A trial lawyer’s tool box

A carpenter begins a job with the standard tools -- hammer, saw and level. Faced with a tricky task, the carpenter rifles though the tool kit to find the special tool needed to complete the job. Just like the carpenter, the trial attorney's tool box must contain specialized tools to tackle unique and unexpected developments.

The trial lawyer's tool kit must contain all the standard equipment -- facility with the rules of evidence and procedure, mastery of the facts, and knowledge of substantive law. These are the equivalent of the carpenter's hammer, saw and level. No job or trial will be successful without them.

But what do you do when the trial takes an unexpected turn -- a witness changes her testimony or the judge renders an unexpected ruling? You reach into your trial tool box and, if it has been properly provisioned, snatch just the right tool for the job. I suggest the following should be a part of all trial tool kits.

Evidence Code Section 352

This is the trial attorney's Swiss army knife -- adaptable to numerous and sundry situations. The beauty of Section 352 is it is malleable for use in diverse circumstances and the judge has wide discretion in applying it. Under Section 352, a trial court can exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will: (a) necessitate undue consumption of time; or (b) create substantial danger of undue prejudice, confusing the issues, or misleading the jury.

Section 352 is a fallback objection used only after all other objections have been exhausted. It applies to relevant and probative evidence; i.e., admissible evidence. See Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2020) ¶ 8:55.

Application of Section 352 is a balancing act; the judge weighs prejudice against probative value. "Prejudice" does not mean "damaging." "All evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is 'prejudicial.'" People v. Karis, 46 Cal. 3d 612, 638 (1988). Section 352 "prejudice" is evidence which "uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." Id. In jury trials, the judge will consider if the evidence is likely to inflame the jury; e.g., one party's marital infidelities. See Winfred D. v. Michelin N. Am., Inc., 165 Cal. App. 4th 1011, 1035 (2008).

"Undue consumption of time" is obviously a relative term, but commonly arises with cumulative evidence or attempts to impeach on collateral grounds.

"Confusing or misleading evidence" is evidence that may lead jurors astray or cause them to speculate. For example, evidence of compliance with federal safety standards excluded when they did not apply to the car model at issue. Pannu v. Land Rover North America, Inc., 191 Cal. App. 4th 1298, 1320-21 (2011).

When making a Section 352 objection, be sure to specifically identify and explain why the evidence's probative value is outweighed by its' prejudice, time wasting, or confusion to help make a record for any appeal.

Offer of Proof

An offer of proof is a statement by counsel describing proposed evidence and what he or she intends to prove if such evidence is admitted. Gordon v. Nissan Motor Co., 170 Cal. App. 4th 1103, 1113 (2009); Evid. Code Section 354. It usually comes into play after the court sustains an objection, for example, on relevancy, and the proponent describes the evidence and explains why it is relevant. Here is the tricky part: The offer "must be specific in its indication of the purpose of the testimony, the name of the witness and the content of the answer to be elicited." Semsch v. Henry Mayo Newhall Mem'l Hosp., 171Cal. App. 3d 162, 167 (1985). An offer of proof that merely recites the facts to be proved is not enough, "since facts do not constitute evidence. The substance of evidence to be set forth in a valid offer of proof means the testimony of specific witnesses, writings, material objects, or other things presented to the senses, to be introduced to prove the existence or nonexistence of a fact in issue." United Sav. & Loan Assn. v. Reeder Dev. Corp., 57 Cal. App. 3d 282, 294 (1976); see Simons Cal. Evid. Manual Section 1.23. Making a proper offer of proof is vital because failing to do so precludes appealing a ruling excluding evidence.

Offers of proof come in handy when a piece of evidence standing alone is not relevant, but will become relevant, and thus admissible, when later connected up other evidence. By way of an offer of proof describing the upcoming evidence, the judge can conditionally admit evidence "subject to be connected up."

Although perhaps not technically correct, offers of proof can be used speed up a trial. For example, if your opponent calls a witness you can launch a preemptive strike by requesting counsel make an offer of proof of what the witness will say to allow the judge to rule, in advance if the testimony is admissible. The judge can also grant nonsuit or a motion for judgment based on an offer of proof. See Ferris v. Gatke Corp., 107 Cal. App. 4th 1211, 1225 n.7 (2003).

Motions in Limine

These are motions brought "on the threshold" of trial to exclude evidence. Such motions are preemptive attacks to insure the jury does not hear certain evidence. In limine motions serve several purposes -- they avoid the need to object to evidence in front of the jury (jurors often focus intently on evidence that one party tried to exclude). A common in limine motion seeks an order that opposing counsel cannot introduce certain evidence, prohibits witnesses from referring to the evidence, and precludes counsel from mentioning it during voir dire or opening statement. They can provide advance guidance on how to structure trial presentations. For example, wouldn't you want to know if certain testimony will be admitted before you build your entire opening statement around it? Such motions preserve objections for appeal. Written in limine motions can provide more through arguments, allows the judge more time to consider the evidentiary issue, and any comments or questions the judge poses when hearing the motion can provide real insight into the judge's thinking.

A major disadvantage of such motions is they provide advance notice of objections for which opposing counsel is otherwise unprepared. Rather than springing your objection on your unwary opponent during trial, an in limine motion allows the other side to prepare for your attack. Your motion may also be wasted if, as often happens, the judge refuses to rule on it until the evidence develops during trial.

Evidence Code Section 402 Motions

Section 402 motions are close cousins to in limine motions. The purpose of a 402 motion is for the judge to decide preliminary questions of fact upon which admissibility of evidence depends. For example, before parol evidence can be admitted to interpret a contract, the court may hold a 402 hearing to decide the question if the contract was fully integrated. In civil cases 402 hearings are almost always heard out of the presence of the jury.

Voir Dire Witness

If there is a question if a witness is competent to testify or has personal knowledge of the facts, you may interrupt direction exam and ask to "voir dire" (cross-examine) the witness on these foundational facts. For example, before a witness offers expert testimony, the other side may ask questions about the witness' qualifications to provide expert evidence. In deciding whether or not to voir dire a witness be careful not to simply reinforce the witness' testimony by confirming competency or personal knowledge.

Read Adverse Party's Deposition

Instead of merely using a deposition transcript to impeach, an adverse party's deposition can be used for any purpose, including as substantive evidence. CCP Section 2025.620. Just pick up the transcript, tell opposing counsel what pages you are going to read, and read them to the jury. Better yet, have a colleague with thespian skills sit in the witness chair to impersonate the other party and read the answers to your questions. (Make sure you have lodged the original transcript with the court.)

Restroom Break

If your case is dissolving before your eyes, consider requesting a brief recess for a restroom break, proceed with alacrity to the bathroom, and compose yourself in one of the stalls.

Just as a carpenter checks before a job that the tool box is properly equipped, so should the trial lawyer. As has been said, "We are tool-using creatures. Without tools we are nothing, but with tools we are all." 