Professional Documents
Culture Documents
Special Report - Objections PDF
Special Report - Objections PDF
Most lawyers leap from their seats to yell “Objection!” the instant they hear objectionable material -- but does
yielding to that initial impulse actually doing your case more harm than good?
One of the major skills you they’re still in law school. You’ve
developed during law school was seen them in trial -- as soon as
how to spot issues. You remember they spot an issue, they announce
the FIRAC (Facts - Issue - Rule - it to the world. (”Objection! That’s
Application - Conclusion) method a leading question” “Objection!
of case briefing from law school, That asks for hearsay!” “Objection!
don’t you? Back in law school, That calls for speculation!”)
your issue spotting skills Te c h n i c a l l y, t h e y ’ re r i g h t ,
determined how well you would because the issues that they spot
perform on the final exam. The in trial can be objected to. But to
more issues you spotted, the become a skilled advocate, you
better your chances of passing the need to move beyond mere issue
exam. spotting skills. To become a top-
However, in trial, superlative tier trial lawyer, you must be able to
issue spotting skills can sometimes analyze the admissibility of every Before you win your next
become a detriment to your case. piece of evidence and every word jury trial, sign up for your
The reason they can actually harm free subscription to Trial
of testimony, and then answer the Tips Newsletter by visiting
your case is because many trial following three questions: www.TrialTheater.com today!
lawyers are tempted to act like “You Can Object” continued on page 2
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“You Can Object” continued from page 1 example, in a single witness have lost the “sandwich” and she
“Can you object?” examination, you may spot 23 could have had the benefit of first
leading questions. Technically, and final closing arguments.
“Should you object?”
they’re all objectionable. But
“When will you object?”
before y ou obje c t , y ou a s k #3. WHEN WILL YOU OBJECT?
Most importantly (and perhaps yourself, “Does that evidence hurt If you’ve decided that you should
most difficult), you must be able to my case?” If not, maybe you object, you should next determine
conduct this entire analysis within shouldn’t object. when to object. Usually, you’ll
a split-second. You can’t unring a Too often, attorneys object to object as soon as you realize you
bell and you can’t stuff toothpaste evidence that doesn’t hurt their “can” and “should.” For example,
back in a tube -- if you don’t case, and end up shooting if your opponent tries to ask the
object in time, the jury will hear the themselves in the foot. For witness, “What did you hear Mort
objectionable material, and it will example, a while ago, a friend of Anderson say to Mike Brown about
be too late to fix the damage. mine was in trial, prosecuting a who started the fight?” you’ll
That’s why trials can be so tiring, misdemeanor case against a probably object by the 7th word in
because you’re expected to have relatively inexperienced defense his question.
your brain redlining at 9000 rpm But deciding when to object
throughout the entire trial, spotting isn’t always as clear-cut as that. If
every issue and deciding whether your opponent is asking leading
or not to object. questions, but you’ve decided they
don’t hurt your case, maybe you
#1. CAN YOU OBJECT? won’t object at all. Or maybe you
Every trial lawyer should know let it go for 7-8 questions, and then
the answer to this question. This tell the judge, “I haven’t objected
question draws upon your issue up until this point, but, Objection!
spotting skills and your knowledge -- Counsel is asking only leading
of the evidence code. The questions.”
stronger your knowledge of the Many times, your objection
attorney. Partway through his
evidence code, the stronger your needs to be heard before trial.
cross-examination of her only
trial skills will be. Every time your You’re afraid that if the jury gets
witness, this new attorney tried to
opponent or a witness is about to even a whiff of the evidence, it will
introduce a photo into evidence.
say or do something objectionable, ruin your case. Examples include
My friend immediately recognized
you must immediately recognize confessions from your client,
three reasons why the photo
the issue and identify why it’s previous bad acts, improperly
should not be admissible, and
objectionable. You need to seized evidence, evidence of
said, “Objection!” The judge
develop this skill before you get to agreed, and didn’t allow the photo remedial repairs, etc. If your
trial. By the time you get to the into evidence. objection falls into this category,
courtroom, it’s too late to start It sounds like she did the right you need to file a motion to
reading through the evidence thing, doesn’t it? Something was suppress or a motion in limine
code. You won’t have time to look objectionable, and she kept it out before trial to preclude the
up the proper objection or review of evidence. But, before you make admission of the evidence.
an evidentiary predicate. That a final decision, you need to know Or maybe you don’t “object”
information must be committed to about a rule of criminal procedure until closing argument, when you
memory and available for instant that applied to her trial: If a tell the jury, “I could have objected
access. defendant didn’t introduce any to his questions, because they
#2. SHOULD YOU OBJECT? evidence, he was entitled to both were all leading questions... The
If you know the answer to this the first and last closing arguments witness wasn’t telling you the
question, then you’re one of the (”the sandwich.”) By objecting, story, her attorney was. But the
better trial lawyers in your she prevented the defense from reason I didn’t object was because
courthouse. Just because the introducing the photo. But the I wanted you to see how Mr.
evidence is objectionable doesn’t photo didn’t really hurt her case. If Shyster had to spoonfeed the
mean you should object. Not the defendant had entered the testimony to her. The witness
every issue really matters. For photo into evidence, he would “You Can Object” continued on page 4
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Here’s a four-part process to follow when your opponent screams, “Objection!”
1. Pause. Take a breath. This isn’t the end of the world. answer will definitely be improper (For example: Your
Sometimes, more experienced trial lawyers will object police officer almost mentions suppressed evidence; your
simply because they’re trying to rattle the cage of newer client is about to mention insurance or improper character
attorneys. Don’t let them get to you. You don’t need to evidence) don’t automatically rephrase your question
instantaneously respond -- take a moment to relax without giving the judge a chance to rule. If you do
before you say anything. need to rephrase, give the witness guidance to
2. Think. This is the most important part of help him avoid mentioning the objectionable
the process. Why should the judge admit your material. “Don’t tell us what Logan said, but
evidence? You don’t want to open your mouth did the two of you have a conversation?”
to respond until you have a compelling reason. 4. Respond. Ignore the temptation to
Take a moment or two to think through your respond directly to your opponent. Instead,
response and tell the judge why your evidence is speak directly to the judge and show him why
relevant, reliable, and right. [For help, see “The Three your evidence is Relevant, Reliable, and Right.
