time as the court directs. There are specific requirements in Rule 70.02, such as submitting an original and one copy for the court and one copy for each party. Each copy of an instruction tendered to the court shall indicate whether it was prepared at the court’s direction or by which party it was tendered and shall contain a notation as follows: “MAI No. _____” or “MAI No. ____ modified,” or “Not in MAI,” as the case may be. Generally speaking, the Missouri Approved Instructions must be used.63 In Missouri criminal cases, Rule 28.03 states:
Counsel shall make specific objections to instructions or verdict forms considered erroneous. No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Counsel need not repeat objections already made on the record prior to delivery of the instructions and verdict forms. The objections must also be raised in the motion for new trial in accordance with 29.11.
The request for instructions should be made to the court at the close of the evidence or at such earlier time as the court may direct.64 Rule 28.02(b) also states:
Instructions and verdict forms that a party requests shall be submitted in writing with an original and one copy for the court and one copy for each party. Each copy shall contain a notation at the end of the instruction as follows: “MAI-CR _____”, “MAI-CR ____, Modified”, or “Not in MAI-CR ____”, as the case may be.
It is important to note that Missouri courts require, with respect to the court’s failing to give an instruction in the motion for new trial, that counsel set forth a statement of facts in evidence that is considered sufficient to warrant the giving of such instruction.65 It is also a good idea for counsel, at the instruction conference where a record is made, to tell the court what facts in evidence justify the giving of such instruction. Upon filing for an appeal, Rule 84.04(e) requires that counsel “set forth in full in the argument section of the brief” any “point [which] relates to the giving, refusal or modification of an instruction.”
Federal Rule of Civil Procedure 51(a)(1) states that “a party may file and furnish to every other party written requests for jury instructions” before the close of the evidence or at some earlier reasonable time that the court orders. Commonly, local rules require that the instructions be submitted before the close of the evidence. A party may, under Rule 51(a)(2), request additional instruction “on issues that could not reasonably have been anticipated by an earlier time that the court set for the requests” and, with leave of court, may “file untimely requests for instructions on any issue.” Under Rule 51(b)(2), the court “must give the parties an opportunity to object on the record and out of the jury’s hearing before the instructions and arguments are delivered.” Under Rule 51(c)(1), a party must make an objection “to an instruction or the failure to give an instruction” on the record “stating distinctly the matter objected to and the grounds for the objection.” Under Rule 51(c)(2), “[a]n objection is timely if . . . a party objects at the opportunity provided under” the rules, i.e., before the instructions and arguments are delivered, unless “a party was not informed of an instruction or action on a request before that opportunity to object, and the party objects promptly after learning that the instruction or request will be, or has been, given or refused.” Under Rule 51(d)(1)(A), “[a] party may assign as error . . . an error in an instruction actually given, if” a proper objection has been made. Under Rule 51(d)(2), “a court may [also] consider a plain error in the instructions” that has not been properly preserved “if the error affects substantial rights.”
XV. Post-Trial Motions
In most jurisdictions, a timely and specific motion for new trial is essential to preserve error on appeal. With regard to criminal matters in Missouri state courts,66 in order to preserve allegations of error for appellate review, all matters where error is urged must be included in the motion for new trial except for the following: “(1) Jurisdiction of the court over the offense charged; (2) Whether the indictment or information states an offense; [and] (3) The sufficiency of the evidence to sustain the conviction.”67 The allegations of error should be framed in the form of the “points relied on” as required by Rule 84.04(d).68 The allegations in the motion for new trial must mirror the allegations in a pretrial motion (if any) and, of course, the objection made at trial.
There are strict time requirements to file a motion for new trial in criminal matters in the State of Missouri. Under Rule 29.11(b), the motion must “be filed within fifteen days after the return of the verdict” unless the defendant makes an application “within fifteen days after the return of the verdict and [the court] for good cause shown” extends the time for filing of the motion for new trial “for one additional period not to exceed ten days.” If the motion is not filed within the time required, then the court cannot act upon the motion for new trial. In addition, the allegations of error that would have been made in the motion for new trial are not preserved for appellate review except for plain error review. Such allegations of error also may be waived for federal habeas corpus purposes. Under Rule 29.11(e), regarding “Motions for New Trial in Cases Tried Without a Jury,” there is no requirement to file a motion for new trial in order to preserve any matter for appellate review but, “[i]f a motion for new trial is filed, [all] allegations of error to be preserved for appellate review must be included in a motion for new trial except for questions as to the following: (A) Jurisdiction of the court over the offense charged; (B) Whether the indictment or information states an offense; [and] (c) The sufficiency of the evidence to sustain the conviction.”
