When you want to object or argue an objection but you don’t want the jury to hear, you may want to ask the judge’s permission to approach the bench. But beware: the judge may not like it and the jury could get annoyed.
There are situations in which bench conferences are appropriate, including these examples:
The proponent asks a question, the opponent objects, and the proponent needs to explain factually why the evidence is admissible.
The opponent sees that an objectionable question is coming and objects before it’s asked; the opponent wants to approach the bench to explain the objection. See, e.g., Los Angeles Ct R 3.107.
The proponent knows that his or her next question may be objectionable and that a curative instruction won’t suffice.
But even in these situations, request an in-chambers conference when you anticipate a lengthy discussion.
Don’t get too comfortable with bench conferences, because there are some important downsides to using them. First, many judges don’t like them and discourage the use of them in their courts. You’ll need to figure out your judge’s preference before trial by asking other attorneys or the court clerk. And don’t forget that local rules may regulate the use of bench conferences. See, e.g., Los Angeles Ct R 3.123.
Secondly, juries don’t like bench conferences. They tend to find such breaks in the trial annoying and boring. The jury may also resent that information is being withheld from them, which could translate to them turning on the attorney who asked to approach the bench.
Keep in mind that bench conferences are just one way to combat objections. You should also consider motions in limine and offers of proof. All of these methods are discussed in CEB’s Effective Introduction of Evidence in California, chap 3.
This material is reproduced from Julie Brook’s blog entry, Approach the Bench, on the CEB Blog December 7, 2012. Copyright 2012 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar - California. For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site: CEB.com.