How To Prepare for Trial: Objections
September 4, 2010 | Insider Tips
In the past few weeks, we have provided with you with information on how to effectively conduct the testimonial phase of the trial. Now it is time to discuss the use of objections, which is a request to the court to rule upon admissibility. Objections can be made at nearly any point and about nearly everything in the trial, e.g., questions, answers, opposing counsel’s demeanor, judge’s behavior, etc. Therefore, although focusing on the content and strategy of one’s case is critical, a skilled and successful advocate will also be aware of the objections that he or she must raise or that can be raised against his or her own case. At the end of the day only admissible evidence will make it into the record, and failing to raise the proper objection may mean that otherwise inadmissible evidence will be let in.
Below is a sample of objections that are available to the advocate.
- Leading Question: An advocate is allowed to object to the impermissible use of leading questions (e.g., during direct examination) which suggest only one answer, generally a yes or a no. A skilled advocate will be able to recognize and object to this easily.
- Compound Question: Here, the advocate can object to the use of questions that compound more than one issue. Watch for two questions strewn together as proper questioning techniques only ask one question at a time.
- Argumentative: This objection is grounded where a witness is coerced into accepting an attorney’s inference or conclusion or where the witness provides an answer that the attorney does not seem to want to accept. Here, the advocate can generally listen to the tone and watch the demeanor of the questioning advocate to know if it is proper to object.
- Asked & Answered: Sometimes lawyers will want to drill down on a point they believe is really good. An advocate can object to a question if there is not a sufficient enough variation on the theme to be safely considered a separate question evoking a separate answer. Obviously, a certain skill is required on the questioning advocate’s side since it is important to stress the persuasive points of the case through repetition of a theme.
- Hearsay: The first of the substantive objections mentioned thus far is one of the most important. The Federal Rules of Evidence prevent out-of-court statements from being entered into court, with a few exceptions such as if the statement was pulled from a business record or was made as a dying declaration (we will provide a further examination of Hearsay rules in a subsequent post).
- Irrelevant: If evidence is presented that has no consequence to the case or does not go to the “probability” of the issue in dispute it can be objected to on the grounds of irrelevance.
- Speculation: When a witness is in effect guessing his or her answer, for e.g., as is the case whenever anyone is responding to a hypothetical question, then the advocate can object on the grounds of speculation.
- Privilege: Certain evidence otherwise admissible can be protected by privilege. Depending on the jurisdiction, some information shared between the attorney-client, physician and patient, clergy, etc. may be protected.
- Best Evidence: Grounded in the Best Evidence Rule, this objection refers to an instance where a piece of evidence is being introduced, but not in its original form. The objection calls for proof that the original copy cannot be conjured up so that the copy can be admitted.
It requires very quick thinking and knowledge of the rules to know when to object and to use the proper objection. The advocate will become accustomed to relying on certain words to conjure up the objection, reacting with almost cat-like reflexes. Also, an important note to remember here is that the objections serve a purpose beyond the immediate trial. Appellate courts, or reviewing courts, will not consider issues that were not originally raised in the lower or trial court. Therefore a failure to lead a timely objection will narrow the scope of issues that can be reconsidered on appeal.
