THE OKLAHOMA BAR JOURNAL 58 | SEPTEMBER 2024 In short, the parties at trial are biased. They each see things in their own way and want opposite results. This is why evidence presented during direct examination has the least value compared to evidence brought forward on cross-examination and presented through tangible exhibits. Text messages can be presented as exhibits that everyone can view at trial. The messages are often clear. The parties can each provide their explanations of the surrounding events, but the messages say what they say. Text messages are credible, reliable and unbiased. For these reasons, they are important evidence that can be pivotal in leading to trial outcomes. STIPULATIONS AND PRETRIAL Because text messages are important pieces of evidence, they must be utilized as exhibits at trial. To do so properly, they must be admitted into the record. This can be worked out ahead of trial through stipulations or pretrial rulings. Stipulations come about when counsel agrees to the admission of certain exhibits. Effective trial lawyers aim to keep the judge focused on the issues that matter. They do not want to waste the judge’s precious time and attention on routine matters. If the parties have each identified text messages as exhibits for trial, they can be discussed by counsel prior to pretrial. The text message exchanges must be complete, accurate and identifiable as to the timeframe. If these requirements are met, counsel can then agree or “stipulate” to their admission. This means they will come into the record, and no time will be wasted at trial laying their foundation. When counsel stipulates to the admission of an exhibit, they still have the right to challenge the meaning, context and weight of the text message exchange at trial. A text message can often appear to mean something on its face yet have a completely different meaning once the context is explained. Stipulating to the admission of the messages does not mean the evidence cannot be challenged at trial. It just means the opposing lawyer acknowledges the foundation is proper. Judges realize and appreciate the professionalism of lawyers who provide reasonable stipulations. It also lends greater credibility to the objections the lawyer chooses to bring against non-stipulated exhibits. If counsel is not able to obtain stipulations before pretrial, these can become major issues for discussion with the judge during pretrial. The offering counsel can explain the issue of admission and the foundational requirements. The judge will then allow opposing counsel the opportunity to state and explain their objections. The judge may then issue a conditional ruling as to admissibility or wait to rule at trial. Either way, it gives counsel the opportunity to discuss and explain their positions as to the admissibility of the exhibit during pretrial. Significant trial time can be saved by using stipulations and exploring admissibility during pretrial. If depositions are taken, counsel may use that opportunity to lay the appropriate foundations. It is then easy to point to the transcript for the foundational elements for admission. These foundations can also be established during motion hearings that occur in advance of trial. Successful trial lawyers are always thinking ahead and planning for trial, much like expert chess players who always stay several moves ahead of their opponent. Because text messages are important pieces of evidence, they must be utilized as exhibits at trial. To do so properly, they must be admitted into the record. Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
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