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.