Special Report Objections

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,
dont you? Back in law school,
your issue spotting skills
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
2009 by Trial Theater, LLC - All Rights Reserved
theyre still in law school. Youve

seen them in trial -- as soon as
they spot an issue, they announce
it to the world. (Objection! Thats
a leading question
Objection!
That asks for hearsay! Objection!
That calls for speculation!)
Te c h n i c a l l y, t h e y re r i g h t ,
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 toptier 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:
Before you win your next

jury trial, sign up for your
free subscription to Trial
Tips Newsletter by visiting
www.TrialTheater.com today!
You Can Object continued on page 2
[1]
To get more trial advocacy tips, visit www.TrialTheater.com
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 cant unring a
bell and you cant stuff toothpaste
back in a tube -- if you dont
object in time, the jury will hear the
objectionable material, and it will
be too late to fix the damage.
Thats why trials can be so tiring,
because youre expected to have
your brain redlining at 9000 rpm
throughout the entire trial, spotting
every issue and deciding whether
or not to object.
example, in a single witness

examination, you may spot 23
leading questions.
Technically,
theyre all objectionable.
But
before y ou obje c t , y ou a s k
yourself, Does that evidence hurt
my case?
If not, maybe you
shouldnt object.
Too often, attorneys object to
evidence that doesnt hurt their
case, and end up shooting
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
#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 its
objectionable.
You need to
develop this skill before you get to
trial. By the time you get to the
courtroom, its too late to start
reading through the evidence
code. You wont 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 youre one of the
better trial lawyers in your
courthouse.
Just because the
evidence is objectionable doesnt
mean you should object.
Not
every issue really matters.
For
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 didnt allow the photo
into evidence.
It sounds like she did the right
thing, doesnt 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 didnt 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 didnt really hurt her case. If
the defendant had entered the
photo into evidence, he would
[2]
have lost the sandwich and she

could have had the benefit of first
and final closing arguments.
#3. WHEN WILL YOU OBJECT?

If youve decided that you should
object, you should next determine
when to object.
Usually, youll
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? youll
probably object by the 7th word in
his question.
But deciding when to object
isnt always as clear-cut as that. If
your opponent is asking leading
questions, but youve decided they
dont hurt your case, maybe you
wont object at all. Or maybe you
let it go for 7-8 questions, and then
tell the judge, I havent objected
up until this point, but, Objection!
-- Counsel is asking only leading
questions.
Many times, your objection
needs to be heard before trial.
Youre 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 trial to preclude the
admission of the evidence.
Or maybe you dont object
until closing argument, when you
tell the jury, I could have objected
to his questions, because they
were all leading questions... The
witness wasnt telling you the
story, her attorney was. But the
reason I didnt 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
Heres a four-part process to follow when your opponent screams, Objection!

1. Pause. Take a breath. This isnt the end of the world.
Sometimes, more experienced trial lawyers will object
simply because theyre trying to rattle the cage of newer
attorneys. Dont let them get to you. You dont 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 dont 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
Rs of Admissibility on page 4]
3. Rephrase only if obviously necessary. Sometimes,

you wont have a good response. But too often, lawyers
dont even wait for the judge to rule. They treat every
objection as if its a negative ruling and abandon their line
of questioning.
Unless you know that the witnesss
ABCS OF OBJECTING
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) dont 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. Dont 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, its a
business record exception... or Its 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.
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?
[3]
When appropriate,
if your objection
is overruled you
might need to
proffer some
additional
information for
the appeals court
You Can Object continued from page 2
didnt know anything about the

case, and you should disregard
what she said... or, pardon me,
what she didnt say.
During most trials, you probably
shouldnt object as often as you
could object. Intellectually, jurors
may understand that youre going
to object during trial because your
opponent is trying to admit
improper evidence.
But
emotionally, many of them may
feel that youre objecting because
youre trying to prevent them from
hearing the truth or because you
know the evidence hurts your
case.
Consider all the
ramifications before you say,
Objection, 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 opponents

evidence out? Heres an entire Evidence class in 1000 words or less!
Nope, were not talking about
readin, ritin, and rithmetic. Here are
the three Rs you should consider
when analyzing the introduction of
evidence. Is the evidence Relevant?
Is it Reliable? And is it Right to admit
the evidence?
How much more broadly could they

