Bench conferences during trial can have the beneficial effect of keeping unfairly prejudicial information from the jury. But bench conferences also create a risk that key trial events will not be reflected in the record. Careful counsel will be certain that the record reflects objections and rulings made during bench conferences.
Two cases from the Fort Worth Court of Appeals vividly illustrate this danger in different contexts. In Parsons v. Greenberg, one party objected to a line of questions during voir dire and asked to approach the bench. No. 02–10–00131–CV, 2012 WL 310505 at *6 (Tex. App.—Fort Worth Feb. 2, 2012, no pet. h.) A discussion was held off the record, after which the voir dire continued. On appeal, the party argued that its objection was apparent from the context, but the court of appeals disagreed and found that the objection was not preserved. Id.
The court reached a similar result when addressing objections to the admission of evidence. O'Dell v. Wright, 320 S.W.3d 505, 513 (Tex. App.—Fort Worth 2010, pet. denied). One party objected to a question on the basis of relevance, and the court called the parties to the bench. Id. After the conference (which was not on the record), the line of questioning continued. Id. Although the basis for the objection was in the record, the court's ruling was not. On appeal the party argued that the ruling could be implied from the fact that the line of questioning continued. Id. But the court of appeals refused to imply a ruling. Id. Therefore the objection was waived. Id.
So, how can you prevent this from happening to you? First, perform some courtroom reconaissance before trial to figure out whether bench conferences will (or even can) be transcribed by the court reporter. Determine whether the court reporter has a standard practice on bench conferences. Second, if there is a bench conference off the record in which you make a key objection or the court makes a key ruling, ask the court for permission to get the objection or the ruling on the record. Finally, consider filing a formal bill of exception under Texas Rule of Appellate Procedure 33.2. More on this great (and underused) tool in a future post.
-- Rich Phillips, Thompson & Knight, LLP
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