For many trial attorneys, the days and weeks leading up to a trial follow a familiar routine. Countless hours are spent preparing witnesses, assembling trial notebooks, obtaining experts, preparing motions in limine, developing exhibits, and tending to a host of other issues that just seem to crop up at the least opportune moment. The frenetic activity surrounding a trial occurs for one simple reason: A trial is the main event, the point at which the client, deciding that a plea bargain or settlement is out of reach, relinquishes a significant degree of control over the outcome by throwing it into the hands of the fact-finder. There being a greater risk for an adverse result, trial counsel must maintain a laser-like focus on one singular goal: winning.
In this sort of dynamic, hyper-competitive environment, trial counsel may understandably overlook how an appellate court will view an objection in the context of the entire record. An example will illustrate the point. In a medical malpractice action, the defendant physician requests to move a report into evidence. Plaintiff immediately objects, claiming that the report was written by an individual who has not testified at trial. A sidebar ensues during which time plaintiff and defendant’s counsel quarrel over whether the document falls under the business record exception to the hearsay rule. The court overrules the objection, admits the document into evidence, and the trial resumes. Meanwhile, plaintiff’s counsel walks away from the sidebar, comforted by the fact that at least the issue is preserved for appeal.