R’s of Admissibility” on page 4] Begin your response with a phrase like, “Your Honor, it’s a
3. Rephrase only if obviously necessary. Sometimes, business record exception...” or “It’s not hearsay
you won’t have a good response. But too often, lawyers because...” If possible, keep your response limited to a
don’t even wait for the judge to rule. They treat every single sentence phrased in non-legal terms (for the benefit
objection as if it’s a negative ruling and abandon their line of the jury). If more explanation is required, ask for
of questioning. Unless you know that the witness’s permission to approach the bench.
ABC’S OF OBJECTING SAY “OBJECTION!” GIVE A REASON ASK FOR A REMEDY OFFER OF PROOF
Stand up and stop State your legal If your objection When appropriate,
the testimony basis for the is sustained, if your objection
before it gets objection. what do you want is overruled you
any worse by Unless your judge the judge to do? might need to
getting the word allows speaking Strike testimony? proffer some
out of your mouth objections, keep Give a curative additional
loudly and it short (i.e. instruction? information for
clearly “Hearsay”) Declare mistrial? the appeals court
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“You Can Object” continued from page 2
didn’t know anything about the Want to get your evidence admitted? Want to keep your opponent’s
case, and you should disregard evidence out? Here’s an entire Evidence class in 1000 words or less!
what she said... or, pardon me, Nope, we’re not talking about How much more broadly could they
what she didn’t say.” readin’, ‘ritin’, and ‘rithmetic. Here are
have defined what’s “relevant”?!?
During most trials, you probably the three “R’s” you should consider Basically, everything “relevant” should
shouldn’t object as often as you when analyzing the introduction of be admissible, unless specifically
could object. Intellectually, jurors evidence. Is the evidence Relevant? prohibited by law. What is the material
Is it Reliable? And is it Right to admitfact that you are trying to prove? If
may understand that you’re going
the evidence? you can show any reason why your
to object during trial because your
proposed evidence proves or
opponent is trying to admit #1. IS IT RELEVANT? disproves a material fact in the case,
improper evidence. But Federal Rule of Evidence 401 your evidence should be relevants.
emotionally, many of them may defines relevant evidence as any
feel that you’re objecting because evidence “having any tendency to #2. IS IT RELIABLE?
you’re trying to prevent them from make the existence of any fact that is The most common reason why
hearing the truth or because you of consequence to the determination evidence won’t be admissible is
know the evidence hurts your of the action more probable or less because it’s not reliable. Jurors
case. Consider all the probable than it would be without the should be able to make their decision
ramifications before you say, evidence.” Rule 402 says that “All based on the most reliable information
relevant evidence is admissible, available. Why is hearsay evidence
“Objection,” and then ask
except as otherwise provided by the generally excluded? Because it’s
yourself, “Can I object? Should I
Constitution of the United States, by secondhand information. It’s not as
object? And if so, when will I
Act of Congress, by these rules, or by reliable as firsthand information. You
object?” other rules prescribed by the Supreme can’t cross-examine the person who
Court pursuant to statutory authority.” actually observed the event, only the
person he relayed it to. The rules of
evidence say, “Hold on a second…
That’s not fair.”
For those same reasons, evidence
which has not been authenticated
shouldn’t be admissible. If you have
an analysis of the alcohol content in
someone’s breath, it wouldn’t be
proper to admit that evidence if the
testing instrument was unreliable, or if
it had been tampered with. Jurors
shouldn’t have to rely upon the opinion
of someone who doesn’t have the
credentials to give them an opinion, or
who doesn’t have a sufficient basis of
information to render a proper opinion.
If no one can prove the authenticity of
a document, the jurors shouldn’t be
allowed to read it.
On the other hand, some things are
so reliable, that courts can take
judicial notice of them. June 9th, 1937
w a s a We d n e s d a y. A n y o n e a n d
“The Three R’s” continued on page 5
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“The Three R’’s” continued from page 4 Gruesome photos. The photos tend But the jurors would jump to a
to prove a material disputed fact – that conclusion and shortcut the
everyone can confirm that. There’s no the victim is dead. They’re reliable – deliberation process – that’s not right.
need for a party to invest resources your medical examiner will testify that
p r o v i n g t h a t J u n e 9th w a s a Privileges. Anything a patient tells
these are the photos she took during
Wednesday, because there’s no room their psychiatrist is probably
the autopsy. But it may not be right to
privileged. Society thinks that people
for debate. admit them. They may be so
should be able to talk freely in
The question of reliability
that situation, in hopes that they
will probably serve as the
will be cured or find a solution to
basis for the bulk of your
their problems. So, what they
evidentiary objections, and s a y i n c o n fi d e n c e w i l l b e
that’s why we invest so much privileged. What a witness tells
time forming all of those his attorney, psychiatrist, priest,
predicate questions. doctor, accountant or wife may
be very relevant and reliable, but
#3. IS IT RIGHT? it doesn’t mean it should be
Finally, Federal Rule of admissible. Society creates
Evidence 403 states that these privileges to improve our
relevant evidence may be daily life.
excluded if “its probative value is gruesome that the jurors would have a
visceral, emotional reaction to them, The Fruit of the Poisonous Tree.
substantially outweighed by the
and the photo alone would grossly Evidence that is otherwise relevant
danger of unfair prejudice, confusion
affect the verdict. Well, that wouldn’t and reliable may be kept from the jury
of the issues, or misleading the jury, or if it was obtained pursuant to an
be fair, would it? To fix the problem,
by considerations of undue delay, improper search and seizure.
the court may allow the photos if
waste of time, or needless
they’re black and white, limited in size, This simple three point analysis
presentation of cumulative evidence.” or perhaps limited in quantity.
