Learn how to make
objections that get
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
developed during law school was
how to spot issues. You remember
the FIRAC (Facts - Issue - Rule -
Application - Conclusion) method
of case briefing from law school,
don’t you? Back in law school,
your issue spotting skills
determined how well you would
perform on the final exam. The
more issues you spotted, the
better your chances of passing the
exam.

However, in trial, superlative
issue spotting skills can sometimes
become a detriment to your case.
The reason they can actually harm
your case is because many trial
lawyers are tempted to act like
© 2009 by Trial Theater, LLC - All Rights Reserved

sustained and how to
keep cool under pressure
when your opponent
objects
they’re still in law school. You’ve
seen them in trial -- as soon as
they spot an issue, they announce
it to the world. (”Objection! That’s
a leading question” “Objection!
That asks for hearsay!” “Objection!
That calls for speculation!”)

Te c h n i c a l l y, t h e y ’ re r i g h t ,
because the issues that they spot
in trial can be objected to. But to
become a skilled advocate, you
need to move beyond mere issue
spotting skills. To become a top-
tier trial lawyer, you must be able to
analyze the admissibility of every Before you win your next
piece of evidence and every word jury trial, sign up for your
free subscription to Trial
of testimony, and then answer the Tips Newsletter by visiting
following three questions: www.TrialTheater.com today!
“You Can Object” continued on page 2
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“You Can Object” continued from page 1
“Can you object?”
“Should you object?”
“When will you object?”

Most importantly (and perhaps
most difficult), you must be able to
conduct this entire analysis within
a split-second. You can’t unring a
bell and you can’t stuff toothpaste
back in a tube -- if you don’t
object in time, the jury will hear the
objectionable material, and it will
be too late to fix the damage.
That’s why trials can be so tiring,
because you’re expected to have
your brain redlining at 9000 rpm
throughout the entire trial, spotting
every issue and deciding whether
or not to object.
#1. CAN YOU OBJECT?

Every trial lawyer should know
the answer to this question. This
question draws upon your issue
spotting skills and your knowledge
of the evidence code. The
stronger your knowledge of the
evidence code, the stronger your
trial skills will be. Every time your
opponent or a witness is about to
say or do something objectionable,
you must immediately recognize
the issue and identify why it’s
objectionable. You need to
develop this skill before you get to
trial. By the time you get to the
courtroom, it’s too late to start
reading through the evidence
code. You won’t have time to look
up the proper objection or review
an evidentiary predicate. That
information must be committed to
memory and available for instant
access.
#2. SHOULD YOU OBJECT?

If you know the answer to this
question, then you’re one of the
better trial lawyers in your
courthouse. Just because the
evidence is objectionable doesn’t
mean you should object. Not
every issue really matters. For
© 2009 by Trial Theater, LLC - All Rights Reserved

example, in a single witness
examination, you may spot 23
leading questions. Technically,
they’re all objectionable. But
before y ou obje c t , y ou a s k
yourself, “Does that evidence hurt
my case?” If not, maybe you
shouldn’t object.

Too often, attorneys object to
evidence that doesn’t hurt their
case, and end up shooting
themselves in the foot. For
example, a while ago, a friend of
mine was in trial, prosecuting a
misdemeanor case against a
relatively inexperienced defense
attorney. Partway through his
cross-examination of her only
witness, this new attorney tried to
introduce a photo into evidence.
My friend immediately recognized
three reasons why the photo
should not be admissible, and
said, “Objection!” The judge
agreed, and didn’t allow the photo
into evidence.

It sounds like she did the right
thing, doesn’t it? Something was
objectionable, and she kept it out
of evidence. But, before you make
a final decision, you need to know
about a rule of criminal procedure
that applied to her trial: If a
defendant didn’t introduce any
evidence, he was entitled to both
the first and last closing arguments
(”the sandwich.”) By objecting,
she prevented the defense from
introducing the photo. But the
photo didn’t really hurt her case. If
the defendant had entered the
photo into evidence, he would
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have lost the “sandwich” and she
could have had the benefit of first
and final closing arguments.
#3. WHEN WILL YOU OBJECT?
If you’ve decided that you should
object, you should next determine
when to object. Usually, you’ll
object as soon as you realize you
“can” and “should.” For example,
if your opponent tries to ask the
witness, “What did you hear Mort
Anderson say to Mike Brown about
who started the fight?” you’ll
probably object by the 7th word in
his question.

But deciding when to object
isn’t always as clear-cut as that. If
your opponent is asking leading
questions, but you’ve decided they
don’t hurt your case, maybe you
won’t object at all. Or maybe you
let it go for 7-8 questions, and then
tell the judge, “I haven’t objected
up until this point, but, Objection!
-- Counsel is asking only leading
questions.”

Many times, your objection
needs to be heard before trial.
You’re afraid that if the jury gets
even a whiff of the evidence, it will
ruin your case. Examples include
confessions from your client,
previous bad acts, improperly
seized evidence, evidence of
remedial repairs, etc. If your
objection falls into this category,
you need to file a motion to
suppress or a motion in limine
before trial to preclude the
admission of the evidence.

