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Litigation Journal

Winter 2023 | Timing

When to Be Objectionable . . . And How Not to Be an Artless Clay-Brained Pignut

Leonard M Niehoff


  • Figuring out the timing of objections poses many difficulties.
  • Skilled litigators have different views about when to object to an obstreperous or unresponsive witness.
  • Sometimes a little imperfection can prove endearing and help you with the people you’re trying to persuade.
When to Be Objectionable . . . And How Not to Be an Artless Clay-Brained Pignut
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Having taught evidence for more than 30 years, I’ve become fairly good at predicting the questions students will ask, especially the questions that are hardest to answer. One of those typically comes after we’ve discussed how to object to evidence. We’ve worked through the basics: Stand up, speak up, say that you object, and briefly explain why. At this point, a student almost always raises his or her hand and says something like this: “OK, I understand the how partBut when do I object?”

The question doesn’t come up in my civil procedure course because the objections we discuss there relate to the discovery process and those rules provide very specific guidance about timing. Also, my civil procedure students recognize that the plodding pace of interrogatories and document requests makes it extraordinarily unlikely that they’ll ever have to make a split-second decision about whether to object. They might need to do so during a deposition, but objections play a limited role in that context and don’t raise the same strategic concerns.

My evidence students correctly sense that trials and evidentiary hearings pose challenges that discovery doesn’t. Those proceedings move faster, less predictably, and in front of audiences that are assessing our performance. During discovery, we can study a document request, reflect on it, walk around the block, and ponder whether we have an objection. But, during trial, we can’t respond to potentially objectionable evidence by standing up and asking everyone to hang on until we have figured out if we have something to say. Or can we? More on that toward the end.

My evidence students also understand that an objection constitutes an interruption. It interrupts your opponent. It interrupts the witness. It interrupts the flow of things. It interrupts the narrative. It interrupts the thought processes of the judge and the jury. In most of life, we find interruptions objectionable behavior. My students want to know when they should be objectionable.

When Not to Object

In trying to answer their question, I often begin by talking about when we don’t want to object. I put those circumstances into three major categories.

First, whenever possible, we don’t want to wait to object until after the jury has already heard or seen the evidence we’re trying to keep out. For example, in an ideal world, we want to object before the witness answers the problematic question. With any luck, that will keep the witness from answering it altogether.

In part, we want to object before the witness answers because objections must be made timely and it’s hard to get much timelier than that. Timeliness has some flexibility to it, and a court is extraordinarily unlikely to deem an objection untimely just because the witness has already blurted out an answer. Still, you don’t want to wait until a few more questions have been asked and answered or a recess has arrived to say: “Remember back when the witness testified that my client is a goatish fly-bitten hedge-pig? Well, in retrospect I object to that.” See United States v. Roof, 225 F. Supp. 3d 406 (D.S.C. 2016), aff’d, 10 F.4th 314 (4th Cir. 2021) (objections to testimony that were made during a subsequent recess and that were made on the day following the testimony were not timely and were waived).

By the way, I draw here (and throughout this article) from the insult inventory of William Shakespeare, mixing the nouns and adjectives that he so skillfully deployed. No one understood human nature like the Bard, and that includes the degrading of it. His objectionableness is second to none. But back to our own objectionable behavior.

Timeliness aside, we want to interpose our objection before the witness answers because the judge can’t un-ring the bell. Lady Macbeth grimly reminds us that “[w]hat’s done cannot be undone.” And, she might have added, no instruction to disregard evidence is going to undo it. Indeed, a judge’s instruction that the jury ignore the evidence may do nothing but draw more attention to the thing the lawyer didn’t want the jury to hear or see. This holds especially true if the judge repeats the offending evidence in the course of the instruction. “Please disregard the witness’s statement about the defendant being a dissembling dog-hearted foot-licker” doesn’t do the objecting party much good.

The second thing we don’t want to do is to speak up every time a technical objection to a question might exist but the evidence is unlikely to do us any harm. If your opposing counsel is inexperienced, or experienced but just not very good at the job, you could find yourself objecting constantly to meaningless mistakes. In short, you want to object when it matters but not when it doesn’t.

The up-and-down of incessant objecting may make for excellent aerobic exercise, but it will not endear you to the members of the jury. Average jurors just want to hear what the witnesses have to say so they can decide the case and get on with their lives. Your objections stand between them and their dinner, a perilous station. And over-objecting may drive the judge to distraction and hurt you on that front as well; after all, judges eat dinner, too.

Finally, we don’t want to object when doing so may backfire because of our own evidentiary strategies and interests. Don’t call something irrelevant if you hope to dig into the same subject matter. Don’t call something unfairly prejudicial if you plan to lather the opposing party with the same glorious unfairness.

