“You CAN object... but SHOULD you?”
by Elliott Wilcox
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, don't 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 they're still in law school. You've seen them in trial --as soon as they spot an issue, they announce it to the world. (“Objection! That's a leading question” “Objection! That asks for hearsay!” “Objection! That calls for speculation!”)
Technically, they're right, 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 top-tier 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:
“Can I object?”
“Should I object?”
“When should I object?”
And, most importantly, you need to conduct that entire analysis in a split-second. You can't unring a bell and you can't stuff toothpaste back in a tube -- if you don't object in time, the jury will hear the objectionable material, and it will be too late to fix the damage. (That's why trials can be so tiring, because you're expected to have your brain redlining at 9000 rpm throughout the entire trial, spotting every issue and deciding whether or not to object.)
QUESTION #1: “Can I 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 it's objectionable. You need to develop this skill before you get to trial. By the time you get to the courtroom, it's too late to start reading through the evidence code. You won't 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.
QUESTION #2: “Should I Object?”
If you know the answer to this question, then you're one of the better trial lawyers in your courthouse. Just because the evidence is objectionable doesn't mean you should object. Not every issue really matters. For example, in a single witness examination, you may spot 23 leading questions. Technically, they're all objectionable. But before you object, you ask yourself, “Does that evidence hurt my case?” If not, maybe you shouldn't object.
Too often, attorneys object to evidence that doesn't 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 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 didn't allow the photo into evidence.
It sounds like she did the right thing, doesn't 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 didn't 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 didn't really hurt her case. If the defendant had entered the photo into evidence, he would have lost the “sandwich”
and she could have had the benefit of first and final closing arguments.
QUESTION #3: “When Should I Object?”
If you've decided that you should object, you should next determine when to object. Usually, you'll 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?” you'll probably object by the 7th word in his question.
But deciding when to object isn't always as clear-cut as that. If your opponent is asking leading questions, but you've decided they don't hurt your case, maybe you won't object at all. Or maybe you let it go for 7-8 questions, and then tell the judge, “I haven't objected up until this point, but, Objection! -- Counsel
is asking only leading questions.”
Many times, your objection needs to be heard before trial. You're 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 don't “object” until closing argument, when you tell the jury, “I could have objected to his questions, because they were all leading questions... The witness wasn't telling you the story, her attorney was. But the reason I didn't object was because I wanted you to see how Mr. Shyster had to spoonfeed
the testimony to her. The witness didn't know anything about the case, and you should disregard what she said... or, pardon me, what she didn't say.”
During most trials, you probably shouldn't object as often as you could object. Intellectually, jurors may understand that you're going to object during trial because your opponent is trying to admit improper evidence. But emotionally, many of them may feel that you're objecting because you're 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 should I
object?”
[Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com ]
by Elliott Wilcox
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, don't 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 they're still in law school. You've seen them in trial --as soon as they spot an issue, they announce it to the world. (“Objection! That's a leading question” “Objection! That asks for hearsay!” “Objection! That calls for speculation!”)
Technically, they're right, 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 top-tier 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:
“Can I object?”
“Should I object?”
“When should I object?”
And, most importantly, you need to conduct that entire analysis in a split-second. You can't unring a bell and you can't stuff toothpaste back in a tube -- if you don't object in time, the jury will hear the objectionable material, and it will be too late to fix the damage. (That's why trials can be so tiring, because you're expected to have your brain redlining at 9000 rpm throughout the entire trial, spotting every issue and deciding whether or not to object.)
QUESTION #1: “Can I 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 it's objectionable. You need to develop this skill before you get to trial. By the time you get to the courtroom, it's too late to start reading through the evidence code. You won't 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.
QUESTION #2: “Should I Object?”
If you know the answer to this question, then you're one of the better trial lawyers in your courthouse. Just because the evidence is objectionable doesn't mean you should object. Not every issue really matters. For example, in a single witness examination, you may spot 23 leading questions. Technically, they're all objectionable. But before you object, you ask yourself, “Does that evidence hurt my case?” If not, maybe you shouldn't object.
Too often, attorneys object to evidence that doesn't 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 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 didn't allow the photo into evidence.
It sounds like she did the right thing, doesn't 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 didn't 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 didn't really hurt her case. If the defendant had entered the photo into evidence, he would have lost the “sandwich”
and she could have had the benefit of first and final closing arguments.
QUESTION #3: “When Should I Object?”
If you've decided that you should object, you should next determine when to object. Usually, you'll 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?” you'll probably object by the 7th word in his question.
But deciding when to object isn't always as clear-cut as that. If your opponent is asking leading questions, but you've decided they don't hurt your case, maybe you won't object at all. Or maybe you let it go for 7-8 questions, and then tell the judge, “I haven't objected up until this point, but, Objection! -- Counsel
is asking only leading questions.”
Many times, your objection needs to be heard before trial. You're 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 don't “object” until closing argument, when you tell the jury, “I could have objected to his questions, because they were all leading questions... The witness wasn't telling you the story, her attorney was. But the reason I didn't object was because I wanted you to see how Mr. Shyster had to spoonfeed
the testimony to her. The witness didn't know anything about the case, and you should disregard what she said... or, pardon me, what she didn't say.”
During most trials, you probably shouldn't object as often as you could object. Intellectually, jurors may understand that you're going to object during trial because your opponent is trying to admit improper evidence. But emotionally, many of them may feel that you're objecting because you're 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 should I
object?”
[Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com ]