Or maybe you don’t “object”
until closing argument, when you
tell the jury, “I could have objected
to his questions, because they
were all leading questions... The
witness wasn’t telling you the
story, her attorney was. But the
reason I didn’t object was because
I wanted you to see how Mr.
Shyster had to spoonfeed the
testimony to her. The witness
“You Can Object” continued on page 4
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.
Sometimes, more experienced trial lawyers will object
simply because they’re trying to rattle the cage of newer
attorneys. Don’t let them get to you. You don’t need to
instantaneously respond -- take a moment to relax
before you say anything.
2. Think. This is the most important part of
the process. Why should the judge admit your
evidence? You don’t want to open your mouth
to respond until you have a compelling reason.
Take a moment or two to think through your
response and tell the judge why your evidence is
relevant, reliable, and right. [For help, see “The Three
R’s of Admissibility” on page 4]
3. Rephrase only if obviously necessary. Sometimes,
you won’t have a good response. But too often, lawyers
don’t even wait for the judge to rule. They treat every
objection as if it’s a negative ruling and abandon their line
of questioning. Unless you know that the witness’s
answer will definitely be improper (For example: Your
police officer almost mentions suppressed evidence; your
client is about to mention insurance or improper character
evidence) don’t automatically rephrase your question
without giving the judge a chance to rule. If you do
need to rephrase, give the witness guidance to
help him avoid mentioning the objectionable
material. “Don’t tell us what Logan said, but
did the two of you have a conversation?”
4. Respond. Ignore the temptation to
respond directly to your opponent. Instead,
speak directly to the judge and show him why
your evidence is Relevant, Reliable, and Right.
Begin your response with a phrase like, “Your Honor, it’s a
business record exception...” or “It’s not hearsay
because...” If possible, keep your response limited to a
single sentence phrased in non-legal terms (for the benefit
of the jury). If more explanation is required, ask for
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
case, and you should disregard
what she said... or, pardon me,
what she didn’t say.”
 During most trials, you probably
shouldn’t object as often as you
could object. Intellectually, jurors
may understand that you’re going
to object during trial because your
opponent is trying to admit
improper evidence. But
emotionally, many of them may
feel that you’re objecting because
you’re trying to prevent them from
hearing the truth or because you
know the evidence hurts your
case. Consider all the
ramifications before you say,
“Objection,” and then ask
yourself, “Can I object? Should I
object? And if so, when will I
object?”

© 2009 by Trial Theater, LLC - All Rights Reserved

Want to get your evidence admitted? Want to keep your opponent’s
evidence out? Here’s an entire Evidence class in 1000 words or less!
 Nope, we’re not talking about  How much more broadly could they
readin’, ‘ritin’, and ‘rithmetic. Here are
have defined what’s “relevant”?!?
the three “R’s” you should consider Basically, everything “relevant” should
when analyzing the introduction of be admissible, unless specifically
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
the evidence? you can show any reason why your
proposed evidence proves or
#1. IS IT RELEVANT? disproves a material fact in the case,

Federal Rule of Evidence 401 your evidence should be relevants.
defines relevant evidence as any
evidence “having any tendency to #2. IS IT RELIABLE?
make the existence of any fact that is
The most common reason why
of consequence to the determination evidence won’t be admissible is
of the action more probable or less because it’s not reliable. Jurors
probable than it would be without the should be able to make their decision
evidence.” Rule 402 says that “All based on the most reliable information
relevant evidence is admissible, available. Why is hearsay evidence
except as otherwise provided by the generally excluded? Because it’s
Constitution of the United States, by secondhand information. It’s not as
Act of Congress, by these rules, or by reliable as firsthand information. You
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
everyone can confirm that. There’s no
need for a party to invest resources
p r o v i n g t h a t J u n e 9th w a s a
Wednesday, because there’s no room
for debate.
 The question of reliability
will probably serve as the
basis for the bulk of your
evidentiary objections, and
that’s why we invest so much
time forming all of those
predicate questions.
#3. IS IT RIGHT?
 Finally, Federal Rule of
Evidence 403 states that
relevant evidence may be
excluded if “its probative value is
substantially outweighed by the
danger of unfair prejudice, confusion
of the issues, or misleading the jury, or
by considerations of undue delay,
waste of time, or needless
presentation of cumulative evidence.”
What does that mean? It means that
even though the evidence is relevant
and reliable, it may still be excluded if
it’s not right to admit it. Here are
some examples:
Gruesome photos. The photos tend
to prove a material disputed fact – that
the victim is dead. They’re reliable –
your medical examiner will testify that
these are the photos she took during
the autopsy. But it may not be right to
admit them. They may be so
gruesome that the jurors would have a
visceral, emotional reaction to them,
and the photo alone would grossly
affect the verdict. Well, that wouldn’t
be fair, would it? To fix the problem,
the court may allow the photos if
they’re black and white, limited in size,
or perhaps limited in quantity.
Character. Is it unfair to discuss a
person’s bad character? When a
defendant has 56 prior convictions for
DUI, it’s probably safe to assume that
he was driving drunk this time, too.
But the jurors would jump to a
conclusion and shortcut the
deliberation process – that’s not right.
Privileges. Anything a patient tells
their psychiatrist is probably
privileged. Society thinks that people
should be able to talk freely in
that situation, in hopes that they
will be cured or find a solution to
their problems. So, what they
s a y i n c o n fi d e n c e w i l l b e
privileged. What a witness tells
his attorney, psychiatrist, priest,
doctor, accountant or wife may
be very relevant and reliable, but
it doesn’t mean it should be
admissible. Society creates
these privileges to improve our
daily life.
The Fruit of the Poisonous Tree.
Evidence that is otherwise relevant
and reliable may be kept from the jury
if it was obtained pursuant to an
improper search and seizure.
 This simple three point analysis
(Relevant? Reliable? Right?) is a
good starting point for analyzing
whether your evidence should
admissible or not, and also helps you
decide whether to object to your
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

© 2009 by Trial Theater, LLC - All Rights Reserved
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“The Judge has Spoken” continued from page 5

move onto another topic. In reality, no ruling has been

issued, because the judge hasn’t ordered you or your
opponent to do anything. A common term for
describing this type of action is called a “non-ruling.”

