special report objections

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Learn how to make objections that get sustained and how to keep cool under pressure when your opponent objects

Most lawyers leap from their seats to yell “Objection!” the instant they hear objectionable material -- but does

yielding to that initial impulse actually doing your case more harm than good?

One of the major skills you

developed during law school was

how to spot issues. You remember

the FIRAC (Facts - Issue - Rule -

Application - Conclusion) method

of case briefing from law school,

don’t you? Back in law school,

y o u r i s s u e s p o t t i n g s k i l l s

determined how well you would

perform on the final exam. The

more issues you spotted, the

better your chances of passing the

exam.

However, in trial, superlative

issue spotting skills can sometimes

become a detriment to your case.

The reason they can actually harm

your case is because many trial

lawyers are tempted to act like

they’re still in law school. You’ve

seen them in trial -- as soon as

they spot an issue, they announce

it to the world. (”Objection! That’s

a leading question” “Objection!

That asks for hearsay!” “Objection!

That calls for speculation!”) Technical ly, they’ re r ight ,

because the issues that they spot

in trial can be objected to. But to

become a skilled advocate, you

need to move beyond mere issue

spotting skills. To become a top-

tier trial lawyer, you must be able to

analyze the admissibility of every

piece of evidence and every word

of testimony, and then answer the

following three questions:“You Can Object” continued on page 2


“You Can Object” continued from page 1

“Can you object?”“Should you object?”

“When will you object?”

Most importantly (and perhaps

most difficult), you must be able to

conduct this entire analysis within

a split-second. You can’t unring a

bell and you can’t stuff toothpaste

back in a tube -- if you don’t

object in time, the jury will hear the

objectionable material, and it will

be too late to fix the damage.

That’s why trials can be so tiring,

because you’re expected to have

your brain redlining at 9000 rpm

throughout the entire trial, spotting

every issue and deciding whether

or not to object.

#1. CAN YOU OBJECT?Every trial lawyer should know

the answer to this question. This

question draws upon your issue

spotting skills and your knowledge

of the evidence code. The

stronger your knowledge of the

evidence code, the stronger your

trial skills will be. Every time your

opponent or a witness is about to

say or do something objectionable,

you must immediately recognize

the issue and identify why it’s

objectionable. You need to

develop this skill before you get to

trial. By the time you get to the

courtroom, it’s too late to start

reading through the evidence

code. You won’t have time to look

up the proper objection or review

an evidentiary predicate. That

information must be committed to

memory and available for instant

access.

#2. SHOULD YOU OBJECT?If you know the answer to this

question, then you’re one of the

better t r ia l lawyers in your

courthouse. Just because the

evidence is objectionable doesn’t

mean you should object. Not

every issue really matters. For

example, in a single witness

examination, you may spot 23

leading questions. Technically,

they’re all objectionable. But

before you object, you ask

yourself, “Does that evidence hurt

my case?” If not, maybe you

shouldn’t object.

Too often, attorneys object to

evidence that doesn’t hurt their

case, and end up shoot ing

themselves in the foot. For

example, a while ago, a friend of

mine was in trial, prosecuting a

misdemeanor case against a

relatively inexperienced defense

attorney. Partway through his

cross-examination of her only

witness, this new attorney tried to

introduce a photo into evidence.

My friend immediately recognized

three reasons why the photo

should not be admissible, and

said, “Objection!” The judge

agreed, and didn’t allow the photo

into evidence.

It sounds like she did the right

thing, doesn’t it? Something was

objectionable, and she kept it out

of evidence. But, before you make

a final decision, you need to know

about a rule of criminal procedure

that applied to her trial: If a

defendant didn’t introduce any

evidence, he was entitled to both

the first and last closing arguments

(”the sandwich.”) By objecting,

she prevented the defense from

introducing the photo. But the

photo didn’t really hurt her case. If

the defendant had entered the

photo into evidence, he would

have lost the “sandwich” and she

could have had the benefit of first

and final closing arguments.

#3. WHEN WILL YOU OBJECT? If you’ve decided that you should object, you should next determine

when to object. Usually, you’ll

object as soon as you realize you

“can” and “should.” For example,

if your opponent tries to ask the

witness, “What did you hear Mort

Anderson say to Mike Brown about

who started the fight?” you’ll

probably object by the 7th word in

his question.

But deciding when to object

isn’t always as clear-cut as that. If

your opponent is asking leading

questions, but you’ve decided they

don’t hurt your case, maybe you

won’t object at all. Or maybe you

let it go for 7-8 questions, and then

tell the judge, “I haven’t objected

up until this point, but, Objection!

-- Counsel is asking only leading

questions.”

Many times, your objection

needs to be heard before trial.

You’re afraid that if the jury gets

even a whiff of the evidence, it will

ruin your case. Examples include

confessions from your client,

previous bad acts, improperly

seized evidence, evidence of

remedial repairs, etc. If your

objection falls into this category,

you need to file a motion to

suppress or a motion in limine before tr ial to preclude the

admission of the evidence.

Or maybe you don’t “object”

until closing argument, when you

tell the jury, “I could have objected

to his questions, because they

were all leading questions... The

witness wasn’t telling you the

story, her attorney was. But the

reason I didn’t object was because

I wanted you to see how Mr.

Shyster had to spoonfeed the

testimony to her. The witness

“You Can Object” continued on page 4


Here’s a four-part process to follow when your opponent screams, “Objection!”

1. Pause. Take a breath. This isn’t the end of the world.

Sometimes, more experienced trial lawyers will object

simply because they’re trying to rattle the cage of newer

attorneys. Don’t let them get to you. You don’t need to

instantaneously respond -- take a moment to relax

before you say anything.

2. Think. This is the most important part of

the process. Why should the judge admit your

evidence? You don’t want to open your mouth

to respond until you have a compelling reason.

Take a moment or two to think through your

response and tell the judge why your evidence is

relevant, reliable, and right. [For help, see “The Three

R’s of Admissibility” on page 4]

3. Rephrase only if obviously necessary. Sometimes,

you won’t have a good response. But too often, lawyers

don’t even wait for the judge to rule. They treat every objection as if it’s a negative ruling and abandon their line

of questioning. Unless you know that the witness’s

answer will definitely be improper (For example: Your

police officer almost mentions suppressed evidence; your

client is about to mention insurance or improper character

evidence) don’t automatically rephrase your question

without giving the judge a chance to rule. If you do

need to rephrase, give the witness guidance to

help him avoid mentioning the objectionable

material. “Don’t tell us what Logan said, but

did the two of you have a conversation?”

4. Respond. Ignore the temptation to

respond directly to your opponent. Instead,

speak directly to the judge and show him why

your evidence is Relevant, Reliable, and Right. Begin your response with a phrase like, “Your Honor, it’s a

business record exception...” or “It’s not hearsay

because...” If possible, keep your response limited to a

single sentence phrased in non-legal terms (for the benefit

of the jury). If more explanation is required, ask for

permission to approach the bench.

ABC’S OF OBJECTING SAY “OBJECTION!” GIVE A REASON ASK FOR A REMEDY OFFER OF PROOF

Stand up and stop the testimony before it gets any worse by getting the word out of your mouth loudly and clearly

State your legal basis for the objection. Unless your judge allows speaking objections, keep it short (i.e. “Hearsay”)

If your objection is sustained, what do you want the judge to do? Strike testimony?Give a curative instruction? Declare mistrial?

When appropriate, if your objection is overruled you might need to proffer some additional information for the appeals court


Nope, we’re not talking about

readin’, ‘ritin’, and ‘rithmetic. Here are

the three “R’s” you should consider

when analyzing the introduction of

evidence. Is the evidence Relevant? Is it Reliable? And is it Right to admit

the evidence?