As to civil matters in Missouri state courts, Rule 78.07(a) requires that “allegations of error must be included in a motion for a new trial in order to be preserved for appellate review” with the following exceptions:
(1) Questions of jurisdiction over the subject matter;
(2) Questions as to the sufficiency of the pleadings to state a claim or defense; (3) Questions presented in motions for judgment under Rule 72.01(b); and (4) Questions relating to motions for directed verdict that are granted at trial.
Rule 78.07(a) also states:
Where definite objections or requests were made during the trial in accordance with Rule 78.09, including specific objections to instructions, a general statement in the motion of any allegations of error based thereon is sufficient.
Allegations of errors based on matters occurring or becoming known after final submission to the court or jury shall be stated specifically.
Rule 78.07(b) provides that “in cases tried without a jury or with an advisory jury, neither a motion for new trial nor a motion to amend the judgment or opinion is necessary to preserve any matter for appellate review.” However, under Rule 78.07(c): “In all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” If an allegation of error is not raised in a motion for new trial or is defectively raised, the court can consider plain error affecting substantial rights at the hearing on the motion for new trial.69
In federal courts, a motion for new trial or to amend the judgment is not necessary to preserve error on appeal, although it is certainly a good practice to do so.70 Motions for new trial and altering or amending a judgment are provided for in Federal Rule of Civil Procedure 59. In federal criminal matters, motions for new trial are permitted under Rule 33. Rule 34 permits a motion for arrest of judgment after the trial in the event that (a) the indictment or information does not charge an offense; or (b) the court does not have jurisdiction of the charged offense. However, if the issues are the subject of a motion for new trial or a motion for arrest of judgment are raised before or during trial, a motion for new trial is not required in order to preserve any alleged errors for purposes of appeal.71
It is a good practice to be dictating the motion for new trial during the course of the trial so that, at the end of the trial, counsel will not have to rely on his or her recollection and notes. This is especially important in the event that a trial transcript is not available to prepare the motion for new trial, which is usually the case.
XVI. Availability of Trial Transcript During Trial
In most cases, a daily transcript will not be available or will not be ordered by trial counsel. Therefore, it is imperative that counsel has co-counsel or an assistant to make detailed notes of the objections and rulings that are made during the trial. This is important, for instance, where an objection has been made early in the trial and overruled by the court subject to the proponent of the evidence connecting it up to other evidence. In the event that the proponent is unable to satisfy the court’s earlier requirement for admitting the evidence, it would be well to point out in counsel’s notes where the court had made only a tentative ruling on the admission of the evidence.
An appeal cannot be taken until a motion for a new trial is filed. Any trial error not included in the motion for a new trial is waived. Thus, all trial errors must be included in the motion for a new trial, or else they are waived and not preserved for appeal. Any alleged errors must be described in detail. Generally, issues that are not raised in the original trial cannot be raised in the motion for a new trial, except such issues as jury misconduct that was discovered after the trial, or if new evidence becomes available.
XVII. Bench Trials
There are several special considerations for bench trials. Motions for a directed verdict are actually motions for a verdict as a matter of law. There is usually a more liberal standard on admission of evidence in bench trials. Missouri rules require a specific request for findings of fact and conclusions of law.72 Rule 52 of the Federal Rules of Civil Procedure requires a finding of fact and conclusions of law without requiring a specific request. Typically the trial judge requests that the prevailing party prepare the findings of fact and conclusions of law if they haven’t already been submitted. The basic rule to remember is that if you have any doubt about whether something is adequately set out in the record, politely ask the trial judge for an opportunity to make your record. The record should be as specific and detailed as possible. For important evidentiary points that can be anticipated, a specific objection can be written out and read into the record – better safe than sorry!