What does that mean? It means that (Relevant? Reliable? Right?) is a
even though the evidence is relevant Character. Is it unfair to discuss a good starting point for analyzing
and reliable, it may still be excluded if person’s bad character? When a whether your evidence should
defendant has 56 prior convictions for admissible or not, and also helps you
it’s not right to admit it. Here are
DUI, it’s probably safe to assume that decide whether to object to your
some examples:
he was driving drunk this time, too. opponent’s evidence.
One way for judges to avoid being overruled by the appellate courts is to give you a “non-ruling.” It looks like a
ruling... It sounds like a ruling... But it’s a duck. Here’s how to detect non-rulings, and how to respond.
Judges are just like everyone else: They hate to be told, “You’re wrong.” In fact, some judges are so afraid of having
their rulings overturned by the appellate courts that they’ve decided to take an easy way out: They’ve stopped making
rulings! After all, if there isn’t a ruling, there’s nothing for the appellate court to overturn, right? Here’s a typical scenario:
Attorney #1: What happened at the executive council meeting?
Witness: Well, I heard that...
Attorney #2: Objection! Hearsay!
Attorney #1: It’s not being offered for the truth of the matter asserted, your Honor.
Judge: Move it along, counselor.
Attorney #1: Ok. Let’s talk about [different subject]...
Situations like this arise every day in courtrooms around the country. Using a combination of body language, tone,
and other non-verbal behaviors, judges subtly encourage lawyers to rephrase questions or move on to new topics.
When you’re caught up in the heat of battle, it feels like the judge has issued a ruling, so you rephrase your question or
“The Judge has Spoken” continued on page 6
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“The Judge has Spoken” continued from page 5
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Just because the judge has ruled doesn’t mean the battle is over. Victory isn’t within your grasp yet. At best,
you’ve earned a temporary reprieve. Here’s what you need to do after the judge has ruled.
IF YOUR OBJECTION IS SUSTAINED IF YOUR OPPONENT’S OBJECTION IS OVERRULED
Congratulations, the judge agreed with your If the judge overrules your opponent’s objection,
argument! But don’t tell the judge “Thank you” for the don’t just tell the witness, “You may answer the
ruling -- the judge wasn’t giving you special treatment by question.” Instead, repeat the entire question for the
ruling in your favor, he was just following the law. If you witness.
thank the judge for ruling in your favor, you may get Repeating the entire question serves several
rebuked, so instead, quietly sit back down at your table, important functions. First, it helps eliminate the
try not to gloat, and get ready for your opponent’s next possibility of any misunderstanding. If your judge
move. conducted a bench conference before ruling on your
Even though your objection has been sustained, it’s
opponent’s objection, several minutes may have passed
essential that you keep objecting because the battle’s not
between the time the question was asked and the
over yet. You still need to keep your ears open to ensure
witness is permitted to answer. In the meantime, the
that your opponent abides by the court’s ruling. If your
witness (as well as the jurors) may have forgotten what
opponent attempts to introduce the evidence from a
different angle or through a different witness and you fail question you asked. By asking the question a second
to object, you will be deemed to have waived your time, you get everyone back on the same page,
objection. eliminating the chances of a potential misunderstanding.
Finally, you need to ask for a remedy. Do you want Second, repeating the entire question bolsters (ever
the testimony stricken? A curative instruction? A so slightly) your credibility by reminding the jurors, “My
mistrial? Unless you ask for a remedy, the court can’t fix opponent was wrong, I was right, and the judge has
the problem. agreed to let me ask the question.”
Finally, repeating the entire question allows you to
IF YOUR OBJECTION IS OVERRULED regain control of the courtroom, which shows your
First, let’s examine whether your objection is opponent that you won’t be rattled by his objections.
premature. For example, let’s assume you object to the
question, “Did the babysitter make any statements to the
police?” The judge would be correct for overruling your IF YOUR OPPONENT’S OBJECTION IS SUSTAINED
objection, since technically, the question only calls for a First, pause for a moment. You don’t need to
“Yes/No” response. immediately ask your next question. Take a moment to
But just because you’ve been overruled doesn’t mean clear your brain and prepare for the task ahead.
you shouldn’t continue objecting. If your opponent asks Second, rephrase your question if possible. There
about the content of her statement (which would be may be an easy way to avoid the objectionable
hearsay), be ready to stand up and object again. material, so give your witnesses some guidance to
Even if your objection was timely, the judge may not avoid the potential landmine in their testimony. (ex.
have heard enough to sustain your objection. Be ready to “Without telling us what the babysitter said, can you tell
object again if the prejudice continues, perhaps even us if you talked with her when you arrived home?”)
asking for a continuing objection. For example, if the judge Next, you’ll want to think if there’s another way you
overrules your hearsay objection, and your opponent can make the evidence admissible. Just because
intends to ask 23 follow-up questions about the evidence is inadmissible for one reason doesn’t mean it
statements, you can ask the judge for a continuing isn’t admissible for another reason. (The best time to
objection so you’re not jumping out of your seat with each
new question. A word of warning, however. If you’re conduct this analysis is before trial).
asking for a continuing objection, you need to be very If you can’t think of another method to admit the
specific about what you’re objecting to. “Your Honor, I testimony, make an offer of proof if necessary,
object to this line of questioning” is insufficient. “Your presenting caselaw for your most important evidentiary
Honor, we ask to have a continuing objection on the rulings. (Again, hopefully you’ve handled the important
grounds of ‘hearsay’ to any questions counsel asks about evidentiary issues before trial!)
the babysitter’s statement” is more specific. If all else fails, smoothly transition to another
Finally, be prepared to make an offer of proof so that section of testimony if you can’t rephrase your question
you can protect your appellate record. If an offer of proof is or think of another way to admit the testimony. It may
necessary, ask the judge for the opportunity to proffer the not be the most desirable result, but at least you’ll look
evidence outside of the jury’s earshot. like you’re still in control of the courtroom.
