special report objections
DESCRIPTION
Tips on how to object in court trial practice.TRANSCRIPT
© 2009 by Trial Theater, LLC - All Rights Reserved [1] To get more trial advocacy tips, visit www.TrialTheater.com
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Learn how to make objections that get sustained and how to keep cool under pressure when your opponent objects
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,
y o u r i s s u e s p o t t i n g s k i l l s
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
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!”) Technical ly, they’ re r ight ,
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
piece of evidence and every word
of testimony, and then answer the
following three questions:“You Can Object” continued on page 2
© 2009 by Trial Theater, LLC - All Rights Reserved [2] To get more trial advocacy tips, visit www.TrialTheater.com
“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 t r ia l lawyers in your
courthouse. Just because the
evidence is objectionable doesn’t
mean you should object. Not
every issue really matters. For
example, in a single witness
examination, you may spot 23
leading questions. Technically,
they’re all objectionable. But
before you object, you ask
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 shoot ing
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
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 tr ial 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
© 2009 by Trial Theater, LLC - All Rights Reserved [3] To get more trial advocacy tips, visit www.TrialTheater.com
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 the testimony before it gets any worse by getting the word out of your mouth loudly and clearly
State your legal basis for the objection. Unless your judge allows speaking objections, keep it short (i.e. “Hearsay”)
If your objection is sustained, what do you want the judge to do? Strike testimony?Give a curative instruction? Declare mistrial?
When appropriate, if your objection is overruled you might need to proffer some additional information for the appeals court
© 2009 by Trial Theater, LLC - All Rights Reserved [4] To get more trial advocacy tips, visit www.TrialTheater.com
Nope, we’re not talking about
readin’, ‘ritin’, and ‘rithmetic. Here are
the three “R’s” you should consider
when analyzing the introduction of
evidence. Is the evidence Relevant? Is it Reliable? And is it Right to admit
the evidence?
#1. IS IT RELEVANT?Federal Rule of Evidence 401
defines relevant evidence as any
evidence “having any tendency to
make the existence of any fact that is
of consequence to the determination
of the action more probable or less
probable than it would be without the
evidence.” Rule 402 says that “All
relevant evidence is admissible,
except as otherwise provided by the
Constitution of the United States, by
Act of Congress, by these rules, or by
other rules prescribed by the Supreme
Court pursuant to statutory authority.”
How much more broadly could they
have defined what’s “relevant”?!?
Basically, everything “relevant” should
be admissible, unless specifically
prohibited by law. What is the material fact that you are trying to prove? If
you can show any reason why your
p roposed ev idence p roves o r
disproves a material fact in the case,
your evidence should be relevants.
#2. IS IT RELIABLE?
The most common reason why
evidence won’t be admissible is
because it’s not reliable. Jurors
should be able to make their decision
based on the most reliable information
available. Why is hearsay evidence
generally excluded? Because it’s
secondhand information. It’s not as
reliable as firsthand information. You
can’t cross-examine the person who
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
was a Wednesday. Anyone and
“The Three R’s” continued on page 5
“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
i m p ro p e r e v i d e n c e . B u t
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
c a s e . C o n s i d e r a l l t h e
ramifications before you say,
“Ob jec t ion , ” and then ask
yourself, “Can I object? Should I
object? And if so, when will I
object?”
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!
© 2009 by Trial Theater, LLC - All Rights Reserved [5] To get more trial advocacy tips, visit www.TrialTheater.com
“The Three R’’s” continued from page 4
everyone can confirm that. There’s no
need for a party to invest resources
p ro v i n g t h a t J u n e 9 t h 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,
w a s t e o f t i m e , o r n e e d l e s s
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
c o n c l u s i o n a n d s h o r t c u t t h e
deliberation process – that’s not right.