Many years ago, when still a newly minted and overly eager young litigator, I came up with a very clever explanation for why evidence offered by our opponent didn’t fit within a particular hearsay exception. I felt great pride in the achievement, until I realized that my argument also required the exclusion of a document we wanted to get in. I withdrew my objection, the judge admitted both items of evidence, and I learned a valuable lesson about not aiming at my foot when I pulled the trigger.

These three categories describe different problems but carry the same lesson: To object effectively during a trial or hearing, our brains have to work both fast and well at the same time. Objections must be quick but also strategically sound.

That’s a tall order. In the heat of battle, we may struggle to figure out how to get ahead of what’s coming, how to identify when the evidence matters, and how to recognize when a successful objection might work against our own goals. Doing so requires us to process a lot of information and to assess multiple alternative possibilities in an instant.

Motions in Limine

The best way to deal with something that’s hard to do is to put yourself in a position where you don’t have to do it. Enter the motion in limine. Such a motion, where we ask for a court’s advance ruling regarding a piece of contested evidence, can save the day.

Indeed, a successful motion in limine takes care of all three problems just described. You intercept the evidence before the jury sees or hears it. Your objection can’t annoy the jurors because they don’t hear it. And the process of writing the motion and brief gives you space to consider whether you really want the relief you’re requesting. See State v. Foster, 296 Or. 174, 674 P.2d 587 (1983) (“The pre-trial motion to limit evidence, commonly called a ‘motion in limine,’ provides a legal procedure to flush out problems to be encountered during the trial, before a jury is contaminated with the evidence. An objection to evidence, with a motion to tell the jury to disregard it, is a poor alternative.”).

In my experience, most judges appreciate motions in limine. After all, just as such motions allow litigators to make better arguments, so too they allow judges to make better decisions. And even a judge who has served on the bench for many years may have limited experience with the intricacies of certain evidence rules. A motion in limine decreases the sense of ambush and increases the likelihood the judge will get it right.

Alas, motions in limine don’t always solve our problems and don’t always receive a warm reception. Sometimes we lose them. Some judges dislike them. Under some circumstances, judges may conclude that they can’t rule on an issue until they see how the trial unfolds and have a better sense of the context in which the evidence will be offered. See Scarboro v. Travelers Ins. Co., 91 F.R.D. 21 (E.D. Tenn. 1980) (describing motions in limine as “disfavored” and opining that the better practice is to deal with questions of admissibility of evidence as they arise during trial).

Continuing Objections

But motions in limine are not the only vehicle by which we can get a pretrial evidentiary ruling from a judge. For example, final pretrial conferences and orders—like those anticipated by Federal Rule of Civil Procedure 16(e)—may provide opportunities to identify and resolve anticipated evidentiary issues. Individual judges, particularly in federal courts, may have standing orders that describe their preferred method for addressing evidentiary disputes before the trial gets under way.

When we lose an objection that we make at the pretrial stage or early in the trial, we face a different kind of timing issue: We have to figure out when to continue objecting after we’ve already done so and been rebuffed. Say, for example, that I brought a pretrial motion in limine to exclude testimony on issue X and the judge denied it. Do I have to object again when the opposing lawyer mentions issue X in her opening statement? When a witness testifies about it? When still another witness does so? When an exhibit refers to it? If so, then that’s a whole lot of objecting—and all to no end because the judge has already ruled the other way. But, if I don’t continue objecting, have I preserved my right to challenge the error on appeal?

Under these sorts of circumstances, lawyers often make a “continuing objection” to the evidence. This means that you place the objection on the record, describe the basis for it, and ask the court to deem the objection renewed every time the evidence is repeated. Such an approach helps move the trial along and saves you from having to interject the same losing objection over and over again, suggesting to the jury that you’re obstinate or you aren’t paying attention or you enjoy tweaking the judge’s nose.

Continuing objections make some lawyers nervous. Precisely because the objection isn’t expressly repeated, it may be less than completely clear when at trial it would have been invoked. Also, the appellate court that later reviews the trial may look less favorably on continuing objections than did the trial judge—and the appellate court gets the final say. For these reasons, and because “worry” is a central part of our job description, lawyers who make continuing objections may reiterate them again from time to time during proceedings outside the hearing of the jury. For example: “Your Honor, while we’re on break but still on the record, I’d like to note our continuing objection to testimony about issue X, particularly because we expect witness Y will get into it.”

A change to the Federal Rules of Evidence made in 2000 helps on this front, at least in federal courts. Amended Federal Rule of Evidence 103(b) expressly provides: “Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error on appeal.” The committee notes on this amendment state that the rule was adopted precisely because of vagueness and inconsistency in approaches with respect to continuing objections. In essence, the rule deems all objections continuing if the court’s ruling was definitive.

It’s important, however, not to overstate the comfort provided by Rule 103(b). State courts may have very different and localized approaches to continuing objections. Even within the federal courts, issues may arise over whether a judge’s ruling was “definitive” and whether the initial objection was sufficiently broad to encompass something that happened much later in trial.

