- The time to win the objection is at trial, not on appeal.
- Appellate courts usually call even the most obviously wrong evidence rulings “harmless error.”
- The following are guidelines to help you win your objections during trial.
The time to win the objection is at trial or even before—not on appeal.
Why? Because appellate courts usually call even the most obviously wrong evidence rulings “harmless error”—unless you can convince them that the ruling was so unfair that it probably effected the outcome of the case. Only if the rulings were really outrageous—or the evidence touched on some constitutionally sensitive issue—do you have a chance for getting a reversal because the trial judge made some bad calls on your evidence objections.
That doesn’t mean you shouldn’t make your record. On the contrary. There are times (especially when the trial is before a hostile judge who is determined to torpedo your case) when that is the only chance you’ve got. Just don’t hold out too much hope for the appeal.
Which means that the time to win the objection is at trial. How you do it makes all the difference. Here are some guidelines that will help:
The time to object is as soon as the basis for the objection is reasonably apparent. Usually that means as soon as the offending question is asked and before the witness answers it. Most judges figure you have waived your objection if you wait until after the answer.
But that’s not always true. There are times when the question is proper but the answer is not. Then it is not apparent that you have an objection until the judge and jury have already heard the answer. So if the judge erroneously thinks you waived your objection, a gentle reminder is in order. “The question was fine, Your Honor. It was the answer that was improper.”
After all, you are addressing the court. While some judges don’t care if you stand when you object, a lot of them do. Some will insist on it, pretending not to hear you unless you’re on your feet. Besides, rising is not a risky thing to do. There are almost no judges who will tell you to remain seated, even if you are in a bench trial. And when there is a jury, rising shows the kind of respect for the system they expect of you.
The real advantage of rising is that you take control of the courtroom. You will be listened to more carefully if you stand, lock both knees (just lifting yourself two or three inches from your chair looks like you are terribly uncertain whether you are right), and speak up in a firm, clear voice.
Talk to the judge, not the lawyer on the other side. Don’t even look at the other lawyer. There are three excellent reasons for following this rule:
First, it’s the law. The judge rules on your objections, not the other lawyer (thank God). And judges don’t like it when you talk directly to the other side when court is in session. The whole thing is run like an inverted “V.” The judge is at the top and the two lawyers are at the bottom. All communication with the other side goes through the judge. If you need to talk directly with the other lawyer while the trial is in session, proper protocol requires getting the judge’s permission.
The second reason for objecting to the judge instead of the other lawyer is that it keeps down quibbling. If there is a verbal exchange as a result of directing your objection to the lawyer on the other side, both judge and jury will think you started it, even if it was a perfectly proper objection.
Third, directing your objection to your opponent tends to validate his or her position more than you need to.
There is an amazing amount of needless hesitance, hedging, repetition, and downright confusion in most objections.
“Your Honor, I think that may be objectionable.”
“I appreciate your sharing your mental ruminations,” thinks the judge. “Are you actually objecting or just making an obser- vation for everyone’s entertainment?”
“Objection, is this hearsay, Your Honor?”
“Why are you asking me?” thinks the judge. “Am I supposed to tell you whether you have an objection?”
“I am going to object, your honor.”
“Tell me when you do,” thinks the judge.
Instead of all this creative hedging, just say, “Objection, Your Honor,” and wait half a second—no longer.
If the judge instantly says, “Sustained,” say no more. You have won your point.
But if the judge hesitates, you need to be able to state your objection—and state it persuasively—in five seconds or less.
A tall order? To be sure, but you will learn to do it. Read on.
When all you say is “objection” and it is sustained, you don’t need to give any reason for why you objected. And if your opponent appeals, you can assert any rule that supports the judge’s ruling.
But if you just say “objection” and it is overruled, you have not done enough to preserve error for appeal (unless lightning strikes and the appellate court says admitting the improper evidence was “plain error”). Only a specific objection is sufficient to make the record when the objection is overruled. Federal Evidence Rule 103(a)(1) tracks the common law in requiring that an overruled objection must state the specific grounds if they were not reasonably apparent from the context.
In other words, it’s up to the loser to make a record. And don’t count on the context to do it for you. What seems obvious in the middle of trial is usually obscure when you read the cold transcript.
Some lawyers avoid dealing with evidence questions in pretrial conferences because they don’t want to educate their opponents. They think that if they wait until trial to object, it will be too late for their opponents to fix what’s wrong or figure out how to make the point some other way.
Others just don’t want to focus on the details until the trial is actually going on.
Neither excuse is any good.
