May 07, 2018 Practice Points

Tips from the Bench: Objections

An experienced trial judge to offers tips on when and how to object

by Michelle L. Alamo with Hon. Sean F. Cox

This bar year, the Trial Evidence Committee is asking experienced trial judges to provide their insight regarding certain aspects of trial. This installment focuses on Objections, with the Honorable Sean F. Cox, U.S. District Court Judge for the Eastern District of Michigan and former Judge of the Wayne County Circuit Court in Detroit, Michigan.

What is the most important factor attorneys should keep in mind when objecting?
How the objection impacts their credibility with the judge and, most importantly, the jury. When I was a young lawyer, I was very fortunate to work with one of the top trial lawyers in the state of Michigan, Jeremiah Kenney. Jerry stressed that the only time to object was when the testimony was hurting your case or to preserve the trial record.

What is the most common mistake you see with objections?
The most common mistake I see with objections during trial is overuse. When an attorney constantly objects during the course of the trial, the jury is wondering what the attorney is trying to hide. Many good lawyers who do not have trial experience will object to every question where there is a basis for an objection. Trials are not depositions; juries want to hear testimony with as little interruption as possible. Constant objections during the course of a trial, even to questions that are objectionable, will frustrate the jury.

Are there any objections that attorneys should think twice before making?
Yes, an attorney should think carefully before she/he objects to the qualifications of a witness to provide testimony. If the objection is sustained, fine. However, if the objection is not sustained the jury may wonder why the attorney is trying to prevent that particular witness from testifying and could assume that that particular witness is going to hurt the attorney’s case. These types of objections usually can be resolved before a witness testifies during a pre-trial conference with the judge.

What makes an effective objection?
An effective objection is concise and usually cites the rule of evidence on which the objection is based and, if applicable, a case or statute which supports the objection.

How important is it that counsel cite a specific rule when objecting?
I believe it is very important for counsel to correctly reference a rule of evidence, case, and/or statute when making an objection.

How common is it for attorneys to have their objections fully thought out, perhaps even typed or written out, in advance of making the objections?
From my perspective, as a former litigation lawyer and trial judge in state court, lawyers should be able to anticipate a number of the objections that will occur during the course of testimony by a witness as well as the presentation of exhibits to be received into evidence. With respect to important objections that will be made to key witnesses and exhibits, the experienced attorney will prepare some note or writing stating the objection, the basis of the objection, and the authority that supports the attorney’s position with respect to the objection.

Are there objections that you recommend attorneys preview or provide advance notice of to the court? If so, why and what’s the best way to do so in your opinion?

If there is going to a 404(b) issue in a criminal case, I would recommend that the attorneys bring it to the court’s attention during the initial status/scheduling conference. Certainly no later than the final pre-trial conference/plea cut-off.

In a civil case, if there is a 404(b) issue, again that should be brought to the court’s attention at the time of the final pre-trial conference. There may be certain complex evidentiary issues that the parties know will arise during the course of the trial. It is a good idea for the attorneys to give the court a “heads up” well in advance of trial, certainly at the time of the final pre-trial conference.

Does your approach to objections differ between jury trials and bench trials?
Yes, there should be fewer objections during a bench trial. The objections during a bench trial should be made in order to preserve an important issue for the record. Objections as to form and foundation should be kept to a very minimum.

How often, if at all, do you take an active role and prompt an attorney to object to improper testimony or evidence?
Rarely, if ever, during a civil trial or hearing. In a criminal trial, the court has an obligation to assure that a defendant’s constitutional rights are protected. On occasion, I have had to take an “active role” with an attorney to object to improper testimony and evidence. In my experience, this has been a rare event.

Do you ever sua sponte limit testimony or reject the admission of evidence that you believe is improper even if opposing counsel does not object?

As noted earlier, there has been that rare occasion during a criminal trial or hearing that I have sua sponte limited testimony or rejected admission of certain evidence because I believe that it would negatively impact a defendant’s constitutional rights.

What advice do you have for an attorney who believes that a ruling is incorrect? Should they ask to respond to the ruling right then?
If an attorney believes that a judge has made an incorrect ruling regarding an objection on an important issue, I would recommend that the attorney ask for a sidebar and succinctly explain to the judge how the judge has made an incorrect ruling citing, if possible, the specific rule of evidence, case or statute which is applicable. Most judges want to know when they have made an incorrect ruling and appreciate the opportunity to correct it.

What advice do you have for attorneys attempting to cure a sustained objection?
The attorney should make a record requesting that the judge recognize a continuing objection to every question on a particular subject.

What, in your opinion, are the most over-used or abused objections?
In my opinion, the most over-used objections are broad objections to form as well as objections that the question is argumentative or misstates prior testimony of a witness.

Do you have any final thoughts or words of wisdom regarding objections for our readers?
As I noted earlier, the reader should consider how the objection(s) impacts their credibility with the judge and, most importantly, the jury. Again, when I was a young lawyer, I was very fortunate to work with one of the top trial lawyers in the state of Michigan, Jeremiah Kenney. I was taught that the only time to object during trial or, for the most part, any proceeding, was when the testimony was hurting your case or to preserve the record. My experience is that an attorney whose objections are circumspect, limited, and cite specific rules of evidence, case law and/or statutes, have the most credibility with the judge presiding over the trial and the jury.

Michelle L. Alamo is a partner at Armstrong Teasdale in Denver, Colorado.


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