“Treat objections as requests for further information.” – Brian Tracy

Law schools across the country teach objections from an academic view. The evidentiary basis is explained at length. However, no one explains the practical side. What are objections? How do they really work in trial? Why are they even there? How are they properly made? This article provides a “real-world” look into objections and their use at trial.

PURPOSE OF OBJECTIONS

Trials are used by civilized societies to resolve disputes between parties. Duels, fistfights and other forms of violence have been used in the past and sometimes continue to be used, but trial is the preferred method of dispute resolution in modern life. Parties are encouraged to reach agreements, but if they are unsuccessful, their cases are tried. The cases are brought before “triers of fact” (juries and/or judges) who consider the evidence and make decisions.

Not just any evidence can be used at trial. The evidence presented to the trier of fact must comply with the Evidence Code, which is easiest to remember as the three R’s: Evidence must be relevant,[1] reliable[2] and compliant with the rules.[3] But rather than offer an in-depth analysis of the three R’s, the focus of this article is objections. Objections are verbal interruptions made by trial lawyers to confirm that the offered evidence complies with the Evidence Code. The framers of the Evidence Code set up a system to ensure that the evidence presented at trial is proper for the triers of fact to consider.

The presentation of evidence at trial mainly consists of testimony by witnesses and the introduction of exhibits. Exhibits are usually tangible items, such as documents, correspondence, photographs and other recorded information. When a lawyer offers such testimony and exhibits, there must be a way for the opposing lawyer to give verbal notice that the offered evidence is not proper for consideration by the trier of fact. These verbal interjections are called objections. Often, the trial lawyer’s goal in lodging an objection is to get the witness to stop talking – to just “shut up!”

PROPER FORM OF OBJECTIONS

Trial advocacy techniques leave room for many different styles, personalities and

interpretations. However, there are a few basic principles for making objections at trial. Before objecting, the lawyer must determine when to make it. The proper time depends on the type of evidence presented. This is very important as untimely objections are potentially waived.[4]

During trial, opposing counsel may attempt to ask a witness a question that calls for a response that would violate the Rules of Evidence. If a question is asked and the answer violates the Rules of Evidence, the objection must be stated immediately. One of many reasons why trial lawyers must listen intently throughout the trial is to ensure they do not miss any opportunity to object.

When stating an objection, the trial lawyer should first stand up. This signifies to the court, witness and everyone else in the courtroom that an objection is going to be made. Then, the lawyer should simply state, “Objection,” and cite the basis for the objection. For example, “Objection – hearsay.” (This needs to be stated at a volume loud enough to be heard but not so loud as to be considered shouting.)

The objection should be made by speaking directly to the judge. It may be tempting to direct the objection to the opposing counsel or jury, but this is not proper. One of the judge’s most important jobs at trial (bench or jury) is to decide evidentiary issues.[5] This means ruling on objections.

The role of judges at trial is passive. It is not their job to make the objections but rather to rule upon the objections made by the lawyers. If an objection is not made, then a judge cannot rule on it. It is the lawyers’ job to make the objections.

Court rules are established to promote and facilitate orderly court proceedings. If lawyers make objections to (and at) each other, trials can quickly turn into shouting matches. Trials are stressful and put a lot of pressure on the lawyers. Can you imagine that pressure coupled with a system in which the lawyers direct objections at each other? Thankfully, our framers were wise enough to avoid that prospect. Objections are made to the judge.[6]

Finally, if the objecting lawyer wishes to explain the basis for the objection, they should ask the judge, “May I explain?” This gives the court the power to determine if hearing an explanation is proper at that time. Sometimes, the judge wants to hear the reasoning for the objection. In other instances, the judge does not. This decision is solely in the hands of the judge.

An improper way to make an objection is to shout, “Objection!” and then go right into the argument for why the evidence is objectionable. This is called a “speaking” objection – a mini-closing argument made during trial, sometimes repeatedly throughout trial. Speaking objections are improper because they give the lawyer the ability to coach witnesses and influence juries, and they make trials much longer, among other things.[7]

After the judge makes a ruling, the lawyer should say, “Thank you, judge,” so that trial can immediately proceed. This is not the time to argue with the judge. The ruling has been made; it is no longer up for discussion. The lawyer should show the court respect and move on. Even if the judge’s ruling does not favor the objecting lawyer, saying, “Thank you, judge,” is advised as it acknowledges the court’s position of power. It also may give attendees in the courtroom (including clients) who are unfamiliar with the legal process the perception that the ruling was in the objecting lawyer’s favor.

When a court reporter is present, the trial lawyer needs to make sure that their objections are stated loudly enough that the court reporter can hear and note the objection. At a bench trial, it is often easier to speak with the appropriate volume as the attorney can directly check that the court reporter has heard the objection and captures it. However, when these objections are made during a jury trial, the attorney is walking the fine line at the bench conference between wanting to make the objection known to the judge and the court reporter while also not wanting the jury, when present in the room, to be able to hear the objection. The attorney should consider these things while also ensuring that the court reporter can hear any objections. Depending on the circumstances, how, when and the volume at which objections are made are all part of the art of trial work.

In summary, the proper objection is made by the trial lawyer as follows:

• Stand
• Say, “Objection,” and cite the statutory basis
• Optionally ask, “May I explain?”
• Silently wait for the judge’s ruling
• Receive the judge’s ruling, thank them and move on

UNDERSTANDING THE JUDGE’S RULINGS ON OBJECTIONS

The judge will consider the objection, and possibly the explanation, and then make a ruling. The ruling will either be “overruled” or “sustained.” If the objection is overruled, it means the judge does not agree with the objection, and the offering lawyer is permitted to move forward with their presentation of the evidence. If the objection is sustained, it means the judge does agree with the objection, and the offering lawyer cannot proceed with the introduction of the evidence in the same manner. These rules can be tough to remember during the heat of a trial. They are also confusing for our non-legally trained clients. An easy way to remember them (and to explain them to clients) is that “sustained” means stop. They both start with an “s,” so this is easy to remember. If sustained equals stop, then the opposite (overruled) means go.

PROFFER

When evidence is offered at trial, an objection is made by the opposing lawyer and the judge sustains the opposing lawyer's evidence, then the moving lawyer has the option to ask to “proffer” evidence. Proffering means to make the non-accepted evidence a part of the record. Therefore, on appeal, the evidence may be reconsidered by the appellate court. To be able to make this objection later, it must be made a part of the record. This is called making the record, so you are preserving the option to appeal.

For a jury trial, when a judge receives a lawyer's request to make a proffer, they will schedule a time for this proffer to be made outside the presence and hearing of a jury. This is often done on a lunch break, a previously scheduled break or a break specifically scheduled by the judge for the proffer. In making the proffer, the attorney explains the evidence that was offered, the foundations or reasons the attorney believes the evidence should have qualified to be accepted into the record, and the impact, if this evidence were introduced, it would have on the case, the client's position or just the overall relevance of the case.

In a bench trial, judges handle proffers in one of two ways. They will either allow the attorney to go ahead and give at that time while they are in there listening to it, or they will say something along the lines of, “Yes, you may make your proffer, and you may do so on lunch break,” or at a time when the attorney is just making this proffer to the court reporter. Practically speaking, it is sometimes beneficial when the judge allows the attorney to make the proffer, and the judge is present and listening to what is happening. Often, after hearing a proffer, judges in bench trials will reverse the ruling they had made earlier. On other occasions, a judge may hear everything about the proffer, and at a later point in the trial, the evidence may get offered again, and the judge will change the previous ruling. An example of when this often happens in bench trials is when an objection is sustained for lack of foundation. In the proffer, the attorney is able to explain what is going on. Another example is when an objection is sustained for relevance. Often, through the proffer, the attorney can explain how the evidence is relevant to the case and the issues at hand. One other example is when an objection is sustained based on hearsay. A proffer sometimes allows the attorney to explain the basis, and thereby, it is allowed to become part of the record, come into evidence and be considered at trial.

EXPLAINING OBJECTIONS TO THE JURY

As part of the trial strategy, if the trial lawyer becomes aware at pretrial and at pretrial motions that they are going to have to lodge objections during the trial, it is sometimes a good strategy to go ahead and bring this fact up during voir dire. During voir dire, the attorney can explain to the jurors that there are rules of evidence during trial and the way the legal process is set up based upon those rules of evidence – if one attorney believes a piece of evidence has come up that does not comply with the rules, then that attorney may object. Those objections are then taken before the judge, who will rule on those objections. In addition, the attorney can let the jury know that as part of the rules and advocating on behalf of their client, there may be times they have to object to evidence. Their intent is not to keep evidence from the jury, hide facts or anything else – it is just to comply with the Rules of Evidence. The attorney would give this explanation and then ask if anyone has a problem with that.

Another option is that after the explanation, the attorney would state that some jurors feel like when a lawyer makes objections, they are trying to hide evidence, and therefore, that action should be held against the client. Other jurors feel like that is part of the rules – that is how the system is set up, and that is how things work – and they are fine with that and don't hold anything against the client. The attorney would then address a particular juror by asking, “Mr. Smith, how do you feel about this?” After giving jurors those two options and letting them voice their concerns, the judge can issue an instruction, or if the attorney needs to use one of their strikes, that could be up for consideration.

The other way to handle objections would be to make any objections throughout the trial, have everything dealt with, and if the attorney feels like it needs to be addressed, they address it in their closing argument. The attorney can explain in closing that there were times throughout the trial that on behalf of their client, they had to make some objections. The objections were based on the Rules of Evidence. The intent was not to hide information from the jury but to keep improper evidence, evidence that could not be relied upon, out. Therefore, they were compelled to make those objections.

CURING INSTRUCTIONS: ‘UNRINGING THE BELL’

What happens when improper evidence is presented and a timely objection is made, but the trier of fact heard the evidence before the ruling? For instance, a compound question is asked, and the witness answers while the objection is being made. The court has heard the answer from the witness. Another example is when the offering lawyer reveals the contents of a document before offering it into evidence. The opposing lawyer never got a chance to object, and the court heard the contents. While improper, this often happens at trial. When it does, the objecting lawyer must protect the record. They should immediately make an oral motion to strike the offending evidence. The judge will then rule on the motion to strike. This “protects the record,” keeping the transcript accurate in the event of an appeal. Interestingly, even if the judge orders the evidence stricken, it remains in the transcript so that the appellate court can review it if that specific ruling is appealed. The appellate court is trusted to disregard the improper evidence.

After making the motion to strike, the lawyer still has the obligation to ensure that their client receives a fair trial. How can this be accomplished after improper evidence was heard by the trier of fact? How can one “unring the bell?” Our legal system has established three options for the judge.

In jury trials, the judge can issue a “curing instruction.”[8] These are orders to the jury to disregard the evidence they just heard. Judges usually allow the lawyers from both sides to propose the exact language, and then the judge gives the instructions to the jury. In theory, this works effectively. Juries obey the instructions; they put the evidence out of their minds and give it no consideration. The problem is that juries are composed of human beings. Even with the best intentions, humans have a hard time ignoring evidence they have heard in reaching their decisions, regardless of instructions to ignore it.

In bench trials, the judge can simply disregard the violating evidence. The theory is that the judge has the knowledge and experience to evaluate evidence properly, giving it the weight it deserves or ignoring it. The legal idiom for this concept comes from an old case, where it was noted that the judge could “separate the wheat from the chaff.”[9] The phrase comes from Matthew 3:12 in describing separating things that are of a high standard from things that are of low quality. This means the judge can determine the important evidence and disregard the rest. There is no way to know for sure, but experienced judges should be able to do this successfully. However, judges are also humans, so the earlier point about the limitations of human thought holds true here too.

The final option is that the judge declares a mistrial. This is proper when there is no way that a fair trial can be conducted. The current trial is stricken, and the case is set for a new trial with a new trier of fact.[10] A mistrial, in law, is “a trial that has been terminated and declared void before the tribunal can hand down a decision or render a verdict. The termination of a trial prematurely nullifies the preceding proceedings as if they had not taken place. Therefore, should another trial on the same charges, with the same defendants, be ordered, that trial would start from the beginning, with the previous testimony or other findings not necessarily relevant in the new court proceedings.”[11]

The option of a mistrial is highly disfavored in jury trials and even less commonly declared in bench trials. In jury trials, significant time and resources are expended in getting a case to trial. The option of shutting everything down and starting all over again is not something most judges, and sometimes lawyers and/or parties, want. Judges go to great lengths to issue “curing instructions” instead of declaring a mistrial in a jury trial. In bench trials, the judge simply disregards the improper evidence and moves forward.

In criminal cases, requesting a mistrial is often advisable for defense lawyers. In that situation, the lawyer is fighting for the freedom and liberty of their client. In personal injury cases, the plaintiff’s lawyer should request a mistrial only when the client can no longer receive a fair trial. In a domestic bench trial, practically speaking, it is a waste of time to request a mistrial.

The timing of the request is critical. The objecting lawyer must understand the options and make the appropriate oral motion after the ruling on the motion to strike. Failure to do so can function as a waiver, resulting in the case moving forward with a tainted factfinder and potentially resulting in an unjust decision.

TRIAL LAWYERS’ OBJECTION PATH

Many trial lawyers have followed a similar path in how they use trial objections. To new lawyers, trials can be uncomfortable and downright scary. We don’t understand objections and are afraid to make them. The last thing we want to do is interrupt trial and take a chance at revealing how inept we feel. Then, after we have several trials under our belts, we start to get more comfortable. We see how objections work and start using them. We have some success with objections, so we reason that if a few objections are good, numerous objections will be great! So we start objecting to anything and everything. Anything that happens in trial that we do not like draws an objection from us. Time goes by, and we try more cases. We start to pay attention and notice the behavior of the elite trial lawyers. We notice judges’ and jury members’ reactions in response to objections. We learn how to deal with unfavorable evidence when it comes in. And our behavior at trial changes. We rarely object. The only objections we lodge are when we are either certain the objection will be sustained or when the objection is useful for a strategic purpose.

