Five Decisions Before You Object
On TV, an attorney jumps up and yells, “Objection,” then the attorneys argue until the judge rules in favor of the more attractive attorney, whose name is probably the name of the show. This does not prepare you at all for a real trial, in which opposing counsel asks a question, and in the 0.3 seconds before the witness answers, you have to make five decisions:
Is this question objectionable? When you speak in court, you want be absolutely correct. Being correct builds your credibility before the court and the jury, and being incorrect erodes it. The more correct you are, the bigger the credibility account you can draw on during your closing argument. So when you are deciding whether to object, first decide whether your objection is well founded.
Periodically, I review the evidentiary rules of Virginia, Maryland, and the District of Columbia. From the looks I get at cocktail parties, I gather that few people do this. But to be a top-tier trial attorney, you need to know the rules thoroughly. You don’t want to spend your 0.3 seconds trying to remember the distinction between an admission by a party-opponent and a statement against interest.
Not everybody agrees with me. Some attorneys make random objections just to slow down an examination that is going badly for them, like a basketball coach calling a timeout to stop a run. I get the idea, but again, I want every word I say in court to be correct. A string of poor objections can hobble you when you’re trying to cash in your credibility. Save your objections for objectionable questions.
Am I going to win this objection? I used to think this was the same as #1. Then I tried a case as a young DOJ attorney.
Plaintiff’s counsel asked his own witness, “Didn’t such-and-such happen next?”
“Objection, leading!” I proclaimed.
The judge responded, “Overruled. The witness can just answer yes or no.”
“But Your Honor —”
“Overruled!”
Thus emboldened, plaintiff’s counsel led his witness like he was presenting in the Westminster Dog Show. I kept objecting, but the judge didn’t grow any fonder of my objection the more I made it. After a few rounds of this, I finally remembered the lesson from renowned legal expert Jean-Luc Picard: You can be completely correct, and still lose.
You don’t want a judge consistently overruling your objections. You’ll irritate the judge, and the jurors will think you don’t know what you’re doing. If you are sure you are right and the judge is wrong, then you’ll have the same choice I had: keep objecting and look bad while preserving your grounds for appeal, or shut up about it and save your credibility for another issue you can win. Keep in mind that clients hate looking bad and like winning, so your client will probably want you to shut up about it. So you’ll probably decide to stop objecting.
If you stop objecting, you still have two options.
First, you can ask the court for a standing objection to a particular line of questions. However, it may not always be clear whether a particular question falls within your standing objection for appeal purposes.
Second, you can file a motion in limine. Take it from me - if the court has made up its mind on an evidentiary issue, your sparkling prose won’t change it. But a motion may preserve your issue for appeal more effectively than a standing objection.
In my case, I stopped making those particular objections. In fact, I kept a lot of my correct-but-previously-overruled objections to myself. The judge seemed relieved that I wasn’t objecting as much. Eventually, we won the case on a motion for a directed verdict, and the appeals court upheld our victory. I think abandoning my correct-but-losing arguments in favor of correct-and-winning arguments gave me some credibility for our directed verdict motion.
Does this answer matter? Most issues that arise during a trial don’t affect the verdict. So even if you think you’re correct and that the judge will sustain your objection, you still have to take 0.1 seconds to consider what you have to gain by objecting to a particular question.
For example, maybe your witness is handling the examination well - no doubt entirely due to your thorough pretrial preparation. The jury is nodding appreciatively, and opposing counsel is getting frustrated. Why disrupt an examination that is going well for you? Like a parent removing a hand from the back of a child’s bicycle, you can cautiously let your witness answer a few objectionable questions. Of course, you’ll remain alert and ready to jump back in if needed.
Or, attorneys sometimes ask irrelevant questions. Juries hate attorneys who waste their time, so you probably don’t want to give your opponent any chance to notice the jurors’ hostile stares. By the time your opponent gets to a more relevant line of questioning, the jury may have lost interest in the entire examination and won’t remember anything your witness says.
On a related note . . . .
Will the answer help or hurt my case? If you are sure the witness’s answer will help your case, then you will definitely . . . well, wait a minute. How sure are you? If your witness is on the stand, you probably should trust your pretrial preparation and let the witness answer. That’s why you prepared.
With a third-party witness, the calculus becomes tougher. You usually know whether a witness is friendly or hostile and can guess accordingly, but not always. Even a friendly witness can give an unhelpful answer, and vice versa. If you block a helpful answer, you might not get another chance to get that evidence in. And obviously, if you let in an unhelpful answer, it’s in the case for good. Take 0.1 seconds and figure out whether your objection, if sustained, will help or hurt your case.
Have I been objecting too much? Jurors especially see every objection as a delay in the trial, and jurors hate trial delays. They want to get this trial over with, so you might be able to give your Jack McCoy impersonation a rest. If opposing counsel isn’t scoring any points, maybe let a few bad questions slide.
For example, attorneys often ask objectionable questions that could easily be rephrased into proper questions. You could object, but if your opponent can easily rephrase and get the exact same answer, then you have to ask yourself what you gain by objecting.
Along the same lines, some jurors view objections as a sign that the attorney either is trying to hide something or lacks confidence in the witness. After all, on TV, the bad guy’s lawyer yells “Objection!” at the hero’s witness, the judge overrules the objection, thus allowing the witness to deliver moving testimony that inspires the jury to render a huge verdict. So in real life, jurors often wonder why are you trying to prevent the witness from giving this important, moving testimony. This means you’ll want to spend at least 0.1 of your 0.3 second considering your objection’s effect on the jury.
It can also be a question of pacing. For example, you might want to end the day with your witness’s rousing testimony for the jury to ponder overnight, but you can’t do that while the previous witness is on the stand. The more you object, the longer the previous witness will sit there, blocking your star witness. You could withhold a few well-founded objections to get to your more important witness in time. Do you want to keep certain evidence out or preserve an appeal argument, or do you want to hit the finish line?
Of course, you often need to object. If the judge is consistently sustaining your objections, it’s easier for you to object, because the jury will mostly direct its irritation at the opposing counsel who can’t formulate a proper question. You can help this process along by letting a note of annoyance slip into your manner. (Not too much - jurors also hate snide attorneys.)
As your win-loss record drops, the calculus changes. Generally, the fewer objections you win, the less you should object. If the judge isn’t buying your view of evidentiary law, pick your spots. (See #2 above.)
In the heat of trial, you might not remember all of the above. If nothing else, remember to keep your knees bent during your opponent’s examination, so you can stand up faster. You don’t want to spend your 0.3 seconds just getting out of your chair.
Sean Griffin litigates contract and fraud cases in Virginia, Maryland, and the District of Columbia. He may be reached by email at sgriffin@dykema.com or by phone at (202) 906-8703.