have defined whats 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
proposed evidence proves or
#1. IS IT RELEVANT?
disproves a material fact in the case,
Federal Rule of Evidence 401 your evidence should be relevants.
defines relevant evidence as any
evidence having any tendency to #2. IS IT RELIABLE?
make the existence of any fact that is The most common reason why
of consequence to the determination evidence wont be admissible is
of the action more probable or less because its not reliable.
Jurors
probable than it would be without the should be able to make their decision
evidence. Rule 402 says that All based on the most reliable information
relevant evidence is admissible, available. Why is hearsay evidence
except as otherwise provided by the generally excluded?
Because its
Constitution of the United States, by secondhand information. Its not as
Act of Congress, by these rules, or by reliable as firsthand information. You
other rules prescribed by the Supreme cant cross-examine the person who
Court pursuant to statutory authority. actually observed the event, only the
person he relayed it to. The rules of
evidence say, Hold on a second
Thats not fair.
For those same reasons, evidence
which has not been authenticated
shouldnt be admissible. If you have
an analysis of the alcohol content in
someones breath, it wouldnt be
proper to admit that evidence if the
testing instrument was unreliable, or if
it had been tampered with. Jurors
shouldnt have to rely upon the opinion
of someone who doesnt have the
credentials to give them an opinion, or
who doesnt have a sufficient basis of
information to render a proper opinion.
If no one can prove the authenticity of
a document, the jurors shouldnt 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
w a s a We d n e s d a y. A n y o n e a n d
The Three Rs continued on page 5
[4]
The Three Rs continued from page 4
everyone can confirm that. Theres no

need for a party to invest resources
p r o v i n g t h a t J u n e 9th w a s a
Wednesday, because theres no room
for debate.
The question of reliability
will probably serve as the
basis for the bulk of your
evidentiary objections, and
thats why we invest so much
time forming all of those
predicate questions.
Gruesome photos. The photos tend

to prove a material disputed fact that
the victim is dead. Theyre 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
#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,
waste of time, or needless
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
its not right to admit it. Here are
some examples:
gruesome that the jurors would have a

visceral, emotional reaction to them,
and the photo alone would grossly
affect the verdict. Well, that wouldnt
be fair, would it? To fix the problem,
the court may allow the photos if
theyre black and white, limited in size,
or perhaps limited in quantity.
Character. Is it unfair to discuss a
persons bad character?
When a
defendant has 56 prior convictions for
DUI, its probably safe to assume that
he was driving drunk this time, too.
But the jurors would jump to a

conclusion and shortcut the
deliberation process thats not right.
Privileges. Anything a patient tells
their psychiatrist is probably
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
s a y i n c o n fi d e n c e w i l l b e
privileged. What a witness tells
his attorney, psychiatrist, priest,
doctor, accountant or wife may
be very relevant and reliable, but
it doesnt 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 evidence should
admissible or not, and also helps you
decide whether to object to your
opponents 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 its a duck. Heres how to detect non-rulings, and how to respond.

Judges are just like everyone else: They hate to be told, Youre wrong. In fact, some judges are so afraid of having
their rulings overturned by the appellate courts that theyve decided to take an easy way out: Theyve stopped making
rulings! After all, if there isnt a ruling, theres nothing for the appellate court to overturn, right? Heres a typical scenario:
Attorney #1: What happened at the executive council meeting?
Witness:
Well, I heard that...
Attorney #2: Objection! Hearsay!
Attorney #1: Its not being offered for the truth of the matter asserted, your Honor.
Judge:
Move it along, counselor.
Attorney #1: Ok. Lets 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 youre 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
[5]
The Judge has Spoken continued from page 5
move onto another topic. In reality, no ruling has been

issued, because the judge hasnt 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 youll face
are often the friendliest judges youll 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 dont you go ahead
and rephrase your question, okay? Since you dont
want to stir up the pot, youre usually inclined to go
along with the judges 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.
Lets 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, nonrulings probably arent that big a deal for experienced
trial lawyers, because its 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.
question or not to admit the evidence, thats your fault,

not the judges fault, and the appellate court cant 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 youre the one whos been objected to,
you can simply rephrase your question and seek
another way to introduce your evidence. If youre the
one objecting, youve put your opponent on notice not
to go down that road, and that may be enough to keep
him from revisiting the issue.

But lets say that you really need a ruling. What do
you do then?
If you need the judge to rule, you
probably shouldnt 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, youll need to be polite when asking the
judge for a ruling. Here are a few examples of how to
ask:

First, if youre a neophyte lawyer, youre probably a
little nervous in the courtroom. When the judge tells
you to move it along, youre 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 didnt order either
party to do anything. Instead of issuing an order, he
simply left the matter in your hands and your
opponents hands.
If you decided not to ask the
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? Youre ruling that the entire conversation
is hearsay, right?
The inferential nudge: So youre sustaining my

objection, your Honor?