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Curiosity killed the cat. If you object at the wrong time, or for
the wrong reasons, it might kill your case, too! The lead defense attorney listened
Q: “Tell us, Mrs. Bear -- What did you HEAR Bebe intently as the prosecution’s star witness
Behr SAY?” testified. He had spent hours honing his
questions and preparing his cross-
A: “I HEARD him SAY that someone had slept in his examination of the witness. It had been
bed and eaten his porridge.” a late night, but he felt ready for the
Even if your legal education consists exclusively of watching challenge. He and his trial partner both
People’s Court re-runs, you probably know the proper objection to knew that unless they could successfully
that question. If you’re like most lawyers, you wanted to leap out of cross-examine the witness and show the
your chair and yell, “OBJECTION! Hearsay!” before the witness had jurors why his story wasn’t believable,
a chance to answer. they didn’t stand a chance.
Technically, you’d be correct. The question does ask the About halfway through the direct
witness to relay an out-of-court statement. Presumably, the examination, the prosecutor asked,
attorney wants the jury to believe the statement is true. If you “What did you hear the man say?” As
object, you’d be right -- the statement meets the classic definition the witness started to answer, the
of hearsay. If this was an Evidence test, you’d get an A+. defense team’s second-chair attorney
rose to his feet and stated, “Objection!
But should you object? Hearsay!”
When you successfully object and prevent the jurors from The judge sustained the objection, and
hearing information, it’s only natural for them to be curious about the rest of the examination proceeded
what they didn’t hear. Don’t believe me? Well, let me illustrate by without incident. After the prosecutor
telling you a story about something that happened to me last week. asked his final question, the judge asked,
My friend’s office is downtown, and his personal assistant is a “Would defense counsel like to cross-
woman named Susie. Susie is a tall brunette with a commanding examine the witness?”
presence. She speaks with just a hint of an accent, but I can never Rising from his chair, the lead defense
quite place its origin. Not quite Russian and not quite Romanian, attorney said, “Yes, the defense would
“Curiosity” continued on page 9 like to cross-examine, your Honor.”
“What do you think you’re doing?”
asked the judge. “Your co-counsel spoke
and handled the objections during the
direct examination. There’s only one
attorney per witness -- your co-counsel
will conduct the cross-examination.”
Over the defense’s objection, the
second-chair attorney was forced to
conduct the cross-examination. The lead
trial attorney was relegated to sitting
quietly while his trial partner stumbled
through the questioning. Ultimately, the
cross-examination was unsuccessful,
and months later, the appellate courts
agreed with the judge’s method of
controlling his courtroom when they
affirmed the defendant’s conviction.
THE LESSON: Whenever you’re
trying cases with multiple attorneys
seated at the courtroom table, unless
you’re prepared to cross-examine the
witness, DON’T OBJECT TO
ANYTHING THE WITNESS SAYS!!!
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“Curiosity” continued from page 8 sliding the passports and syringe into pay more attention to it than if you
she somehow manages to sound both a desk drawer. She quickly said hadn’t objected.
seductive and dangerous at the same something in Russian to the guy on Take a look at our first example,
time. I learned that she worked with the phone, and then, in English, she and Bebe Behr’s statement. Should
the C.I.A. for several years, but “I can’t said... you object to this obvious hearsay
talk about it” is all she ever says about AT T O R N E Y: “ O B J E C T I O N ! statement? Maybe not. Once you
her previous job. Anyway, last HEARSAY!!!” prevent Mrs. Bear from talking about
Thursday I was over at my friend’s Bebe Behr’s statement, the jurors are
office for a planning meeting. The JUDGE: “Objection sustained. going to be a little curious about what
meeting finished around 7 o’clock, and The jury will not speculate as to Bebe Behr said. They might even
I left. I met up with some other friends what the witness may have said if think, “I bet that whatever Bebe Behr
for a bite to eat, but just as I was the witness had been allowed to said probably hurts that attorney’s
about to head for home, I realized that answer.” case. Otherwise, why object to it?”
I’d left my briefcase up in the Dang -- I guess I can’t tell you the And here’s the danger: What’s
boardroom. rest of the story. But that’s okay. The going to happen when Bebe Behr
I thought his office would probably judge ruled that you can’t guess about testifies in this trial? When he gets the
be closed, but I really needed some what she might have said, so I’m sure chance to tell the jurors what he said
stuff in my briefcase for a court you aren’t going to think about it to Mrs. Bear, the jurors will hear what
hearing the next morning, so I took a anymore. Since the judge ordered you he said. They will hear about the bed
chance and went back to his office. not to think about it anymore, your that was slept in. They will hear about
When I stepped off the elevator, I curiosity is completely eliminated, the porridge that was eaten. And
could see that the front door of his right? those jurors who thought Bebe’s
office was slightly open. From the statement would hurt your client are
No? You say you still want to
hallway, I could hear Susie talking on going to pay more attention to it and
know what she said? Really? Huh...
the phone. I didn’t understand what attach more significance to it.
