If you are a litigant or an observer who comes into court and are observing a medical malpractice case, or a car accident trial or even a wrongful death trial, there will be instances during the course of testimony where one attorney will make an objection and the opposing attorney will ask the judge for sidebar.

“Your Honor, may we have a sidebar please?”

First of all, what is a sidebar?

It's an opportunity for the attorneys to approach the judge and speak to him privately during the course of testimony at trial. It's an opportunity to discuss a legal issue that is of significant importance that is out of earshot of the jury.

Imagine this scenario:

  • A medical expert is on the witness stand.
  • There are six jurors and three alternates sitting and listening to the testimony.
  • The injured victim's attorney, also known as the plaintiffs attorney, is cross-examining the defense's medical expert.
  • During one of the questions that the attorney asks the expert, the defense attorney jumps up and yells “Objection Your Honor! That's an improper question.”

Before the judge has a chance to make a snap ruling, the injured victim's attorney pipes up and says “Your Honor, may we have a sidebar? There's an important reason why I am asking the expert this question."

Now the judge has to decide whether or not to permit the attorneys to approach and to have a side conversation that the jury cannot hear.

When an attorney asks for sidebar, the judge has at least three options:

  1. He can say "No" and simply tell the attorney to move on and ask his next question.
  2. He can say "Yes" and then excuse the jury from the courtroom.
  3. He can ask the attorneys to approach the bench and have a quiet conversation with them off to the side so that the jury cannot hear what they are discussing.

I have been involved in trials where a defense attorney made repeated requests to have sidebar conversations. It can get very annoying if this is abused. The judge will not appreciate it. The jury will certainly not appreciate because it disrupts the flow of testimony.

In some instances, an attorney will use this strategy intentionally to disrupt his adversary's flow. 

What's important to understand is that the jury plays no part in evaluating or deciding legal issues in the case.

The jury's entire function is to determine who is more likely right than wrong.

The jury determines who is telling the truth. The jury is the one to determine what the real facts are. When it comes to making rulings of law and deciding whether certain testimony is admissible or whether evidence is admissible, the judge is the sole arbiter of those decisions.

When legal issues arise about a certain piece of evidence that the judge needs to address, he will often do it in one of two ways. Either he will do it in front of the jury and ask the attorneys for legal argument, but more often than not, he'll either excuse the jury temporarily until the legal arguments are completed or he will have a sidebar conversation with the attorneys.

There are advantages and disadvantages to having a sidebar conversation in the middle of trial.

One of the key advantages is that you have a brief discussion with the judge explaining why you believe your position is correct and the others side's position is wrong. This conversation can last seconds or even a few minutes. It can resolve an important point and allow you the ability to make your point.

The downside to having a sidebar conversation is that whatever the judge decides based upon the conversation with the attorneys at the bench, the details of that conversation are not recorded anywhere. That could be a problem if one side decides to appeal and one of the issues that is being appealed concerns the judge's decision to either allow or disallow certain evidence or testimony at that point during the trial.

If the judge has made a ruling during a sidebar and now permits certain testimony to come out or certain evidence to come in, the attorney who winds up being on the losing side of that particular issue now has an obligation to ask the judge to put that conversation on the record.

On the record...

What that means is that now he will be able to dictate to the court reporter, also known as a stenographer, the details of the conversation that took place during the sidebar in the middle of testimony.

Some judges will allow the attorney to put this conversation on the record before bringing the jury back in. If the jury is still in the courtroom, and the attorneys have had this conversation in a sidebar conversation, then the better practice is for the judge to tell the requesting attorney that he will gladly allow him to place the details of this conversation on the record, but do it at a more convenient time such as when the jury is discharged for lunch or when they are discharged at the end of the day. This way it does not take up any more of their time and you can still continue forward with testimony.

Once the judge has made a decision about the legal issue, he will then ask the attorneys to step back and then place his ruling on the record. The jury is never made privy to what the legal issue is or the legal argument for or against.

The jury's entire focus and entire goal is to evaluate the testimony and evidence in order to determine whether someone was careless, and if so whether that carelessness, or negligence, was a substantial factor in causing or contributing to injury. If the answer is "Yes," then the jury will ultimately determine how much compensation to give to the injured victim for the harms and losses they suffered.

To learn more, I encourage you to watch the video below...

Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer