ADDITIONAL DISCLAIMER: THIS POST WILL DISCUSS AN ACTUAL CASE IN WHICH I WAS A LITIGATING ATTORNEY. IT IS NOT MEANT TO CONVEY MY QUALITY AS AN ATTORNEY, BUT TO ILLUSTRATE THE POINT OF THIS POST. THIS POST CANNOT CONVEY THE ENTIRE CONTEXT OF THE CASE, CASE RESULTS DEPEND ON A WIDE VARIETY OF FACTORS, AND RESULTS IN ONE CASE DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE LAWYER.
Introduction
As I've already discussed several times now, last week I had a trial. In addition to the other trials I observed providing the source material for last week's post, the trial itself had an important distinction. Unless I mis-counted, it is my impression that during last week's trial I made in-trial objections more times than every other trial I have been in during my law career to date combined. Now, that may make it seem like I made a lot of objections, and I did, but look at it another way. This trial lasted just around an hour and a half. In my career I've had trials as short as 30 minutes and as long as four days. Even if I was objecting every minute or so (which I was not), that should tell you as well how rarely I generally make objections.
So, is the rarity of my objecting because my opponents are usually so good that they do not do anything objectionable? Of course not. Attorneys push the envelope on objectionable action all the time. The difference, however, is that many attorneys, myself included, simply don't make objections that they feel are unnecessary. While tons of objections might put on a good show for your client, they tend to bog down a case, tick off the judge, and not accomplish very much. Even in my trial last week where I felt all of my objections were necessary I found myself essentially apologizing to the judge for the number I had made, and the judge found himself essentially apologizing to the other side for the number he had sustained. In this post I will explain the difference between when you can object and when, in my opinion, you should object, and why my trial last week was such an outlier in my legal career.
Permissive vs. Required Objections
Most objections in trial are what I would call "permissive" objections. These are objections to actions the other side has taken that are, in fact, in violation of the rules, but to which if you do not object they get heard anyways, and you waive your right to complain about them later in an appeal. This means failure to make a permissive objection can put an attorney on the hook for malpractice if that failure turns out to affect the case. This is why many attorneys err on the side of making objections. I will admit that I, too, will object if I cannot see my way out of a malpractice suit, even if I do not think a particular objection is absolutely necessary.
Required objections are objectionable behaviors that, even if you do not object, the judge is expected to object to him or herself and not allow to continue. These kinds of objections are extremely rare and limited to things like courtroom outbursts or improper use of confidential information. If you are in court and see something objectionable, odds are it is permissive, and your attorney will need to act to stop it.
Necessary vs. Unnecessary Objections
So, now we get to the next inquiry. If the other side does something objectionable, and it is a permissive objection, how do I decide whether or not to object? While each attorney has their own internal system, mine asks a series of three questions:
- If I don't object, will this information/question/action/evidence hurt my client and/or my client's case?
- Is this information/question/action/evidence important enough that it could impact the outcome of this case?
- If I do object, will I either completely or substantially prevent this information/question/action/evidence from being considered at all?
Answer to number 1 is no:
[Lawsuit for personal injury from car crash]
Bob's attorney: Is it true that Tom told you [Bob] that Kevin [other party] likes the color red?
Well, that's objectionable for hearsay and relevance, but what are you actually accomplishing by keeping it out? Is the fact that Kevin likes red going to hurt his case somehow? Seems doubtful.
Answer to number 1 is yes, but to number 2 is no:
[Same lawsuit as above]
Bob's attorney: Is it true that Tom told you [Bob] that Kevin is a jerk?
Again, you have objections for hearsay and relevance, and while it may hurt Kevin to be called a jerk, it doesn't really affect the case (unless his being a jerk is somehow relevant).
Answer to numbers 1 and 2 are yes, but to number 3 is no:
[Lawsuit for Assault and Battery]
Plaintiff's Attorney: So, is that when the defendant punched you in the face?
Defendant's Attorney: Objection, leading question.
Judge: Sustained.
Plaintiff's Attorney: What did the defendant do at that time?
Plaintiff: He punched me in the face.
So, there you have it. The evidence was getting in whether you made that specific objection or not, all you've done is delay it a few seconds. As a side note, I've never objected on the basis of a leading question in my career. While I can foresee a situation in which I might, it's just so rarely necessary that I've just never done it.
Why Necessary Objections Are So Rare
So, why is it then that, in my opinion, necessary objections are so rare? Well, most cases fundamentally turn on a fairly small number of facts. Even in multi-day trials, much of what you are hearing is background to the key facts of a case. Thus, the answer to number 2 will rarely be yes. Moreover, most attorneys, and even most pro se parties, have at least enough avenues to get their evidence heard that the answer to number 3 will also rarely be yes. For hearsay objections, for example, if the declarant is there to be a witness, then the hearsay will eventually get in. I've already discussed my issue with leading question objections. Really the only type of objection that I've encountered where the answer to number 3 is usually yes is when the other party attempts to discuss the content of settlement discussions. Those can be very harmful to your case, but are also completely barred from being heard, meaning no number of witnesses or means of evidence presentation will allow settlement discussions to get in.
What Made This Trial Different
So what made my trial last week different? Well, it was all about being prepared. I knew several facts ahead of time. My opponent was pro se, so I knew she didn't have an attorney preparing her for the issues her case had. I knew my opponent's case rested largely on statements made to her by others who were not parties to the case. I knew my opponent would not be calling any witnesses except herself. Finally, I knew that if she did call any of my witnesses who were going to be there, they would testify to something different than what she was alleging they had said. This meant that the hearsay in her case would all be yes to number 2, since that was basically the basis of her suit, and yes to number 3, since she had no way to get the hearsay evidence in otherwise.
In the end, that's exactly what happened. It seemed like every other statement she made was hearsay, I objected, it was sustained, the evidence did not get in. She tried to deflect by turning to what was discussed in settlement, I objected, it didn't get in. She tried to introduce e-mails from non-parties claiming they were threats against her, I objected on relevance grounds, they didn't get in. In the end, just about every objectionable action she took got a yes answer to all three of my questions, and as a result, I objected.
In the end, this approach did work. Her lawsuit was dismissed on my motion to strike, and our counterclaim was ruled on in our favor. This was in large part because she essentially never presented a case since all of her evidence was improper. It was the four factors I discussed above, however (pro se litigant, case largely based on statements of others, no plan to call those others as witnesses, knowledge that our own witnesses would contradict opponent's case) that combined to make this case the unusual one where frequent objections were necessary.
Conclusion
While it may make court cases much less interesting, objections are not nearly as common in real life as they are on TV. That's not because objectionable things rarely happen, but rather because objections are rarely worthwhile. Certainly, they happen, and I think not counting my trial last week I still average about 1-2 per trial (I can only think of two trials in which I made none), but by and large they are few and far between. You should not think less of your attorney because he or she is judicious with their objections, rather than wildly throwing them at everything.
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