Jump to Navigation | Jump to Content
American Bar Association

Litigation News
Tips from the Trenches »

A Short Primer on Objections

By Stuart M. Israel

 

I object, Your Honor! This trial is a travesty. It’s a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham!
—Woody Allen as Fielding Mellish in Bananas (1971)


You can learn something about evidentiary objections from the movies.


In A Few Good Men (1992), trial lawyer Demi Moore renewed an objection and requested a curative instruction. The judge responded: “Objection overruled, counsel.” Demi replied, “Sir, the defense strenuously objects. . . .”


In My Cousin Vinny (1992), Joe Pesci, as novice lawyer Vinny Gambini, objected to the other side’s expert.


Judge: That is a lucid, intelligent, well thought-out objection.
Vinny: Thank you, Your Honor.
Judge: Overruled.


There are two important lessons here: (1) It may not be enough to be lucid, intelligent, and right; and (2) adverbs and adjectives are unlikely to save the day. Here are a few more things about evidentiary objections that lawyers ought to know.


Object only if you have good reason. There is no point to objecting to the other side’s question—even if it is objectionable—if the answer will be of no consequence. There certainly is no reason to object if the answer will help your case. And it is silly to object if the answer will shoot the other side’s case in its proverbial foot.


Object sparingly, only when necessary. Jurors don’t much like objections. Objections interfere with the story being told from the witness stand, which the jurors diligently are trying to follow. Jurors don’t appreciate some lawyer—i.e., you—disrupting the flow. Objections are rude. And they suggest your case is weak. After all, jurors think, you are trying to suppress the truth with hyper-technical legal mumbo jumbo and sneaky lawyer tricks. Judges, too, don’t much like objections. Objections slow down jury trials. In bench trials, the judge is quite confident that he or she is perfectly capable of separating the wheat from the chaff without your disruptive intervention.


Use the traditional lexicon of objections, words and phrases familiar to the judge like “irrelevant,” “assumes facts not in evidence,” “lacks foundation,” or “hearsay.” Plain English usually is the way to go when communicating with juries, judges, witnesses, and people in general—but when it comes to objections, tried-and-true legalese often is appropriate and effective.


State the legal basis for your objections, without lengthy explanations, argument, or “speaking” dissertations. Choose the style, tone, attitude, and decibel level that work for you. Still, restraint is usually appropriate, particularly in jury trials, where histrionics often do not play well and where saying too much may improperly “coach” the witness, inappropriately influence jurors, and really irritate the judge. If you have a lot to say, ask for a sidebar.


Prepare to lose objections. Judges sometimes will miss the point, misread the law, or exercise discretion in ways unfavorable to you. Some judges are of the “kitchen sink” school and exclude very little, having boundless faith in the common sense of jurors (and the effectiveness of later instructions to clean up messes). You also may lose objections because you are wrong. It happens.


When the judge rules against you, and perhaps expresses that ruling in a less-than-complimentary way, do not show the pain. Apply Marlon Brando’s advice from The Godfather (1972): “Never tell anybody outside the family what you are thinking. . . .” Say “Thank you, Your Honor.” Say it as if you just received a judicial compliment. Then press on unbowed, even if you are thinking "This is a sham of a mockery of a travesty of two mockeries of a sham!"


Keywords: trial practice, trial lawyer, advice, objection, legal movies


Stuart M. Israel is with Legghio & Israel, P.C., Royal Oak, Michigan.


This article was adapted from the original version, which was published in the Fall 2015 issue of LITIGATION.


 
Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).


Back to Top