Privileges. Anything a patient tells
t he i r psych ia t r i s t i s p robab l y
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
say in confidence wi l l be
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 ev idence 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 [6] To get more trial advocacy tips, visit www.TrialTheater.com
“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 [7] To get more trial advocacy tips, visit www.TrialTheater.com
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 SUSTAINEDCongratulations, the judge agreed with your
argument! But don’t tell the judge “Thank you” for the
ruling -- the judge wasn’t giving you special treatment by
ruling in your favor, he was just following the law. If you thank the judge for ruling in your favor, you may get
rebuked, so instead, quietly sit back down at your table,
try not to gloat, and get ready for your opponent’s next
move.
Even though your objection has been sustained, it’s
essential that you keep objecting because the battle’s not
over yet. You still need to keep your ears open to ensure
that your opponent abides by the court’s ruling. If your
opponent attempts to introduce the evidence from a different angle or through a different witness and you fail
to object, you will be deemed to have waived your
objection.
Finally, you need to ask for a remedy. Do you want
the testimony stricken? A curative instruction? A
mistrial? Unless you ask for a remedy, the court can’t fix
the problem.
IF YOUR OBJECTION IS OVERRULEDFirst, let’s examine whether your objection is
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
objection, since technically, the question only calls for a
“Yes/No” response.
But just because you’ve been overruled doesn’t mean
you shouldn’t continue objecting. If your opponent asks about the content of her statement (which would be
hearsay), be ready to stand up and object again.
Even if your objection was timely, the judge may not
have heard enough to sustain your objection. Be ready to
object again if the prejudice continues, perhaps even
asking for a continuing objection. For example, if the judge
overrules your hearsay objection, and your opponent
intends to ask 23 follow-up questions about the
statements, you can ask the judge for a continuing objection so you’re not jumping out of your seat with each
new question. A word of warning, however. If you’re
asking for a continuing objection, you need to be very
specific about what you’re objecting to. “Your Honor, I
object to this line of questioning” is insufficient. “Your
Honor, we ask to have a continuing objection on the
grounds of ‘hearsay’ to any questions counsel asks about
the babysitter’s statement” is more specific.
Finally, be prepared to make an offer of proof so that you can protect your appellate record. If an offer of proof is
necessary, ask the judge for the opportunity to proffer the
evidence outside of the jury’s earshot.
IF YOUR OPPONENT’S OBJECTION IS OVERRULEDIf the judge overrules your opponent’s objection,
don’t just tell the witness, “You may answer the
question.” Instead, repeat the entire question for the
witness.
Repeating the entire question serves several
important functions. First, it helps eliminate the
possibility of any misunderstanding. If your judge
conducted a bench conference before ruling on your
opponent’s objection, several minutes may have passed
between the time the question was asked and the
witness is permitted to answer. In the meantime, the
witness (as well as the jurors) may have forgotten what
question you asked. By asking the question a second
time, you get everyone back on the same page,
eliminating the chances of a potential misunderstanding.
Second, repeating the entire question bolsters (ever
so slightly) your credibility by reminding the jurors, “My
opponent was wrong, I was right, and the judge has
agreed to let me ask the question.”
Finally, repeating the entire question allows you to
regain control of the courtroom, which shows your
opponent that you won’t be rattled by his objections.
IF YOUR OPPONENT’S OBJECTION IS SUSTAINEDFirst, pause for a moment. You don’t need to
immediately ask your next question. Take a moment to
clear your brain and prepare for the task ahead.
Second, rephrase your question if possible. There
may be an easy way to avoid the objectionable
material, so give your witnesses some guidance to
avoid the potential landmine in their testimony. (ex.
“Without telling us what the babysitter said, can you tell
us if you talked with her when you arrived home?”)
Next, you’ll want to think if there’s another way you
can make the evidence admissible. Just because
evidence is inadmissible for one reason doesn’t mean it
isn’t admissible for another reason. (The best time to
conduct this analysis is before trial).
If you can’t think of another method to admit the
testimony, make an offer of proof if necessary,
presenting caselaw for your most important evidentiary
rulings. (Again, hopefully you’ve handled the important
evidentiary issues before trial!)
If all else fails, smoothly transition to another
section of testimony if you can’t rephrase your question
or think of another way to admit the testimony. It may
not be the most desirable result, but at least you’ll look
like you’re still in control of the courtroom.