XVIII. Keep Objecting
If you allow the same evidence to which you earlier objected to come in without objection, you will have forfeited your right to raise the overruling of the earlier objection on appeal. This means that if your opponent is going to ask a number of questions about an objectionable subject, you must object to each question unless the judge allows you a continuing objection to all of the objectionable questions. You should be careful, however, that the record reflects exactly what subject matter is covered by the continuing objection and the grounds for the continuing objection. If the witness strays ever so slightly into a different but still objectionable subject matter, a new objection should be made. Similarly, if a new witness takes the stand to testify about the same subject matter, it would be wise to renew the objection. An alternative to the continuing objection is to make objections in a hearing outside the presence of the jury. This will preserve your error without the need of objecting again in the presence of the jury. But remember, do not say “no objection” when the evidence is offered in the presence of the jury or you will waive your objection.
The “keep objecting rule” applies to sustained objections in the same manner as it does to overruled objections, particularly if the objectionable evidence is something you really want to keep from the jury. Thus, do not become complacent and assume that your opponent will never stray into objectionable territory again because the judge sustained your objection the first time your opponent tried this tack. A good trial lawyer will always come back at you from a different direction. You must, therefore, be alert and object each time your opponent returns to the objectionable subject. Judge Randy Wilson commented, “I often see lawyers timely object to the introduction of certain evidence, and after they’re overruled, give up and quit making any additional objections, either to that witness or any other witness. This again constitutes a waiver.”73 Don’t let yourself lose a point of appeal by failing to continue making objections.
XIX. Attitude
In making the record, a lawyer is certainly well served by maintaining a diplomatic and respectful attitude toward the trial judge. Experience demonstrates that the vast majority of trial judges will respect a lawyer who makes a good faith and professional attempt to protect the record for his client.74 Diplomacy and courtesy will insulate counsel against the wrath of those who do not. Displays of obvious annoyance and excessive zeal generally serve neither counsel nor his client. Veteran court reporter Letitia A. Perez has commented on this issue:
. . . I have seen some attorneys get so emotionally involved in issues of domestic violence or rape – which is admirable – that they apparently did not know where to draw the line.
I have observed a few attorneys get emotionally involved by taking their client’s case so personally that they scream or yell at opposing counsel. Jurors and public observers sometimes laughed at the passion exhibited by counsel. Unfortunately, it is not a laughing matter. You need to back off, get a hold of yourself and be professional in your presentation.75
The renowned Louis Nizer had this to say about how a lawyer should conduct himself: “Politeness is the mark of a gentleman even in legal combat. I have rarely seen a successful trial lawyer who did not practice courteous amenities toward friend and foe alike.”76 Similarly, F. Lee Bailey writes that a trial lawyer should “[s]how respect for the court, not only in the words you choose but in your manner of delivering them. If you feel that you are being treated unfairly, your remedy is to appeal, not to show your disapproval by being rude.”77
XX. Conclusion
Making a proper record in the trial court requires that at least some of trial counsel’s attention be directed toward ensuring that a clear and complete record is made as the trial progresses. This will quite naturally divert some of counsel’s attention from the primary goal of persuading the trier of fact of the merits of the client’s case. However, it is clear as a matter of good practice that at least some considerable attention ought to be given to the matter of making the record. It is a simple dictate of safety that all motions (including objections) should be made during a trial that touch a vital aspect of the case. Thus, although an objection to unimportant testimony can be eliminated, there should never be a failure to so object where the testimony is inadmissible and has an important bearing upon the trial.78
In other words, if the case is a triable case, most of the attention and effort should probably be directed toward winning the case at trial. However, trial counsel should endeavor to make as clear and complete a record as possible on those issues that are truly significant and important to the outcome of the case.
Footnotes
1 Glenn E. Bradford practices as a trial lawyer in the firm of Glenn E. Bradford & Associates, P.C., in Kansas City, handling civil, criminal, administrative and appellate cases.
2 James R. Wyrsch is president of Wyrsch Hobbs & Mirakian, P.C., Kansas City. He is a Fellow in the American College of Trial Lawyers and International Association of Trial Lawyers.
3 Howard Hilton Spellman, Motions During Trial 7 (Prentice-Hall 1960).
4 Steven Lubet, Modern Trial Advocacy 261 (Nat’l Institute For Trial Advocacy, May 2004).
5 Id.
6 Robert E. Keeton, Trial Tactics and Methods 195 (2d ed. 1973).
7 Missouri Appellate Practice & Procedure and Extraordinary Remedies 3 (MoBarCLE 1963).
8 See, generally, Fred Warren Bennett, Preserving Issues for Appeal: How to Make a Record at Trial, 18 Am. J. Trial Advocacy 89 (1994).
