Law schools teach that you should object to every objectionable question, and raise every issue in litigation. In hopes of succeeding in the legal system, law school students buy expensive trial objection flash cards and play legal objection video games teaching them what objection is best depending upon the legal problem they face. Law school also teaches law students that for each problem a lawyer must raise all possible legal issues in every possible area of law based upon a fact pattern. After passing the bar examination, these new lawyers enter law firms expecting these skills will be critical to winning a civil jury trial.
For reasons discussed below, following your law school education on these issues risks you losing your clients' trial. Instead of following legal dogma, Trial Guides products provide practical advice by leading practicing lawyers on how to best represent your clients.
Strategic Detachment: Don’t React to Every Attack or Issue
We know we must fight for our clients. If our adversary does something improper, we object; if the judge shows signs of wavering on an important issue, we push the judge hard. If we are doing our duty, if we are not afraid, we never give an inch.
Wrong. Our job is more subtle, difficult, and artful than that.
Objections, timing issues, and working with the judge are all closely related. They involve letting go of the idea that there is only one way to fight for the client—by being aggressive and never yielding an inch.
Let’s start with a basic truth that some lawyers can’t seem to grasp: Every time you make an evidentiary objection in front of the jury, it costs you. You are announcing loud and clear to the jurors that the other side is about to show them evidence that will hurt your case—and you want to keep it from them. What does this do to your credibility? Interestingly, it may not hurt your personal or professional credibility with the jurors, but it may hurt your case’s credibility. I say it may not hurt your own credibility, but it certainly can. You show yourself to be the typical lawyer, trying to hide the truth so you can win.
Maybe the jurors will be more understanding. Some expect lawyers to make the best case on behalf of their client and respect a lawyer who fights to do so. They expect lawyers to object. If they otherwise like you, they may respect your willingness to fight hard to present a certain view of the truth to them—including hiding bad facts. Still, the message they receive is clear: this lawyer I like and respect thinks this evidence hurts the client’s case. In effect, your own credibility is vouching for the importance of the point your opponent is making.
When you make an objection, you:
1. Immediately draw the jury’s attention to the issue raised by the other side. Jurors who were merely drifting are now locked in on that point.
2. Announce to the jury that this evidence hurts your case.
That is bad enough, but the truth is that lawyers lose most evidentiary objections made in front of the jury. By lose, I mean your opponent eventually gets the same information (or remarkably similar information) presented to the jury in some other way. You object on foundation grounds, and your opponent asks a few more questions to lay a foundation. You object on hearsay grounds, and your opponent asks different questions to show the judge the statement is not being offered for the truth of the matter asserted, but to explain what the witness did next.
If you win the objection, and the jurors never hear another word about the subject, they are still left to wonder what you kept from them—what you are trying to hide.
Some will argue that good lawyers need to “make a record,” so that if they lose the case, the chances will be greater on appeal. This argument has two responses, one for civil lawyers, and one for criminal lawyers.
Here is an exercise for civil lawyers. Find ten reported cases in which an appellate court reversed a defense verdict. That alone is hard enough. Our best chance is always in front of a jury. If we lose there, appellate courts are not inclined to help us. But you will eventually find ten cases. Read them carefully. How many involved a reversal based even in part on an evidentiary issue raised for the first time in front of the jury? I would bet none of them. Find one hundred cases in which an appellate court reversed a defense verdict. Again, how many of these reversals were based on evidentiary issues raised for the first time in front of a jury? Again, probably none. I am not saying it never happens, but the chances are about the same as being struck by lightning.
Because evidentiary rulings are discretionary, the admission of evidence against the plaintiff is almost never prejudicial enough, in the appellate court’s eyes, to justify reversal. Unless the defense has clearly gone over the line in an obvious and extremely prejudicial way, all your objection accomplishes is a chipping away at the credibility of your case.
Yes, it is scary not to make objections. It’s what we learned to do in law school. It’s what real lawyers do. If we lose the case, we can be criticized for not objecting.