#1. IS IT RELEVANT?Federal Rule of Evidence 401

defines relevant evidence as any

evidence “having any tendency to

make the existence of any fact that is

of consequence to the determination

of the action more probable or less

probable than it would be without the

evidence.” Rule 402 says that “All

relevant evidence is admissible,

except as otherwise provided by the

Constitution of the United States, by

Act of Congress, by these rules, or by

other rules prescribed by the Supreme

Court pursuant to statutory authority.”

How much more broadly could they

have defined what’s “relevant”?!?

Basically, everything “relevant” should

be admissible, unless specifically

prohibited by law. What is the material fact that you are trying to prove? If

you can show any reason why your

p roposed ev idence p roves o r

disproves a material fact in the case,

your evidence should be relevants.

#2. IS IT RELIABLE?

The most common reason why

evidence won’t be admissible is

because it’s not reliable. Jurors

should be able to make their decision

based on the most reliable information

available. Why is hearsay evidence

generally excluded? Because it’s

secondhand information. It’s not as

reliable as firsthand information. You

can’t cross-examine the person who

actually observed the event, only the

person he relayed it to. The rules of

evidence say, “Hold on a second…

That’s not fair.”

For those same reasons, evidence

which has not been authenticated

shouldn’t be admissible. If you have

an analysis of the alcohol content in

someone’s breath, it wouldn’t be

proper to admit that evidence if the

testing instrument was unreliable, or if

it had been tampered with. Jurors

shouldn’t have to rely upon the opinion

of someone who doesn’t have the

credentials to give them an opinion, or

who doesn’t have a sufficient basis of

information to render a proper opinion.

If no one can prove the authenticity of

a document, the jurors shouldn’t be

allowed to read it.

On the other hand, some things are

so reliable, that courts can take

judicial notice of them. June 9th, 1937

was a Wednesday. Anyone and

“The Three R’s” continued on page 5

“You Can Object” continued from page 2

didn’t know anything about the

case, and you should disregard

what she said... or, pardon me,

what she didn’t say.”

During most trials, you probably

shouldn’t object as often as you

could object. Intellectually, jurors

may understand that you’re going

to object during trial because your

opponent is trying to admit

i m p ro p e r e v i d e n c e . B u t

emotionally, many of them may

feel that you’re objecting because

you’re trying to prevent them from

hearing the truth or because you

know the evidence hurts your

c a s e . C o n s i d e r a l l t h e

ramifications before you say,

“Ob jec t ion , ” and then ask

yourself, “Can I object? Should I

object? And if so, when will I

object?”

Want to get your evidence admitted? Want to keep your opponent’s

evidence out? Here’s an entire Evidence class in 1000 words or less!


“The Three R’’s” continued from page 4

everyone can confirm that. There’s no

need for a party to invest resources

p ro v i n g t h a t J u n e 9 t h w a s a

Wednesday, because there’s no room

for debate.

The question of reliability

will probably serve as the

basis for the bulk of your

evidentiary objections, and

that’s why we invest so much

time forming all of those

predicate questions.

#3. IS IT RIGHT?Finally, Federal Rule of

Evidence 403 states that

relevant evidence may be

excluded if “its probative value is

substantially outweighed by the

danger of unfair prejudice, confusion

of the issues, or misleading the jury, or

by considerations of undue delay,

w a s t e o f t i m e , o r n e e d l e s s

presentation of cumulative evidence.”

What does that mean? It means that

even though the evidence is relevant and reliable, it may still be excluded if

it’s not right to admit it. Here are

some examples:

Gruesome photos. The photos tend

to prove a material disputed fact – that

the victim is dead. They’re reliable –

your medical examiner will testify that

these are the photos she took during

the autopsy. But it may not be right to

admit them. They may be so

gruesome that the jurors would have a

visceral, emotional reaction to them,

and the photo alone would grossly

affect the verdict. Well, that wouldn’t

be fair, would it? To fix the problem,

the court may allow the photos if

they’re black and white, limited in size,

or perhaps limited in quantity.

Character. Is it unfair to discuss a

person’s bad character? When a

defendant has 56 prior convictions for

DUI, it’s probably safe to assume that

he was driving drunk this time, too.

But the jurors would jump to a

c o n c l u s i o n a n d s h o r t c u t t h e

deliberation process – that’s not right.

Privileges. Anything a patient tells

t he i r psych ia t r i s t i s p robab l y

privileged. Society thinks that people

should be able to talk freely in

that situation, in hopes that they

will be cured or find a solution to

their problems. So, what they

say in confidence wi l l be

privileged. What a witness tells

his attorney, psychiatrist, priest,

doctor, accountant or wife may

be very relevant and reliable, but

it doesn’t mean it should be

admissible. Society creates

these privileges to improve our

daily life.

The Fruit of the Poisonous Tree. Evidence that is otherwise relevant

and reliable may be kept from the jury

if it was obtained pursuant to an

improper search and seizure.

This simple three point analysis

(Relevant? Reliable? Right?) is a

good starting point for analyzing

whether your ev idence should

admissible or not, and also helps you

decide whether to object to your

opponent’s evidence.

One way for judges to avoid being overruled by the appellate courts is to give you a “non-ruling.” It looks like a

ruling... It sounds like a ruling... But it’s a duck. Here’s how to detect non-rulings, and how to respond.

Judges are just like everyone else: They hate to be told, “You’re wrong.” In fact, some judges are so afraid of having

their rulings overturned by the appellate courts that they’ve decided to take an easy way out: They’ve stopped making

rulings! After all, if there isn’t a ruling, there’s nothing for the appellate court to overturn, right? Here’s a typical scenario:

Attorney #1: What happened at the executive council meeting?

Witness: Well, I heard that...

Attorney #2: Objection! Hearsay!

Attorney #1: It’s not being offered for the truth of the matter asserted, your Honor.

Judge: Move it along, counselor.

Attorney #1: Ok. Let’s talk about [different subject]...

Situations like this arise every day in courtrooms around the country. Using a combination of body language, tone,

and other non-verbal behaviors, judges subtly encourage lawyers to rephrase questions or move on to new topics.

When you’re caught up in the heat of battle, it feels like the judge has issued a ruling, so you rephrase your question or

“The Judge has Spoken” continued on page 6


“The Judge has Spoken” continued from page 5

move onto another topic. In reality, no ruling has been

issued, because the judge hasn’t ordered you or your

opponent to do anything. A common term for

describing this type of action is called a “non-ruling.”

The most effective “non-ruling” judges you’ll face

are often the friendliest judges you’ll encounter in your

practice. These judges succeed at “non-ruling” by

drawing upon your inner desire to be a consummate

professional, while also creating a congenial courtroom

attitude. By encouraging both litigators to just “go

along and get along,” they can avoid issuing stern

rulings (and also avoid a reversal from the appellate

bench). Usually, “non-rulings” will be disguised as

kindly suggestions, such as, “Why don’t you go ahead

and rephrase your question, okay?” Since you don’t

want to stir up the pot, you’re usually inclined to go

along with the judge’s suggestion.

Here are some other common methods judges use

to issue “non-rulings”:

“Move it along, counselor.”

“Please rephrase your question.”

“Ask a different question.”

“Go ahead.”

“Let’s keep things moving…”

Gesturing with their hands to “move things along”

Silence, combined with a scowl or a nod of the

head.

From a day-to-day practice point of view, “non-

rulings” probably aren’t that big a deal for experienced

trial lawyers, because it’s easy to rephrase your

questions and work around them. However, here are

two reasons why you should be wary when a judge

issues “non-ruling.”

First, if you’re a neophyte lawyer, you’re probably a

little nervous in the courtroom. When the judge tells

you to “move it along,” you’re likely to overreact,

skipping past evidence that should be admissible.

The second (and more insidious) problem with

“non-rulings” is the effect they have on your appellate

record. “Non-rulings” leave the losing party without an

appellate remedy. In the event of a non-ruling, the

appellate court will always uphold the lower court

decision. Why? Because the judge didn’t order either

party to do anything. Instead of issuing an order, he

simply left the matter in your hands and your

opponent’s hands. If you decided not to ask the

question or not to admit the evidence, that’s your fault,

not the judge’s fault, and the appellate court can’t help

you.

So what do you do? How can you fix the situation?

Well, it depends. First, you should decide if you really

need the judge to rule. Sometimes, a non-ruling is all

you need. If you’re the one who’s been objected to,

you can simply rephrase your question and seek

another way to introduce your evidence. If you’re the

one objecting, you’ve put your opponent on notice not

to go down that road, and that may be enough to keep

him from revisiting the issue.

But let’s say that you really need a ruling. What do

you do then? If you need the judge to rule, you

probably shouldn’t tell him what to do. (After all,

nobody likes to be told what to do, especially judges.)

Instead, consider asking the judge for a ruling.

Obviously, you’ll need to be polite when asking the

judge for a ruling. Here are a few examples of how to

ask:

The polite request: “Your Honor, before I

continue, could I ask you to rule on the

objection?”

The clarification: “Judge, can I clarify your

ruling? You’re ruling that the entire conversation

is hearsay, right?”

The inferential nudge: “So you’re sustaining my

objection, your Honor?”

Most of the time, non-rulings won’t cause any

permanent damage to your case. However, when you

need the court to issue a ruling, you really need the

court to issue a ruling. In those situations, make sure

you’ve got your ears perked up to listen for any “non-

rulings,” and then be prepared to correct the situation

before your case goes to the appellate level.


Just because the judge has ruled doesn’t mean the battle is over. Victory isn’t within your grasp yet. At best,

you’ve earned a temporary reprieve. Here’s what you need to do after the judge has ruled.

IF YOUR OBJECTION IS SUSTAINEDCongratulations, the judge agreed with your

argument! But don’t tell the judge “Thank you” for the

ruling -- the judge wasn’t giving you special treatment by

ruling in your favor, he was just following the law. If you thank the judge for ruling in your favor, you may get

rebuked, so instead, quietly sit back down at your table,

try not to gloat, and get ready for your opponent’s next

move.

Even though your objection has been sustained, it’s

essential that you keep objecting because the battle’s not

over yet. You still need to keep your ears open to ensure

that your opponent abides by the court’s ruling. If your

opponent attempts to introduce the evidence from a different angle or through a different witness and you fail

to object, you will be deemed to have waived your

objection.

Finally, you need to ask for a remedy. Do you want

the testimony stricken? A curative instruction? A

mistrial? Unless you ask for a remedy, the court can’t fix

the problem.

IF YOUR OBJECTION IS OVERRULEDFirst, let’s examine whether your objection is

premature. For example, let’s assume you object to the

question, “Did the babysitter make any statements to the

police?” The judge would be correct for overruling your

objection, since technically, the question only calls for a

“Yes/No” response.

But just because you’ve been overruled doesn’t mean

you shouldn’t continue objecting. If your opponent asks about the content of her statement (which would be

hearsay), be ready to stand up and object again.

Even if your objection was timely, the judge may not

have heard enough to sustain your objection. Be ready to

object again if the prejudice continues, perhaps even

asking for a continuing objection. For example, if the judge

overrules your hearsay objection, and your opponent

intends to ask 23 follow-up questions about the

statements, you can ask the judge for a continuing objection so you’re not jumping out of your seat with each

new question. A word of warning, however. If you’re

asking for a continuing objection, you need to be very

specific about what you’re objecting to. “Your Honor, I

object to this line of questioning” is insufficient. “Your

Honor, we ask to have a continuing objection on the

grounds of ‘hearsay’ to any questions counsel asks about

the babysitter’s statement” is more specific.

Finally, be prepared to make an offer of proof so that you can protect your appellate record. If an offer of proof is

necessary, ask the judge for the opportunity to proffer the

evidence outside of the jury’s earshot.

IF YOUR OPPONENT’S OBJECTION IS OVERRULEDIf the judge overrules your opponent’s objection,

don’t just tell the witness, “You may answer the

question.” Instead, repeat the entire question for the

witness.

Repeating the entire question serves several

important functions. First, it helps eliminate the

possibility of any misunderstanding. If your judge

conducted a bench conference before ruling on your

opponent’s objection, several minutes may have passed

between the time the question was asked and the

witness is permitted to answer. In the meantime, the

witness (as well as the jurors) may have forgotten what

question you asked. By asking the question a second

time, you get everyone back on the same page,

eliminating the chances of a potential misunderstanding.

Second, repeating the entire question bolsters (ever

so slightly) your credibility by reminding the jurors, “My

opponent was wrong, I was right, and the judge has

agreed to let me ask the question.”

Finally, repeating the entire question allows you to

regain control of the courtroom, which shows your

opponent that you won’t be rattled by his objections.

IF YOUR OPPONENT’S OBJECTION IS SUSTAINEDFirst, pause for a moment. You don’t need to

immediately ask your next question. Take a moment to

clear your brain and prepare for the task ahead.

Second, rephrase your question if possible. There

may be an easy way to avoid the objectionable

material, so give your witnesses some guidance to

avoid the potential landmine in their testimony. (ex.

“Without telling us what the babysitter said, can you tell

us if you talked with her when you arrived home?”)

Next, you’ll want to think if there’s another way you

can make the evidence admissible. Just because

evidence is inadmissible for one reason doesn’t mean it

isn’t admissible for another reason. (The best time to

conduct this analysis is before trial).

If you can’t think of another method to admit the

testimony, make an offer of proof if necessary,

presenting caselaw for your most important evidentiary

rulings. (Again, hopefully you’ve handled the important

evidentiary issues before trial!)

If all else fails, smoothly transition to another

section of testimony if you can’t rephrase your question

or think of another way to admit the testimony. It may

not be the most desirable result, but at least you’ll look

like you’re still in control of the courtroom.


Q: “Tell us, Mrs. Bear -- What did you HEAR Bebe

Behr SAY?”

A: “I HEARD him SAY that someone had slept in his

bed and eaten his porridge.”

Even if your legal education consists exclusively of watching

People’s Court re-runs, you probably know the proper objection to

that question. If you’re like most lawyers, you wanted to leap out of

your chair and yell, “OBJECTION! Hearsay!” before the witness had

a chance to answer.

Technically, you’d be correct. The question does ask the

witness to relay an out-of-court statement. Presumably, the

attorney wants the jury to believe the statement is true. If you

object, you’d be right -- the statement meets the classic definition

of hearsay. If this was an Evidence test, you’d get an A+.

But should you object?

When you successfully object and prevent the jurors from

hearing information, it’s only natural for them to be curious about

what they didn’t hear. Don’t believe me? Well, let me illustrate by

telling you a story about something that happened to me last week.

My friend’s office is downtown, and his personal assistant is a

woman named Susie. Susie is a tall brunette with a commanding

presence. She speaks with just a hint of an accent, but I can never

quite place its origin. Not quite Russian and not quite Romanian,

“Curiosity” continued on page 9

The lead defense attorney listened intently as the prosecution’s star witness testified. He had spent hours honing his questions and preparing his cross-examination of the witness. It had been a late night, but he felt ready for the challenge. He and his trial partner both knew that unless they could successfully cross-examine the witness and show the jurors why his story wasn’t believable, they didn’t stand a chance.

About halfway through the direct examination, the prosecutor asked, “What did you hear the man say?” As the witness started to answer, the defense team’s second-chair attorney rose to his feet and stated, “Objection! Hearsay!”

The judge sustained the objection, and the rest of the examination proceeded without incident. After the prosecutor asked his final question, the judge asked, “Would defense counsel like to cross-examine the witness?”

Rising from his chair, the lead defense attorney said, “Yes, the defense would like to cross-examine, your Honor.”

“What do you think you’re doing?” asked the judge. “Your co-counsel spoke and handled the objections during the direct examination. There’s only one attorney per witness -- your co-counsel will conduct the cross-examination.”