In trial there is a greater tendency for the judge to make snap judgments than in a pretrial hearing. Especially if you’ve got a point that is difficult to understand, you want the relative calm of a pretrial conference to explain why this evidence shouldn’t be admitted.
One of the best reasons for objecting before trial is to avoid bench conferences in front of the jury. Federal Judge Robert E. Jones of Portland, Oregon, did some studies on what juries like and what they don’t like. And he found that juries uniformly hate bench conferences more than any other part of the trial.
It’s easy to see why. There are all those lawyers, huddled together at the bench, whispering back and forth with the judge. The jurors know that the whole point of it is to keep them from hearing evidence that one of the lawyers thinks is too hot for their little brains to handle. That alone is demeaning enough, but then the lawyers and the judge have the gall to do this right in front of the jury—rubbing the jurors’ noses in their inferior position. Think of it this way: A bench conference is dynamic condescension.
The point? Object before trial whenever you can.
Spoken words—transitory sounds—do not have the enduring power of printed words, especially to judges and lawyers. When you prepare cases properly, you see most of the important objections coming, long before trial.
That’s an opportunity to take advantage of the printed word. Whether you decide to object at the trial or in a pretrial hearing, support your objection with a short memo whenever you can.
That does not mean you should write an 80-page brief. You need to know the paradox of legal brief. Its strength is inversely proportional to its length. Up to a point, the shorter it is, the stronger it is.
The real message of the long brief is, “This is a difficult question that could go either way. Please reward my massive homework effort with a favorable ruling.”
The real message of the one-page memo that cites the controlling case says, “The law is clear. This is the way to rule.”
Every time you object, it costs you something. You are making a withdrawal from the limited credibility account you have with the jury. Each objection says, “This is evidence I don’t want you to hear. If you knew what it was, you would think less of my case.” It’s another reason for objecting before trial when you can. It’s also why you shouldn’t object during trial unless the return is greater than the cost.
But we do. Most lawyers object far too often. One of the main reasons for over-objecting is our legal education. We have been trained to spot and assert every possible issue.
But a trial is not a law school examination. No one is going to give you any extra points for identifying every possible objection. A trial lawyer is not an evidence traffic cop whose sworn duty is to ticket every improper question and answer.
Only object when it matters, and generally speaking, only object when you are right. If you keep getting shot down, it sends the message that you don’t know the rules—a signal that doesn’t do your credibility rating a lot of good with either the judge or the jury.
Even though you object once to a line of inquiry, failing to keep on objecting can be a waiver of otherwise improper evidence.
So on the one hand you don’t want to waive your objection by asserting it only once, and on the other hand, you don’t want to make the judge and jury angry with you for constantly jumping up and objecting.
So what do you do?
Ask the judge to give you a running objection to the entire line of evidence that you want to exclude. It makes your record and keeps you from looking like a twit.
How do you do that?
Ask the broader question: How do you win any legal argument? It isn’t just the law.
Surely you know brilliant legal scholars who somehow don’t seem to have any persuasive power—legal technicians with no ability at advocacy.
What is it they don’t know?
Something that ought to burned in the brain of every lawyer: The first job in any legal argument is to make the judge or jury want you to win. The second job is to show them how the law justifies deciding the point your way.
It is astonishing, by the way, how modern legal education almost totally ignores the first job of persuasion, spending virtually all its time on the second job—dealing with the intricacies of legal justification.
While you can take years studying the lessons of persuasion that law school left untaught, there is one point that everyone ought to understand. Injustice is a more powerful motivator than justice. Injustice—unfairness—is what stirs people’s blood.
So it is with objections. In any real argument on admissibility, the first job of the objector is to show that the other side is offering unfair evidence. Of course, there are lots of objections that get a perfunctory treatment from everyone—minor points of form, little details at the edge of relevance—these are typically disposed of without any real argument.
But on points that matter, where the decision could go either way, the objector’s first job is to show the evidence is unfair.
Notice that the point is to show—not tell—that what the other side is doing is unfair. There is a big difference between showing and telling.
Telling: “Judge, the plaintiff is being entirely unfair in refusing to follow even the most basic rules of evidence.”
Impression: Empty histrionics.
Showing: “Your Honor, they’re trying to introduce a document without proving it’s genuine. It’s not authenticated.”
Impression: The other side is cutting corners. This evidence is suspect.
When your objections show what’s wrong, they recite the facts that prove your point. But when your objections merely tell, they just give your personal opinions (which is what you are obviously paid to do).
Facts are more powerful persuaders than opinions. The sin of telling is that it gives your paid feelings about the facts instead of the facts themselves.
