Ever found yourself in that situation where you are not only losing an argument or motion, but it seems mysteriously like the judge is bent on preventing you from making a decent record of your position?
In Litigation, the wise Professor McElhaney identifies games judges commonly play with attorneys in the interest of preventing them from making a record which can be used to challenge the ruling on appeal. He writes, “If [the judge] can force lawyers to waive objections or forget to make offers of proof . . . it will improve [the judge’s] batting average with the court of appeals.” (p.294) Here are a few such games:
1. Cutting off, under the guise of preventing speaking objections, any argument or objection.
2. Refusing to permit offers of proof at the time an objection is sustained; requiring counsel to wait until the next recess or next day of trial, when they’re likely to forget.
3. Insisting that exhibits be offered and admitted only at the end of the entire trial. This “forces lawyers to waive most of their evidentiary objections about exhibits. At the end of trial they are thinking about their final arguments, not about foundations or rulings.” (p.295)
4. Making “weasel” rulings on evidentiary objections: “I’ll let it in for what it’s worth.”
5. Making noncommittal rulings. “I’ve heard enough, let’s proceed.” Or, “All right, I understand your positions; let’s move along.” These aren’t rulings and, regardless what happens next (i.e., the objected-to question is answered and/or the jury hears the evidence), it will be all but impossible for an appellate court to identify an error, since the judge shirked her responsibility to make a ruling.
Recognizing your judge is playing one of these games will help you to maintain your resolve to make an effective record. Oh, and if you’re in a California state court, be sure to order and pay for that court reporter, otherwise you’re not going to be making a “record” at all.