Whether they practice in Beaumont, Texas, or San Diego, California, attorneys sometimes have a hard time exercising restraint when it comes to their cases. After living with a case for months (or sometimes years) and having ample time to study every possible scrap of evidence, it can be difficult for some attorneys to focus on the issues that will truly decide a case. This sometimes results in trial counsel submitting seemingly countless objections to opposing evidence, even when the bases for some objections are questionable.
A recent order out of the Eastern District of Texas, however, demonstrates the potential folly of throwing the kitchen sink of evidentiary objections at the court.
In Affinity Labs of Texas, LLC v. Ford Motor Company (Civil Action No. 1:12-cv-00580-RC, E.D. Tex.), a patent infringement case, the plaintiff submitted a 39-page exhibit list of 979 exhibits. United States District Judge Ron Clark stated that out of the first 360 exhibits, defendant Ford Motor Company objected to 250 of the exhibits. After that point, the Court stopped counting the exhibits.
Compounding Ford’s problem was the fact that its counsel did not specifically state either the objections or the specific portion of the exhibit to which Ford was objecting. Ford instead used a code system that consisted of 16 different symbols, apparently all letters (for example, objections to one exhibit were identified as “R, P, H, F”). Although Ford provided a “secret decoder ring” for the symbols, Judge Clark was not impressed by this system, as it utilized objections not found in the Federal Rules of Evidence and required repeated reference to the “secret decoder ring,” due to the multiple objections to each exhibit.
And while Judge Clark acknowledged - with tongue in cheek - that plaintiff Affinity only objected to about 40 percent of Ford’s exhibits and used Evidence Code numbers rather than a cumbersome code system, he found that Affinity also commonly failed to identify whether the objection was to either a portion of an exhibit or to the entire exhibit.
Unsurprisingly, Judge Clark admonished both parties:
He further noted that Rule 103 requires that the basis of an objection must be “apparent from the context,” but that the context is not that of an attorney who had significant time to sift through every piece of evidence and develop “subtle, but undisclosed” theories to support objections.
Finally, the parties also failed to adhere to a prior order, which directed them to meet and confer on evidentiary issues, including the authenticity of documents, and stated “the court is confident that its time will not be wasted with matters such as hyper-technical objections from a party about the authenticity of documents that party has produced [in discovery].”
In the end, Judge Clark ordered that all of Ford and Affinity’s objections were waived for failure to adhere to the Federal Rules of Evidence or the court’s prior order. The order permitted the parties to meet and confer and submit objections to a maximum of 15 exhibits (though exhibits could be representative of groups of exhibits).
This order reminded me of some advice that was offered by a panel of San Diego Superior Court judges during an Association of Business Trial Lawyers dinner several weeks ago here in San Diego. During the seminar, the judges (including Hon. Timothy B. Taylor, Hon. Joan M. Lewis and Hon. Ronald S. Prager) discussed various topics related to motion practice. The judges asked if anyone in the audience thought it was a good idea to submit hundreds of objections to evidence submitted in support of an opposing motion for summary judgment, including multiple technical and/or questionable objections (think “lacks foundation” without any explanation) submitted simply to avoid waiver of an insignificant issue on appeal.
I paraphrased that slightly, but the premise of the question was not intended to encourage much debate. The judges’ answer – especially in underfunded and overworked California state courts – was an overwhelming “No.”
Judge Taylor, ringing similar to his federal counterpart Judge Clark, told the audience that attorneys might mean well by preserving every possible issue for appeal, but that they are in fact doing a disservice to their clients by burying the handful of objections that really matter (the golden nuggets) in a morass of insignificant objections. The better practice is to determine the objections that matter and will help win the motion, and only present those to the court. Judge Taylor in fact advised that attorneys should generally limit themselves to 10 to 12 objections when opposing a motion or replying to an opposition.
In summary, this post is not advising that attorneys always limit themselves to exactly 10 to 15 objections for either pre-trial motion work or when submitting objections to opposing exhibit lists. As always, different circumstances might call for different approaches. But lawyers should take note that more is not always better. And, as in the Affinity case, you might serve your clients better by exercising some restraint.
Image Credit: By Chris Potter (Flickr: 3D Judges Gavel) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons.