Objecting is fun. I never feel more like a lawyer than when I am objecting.
Having said that, objecting is also risky, not only because you might be overruled, but also because, even if you’re sustained, the jury might think that you’re trying to hide something from them. So, like everything else, objecting is a skill. Here are some things to consider as you work to develop it.
[Of course, there’s no substitute for experience. You get better at objecting the more you do it. Another reason to go to trial when you should.Why to Object
Objections serve three important purposes:
1. They preserve issues for appeal.
2. They prevent the admission of improper evidence.
3. They protect witnesses from harassment.
For these reasons, objections are an important tool in the trial lawyer’s arsenal. They do, however, have their drawbacks.
Why Not to Object
Objections should be handled with care. Here are some reasons to use them sparingly.
1. It’s Improper to Object Without a Legal Basis. Some lawyers object to throw off their opponent’s pacing or rhythm. That’s wrong. I have had occasions where I’ve objected during a prosecutor’s heated cross of my client, but that’s because, in their zeal, the prosecutors wouldn’t allow my clients to finish their answers. While my objection had the effect of disrupting the cross, that wasn’t my purpose.
2. Objections Draw Attention to the Evidence. If you don’t want the jury to assign too much importance to a certain piece of evidence, don’t object to it. If it’s a really important piece of evidence that you know about pre-trial, you should bring it up in a motion in limine. That way, you don’t have to risk looking bad in front of the jury. If the evidence is important and a surprise, you have to object in the presence of the jury. Just be aware that every time you object, you run the risk of the jury thinking that you’re trying to hide something. So object with care.
3. Objections Slow Things Down. Too many objections will make the jurors resent you. They want to go home. If they think that you’re prolonging their service, they’ll punish your client. So be judicious both with your objections and your sidebar requests.
When to Object
There are two ways to think about this: when to object during the trial, and whether to object during the trial or before, in the form of a motion in limine. For now, let’s focus on objections that are made during the trial.
Most common trial objectionsare made when your opponent asks a question that is improper, or that you believe will lead to an improper answer. An example of the first instance would be when the prosecutor asks a leading question on direct. An example of the second would be when the prosecutor asks for a hearsay answer.
The ideal time to object in these situations is just after the question is asked, but before the answer is given. This timing can be difficult, so stay alert. If you object too late, no big deal. Just don’t react, even if the answer totally sinks your case.
How to Object
Objections should be made with confidence, and they should always have a basis.
As far as confidence goes, speak loudly. Consider standing up. [I don’t always stand up because I feel silly sitting down just after I’ve been overruled. But, if it’s an important objection and I think it’ll be sustained, I stand up.] Speaking loudly [and standing up] will get the attention of the witness, lessening the chance that they will answer the question before the judge rules.
As for the form of the objection, keep it short: Objection, leading. Objection, hearsay. Objection, relevance.
Fail to give a basis, and the issue probably won’t be preserved for appeal. Plus, by offering one, you look more professional. And don’t worry about giving the wrong basis. Try to give the proper one, of course, but don’t feel like you must have absolute certainty before you object. Just, whatever basis you give, state it with confidence.
Finally, don’t make speaking objections. A speaking objection is one that makes an argument, or goes on a long narrative. Speaking objections are petty because they amount to arguments that your opponent can’t confront at that moment. Judges hate them, and rightfully so.
Fight hard, but fight clean.