9 James F. Hewitt, Appellate Practice Manual 5 (ABA 1992) (emphasis in original).
10 Donald E. Vinson, America’s Top Trial Lawyers, Who They Are & Why They Win, 105 Glasser LegalWorks (1996).
11 Id.
12 Section 485.050, RSMo 2006.
13 Carol B. Anderson, Anderson on Advocacy 287 (LexisNexis 2003).
14 For a source of sample motions in limine see http://www.illinoistrialpractice.com/2006/08/sample_motion_i.html (last visited Aug. 29, 2008).
15 Gendron v. Pawtucket Mut. Ins. Co., 409 A. 2d 656, 662 fn 1 (Me. 1979).
16 James L. Branton & Jim D. Lovett, Evidence: A User’s Guide to Civil Evidence 1-127 (Knowles Law Book Pub. 1991).
17 See, generally, “Modern status of rules as to use of motion in limine or similar preliminary motion to secure exclusion of prejudicial evidence or reference to prejudicial matters.” 63 ALR3d 311 (1975).
18 Bradford v. Birmingham Elec. Co., 149 So. 729 (Ala.. 1933).
19 See, generally, Johnny K. Richardson, Use of Motions in Limine in Civil Proceedings, 45 Mo. L. Rev. 130 (1980).
20 Id. See, Rogers v. Fiandaca, 491 S.W.2d 560 (Mo. 1973); State v. Schleicher, 438 S.W.2d 258 (Mo. 1969).
21 Richardson, at 131.
22 Richardson at 136 (footnotes omitted).
23 “An order sustaining a motion in limine is an interlocutory order subject to change by the court when the subject matter of the order is presented to the court in proper perspective in the trial of the case.” Annin v. Bi-State Dev. Agency, 657 S.W.2d 382, 385 (Mo. App. E.D. 1983). A party also has a correlative obligation to attempt to introduce evidence at trial where a motion in limine is sustained prior to trial excluding the evidence. State v. Purlee, 839 S.W.2d 584, 592-93 (Mo. banc 1992).
24 Fed. R. Evid. 103(a) (emphasis supplied).
25 United States v. Vest, 116 F.3d 1179 (7th Cir. 1997); United States v. Valenti, 60 F.3d 941 (2nd Cir. 1995); United States v. Echols, 346 F.3d 818, 820-21 (8th Cir. 2003).
26 Walden v. Georgia-Pacific Corp., 126 F.3d 506 (3rd Cir. 1997).
27 Books of checklists are available commercially and can be very helpful in ensuring that a complete record has been made. The Trial Lawyers’ Series by the Knowles Publishing Company contains many excellent examples of evidentiary checklists. See, e.g., James L. Branton & Jim D. Lovett, Evidence: A User’s Guide to Civil Evidence 1-127 (Knowles Law Book Pub. 1991).
28 I have had to qualify so many expert witnesses to testify as to the definition of the standard of care that I have written up a specific series of questions to ask and had that paper laminated. I keep it in my trial briefcase so it is always available at trial. I pull it out and read it into the record.
29 James L. Branton & Jim D. Lovett, Evidence: A User’s Guide to Civil Evidence 1-127 (Knowles Law Book Pub. 1991).
30 Judge Randy Wilson, Feature: A View From the Bench: Why Can’t Lawyers Preserve Error? 69 Tex. B.J. 316, 320 (2006).
31 Missouri Bar member Lew A. Kollias has published an excellent article on the offer of proof. Lew A. Kollias, Why Make an Inadequate Offer of Proof?, 62 J. Mo. Bar. 76 (2006).
32 Mo. Evidence Handbook 49 (MoBar 1996).
33 School Dist. of Independence v. U.S. Gypsum Co., 750 S.W.2d 442, 453-54 (Mo. App. W.D. 1988).
34 Id.
35 United States v. McCowan, 471 F.2d 361, 365 (10th Cir. 1972) citing United States v. Fletcher, 444 F.2d 619 (10th Cir. 1971, holding “[i]f the significance of excluded evidence is not obvious, an offer of proof must be made to preserve the question on appeal.”).
36 488 U.S. 153 (1988).
