JANUARY 2025 | 33 THE OKLAHOMA BAR JOURNAL 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. the objection.70 Under this standard, counsel must make an objecting party’s position “abundantly clear.”71 While state courts in Oklahoma appear to take a less rigid approach,72 existing precedent on the level of specificity required is limited. As a matter of best practice, counsel should aim to comply with the federal standard, regardless of the forum. A word of caution regarding off-the-record conferences and communications: Many judges like to work through objections to jury instructions, at least initially, on an informal basis through off-the- record conferences and communications. As the 10th Circuit has noted, this practice can often lead to the creation of an inadequate record.73 While there is nothing wrong with trying to resolve objections informally and by agreement, when that process is done, counsel must ask for the opportunity to state any remaining objections on the record.74 The process will likely involve a fair deal of repetition. When the time comes, counsel must make any on-the- record objections with the requisite specificity, doing so as though any prior off-the-record conferences or communications had never occurred – because, from an appellate perspective, they didn’t.75 A final note regarding jury instructions: The Oklahoma Uniform Jury Instructions (OUJIs) are not infallible. While state law ordinarily requires courts to use any applicable OUJIs when instructing the jury, crucially, that mandate does not apply if the court determines that an instruction fails to “accurately state the law.”76 In that case, “it is the trial judge’s duty to deviate from the OUJIs.”77 Counsel should not hesitate about objecting to OUJI instructions when an instruction “fails to accurately state the applicable law, is erroneous, or is improper.”78 The same is true at the federal level with circuit pattern jury instructions. Such instructions “are merely intended to serve as a guide to assist judges and counsel” – “they are not binding”79 and will often “lag behind [the circuit’s] decisions.”80 CONCLUSION If we were to offer a final word of advice, it would be this: Just do your best. Preserving the record for appeal is hard work. You will likely make mistakes – we all do. But do not let those mistakes distract or discourage you. Stay focused and keep objecting. ABOUT THE AUTHORS Justin A. Lollman is a shareholder at GableGotwals, where his practice focuses on appeals, complex commercial litigation and white-collar criminal defense. Before entering private practice, Mr. Lollman clerked on the U.S. Court of Appeals for the 7th Circuit and the U.S. District Court for the Northern District of Oklahoma. Andrew J. Hofland is a shareholder at GableGotwals, where his practice focuses on white-collar defense and commercial litigation. He previously served as an assistant U.S. attorney for the Northern District of Oklahoma and a Navy judge advocate. ENDNOTES 1. SEC v. Mayhew, 121 F.3d 44, 54 (2d Cir. 1997); see also Myers v. State, 1981 OK CR 12, ¶3, 623 P.2d 1035, 1036 (“The policy considerations underlying this rule [to contemporaneously object] are to draw the alleged error to the attention of the trial court and to provide that court an opportunity to correct any error at the time of trial.”). 2. United States v. Mitchell, 783 F.2d 971, 975 (10th Cir. 1986); Matter of C.A.R., 1994 OK CIV APP 124, ¶20, 882 P.2d 582, 585 (“The purpose of timely objection is to call attention to the alleged error at a time when the trial court could reasonably be expected to correct it”). 3. Brown v. State, 1965 OK CR 84, ¶17, 404 P.2d 78, 81; McAlester Urb. Renewal Auth. v. Lorince, You will likely make mistakes – we all do. But do not let those mistakes distract or discourage you. Stay focused and keep objecting.
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