Objecting to Answers

Many of our objections relate to questions that the opposing counsel asks. But those are not the only kinds of objections we make. Sometimes we object not to the opposing lawyer’s question but to the witness’s answer to that question. And sometimes we even object to the witness’s answer to a question of our own. These different scenarios raise different timing considerations.

Say that the lawyer on the other side wants to establish that Jones resides in New York. There’s nothing inherently wrong with asking Smith: “Where does Jones live?” A good, solid, informed answer might be: “In New York.”

But not all answers fall into the good, solid, and informed basket. An answer might be bad, wobbly, and uninformed, and therefore objectionable. It might contain speculation (“I have no idea, but I think he probably lives in New York”) or hearsay (“Somebody told me he lives in New York”) or other improper elements (“In New York, where I hope he gets run over by a yellow cab, as the villainous beetle-headed maggot-pie deserves”).

Under these circumstances, we don’t know that the answer is problematic until we’ve heard it. This situation has its disadvantages—the jury gets exposed to the evidence. It also comes bearing two gifts.

First, there’s no rush for us to try to interpose an objection the moment the opposing lawyer asks the question. Indeed, if there’s nothing wrong with the question, then objecting would be improper. The timing of our objection therefore gets pushed until after the witness gives the answer, affording us a little more room to think.

Second, objecting in this context may seem, well, less objectionable. When we object before the witness has had a chance to answer, we tell the jury that there’s something we don’t want them to know. But when we object after the witness has already answered, we tell the jury that there’s something we don’t want them to consider.

The former suggests we’re hiding something from them, which they may find irksome. The latter suggests we want them to base their decision on good evidence, which they may find more palatable. The articulation of the objection may indicate why we think the evidence isn’t worthy of their attention: “Objection, Your Honor, a witness must testify to facts, not guesses, and Ms. Smith doesn’t know where Mr. Jones lives.”

It wouldn’t make any sense for us to object to our own questions, although over the course of 35 years of litigating, I’ve asked a few I wish a judge had ordered me to withdraw. We do, however, have occasion to object to answers that our questions elicit. In fact, when cross-examining a difficult witness, we may end up doing so repeatedly.

Consider this exchange:

Lawyer: You didn’t warn Duncan about the danger, did you?

Witness: Duncan never listens to me.

Lawyer: My question is whether you warned Duncan.

Witness: I’m not sure he listens to anyone, in fact.

Lawyer: Please answer the question: Did you warn Duncan?

Witness: Are you asking me if I wrote a formal memorandum to him? Of course not. Who has time to write?

At some point, the lawyer should object to these answers as nonresponsive and respectfully ask the judge to instruct the witness to answer the question being asked. When should the lawyer do this? That’s easy to answer: When the lawyer thinks it will work. Bear in mind that the jury doesn’t know the rules of engagement here. So, if the judge refuses the request, then the jury may conclude that the lawyer is a ninny for seeking the judge’s help—and a clueless ninny to boot.

“When the lawyer thinks it will work” is obviously an unsatisfactory answer that prompts a different question: “When will it probably work?” To this question, I have yet another unsatisfactory answer: “It depends.” Indeed, it depends on lots of variables: Does the witness come across as being difficult or just confused? How patient is the judge? How inclined is the judge to intervene as opposed to letting the parties have at it? Do the witness’s evasions seem to be irritating the jury? Is this the first time the witness has been difficult or has the witness made a habit of it?

Skilled litigators have different views about when to object to an obstreperous or unresponsive witness and seek the judge’s help. Some think it’s important to shut down this sort of nonsense immediately. Others think it’s best to let the witness act out for a bit until the need for intervention has become clear to everyone in the courtroom. I generally lean toward the latter approach, but to invoke that familiar lawyerly standard yet again, it depends. And it depends on more variables than I can catalogue—if they even lend themselves to cataloguing.

Let’s say that you ask a question that is not intended to elicit a hearsay response but the witness begins to answer with something like this: “Well, Mr. Malcolm told me . . .” In theory, you could appeal to the judge with an objection to that answer: “Objection, hearsay.” But this approach has a weird effect in the courtroom: It makes it sound like you’re objecting to your own question.

Such an incident occurred during the recent high-profile defamation trial between Johnny Depp and Amber Heard. One of Heard’s lawyers asked a question intended to confirm that the witness had no personal knowledge about how Depp’s hand had been injured. The witness began to respond: “Dr. Kipper told me . . .” And the lawyer objected on the grounds of hearsay. The judge responded: “Well, but you asked the question.” This clip from the trial circulated widely on social media, often with snarky comments like this: “The idiot objected to himself.”