© 2009 by Trial Theater, LLC - All Rights Reserved [8] To get more trial advocacy tips, visit www.TrialTheater.com
Q: “Tell us, Mrs. Bear -- What did you HEAR Bebe
Behr SAY?”
A: “I HEARD him SAY that someone had slept in his
bed and eaten his porridge.”
Even if your legal education consists exclusively of watching
People’s Court re-runs, you probably know the proper objection to
that question. If you’re like most lawyers, you wanted to leap out of
your chair and yell, “OBJECTION! Hearsay!” before the witness had
a chance to answer.
Technically, you’d be correct. The question does ask the
witness to relay an out-of-court statement. Presumably, the
attorney wants the jury to believe the statement is true. If you
object, you’d be right -- the statement meets the classic definition
of hearsay. If this was an Evidence test, you’d get an A+.
But should you object?
When you successfully object and prevent the jurors from
hearing information, it’s only natural for them to be curious about
what they didn’t hear. Don’t believe me? Well, let me illustrate by
telling you a story about something that happened to me last week.
My friend’s office is downtown, and his personal assistant is a
woman named Susie. Susie is a tall brunette with a commanding
presence. She speaks with just a hint of an accent, but I can never
quite place its origin. Not quite Russian and not quite Romanian,
“Curiosity” continued on page 9
The lead defense attorney listened intently as the prosecution’s star witness testified. He had spent hours honing his questions and preparing his cross-examination of the witness. It had been a late night, but he felt ready for the challenge. He and his trial partner both knew that unless they could successfully cross-examine the witness and show the jurors why his story wasn’t believable, they didn’t stand a chance.
About halfway through the direct examination, the prosecutor asked, “What did you hear the man say?” As the witness started to answer, the defense team’s second-chair attorney rose to his feet and stated, “Objection! Hearsay!”
The judge sustained the objection, and the rest of the examination proceeded without incident. After the prosecutor asked his final question, the judge asked, “Would defense counsel like to cross-examine the witness?”
Rising from his chair, the lead defense attorney said, “Yes, the defense would 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
w i t n e s s , D O N ’ T O B J E C T T O ANYTHING THE WITNESS SAYS!!!
Curiosity killed the cat. If you object at the wrong time, or for
the wrong reasons, it might kill your case, too!
© 2009 by Trial Theater, LLC - All Rights Reserved [9] To get more trial advocacy tips, visit www.TrialTheater.com
“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
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
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
p e r s p e c t i v e - - e v a l u a t e y o u r
objections from a tactical perspective
a n d f r o m a c o m m o n s e n s e
perspective. Think about the case
from the jury’s perspective, and then
ask yourself: “Should I object?”
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
WITNESS EXAMINATION• Relevance
• Insufficient predicate
• Hearsay
• 403: Evidence more prejudicial
than probative
• Leading
• Privileged information
• Assumes facts not in evidence
• Argumentative
• Narrative
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
© 2009 by Trial Theater, LLC - All Rights Reserved [10] To get more trial advocacy tips, visit www.TrialTheater.com
It happens in courtrooms every
day. Evidence that shouldn’t be
admissible is shown to the jury
because opposing counsel fails to
object, or objects too late...
Plaintiff’s attorney: Mr. Jones,
w h a t d i d y o u h e a r M r s .
Thompson say?
Mr. Jones: I heard her say that
the defendant decided not to fix
the safety device because it was
too expensive and he didn’t care
if anyone got hurt.
Defense a t to r ney : Umm,
objection? Hearsay? I mean,
“Objection! Hearsay!”
Once the jury hears the evidence,
it’s too late. Objecting afterwards is
like closing the barn door after your
h o r s e e s c a p e s , a n d c u r a t i v e
instructions are about as effective as
trying to squeeze toothpaste back
into the tube. Objecting after-the-fact
doesn’t help your case. You need
your objections to be timely. Here are
four tips for improving your courtroom
objections, so that you can be as fast
on the draw as you should be.
#1. KNOW YOUR EVIDENCE CODEIf you intend to practice in the
courtroom, rather than from behind a
desk, you need to master the
Evidence Code. What’s admissible?
