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TRIAL TECHNIQUES: If you’re not objecting, you may not be protecting the client

A New Yorker cartoon has a young lawyer saying to an upset client, “Oh, I don’t object much. As lawyers go, I’m pretty laid back.”

Conventional courtroom advice is that juries don’t like objections; it makes you look like you are trying to hide something.

Like most things conventional, this advice isn’t worth much. Besides, if you are really trying to hide something at trial, an objection isn’t going to help you any more than the fig leaf helped Adam.

Laid-back lawyers don’t object much, because like other important courtroom skills, it is difficult to do well.

But it is absolutely essential to your client’s rights. Objections not made are lost forever. Mistakes go uncorrected. Appellate issues are not preserved. At worst, cases are decided based on things other than the relevant facts and the law. Injustice runs amok.

When the occasion calls for it, you must object. No one else can do it for you. So “screw your courage to the sticking place,” as Lady Macbeth says, and lay on, Macduff.

When to object
You already know that you must object before the evidence is shown, blurted out or slid under the door. Judicial instructions to disregard evidence are usually ignored by the jury, and can lend unwanted emphasis. It is like someone telling you not to think of the word “hippopotamus.”

With form-of-the-question objections, you have to train your ear to hear objectionable questions in advance, as they are being asked.

For example, most leading questions start with some variation of the verb “to be.” “Are you?” “Do you?” and “Did you?” questions almost always suggest an answer, yes or no. Hear “Are you?” and get ready to get on your feet: “Objection, leading.”

Most long questions – more than ten words – are compound, vague or argumentative, or they mis-summarize prior evidence. After 10 seconds of lawyer talk, get ready to object: “Objection. Mr. Willis is testifying.”

“What did you do next?” frequently triggers a long story. “Objection, calls for a narrative.” Even if the question is a good one, a long answer, more than 10 seconds of witness talk, often answers a question that wasn’t asked. “Objection, non-responsive.”

Every re-direct begins with a shamelessly leading question. Be ready to object.

This is not to suggest you should object to every question asked in an improper form. Knee-jerk objections can make you look like, well, a jerk. Sometimes all you accomplish is making the other side better. When you must object, don’t act offended. Keep your cool. “Whom the gods would destroy, they first make mad.” That’s Euripides.

No article can tell you when to object and when not to. That must be a product of your thought, based on your knowledge of the case, the rules, the temperature of the court and jury, and your assessment of the score. But a good guiding principle is, object only when it enhances the advocacy of your case, and is consistent with your themes, tactics and trial objectives.

The rules of evidence are applied differently in every court and differently between and among judges. The only way to find out which objections work and which ones don’t is at the beginning of a trial. Test drive some objections. Try them out. For example, some judges detest leading questions, and will sustain you every time. This flusters and frustrates your opponent, much to the delight of the jury, as jurors love seeing lawyers come undone.

Some judges won’t sustain any objections to form. So only when you want to talk to the jury, will you make these objections. But you won’t know until you try.

Substantive objections, on the other hand – hearsay, relevance, unfair prejudice that outweighs probative value, lack of foundation, privilege, parol evidence, best evidence, and improper opinions – must be made, and can frequently be anticipated. If so, they should be the subject of a motion in limine before trial, or out of the jury’s presence. Have a short “pocket brief” ready if possible. It will show the court you know the law and are on your toes.

Remember, a motion in limine, once denied, typically does not preserve your objection. Many an evidentiary issue has been waived by that mistake.

Make the objection again on the record. “Your honor, this is the matter we previously raised. We still object. It is hearsay,” or briefly re-state your other grounds. Once it hears the context, the court may change its mind and see your point, but not unless you give it the chance.

If a substantive objection has not been anticipated, or if you have held your fire for tactical reasons, now is the time to ask for a sidebar conference. “Your Honor, may we approach?” is usually all it takes. If the argument will take more than 30 seconds, ask that the jury be excused.

Some sidebars are not on the record. Don’t leave it up to the court to preserve your record. That’s your job.

How to object
Stand up. Say in a clear, confident voice, “Objection, Your Honor.” Then, state your grounds in a few ordinary words. If you can get away with it, a sentence for the jury, explaining the objection in layman’s terms, is good practice: “Objection, Your Honor. Hearsay. A witness can’t say what someone else said out of court.”

Or: “Objection, Your Honor. Leading. Counsel is suggesting the answer.” Memorize a few short sentences that explain your most common objections. Most courts appreciate this. If not, they will let you know.

If you can cite to the rule, all the better, but by itself, a number it is not enough. “Objection, Your Honor. This is unfairly prejudicial, and proves very little. Rule 403 prohibits this. May we be heard further?” Almost every objection has a corresponding rule. Yes, the Court knows the rule, but by citing it, you show the jury that you do too. Your legend will grow.

Another legend, Ted Williams, the greatest hitter who ever lived, knew the strike zone better than the umpires. If Teddy Ballgame didn’t swing, it was a ball. The umps knew this, and as a result, Williams was always among the leaders in walks drawn. Know the rules like Ted Williams knew the strike zone.

Richard H. Willis is a partner in Bowman and Brooke LLP’s litigation practice in the firm’s Columbia, South Carolina office. His practice focuses on commercial litigation and the defense of product liability and environmental claims nationwide. Willis is also an adjunct professor at the University of South Carolina, teaching trial advocacy.

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