Most of the time, non-rulings wont 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
youve got your ears perked up to listen for any nonrulings, and then be prepared to correct the situation
before your case goes to the appellate level.
[6]
Just because the judge has ruled doesnt mean the battle is over. Victory isnt within your grasp yet. At best,
youve earned a temporary reprieve. Heres what you need to do after the judge has ruled.
IF YOUR OBJECTION IS SUSTAINED
IF YOUR OPPONENTS OBJECTION IS OVERRULED

Congratulations, the judge agreed with your
argument! But dont tell the judge Thank you for the
ruling -- the judge wasnt 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 opponents next
move.

Even though your objection has been sustained, its
essential that you keep objecting because the battles not
over yet. You still need to keep your ears open to ensure
that your opponent abides by the courts 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 cant fix
the problem.

If the judge overrules your opponents objection,
dont 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
opponents 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
IF YOUR OBJECTION IS OVERRULED
regain control of the courtroom, which shows your

First, lets examine whether your objection is opponent that you wont be rattled by his objections.
premature. For example, lets assume you object to the
question, Did the babysitter make any statements to the
police? The judge would be correct for overruling your IF YOUR OPPONENTS OBJECTION IS SUSTAINED
First, pause for a moment.
You dont need to
objection, since technically, the question only calls for a
immediately ask your next question. Take a moment to
Yes/No response.

But just because youve been overruled doesnt mean clear your brain and prepare for the task ahead.
Second, rephrase your question if possible. There
you shouldnt continue objecting. If your opponent asks
about the content of her statement (which would be may be an easy way to avoid the objectionable
hearsay), be ready to stand up and object again.
material, so give your witnesses some guidance to

Even if your objection was timely, the judge may not avoid the potential landmine in their testimony. (ex.
have heard enough to sustain your objection. Be ready to Without telling us what the babysitter said, can you tell
object again if the prejudice continues, perhaps even us if you talked with her when you arrived home?)
asking for a continuing objection. For example, if the judge
Next, youll want to think if theres another way you
overrules your hearsay objection, and your opponent can make the evidence admissible.
Just because
intends to ask 23 follow-up questions about the evidence is inadmissible for one reason doesnt mean it
statements, you can ask the judge for a continuing isnt admissible for another reason. (The best time to
objection so youre not jumping out of your seat with each
new question. A word of warning, however. If youre conduct this analysis is before trial).
If you cant think of another method to admit the
asking for a continuing objection, you need to be very
testimony,
make an offer of proof if necessary,
specific about what youre objecting to. Your Honor, I
presenting
caselaw
for your most important evidentiary
object to this line of questioning is insufficient. Your
rulings.
(Again,
hopefully
youve handled the important
Honor, we ask to have a continuing objection on the
evidentiary
issues
before
trial!)
grounds of hearsay to any questions counsel asks about

If all else fails, smoothly transition to another
the babysitters statement is more specific.

Finally, be prepared to make an offer of proof so that section of testimony if you cant rephrase your question
you can protect your appellate record. If an offer of proof is or think of another way to admit the testimony. It may
necessary, ask the judge for the opportunity to proffer the not be the most desirable result, but at least youll look
evidence outside of the jurys earshot.
like youre still in control of the courtroom.
[7]
Curiosity killed the cat. If you object at the wrong time, or for
the wrong reasons, it might kill your case, too!
Q: Tell us, Mrs.
Behr SAY?
Bear -- What did you HEAR Bebe
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
Peoples Court re-runs, you probably know the proper objection to
that question. If youre like most lawyers, you wanted to leap out of
your chair and yell, OBJECTION! Hearsay! before the witness had
a chance to answer.

Technically, youd 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, youd be right -- the statement meets the classic definition
of hearsay. If this was an Evidence test, youd get an A+.
But should you object?

When you successfully object and prevent the jurors from
hearing information, its only natural for them to be curious about
what they didnt hear. Dont believe me? Well, let me illustrate by
telling you a story about something that happened to me last week.

My friends 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 prosecutions star witness
testified. He had spent hours honing his
questions and preparing his crossexamination 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 wasnt believable,
they didnt 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 teams 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 crossexamine 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 youre doing?
asked the judge. Your co-counsel spoke
and handled the objections during the
direct examination. Theres only one
attorney per witness -- your co-counsel
will conduct the cross-examination.
Over the defenses 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 judges method of
controlling his courtroom when they
affirmed the defendants conviction.
THE LESSON: Whenever youre
trying cases with multiple attorneys
seated at the courtroom table, unless
youre prepared to cross-examine the
witness, DONT OBJECT TO
ANYTHING THE WITNESS SAYS!!!
[8]
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 cant
talk about it is all she ever says about
her previous job.
Anyway, last
Thursday I was over at my friends
office for a planning meeting. The
meeting finished around 7 oclock, 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
Id 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 didnt 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 cant tell you the
rest of the story. But thats okay. The
judge ruled that you cant guess about
what she might have said, so Im sure
you arent 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...
Thats interesting, because the judge
ordered you not to guess what she
might have said if Id 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 youll 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
WITNESS EXAMINATION
JURY SELECTION
Embarrasses a juror
Asks juror to prejudge case facts
Misstating the law
Asking for jurors opinion on
ultimate issue
Strike not based on genderneutral or race-neutral grounds
Relevance
Insufficient predicate
Hearsay
403: Evidence more prejudicial
than probative
Leading
Privileged information
Assumes facts not in evidence
Argumentative
Narrative
[9]
pay more attention to it than if you

hadnt objected.