What’s not? You won’t know if you
don’t read the Code from cover to
cover. I wish there was some
shortcut I could give you, but there’s
simply no substitute for reading the
whole thing. Better yet, you want to
read an evidence book that provides
commentary and analysis. Here in
Florida, for example, almost every
lawyer and judge depends upon Prof.
Charles Ehrhardt’s Florida Evidence.
Get the copy that corresponds to your
practice area, and invest the time to
read through it.
#2. RAISE THE RIGHT OBJECTIONA general “Objection!” isn’t sufficient.
Sure, if the judge sustains your
objection, then any legitimate reason
will be upheld on appeal, but if you’re
overruled, “relevance” will be the only
objection you’ve preserved. So, if the
proper objection should be “hearsay”
or “insufficient predicate,” when the
judge overrules your objection, it will
be properly overruled, even though
there’s another valid basis for
sustaining the objection.
#3. KNOW HOW TO OBJECTOnce you’ve mastered the evidence
code, you’ll have a much better idea
of what’s objectionable and what’s
not. The next phase is to determine
how to object. Most judges won’t
a l l o w y o u t o m a k e s p e a k i n g
objections (ex. “Objection! That
evidence shouldn’t be admissible
because I can’t cross-examine the
person who made the statement,
robbing my client of his right to
confront his accusers. It’s hearsay!”),
and will limit you to a single phrase
objection (ex. “Objection! Hearsay!”)
Know a l l o f your “buzzword”
objections so that you can make the
objection quickly and effectively.
Here is a quick guide on how to
object:
a. Say “Objection!” Get the word
out forcefully and as quickly as you
can, even if you’re still in your seat.
Speak out and stop it before it gets
“Timing” continued on page 11
Years ago, at the beginning of my career, I was trying a case against an attorney who started yelling and screaming during closing argument. M u c h o f h i s a r g u m e n t consisted of pointing at one of my w i t n e s s e s ( w h o h a d returned to the courtroom galler y to watch closing arguments) and accusing the w i t n e s s o f a v a r i e t y o f 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! W h a t h e ’ s s a y i n g i s 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 j u r o r s r e t u r n e d t o t h e 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 o b j e c t e d , I w o u l d h av e 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 t h e j u r o r s v o i c e t h e i r objections in the deliberation room.
© 2009 by Trial Theater, LLC - All Rights Reserved [11] To get more trial advocacy tips, visit www.TrialTheater.com
“Timing” continued from page 10
worse. The judge may say “sustained”
without any further argument, but if not,
you’ll at least have some time to think
while you rise to your feet and give the
proper legal objection.
b. Stand up. You know better than
to address the court while seated.
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. PRACTICEHow 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
probably have more reasons to object
to them. Watch, and object whenever
you think it’s appropriate.
The best thing you can do is to
quickly make the right decision. The
second best thing you can do is to
quickly make the wrong decision. The
worst thing you can do is not make any decision. The more you practice, the
faster and more accurate you’ll
become. Your goal is to sort through
the entire process (”Is it objectionable?
If it’s objectionable, does it matter? If it
matters, object!”) in an instant. Invest
the effort in practicing, and before long,
you’ll become a quick draw objection
artist, ready to challenge anyone in
town to a duel.
© 2009 by Trial Theater, LLC - All Rights Reserved [12] To get more trial advocacy tips, visit www.TrialTheater.com
When was the last time you
watched someone else try a case?
Have you ever snuck into a courtroom
and watched your opponent present
a case? If not, let me recommend
you jump at the opportunity to watch
someone else pick a jury and present
their case. If you do, you’ll learn
some things that you wouldn’t
normally notice about successfully
trying cases.
Every year, I get the opportunity
to watch numerous jury trials and
critique the performances of the
attorneys. When I watch a trial, I try
not to read the case file or review a
case summary, because I don’t want
to know any more about the case
than the jury would. I want to be
complete ly detached f rom the
emotional background of the case, so
that I can just sit in the back row and
watch the trial unfold, critiquing the
trial from the jury’s perspective.