In a technical sense, the lawyer wasn’t wrong. After all, he didn’t ask a question that required a hearsay response, such as this: “What did Dr. Kipper say?” It was the witness who chose to answer by referring to what someone had told him. The answer was therefore objectionable.

The objection didn’t get anywhere, however, because of the inherent oddness of protesting to the judge when someone starts to answer a question that you asked. I don’t like critiquing from the comfort of my armchair the split-second decisions that lawyers make in the stress of trial. But I think it would have been better for the lawyer to have stopped the witness and said: “Hold on, please. I’m not asking what you heard. I’m asking what, if anything, you know.

In the vast majority of courts, once you’ve objected and the judge has ruled, good form dictates that you sit down and shut up. Arguing with the judge over the ruling is not recommended. As in strongly not recommended. As in not recommended unless you’ve always had a hankering to experience the joys of contempt and dinner in jail.

Years ago, it was the rule in many courts that a lawyer who wished to preserve an objection needed to cry out “Exception!” if the judge ruled against the lawyer. The practice was clumsy and never made much sense. Surely, it was the rare case in which the lawyer objected, the court ruled adversely, and the lawyer thought: “Oh, golly, I guess my objection was stupid and I should never have made it. Sorry about that.” The rule also created a trap for the unwary or forgetful litigator who didn’t say the magic word and thereby lost the right to raise the error on appeal—even though the litigator had made a proper and timely objection in the first place.

The practice appears to have begun falling out of favor in state courts in the 1920s. The adoption in 1987 of Federal Rule of Civil Procedure 46, which flatly states that “[a] formal exception to a ruling or order is unnecessary,” seems to have put an end to the practice almost everywhere. I’ve been told a few jurisdictions still require exceptions, but I’ve never personally encountered one, and I hesitate in an article on objections to rely on that sort of rank hearsay.

With all that said, I have on occasion found myself still talking after a judge has overruled one of my objections, usually with a little internal voice screaming at me “WHAT ARE YOU DOING?” the entire time. Sometimes I’ve needed to ask for clarification about the ruling. Sometimes, if the issue was clearly a complicated and nuanced one, I’ve asked for leave to file a brief memorandum to help the court make sure it had considered every dimension of the problem.

Usually, however, if I’m still talking after a judge has ruled against me, it’s because I’m saying, “Thank you, Your Honor.” That’s how my mentors trained me to do things. I do it even when I’m not feeling thankful at all. There’s never any harm in being gracious toward a judicial officer, and it’s the right thing to do. Besides, there’s an outside chance that saying thank you might help a little with your next objection. Unless you roll your eyes when you say it.

The Role of Intuition

Everything I’ve said confirms what my evidence students suspect: Figuring out when to object poses some serious challenges. Motions in limine and pretrial conferences and orders can help immensely. As I noted earlier, the best way to deal with a tricky timing problem is to eliminate it.

When we can’t get an advance ruling, we can at least plan for what’s likely coming and strategize the right response. Churchill is supposed to have once described himself as being busy “preparing his impromptu remarks.” The seemingly spontaneous objections of skilled litigators are similarly often the result of a lot of advance scripting.

In some instances, however, we will simply have to fly by the seat of our proverbial pants and follow our intuitions. In this sense, the right time to object will have something in common with Potter Stewart’s definition of obscenity: We’ll know it when we see it. Or, at least, we’ll be sufficiently sure we know it to make ourselves objectionable, cross our fingers, and see what happens.

A final point: Precisely because the timing of objections poses such challenges and may involve as much art as it does science, we can’t always achieve perfection in our execution. We can only do our best and hope for the rest. The good news is that our opponent is in precisely the same position.

Sometimes a little imperfection can prove endearing and help you with the people you’re trying to persuade. As a young attorney, I second-chaired a bench trial with a lead partner who had a formidable reputation in the courtroom. His capacity to think on his feet was dazzling. He seemed incapable of a misstep or a miscue. At one point, our opponent was examining a witness, and my colleague rose to his feet—but then didn’t say anything. All the action stopped cold. You could have heard the shadow of a pin drop.

The judge cocked his head and said: “Counsel, you’re standing. Do you have an objection?” He responded: “That’s interesting, Your Honor. I was just wondering the same thing.” Everyone laughed, not at him, but with him, because that’s how things go when people understand that you’re trying to do something very hard. The judge smiled broadly at him and he smiled back.

After a few beats, my colleague found his way to an objection. Sustained. It wasn’t pretty. But sometimes even the masters have to do ugly. And sometimes ugly works just fine.

Figuring out the timing of objections poses many difficulties, and sometimes we will get it less than completely right. That’s OK. The occasional pause or stumble simply puts a bit of our common humanity on display, which is not necessarily a bad thing. A momentary lapse or two won’t lead the judge or jury to conclude that we’re an artless clay-brained pignut.

To rise to that level, we’d have to be very, very objectionable indeed.