THE OKLAHOMA BAR JOURNAL 30 | JANUARY 2025 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. not enough,21 the degree of specificity required is not reducible to precise a definition or quantification. It all depends on context. When in doubt, counsel should generally err on the side of specificity.22 The specificity requirement requires parties to state all grounds on which an asserted objection is based. If a party believes a piece of evidence is inadmissible on three grounds but only states one of those grounds in its objection, it has forfeited the other two.23 While they generally cannot independently preserve an issue or objection for appeal, motions in limine and trial briefs can play an important role in building specificity for objections anticipated at trial. It is no secret that the “psychological pressure of low-tone bench conferences” often leads attorneys to make objections in a “truncated” manner.24 If an attorney cannot state the specific grounds for an objection without a lengthy explanation or argument, it can be helpful if the grounds for the objection have already been stated elsewhere in the record, which counsel can then refer back to in stating or renewing the objection at trial.25 Obtaining a Ruling The second cardinal rule for preserving error is to obtain a ruling. While it may seem small, this requirement is nonetheless critical. Appellate courts review rulings, not unresolved objections.26 Thus, after making a proper objection, it is counsel’s “obligation to obtain a ruling ... or such objection is waived on appeal.”27 To preserve error, a ruling must be “definitive.”28 A court’s nonfinal statement about the way it is inclined to rule is not enough.29 Nor is a ruling that is vague or conditional.30 If the court reserves its ruling on an objection, it is the objecting party’s obligation to press for a positive ruling, even if that ruling is simply a refusal to rule.31 Creating a Record When it comes to preserving error for appeal, nothing an attorney does at trial matters unless it is documented in the record. Counsel can make the best objections and obtain the clearest rulings from the court, but if it is not in the record, it is treated as though it never happened.32 This is important because decisions “reviewed on appeal [are] presumed correct unless the contrary is shown by the record.”33 It is counsel’s obligation to create a record adequate for appellate review, ensuring that is clear and complete, both in general and in particular with any legal issues that overtly come to a head at trial.34 A complete record captures all relevant objections, motions, rulings, evidence, nonadmitted exhibits and other proceedings relevant to an issue on appeal. Counsel must ensure that all relevant proceedings are recorded or, if a court reporter is unavailable, otherwise documented in the record through a journal entry or narrative statement of the evidence or proceedings.35 Creating a complete record requires a methodical approach for handling exhibits. All counsel should have a system in place to track in real time which exhibits have been offered and admitted into evidence. But it’s just as important to track how exhibits and materials not admitted into evidence are preserved for the record. While the clerk usually retains copies of nonadmitted exhibits for the record, counsel should confirm that’s the case. The same should be considered for impeachment-only exhibits. Demonstrative evidence, including a witness’s markings on demonstrative evidence, should be preserved, oftentimes with a photograph if the exhibit is of a size not easily maintained with the paper record. For the sake of clarity, all the above should be captured, labeled, referenced accordingly and submitted for inclusion – as an appellate or court exhibit – in the official record. Consistently practicing good trial record hygiene will
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