The most effective “non-ruling” judges you’ll face
are often the friendliest judges you’ll encounter in your
practice. These judges succeed at “non-ruling” by
drawing upon your inner desire to be a consummate
professional, while also creating a congenial courtroom
attitude. By encouraging both litigators to just “go
along and get along,” they can avoid issuing stern
rulings (and also avoid a reversal from the appellate
bench). Usually, “non-rulings” will be disguised as
kindly suggestions, such as, “Why don’t you go ahead
and rephrase your question, okay?” Since you don’t
want to stir up the pot, you’re usually inclined to go
along with the judge’s suggestion.

Here are some other common methods judges use
to issue “non-rulings”:

“Move it along, counselor.”

“Please rephrase your question.”

“Ask a different question.”

“Go ahead.”

“Let’s keep things moving…”

Gesturing with their hands to “move things along”

Silence, combined with a scowl or a nod of the
head.

From a day-to-day practice point of view, “non-
rulings” probably aren’t that big a deal for experienced
trial lawyers, because it’s easy to rephrase your
questions and work around them. However, here are
two reasons why you should be wary when a judge
issues “non-ruling.”

First, if you’re a neophyte lawyer, you’re probably a
little nervous in the courtroom. When the judge tells
you to “move it along,” you’re likely to overreact,
skipping past evidence that should be admissible.

The second (and more insidious) problem with
“non-rulings” is the effect they have on your appellate
record. “Non-rulings” leave the losing party without an
appellate remedy. In the event of a non-ruling, the
appellate court will always uphold the lower court
decision. Why? Because the judge didn’t order either
party to do anything. Instead of issuing an order, he
simply left the matter in your hands and your
opponent’s hands. If you decided not to ask the
question or not to admit the evidence, that’s your fault,
not the judge’s fault, and the appellate court can’t help
you.

So what do you do? How can you fix the situation?
Well, it depends. First, you should decide if you really
need the judge to rule. Sometimes, a non-ruling is all
you need. If you’re the one who’s been objected to,
you can simply rephrase your question and seek
another way to introduce your evidence. If you’re the
one objecting, you’ve put your opponent on notice not
to go down that road, and that may be enough to keep
him from revisiting the issue.

But let’s say that you really need a ruling. What do
you do then? If you need the judge to rule, you
probably shouldn’t tell him what to do. (After all,
nobody likes to be told what to do, especially judges.)
Instead, consider asking the judge for a ruling.
Obviously, you’ll need to be polite when asking the
judge for a ruling. Here are a few examples of how to
ask:

The polite request: “Your Honor, before I
continue, could I ask you to rule on the
objection?”

The clarification: “Judge, can I clarify your
ruling? You’re ruling that the entire conversation
is hearsay, right?”

The inferential nudge: “So you’re sustaining my
objection, your Honor?”


Most of the time, non-rulings won’t cause any
permanent damage to your case. However, when you
need the court to issue a ruling, you really need the
court to issue a ruling. In those situations, make sure
you’ve got your ears perked up to listen for any “non-
rulings,” and then be prepared to correct the situation
before your case goes to the appellate level.

© 2009 by Trial Theater, LLC - All Rights Reserved
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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.

© 2009 by Trial Theater, LLC - All Rights Reserved
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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
she somehow manages to sound both
seductive and dangerous at the same
time. I learned that she worked with
the C.I.A. for several years, but “I can’t
talk about it” is all she ever says about
her previous job. Anyway, last
Thursday I was over at my friend’s
office for a planning meeting. The
meeting finished around 7 o’clock, and
I left. I met up with some other friends
for a bite to eat, but just as I was
about to head for home, I realized that
I’d left my briefcase up in the
boardroom.

I thought his office would probably
be closed, but I really needed some
stuff in my briefcase for a court
hearing the next morning, so I took a
chance and went back to his office.
When I stepped off the elevator, I
could see that the front door of his
office was slightly open. From the
hallway, I could hear Susie talking on
the phone. I didn’t understand what
she was saying, because she was
speaking Russian or something, but
she was speaking quickly and it
sounded like she was giving orders to
someone. As I entered the office, her
back was to me, and she was looking
at some type of banking website on
her computer screen. In front of her
were 3 or 4 passports spread out
across the desk, and next to the
passports was a small syringe filled
with a brown liquid. She must not
have heard me enter, because when I
said, “Pardon me,” she appeared
startled. She quickly stood up,
blocking my view of the computer
screen, while at the same time deftly
JURY SELECTION
• Embarrasses a juror
• Asks juror to prejudge case facts
• Misstating the law
• Asking for juror’s opinion on
ultimate issue
• Strike not based on gender-
neutral or race-neutral grounds
© 2009 by Trial Theater, LLC - All Rights Reserved

sliding the passports and syringe into
a desk drawer. She quickly said
something in Russian to the guy on
the phone, and then, in English, she
said...
AT T O R N E Y: “ O B J E C T I O N !
HEARSAY!!!”
JUDGE: “Objection sustained.
The jury will not speculate as to
what the witness may have said if
the witness had been allowed to
answer.”

Dang -- I guess I can’t tell you the
rest of the story. But that’s okay. The
judge ruled that you can’t guess about
what she might have said, so I’m sure
you aren’t going to think about it
anymore. Since the judge ordered you
not to think about it anymore, your
curiosity is completely eliminated,
right?

No? You say you still want to
know what she said? Really? Huh...
That’s interesting, because the judge
ordered you not to guess what she
might have said if I’d been allowed to
continue.

Let me ask you something. Later
today, if you find out what it was that
she told me, do you think you will pay
more attention to it, or less attention?
Do you think you’ll attach more
significance to what she said, or less
significance?

