Denver Bar Association
September 2000
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Object Without Being Objectionable

by Doug McQuiston


And most importantly, know when to sit down and shut up.

Every once in awhile, our editors at The Docket feel some inexplicable need to be substantive. Don't ask me where it comes from, since most of our Docketeers, myself included, get the shakes if they ever feel any substance coming on. Nevertheless, I naively volunteered to throw together some thoughts on a subject that pops up frequently (pun intended) among trial lawyers: objections.

Much has been written about the art of cross examination, but the art of objections has been largely ignored. I suppose it's because cross examination is so much more fun. Sure, we all took "Evidence" in law school, spending our formative years memorizing the arcana of the hearsay rule. We have laughed out loud as Professor Faust Rossi lectured on the difference between refreshing a memory and impeachment, ("Smell, Mrs. Garibaldi, smell!").

But what about making objections? Or, harder still, not making them? None of the books taught that. Masters like Ed Haffey, Bill DeMoulin and others at the firm I started in taught me these skills, sort of like an apprentice plumber learns how to install a toilet. I watched them do it, then I tried it. I screwed up a few toilets at first, but the process eventually worked. Sadly, I don't know how much apprenticing goes on anymore at the modern firm.
 

"Besides, the fewer objections you make, the fewer opportunities you'll have to look like Homer Simpson."


Like everything else they taught me, the keys were preparation, no wasted effort, every move calculated, keeping the big picture in mind, and, most important of all, knowing when to shut up. I'm still trying to learn that last one. Objecting at a trial is a lot like getting up and singing in a karaoke bar. "We know you can," your friends would say, "but must you?"

During the course of any trial, you will hear lots of objectionable questions. You could get hamstring cramps if you popped up on every one. As in medicine, here the goal is to "first, do no harm." You always need to ask yourself, are you better off popping up or shutting up? Most often, doing nothing is the smartest course.

This simple rule is agonizingly hard to live by. Everything we learn in evidence class conditions us to pounce like Pavlov's dog. We're trained to guard the rules of evidence like border collies, barking furiously at anything we think strays from the line. This must have been why Irving Younger believed no one can be a truly accomplished trial lawyer until they have done about 25 trials. It takes that long for our legs to wear out enough to make us stay in our chair when our law-schooled nerves twitch at an objectionable, but harmless, question.

I have looked around a bit over the years, and have managed to assemble a few pointers. I can take credit for none of these, but recount them here as a public service:

Hold on a minute, there, Fido. Before you jump, remember the jury is keeping track, because objections represent the only way they can keep score between the lawyers. Sustained? You look like Clarence Darrow. Overruled? You look like Homer Simpson. Apply the "Andrew Jackson" rule before you pop up: Be sure you're right, then go ahead.

No Harm, No Foul. If the question doesn't damage your Big Picture, who cares whether it's objectionable? Try to keep your perspective. More often than not, the answer will never be as harmful as you think. If you call attention to it with an objection, win or lose, you make it more important than it deserves to be. Besides, the fewer objections you make, the fewer opportunities you'll have to look like Homer Simpson.

As Winston Churchill said about public speaking, "Be Prepared, Be Brief and Be Seated." Know your case well enough to know what hurts and what doesn't. Fight the former; ignore the latter. If you're sustained, smile and sit down. If you're overruled, smile and sit down.

It's about the war, not the battles. Every objection you make detracts from your persuasiveness. Don't waste them. Use them only to advance your story line toward its conclusion. This rule feeds off Rule No. 1. If the judge and jury get to know you as a person who doesn't object much, when you do they'll tend to listen more closely and agree with you.

They're counting. You'll never know what the magic number is, but you'll cross it by pouncing on every piddly screw-up by the other side. When you do, you will look like the nasty Hall Monitor, and nothing you say from that point on will matter.

Own the room. If you've applied the Andrew Jackson rule, you will be prepared and certain of your success before you stand up. When you object, never act like you're asking the judge if it's okay. Act like you're making the ruling. The more confidently you state your objection, the more likely the judge is to sustain you simply because he/she will think you know what you're talking about.

Stand up. Speak clearly. Shut up. Sit down.

Never, never, argue with the nice person in the Black Robe. Shut up after your objection is ruled on, win or lose. Only make a record if it is critical to an appeal (about one percent of the time), and if the judge asks you to wait for a break in testimony to do so, (so the jury doesn't have to be sent out), smile and say "Of course, your Honor."

Finally, here are a few objections never to make:

"Objection--How is this relevant?" The judge's response? "Well, let me explain it to you, counsel . . ."

"Objection, your honor. The witness is giving a narrative." Why do you care? Narratives more often than not bore the jury into a coma, the jurors forget most of what is said, and the witness tends to come off as rehearsed and unbelievable. Why give your opponent the chance to pump a little life into his case?

And the one you want to avoid at all costs? "Objection, your honor. That's highly prejudicial." Here's what the jury hears: "Objection, your honor. He's got a really good point there." Here's what the judge will then say: "Of course it's prejudicial--it's killing your case. But it's relevant, and it's fair, so that's why I'm letting it in!"

As Homer would say, "D'oh!"



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