Take a look at our first example,
and Bebe Behrs statement. Should
you object to this obvious hearsay
statement? Maybe not. Once you
prevent Mrs. Bear from talking about
Bebe Behrs 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 attorneys
case. Otherwise, why object to it?

And heres the danger: Whats
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 Bebes
statement would hurt your client are
going to pay more attention to it and
attach more significance to it.

Heres the bottom line: Dont
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 whats going to happen if you
keep the evidence out, but only
temporarily.
Dont evaluate your
objections exclusively from a legal
perspective -- evaluate your
objections from a tactical perspective
and from a common sense
perspective. Think about the case
from the jurys perspective, and then
ask yourself: Should I object?
OPENING / CLOSING
Improper argument
Misstating facts
Incorrect statement of law
Facts not in evidence
Commenting on criminal
defendants right to remain silent
States personal opinion or belief
Shifting the burden of proof
Appeals to prejudice or
sympathy
Years ago, at the beginning

of my career, I was trying a
case against an attorney who
started yelling and screaming
during closing argument.
Much of his argument
consisted of pointing at one of
my witnesses (who had
returned to the courtroom
ga l l e r y t o w a t ch c l o s i n g
arguments) and accusing the
witness of a variety of
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! Youve got to object!
What hes saying is
improper!
They were right.
His
comments were improper. But
I didnt object.
Instead, I told my friends,
Just watch the jurors They
hate him. Sure enough, after
a favorable verdict, one of the
jurors returned to the
cour troom to watch the
followup proceedings. When I
got the chance to ask her why
shed come back afterwards,
her response spoke volumes:
I just wanted to see what else
the jerk had to say. If I had
objected, I would have
prevented him from being a
jerk.
THE LESSON: Is your
opponent doing things that
are objectionable, but dont
really hurt your case? If so,
consider not objecting, and let
the jurors voice their
objections in the deliberation
room.
It happens in courtrooms every

day. Evidence that shouldnt be
admissible is shown to the jury
because opposing counsel fails to
object, or objects too late...
Plaintiffs attorney: Mr. Jones,
what did you hear Mrs.
Thompson say?
lawyer and judge depends upon Prof.

Charles Ehrhardts Florida Evidence.
Get the copy that corresponds to your
practice area, and invest the time to
read through it.
#2. RAISE THE RIGHT OBJECTION
A general Objection! isnt sufficient.

Sure, if the judge sustains your
objection, then any legitimate reason
Mr. Jones: I heard her say that
will be upheld on appeal, but if youre
the defendant decided not to fix
overruled, relevance will be the only
the safety device because it was
objection youve preserved. So, if the
too expensive and he didnt care
proper objection should be hearsay
if anyone got hurt.
or insufficient predicate, when the
Defense attorney: Umm,
judge overrules your objection, it will
objection? Hearsay? I mean,
be properly overruled, even though
Objection! Hearsay!
theres another valid basis for
Once the jury hears the evidence, sustaining the objection.
its too late. Objecting afterwards is
like closing the barn door after your #3. KNOW HOW TO OBJECT
h o r s e e s c a p e s , a n d c u r a t i v e Once youve mastered the evidence
instructions are about as effective as code, youll have a much better idea
trying to squeeze toothpaste back of whats objectionable and whats
into the tube. Objecting after-the-fact not. The next phase is to determine
doesnt help your case. You need how to object. Most judges wont
your objections to be timely. Here are a l l o w y o u t o m a k e s p e a k i n g
four tips for improving your courtroom objections (ex.
Objection! That
objections, so that you can be as fast evidence shouldnt be admissible
on the draw as you should be.
because I cant cross-examine the
person who made the statement,
#1. KNOW YOUR EVIDENCE CODE robbing my client of his right to
If you intend to practice in the confront his accusers. Its hearsay!),
courtroom, rather than from behind a and will limit you to a single phrase
desk, you need to master the objection (ex. Objection! Hearsay!)
Evidence Code. Whats admissible? K n o w a l l o f y o u r b u z z w o r d
Whats not? You wont know if you objections so that you can make the
dont read the Code from cover to objection quickly and effectively.
cover.
I wish there was some Here is a quick guide on how to
shortcut I could give you, but theres object:
simply no substitute for reading the a. Say Objection! Get the word
whole thing. Better yet, you want to out forcefully and as quickly as you
read an evidence book that provides can, even if youre still in your seat.
commentary and analysis. Here in Speak out and stop it before it gets
Florida, for example, almost every
Timing continued on page 11
[10]
Timing continued from page 10
worse. The judge may say sustained