The same thing is true with your
jurors. If you object to something and
keep it out of evidence, you better
make sure it stays out of evidence. If
it gets into evidence through some
other means, the jurors may actually
WITNESS EXAMINATION
• Relevance
• Insufficient predicate
• Hearsay
• 403: Evidence more prejudicial
than probative
• Leading
• Privileged information
• Assumes facts not in evidence
• Argumentative
• Narrative
[9]

pay more attention to it than if you
hadn’t objected.

Take a look at our first example,
and Bebe Behr’s statement. Should
you object to this obvious hearsay
statement? Maybe not. Once you
prevent Mrs. Bear from talking about
Bebe Behr’s statement, the jurors are
going to be a little curious about what
Bebe Behr said. They might even
think, “I bet that whatever Bebe Behr
said probably hurts that attorney’s
case. Otherwise, why object to it?”

And here’s the danger: What’s
going to happen when Bebe Behr
testifies in this trial? When he gets the
chance to tell the jurors what he said
to Mrs. Bear, the jurors will hear what
he said. They will hear about the bed
that was slept in. They will hear about
the porridge that was eaten. And
those jurors who thought Bebe’s
statement would hurt your client are
going to pay more attention to it and
attach more significance to it.

Here’s the bottom line: Don’t
object just because you can.
Object
because you should.
If the evidence
is going to be admitted anyway,
through some other means, ask
yourself if you should object. Ask
yourself what’s going to happen if you
keep the evidence out, but only
temporarily. Don’t evaluate your
objections exclusively from a legal
perspective -- evaluate your
objections from a tactical perspective
and from a common sense
perspective. Think about the case
from the jury’s perspective, and then
ask yourself: “Should I object?”

OPENING / CLOSING
• Improper argument
• Misstating facts
• Incorrect statement of law
• Facts not in evidence
• Commenting on criminal
defendant’s right to remain silent
• States personal opinion or belief
• Shifting the burden of proof
• Appeals to prejudice or
sympathy
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Years ago, at the beginning
of my career, I was trying a
case against an attorney who
started yelling and screaming
during closing argument.
Much of his argument
consisted of pointing at one of
my witnesses (who had
returned to the courtroom
ga l l e r y t o w a t ch c l o s i n g
arguments) and accusing the
witness of a variety of
offenses. Periodically, the
attorney raised his voice so
loud that the jurors leaned all
the way back in their seats,
unsuccessfully trying to avoid
him.
 Several attorneys from my
office were seated behind me,
and they kept whispering,
“Object! You’ve got to object!
What he’s saying is
improper!”
 They were right. His
comments were improper. But
I didn’t object.
Instead, I told my friends,
“Just watch the jurors… They
hate him.” Sure enough, after
a favorable verdict, one of the
jurors returned to the
cour troom to watch the
followup proceedings. When I
got the chance to ask her why
she’d come back afterwards,
her response spoke volumes:
“I just wanted to see what else
the jerk had to say.” If I had
objected, I would have
prevented him from being a
jerk.

THE LESSON: Is your
opponent doing things that
are objectionable, but don’t
really hurt your case? If so,
consider not objecting, and let
the jurors voice their
objections in the deliberation
room.
© 2009 by Trial Theater, LLC - All Rights Reserved

It happens in courtrooms every lawyer and judge depends upon Prof.
Charles Ehrhardt’s Florida Evidence.
day. Evidence that shouldn’t be
Get the copy that corresponds to your
admissible is shown to the jury practice area, and invest the time to
because opposing counsel fails to read through it.
object, or objects too late...
Plaintiff’s attorney: Mr. Jones, #2. RAISE THE RIGHT OBJECTION
what did you hear Mrs. A general “Objection!” isn’t sufficient.
Thompson say? Sure, if the judge sustains your
objection, then any legitimate reason
Mr. Jones: I heard her say that will be upheld on appeal, but if you’re
the defendant decided not to fix
overruled, “relevance” will be the only
the safety device because it was
too expensive and he didn’t care objection you’ve preserved. So, if the
if anyone got hurt. proper objection should be “hearsay”
or “insufficient predicate,” when the
Defense attorney: Umm, judge overrules your objection, it will
objection? Hearsay? I mean, be properly overruled, even though
“Objection! Hearsay!”
there’s another valid basis for

Once the jury hears the evidence, sustaining the objection.
it’s too late. Objecting afterwards is
like closing the barn door after your #3. KNOW HOW TO OBJECT
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
instructions are about as effective as code, you’ll have a much better idea
trying to squeeze toothpaste back of what’s objectionable and what’s
into the tube. Objecting after-the-fact not. The next phase is to determine
doesn’t help your case. You need how to object. Most judges won’t
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
four tips for improving your courtroom objections (ex. “Objection! That
objections, so that you can be as fast evidence shouldn’t be admissible
on the draw as you should be. because I can’t cross-examine the
person who made the statement,
#1. KNOW YOUR EVIDENCE CODE robbing my client of his right to
If you intend to practice in the confront his accusers. It’s hearsay!”),
courtroom, rather than from behind a and will limit you to a single phrase
desk, you need to master the objection (ex. “Objection! Hearsay!”)
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 ”
What’s not? You won’t know if you objections so that you can make the
don’t read the Code from cover to objection quickly and effectively.
cover. I wish there was some Here is a quick guide on how to
shortcut I could give you, but there’s object:
simply no substitute for reading the
a. Say “Objection!”
Get the word
whole thing. Better yet, you want to out forcefully and as quickly as you
read an evidence book that provides can, even if you’re still in your seat.
commentary and analysis. Here in Speak out and stop it before it gets
Florida, for example, almost every “Timing” continued on page 11
[10]
To get more trial advocacy tips, visit www.TrialTheater.com
“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.

 d. If necessary, ask to approach

and proffer your argument. If it’s a
serious issue, then of course you
handled it pre-trial, but if not, this is the
time to create the record of why you’re
objecting and why the material
shouldn’t be admitted.