Watching all of those trials, one of
the things I noticed was just how
irritating bench conferences are. In
one of the trials I watched last year,
the attorneys seemed to spend more
time presenting their cases to the
judge than they did presenting their
cases to the jury. When most
a t torneys approach for bench
conferences, they violate a cardinal
presentation tip: Never turn your
back on your audience.
Have you ever seen a
live theater performance?
No matter where the
actors move on the
stage, they never turn
their backs on the jury.
It’s the same on TV.
You’ve probably noticed
how TV families are always
gathered on one side of the dinner
table, right? That’s so they don’t
turn their backs on the camera and
exclude anyone in their audience.
You know how rude it feels when
someone turns their back on you.
But when you approach for a bench
conference, that’s exactly what
you’re doing. You’re turning your
back on the jurors.
T h e s e c o n d p ro b l e m w i t h
approaching the bench to argue a
point of law is that you form an
e l i te l i t t le c lub that exc ludes
everyone else in the courtroom
except you, your opponent, the
judge, and the court reporter. As I
watched the at torneys huddle
around the bench and whisper, I
wanted to lean in and listen to the
conversation. I wanted to know
what was going on. And I was
resentful that I was being excluded
from their group.
Here are two lessons you can
apply in your next trial to avoid
ignoring or excluding your jury:
LESSON #1:
Argue the Law Before Trial
The bench conferences I saw
involved points of law that should
have been handled before trial. If
you’re waiting until the day of trial to
argue essential points of law or limit
your opponent’s introduction of
evidence, you’re waiting too late. File
motions in limine before trial, and
you’ll be able to argue those essential
points of law in advance of trial,
min imiz ing the need for lega l
discussions during trial.
LESSON #2:
Don’t Turn Your Back on the Jury
If you must approach the bench
to argue a point of law or respond to
an objection, make sure you don’t
exc lude the j u ro rs f rom you r
discussion. That doesn’t mean
raising your voice so they can hear
what you’re saying — that’s improper.
But you can use your body language
to include the jury at the bench.
Rather than turning your back on the
jury, just turn your body half way or
3/4 of the way towards the judge.
Leave part of your body “open”
towards the jury, and they won’t feel
completely excluded.
No one wants to be excluded from a
conversation... especially your jurors!
© 2009 by Trial Theater, LLC - All Rights Reserved [13] To get more trial advocacy tips, visit www.TrialTheater.com
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
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
© 2009 by Trial Theater, LLC - All Rights Reserved [14] To get more trial advocacy tips, visit www.TrialTheater.com
Your judge sees more trials in a year than the average trial lawyer sees in
a lifetime. If you’re lucky, he’ll offer to help you in your next trial.
Judges are supposed to be impartial. Each judge takes an oath of office,
swearing to uphold the judicial canons and promising to remain impartial
throughout the trial. This means that even though your judge may be the most
experienced trial lawyer in the courtroom, he’s not allowed to jump into the
middle of your case and give any advice to you or your opponent. But even
though judges are supposed to be impartial, there’s something else you need
to know about them: Judges want to be fair, and they want cases to be
decided on their merits, rather than on legal technicalities.
When judges see something that they think is improper, they want to fix the
harm. That’s why you need to keep attuned to your judge throughout the trial,
because they’ll often subtly nudge you towards the correct objection. Here
are two common ways that judges can offer to help during trial.
#1. PROMPTING YOU FOR ADDITIONAL OBJECTIONS
Lawyer #1: Did Mrs. Jones tell you whether the doctor appeared
intoxicated?
Lawyer #2: Objection! The question calls for an improper opinion.
Judge: Are those your only grounds?
