Do you like watching legal TV shows like “Law and Order” or “The Good Wife”? Are you obsessed with the latest public trial on TV? Read on and get a clearer picture of what they’re objecting to and why.
Involved in a court case? Whether you’re using a lawyer or representing yourself pro se, it is imperative that you get to know the basics of objections in court. One opportune objection can turn a lose into a win. Proper objections on the record can also make a strong case for appeal, which helps keep the judge in line and following the rules.
It’s no secret that attorneys and judges can break the rules all day. They do so to your detriment, unless you make timely objections. Miss-statements and presumptions can quickly become evidence on record, unless you make objections and make them effectively.
Objections that can be used whenever someone is giving testimony - whether during a deposition or other discovery, or as a witness in a trial. Some objections also apply to motions, depositions, interrogatories, requests for production, requests for admissions, subpoenas and other papers, as well as the submission of evidence.
An objection has three purposes:
- If sustained, the objection stops the other side or the judge from breaking the rules. The main reason attorneys try to break the rules is to get something into the court that would otherwise be inadmissible according to the rules of evidence. The judge may try to break the rules if he has a favor to pay or a bias that he wants to foster. Timely objections can ensure that no evidence gets into the court except that which has been properly submitted to, and accepted by, the court ahead of time.
- If overruled or ignored, the objection is on the record for consideration by the court of appeals. The appellate court can only re-consider your objection if it is already on the record in the lower court. A successful appeal is only possible if there are errors on the record that hurt your case.
- If you keep putting the judge’s errors, and overstepping of rules and law on the record, he will start behaving. The judge knows that too many errors on the record will make a strong case for appeal; and judges don’t like to be appealed.
Timing is critical. If you’re on your toes with objections, you can prevent much unwanted testimony from ever being heard. As soon as you recognize that a question requires an answer that would overstep a rule, interrupt with: “Objection, Hearsay” (or whatever the grounds are). Get it out quick enough and the question will never be answered.
If you hesitate and the objectionable testimony gets heard, you can still get it stricken from the record - but the jury cannot strike it from their memories.
You can object to anything that doesn't seem right - on the part of the other side, or even what the judge says or does. You can even object to objections. Normally, one should have the grounds and the rule to support the objection. However, if you don't know the grounds at the time, you can still object stating that you can't think of the grounds right now, but that “this just isn't right”. Common sense is the basis for common law, and is (or was) the basis for the judicial system, and so it must be considered. Also, there is a Maxim of Law that says “Equity regards substance rather than form.” This means common sense prevails over procedure and the letter of the law. The idea is to get the objection on the record before the right to object is considered waived.
In a moment of doubt, it is best to object. A note of caution, however, you could be seen as ‘crying wolf’ if you make too many frivolous objections.
Be aware that trying to speak nicely could nullify your objections. Statements such as “Defendant wishes to make a record of its objecting to plaintiff’s ...” or “I want to object to ...” are ineffective. The judge is not obligated to consider wishes or wants, and he might just ignore such statements. But he must rule on objections. “Defendant objects” or “I object” or “Objection, your Honor”, along with the grounds for objection, is effective.
If the judge ignores your objection, you can make a verbal motion for the court to rule on the objection. “Your Honor, I move the court to rule on my objection of ...” If he still doesn’t rule, this puts it on the record that the judge did not simply fail to hear the objection, but that he refused to rule on it. If you want to make this even more clear, you can object to the court’s refusal to rule on the objection. The scriptural principle of “two witnesses” applies here - if you’ve said something twice, it’s on the record. (Yes, the judicial system does have a remote tie to the Bible, although it's quite twisted.) If you object and the judge ignores it and you say nothing, your silence can be considered as your acceptance of his implication that your objection was irrelevant.
Overruled or ignored objections at times need to be renewed. This assures they are on the record for appeal. The objection can be renewed at each new question that is objectionable based on the same grounds. Other times to renew are at the close of each side’s presentation, and before the jury retires to deliberate. This makes a clear record that the judge had more than one chance to rule. Again, the principle of two witnesses comes into play. Failure to renew your objection may waive your right to raise the issue on appeal.
If you’re using an attorney, you’ll want to make sure he objects immediately to everything that isn’t right and is detrimental to your case. If you pay attention, you may catch some things that he doesn’t. If he misses an objection, jab him. If he still doesn’t speak up, you can stand up and raise the objection yourself. “Objection, your Honor. Council is Testifying.” (Or whatever the objection is.)
Whether you’re using an attorney or not, you’ll drastically increase your chances of winning if you get to know the following common objections:
Asked and Answered
When examining a witness or deponent, a lawyer may try to overemphasize a point in his favor by asking the same question a few times, but worded differently. Or he may be trying to intimidate the witness (see Badgering below). But he only gets one answer to the same or similar question - if you say “Objection, Asked and Answered.”
This is powerful tactic that is commonly used, but it is not allowed if you object to it. Badgering is defined as unnecessary verbal attack on the witness, or abusive, insulting or intimidating questions. A Lawyer might try badger a witness in order to discredit him or to scare him into giving more information than is required, or even false information.
Best Evidence Rule
The Best Evidence Rule can be a powerful tool when you apply it to written documents that the other side tries to enter into evidence. You can demand to see and inspect an original, not a copy, pursuant to rule 1002 of the Federal Rules of Evidence (most state rules follow suit). If the court allows an exception because the original is said to be lost or destroyed, you can demand to know the details of the circumstances, such as why, when, where, how and by whom was the original destroyed or lost.
If the other side gives some excuse such as “Oh, it’s in my clients safe at the branch office in Montana”, you can renew your objection and demand that either the original be produced, or the copy be excluded under the Best Evidence Rule. In this case it would be good to read up on the exceptions to the Best Evidence Rule that are allowed in your State.
This rule also applies if a witness is asked to tell what a certain document says. You can say “Objection, Best Evidence Rule”. If you don’t say it in time, you can demand that the witness’s testimony regarding the document be stricken from the record and the original document be produced as evidence instead. If your opponent says that that is not possible, you can demand that he answer as to who, when, where, how and why the original, or even a copy is not available.
Also an attorney might ask a witness to read from a document. His purpose might be to twist the meaning of the document or badger the witness. In any case “Objection, Best Evidence Rule” or “Objection, document speaks for itself” will prevent it.