VIEW OF OBJECTIONS

A common feeling among experienced trial lawyers is that it is a mistake to object in front of a jury. The jury, they believe, will think the lawyer is trying to hide something from them. Therefore, they should decide against the sneaky lawyer and their client. The thinking is that if the jury believes the lawyer is being tricky and deceitful, then logically, the verdict should go against their client.

In a bench trial, there are other considerations. Most dockets are overcrowded, so some judges view the overuse of objections as a waste of time, making the trial take longer than necessary. It is human nature to punish someone who makes things more difficult and time-consuming and who exploits the rules.

After multiple days of numerous overruled objections, I have seen judges take a break and order counsel to chambers. The judge then sharply explains that the pointless objections are offensive and waste everyone’s time. A potential negative case outcome combined with the hit to the lawyer’s reputation with the bench and bar should outweigh any perceived benefit of this behavior.

Conversely, when one lawyer presents evidence in a manner that does not comply with the Rules of Evidence and the other lawyer does not object, a judge is forced into a position with two options. First, the judge cannot make a ruling if the attorney is not doing their job in making the appropriate objections. Any time a potential piece of improper evidence is being offered, and there are no objections, if it is a close call, the judge must let that evidence come in regardless of how they feel about it. These instances can be very frustrating for a judge. However, secondly, if it is an egregious situation and there is plain error, then the judge has the obligation to keep the evidence out, even when a lawyer fails to object.[12] The substantial rights of a party must be affected, and this is a much higher burden. In the heat of trial, with the speed of everything, it will have to be at a much higher level for a judge to jump in and make that ruling sua sponte.

I learned this lesson once while watching a bench trial. The lawyers were both inexperienced, and neither made any objections. The trial went much longer than necessary. Evidence that was not even remotely relevant was presented, admitted and discussed. Later, in chambers, the judge vented his frustration. He was furious that his time had been wasted. After reflecting on this situation, I realized the purpose and wisdom of the Rules of Evidence.

TO OBJECT OR NOT?

There are multiple reasons trial lawyers may decide either to object or to refrain from objecting. One reason to refrain is that the lawyer can deal with the offending evidence later in the trial. Often, the document or testimony being offered is not relevant to the claim. The trial lawyer who chooses to refrain can flip this evidence to the opposing party. On redirect, they can bring up irrelevant evidence in cross-examination to show illogical reasoning or a lack of connection. Then, in the closing argument, they can point out to the trier of fact that the opposing party is asking for a verdict based on evidence irrelevant to the claim. In this way, the trial lawyer blows up the fact that the irrelevant evidence was introduced and relied on. They use it to poke holes in the opposing case.

One reason to object is to see how opposing counsel will handle the objection. When an objection is sustained, some lawyers simply move on to the next line of questioning. In that instance, the lawyer has just quit on that evidence. The objecting lawyer has won this battle as the objected evidence will not be considered by the trier of fact.

Good trial lawyers will use an objection sustained against them to “teach better.”[13] They will slow down. The evidence will be highlighted as they lay a detailed foundation and show the relevance of the evidence. When executed correctly, this strategy is painful for the objecting lawyer and their client’s case. This, of course, is a reason to withhold future objections.

Trial work has always been, and will continue to be, a collision of facts, evidence, arguments, psychology, persuasion, emotion, fear and human perception. Ultimately, the trial lawyer must understand objections and use discretion when employing them. The learning process never ends.

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ABOUT THE AUTHOR

M. Shane Henry is a trial lawyer and a partner at Henry + Dow + Masters + Aycock, with offices in Oklahoma City, Tulsa and Norman. He practices in the areas of personal injury and family law.

 

 

 

 

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ENDNOTES

[1] 12 O.S. §2401 “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

[2] 12 O.S. §2901.

[3] Steven N. Peskind, The Family Law Trial Evidence Handbook 16-18 (2013).

[4] Id. at 306.

[5] Okla. Stat. Ann. tit. 12, §2104 (West 2022).

[6] Id.; Okla. Stat. Ann. tit. 12 §2103 (West 2022).

[7] Aaron Bundy and Shane Henry, “Slaying the Speaking Objection Dragon,” 87 OBJ, 2321, 2321 (2016).

[8] Okla. Stat. Ann. tit. 12 §577.1 (West 2022).

[9] Whitehill v. Elkins, 389 U.S. 54 (1967).

[10] Okla. Stat. Ann. tit. 12, §651 (West 2022).

[11] “Law, Crime & Punishment: Mistrial,” Britannica (last visited March 6, 2023), www.britannica.com/topic/mistrial.

[12] 12 O.S. 2104(D).

[13] Roger J. Dodd and Larry Pozner, Cross-Examination: Science and Techniques (2018).