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,
take advantage of it. Stop and think for a minute before moving on. If
necessary, ask the judge for a moment to confer with co-counsel. Your mind is
going 1000mph in the midst of trial. That’s why you have a second-chair
attorney, because he’s not caught up in the heat of the moment and his brain
“Helping Judges” continued on page 15
“Decorum” continued from page 13
RULE #6: KEEP YOUR COOLThe worst thing you can do is to
make a fool of yourself if your
objection is overruled or if an
objection is sustained against
you. The best trial lawyers keep
their emotions in check. Don’t
shake your head, sit down in a
huff, stomp your foot, mutter
under your breath, give the evil
eye, announce your intention to
appeal the ruling, roll your eyes,
or throw your legal pad on your
table (Yes, I’ve seen lawyers do
al l of these inappropriate
behaviors!) Remember, if you
act like the judge’s ruling just
killed your case, the jurors will
think that it probably did.
Instead, keep your cool, make
your record, and show your
professionalism. This won’t be
the last case you try before this
judge!
“[B]arristers employ [the
objection’s] use with a great
deal of restraint. If an
objection is improperly made
the ill founded request for
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 [15] To get more trial advocacy tips, visit www.TrialTheater.com
“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
f r o m t h e s e a t a n d a n n o u n c e ,
“Objection!” doesn’t fade with age.
S o m e t i m e s , a j u d g e h e a r i n g
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.
The majority of the trial lawyers
that you’ll encounter throughout
your career will be competent,
ethical professionals. When these
types of trial lawyers rise from their
seats to object during trial, they
usually have a legitimate reason
for objecting. But some trial
lawyers object for improper
reasons. Here are four types of
improper objections you should be
aware of.
#1. COACHING THE WITNESSThis is probably more common
at depositions than it is at trial, but
you need to keep your ears alert
for any attempt by your opponent
to suggest answers to the witness
through his objections. (ex.
“Objection - the witness should
only responds if he remembers.”
Witness: “I don’t remember.”)
These types of objections are
improper and obs t ruc t the
witness’s testimony. If your
opponent attempts to coach the
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
reason, your judge allows them),
you can choose to respond in kind
(not recommended), or interject
and cut short his objection by
asking to approach the bench for
proper argument or even objecting
to your opponent’s objection.
#3. CALMING THE WITNESSWhen you’ve got a witness on
t h e r o p e s d u r i n g c r o s s -
examination, the last thing you
want to do is ease up and let him
off the ropes. But that’s all your
opponent can think about. More
than anything else in the world, he
wants to find a way to give the
witness some breathing room so
that he can collect his thoughts
and respond to your attacks. One
technique that lawyers use when
trying to slow down your attack is
to ask the judge if they can
approach the bench. At the
bench, they’ll make an objection,
not in hopes of having the
“Sneaky Tricks” continued on page 16
IS YOUR OPPONENT OBJECTING FOR AN ULTERIOR MOTIVE? LOOK
OUT FOR THESE SNEAKY OBJECTION TRICKS IN YOUR NEXT TRIAL.
© 2009 by Trial Theater, LLC - All Rights Reserved [16] To get more trial advocacy tips, visit www.TrialTheater.com
In trial, it’s not enough for you to
merely object in a timely manner and
state the correct “buzzword”
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
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 LAWIt 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
“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,
r e s p o n d b y i m m e d i a t e l y
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 fic 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
c ross-examinat ion o f 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
c a n r u i n y o u r s p o t l e s s
reputation.
YOUR WORDS MAY BE TELLING THE JUDGE THAT THE EVIDENCE IS
IMPROPER, BUT WHAT MESSAGE ARE YOU REALLY SENDING?
© 2009 by Trial Theater, LLC - All Rights Reserved [17] 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
r e q u i r e m o re t h a n a g e n e r i c
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 PURPOSELeaping 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.
Don’t stand up preemptively. U n l e s s y o u ’ r e g o i n g t o s a y
“Objection,” you should remain
seated. In my opinion, standing
w i t h o u t o b j e c t i n g l a c k s
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.
Rise, Igor, rise! You don’t want to
fall over yourself or knock your chair
over by rushing as you rise to object.
Instead, you want to rise from your
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
objection is not a question, it is a
declarative statement that should stop
the proceedings immediately. You
need to sound confident and force
your voice to rise above the noise of
courtroom doors opening and closing,
traffic noises from outside the
courtroom, etc. If your voice is weak,
build it up by joining a Toastmasters
group to practice speaking in public,
using breathing exercises, or learning
“Alexander Technique” methods. Your
voice is your instrument -- tune it!
