Appealing Evidentiary Rulings, Part 2: My Objection Was Overruled--Now What?

Posted on November 24, 2009 by Jay O'Keeffe

A few weeks back, we wrote about appealing evidentiary rulings. That post generated a pretty obvious follow-up question: What do you do when your (clearly correct) objection is overruled, and the bad guys are allowed to introduce their (wildly improper) evidence?

The problem may be most starkly presented when you file a motion in limine, stating a detailed legal objection to harmful evidence, and the judge overrules it. Now what? The other side will present their evidence. Do you cross examine them on it? Can you introduce your own rebuttal evidence? Or will you waive your original objection by doing so, forever forfeiting your right to raise the issue on appeal?

The answer will depend on the specific facts of the case, but--with the help of the World's Busiest Associate, Mike Finney--we've put together a few general principles that should provide some guidance:

  1. Play the percentages. The best thing you can do to help your chances of winning on appeal is to win at trial--especially if the only appeal in your case is a discretionary one to the Supreme Court of Virginia. Very roughly speaking, the Supreme Court grants about 1 in 5 petitions for appeal, and reverses in about 1/2 of the appeals it takes. Let those numbers guide your strategic decisions. They show that it will rarely make sense to risk losing your case to win your appeal.
  2. You only have to object once. Va. Code Section 8.01-384(A) obviates the need for repeated objections. See Drinkard-Nuckols v. Andrews, 269 Va. 93, 102-03, 606 S.E.2d 813, 818-19 (2005) (“[P]rovisions of Code 8.01 § 384(A) obviate the need for repeated objections after having made an objection or motion known to the trial court . . . .”). Make your objection once, clearly, on the record. And before you come close to touching the objectionable evidence on cross examination or your case in chief, gently remind the Court (on the record and outside of the presence of the jury) why you are doing so. That will help you with the next step:
  3. Avoid waiver. This is where it gets tricky. You will waive your objection to evidence if, after it is admitted, you introduce the same evidence yourself. Southern Ry. Co. v. Blanford, 105 Va. 373, 387, 54 S.E. 1, 6 (1906). Put slightly differently, if a party “’unsuccessfully objects to evidence which he considers improper and then on his own behalf introduces evidence of the same character, he thereby waives his objection.” Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970). There are, however, limitations to this waiver rule. An objecting party may “elicit[] evidence of the same character either during cross-examination of a witness or in rebuttal testimony.” Drinkard-Nuckols, 269 Va. at 102, 606 S.E.2d at 818. In addition, to constitute waiver, “the subject matter of the evidence at issue [must] be the same as the subject matter of the evidence to which an objection was made.” Id. at 102, 606 S.E.2d at 818 (citing Pettus v. Gottfried, 269 Va. 69, 606 S.E.2d 819 (2005)). 
  4. Object to jury instructions (and, if necessary, move to set aside the verdict). Just to be on the safe side, formally object to any jury instruction regarding the parties’ alleged oral contract. And if--God forbid--the jury should return an adverse verdict, move for both a new trial and for the court to set aside the jury’s verdict on this ground. See Spitzli v. Minson, 231 Va. 12, 341 S.E.2d 170 (1986) (“[W]hen defendant failed to object to the instruction submitting the entire case to the jury, and failed to move the court to set aside the verdict and grant a new trial, she waived her right to assign error . . . .”) (quoting Hilton v. Fayen, 196 Va. 860, 867, 86 S.E.2d 40, 43-44 (1955)).

That, in a nutshell, is an appellate lawyer's perspective on what to do with an adverse evidentiary ruling. The takeaway from all of this: it's really just a lot easier to win your motion in limine in the first place.

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Urban Legends of the Law: The Nusbaum Motion

Posted on July 31, 2009 by Jay O'Keeffe

My colleague and sometime coauthor, Travis Graham, is an eccentric civil procedure genius and all-around good guy. Among his other hobbies, Travis collects popular misconceptions of the law. He recently told me about a new urban legend making the rounds: the Nusbaum motion. As I understand it, there is a perception brewing in some corners of the bar that you need to file a dedicated pleading in order to protect against procedural default in the wake of Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007).

I have no idea whether this is true. (I've been burned before.) I hope that it's not--or if it is true, that people are just talking about a motion to reconsider. Barring extraordinary circumstances, there's no need to file a separate pleading to secure a ruling and avoid the Nusbaum waiver scenario.

Nusbaum is a fun case. Factually, it's pretty straightforward. Here, Buzz Aldrin re-enacts the pivotal event in the case:  

 

Buzz took some dramatic license there, but not much. In Nusbaum, the plaintiff's lawyer bumped or shoved opposing counsel in court, before the jury. The trial court immediately declared a mistrial and assessed costs against the plaintiffs.

A procedural nightmare ensued, as the parties debated sanctions for months. For our limited purposes, it is enough to note that Nusbaum failed to raise certain objections contemporaneously. He moved to reconsider, but told the judge that he was not asking the court to change its ruling. By doing so, he waived his argument for appeal.

Here's what you need to know about Nusbaum:

  1. It's a waiver case. At bottom, Nusbaum is a waiver case. If you file a motion to reconsider to preserve a point for appeal, but then tell the trial judge that you don't actually want her to reconsider her ruling, you have not preserved your argument. You have waived it. Nothing groundbreaking here. That's because...
  2. You always need to get a ruling on your objections. This is true, has always been true, and always will be true. The trial court is entitled to a fair opportunity to rule intelligently on your objections. Otherwise, you will not have anything to appeal. Therefore, you should bject during the proceeding, and later list your key objections on the face of the court's order. You might even consider adding language to the order itself, acknowledging and ruling on the parties' respective objections. If necessary, file a motion to reconsider. But unless something goes horribly wrong, you should not need to move the court to rule on your motions or avoid a waiver. 
  3. Don't go overboard noting objections or doing things "for the record." The best thing you can do for your prospects on appeal is to win in the trial court. Do what's necessary in order to preserve error, but don't lose the case trying to win the appeal. And while we're on the subject, you should probably delete the phrase "for the record" from your trial vocabulary altogether. It's a lawyerism. Real people don't talk that way, unless they're being pretentious and/or trying to sound like lawyers. Beginning an argument with "for the record" can even suggest that you are just going through the motions to preserve an argument. That is not effective advocacy--and as Nusbaum shows, it may not be effective preservation of error.
  4. It's better with Buzz. Frankly, I like the case better when it has Buzz Aldrin punching jerks in the face. (Thanks to my friend, Jerry, for pointing out the clip and sharing his insights, which have informed this post.)

 

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