For criminal defense lawyers, the analysis is somewhat different. Unexpected prejudicial evidence is more likely to surprise you in the midst of trial. Jurors are more likely to forgive a criminal defense lawyer’s objections. Appellate courts are somewhat more willing to reverse guilty verdicts on evidentiary grounds than they are civil defense verdicts. Still, most of the objections I see in criminal cases are about minor evidentiary issues that will never determine outcomes. Criminal defense lawyers need to be conscious that every objection creates a risk of loss of credibility with the jury. Is your objection worth it? The answer is often no.
This is not to say you shouldn’t object to the admission of harmful evidence. Almost always, you will see it coming a mile away. Make your motion in limine before trial and get your ruling. If the judge rules against you, ask to have a continuing objection to this evidence at trial so you don’t need to interrupt and slow things down. Most judges will give this to you. If you have not filed a motion in limine and you become aware of something harmful that may come in front of the jury, ask to take it up outside the jury’s presence—usually at the beginning or end of the day. Again, most judges appreciate having evidentiary issues raised outside the jury’s presence.
Sometimes you have no choice. Something very harmful that you did not anticipate comes up at trial. You need to stop it early, before it gets worse; you have no choice but to object. This can happen, but it should be rare.
Objections may be appropriate in a few other situations. One is if you are before one of the increasingly rare judges who allow “speaking objections.” Most judges now require one-word or one-rule objections, such as “irrelevant” or “Evidence Rule 401.” Any argument then takes place at the bench. A few judges still allow evidentiary argument in front of the jury. In that case, you can often eliminate any credibility loss from making an objection by letting the jury in on the basis for your objection. You might say, for example, “Objection, hearsay. The defense is not willing to bring Mr. Howard here to testify and instead is trying to have Mr. Wilson speak for him.”
Another situation in which objections can be appropriate is when the defense is doing something highly improper and you know the judge will be displeased. If your opponent has violated an in limine order, for example, you may want to object immediately and let the judge’s wrath rain down in front of the jury. The problem with even this approach, however, is that most judges have a high tolerance for civil defense and prosecutorial misbehavior. Only if the opposition has violated the judge’s order repeatedly is a judge likely to show displeasure in front of the jury.
I will not attempt to catalog the various situations in which objections are appropriate. My point is simply that lawyers commonly hurt their cases by objecting too much. I suggest erring on the side of not objecting in front of the jury. Anytime you feel yourself automatically objecting, stop yourself. Anytime you find yourself thinking you must object, re-examine your assumptions.
One more common example emphasizes this point. Suppose a defense expert is on the stand, giving long, rambling, argumentative, and nonresponsive answers. You know the judge is displeased and will sustain your objections. Many lawyers tell me that in this situation they have no choice but to object. Why is that? Is the expert saying anything he couldn’t eventually say anyway? Are you afraid he is going to mesmerize the jury? The jurors know he is hired to mesmerize them. The more it looks as if he is putting on a show, the better it is for you. Maybe he is hurting you, but your objections are not going to stop the pain. Trying to interrupt, disrupt, or limit him is not going to help you with the jury—it will just make you look afraid. Let him put on his show and then do your cross-examination.
The practice of not objecting can take great self-discipline. I once came close to blows with a co-counsel who vehemently disagreed with this approach. However, I can tell you that it works, for me and for others.
I sometimes go through a two or three-week trial without making a single objection. Other times, I may make only one or two. Watch most successful trial lawyers with significant experience, and you will see the same thing. Something else can also happen when you use this approach. The judge, who is used to objections, starts to look over at you when your opponent is doing improper things. If you sit calmly, clearly disinclined to do anything, the judge may start objecting on your behalf. “That’s irrelevant counsel. Move on.” “I’ve already ruled on that, counsel.”
Sometimes judges do this out of a sense of propriety—a sense of how trials should be run. Sometimes they do it to speed things along. I would say that in about half my trials, by the time we are three or four days into the case, the judge is objecting for me on at least some occasions. And aren’t those the most effective objections of all?