without any further argument, but if not,
youll 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.
probably have more reasons to object

to them. Watch, and object whenever
you think its 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 youll

become. Your goal is to sort through
the entire process (Is it objectionable?
If its objectionable, does it matter? If it
matters, object!) in an instant. Invest
the effort in practicing, and before long,
youll become a quick draw objection
artist, ready to challenge anyone in
town to a duel.
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 theres no ruling,
theres nothing to appeal.
d. If necessary, ask to approach
and proffer your argument. If its a
serious issue, then of course you
handled it pre-trial, but if not, this is the
time to create the record of why youre
objecting and why the material
shouldnt be admitted.
#4. PRACTICE
How can you practice if youre 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
theyre better than you are, youll learn
a new technique or presentation tip. If
theyre worse than you are, you can
remind yourself, Dont do that - look
at how the jurys 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 youll 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 dont have to abide by
the rules of evidence, so youll
[11]
No one wants to be excluded from a

conversation... especially your jurors!

When was the last time you
Have you ever seen a
watched someone else try a case? live theater performance?
Have you ever snuck into a courtroom No matter where the
and watched your opponent present actors move on the
a case? If not, let me recommend stage, they never turn
you jump at the opportunity to watch their backs on the jury.
someone else pick a jury and present Its the same on TV.
their case. If you do, youll learn Youve probably noticed
some things that you wouldnt how TV families are always
normally notice about successfully
trying cases.

Every year, I get the opportunity
to watch numerous jury trials and
LESSON #1:
Argue the Law Before Trial
gathered on one side of the dinner

table, right? Thats so they dont
turn their backs on the camera and
exclude anyone in their audience.
critique the performances of the You know how rude it feels when
attorneys. When I watch a trial, I try someone turns their back on you.
not to read the case file or review a But when you approach for a bench
case summary, because I dont want conference, thats exactly what
to know any more about the case youre doing. Youre turning your
than the jury would. I want to be back on the jurors.
c o m p l e t e l y d e t a c h e d f ro m t h e
emotional background of the case, so
that I can just sit in the back row and
watch the trial unfold, critiquing the

The second problem with
approaching the bench to argue a
point of law is that you form an
elite little club that excludes

The bench conferences I saw
involved points of law that should
have been handled before trial. If
youre waiting until the day of trial to
argue essential points of law or limit
your opponents introduction of
evidence, youre waiting too late. File
motions in limine before trial, and
youll be able to argue those essential
points of law in advance of trial,
minimizing the need for legal
discussions during trial.
LESSON #2:
Dont Turn Your Back on the Jury

If you must approach the bench
trial from the jurys perspective.
everyone else in the courtroom
to argue a point of law or respond to

Watching all of those trials, one of except you, your opponent, the an objection, make sure you dont
the things I noticed was just how judge, and the court reporter. As I e x c l u d e t h e j u r o r s f r o m y o u r
irritating bench conferences are. In w a t c h e d t h e a t t o r n e y s h u d d l e discussion.
That doesnt mean
one of the trials I watched last year, around the bench and whisper, I raising your voice so they can hear
the attorneys seemed to spend more wanted to lean in and listen to the what youre saying thats improper.
time presenting their cases to the conversation. I wanted to know But you can use your body language
judge than they did presenting their what was going on. And I was to include the jury at the bench.
cases to the jury.
When most resentful that I was being excluded Rather than turning your back on the
jury, just turn your body half way or
a t t o r n e y s a p p ro a c h f o r b e n c h from their group.
conferences, they violate a cardinal
Here are two lessons you can 3/4 of the way towards the judge.
presentation tip: Never turn your apply in your next trial to avoid Leave part of your body open
towards the jury, and they wont feel
back on your audience.
ignoring or excluding your jury:
completely excluded.
[12]
When you object (or respond to an objection), its essential

that you look like you know what youre 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 youre 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. (Its also a good way to workout
while watching your favorite legal shows on TV). Dont
jump to your feet or leap from your chair. Dont stand
before youre ready to object. Just wait until the proper
moment, rise with purpose, and state your objection.