Over the defense’s objection, the second-chair attorney was forced to conduct the cross-examination. The lead trial attorney was relegated to sitting quietly while his trial partner stumbled through the questioning. Ultimately, the cross-examination was unsuccessful, and months later, the appellate courts agreed with the judge’s method of controlling his courtroom when they affirmed the defendant’s conviction.

THE LESSON: Whenever you’re trying cases with multiple attorneys seated at the courtroom table, unless you’re prepared to cross-examine the

w i t n e s s , D O N ’ T O B J E C T T O ANYTHING THE WITNESS SAYS!!!

Curiosity killed the cat. If you object at the wrong time, or for

the wrong reasons, it might kill your case, too!


“Curiosity” continued from page 8

she somehow manages to sound both

seductive and dangerous at the same

time. I learned that she worked with

the C.I.A. for several years, but “I can’t

talk about it” is all she ever says about

her previous job. Anyway, last

Thursday I was over at my friend’s

office for a planning meeting. The

meeting finished around 7 o’clock, and

I left. I met up with some other friends

for a bite to eat, but just as I was

about to head for home, I realized that

I’d left my briefcase up in the

boardroom.

I thought his office would probably

be closed, but I really needed some

stuff in my briefcase for a court

hearing the next morning, so I took a

chance and went back to his office.

When I stepped off the elevator, I

could see that the front door of his

office was slightly open. From the

hallway, I could hear Susie talking on

the phone. I didn’t understand what

she was saying, because she was

speaking Russian or something, but

she was speaking quickly and it

sounded like she was giving orders to

someone. As I entered the office, her

back was to me, and she was looking

at some type of banking website on

her computer screen. In front of her

were 3 or 4 passports spread out

across the desk, and next to the

passports was a small syringe filled

with a brown liquid. She must not

have heard me enter, because when I

said, “Pardon me,” she appeared

startled. She quickly stood up,

blocking my view of the computer

screen, while at the same time deftly

sliding the passports and syringe into

a desk drawer. She quickly said

something in Russian to the guy on

the phone, and then, in English, she

said...

AT T O R N E Y: “ O B J E C T I O N ! HEARSAY!!!”

JUDGE: “Objection sustained.

The jury will not speculate as to

what the witness may have said if

the witness had been allowed to

answer.”

Dang -- I guess I can’t tell you the

rest of the story. But that’s okay. The

judge ruled that you can’t guess about

what she might have said, so I’m sure

you aren’t going to think about it

anymore. Since the judge ordered you

not to think about it anymore, your

curiosity is completely eliminated,

right?

No? You say you still want to

know what she said? Really? Huh...

That’s interesting, because the judge

ordered you not to guess what she

might have said if I’d been allowed to

continue.

Let me ask you something. Later

today, if you find out what it was that

she told me, do you think you will pay more attention to it, or less attention?

Do you think you’ll attach more significance to what she said, or less

significance?

The same thing is true with your

jurors. If you object to something and

keep it out of evidence, you better

make sure it stays out of evidence. If

it gets into evidence through some

other means, the jurors may actually

pay more attention to it than if you

hadn’t objected.

Take a look at our first example,

and Bebe Behr’s statement. Should

you object to this obvious hearsay

statement? Maybe not. Once you

prevent Mrs. Bear from talking about

Bebe Behr’s statement, the jurors are

going to be a little curious about what

Bebe Behr said. They might even

think, “I bet that whatever Bebe Behr

said probably hurts that attorney’s

case. Otherwise, why object to it?”

And here’s the danger: What’s

going to happen when Bebe Behr

testifies in this trial? When he gets the

chance to tell the jurors what he said

to Mrs. Bear, the jurors will hear what

he said. They will hear about the bed

that was slept in. They will hear about

the porridge that was eaten. And

those jurors who thought Bebe’s

statement would hurt your client are

going to pay more attention to it and

attach more significance to it.

Here’s the bottom line: Don’t

object just because you can. Object

because you should. If the evidence

is going to be admitted anyway,

through some other means, ask

yourself if you should object. Ask

yourself what’s going to happen if you

keep the evidence out, but only

temporarily. Don’t evaluate your

objections exclusively from a legal

p e r s p e c t i v e - - e v a l u a t e y o u r

objections from a tactical perspective

a n d f r o m a c o m m o n s e n s e

perspective. Think about the case

from the jury’s perspective, and then

ask yourself: “Should I object?”

JURY SELECTION• Embarrasses a juror

• Asks juror to prejudge case facts

• Misstating the law

• Asking for juror’s opinion on

ultimate issue

• Strike not based on gender-

neutral or race-neutral grounds

WITNESS EXAMINATION• Relevance

• Insufficient predicate

• Hearsay

• 403: Evidence more prejudicial

than probative

• Leading

• Privileged information

• Assumes facts not in evidence

• Argumentative

• Narrative

OPENING / CLOSING• Improper argument

• Misstating facts

• Incorrect statement of law

• Facts not in evidence

• Commenting on criminal

defendant’s right to remain silent

• States personal opinion or belief

• Shifting the burden of proof

• Appeals to prejudice or

sympathy


It happens in courtrooms every

day. Evidence that shouldn’t be

admissible is shown to the jury

because opposing counsel fails to

object, or objects too late...

Plaintiff’s attorney: Mr. Jones,

w h a t d i d y o u h e a r M r s .

Thompson say?

Mr. Jones: I heard her say that

the defendant decided not to fix

the safety device because it was

too expensive and he didn’t care

if anyone got hurt.

Defense a t to r ney : Umm,

objection? Hearsay? I mean,

“Objection! Hearsay!”

Once the jury hears the evidence,

it’s too late. Objecting afterwards is

like closing the barn door after your

h o r s e e s c a p e s , a n d c u r a t i v e

instructions are about as effective as

trying to squeeze toothpaste back

into the tube. Objecting after-the-fact

doesn’t help your case. You need

your objections to be timely. Here are

four tips for improving your courtroom

objections, so that you can be as fast

on the draw as you should be.

#1. KNOW YOUR EVIDENCE CODEIf you intend to practice in the

courtroom, rather than from behind a

desk, you need to master the

Evidence Code. What’s admissible?

What’s not? You won’t know if you

don’t read the Code from cover to

cover. I wish there was some

shortcut I could give you, but there’s

simply no substitute for reading the

whole thing. Better yet, you want to

read an evidence book that provides

commentary and analysis. Here in

Florida, for example, almost every

lawyer and judge depends upon Prof.

Charles Ehrhardt’s Florida Evidence.

Get the copy that corresponds to your

practice area, and invest the time to

read through it.

#2. RAISE THE RIGHT OBJECTIONA general “Objection!” isn’t sufficient.

Sure, if the judge sustains your

objection, then any legitimate reason

will be upheld on appeal, but if you’re

overruled, “relevance” will be the only

objection you’ve preserved. So, if the

proper objection should be “hearsay”

or “insufficient predicate,” when the

judge overrules your objection, it will

be properly overruled, even though

there’s another valid basis for

sustaining the objection.

#3. KNOW HOW TO OBJECTOnce you’ve mastered the evidence

code, you’ll have a much better idea

of what’s objectionable and what’s

not. The next phase is to determine

how to object. Most judges won’t

a l l o w y o u t o m a k e s p e a k i n g

objections (ex. “Objection! That

evidence shouldn’t be admissible

because I can’t cross-examine the

person who made the statement,

robbing my client of his right to

confront his accusers. It’s hearsay!”),

and will limit you to a single phrase

objection (ex. “Objection! Hearsay!”)

Know a l l o f your “buzzword”

objections so that you can make the

objection quickly and effectively.

Here is a quick guide on how to

object:

a. Say “Objection!” Get the word

out forcefully and as quickly as you

can, even if you’re still in your seat.