#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

© 2009 by Trial Theater, LLC - All Rights Reserved
[11]
To get more trial advocacy tips, visit www.TrialTheater.com
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.

© 2009 by Trial Theater, LLC - All Rights Reserved
[12]
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When you object (or respond to an objection), it’s essential
that you look like you know what you’re doing. Here are
some quick and easy tips to help you look like a seasoned
professional, even if this is going to be your very first trial.
RULE #1: STAND WHILE OBJECTING
If you’re objecting, you should rise to your feet while
simultaneously stating the word “objection!” Train your
legs so that you start standing the moment you hear
objectionable material. (It’s also a good way to workout
while watching your favorite legal shows on TV). Don’t
jump to your feet or leap from your chair. Don’t stand
before you’re ready to object. Just wait until the proper
moment, rise with purpose, and state your objection.

Don’t try to think of the reason for your objection
before you stand up or before you say the word
“Objection,” because your objection will be too late and
too slow. Get the word out, stand up, and then (if the
judge hasn’t already ruled in your favor) give a reason why
your objection should be sustained.
RULE #2: STAND WHILE RESPONDING
Whenever you’re speaking in the courtroom, you should be
on your feet. Obviously, you’ll stand up because that’s
what your judge will expect, but there are some other
reasons you should be speaking on your feet. First, you’re
going to think better when you’re on your feet. Maybe it
harkens back to your days in grade school, but there’s
© 2009 by Trial Theater, LLC - All Rights Reserved

something about the act of rising from your seat that forces
your brain to think faster. Second, you’ll be more
persuasive if you respond while standing. Your suit drapes
better, your posture looks better, your voice sounds better
-- you’ll just look more persuasive.
RULE #3: ADDRESS THE COURT, NOT YOUR OPPONENT
When making and meeting objections, it’s essential that
you not speak directly to your opponent. All objections
and responses should be directed to the judge, never to
your opponent. Speaking directly to your opponent is a
rookie mistake, and sure to draw a rebuke from the bench.
RULE #4: DON’T BE INDIGNANT OR SARCASTIC
Occasionally, you’ll be tempted to add sarcasm to your
objections. (ex. “Objection! Do we have to hear this
again? Asked and answered, your Honor!”) Don’t. If
there’s a need for a strong emotional response, let the
judge or the jury deliver the emotional response, rather
than you.
RULE #5: DON’T GLOAT
If your objection is sustained, that doesn’t give you the
right to act immature and gloat in your victory. It’s rude
and it appears petty. Jurors won’t stick by your side very
long if you look like a conceited jerk during trial. Stay
above the fray if you want the jurors to continue supporting
your objections.
“Decorum” continued on page 14
[13]
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 “Decorum” continued from page 13

RULE #6: KEEP YOUR COOL

The worst thing you can do is to Your judge sees more trials in a year than the average trial lawyer sees in
make a fool of yourself if your a lifetime. If you’re lucky, he’ll offer to help you in your next trial.
objection is overruled or if an
Judges are supposed to be impartial. Each judge takes an oath of office,
objection is sustained against
swearing to uphold the judicial canons and promising to remain impartial
you. The best trial lawyers keep
throughout the trial. This means that even though your judge may be the most
their emotions in check. Don’t
experienced trial lawyer in the courtroom, he’s not allowed to jump into the
shake your head, sit down in a
middle of your case and give any advice to you or your opponent. But even
huff, stomp your foot, mutter
though judges are supposed to be impartial, there’s something else you need
under your breath, give the evil
to know about them: Judges want to be fair, and they want cases to be
eye, announce your intention to
decided on their merits, rather than on legal technicalities.
appeal the ruling, roll your eyes,
or throw your legal pad on your When judges see something that they think is improper, they want to fix the
table (Yes, I’ve seen lawyers do harm. That’s why you need to keep attuned to your judge throughout the trial,
all of these inappropriate because they’ll often subtly nudge you towards the correct objection. Here
behaviors!) Remember, if you are two common ways that judges can offer to help during trial.
act like the judge’s ruling just
killed your case, the jurors will
#1. PROMPTING YOU FOR ADDITIONAL OBJECTIONS
think that it probably did. Lawyer #1:
Did Mrs. Jones tell you whether the doctor appeared
Instead, keep your cool, make intoxicated?
your record, and show your
professionalism. This won’t be Lawyer #2:
Objection! The question calls for an improper opinion.
the last case you try before this Judge:
Are those your only grounds?
judge!

Lawyer #2:
Yes.
Judge:
Your objection is overruled.
You need to do a better job of reading between the lines. This judge doesn’t
want to overrule the objection, but unfortunately, without a proper legal reason
to sustain the objection, his hands are tied. That’s why he prompts the lawyer,
“Are those your only grounds? [Hint Hint -- there might be another legal reason
you should be arguing.]” When your judge extends this opportunity to you,
“[B]arristers employ [the
take advantage of it. Stop and think for a minute before moving on. If
objection’s] use with a great necessary, ask the judge for a moment to confer with co-counsel. Your mind is
deal of restraint. If an going 1000mph in the midst of trial. That’s why you have a second-chair
objection is improperly made attorney, because he’s not caught up in the heat of the moment and his brain
the ill founded request for “Helping Judges” continued on page 15
relief is a reflection on the
professional competence of
the advocate who failed to
recognize the impropriety of
the evidence which he sought
to admit. The overruling of
the objection, on the other
hand, is a professional put-
down for the complaining
advocate who obviously failed
to recognize competent
evidence sought to be
introduced by his opponent.”
- James W. Jeans