Dont 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 hasnt already ruled in your favor) give a reason why
your objection should be sustained.
something about the act of rising from your seat that forces
your brain to think faster.
Second, youll be more
persuasive if you respond while standing. Your suit drapes
better, your posture looks better, your voice sounds better
-- youll just look more persuasive.
RULE #3: ADDRESS THE COURT, NOT YOUR OPPONENT

When making and meeting objections, its 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: DONT BE INDIGNANT OR SARCASTIC

Occasionally, youll be tempted to add sarcasm to your
objections. (ex. Objection! Do we have to hear this
again? Asked and answered, your Honor!) Dont. If
theres a need for a strong emotional response, let the
judge or the jury deliver the emotional response, rather
than you.
RULE #2: STAND WHILE RESPONDING
RULE #5: DONT GLOAT
Whenever youre speaking in the courtroom, you should be

on your feet. Obviously, youll stand up because thats
what your judge will expect, but there are some other
reasons you should be speaking on your feet. First, youre
going to think better when youre on your feet. Maybe it
harkens back to your days in grade school, but theres
If your objection is sustained, that doesnt give you the

right to act immature and gloat in your victory. Its rude
and it appears petty. Jurors wont 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
[13]
Decorum continued from page 13
RULE #6: KEEP YOUR COOL

The 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. Dont
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, Ive seen lawyers do
all of these inappropriate
behaviors!) Remember, if you
act like the judges 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 wont be
the last case you try before this
judge!
[B]arristers employ [the

objections] 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 putdown for the complaining
advocate who obviously failed
to recognize competent
evidence sought to be
introduced by his opponent.
Your judge sees more trials in a year than the average trial lawyer sees in
a lifetime. If youre lucky, hell 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, hes 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, theres 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. Thats why you need to keep attuned to your judge throughout the trial,
because theyll 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 doesnt
want to overrule the objection, but unfortunately, without a proper legal reason
to sustain the objection, his hands are tied. Thats 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. Thats why you have a second-chair
attorney, because hes not caught up in the heat of the moment and his brain
Helping Judges continued on page 15
- James W. Jeans
[14]
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 dont automatically enforce
most evidentiary rules, because they
dont know the case as well as the
litigants do. Unless its a flagrant foul,
your judge probably wont interfere.
Most judges will give you a lot of leeway
in the courtroom, thinking that if you
dont object, it must be something that
you want to come into evidence. Its
your duty to object, and they realize that
youre 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
from the seat and announce,
Objection! doesnt fade with age.
Sometimes, a judge hearing
objectionable evidence looks like hes
going to jump out of his skin if hes not
allowed to object. But unfortunately,
unless you give him a reason, the judge
wont interfere.
Thats why you want to be tuned into
your judges body language. Your judge
might help you out during trial by giving
you clues that you should object. Read
your judges body language.
Some
judges raise their eyebrows or look at
you as if theyre almost begging you to
object, but most wont 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
didnt 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 wont 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.
IS YOUR OPPONENT OBJECTING FOR AN ULTERIOR MOTIVE? LOOK

OUT FOR THESE SNEAKY OBJECTION TRICKS IN YOUR NEXT TRIAL.
The majority of the trial lawyers
that youll 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 WITNESS

This 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 dont remember.)
These types of objections are
improper and obstruct the
witnesss 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.
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 opponents objection.
#3. CALMING THE WITNESS

When youve got a witness on
the ropes during crossexamination, the last thing you
want to do is ease up and let him
off the ropes. But thats 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, theyll make an objection,
not in hopes of having the
Sneaky Tricks continued on page 16
#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
[15]
Sneaky Tricks continued from page 15
YOUR WORDS MAY BE TELLING THE JUDGE THAT THE EVIDENCE IS

IMPROPER, BUT WHAT MESSAGE ARE YOU REALLY SENDING?

In trial, its not enough for you to
merely object in a timely manner and
s t a t e t h e c o r re c t b u z z w o rd
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 judges decision is by looking
confident when you decide to object.
Obviously, just because you look
confident doesnt necessarily mean
that the judge will rule in your favor
(after all, you might be 100%
convinced of something that isnt
true), but when you believe what
youre 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,
theyre 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 dont

believe in the positions youre
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 LAW

It doesnt matter if you have moviestar looks and the poise of an
international diplomat.
You cant
confidently object if you dont know
what youre doing.
Confident
objections begin with knowing the
Evidence Code better than you know
Confidence continued on page 17
[16]
objection granted, but in hopes

of letting the witness calm
down. If youre confronted with
this technique, dont let the
witness off the ropes! Instead,
respond by immediately
withdrawing your question,
thereby removing the need to
approach, and then hitting the
witness from a different angle.
Its perfectly valid for your

opponent to voir dire the
witness and determine his
q u a l i fi c 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
cross-examination of 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, dont ever feel tempted to
respond in kind. For the rest of
your career, the most valuable
asset youll 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
can ruin your spotless
reputation.
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,
theres simply no substitute for
knowing the rules by heart.

