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Publication Date

12-1994

Document Type

Survey Article

Abstract

Previous survey articles have discussed the need for precise objections to preserve an issue for appeal. Sometimes, however, even the most precise objection may not be sufficient. In Garner v. Victory Express, Inc., plaintiff objected to defendant's counsel's comment during closing argument on the lack of any evidence indicating that defendant was unsafe or careless. Apparently, defense counsel was referring to the absence of evidence of prior negligence on the part of defendant's driver. The trial court overruled this objection. Plaintiff argued that because he was precluded from proving defendant's negligence by his prior driving record or from proving the driver's general character for recklessness in driving, defendant should not be allowed to comment on the absence of any such evidence.

Although plaintiff's argument appears improper, the Georgia Court of Appeals did not reach this issue. Rather, the court of appeals determined that plaintiff's objection was insufficient because he failed to state the action he wanted the trial court to take. When a party objects to a question or answer during the course of the examination of a witness, the relief requested is obvious; the question should not be answered or, if given, the answer should be stricken. In the context of a closing argument, however, the desired relief is not obvious. Accordingly, the court of appeals held that requesting the relief desired is incumbent upon a party objecting to an improper closing argument. The relief requested can be an appropriate instruction to the jury, a rebuke of counsel, or a mistrial. The court of appeals acknowledged that plaintiff timely objected and properly stated the grounds for his objection. By not specifying the desired relief, however, he failed to invoke a reviewable ruling. Thus, even though the trial court overruled plaintiff's objection, plaintiff should have stated the relief he desired. In other words, plaintiff's counsel should have exacerbated the situation by futilely requesting specific relief when he saw his objection belittled by the judge in front of the jury. These requests would have created the impression that defendant's counsel's argument raised a valid point.

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