© 2009 by Trial Theater, LLC - All Rights Reserved
[14]
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 “Helping Judges” continued from page 15
might actually be working. Use it. The
judge is trying to rule in your favor, so
make sure you give him a valid reason to
do so.
Judges don’t automatically enforce
most evidentiary rules, because they
don’t know the case as well as the
litigants do. Unless it’s a “flagrant foul,”
your judge probably won’t interfere.
Most judges will give you a lot of leeway
in the courtroom, thinking that if you
don’t object, it must be something that
you want to come into evidence. It’s
your duty to object, and they realize that
you’re not required to object to every
violation of the courtroom rules.
However, old trial habits die hard. As
the saying goes, “Once a trial lawyer,
always a trial lawyer.” The urge to rise
from the seat and announce,
“Objection!” doesn’t fade with age.
Sometimes, a judge hearing
objectionable evidence looks like he’s
going to jump out of his skin if he’s not
allowed to object. But unfortunately,
unless you give him a reason, the judge
won’t interfere.
That’s why you want to be tuned into
your judge’s body language. Your judge
might help you out during trial by giving
you clues that you should object. Read
your judge’s body language. Some
judges raise their eyebrows or look at
you as if they’re almost begging you to
object, but most won’t go that far. Keep
your eyes open for non-verbal clues that
the judge may be sending your way. Is
he looking at his watch, wishing that he
didn’t have to hear the same testimony
again and again? Does he sigh or
breath deeply through his nose? Is he
getting irritated? Does he look mad?
The judge usually won’t interject unless
you give him the opportunity. But a
judge who is mad wants to rebuke the
other side... without appearing
impartial. Keep your eyes and ears
open for clues that the judge wants you
to object, and give him the opportunity
to rule in your favor.

© 2009 by Trial Theater, LLC - All Rights Reserved

IS YOUR OPPONENT OBJECTING FOR AN ULTERIOR MOTIVE? LOOK
OUT FOR THESE SNEAKY OBJECTION TRICKS IN YOUR NEXT TRIAL.
The majority of the trial lawyers reason, your judge allows them),
that you’ll encounter throughout you can choose to respond in kind
your career will be competent, (not recommended), or interject
ethical professionals. When these and cut short his objection by
types of trial lawyers rise from their asking to approach the bench for
seats to object during trial, they proper argument or even objecting
usually have a legitimate reason to your opponent’s objection.
for objecting. But some trial
lawyers object for improper #3. CALMING THE WITNESS
reasons. Here are four types of
When you’ve got a witness on
improper objections you should be the ropes during cross-
aware of. examination, the last thing you
want to do is ease up and let him
#1. COACHING THE WITNESS off the ropes. But that’s all your

This is probably more common opponent can think about. More
at depositions than it is at trial, but than anything else in the world, he
you need to keep your ears alert wants to find a way to give the
for any attempt by your opponent witness some breathing room so
to suggest answers to the witness that he can collect his thoughts
through his objections. (ex. and respond to your attacks. One
“Objection - the witness should technique that lawyers use when
only responds if he remembers.” trying to slow down your attack is
Witness: “I don’t remember.”) to ask the judge if they can
These types of objections are approach the bench. At the
improper and obstruct the bench, they’ll make an objection,
witness’s testimony. If your not in hopes of having the
opponent attempts to coach the
“Sneaky Tricks” continued on page 16
witness through his objections,
you should object in kind, asking
the court to prohibit the attorney
from “coaching the witness” or
“improperly suggesting answers to
the witness.”
#2. SPEAKING OBJECTIONS

“Objection, your Honor. The
question violates your pre-trial
ruling. Counsel knows better than
to violate the order of the court, so
he must be doing it deliberately in
an attempt to publish inadmissible
evidence to this fair minded jury. I
must object, because counsel has
been doing this all day, and…”

You get the point. If your
opponent insists on making
speaking objections (and, for some
[15]
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YOUR WORDS MAY BE TELLING THE JUDGE THAT THE EVIDENCE IS
IMPROPER, BUT WHAT MESSAGE ARE YOU REALLY SENDING?

In trial, it’s not enough for you to
merely object in a timely manner and
s t a t e t h e c o r re c t “ b u z z w o rd ”
objection. You also need to convince
the judge that your objection is
correct and he should rule in your
favor. One way to subtly influence
the judge’s decision is by looking
confident when you decide to object.
Obviously, just because you look
confident doesn’t necessarily mean
that the judge will rule in your favor
(after all, you might be 100%
convinced of something that isn’t
true), but when you believe what
you’re saying, judges and jurors
naturally feel more inclined to believe
you. (Caveat: You better be right -- if
you appear confident in your
decision but are later proven wrong,
they’re not going to trust your
opinion the second time around!)

More important that looking
confident, however, is not appearing
weak or indecisive. When you look
like you lack confidence in your
objections, judges are more likely to
© 2009 by Trial Theater, LLC - All Rights Reserved

overrule you, because if you don’t
believe in the positions you’re
advocating, why should the judge?

So if confidence is so important
to getting the judge to rule in your
favor, how do you develop it? As
Winston Churchill said, “Before you
can inspire with emotion, you must
be swamped with it yourself. Before
you can move their tears, your own
must flow. To convince them, you
must yourself believe.” If you want
the judge to rule in your favor, you
must feel confident that your position
is the correct one. Here are four
quick tips for making confident
objections:
1. KNOW THE LAW
It doesn’t matter if you have movie-
star looks and the poise of an
international diplomat. You can’t
confidently object if you don’t know
what you’re doing. Confident
objections begin with knowing the
Evidence Code better than you know
“Confidence” continued on page 17
[16]

“Sneaky Tricks” continued from page 15
objection granted, but in hopes
of letting the witness calm
down. If you’re confronted with
this technique, don’t let the
witness off the ropes! Instead,
respond by immediately
withdrawing your question,
thereby removing the need to
approach, and then hitting the
witness from a different angle.