You can divide timing issues into two categories: legal and factual. I wish to make the same point about each category: Sometimes your arguments improve with time. A common mistake of trial lawyers is to try to get all issues settled, settled right, and settled immediately. Many arguments and even cases are lost this way.
Let’s take a legal example first. At the pretrial hearing, the judge rules against you on a defense motion in limine and excludes an important piece of evidence. You believe the judge does not fully understand the facts. Being a fearless lawyer who fights for your client, knowing you are legally and factually correct, you try to explain to the judge—politely, of course—where she has gone wrong.
The judge is in a hurry. (Aren’t they all?) She has seven other motions to hear that morning. She has told you her ruling, and you are telling her she is wrong. Is this how the trial is going to go? Who’s in charge here anyway? There is a good chance the judge will shut you down and dig even deeper into her position that she should exclude the evidence. Your fear is that once the judge starts going against you on an issue, she will be like a freight train you won’t be able to stop. That is rarely the case.
What if you accept the judge’s ruling and move on? Then, a day or two into the trial, when you have the judge’s full attention, and, one hopes, her trust, you ask to go on record out of the presence of the jury. You say something like: “Your Honor, at the pretrial hearing you granted the defense motion to exclude the testimony of Mrs. Samuels. Since that ruling, we heard defense counsel in opening statement say, __________. We have also heard him cross-examine two witnesses, each time referring to ________. Given what has happened, I would ask permission to call Mrs. Samuels.” (For more on this approach, see The Elements of Trial.)
You may have made almost identical arguments at the pretrial hearing, but now the judge understands the trial better and the context of the evidence you seek to admit. Even more important, it is very likely that your opponent, emboldened by the in limine ruling and forgetting that in limine rulings are always tentative, may have given you new ammunition for your argument.
I am not saying you should never try to convince judges they are wrong when they first rule against you. Sometimes that is the right thing to do. But I frequently see lawyers desperately trying to change a judge’s mind prematurely. It’s as if they think they only have one chance to get a judge to rule their way, and a ruling against them becomes set in stone. This is not true of in limine rulings. It is not true of most trial court rulings. [Legal citations in the original text].
Obviously, you don’t want to keep arguing with the judge or, without good reason, revisit arguments you have lost. But the ebb and flow of trial almost always gives you a second chance to persuade a judge you are right. The second chance may be a better opportunity to convince the judge than the first.
This is particularly true if you are on the right side of an issue. The converse is also true. If you are on the wrong side of an issue, your best bet is to push the judge hard to rule before the judge fully understands what is going on. That is one reason why civil defense lawyers are so aggressive in trying to get rulings in their favor at the pretrial stage. They know as time goes on their arguments will become less and less convincing.
The issue of timing also becomes important when dealing with factual issues. For example, in opening statement, the defense makes a powerful point to the jury: in the first six months after the accident, not a single treating doctor diagnosed concussion or brain injury in your client. You can tell that point is having a strong impact on the jury. But the defense has overlooked the fact that the first treating doctors used the International Classification of Disease (ICD-9) codes of 850.1, 310.2, and 310.8, indicating brief loss of consciousness, post-concussion syndrome, and brain injury.
One response is to immediately call a witness who can explain CPT codes to the jury and point out that the doctors did in fact diagnose concussion and brain injury. This has the benefits of immediately putting your opponent’s argument to rest, hurting the opponent’s credibility, and enhancing your own. This will often be the best thing to do.
Another alternative is to let your opponent keep building the defense on this faulty pillar. Let your opponent keep referring to the “fact” that no treating doctor diagnosed concussion or brain injury. Once that fact becomes totally identified with the strength of the defense case—becomes synonymous with the defense case—then you prove it false. Part of the skill in trying cases is learning to use timing to your best advantage. Trials are full of second and third chances to make points, refute arguments, and reshape the judge’s and jurors’ opinions. Many lawyers forget this.
If you are aware that delayed gratification is sometimes the best approach, you will be calmer when things go against you at trial. You will not feel as compelled to react immediately. This is a good thing. Often, the piece of evidence that hurt so badly at 11:00 a.m. seems inconsequential at 2:00 p.m. Often, no reaction is the best reaction.