That’s interesting, because the judge
she was saying, because she was ordered you not to guess what she Here’s the bottom line: Don’t
speaking Russian or something, but might have said if I’d been allowed to object just because you can. Object
she was speaking quickly and it continue. because you should. If the evidence
sounded like she was giving orders to is going to be admitted anyway,
someone. As I entered the office, her Let me ask you something. Later
through some other means, ask
back was to me, and she was looking today, if you find out what it was that
yourself if you should object. Ask
she told me, do you think you will pay
at some type of banking website on yourself what’s going to happen if you
more attention to it, or less attention?
her computer screen. In front of her keep the evidence out, but only
Do you think you’ll attach more
were 3 or 4 passports spread out temporarily. Don’t evaluate your
significance to what she said, or less
across the desk, and next to the objections exclusively from a legal
significance?
passports was a small syringe filled perspective -- evaluate your
with a brown liquid. She must not The same thing is true with your objections from a tactical perspective
have heard me enter, because when I jurors. If you object to something and and from a common sense
said, “Pardon me,” she appeared keep it out of evidence, you better perspective. Think about the case
startled. She quickly stood up, make sure it stays out of evidence. If from the jury’s perspective, and then
blocking my view of the computer it gets into evidence through some
ask yourself: “Should I object?”
screen, while at the same time deftly other means, the jurors may actually
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Years ago, at the beginning
of my career, I was trying a It happens in courtrooms every lawyer and judge depends upon Prof.
case against an attorney who Charles Ehrhardt’s Florida Evidence.
started yelling and screaming
day. Evidence that shouldn’t be
Get the copy that corresponds to your
during closing argument. admissible is shown to the jury practice area, and invest the time to
Much of his argument because opposing counsel fails to read through it.
consisted of pointing at one of
my witnesses (who had object, or objects too late...
returned to the courtroom Plaintiff’s attorney: Mr. Jones, #2. RAISE THE RIGHT OBJECTION
ga l l e r y t o w a t ch c l o s i n g what did you hear Mrs. A general “Objection!” isn’t sufficient.
arguments) and accusing the Thompson say? Sure, if the judge sustains your
witness of a variety of objection, then any legitimate reason
offenses. Periodically, the Mr. Jones: I heard her say that will be upheld on appeal, but if you’re
attorney raised his voice so the defendant decided not to fix
overruled, “relevance” will be the only
loud that the jurors leaned all the safety device because it was
too expensive and he didn’t care objection you’ve preserved. So, if the
the way back in their seats,
if anyone got hurt. proper objection should be “hearsay”
unsuccessfully trying to avoid
him. or “insufficient predicate,” when the
Defense attorney: Umm, judge overrules your objection, it will
Several attorneys from my
objection? Hearsay? I mean, be properly overruled, even though
office were seated behind me,
“Objection! Hearsay!”
and they kept whispering, there’s another valid basis for
“Object! You’ve got to object! Once the jury hears the evidence, sustaining the objection.
What he’s saying is it’s too late. Objecting afterwards is
improper!” like closing the barn door after your #3. KNOW HOW TO OBJECT
They were right. His
h o r s e e s c a p e s , a n d c u r a t i v e Once you’ve mastered the evidence
comments were improper. But
I didn’t object. instructions are about as effective as code, you’ll have a much better idea
Instead, I told my friends, trying to squeeze toothpaste back of what’s objectionable and what’s
“Just watch the jurors… They into the tube. Objecting after-the-fact not. The next phase is to determine
hate him.” Sure enough, after doesn’t help your case. You need how to object. Most judges won’t
a favorable verdict, one of the your objections to be timely. Here are a l l o w y o u t o m a k e s p e a k i n g
jurors returned to the four tips for improving your courtroom objections (ex. “Objection! That
cour troom to watch the objections, so that you can be as fast evidence shouldn’t be admissible
followup proceedings. When I on the draw as you should be. because I can’t cross-examine the
got the chance to ask her why person who made the statement,
she’d come back afterwards,
her response spoke volumes: #1. KNOW YOUR EVIDENCE CODE robbing my client of his right to
“I just wanted to see what else If you intend to practice in the confront his accusers. It’s hearsay!”),
the jerk had to say.” If I had courtroom, rather than from behind a and will limit you to a single phrase
objected, I would have desk, you need to master the objection (ex. “Objection! Hearsay!”)
prevented him from being a Evidence Code. What’s admissible? K n o w a l l o f y o u r “ b u z z w o r d ”
jerk. What’s not? You won’t know if you objections so that you can make the
THE LESSON: Is your don’t read the Code from cover to objection quickly and effectively.
opponent doing things that cover. I wish there was some Here is a quick guide on how to
are objectionable, but don’t shortcut I could give you, but there’s object:
really hurt your case? If so,
simply no substitute for reading the a. Say “Objection!” Get the word
consider not objecting, and let
whole thing. Better yet, you want to out forcefully and as quickly as you
the jurors voice their
objections in the deliberation read an evidence book that provides can, even if you’re still in your seat.
room. commentary and analysis. Here in Speak out and stop it before it gets
Florida, for example, almost every “Timing” continued on page 11
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“Timing” continued from page 10 probably have more reasons to object faster and more accurate you’ll
worse. The judge may say “sustained” to them. Watch, and object whenever become. Your goal is to sort through
you think it’s appropriate. the entire process (”Is it objectionable?
without any further argument, but if not,
you’ll at least have some time to think The best thing you can do is to If it’s objectionable, does it matter? If it
while you rise to your feet and give the quickly make the right decision. The matters, object!”) in an instant. Invest
proper legal objection. second best thing you can do is to the effort in practicing, and before long,
quickly make the wrong decision. The you’ll become a quick draw objection
b. Stand up. You know better than artist, ready to challenge anyone in
worst thing you can do is not make any
to address the court while seated.
decision. The more you practice, the town to a duel.
Stand up and give the grounds for your
objection.
c. Wait for the judge to rule.
Make sure you get a ruling, not just a
“Move along, counsel” or “Perhaps
you could rephrase that, counselor”
admonishment. If there’s no ruling,
there’s nothing to appeal.