It’s perfectly valid for your
opponent to voir dire the
witness and determine his
q u a l i fi c a t i o n s t o t e s t i f y.
However, many lawyers will go
beyond the scope of the voir
dire and attempt to begin their
cross-examination of the
witness before you can initiate
your direct examination. When
this happens to you, object that
counsel is exceeding the scope
of voir dire and is attempting to
cross-examine the witness, then
ask the judge to let you proceed
with your direct examination.

Depending on where you
practice, your judge may let
your opponent get away with
some of, all of, or none of these
tricks. But regardless of
whether or not your judge
allows these tricks in your
courtroom, and regardless of
how often your opponents try to
use these sneaky tricks against
you, don’t ever feel tempted to
respond in kind. For the rest of
your career, the most valuable
asset you’ll ever bring into the
courtroom is your reputation for
professionalism. It takes a
lifetime of hard work to develop
that reputation, but getting
caught using one sneaky trick
can ruin your spotless
reputation.

To get more trial advocacy tips, visit www.TrialTheater.com
“Confidence” continued from page 16
the back of your hand. Buy an extra
copy of your evidence rules to keep in
the bathroom if you have to, but make
sure that you have read the rules from
cover to cover before stepping into the
courtroom. You might wish that there
was an easier way, but unfortunately,
there’s simply no substitute for
knowing the rules by heart.

Additionally, some objections
require more than a generic
knowledge of the rules. For these
situations (which you should recognize
before you reach the courtroom),
make sure you’ve done your research
and have prepared a pocket brief or
brought copies of the appropriate
caselaw in support of your position.
2. RISE WITH PURPOSE
Leaping to your feet the way you did
back in college when your team
scored the winning touchdown doesn’t
look very professional when you’re in
the courtroom. Even so, many trial
lawyers look like they’re just as likely
to yell “Touchdown!” as they are to
announce, “Objection!” when they rise
from their seats. This type of
demonstration sets the wrong tone.
You don’t want to look like you’re
celebrating the opportunity to object.
Instead, you want the jurors to feel like
you’re almost disappointed that you’re
being forced to object. Remember,
you’re not objecting because you
want to -- you’re objecting because
your opponent has done something
improper, placing you in the awkward
position of having to call attention to
his misdeed. Here are a few ways to
maintain your poise when rising to
object:

Position yourself correctly. Keep
your feet firmly planted on the floor,
approximately shoulder-width apart,
so that you’ll be able to stand up
without shuffling your feet around.
Keep your chair pushed slightly back
from the table, so you can stand in a
single fluid motion without banging
into it when you stand up and so it
won’t lean against the back of your
legs while you remain standing to
argue your objection.
© 2009 by Trial Theater, LLC - All Rights Reserved


Don’t stand up preemptively.
Unless you’re going to say
“Objection,” you should remain
seated. In my opinion, standing
without objecting lacks
professionalism, because it seems
calculated to “upstage” the other
lawyer and draw attention to yourself.
Either object or don’t object, but don’t
try to take the middle ground and
“hover” while your opponent is
speaking. Knowing what your judge

Rise, Igor, rise! You don’t want to
fall over yourself or knock your chair expects will increase the
over by rushing as you rise to object. chances your objections will
Instead, you want to rise from your be sustained.
seat in a calm, deliberate manner.
Don’t use your arms to lift yourself up
from your chair or table. Stand tall,
because all eyes in the courtroom will
be upon you. As you remain standing,
avoid fidgeting. Don’t put your hands
in your pockets or rest them on the
table. Keep your hands down by your
sides or let them move naturally to
emphasize any points you make.
3. SPEAK WITH POWER
“Um... objection? Hearsay?” Don’t
let your voice trail off at the end. Your
The Rules of Evidence may be
objection is not a question, it is a
the same in each courthouse, but
declarative statement that should stop
how those rules are applied
the proceedings immediately. You varies from courtroom to
need to sound confident and force courtroom. For some judges
your voice to rise above the noise of (especially those who go to bed
courtroom doors opening and closing, with a copy of the Evidence Code
traffic noises from outside the tucked beneath their pillows), the
courtroom, etc. If your voice is weak, word “Objection” may be all they
build it up by joining a Toastmasters need to hear before sustaining or
group to practice speaking in public, overruling the objection. Some
using breathing exercises, or learning judges will ask to hear the
grounds before deciding, but only
“Alexander Technique” methods. Your
want to hear a single “buzzword”
voice is your instrument -- tune it!
objection, while others will let the
lawyers bicker back and forth
4. PUT IT ALL TOGETHER
before finally ruling. To learn
Once you’ve made the decision to
what your judge expects before
object, you’ll want to halt the you go to trial, talk to the
proceedings by announcing courtroom deputy, the court
“Objection” and simultaneously rising clerk, or other lawyers who have
from your seat. You want the process tried cases in that courtroom.
to feel like second nature, so that Spend an afternoon in court,
every time you say the word watching the judge in action.
“Objection,” you automatically rise Maybe even (gasp!) talk to the
judge himself and ask what he
from your seat. Don’t be afraid to
expects. As the Boy Scout Motto
practice the process a few times in the
says, “Be Prepared!”

privacy of your office. After all,
practice makes perfect!