Go back and read those two objections again. Another thing to notice about the example that did the showing: Not only did the objection show how the proponent was being unfair, it showed the judge which rule—improper authentication—justified sustaining the objection. And it did it in about five seconds, which is all you’ve usually got.
One more point. If your evidence rules have numbers, it can actually help to use the number in your objection—just so you don’t overdo it.
Why? As Judge Ralph Adam Fine of the Wisconsin Court of Appeals says, it sends the message that you know what you are talking about in a way that many judges are reluctant to challenge. “It’s Rule 106, Your Honor—the rule of completeness.”
The problem with lawyers is, once we learn to speak Legal—the strange language of attorneys and judges—we forget how to talk in English. Much of the cause for this is that our law schools have not taught us to be bilingual—to be able to read and understand Legal, and yet to explain what this is all about in English to ordinary lay folks.
Which is, after all, our life’s work.
Objecting is a special area in which even the most plain-spoken lawyers are tempted to use the traditional buzzwords.
“Objection, Your Honor, counsel persists in leading the witness.” “Not the best evidence, Your Honor.”
There is no rule that says objections can’t be made in ordinary English. As a matter of fact, there is no rule that says you can’t make objections understandable to the jury—even though they are directed to the judge. As a matter of fact, that’s often a good idea. The problem is some judges think that plain-language objections are “speaking objections,” and will cut you off, especially if you take too long to make your point.
The solution is to know the judge—so you have a sense of how long you have to make your objection—and to develop a set of basic objections that convey your legal point to the judge at the same time that they explain to the jury that you have a good reason for interrupting the proceedings.
If you think that is a lot to accomplish in four or five seconds, you’re right—but it can be done. It is something you will only manage by actually practicing how to object before you get to court. As John Burgess of Oakland, California, says, “There are no geniuses in the courtroom—only drudges in the office.”
While you should develop your own verbalizations as part of your personal kit of trial techniques, here are some ideas to help you get started.
Hearsay—Objection, Your Honor. The jury can’t evaluate the credibility of a witness who’s not in court—this is hearsay.
Leading—Objection. Her question is telling the witness what to say. Leading, Your Honor.
Best Evidence—Objection, Your Honor. It’s unfair for counsel to talk about some document he hasn’t even brought to court. This is not the best evidence.
Relevance—Objection. This evidence has nothing to do with the case. May we approach the bench?
Just a quick note about this last one. Objecting to relevance is an invitation to argue why this evidence is important right in front of the jury. While you want to avoid unnecessary bench conferences, your opponent just might have a dynamite response to your challenge, so you should seriously consider asking to approach.
No matter how well you make your objections, you’re going to lose a lot of them. Is it annoying?
Certainly. You feel like there is this doofus up on the bench, who probably only got a “C” in Evidence—or maybe didn’t even take the course—who seems to be doing real damage to your case by making unprincipled rulings.
What are you going to do about it?
Don’t snarl, make a face, shoot daggers with your eyes, mutter something nasty under your breath about the court of appeals, or make comments about referring the matter to the judicial review committee of the bar association.
Don’t slam your books, crumple up a piece of paper, or adopt a testy tone of voice. Don’t roll your eyes, look to heaven for help, break your pencil, or ostentatiously write a memo to yourself about the judge’s unfair rulings.
Easy to say, but how do you keep from doing any of this? Don’t take it personally.
That’s right. The adverse ruling was not a personal attack. It was not directed to you as an individual. It was not an evaluation of your abilities or the level of your professional work. Only when you understand that an adverse ruling is not directed at you can you keep from getting tangled in your emotions.
If you don’t lose your cool, what do you do?
First, make your record. If you objected and the judge overruled it before you got a chance to say why you were objecting, you’ve got work to do. You’ve got to get the basis for your objection on the record. It’s not enough just to say it, it’s got to be on the transcript. So if you make your objection at the bench, make sure the court reporter is there, too.
Second, try to get a second bite at the apple. One of the best ways to do this is to take the blame for the court’s ruling—it lets the judge save face. “Your Honor, may I be heard? I’m afraid that I did not put my objection very well, and this is an important point.”
Third, if your objection really is crucial to the case, try to buy some time so you can follow up with the right rule, a case on point, or even a short memo. But remember, don’t drown the judge with paper in the middle of a trial. The short memo has a commanding air to it. The long brief probably won’t even be read. Finally, take heart in the realization that the ruling that seemed at the time to draw a moustache on your Mona Lisa is probably just a beauty spot.
This piece is an excerpt from McElhaney's Trial Notebook (4th ed. 2006).