4. PUT IT ALL TOGETHEROnce you’ve made the decision to
object, you’l l want to halt the
p r o c e e d i n g s b y a n n o u n c i n g
“Objection” and simultaneously rising
from your seat. You want the process
to feel like second nature, so that
eve ry t ime you say the word
“Objection,” you automatically rise
from your seat. Don’t be afraid to
practice the process a few times in the
privacy of your office. After all,
practice makes perfect!
The Rules of Evidence may be the same in each courthouse, but how those rules are applied v a r i e s f ro m c o u r t ro o m t o courtroom. For some judges (especially those who go to bed with a copy of the Evidence Code tucked beneath their pillows), the word “Objection” may be all they need to hear before sustaining or overruling the objection. Some judges will ask to hear the grounds before deciding, but only want to hear a single “buzzword” objection, while others will let the lawyers bicker back and forth before finally ruling. To learn what your judge expects before you go to trial, talk to the courtroom deputy, the court clerk, or other lawyers who have tried cases in that courtroom. Spend an afternoon in court, watching the judge in action. Maybe even (gasp!) talk to the judge himself and ask what he expects. As the Boy Scout Motto says, “Be Prepared!”
Knowing what your judge
expects will increase the
chances your objections will
be sustained.
© 2009 by Trial Theater, LLC - All Rights Reserved [18] To get more trial advocacy tips, visit www.TrialTheater.com
Your opponent is cross-examining
your star witness, and begins asking
o b j e c t i o n a b l e q u e s t i o n a f t e r
objectionable question. Should you
object to protect the witness?
Well, it depends. Certainly, if the
questions are unduly harassing your
wi tness, pry ing into sensi t ive/
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,
he doesn’t need very much
help. By letting your witness
t e l l h i s s t o r y w i t h o u t
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
you might not want to object when
your opponent treats your witness
rudely: When he insults the witness,
he’s indirectly insulting the jury, too.
Your jurors feel like they have
much more in common with your
witness than they have in common
with the opposing lawyer.
Think about the similarities in their
courtroom experiences: Your witness
raised his hand and swore to tell the
truth, just like they raised their hands
and swore to tell the truth before jury
selection began. Your witness is
forced to sit and answer questions
from the attorneys, just like they were
forced to sit and answer your
questions during jury selection. The
witness is prohibited from asking any
questions or taking a “time out,” just
like they are.
That’s why, in any confrontation
between a lawyer and witness, unless
your witness turns out to be a jerk, a
boor, or a liar, the jurors are going to
side with the witness. When they see
the “abusive attorney” picking on the
witness, they’re going to voice their
own objections about his tactics. But
rather than objecting in the courtroom,
they’re going to object where it really matters, in the deliberation room!
You can object to protect your witness during
cross-examination, but should you?
TO EXCLUDE INFORMATIONThese objections prevent jurors
f r o m h e a r i n g i m p r o p e r o r
prejudicial information.
Examples:
• Hearsay
• Insufficient predicate
• Privilege
• Miranda violation
• Violation of motion in limine• Relevance
• More prejudicial than probative
TO MODIFY QUESTIONINGThe information may be
admissible, but the form of the
question is improper, and needs to
be fixed before the attorney may
ask the question.
Examples:
• Leading
• Argumentative
• Narrative
• Compound question
TO PREVENT PREJUDICEOften, these types of offenses
aren’t contained within the written
record, and you must establish a
sufficient record of the offense.
Examples:
• Violating the rule of sequestration
(two witnesses seen talking in the
hallway regarding their upcoming
testimony)
• A juror blows kisses at your
opponent during closing argument
© 2009 by Trial Theater, LLC - All Rights Reserved [19] To get more trial advocacy tips, visit www.TrialTheater.com
#1. VIOLATION OF A PRE-TRIAL RULING
It’s one thing to violate an obscure rule or a rule that
you’re unaware of (“How was I supposed to know that it’s
illegal to stick pennies in my ears while standing on a street
corner in downtown Honolulu?!?”), but it’s entirely different
when you’re specifically told not to do something and then
you go ahead and do it anyway.
