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Making and Responding to Objections

Mark Drummond


  • The article emphasizes considering potential appellate consequences during trial preparation to identify crucial issues and objections to avoid waiver.
  • It discusses Rule 12(f) motions and advises trial lawyers to be proactive by preparing motions in limine and requests to admit facts and documents early on.
  • The article highlights the importance of strategic objection during trial, avoiding unnecessary objections that might harm the case and using objections strategically to prevent repetitive questioning and leading questions.
Making and Responding to Objections
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"Need more training on making and responding to objections." This is the number one feedback comment I have seen after a trial training program.

Attorneys like certainty. For the most part, you have a plan for opening, direct, cross and closing. However, for making and meeting objections, here are some tips.

The View from 30,000 Feet

I believe great trial lawyers work backwards from the appeal. For what the trial court may giveth, the appellate court may taketh away. Reviewing appellate decisions will give you an idea as to issues the higher court looks at and, more importantly, what objections must be made to avoid waiver.

Second, you have to have on the tip of your tongue the phrasing of a proper objection or a proper response. You just have to learn them. Type "common trial objections and responses" into any search engine and a whole bunch of handy guides will pop up.

Be Proactive

Motions in limine and requests to admit facts and genuineness of documents should not be an, "Oh my gosh, it's 30 days before trial—I should file something!" afterthought.

Excellent trial attorneys treat every case when it first comes into the office as if it is going to be tried. In their trial notebooks, which they start constructing from day one, they keep a running list of topics they wish to have excluded and facts and documents they want to have included to eliminate, as much as possible, doing this on the fly at trial.

The Trial Attorney's Mindset

Before I launch into this topic, I will admit that it is a bit unfair for me to do much critique in this area. You, who are in the arena, have a view that I do not have and pressures that I do not have.

However, with that disclaimer, I believe great trial attorneys analyze very quickly these 3 questions:

  1. "Does this hurt me?"
  2. "Does this help me?"
  3. "Does this matter?"

Do No Harm

I have found some attorneys have an almost Pavlovian response when it comes to certain objections, especially hearsay. They believe that the ability to object automatically translates into that they should object.

Sometimes this Pavlovian approach can actually hurt their case. Here's an example. An ex-husband wanted to stop the alimony payments he was making to his ex-wife. To her credit, she had landed a job at a car dealership. The following exchange took place:

Ex-wife's attorney (imagine leading tone and attorney's head swiveling back and forth indicating what he hoped the answer would be): "Now, ma'am do you have any hope whatsoever of getting a better position at the car dealership?"

Ex-wife (picture a witness who truly takes her oath to tell the truth seriously): "Why yes, the manager told me just the other day that I was in line for…"

Ex-husband's attorney: "Objection, hearsay."

Me: "Normally, I would sustain that objection, but since the first word out of her mouth was, "yes" why object?"

Ex-husband's attorney: "Objection withdrawn"

Ex-wife: "Why yes, the manager told me I was in line for a $10,000 raise with my new position."

For those of you who are thinking that I improperly injected myself into the trial, this was a bench trial. If I had sustained that objection, given the first words out of her mouth, I would have asked the question myself since, after all, our goal is the truth.
 Now, if the ex-husband's attorney was going to call the manager of the dealership to say that, instead of a $10,000 raise, she was getting a $20,000 raise, then the objection was well founded.

However, the attorneys told me that the only witnesses would be their clients. So, I knew that was not the case. The best evidence of her improved financial condition was from her. Had I sustained the objection it would have hurt the objecting attorney's case.

Automatically objecting to any out-of-court statement not made by a party regardless of who said it or the content of what was said can sometimes hurt your case. All hearsay is not created equal.

Asked and Answered

I have heard audible sighs of appreciation from both jurors and judges to this objection. I do jury surveys after every case. The number one complaint is that attorneys are too repetitious. If the other counsel keeps plowing the same ground, you may win points with judges and juries by the judicious use of, "Objection, asked and answered."

Leading Questions

I believe there are 3 levels of leading questions. Let's take an assault with a deadly weapon case. Total leading is asking the victim, "Now, as he walked through the door you saw a gun in his hand, didn't you?"
Middle level leading would be, "Now, when he walked through the door what, if anything, did he have in his hand?" Some attorneys argue that the addition of, "if anything" make it not leading because the answer in not included in the question.

I, and most judges I practiced in front of, view this middle level leading, and whether it is sustained or not, dependent upon how crucial the information is to the case. If not crucial, I would probably let it go.

However, since the gun in my example is a crucial element I will probably sustain that objection and require counsel to ask the question in a totally non-leading manner such as, "Now, after he walked through the door, tell us, what did you see?"

Even more egregious is the belief that the phrase, "did he or did he not" cures the problem since the witness has two options. Such as, "So, when he walked through the door, did he or did he not, have a gun in his hand." Sustained!

It has been my experience that most of the leading happens in divorce court. In fact, with some attorneys I feel we might as well swear in the attorneys and just have them testify. On a side note, I have often jokingly threatened to impose a waiver rule on leading questions. That is, if you ask your own client in excess of 50 leading questions, you forfeit all right to object to leading on the other side. I have yet to enforce that rule, but it is so refreshing to hear questions that begin with, "who, what, where, when, why, how, etc."

"Sustained" or "Overruled" May Not Be the Last Word

You know your case a lot better than I do. In a jury trial counsel leap to feet objecting. All heads swivel to the judge. We must rule now!
There's an old joke about a law professor, an appellate court judge and a trial court judge go duck hunting. It is early morning, the sun is not yet up and they draw straws to see who will go first. It is only season for ducks. It is against the law to shoot anything else.
The law professor wins first shot and, upon hearing the rustling of wings, says, "Now, that sounds like a duck and I think I see a faint outline of a duck, but let me consult my Audubon guide to waterfowl that I have in my pack…" And, of course, the bird is long gone.
Next, the appellate court justice, hears the rustling of wings and says, "I think that's a duck, but I'm not sure. However, the case of People v. Jones says that it's the state of mind of the shooter that determines…" And, once again, the bird is gone.

The trial judge steps to the front—a rustling of wings—BOOM!!! The other two jump, look at the trial judge as a grin spreads across his face as he says, "Boy, I hope that was a duck."

What if you think I've just blown a ruling and it is something crucial to your case? Let's talk about responding to objections. What are your options? If you can rephrase to correct the error, then do so. Ask to make an offer of proof if you think I am missing the point. Ask, "May I respond?" It is hard for us to say, "No" in front of the jury.

However, most judges would prefer to not have this dialogue in front of the jury. So, asking for a short break takes some pressure off the judge; gives us time to ponder a bit more and, if not overused, juries like breaks.

Even if we rule against you after the break, we cannot prevent you from making a record. Ask the judge for some time at the end of the day to make a record. If the ruling could be reversible error, a short bench brief helps. And instead of, "Your honor is wrong and you will be reversed." perhaps a better turn of phrase is, "Based upon the cases we've cited, we fear if the ruling stands, this case may be coming back." We judges listen when we hear the phrase, "May be coming back."


  • Christopher C. vanNatta & Timothy Cothrell, "The Object of My Objection," Litigation, Vol. 33, No. 1 (Fall 2006).