Speak out and stop it before it gets

“Timing” continued on page 11

Years ago, at the beginning of my career, I was trying a case against an attorney who started yelling and screaming during closing argument. M u c h o f h i s a r g u m e n t consisted of pointing at one of my w i t n e s s e s ( w h o h a d returned to the courtroom galler y to watch closing arguments) and accusing the w i t n e s s o f a v a r i e t y o f offenses. Periodically, the attorney raised his voice so loud that the jurors leaned all the way back in their seats, unsuccessfully trying to avoid him.

Several attorneys from my office were seated behind me, and they kept whispering, “Object! You’ve got to object! W h a t h e ’ s s a y i n g i s improper!”

They were right. His comments were improper. But I didn’t object. Instead, I told my friends, “Just watch the jurors… They

hate him.” Sure enough, after a favorable verdict, one of the j u r o r s r e t u r n e d t o t h e cour troom to watch the followup proceedings. When I got the chance to ask her why she’d come back afterwards, her response spoke volumes: “I just wanted to see what else the jerk had to say.” If I had o b j e c t e d , I w o u l d h av e prevented him from being a jerk.

THE LESSON: Is your opponent doing things that are objectionable, but don’t really hurt your case? If so, consider not objecting, and let t h e j u r o r s v o i c e t h e i r objections in the deliberation room.


“Timing” continued from page 10

worse. The judge may say “sustained”

without any further argument, but if not,

you’ll at least have some time to think

while you rise to your feet and give the

proper legal objection.

b. Stand up. You know better than

to address the court while seated.

Stand up and give the grounds for your

objection.

c. Wait for the judge to rule. Make sure you get a ruling, not just a

“Move along, counsel” or “Perhaps

you could rephrase that, counselor”

admonishment. If there’s no ruling,

there’s nothing to appeal.

d. If necessary, ask to approach and proffer your argument. If it’s a

serious issue, then of course you

handled it pre-trial, but if not, this is the

time to create the record of why you’re

objecting and why the material

shouldn’t be admitted.

#4. PRACTICEHow can you practice if you’re not in

the courtroom every day? Easy -

watch other people in court. There are

two ways to do this. First, you can go

to the courthouse and watch other

lawyers try cases. This is always a

valuable investment of your time. If

they’re better than you are, you’ll learn

a new technique or presentation tip. If

they’re worse than you are, you can

remind yourself, “Don’t do that - look

at how the jury’s ignoring him!” As you

watch the case, quietly object to any

improper material. Do you object

faster than the real lawyer? Or do you

miss important objections? By having

your mind “in the moment” you’ll grow

accustomed to the objecting process.

Second, watch lawyers try cases

on TV. You can either watch the real

lawyers on CourtTV or the fake

lawyers on every other network. The

fake lawyers don’t have to abide by

the rules of evidence, so you’ll

probably have more reasons to object

to them. Watch, and object whenever

you think it’s appropriate.

The best thing you can do is to

quickly make the right decision. The

second best thing you can do is to

quickly make the wrong decision. The

worst thing you can do is not make any decision. The more you practice, the

faster and more accurate you’ll

become. Your goal is to sort through

the entire process (”Is it objectionable?

If it’s objectionable, does it matter? If it

matters, object!”) in an instant. Invest

the effort in practicing, and before long,

you’ll become a quick draw objection

artist, ready to challenge anyone in

town to a duel.


When was the last time you

watched someone else try a case?

Have you ever snuck into a courtroom

and watched your opponent present

a case? If not, let me recommend

you jump at the opportunity to watch

someone else pick a jury and present

their case. If you do, you’ll learn

some things that you wouldn’t

normally notice about successfully

trying cases.

Every year, I get the opportunity

to watch numerous jury trials and

critique the performances of the

attorneys. When I watch a trial, I try

not to read the case file or review a

case summary, because I don’t want

to know any more about the case

than the jury would. I want to be

complete ly detached f rom the

emotional background of the case, so

that I can just sit in the back row and

watch the trial unfold, critiquing the

trial from the jury’s perspective.

Watching all of those trials, one of

the things I noticed was just how

irritating bench conferences are. In

one of the trials I watched last year,

the attorneys seemed to spend more

time presenting their cases to the

judge than they did presenting their

cases to the jury. When most

a t torneys approach for bench

conferences, they violate a cardinal

presentation tip: Never turn your

back on your audience.

Have you ever seen a

live theater performance?

No matter where the

actors move on the

stage, they never turn

their backs on the jury.

It’s the same on TV.

You’ve probably noticed

how TV families are always

gathered on one side of the dinner

table, right? That’s so they don’t

turn their backs on the camera and

exclude anyone in their audience.

You know how rude it feels when

someone turns their back on you.

But when you approach for a bench

conference, that’s exactly what

you’re doing. You’re turning your

back on the jurors.

T h e s e c o n d p ro b l e m w i t h

approaching the bench to argue a

point of law is that you form an

e l i te l i t t le c lub that exc ludes

everyone else in the courtroom

except you, your opponent, the

judge, and the court reporter. As I

watched the at torneys huddle

around the bench and whisper, I

wanted to lean in and listen to the

conversation. I wanted to know

what was going on. And I was

resentful that I was being excluded

from their group.

Here are two lessons you can

apply in your next trial to avoid

ignoring or excluding your jury:

LESSON #1:

Argue the Law Before Trial

The bench conferences I saw

involved points of law that should

have been handled before trial. If

you’re waiting until the day of trial to

argue essential points of law or limit

your opponent’s introduction of

evidence, you’re waiting too late. File

motions in limine before trial, and

you’ll be able to argue those essential

points of law in advance of trial,

min imiz ing the need for lega l

discussions during trial.

LESSON #2:

Don’t Turn Your Back on the Jury

If you must approach the bench

to argue a point of law or respond to

an objection, make sure you don’t

exc lude the j u ro rs f rom you r

discussion. That doesn’t mean

raising your voice so they can hear

what you’re saying — that’s improper.

But you can use your body language

to include the jury at the bench.

Rather than turning your back on the

jury, just turn your body half way or

3/4 of the way towards the judge.

Leave part of your body “open”

towards the jury, and they won’t feel

completely excluded.

No one wants to be excluded from a

conversation... especially your jurors!


When you object (or respond to an objection), it’s essential

that you look like you know what you’re doing. Here are

some quick and easy tips to help you look like a seasoned

professional, even if this is going to be your very first trial.

RULE #1: STAND WHILE OBJECTING

If you’re objecting, you should rise to your feet while

simultaneously stating the word “objection!” Train your

legs so that you start standing the moment you hear

objectionable material. (It’s also a good way to workout

while watching your favorite legal shows on TV). Don’t

jump to your feet or leap from your chair. Don’t stand

before you’re ready to object. Just wait until the proper

moment, rise with purpose, and state your objection.

Don’t try to think of the reason for your objection

before you stand up or before you say the word

“Objection,” because your objection will be too late and

too slow. Get the word out, stand up, and then (if the

judge hasn’t already ruled in your favor) give a reason why

your objection should be sustained.

RULE #2: STAND WHILE RESPONDING

Whenever you’re speaking in the courtroom, you should be

on your feet. Obviously, you’ll stand up because that’s

what your judge will expect, but there are some other

reasons you should be speaking on your feet. First, you’re

going to think better when you’re on your feet. Maybe it

harkens back to your days in grade school, but there’s

something about the act of rising from your seat that forces

your brain to think faster. Second, you’ll be more

persuasive if you respond while standing. Your suit drapes

better, your posture looks better, your voice sounds better

-- you’ll just look more persuasive.

RULE #3: ADDRESS THE COURT, NOT YOUR OPPONENT

When making and meeting objections, it’s essential that

you not speak directly to your opponent. All objections

and responses should be directed to the judge, never to

your opponent. Speaking directly to your opponent is a

rookie mistake, and sure to draw a rebuke from the bench.