Work with the Judge
Appearing before the judge for a pretrial conference or for the first day of trial is a little like going on a first date. You may have some familiarity with the other person, but you are now entering into a new phase of your relationship. What does this person expect of me? Will she like me? Will I be comfortable with her? Will she be comfortable with me? Can I feel safe with her? Can I trust her?
Judges have to be on guard. The world is full of people trying to manipulate and take advantage of them. You want the judge’s trust and respect; you can’t take it, any more than you can take trust and respect from anyone else.
An entire book could be written about lawyers’ relationships with judges, and one probably will be some day. In the meantime, I would like to focus on two aspects of these relationships: timing and flexibility.
On a first date, most men would not say to the woman across the table, “I hope to order our meal, eat our meal, and then take you back to my apartment for hot, passionate sex that will last for hours.” Yet lawyers do the equivalent of that with judges every day. Before the judge fully understands the case, before he has any level of comfort with the lawyer, the lawyer pushes the judge hard, trying to get every possible advantage. The judge is being rushed, and he knows it. He does not want to make a mistake. He may have been inclined to rule in the lawyer’s favor, but the very act of pushing and rushing reduces your chances.
Many issues raised pretrial can wait for resolution until the trial is well under way. The more clearly you are entitled to win on an issue, the more likely it can wait for later resolution. Imagine going to the pretrial hearing and saying something like this to the judge: “Your Honor, we have made six in limine motions, and the defense has made five. As far as I can tell, only two of our motions and three of the defense motions need to be resolved before jury selection and opening statements.”
All judges are different. Some will say they want to address all the motions then and there. Others will be relieved that they can postpone some of the decision making until they are better prepared. All will appreciate your attempt to guide them in a fair and evenhanded manner.
Let’s turn to the related issue of flexibility. Suppose you went even further in your comments to the judge, and said something like: “Your Honor, we have made six in limine motions. Upon further reflection, I believe we can withdraw motions three and four. Of the remaining four motions, you only need to resolve one and two before jury selection and opening statements.”
In preparing for trial, most lawyers unleash a barrage of motions in limine covering every issue they can think of at the time. Once the motions are filed and additional trial preparation takes place, some of the in limine motions invariably seem less meritorious, less important, or even unnecessary.
I have heard various arguments for not withdrawing such motions. Some lawyers say that this is a way of negotiating with the judge. The judge will rule against them on these motions, and then go their way on the more critical ones. Or, they argue, withdrawing the motions will make them look weak.
It is true that some judges seem to keep score—“one ruling for you, one ruling for them”—but these judges are a minority. Most judges try to focus on the substance and try to get the rulings right. One thing they are constantly judging is the messenger—you. If you make three frivolous motions, it will hurt you when the judge turns to your motion that is meritorious, but a close legal call.
As for looking weak, this argument is not only exactly wrong; it also reveals an attitude that can easily get you into trouble. What could look stronger than saying, in effect, “I don’t need to bother the court with these issues”? You are letting the judge see that your case is strong and you are smart enough to see it.
When I began practicing law, young lawyers were told they needed to be strong in the courtroom, to take control, to be the leader. Many interpreted this to mean they needed to fight the judge for control, prove they were not awed by the judge’s power, and prove they were willing to push back. Imagine going on a date or entering into a marriage and receiving the advice that you must take control and be the leader. How successful do you think the relationship would be if you followed the advice?
Your goal should be to work with the judge. If judges think you are trying to take control or prove something, they’ll be trying to prove something back. And of course, they have the last word. If they sense that you believe part of your job is to try to make their job easier (it is) and to try to make sure they get things legally right (it is), they will start working with you, as they should.
I am not suggesting you act like a milquetoast wimp or that you not be firm with a judge when that is called for. But don’t start your relationship with a judge by pushing, rushing, or trying to prove anything other than that you are a competent lawyer who can be trusted.
To learn more about how to try your first trials in the most effective way, see Rick Friedman's books The Elements of Trial and Becoming a Trial Lawyer, 2nd Edition.
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