37 United States v. Hayes, 15 M.J. 650 (NMCMR, 1983).
38 Bobby Lee Cook, Preserving the Record for Appeal, Trial 60 (March 1993)
39 Mo. Evidence Restated, § 103(a)(2) (MoBar 3d ed. 1996).
40 Howard Hilton Spellman, Motions During Trial 173 (Prentice-Hall 1960) (emphasis in original).
41 See, generally, Mo. Evidence § 6.11 (MoBar 5th ed. 2006) .
42 Robert E. Keeton, Trial Tactics and Methods 191 (Little, Brown & Co. 2d ed. 1973).
43 Carol B. Anderson, Anderson on Advocacy 291 (LexisNexis 2003).
44 James W. Jeans, Trial Advocacy 361 (West 1975).
45 See, e.g., State v. Stevenson, 589 S.W.2d 44 (Mo. App. E.D. 1979); State v. Yowell, 513 S.W.2d 397, 402 (Mo. banc 1974).
46 State v. Redd, 550 S.W.2d 604, 608 (Mo. App. E.D. 1977).
47 Id.
48 Alan E. Morrill, Trial Diplomacy Selected Text 126 (Court Practice Foundation, Inc. 1975).
49 James W. McElhaney, McElhaney’s Litigation 293 (ABA 1995).
50 “The appellate courts state that a matter not presented to the trial court and ruled upon by it, or ruled upon by the trial court on its own motion, cannot be considered by the reviewing court.” Mo. Appellate Practice & Procedure and Extraordinary Remedies § 1.2 (MoBar 2d ed. 1963); see, Berghorn v. Reorganized School Dist. No. 8, Franklin County, 260 S.W.2d 573 (Mo. 1953).
51 McElhaney at 295.
52 See, e.g., 75 Am. Jur. Trial §51 (2007).
53 Robert N. Udashen, Making the Record, speech to Trial Skills Section of the Dallas Bar Association (Feb. 14, 2003); available at http://www.sorrelsudashen.com/papers/Making_the_record.doc. (last visited Nov. 12, 2008).
54 St. John’s Bank & Trust Co. v. Intag, Inc., 938 S.W.2d 627 (Mo. App. E.D. 1997); MidAmerican Bank & Trust Co. v. Harrison, 851 S.W.2d 563 (Mo. App. W.D. 1993).
55 James W. Jeans, Trial Advocacy 354-355 (West 1975).
56 Id.
57 United States v. Olano, 507 U.S. 725, 730, (1993) holding that “‘[n]o procedural principle is more familiar . . . than that a constitutional right,’ or right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right.’”) (quoting Yakus v. United States, 321 U.S. 414, 444 (1944).
58 Id.
59 Slankard v. Thomas, 912 S.W.2d 619 (Mo. App. S.D. 1995).
60 Id.
61 Gage v. Morse, 933 S.W.2d 410 (Mo. App. S.D. 1996).
62 Michael Catalano, Making and Preserving the Record–Objections, 6 Am Jur Trials 605, 620 (1967).
63 Rule 70.01(b).
64 Rule 28.02(b).
65 See State v. Beavers, 553 S.W.2d 547, 548 (Mo. App. W.D. 1977).
66 See, generally, Rule 29.11(d)
67 Rule 29.11(d).
68 See discussion in State v. Redd, 550 S.W.2d 604, 606-08 (Mo. App. E.D. 1977).
69 Rule 78.08.
70 Richardson v. Oldham, 12 F.3d 1373 (5th Cir. 1994).
71 United States v. Keltner, 147 F.3d 662, 674 (8th Cir. 1998).
72 Section 510.310, RSMo. 2006.
73 Judge Randy Wilson, Feature: A View From The Bench: Why Can’t Lawyers Preserve Objections? 69 Tex. B. J. 316, 321 (2006).
74 “Most judges admire zealous representation. It becomes a problem when the attorneys become personal with one another. The most effective attorneys are those who are in a sense ‘above the fray’ and are able to show the judge the obvious wisdom of finding for the position of the advocate.” Missouri Bar CLE program suvey, Playing by the Rules 17 (Judge David Vincent, revised & updated 2006).
75 Letitia Araujo Perez, Making Your Record: Courtroom Guidebook for Attorneys and Law Students 119 (NITA 2001).
76 Louis Nizer, My Life in Court 91 (Doubleday & Company, Inc., 1961). Of course, Mr. Nizer practiced law in a time when women lawyers were very much the exception.
77 F. Lee Bailey, To Be a Trial Lawyer 106 (John Wiley & Sons 1985) (emphasis in original).
78 Howard Hilton Spellman, Motions During Trial 7 (Prentice-Hall 1960).