Additionally, some objections
require more than a generic
knowledge of the rules.
For these
situations (which you should recognize
before you reach the courtroom),
make sure youve done your research
and have prepared a pocket brief or
brought copies of the appropriate
caselaw in support of your position.
2. RISE WITH PURPOSE

Leaping to your feet the way you did
back in college when your team
scored the winning touchdown doesnt
look very professional when youre in
the courtroom. Even so, many trial
lawyers look like theyre 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 dont want to look like youre
celebrating the opportunity to object.
Instead, you want the jurors to feel like
youre almost disappointed that youre
being forced to object. Remember,
youre not objecting because you
want to -- youre 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 youll 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
wont lean against the back of your
legs while you remain standing to
argue your objection.

Dont stand up preemptively.
Unless youre going to say
Objection, you should remain
seated.
In my opinion, standing
without objecting lacks
professionalism, because it seems
calculated to upstage the other
lawyer and draw attention to yourself.
Either object or dont object, but dont
try to take the middle ground and
hover while your opponent is
speaking.

Rise, Igor, rise! You dont 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.
Dont 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. Dont 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.
Knowing what your judge

expects will increase the
chances your objections will
be sustained.
3. SPEAK WITH POWER

Um... objection? Hearsay? Dont
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 TOGETHER

Once youve made the decision to
object, youll want to halt the
proceedings by announcing
Objection and simultaneously rising
from your seat. You want the process
to feel like second nature, so that
every time you say the word
Objection, you automatically rise
from your seat. Dont be afraid to
practice the process a few times in the
privacy of your office.
After all,
practice makes perfect!
[17]
The Rules of Evidence may be

the same in each courthouse, but
how those rules are applied
varies from courtroom to
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!
You can object to protect your witness during

cross-examination, but should you?
Your opponent is cross-examining
your star witness, and begins asking
objectionable question after
objectionable question. Should you
object to protect the witness?
Well, it depends. Certainly, if the
questions are unduly harassing your
witness, prying into sensitive/
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 its
usually pretty obvious when a trial
lawyer is abusing a witness.
So if its so obvious that the lawyer
is attempting to abuse your witness,
why wouldnt you want to object?
The reason you wouldnt 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 doesnt need very much

help. By letting your witness
tell his story without
interruption, youre 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
hes able to fend for himself
without your intervention, the jurors
are more likely to believe what he
says.
Theres also another reason why
you might not want to object when
your opponent treats your witness
rudely: When he insults the witness,
hes 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.
Thats 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, theyre going to voice their
own objections about his tactics. But
rather than objecting in the courtroom,
theyre going to object where it really
matters, in the deliberation room!
TO EXCLUDE INFORMATION
TO MODIFY QUESTIONING
TO PREVENT PREJUDICE
These objections prevent jurors

from hearing improper or
prejudicial information.
The information may be

admissible, but the form of the
question is improper, and needs to
be fixed before the attorney may
ask the question.
Often, these types of offenses

arent contained within the written
record, and you must establish a
sufficient record of the offense.
Examples:
Hearsay
Insufficient predicate
Privilege
Miranda violation
Violation of motion in limine
Relevance
More prejudicial than probative
Examples:
Examples:
Leading
Argumentative
Narrative
Compound question
[18]
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
Not all objections are created equal. Here are three of the most powerful
(but only if theyre sustained!) objections that you can raise during trial.
#1. VIOLATION OF A PRE-TRIAL RULING
Its one thing to violate an obscure rule
about this objection is that you dont have to wait until its
or a rule that your turn to ask questions before you correct the statement
-- you can do it on the spot, essentially testifying in the
youre unaware of (How was I supposed to know that its
middle of your opponents examination.
illegal to stick pennies in my ears while standing on a street
Attorney #1: You said that you were going to
corner in downtown Honolulu?!?), but its entirely different
make him pay, didnt you?
when youre specifically told not to do something and then
you go ahead and do it anyway.
Witness: I dont know what youre talking about.

The purpose of motions in limine and pre-trial rulings is
Attorney #1: Page 7, line 23. I was going to
to place both parties on notice about what will be allowed
make him pay. Those are the words you said at
and what wont be allowed during trial. Theres no faster
the deposition, right?
way to draw a judges ire than by violating his direct orders,
so if your opponent violates a pre-trial ruling, bring it to the
Attorney #2: Objection, counsel is misleading the
judges attention immediately. Many judges view these
jury. Under the rule of completeness, the jury also
violations as the equivalent of thumbing your nose at the
needs to hear the next lines from that deposition to
court, and will discipline your opponent accordingly.
properly understand the context of the statement.
Page 7, lines 23-24, Your Honor.
#2. NON-RESPONSIVENESS

Almost 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 youve spent any time in the
courtroom, youve 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, youre
entitled to object on the grounds that
theyre not responding to their questions.