[17]
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You can object to protect your witness during
cross-examination, but should you?
Your opponent is cross-examining
your star witness, and begins asking
objectionable question after
objectionable question. Should you
object to protect the witness?
Well, it depends. Certainly, if the
questions are unduly harassing your
witness, prying into sensitive/
privileged areas, or causing undue
embarrassment, then yes, you should
certainly object.
B u t s u r p r i s i n g l y, m a n y
experienced trial lawyers will tell you
that they rarely object during the
cross-examination of their witnesses.
They know that jurors can see for
themselves when a question is unfair
or calculated to be misleading, and it’s
usually pretty obvious when a trial
lawyer is abusing a witness.
So if it’s so obvious that the lawyer
is attempting to abuse your witness,
why wouldn’t you want to object?
The reason you wouldn’t object is
because you want the jurors to see
that the witness is capable of fending
for himself (to a point). As Mark Twain
said, “If you tell the truth you don't
have to remember anything.” When
your witness has the truth on his side,
TO EXCLUDE INFORMATION
These objections prevent jurors
from hearing improper or
prejudicial information.
Examples:
• Hearsay
• Insufficient predicate
• Privilege
• Miranda violation
• Violation of motion in limine
• Relevance
• More prejudicial than probative
© 2009 by Trial Theater, LLC - All Rights Reserved

he doesn’t need very much
help. By letting your witness
tell his story without
interruption, you’re letting
the jurors see that your
witness is confident in his
answers, that his responses
are the truth, and that you
have nothing to hide. When
he’s able to fend for himself
without your intervention, the jurors
are more likely to believe what he
says.
There’s also another reason why
forced to sit and answer your
you might not want to object when
questions during jury selection. The
your opponent treats your witness
witness is prohibited from asking any
rudely: When he insults the witness,
questions or taking a “time out,” just
he’s indirectly insulting the jury, too.
like they are.
Your jurors feel like they have
That’s why, in any confrontation
much more in common with your
between a lawyer and witness, unless
witness than they have in common
your witness turns out to be a jerk, a
with the opposing lawyer.
boor, or a liar, the jurors are going to
Think about the similarities in their
side with the witness. When they see
courtroom experiences: Your witness
the “abusive attorney” picking on the
raised his hand and swore to tell the
witness, they’re going to voice their
truth, just like they raised their hands
own objections about his tactics. But
and swore to tell the truth before jury
rather than objecting in the courtroom,
selection began. Your witness is
they’re going to object where it really
forced to sit and answer questions
matters, in the deliberation room!

from the attorneys, just like they were
TO MODIFY QUESTIONING TO PREVENT PREJUDICE
The information may be Often, these types of offenses
admissible, but the form of the aren’t contained within the written
question is improper, and needs to record, and you must establish a
be fixed before the attorney may sufficient record of the offense.
ask the question.
Examples:
Examples: • Violating the rule of sequestration
• Leading (two witnesses seen talking in the
• Argumentative hallway regarding their upcoming
• Narrative testimony)
• Compound question • A juror blows kisses at your
opponent during closing argument
[18]
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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

© 2009 by Trial Theater, LLC - All Rights Reserved
[19]
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You don’t need thousands of
courtroom hours under your belt to
successfully spot objectionable
material. Here’s how to anticipate
when you’ll need to object.
The difficulty with objecting isn’t
spotting objectionable material. Every
trial lawyer can tell when a skunk has
been let loose in the courtroom. The
difficulty is being able to identify the
objectionable material before the
stench hits the jury. Fortunately, with a
little bit of effort, you can train yourself
to anticipate objections before they
happen. As Sun Tzu said in The Art of
War, “If you know the enemy and know
yourself, you need not fear the result
of a hundred battles. If you know
yourself but not the enemy, for every
victory gained you will also suffer a
defeat. If you know neither the enemy
nor yourself, you will succumb in every
battle.” Here are a few quick tips for
training yourself to anticipate
objectionable material:
#1. KNOW YOUR OPPONENT
The courthouse is a small community.
If you ask around, you can quickly
learn almost everything you need to
k n o w a b o u t y o u r o p p o n e n t ’s
courtroom habits. Find other lawyers
who have tried cases against your
opponent, take them out to lunch, and
then pick their brains. They’ll be able
to tell you how he normally acts in trial,
what arguments he normally
makes, how he objects (and
responds to objections), and
much more. As trial
lawyers, we’re victim to our
own habits, so if he’s used
the same jury selection
technique successfully in
other trials, chances are
that he’ll probably use it
in your trial, too. Learn
what to expect and you’ll
be prepared to counter it
during trial. If his expected use his momentum to push
actions are prejudicial, file through objectionable material.
motions in limine to prevent him from Again, if the information is damaging,
doing it. file a motion in limine to exclude it.
#2. KNOW YOUR OPPONENT’S CASE #3. KNOW YOUR BUZZWORDS
Every good trial lawyer knows the Finally, keep your ears open for
importance of placing yourself in your buzzwords or questioning patterns
opponent’s shoes and looking at the that indicate objectionable material is
strengths and weaknesses of the case about to rear its ugly head. If you
through their eyes. As you’re know what to listen for, you’ll be ready
analyzing your opponent’s case, ask to object. Here are a few examples:
yourself, “What testimony or exhibits • “So, in summary…” (Asked and
will my opponent attempt to introduce answered; Repetitive; Argumentative)
into evidence that will hurt my case or • “Would you say…” (Leading)
help their case? What arguments will • “What if I told you that Mr. Smith
he make that will hurt my case? What testified…” (Improper opinion, Calls
objectionable evidence might he for speculation, Violates the Rule of
attempt to introduce? Through which Witness Sequestration)
witnesses will he attempt to introduce • “Isn’t it possible that…” (Calls for
that evidence?” By knowing what to speculation)
look for (and when to look for it), you’ll • Use of “and” and “or” (Compound
be ready to object and will stay alert question)
when your opponent rushes through a • “What did you hear…” or “What
section of testimony, possibly trying to did she say…” (Hearsay)

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© 2009 by Trial Theater, LLC - All Rights Reserved
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