The purpose of motions in limine and pre-trial rulings is
to place both parties on notice about what will be allowed
and what won’t be allowed during trial. There’s no faster
way to draw a judge’s ire than by violating his direct orders,
so if your opponent violates a pre-trial ruling, bring it to the
judge’s attention immediately. Many judges view these
violations as the equivalent of thumbing your nose at the
court, and will discipline your opponent accordingly.
#2. NON-RESPONSIVENESSAlmost every witness changes their demeanor between
direct examination and cross-examination. Their body
language shifts and the tone of their responses changes as
they shift from a position of cooperation to a position of
combat readiness. If you’ve spent any time in the
courtroom, you’ve seen how witnesses who were
obsequious during direct examination become recalcitrant
during cross-examination.
But some witnesses go even further. Not content to
merely serve as a witness, they instead choose to play the
role of advocate, actively resisting all of your attempts to
cross-examine them. The first time this happens, you’re
entitled to object on the grounds that
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 COMPLETENESSThis 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
about this objection is that you don’t have to wait until it’s
your turn to ask questions before you correct the statement
-- you can do it on the spot, essentially testifying in the
middle of your opponent’s examination.
Attorney #1: You said that you were going to
“make him pay,” didn’t you?
Witness: I don’t know what you’re talking about.
Attorney #1: Page 7, line 23. “I was going to make him pay.” Those are the words you said at
the deposition, right?
Attorney #2: Objection, counsel is misleading the
jury. Under the rule of completeness, the jury also
needs to hear the next lines from that deposition to
properly understand the context of the statement.
Page 7, lines 23-24, Your Honor.
Judge: Sustained.
Attorney #2: “I was going to make him pay for his
share of the phone bill, because that was the deal
we arranged when we agreed to be roommates.
Notice that you should read the rest of the language, not
your opponent. If you let your opponent read the rest of
the statement, he’ll use his vocal inflection to minimize the
negative implications of the statement. To get the most out
of the statement, you need to read the rest of the
statement aloud. Done well, the judge and the jury will see
how your opponent tried to mislead them, and they’ll never
trust him again.
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.
© 2009 by Trial Theater, LLC - All Rights Reserved [20] To get more trial advocacy tips, visit www.TrialTheater.com
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
t ra in ing yourse l f to ant ic ipate
objectionable material:
#1. KNOW YOUR OPPONENTThe 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 tr ia l
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
actions are prejudicial, fi le
motions in limine to prevent him from
doing it.
#2. KNOW YOUR OPPONENT’S CASE Every good trial lawyer knows the
importance of placing yourself in your
opponent’s shoes and looking at the
strengths and weaknesses of the case
through their eyes. As you’re
analyzing your opponent’s case, ask
yourself, “What testimony or exhibits
will my opponent attempt to introduce
into evidence that will hurt my case or
help their case? What arguments will
he make that will hurt my case? What
objectionable evidence might he
attempt to introduce? Through which
witnesses will he attempt to introduce
that evidence?” By knowing what to
look for (and when to look for it), you’ll
be ready to object and will stay alert
when your opponent rushes through a
section of testimony, possibly trying to
use his momentum to push
through objectionable material.
Again, if the information is damaging,
file a motion in limine to exclude it.
#3. KNOW YOUR BUZZWORDSFinally, keep your ears open for
buzzwords or questioning patterns
that indicate objectionable material is
about to rear its ugly head. If you
know what to listen for, you’ll be ready
to object. Here are a few examples: • “So, in summary…” (Asked and
answered; Repetitive; Argumentative)• “Would you say…” (Leading)• “What if I told you that Mr. Smith
testified…” (Improper opinion, Calls
for speculation, Violates the Rule of
Witness Sequestration)• “Isn’t it possible that…” (Calls for
speculation)• Use of “and” and “or” (Compound
question)• “What did you hear…” or “What
did she say…” (Hearsay)
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