RULE #4: DON’T BE INDIGNANT OR SARCASTIC

Occasionally, you’ll be tempted to add sarcasm to your

objections. (ex. “Objection! Do we have to hear this

again? Asked and answered, your Honor!”) Don’t. If

there’s a need for a strong emotional response, let the

judge or the jury deliver the emotional response, rather

than you.

RULE #5: DON’T GLOAT

If your objection is sustained, that doesn’t give you the

right to act immature and gloat in your victory. It’s rude

and it appears petty. Jurors won’t stick by your side very

long if you look like a conceited jerk during trial. Stay

above the fray if you want the jurors to continue supporting

your objections.“Decorum” continued on page 14


Your judge sees more trials in a year than the average trial lawyer sees in

a lifetime. If you’re lucky, he’ll offer to help you in your next trial.

Judges are supposed to be impartial. Each judge takes an oath of office,

swearing to uphold the judicial canons and promising to remain impartial

throughout the trial. This means that even though your judge may be the most

experienced trial lawyer in the courtroom, he’s not allowed to jump into the

middle of your case and give any advice to you or your opponent. But even

though judges are supposed to be impartial, there’s something else you need

to know about them: Judges want to be fair, and they want cases to be

decided on their merits, rather than on legal technicalities.

When judges see something that they think is improper, they want to fix the

harm. That’s why you need to keep attuned to your judge throughout the trial,

because they’ll often subtly nudge you towards the correct objection. Here

are two common ways that judges can offer to help during trial.

#1. PROMPTING YOU FOR ADDITIONAL OBJECTIONS

Lawyer #1: Did Mrs. Jones tell you whether the doctor appeared

intoxicated?

Lawyer #2: Objection! The question calls for an improper opinion.

Judge: Are those your only grounds?

Lawyer #2: Yes.

Judge: Your objection is overruled.

You need to do a better job of reading between the lines. This judge doesn’t

want to overrule the objection, but unfortunately, without a proper legal reason

to sustain the objection, his hands are tied. That’s why he prompts the lawyer,

“Are those your only grounds? [Hint Hint -- there might be another legal reason

you should be arguing.]” When your judge extends this opportunity to you,

take advantage of it. Stop and think for a minute before moving on. If

necessary, ask the judge for a moment to confer with co-counsel. Your mind is

going 1000mph in the midst of trial. That’s why you have a second-chair

attorney, because he’s not caught up in the heat of the moment and his brain

“Helping Judges” continued on page 15

“Decorum” continued from page 13

RULE #6: KEEP YOUR COOLThe worst thing you can do is to

make a fool of yourself if your

objection is overruled or if an

objection is sustained against

you. The best trial lawyers keep

their emotions in check. Don’t

shake your head, sit down in a

huff, stomp your foot, mutter

under your breath, give the evil

eye, announce your intention to

appeal the ruling, roll your eyes,

or throw your legal pad on your

table (Yes, I’ve seen lawyers do

al l of these inappropriate

behaviors!) Remember, if you

act like the judge’s ruling just

killed your case, the jurors will

think that it probably did.

Instead, keep your cool, make

your record, and show your

professionalism. This won’t be

the last case you try before this

judge!

“[B]arristers employ [the

objection’s] use with a great

deal of restraint. If an

objection is improperly made

the ill founded request for

relief is a reflection on the

professional competence of

the advocate who failed to

recognize the impropriety of

the evidence which he sought

to admit. The overruling of

the objection, on the other

hand, is a professional put-

down for the complaining

advocate who obviously failed

to recognize competent

evidence sought to be

introduced by his opponent.”

- James W. Jeans


“Helping Judges” continued from page 15

might actually be working. Use it. The

judge is trying to rule in your favor, so

make sure you give him a valid reason to

do so.

Judges don’t automatically enforce

most evidentiary rules, because they

don’t know the case as well as the

litigants do. Unless it’s a “flagrant foul,”

your judge probably won’t interfere.

Most judges will give you a lot of leeway

in the courtroom, thinking that if you

don’t object, it must be something that

you want to come into evidence. It’s your duty to object, and they realize that

you’re not required to object to every

violation of the courtroom rules.

However, old trial habits die hard. As

the saying goes, “Once a trial lawyer,

always a trial lawyer.” The urge to rise

f r o m t h e s e a t a n d a n n o u n c e ,

“Objection!” doesn’t fade with age.

S o m e t i m e s , a j u d g e h e a r i n g

objectionable evidence looks like he’s

going to jump out of his skin if he’s not

allowed to object. But unfortunately,

unless you give him a reason, the judge

won’t interfere.

That’s why you want to be tuned into

your judge’s body language. Your judge

might help you out during trial by giving

you clues that you should object. Read

your judge’s body language. Some

judges raise their eyebrows or look at

you as if they’re almost begging you to

object, but most won’t go that far. Keep

your eyes open for non-verbal clues that

the judge may be sending your way. Is

he looking at his watch, wishing that he

didn’t have to hear the same testimony

again and again? Does he sigh or

breath deeply through his nose? Is he

getting irritated? Does he look mad?

The judge usually won’t interject unless

you give him the opportunity. But a

judge who is mad wants to rebuke the

other side... without appearing

impartial. Keep your eyes and ears

open for clues that the judge wants you

to object, and give him the opportunity

to rule in your favor.

The majority of the trial lawyers

that you’ll encounter throughout

your career will be competent,

ethical professionals. When these

types of trial lawyers rise from their

seats to object during trial, they

usually have a legitimate reason

for objecting. But some trial

lawyers object for improper

reasons. Here are four types of

improper objections you should be

aware of.

#1. COACHING THE WITNESSThis is probably more common

at depositions than it is at trial, but

you need to keep your ears alert

for any attempt by your opponent

to suggest answers to the witness

through his objections. (ex.

“Objection - the witness should

only responds if he remembers.”

Witness: “I don’t remember.”)

These types of objections are

improper and obs t ruc t the

witness’s testimony. If your

opponent attempts to coach the

witness through his objections,

you should object in kind, asking

the court to prohibit the attorney

from “coaching the witness” or

“improperly suggesting answers to

the witness.”

#2. SPEAKING OBJECTIONS“Objection, your Honor. The

question violates your pre-trial

ruling. Counsel knows better than

to violate the order of the court, so

he must be doing it deliberately in

an attempt to publish inadmissible

evidence to this fair minded jury. I

must object, because counsel has

been doing this all day, and…”

You get the point. If your

opponent insists on making

speaking objections (and, for some

reason, your judge allows them),

you can choose to respond in kind

(not recommended), or interject

and cut short his objection by

asking to approach the bench for

proper argument or even objecting

to your opponent’s objection.

#3. CALMING THE WITNESSWhen you’ve got a witness on

t h e r o p e s d u r i n g c r o s s -

examination, the last thing you

want to do is ease up and let him

off the ropes. But that’s all your

opponent can think about. More

than anything else in the world, he

wants to find a way to give the

witness some breathing room so

that he can collect his thoughts

and respond to your attacks. One

technique that lawyers use when

trying to slow down your attack is

to ask the judge if they can

approach the bench. At the

bench, they’ll make an objection,

not in hopes of having the

“Sneaky Tricks” continued on page 16

IS YOUR OPPONENT OBJECTING FOR AN ULTERIOR MOTIVE? LOOK

OUT FOR THESE SNEAKY OBJECTION TRICKS IN YOUR NEXT TRIAL.


In trial, it’s not enough for you to

merely object in a timely manner and

state the correct “buzzword”

objection. You also need to convince

the judge that your objection is

correct and he should rule in your

favor. One way to subtly influence

the judge’s decision is by looking

confident when you decide to object.

Obviously, just because you look

confident doesn’t necessarily mean

that the judge will rule in your favor

(after all, you might be 100%

convinced of something that isn’t

true), but when you believe what

you’re saying, judges and jurors

naturally feel more inclined to believe

you. (Caveat: You better be right -- if

you appear confident in your

decision but are later proven wrong,

they’re not going to trust your

opinion the second time around!)

