TRIAL PRACTICE
The Object of My Objection

By Christopher C. vanNatta and Timothy J. Cothrel

An objection missed or poorly made can and almost always does have disastrous consequences. The ultimate object of an objection is not to win the point but to win the case. An objection is the means by which the advocate attempts to prevent the jury from hearing or seeing unfair evidence presented by the opposition. Although we cannot provide practice or experience in an article, we can provide some insights to prepare you for using objections and making them effectively.

Whether to object. In any trial, you could probably find some reason to object to half of the questions or evidence offered by your opponent. Before launching yourself into objection mode, consider whether the unfair evidence really hurts your case. You must also consider whether it is worth the risk to object. Generally, jurors expect attorneys to object to some extent, but they still react, consciously or subconsciously, to your objections and the subsequent rulings in ways that can hurt your credibility and your case.

The object of objections is to use them in a way that enhances your advocacy of your case. To gain an advocacy advantage from winning the objection, the exclusion of the evidence has to be more important than any potential annoyance it may cause the jury. The peril for the objecting attorney is twofold. First, even if your objection is sustained, the jurors will probably be disgruntled because they’ll think they are being denied information your opponent presumably thought was fair and helpful. By contrast, if you are overruled, the jurors will likely pay special attention to the bit of evidence you did not want them to hear and, as a result, may give it even more weight than it deserves.

Another consideration is whether it might be more advantageous to deal with the unfair evidence in some alternative fashion. It may be better to address the matter during cross-examination. By raising your concerns about the evidence with the witness, you gain several advantages, including not ceding the trial spotlight to the judge, putting your own rhetorical spin on the evidence, making your point with greater impact through a series of questions rather than a single objection, and avoiding being seen as obstructionist or secretive.

The balancing tests must be immediate. You must know your case inside out and give potential objections extensive thought before ever entering the courtroom. Remember, the trial is the time for advocating; pretrial is the time for thinking. Doing as much thinking as possible before trial eliminates the need for split-second assessments of the impact of unfair evidence.

When to object. Ideally, you want to prevent the offending evidence from ever reaching jurors’ eyes or ears instead of having the judge instruct them to disregard what they’ve already seen or heard. You should object as soon as your good-faith basis for making the objection arises. Note that this may occur even before the trial, in which case your concerns should be addressed in a motion in limine.

While reading over the defendant’s pretrial statement, for example, you may notice that he continually refers to the victim’s reputation for promiscuity. Resolving, before the trial begins, whether such testimony will be admitted allows you to present your case knowing outright whether this potentially explosive issue should be addressed in voir dire and opening statement. Similarly, a sustained objection or successful motion before trial prevents the opposition from creating prejudice against your case by alluding to improper evidence during its opening statement or voir dire. This information provides you with a much freer forum in which to argue your point. Furthermore, the jurors will not be tainted by exposure to counsel’s arguments or the inadmissible evidence, nor will they be waiting impatiently in the deliberation room while the admissibility of the evidence is debated “out of the presence of the jury.”

On the other hand, if you failed to anticipate the issue, objecting late may be better than not objecting at all, for two reasons. Objecting lets you make a record to preserve the opportunity to appeal. Also, you may be able to diminish the impact of some information the judge tells the jury to disregard. Thus, even your late objection might still help you win on the merits.

In other instances it may be tactically advantageous to intentionally delay your objection. If your opponent repeatedly uses improperly formed questions, waiting to object until she racks up a few bad questions can help you appear excessively fair and patient but simply no longer able to bear the burden of such an offensive examination.

How to object. Your assessment of the unfairness of the evidence and its impact on your case should drive your decision regarding the tone of your objection. Project an image of cool competence, objectivity, and professionalism by keeping your tone forceful and confident, with just a hint of apology for sidetracking the proceedings. Don’t let your emotion detract from your credibility or diminish your advocacy.

Regarding the substance or content of your objections, there is only one hard-and-fast rule: If you want a ruling, always include the word object or objection at some point. Otherwise, your interjection may legitimately be treated as a mere observation or comment on the action. Judges are not required to rule on, and may even rebuke you for making, observations or comments; they are, however, required to rule on objections. Ensure that it is crystal clear to the judge, the opposition, the jurors, and—most importantly—the record when you do make one.

You may have heard yet another sacred rule: Include a rule number in your objections. In fact, unless the jurisdiction requires such a thing, it is probably not necessary and may even detract from your advocacy. Most people don’t talk in numbers; if they want to refer to something, they call it by its name. Note that it may be necessary to use the number if the objection is uncommon or obscure or has multiple elements or bases, or if the judge looks confused.

In addition to the common name of the objection, the corresponding rule number, and a summary of the rule, you may want to consider injecting a brief offer of proof into your objection if the basis is unclear. You must also provide an offer of proof as to what you expect the witness will say. If the offer of proof will be lengthy, will require the judge to voir dire the witness, or will likely elicit argument from defense counsel, make it at sidebar or otherwise outside the presence of the jury.

Sometimes counsel includes so much content in an objection that it becomes a “speaking objection”—an objection with an explanation that goes beyond an offer of proof. Of course, if your opponent is making it, it is an “improper argument” rather than “merely an explanation.” Although speaking objections are generally frowned upon, explaining why you object may help you win the point, particularly if you are late with your objection, by orienting the judge to the reason for your objection and providing supporting argument. Before using this tactic, however, consult your local rules and be sure about your judge’s view of such objections.

FOR MORE INFORMATION ABOUT THE SECTION OF LITIGATION

This article is an abridged and edited version of one that originally appeared on page 26 of Litigation, Fall 2006 (33:1).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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Books and Other Recent Publications: More than 30 titles in print, including The Trial Lawyer: What It Takes to Win, DVD/book package; The Curmudgeon’s Guide to Practicing Law; Motion Practice and Persuasion; McElhaney’s Trial Notebook, 4th ed.; Business Torts Litigation, 2d ed.; Discovery Problems and Their Solutions; Electronic Evidence: Law and Practice; Model Jury Instructions: Patent Litigation; Questions from the Bench; Effective Appellate Advocacy; Examining Witnesses, 2d ed.; Model Witness Examinations, 2d ed.; Internal Corporate Investigations, 2d ed.; Fighting Injustice (Michael Tigar); The Attorney-Client Privilege and the Work-Product Doctrine, 4th ed.; Persuasion: The Litigator’s Art; The Litigation Manual, 3d ed.

Christopher C. vanNatta is with The Timken Company in Canton, Ohio; he can be reached at . Lieutenant Colonel Timothy J. Cothrel is a judge advocate currently assigned to Air War College in Montgomery, Alabama; he can be reached at .

Copyright 2007

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