10 Common mistakes that trial lawyers make (Part 2)

10 Common mistakes that trial lawyers make that can lead to appellate disaster, and how to avoid them (Part 2)

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By Jeffrey I. Ehrlich

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Mistake 2: Failing to make appropriate evidentiary objections on summary-judgment motions, or to respond to the other side’s objections

A motion for summary judgment or summary adjudication of issues must be supported and opposed by admissible evidence. (Code Civ. Proc., §§ 437c, subd. (b)(1), and (d); Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741, 74 Cal.Rptr.3d 715, 719.) As explained in the article in this issue by Justice Moore and Steven B. Stevens, objections to evidence in support of or in opposition to a motion for summary judgment or adjudication must follow the format in California Rules of Court 3.1352 and 3.1354.

If you are responding to a summary-judgment motion, pay particular evidence to the moving party’s evidence. If it is not admissible, be sure to raise a proper objection. The objections should be made with the opposition, but the rules also seem to permit raising them “at the hearing.” Be safe, and do it sooner. But don’t go overboard. Only raise evidentiary objections you would be willing to raise at trial. (See, e.g., Nazir v. United Airlines, Inc. (2009) __ Cal.App.4th __, __ Cal.Rptr.3d __, 2009 WL 3235159, 7. [Appellate court, in discussing moving party’s objections to opposing party’s evidence: “Can this be serious? Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?].)

If you don’t raise the objections timely at the hearing on the motion, you won’t be able to raise them later on appeal. Section 437c provides that a party who fails to raise evidentiary objections at the hearing waives those objections on appeal. (Code Civ. Proc. §§ 437c, subds. (b), (d); Mediterranean Const. Co. v. State Farm Fire & Cas. Co. (1998) 66 Cal.App.4th 257, 263, 77 Cal.Rptr.2d 781, 784.)

And while it goes without saying, if the other side raises evidentiary objections to your opposition evidence, read them and be ready to either try to cure the defect, or at least to respond at the hearing. Sometimes, if the problem is simply a lack of foundation, or some other minor issue, a supplemental declaration can cure the problem. If you can cure the problem at the hearing, and you do not do it, it can make it impossible to do so on appeal.

Mistake 3: Failing to get rulings on your evidentiary objections on summary-judgment motions

No matter how well taken your evidentiary objections are, it won’t matter if the trial court does not rule on them. The law places the responsibility for obtaining a ruling on the evidentiary objections on the party making them. If no ruling is made, the objections are deemed waived on appeal. (See, e.g., Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 576, 57 Cal.Rptr.3d 204, 212.) The only exception is if the record clearly reflects diligent efforts by counsel to obtain a ruling, and a refusal by the trial court. (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784-785.)

Mistake 4: Failing to state the proper basis for an evidentiary objection at trial

The trial lawyer must make proper, timely objections to evidence at trial, and where appropriate, move to strike. (Civil Appeals, § 8:270.) The lawyer must obtain a ruling on the objection to preserve the issue for appeal. (Id.) The objection must be made on the proper ground. An objection made on one ground does not preserve other grounds for appellate review. (Wegner, Fairbank, Epstein, et al., California Practice Guide – Civil Trials & Evidence (Rutter 2008 rev.) (“Civil Trials”) § 8:3317.) An objection that offers no legal grounds preserves no grounds for review. (Id., § 8:3319.)

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Appellate lawyer, Jeffrey EhrlichCalifornia appeals lawyer, Jeffrey I. Ehrlich, is the principal of the Ehrlich Law Firm with Los Angeles County law offices. He is certified as an appellate specialist by the California Bar’s Committee on Legal Specialization, and is the editor-in-chief of the Consumer Attorneys of Southern California’s Advocate magazine.