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May 04, 2022 Feature

Objections to Opening and Closing Arguments and Whether to Make Them

Mudita Chawla

The primary purpose of objections during trial is to prevent the introduction or consideration of inadmissible information. An additional purpose in objecting is to allow the judge to instruct the jury to disregard information it received prior to the court’s ruling on the sustaining of the objection. Counsel must make both timely and specific objections and motions to strike the evidence to preserve the objection for appellate review where the ground for objection is not apparent from the context of the discussion contained in the record. A loosely formulated and imprecise objection, such as only stating, “Objection,” will not preserve error. A proper objection is the best way to preserve the issue for appeal. It is vital to understand the rules governing timeliness, specificity, and waivers of trial objections; failure to conform to these rules can result in trial objections being moot.

An opening statement is a vehicle to inform the court and the jury in a general way of the nature of the case, provide an outline of the anticipated proof, inform the jury of the significance of the evidence as it is presented, and familiarize the jury by offering a roadmap of what is to come. Counsel should use this opportunity to portray a theme that will stick in the jury’s head as well—one that highlights your case and captures their imagination. The general rule on opening statements is that no statement may be made that counsel does not intend to prove or cannot prove. An opening statement is not an opportunity to argue the case. Reaching too far can lead to objections and remedies as severe as a mistrial.

A closing statement allows counsel to offer ways of viewing the significance of the evidence. Just as with an opening statement, this is counsel’s last opportunity to sum up the evidence and present a cohesive and compelling narrative to the judge or jury.

There are no federal rules or statutes governing opening or closing statements, but state, local, and judge-specific rules exist, so make sure you are aware of these rules in your jurisdiction. Depending on the jurisdiction, some judges will set time limits on opening and closing arguments, giving more time in complex cases.

If you decide to make an objection during opening and closing statements, you must assert the objection immediately after the objectionable statement is made, as waiting until opposing counsel has finished, or after the judge has charged the jury, is generally too late. Bear in mind that most judges are unlikely to sustain your objection, and the interruption might appear rude to the judge or jury, so make sure you are aware of your audience and only object if you believe it will help your case. It is essential to know your audience and to read your audience during the course of the trial so every action you take ultimately helps your client.

Striking the right balance between being too forceful and not making your point at all is a skill that comes with practice. The following pointers can help sharpen your toolkit and avoid pitfalls in the process.

Consider objections during opening statements if opposing counsel:

  • Makes statements that are unsupported by the evidence;
  • References inadmissible or unprovable evidence;
  • Makes statements that are argumentative;
  • Asserts personal beliefs or personal knowledge of facts in issue (“I know, I believe, etc.”);
  • Misstates the law;
  • Improperly anticipates objections; and
  • Makes disparaging and prejudicial comments about the other side, or their attorney.

Consider objections during closing statements if opposing counsel:

  • Violates the Golden Rule and suggests to jurors that they put themselves in the shoes of one of the parties, which is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence;
  • Attacks opposing counsel;
  • Posits personal opinions and beliefs;
  • Misstates the evidence presented at trial or the law;
  • Discusses evidence that was excluded;
  • Personally vouches for or comments on their client’s or a witness’s credibility; or
  • Makes statements that are prejudicial or inflammatory.

Objections to both opening and closing statements are an opportunity to ensure that the jury focuses on the admissible evidence and statements that are based on law rather than on inadmissible evidence or personal belief.

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Mudita Chawla is a partner with Chemtob Moss Forman & Beyda, LLP in New York City. She represents clients in all aspects of family and matrimonial law. She has significant experience settling and litigating disputed cases before both the trial and appellate courts.