More important that looking

confident, however, is not appearing

weak or indecisive. When you look

like you lack confidence in your

objections, judges are more likely to

overrule you, because if you don’t

believe in the positions you’re

advocating, why should the judge?

So if confidence is so important

to getting the judge to rule in your

favor, how do you develop it? As

Winston Churchill said, “Before you

can inspire with emotion, you must

be swamped with it yourself. Before

you can move their tears, your own

must flow. To convince them, you

must yourself believe.” If you want

the judge to rule in your favor, you

must feel confident that your position

is the correct one. Here are four

quick tips for making confident

objections:

1. KNOW THE LAWIt doesn’t matter if you have movie-

star looks and the poise of an

international diplomat. You can’t

confidently object if you don’t know

what you’re doing. Confident

objections begin with knowing the

Evidence Code better than you know

“Confidence” continued on page 17

“Sneaky Tricks” continued from page 15

objection granted, but in hopes

of letting the witness calm

down. If you’re confronted with

this technique, don’t let the

witness off the ropes! Instead,

r e s p o n d b y i m m e d i a t e l y

withdrawing your question,

thereby removing the need to

approach, and then hitting the

witness from a different angle.

It’s perfectly valid for your

opponent to voir dire the

witness and determine his

q u a l i fic a t i o n s t o t e s t i f y.

However, many lawyers will go

beyond the scope of the voir

dire and attempt to begin their

c ross-examinat ion o f the

witness before you can initiate

your direct examination. When

this happens to you, object that

counsel is exceeding the scope

of voir dire and is attempting to

cross-examine the witness, then

ask the judge to let you proceed

with your direct examination.

Depending on where you

practice, your judge may let

your opponent get away with

some of, all of, or none of these

tricks. But regardless of

whether or not your judge

allows these tricks in your

courtroom, and regardless of

how often your opponents try to

use these sneaky tricks against

you, don’t ever feel tempted to

respond in kind. For the rest of

your career, the most valuable

asset you’ll ever bring into the

courtroom is your reputation for

professionalism. It takes a

lifetime of hard work to develop

that reputation, but getting

caught using one sneaky trick

c a n r u i n y o u r s p o t l e s s

reputation.

YOUR WORDS MAY BE TELLING THE JUDGE THAT THE EVIDENCE IS

IMPROPER, BUT WHAT MESSAGE ARE YOU REALLY SENDING?


“Confidence” continued from page 16

the back of your hand. Buy an extra

copy of your evidence rules to keep in

the bathroom if you have to, but make

sure that you have read the rules from

cover to cover before stepping into the

courtroom. You might wish that there

was an easier way, but unfortunately,

there’s simply no substitute for

knowing the rules by heart.

Additionally, some objections

r e q u i r e m o re t h a n a g e n e r i c

knowledge of the rules. For these

situations (which you should recognize

before you reach the courtroom),

make sure you’ve done your research

and have prepared a pocket brief or

brought copies of the appropriate

caselaw in support of your position.

2. RISE WITH PURPOSELeaping to your feet the way you did

back in college when your team

scored the winning touchdown doesn’t

look very professional when you’re in

the courtroom. Even so, many trial

lawyers look like they’re just as likely

to yell “Touchdown!” as they are to

announce, “Objection!” when they rise

from their seats. This type of

demonstration sets the wrong tone.

You don’t want to look like you’re

celebrating the opportunity to object.

Instead, you want the jurors to feel like

you’re almost disappointed that you’re

being forced to object. Remember,

you’re not objecting because you

want to -- you’re objecting because

your opponent has done something

improper, placing you in the awkward

position of having to call attention to

his misdeed. Here are a few ways to

maintain your poise when rising to

object:

Position yourself correctly. Keep

your feet firmly planted on the floor,

approximately shoulder-width apart,

so that you’ll be able to stand up

without shuffling your feet around.

Keep your chair pushed slightly back

from the table, so you can stand in a

single fluid motion without banging

into it when you stand up and so it

won’t lean against the back of your

legs while you remain standing to

argue your objection.

Don’t stand up preemptively. U n l e s s y o u ’ r e g o i n g t o s a y

“Objection,” you should remain

seated. In my opinion, standing

w i t h o u t o b j e c t i n g l a c k s

professionalism, because it seems

calculated to “upstage” the other

lawyer and draw attention to yourself.

Either object or don’t object, but don’t

try to take the middle ground and

“hover” while your opponent is

speaking.

Rise, Igor, rise! You don’t want to

fall over yourself or knock your chair

over by rushing as you rise to object.

Instead, you want to rise from your

seat in a calm, deliberate manner.

Don’t use your arms to lift yourself up

from your chair or table. Stand tall,

because all eyes in the courtroom will

be upon you. As you remain standing,

avoid fidgeting. Don’t put your hands

in your pockets or rest them on the

table. Keep your hands down by your

sides or let them move naturally to

emphasize any points you make.

3. SPEAK WITH POWER“Um... objection? Hearsay?” Don’t

let your voice trail off at the end. Your

objection is not a question, it is a

declarative statement that should stop

the proceedings immediately. You

need to sound confident and force

your voice to rise above the noise of

courtroom doors opening and closing,

traffic noises from outside the

courtroom, etc. If your voice is weak,

build it up by joining a Toastmasters

group to practice speaking in public,

using breathing exercises, or learning

“Alexander Technique” methods. Your

voice is your instrument -- tune it!

4. PUT IT ALL TOGETHEROnce you’ve made the decision to

object, you’l l want to halt the

p r o c e e d i n g s b y a n n o u n c i n g

“Objection” and simultaneously rising

from your seat. You want the process

to feel like second nature, so that

eve ry t ime you say the word

“Objection,” you automatically rise

from your seat. Don’t be afraid to

practice the process a few times in the

privacy of your office. After all,

practice makes perfect!

The Rules of Evidence may be the same in each courthouse, but how those rules are applied v a r i e s f ro m c o u r t ro o m t o courtroom. For some judges (especially those who go to bed with a copy of the Evidence Code tucked beneath their pillows), the word “Objection” may be all they need to hear before sustaining or overruling the objection. Some judges will ask to hear the grounds before deciding, but only want to hear a single “buzzword” objection, while others will let the lawyers bicker back and forth before finally ruling. To learn what your judge expects before you go to trial, talk to the courtroom deputy, the court clerk, or other lawyers who have tried cases in that courtroom. Spend an afternoon in court, watching the judge in action. Maybe even (gasp!) talk to the judge himself and ask what he expects. As the Boy Scout Motto says, “Be Prepared!”

Knowing what your judge

expects will increase the

chances your objections will

be sustained.


Your opponent is cross-examining

your star witness, and begins asking

o b j e c t i o n a b l e q u e s t i o n a f t e r

objectionable question. Should you

object to protect the witness?

Well, it depends. Certainly, if the

questions are unduly harassing your

wi tness, pry ing into sensi t ive/

privileged areas, or causing undue

embarrassment, then yes, you should

certainly object.

B u t s u r p r i s i n g l y , m a n y

experienced trial lawyers will tell you

that they rarely object during the

cross-examination of their witnesses.

They know that jurors can see for

themselves when a question is unfair

or calculated to be misleading, and it’s

usually pretty obvious when a trial

lawyer is abusing a witness.

So if it’s so obvious that the lawyer

is attempting to abuse your witness,

why wouldn’t you want to object?

The reason you wouldn’t object is

because you want the jurors to see

that the witness is capable of fending

for himself (to a point). As Mark Twain

said, “If you tell the truth you don't

have to remember anything.” When

your witness has the truth on his side,

he doesn’t need very much

help. By letting your witness

t e l l h i s s t o r y w i t h o u t

interruption, you’re letting

the jurors see that your

witness is confident in his

answers, that his responses

are the truth, and that you

have nothing to hide. When

he’s able to fend for himself

without your intervention, the jurors

are more likely to believe what he

says.