Youre entitled to object, but dont. At
least not the first time they act nonresponsive. 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 youve gauged your
judges temperament correctly, youll be in
for a fireworks show.
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, hell 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 theyll never
trust him again.
#3. RULE OF COMPLETENESS

This is often an overlooked objection, but
its one of the most deadly. This objection
undermines your opponents credibility,
because you get to show the jurors that
hes trying to mislead them. The best part
[19]
You dont need thousands of

courtroom hours under your belt to
successfully spot objectionable
material. Heres how to anticipate
when youll need to object.
The difficulty with objecting isnt
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
training yourself to anticipate
objectionable material:
#1. KNOW YOUR OPPONENT

The 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. Theyll 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 trial
lawyers, were victim to our
own habits, so if hes used
the same jury selection
technique successfully in
other trials, chances are
that hell probably use it
in your trial, too. Learn
what to expect and youll
be prepared to counter it
use his momentum to push
during trial. If his expected
through objectionable material.
actions are prejudicial, file
motions in limine to prevent him from Again, if the information is damaging,
file a motion in limine to exclude it.
doing it.
#2. KNOW YOUR OPPONENTS CASE #3. KNOW YOUR BUZZWORDS

Every good trial lawyer knows the
importance of placing yourself in your
opponents shoes and looking at the
strengths and weaknesses of the case
through their eyes.
As youre
analyzing your opponents 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), youll
be ready to object and will stay alert
when your opponent rushes through a
section of testimony, possibly trying to
Finally, 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, youll 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)
Isnt it possible that (Calls for
speculation)
Use of and and or (Compound
question)
What did you hear or What
did she say (Hearsay)
To get priority notification when additional reports and training

videos become available, go to www.TrialTheater.com
When you fill in your name and email address, youll receive
instant access to additional special reports, audio programs, and
training videos, as well as a complimentary subscription to our
weekly Trial Tips Newsletter, packed with trial advocacy tips like
these to help you persuade jurors and win jury trials!
[20]
Post Office Box 2493

Orlando, FL 32802-2493
www.TrialTheater.com

Special Report Objections

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Special Report Objections

Hochgeladen von

Copyright:

Verfügbare Formate

Learn how to make

objections that get

2009 by Trial Theater, LLC - All Rights Reserved

theyre still in law school. Youve

Before you win your next

You Can Object continued on page 2

To get more trial advocacy tips, visit www.TrialTheater.com

You Can Object continued from page 1

Can you object?

example, in a single witness

#1. CAN YOU OBJECT?

#2. SHOULD YOU OBJECT?

have lost the sandwich and she

#3. WHEN WILL YOU OBJECT?

To get more trial advocacy tips, visit www.TrialTheater.com

Heres a four-part process to follow when your opponent screams, Objection!

3. Rephrase only if obviously necessary. Sometimes,

answer will definitely be improper (For example: Your

ASK FOR A REMEDY OFFER OF PROOF

Stand up and stop

State your legal

2009 by Trial Theater, LLC - All Rights Reserved

To get more trial advocacy tips, visit www.TrialTheater.com

You Can Object continued from page 2

didnt know anything about the

Want to get your evidence admitted? Want to keep your opponents

How much more broadly could they

2009 by Trial Theater, LLC - All Rights Reserved

To get more trial advocacy tips, visit www.TrialTheater.com

The Three Rs continued from page 4

everyone can confirm that. Theres no

Gruesome photos. The photos tend

gruesome that the jurors would have a

But the jurors would jump to a

2009 by Trial Theater, LLC - All Rights Reserved

To get more trial advocacy tips, visit www.TrialTheater.com

The Judge has Spoken continued from page 5

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

Move it along, counselor.

Please rephrase your question.

Ask a different question.

Lets keep things moving

Gesturing with their hands to move things along

Silence, combined with a scowl or a nod of the

question or not to admit the evidence, thats your fault,

2009 by Trial Theater, LLC - All Rights Reserved

The polite request: Your Honor, before I

The clarification: Judge, can I clarify your

The inferential nudge: So youre sustaining my

To get more trial advocacy tips, visit www.TrialTheater.com

IF YOUR OBJECTION IS SUSTAINED

IF YOUR OPPONENTS OBJECTION IS OVERRULED

2009 by Trial Theater, LLC - All Rights Reserved

To get more trial advocacy tips, visit www.TrialTheater.com

Bear -- What did you HEAR Bebe

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

But should you object?

The lead defense attorney listened

2009 by Trial Theater, LLC - All Rights Reserved

To get more trial advocacy tips, visit www.TrialTheater.com

Curiosity continued from page 8

she somehow manages to sound both

sliding the passports and syringe into

2009 by Trial Theater, LLC - All Rights Reserved