#4. PRACTICE
How can you practice if you’re not in
the courtroom every day? Easy -
watch other people in court. There are
two ways to do this. First, you can go
to the courthouse and watch other
lawyers try cases. This is always a
valuable investment of your time. If
they’re better than you are, you’ll learn
a new technique or presentation tip. If
they’re worse than you are, you can
remind yourself, “Don’t do that - look
at how the jury’s ignoring him!” As you
watch the case, quietly object to any
improper material. Do you object
faster than the real lawyer? Or do you
miss important objections? By having
your mind “in the moment” you’ll grow
accustomed to the objecting process.
Second, watch lawyers try cases
on TV. You can either watch the real
lawyers on CourtTV or the fake
lawyers on every other network. The
fake lawyers don’t have to abide by
the rules of evidence, so you’ll
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No one wants to be excluded from a
conversation... especially your jurors!
When was the last time you Have you ever seen a
watched someone else try a case? live theater performance?
Have you ever snuck into a courtroom No matter where the
and watched your opponent present actors move on the
a case? If not, let me recommend stage, they never turn
you jump at the opportunity to watch their backs on the jury.
someone else pick a jury and present It’s the same on TV.
their case. If you do, you’ll learn You’ve probably noticed LESSON #1:
some things that you wouldn’t how TV families are always Argue the Law Before Trial
normally notice about successfully gathered on one side of the dinner The bench conferences I saw
trying cases. table, right? That’s so they don’t involved points of law that should
Every year, I get the opportunity turn their backs on the camera and have been handled before trial. If
you’re waiting until the day of trial to
to watch numerous jury trials and exclude anyone in their audience.
argue essential points of law or limit
critique the performances of the You know how rude it feels when
your opponent’s introduction of
attorneys. When I watch a trial, I try someone turns their back on you.
evidence, you’re waiting too late. File
not to read the case file or review a But when you approach for a bench motions in limine before trial, and
case summary, because I don’t want conference, that’s exactly what you’ll be able to argue those essential
to know any more about the case you’re doing. You’re turning your points of law in advance of trial,
than the jury would. I want to be back on the jurors. minimizing the need for legal
c o m p l e t e l y d e t a c h e d f ro m t h e The second problem with discussions during trial.
emotional background of the case, so approaching the bench to argue a
LESSON #2:
that I can just sit in the back row and point of law is that you form an
Don’t Turn Your Back on the Jury
watch the trial unfold, critiquing the elite little club that excludes
If you must approach the bench
trial from the jury’s perspective. everyone else in the courtroom
to argue a point of law or respond to
Watching all of those trials, one of except you, your opponent, the an objection, make sure you don’t
the things I noticed was just how judge, and the court reporter. As I e x c l u d e t h e j u r o r s f r o m y o u r
irritating bench conferences are. In w a t c h e d t h e a t t o r n e y s h u d d l e discussion. That doesn’t mean
one of the trials I watched last year, around the bench and whisper, I raising your voice so they can hear
the attorneys seemed to spend more wanted to lean in and listen to the what you’re saying — that’s improper.
time presenting their cases to the conversation. I wanted to know But you can use your body language
judge than they did presenting their what was going on. And I was to include the jury at the bench.
cases to the jury. When most resentful that I was being excluded Rather than turning your back on the
a t t o r n e y s a p p ro a c h f o r b e n c h from their group. jury, just turn your body half way or
conferences, they violate a cardinal Here are two lessons you can 3/4 of the way towards the judge.
presentation tip: Never turn your apply in your next trial to avoid Leave part of your body “open”
towards the jury, and they won’t feel
back on your audience. ignoring or excluding your jury:
completely excluded.
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When you object (or respond to an objection), it’s essential something about the act of rising from your seat that forces
that you look like you know what you’re doing. Here are your brain to think faster. Second, you’ll be more
some quick and easy tips to help you look like a seasoned persuasive if you respond while standing. Your suit drapes
professional, even if this is going to be your very first trial. better, your posture looks better, your voice sounds better
-- you’ll just look more persuasive.
RULE #1: STAND WHILE OBJECTING
If you’re objecting, you should rise to your feet while RULE #3: ADDRESS THE COURT, NOT YOUR OPPONENT
simultaneously stating the word “objection!” Train your When making and meeting objections, it’s essential that
legs so that you start standing the moment you hear you not speak directly to your opponent. All objections
objectionable material. (It’s also a good way to workout and responses should be directed to the judge, never to
while watching your favorite legal shows on TV). Don’t your opponent. Speaking directly to your opponent is a
jump to your feet or leap from your chair. Don’t stand rookie mistake, and sure to draw a rebuke from the bench.
before you’re ready to object. Just wait until the proper
moment, rise with purpose, and state your objection. RULE #4: DON’T BE INDIGNANT OR SARCASTIC
Don’t try to think of the reason for your objection Occasionally, you’ll be tempted to add sarcasm to your
before you stand up or before you say the word objections. (ex. “Objection! Do we have to hear this
“Objection,” because your objection will be too late and again? Asked and answered, your Honor!”) Don’t. If
too slow. Get the word out, stand up, and then (if the there’s a need for a strong emotional response, let the
judge hasn’t already ruled in your favor) give a reason why judge or the jury deliver the emotional response, rather
your objection should be sustained. than you.
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“Decorum” continued from page 13
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“Helping Judges” continued from page 15
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“Sneaky Tricks” continued from page 15
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“Confidence” continued from page 16 Don’t stand up preemptively.