There’s also another reason why

you might not want to object when

your opponent treats your witness

rudely: When he insults the witness,

he’s indirectly insulting the jury, too.

Your jurors feel like they have

much more in common with your

witness than they have in common

with the opposing lawyer.

Think about the similarities in their

courtroom experiences: Your witness

raised his hand and swore to tell the

truth, just like they raised their hands

and swore to tell the truth before jury

selection began. Your witness is

forced to sit and answer questions

from the attorneys, just like they were

forced to sit and answer your

questions during jury selection. The

witness is prohibited from asking any

questions or taking a “time out,” just

like they are.

That’s why, in any confrontation

between a lawyer and witness, unless

your witness turns out to be a jerk, a

boor, or a liar, the jurors are going to

side with the witness. When they see

the “abusive attorney” picking on the

witness, they’re going to voice their

own objections about his tactics. But

rather than objecting in the courtroom,

they’re going to object where it really matters, in the deliberation room!

You can object to protect your witness during

cross-examination, but should you?

TO EXCLUDE INFORMATIONThese objections prevent jurors

f r o m h e a r i n g i m p r o p e r o r

prejudicial information.

Examples:

• Hearsay

• Insufficient predicate

• Privilege

• Miranda violation

• Violation of motion in limine• Relevance

• More prejudicial than probative

TO MODIFY QUESTIONINGThe information may be

admissible, but the form of the

question is improper, and needs to

be fixed before the attorney may

ask the question.

Examples:

• Leading

• Argumentative

• Narrative

• Compound question

TO PREVENT PREJUDICEOften, these types of offenses

aren’t contained within the written

record, and you must establish a

sufficient record of the offense.

Examples:

• Violating the rule of sequestration

(two witnesses seen talking in the

hallway regarding their upcoming

testimony)

• A juror blows kisses at your

opponent during closing argument


#1. VIOLATION OF A PRE-TRIAL RULING

It’s one thing to violate an obscure rule or a rule that

you’re unaware of (“How was I supposed to know that it’s

illegal to stick pennies in my ears while standing on a street

corner in downtown Honolulu?!?”), but it’s entirely different

when you’re specifically told not to do something and then

you go ahead and do it anyway.

The purpose of motions in limine and pre-trial rulings is

to place both parties on notice about what will be allowed

and what won’t be allowed during trial. There’s no faster

way to draw a judge’s ire than by violating his direct orders,

so if your opponent violates a pre-trial ruling, bring it to the

judge’s attention immediately. Many judges view these

violations as the equivalent of thumbing your nose at the

court, and will discipline your opponent accordingly.

#2. NON-RESPONSIVENESSAlmost every witness changes their demeanor between

direct examination and cross-examination. Their body

language shifts and the tone of their responses changes as

they shift from a position of cooperation to a position of

combat readiness. If you’ve spent any time in the

courtroom, you’ve seen how witnesses who were

obsequious during direct examination become recalcitrant

during cross-examination.

But some witnesses go even further. Not content to

merely serve as a witness, they instead choose to play the

role of advocate, actively resisting all of your attempts to

cross-examine them. The first time this happens, you’re

entitled to object on the grounds that

they’re not responding to their questions.

You’re entitled to object, but don’t. At

least not the first time they act non-

responsive. Nor the second time. Not the

third time, either. Instead, string it out for

awhile, so that the judge and the jury can

see how far the witness will go in an

attempt to avoid answering your question.

Only after the judge starts to become irate

should you object that the witness is being

non-responsive. If you’ve gauged your

judge’s temperament correctly, you’ll be in

for a fireworks show.

#3. RULE OF COMPLETENESSThis is often an overlooked objection, but

it’s one of the most deadly. This objection

undermines your opponent’s credibility,

because you get to show the jurors that

he’s trying to mislead them. The best part

about this objection is that you don’t have to wait until it’s

your turn to ask questions before you correct the statement

-- you can do it on the spot, essentially testifying in the

middle of your opponent’s examination.

Attorney #1: You said that you were going to

“make him pay,” didn’t you?

Witness: I don’t know what you’re talking about.

Attorney #1: Page 7, line 23. “I was going to make him pay.” Those are the words you said at

the deposition, right?

Attorney #2: Objection, counsel is misleading the

jury. Under the rule of completeness, the jury also

needs to hear the next lines from that deposition to

properly understand the context of the statement.

Page 7, lines 23-24, Your Honor.

Judge: Sustained.

Attorney #2: “I was going to make him pay for his

share of the phone bill, because that was the deal

we arranged when we agreed to be roommates.

Notice that you should read the rest of the language, not

your opponent. If you let your opponent read the rest of

the statement, he’ll use his vocal inflection to minimize the

negative implications of the statement. To get the most out

of the statement, you need to read the rest of the

statement aloud. Done well, the judge and the jury will see

how your opponent tried to mislead them, and they’ll never

trust him again.

Not all objections are created equal. Here are three of the most powerful

(but only if they’re sustained!) objections that you can raise during trial.


You don’t need thousands of

courtroom hours under your belt to

successfully spot objectionable

material. Here’s how to anticipate

when you’ll need to object.

The difficulty with objecting isn’t

spotting objectionable material. Every

trial lawyer can tell when a skunk has

been let loose in the courtroom. The

difficulty is being able to identify the

objectionable material before the

stench hits the jury. Fortunately, with a

little bit of effort, you can train yourself

to anticipate objections before they

happen. As Sun Tzu said in The Art of War, “If you know the enemy and know

yourself, you need not fear the result

of a hundred battles. If you know

yourself but not the enemy, for every

victory gained you will also suffer a

defeat. If you know neither the enemy

nor yourself, you will succumb in every

battle.” Here are a few quick tips for

t ra in ing yourse l f to ant ic ipate

objectionable material:

#1. KNOW YOUR OPPONENTThe courthouse is a small community.

If you ask around, you can quickly

learn almost everything you need to

k n o w a b o u t y o u r o p p o n e n t ’s

courtroom habits. Find other lawyers

who have tried cases against your

opponent, take them out to lunch, and

then pick their brains. They’ll be able

to tell you how he normally acts in trial,

what arguments he normally

makes, how he objects (and

responds to objections), and

much more. As tr ia l

lawyers, we’re victim to our

own habits, so if he’s used

the same jury selection

technique successfully in

other trials, chances are

that he’ll probably use it

in your trial, too. Learn

what to expect and you’ll

be prepared to counter it

during trial. If his expected

actions are prejudicial, fi le

motions in limine to prevent him from

doing it.

#2. KNOW YOUR OPPONENT’S CASE Every good trial lawyer knows the

importance of placing yourself in your

opponent’s shoes and looking at the

strengths and weaknesses of the case

through their eyes. As you’re

analyzing your opponent’s case, ask

yourself, “What testimony or exhibits

will my opponent attempt to introduce

into evidence that will hurt my case or

help their case? What arguments will

he make that will hurt my case? What

objectionable evidence might he

attempt to introduce? Through which

witnesses will he attempt to introduce

that evidence?” By knowing what to

look for (and when to look for it), you’ll

be ready to object and will stay alert

when your opponent rushes through a

section of testimony, possibly trying to

use his momentum to push

through objectionable material.

Again, if the information is damaging,

file a motion in limine to exclude it.

#3. KNOW YOUR BUZZWORDSFinally, keep your ears open for

buzzwords or questioning patterns

that indicate objectionable material is

about to rear its ugly head. If you

know what to listen for, you’ll be ready

to object. Here are a few examples: • “So, in summary…” (Asked and

answered; Repetitive; Argumentative)• “Would you say…” (Leading)• “What if I told you that Mr. Smith

testified…” (Improper opinion, Calls

for speculation, Violates the Rule of

Witness Sequestration)• “Isn’t it possible that…” (Calls for

speculation)• Use of “and” and “or” (Compound

question)• “What did you hear…” or “What

did she say…” (Hearsay)

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