No matter how many motions you file, or how well prepared you are during trial, objectionable testimony will come up. This testimony could be prejudicial to your client, especially in front of a jury, so it is imperative that you know how to properly object during a trial. I see attorneys flounder with objection arguments on a regular basis, which makes them look weak in front of a judge or jury, even if their objection is spot on.
When inadmissible testimony comes out, or is about to come out, you should object. That sentence, in theory, sounds very simple. Yet I can’t go more than a week or two without seeing an attorney sit at counsel table and just start making an argument to exclude the evidence. If you’re going to object, you should stand, say “Objection your honor” and give the basis for your objection. While some courtrooms allow lawyers to sit while examining witnesses, you should never sit when addressing the court. That’s what an objection is, a statement to the court. This means the objection should be directed at the judge, and never opposing counsel.
When an objection is appropriate, you have to do it quickly. In a jury trial, a failure to object in time could mean that the cat is out of the bag. Although most appellate courts believe in the curative powers of a judge’s instructions, I always say it’s better to be safe than sorry. That means you have to realize an objection is necessary, rise, and state the objection all within one or two seconds. It’s easy to stand up and make a very tepid objection because you aren’t sure if you’re correct. Citing the proper rule isn’t the whole ball game here. When you stand to make your objection, say it with as much confidence as you can muster. Both the judge and jury will be more likely to agree with you if you sound like you know what you’re talking about. In other words, when necessary: fake it till you make it.
The substance of your objection hinges on the setting. In an administrative hearing or bench trial, you should stand, say “Objection your honor” and follow up with a brief explanation. For example:
Attorney 1: Then what did the eye witness say?
Witness: Well, he told us…
Attorney 2: Objection your honor, the witness is about to testify to hearsay. It’s an eye witness and not a party opponent, and there’s been no foundation for any exceptions.
That’s it. Less than thirty words and this attorney’s objection is properly preserved on the record, and she has given the judge enough explanation to work with. Now the judge can either rule immediately or let opposing counsel argue the objection. At that point, you have to rely on your knowledge of the rules of evidence, along with the judge’s, to flesh out the objection.
In a jury setting you need to take a slightly different approach. It is wholly inappropriate to make an extended objection argument in front of the jury. On television, we often see attorneys make long-winded objections and in doing so, present inadmissible evidence to the jury. That kind of improper behavior in the courtroom can quickly hurt your reputation, not to mention your client’s case. During a jury trial, your objections need to be more succinct and not reveal any facts or argue any law. To make an objection, just stand and say “Objection your honor, hearsay.” The Federal Rules of Evidence require that you place the reasons for your objection on the record. Anything more than the grounds for your objection is both unnecessary and improper. Once you get out the grounds for the objection, ask to approach and have all the legal argument conducted outside the hearing of the jury.
The Other Side
Of course, if one side is objecting to testimony, the other side is attempting to admit the testimony. This means you have to be ready to respond to objections when they come up. You should be able to predict a lot of the objections based on the questions you will ask and the witness preparation you’ve done. Have responses ready, or be prepared to move on to another question.
When responding to an objection, you should sound just as confident as the objecting attorney. Also, if the objecting attorney does not ask to approach, you should do that in a jury trial. Finally, always have a backup final question. Nothing looks worse than sitting down from an examination on a sustained question. It looks like opposing counsel got you to stop asking questions altogether. Sure, you may have missed out on your great final zinger, but have something else up your sleeve.