Unless you’re going to say
the back of your hand. Buy an extra “Objection,” you should remain
copy of your evidence rules to keep in seated. In my opinion, standing
the bathroom if you have to, but make without objecting lacks
sure that you have read the rules from professionalism, because it seems
cover to cover before stepping into the calculated to “upstage” the other
courtroom. You might wish that there lawyer and draw attention to yourself.
was an easier way, but unfortunately, Either object or don’t object, but don’t
there’s simply no substitute for try to take the middle ground and
knowing the rules by heart. “hover” while your opponent is
Additionally, some objections speaking. Knowing what your judge
require more than a generic Rise, Igor, rise! You don’t want to
fall over yourself or knock your chair expects will increase the
knowledge of the rules. For these
situations (which you should recognize over by rushing as you rise to object. chances your objections will
before you reach the courtroom), Instead, you want to rise from your be sustained.
make sure you’ve done your research seat in a calm, deliberate manner.
and have prepared a pocket brief or Don’t use your arms to lift yourself up
brought copies of the appropriate from your chair or table. Stand tall,
caselaw in support of your position. because all eyes in the courtroom will
be upon you. As you remain standing,
2. RISE WITH PURPOSE avoid fidgeting. Don’t put your hands
Leaping to your feet the way you did in your pockets or rest them on the
back in college when your team table. Keep your hands down by your
scored the winning touchdown doesn’t sides or let them move naturally to
look very professional when you’re in emphasize any points you make.
the courtroom. Even so, many trial
lawyers look like they’re just as likely 3. SPEAK WITH POWER
to yell “Touchdown!” as they are to “Um... objection? Hearsay?” Don’t
announce, “Objection!” when they rise let your voice trail off at the end. Your
The Rules of Evidence may be
from their seats. This type of objection is not a question, it is a
the same in each courthouse, but
demonstration sets the wrong tone. declarative statement that should stop
how those rules are applied
You don’t want to look like you’re the proceedings immediately. You varies from courtroom to
celebrating the opportunity to object. need to sound confident and force courtroom. For some judges
Instead, you want the jurors to feel like your voice to rise above the noise of (especially those who go to bed
you’re almost disappointed that you’re courtroom doors opening and closing, with a copy of the Evidence Code
being forced to object. Remember, traffic noises from outside the tucked beneath their pillows), the
you’re not objecting because you courtroom, etc. If your voice is weak, word “Objection” may be all they
want to -- you’re objecting because build it up by joining a Toastmasters need to hear before sustaining or
group to practice speaking in public, overruling the objection. Some
your opponent has done something
using breathing exercises, or learning judges will ask to hear the
improper, placing you in the awkward
grounds before deciding, but only
position of having to call attention to “Alexander Technique” methods. Your
want to hear a single “buzzword”
his misdeed. Here are a few ways to voice is your instrument -- tune it!
objection, while others will let the
maintain your poise when rising to lawyers bicker back and forth
object:
4. PUT IT ALL TOGETHER
before finally ruling. To learn
Once you’ve made the decision to
Position yourself correctly. Keep what your judge expects before
object, you’ll want to halt the you go to trial, talk to the
your feet firmly planted on the floor,
proceedings by announcing courtroom deputy, the court
approximately shoulder-width apart,
“Objection” and simultaneously rising clerk, or other lawyers who have
so that you’ll be able to stand up
from your seat. You want the process tried cases in that courtroom.
without shuffling your feet around.
to feel like second nature, so that Spend an afternoon in court,
Keep your chair pushed slightly back
every time you say the word watching the judge in action.
from the table, so you can stand in a
“Objection,” you automatically rise Maybe even (gasp!) talk to the
single fluid motion without banging judge himself and ask what he
from your seat. Don’t be afraid to
into it when you stand up and so it expects. As the Boy Scout Motto
practice the process a few times in the
won’t lean against the back of your says, “Be Prepared!”
privacy of your office. After all,
legs while you remain standing to
practice makes perfect!
argue your objection.
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You can object to protect your witness during
cross-examination, but should you?
Your opponent is cross-examining he doesn’t need very much
your star witness, and begins asking help. By letting your witness
objectionable question after tell his story without
objectionable question. Should you interruption, you’re letting
object to protect the witness? the jurors see that your
Well, it depends. Certainly, if the witness is confident in his
questions are unduly harassing your answers, that his responses
witness, prying into sensitive/ are the truth, and that you
privileged areas, or causing undue have nothing to hide. When
embarrassment, then yes, you should he’s able to fend for himself
certainly object. without your intervention, the jurors
B u t s u r p r i s i n g l y, m a n y are more likely to believe what he
experienced trial lawyers will tell you says.
that they rarely object during the There’s also another reason why
forced to sit and answer your
cross-examination of their witnesses. you might not want to object when
questions during jury selection. The
They know that jurors can see for your opponent treats your witness
witness is prohibited from asking any
themselves when a question is unfair rudely: When he insults the witness,
questions or taking a “time out,” just
or calculated to be misleading, and it’s he’s indirectly insulting the jury, too.
like they are.
usually pretty obvious when a trial Your jurors feel like they have
That’s why, in any confrontation
lawyer is abusing a witness. much more in common with your
between a lawyer and witness, unless
So if it’s so obvious that the lawyer witness than they have in common
your witness turns out to be a jerk, a
is attempting to abuse your witness, with the opposing lawyer.
boor, or a liar, the jurors are going to
why wouldn’t you want to object? Think about the similarities in their
side with the witness. When they see
The reason you wouldn’t object is courtroom experiences: Your witness
the “abusive attorney” picking on the
because you want the jurors to see raised his hand and swore to tell the
witness, they’re going to voice their
that the witness is capable of fending truth, just like they raised their hands
own objections about his tactics. But
for himself (to a point). As Mark Twain and swore to tell the truth before jury
rather than objecting in the courtroom,
said, “If you tell the truth you don't selection began. Your witness is
they’re going to object where it really
have to remember anything.” When forced to sit and answer questions
matters, in the deliberation room!
your witness has the truth on his side, from the attorneys, just like they were
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Not all objections are created equal. Here are three of the most powerful
(but only if they’re sustained!) objections that you can raise during trial.
#1. VIOLATION OF A PRE-TRIAL RULING about this objection is that you don’t have to wait until it’s
It’s one thing to violate an obscure rule or a rule that your turn to ask questions before you correct the statement
-- you can do it on the spot, essentially testifying in the
you’re unaware of (“How was I supposed to know that it’s
middle of your opponent’s examination.
illegal to stick pennies in my ears while standing on a street
corner in downtown Honolulu?!?”), but it’s entirely different Attorney #1: You said that you were going to
when you’re specifically told not to do something and then “make him pay,” didn’t you?
you go ahead and do it anyway. Witness: I don’t know what you’re talking about.
The purpose of motions in limine and pre-trial rulings is
to place both parties on notice about what will be allowed Attorney #1: Page 7, line 23. “I was going to
and what won’t be allowed during trial. There’s no faster make him pay.” Those are the words you said at
way to draw a judge’s ire than by violating his direct orders, the deposition, right?
so if your opponent violates a pre-trial ruling, bring it to the Attorney #2: Objection, counsel is misleading the
judge’s attention immediately. Many judges view these jury. Under the rule of completeness, the jury also
violations as the equivalent of thumbing your nose at the needs to hear the next lines from that deposition to
court, and will discipline your opponent accordingly. properly understand the context of the statement.
#2. NON-RESPONSIVENESS Page 7, lines 23-24, Your Honor.
Almost every witness changes their demeanor between Judge: Sustained.
direct examination and cross-examination. Their body Attorney #2: “I was going to make him pay for his
language shifts and the tone of their responses changes as share of the phone bill, because that was the deal
they shift from a position of cooperation to a position of we arranged when we agreed to be roommates.
combat readiness. If you’ve spent any time in the
courtroom, you’ve seen how witnesses who were Notice that you should read the rest of the language, not
obsequious during direct examination become recalcitrant your opponent. If you let your opponent read the rest of
during cross-examination. the statement, he’ll use his vocal inflection to minimize the
But some witnesses go even further. Not content to negative implications of the statement. To get the most out
merely serve as a witness, they instead choose to play the of the statement, you need to read the rest of the
role of advocate, actively resisting all of your attempts to statement aloud. Done well, the judge and the jury will see
cross-examine them. The first time this happens, you’re how your opponent tried to mislead them, and they’ll never
entitled to object on the grounds that trust him again.
they’re not responding to their questions.
You’re entitled to object, but don’t. At
least not the first time they act non-
responsive. Nor the second time. Not the
third time, either. Instead, string it out for
awhile, so that the judge and the jury can
see how far the witness will go in an
attempt to avoid answering your question.
Only after the judge starts to become irate
should you object that the witness is being
non-responsive. If you’ve gauged your
judge’s temperament correctly, you’ll be in
for a fireworks show.
#3. RULE OF COMPLETENESS
This is often an overlooked objection, but
it’s one of the most deadly. This objection
undermines your opponent’s credibility,
because you get to show the jurors that
he’s trying to mislead them. The best part
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You don’t need thousands of what arguments he normally
makes, how he objects (and
courtroom hours under your belt to
responds to objections), and
successfully spot objectionable much more. As trial
material. Here’s how to anticipate lawyers, we’re victim to our
when you’ll need to object. own habits, so if he’s used
the same jury selection
The difficulty with objecting isn’t technique successfully in
spotting objectionable material. Every other trials, chances are
trial lawyer can tell when a skunk has that he’ll probably use it
been let loose in the courtroom. The in your trial, too. Learn
difficulty is being able to identify the what to expect and you’ll
objectionable material before the be prepared to counter it
stench hits the jury. Fortunately, with a during trial. If his expected use his momentum to push
little bit of effort, you can train yourself actions are prejudicial, file through objectionable material.
to anticipate objections before they motions in limine to prevent him from Again, if the information is damaging,
happen. As Sun Tzu said in The Art of doing it. file a motion in limine to exclude it.
War, “If you know the enemy and know
yourself, you need not fear the result #2. KNOW YOUR OPPONENT’S CASE #3. KNOW YOUR BUZZWORDS
of a hundred battles. If you know Every good trial lawyer knows the Finally, keep your ears open for
yourself but not the enemy, for every importance of placing yourself in your buzzwords or questioning patterns
victory gained you will also suffer a opponent’s shoes and looking at the that indicate objectionable material is
defeat. If you know neither the enemy strengths and weaknesses of the case about to rear its ugly head. If you
nor yourself, you will succumb in every through their eyes. As you’re know what to listen for, you’ll be ready
battle.” Here are a few quick tips for analyzing your opponent’s case, ask to object. Here are a few examples:
training yourself to anticipate yourself, “What testimony or exhibits • “So, in summary…” (Asked and
objectionable material: will my opponent attempt to introduce answered; Repetitive; Argumentative)
into evidence that will hurt my case or • “Would you say…” (Leading)
#1. KNOW YOUR OPPONENT help their case? What arguments will • “What if I told you that Mr. Smith
The courthouse is a small community. he make that will hurt my case? What testified…” (Improper opinion, Calls
If you ask around, you can quickly objectionable evidence might he for speculation, Violates the Rule of
learn almost everything you need to attempt to introduce? Through which Witness Sequestration)
k n o w a b o u t y o u r o p p o n e n t ’s witnesses will he attempt to introduce • “Isn’t it possible that…” (Calls for
courtroom habits. Find other lawyers that evidence?” By knowing what to speculation)
who have tried cases against your look for (and when to look for it), you’ll • Use of “and” and “or” (Compound
opponent, take them out to lunch, and be ready to object and will stay alert question)
then pick their brains. They’ll be able when your opponent rushes through a • “What did you hear…” or “What
to tell you how he normally acts in trial, section of testimony, possibly trying to did she say…” (Hearsay)
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