WHEN YOU CAN OBJECT vs. WHEN YOU SHOULD OBJECT

By: Diana A.  Sada, Trial Attorney, Evidence Lecturer

Editor: David C. Schott, Trial Attorney,  Professor of Law

“OBJECTION!”  It’s a favorite word among some lawyers but also detested by many. Objections are important to the success of your case because they are the medium for enforcing the Rules of Evidence. For that reason, learning objections is equally as important as learning the Rules of Evidence. However, one skill many lawyers struggle with is mastering when to object.  Additionally, many lawyers mistakenly lodge frivolous objections for an improper agenda.  

To that end, there are two principles that every trial lawyer should adopt to be successful and avoid adverse consequences.  

 

Principle 1: Only lodge strategic objections that help your case.

The practical application of the Rules of Evidence in jury trials is more lax than the strict application of the Rules. It is crucial to understand when opposing counsel is skipping a foundation question that matters, which you should object to, versus one that does not, which you should not object to.  

For example, assume opposing counsel started his direct examination of a witness with the following:

Q: Ma’am, do you remember Aug 31, 2016?

A: Yes. Very clearly.

Q: How was the weather that day?

A: It was snowing and freezing.  

Can you object? Yes. Technically, the second question and answer are both objectionable for lack of foundation. The question did not establish that the witness went outside the house that day, that she watched the news, nor that she looked outside the window. The answer lacks foundation because she did not testify that she knows what the “freezing” point is or that she saw/felt snow.  

Should you object? NO! This is not a strategic objection, as the missing foundation is immaterial. Forcing opposing counsel to lay proper foundation would turn a two-question segment into an eight-question segment with no benefit or harm to either side. This will frustrate the jury at your expense. They might perceive you as disruptive even though the question/answer are technically objectionable.  

Image result for objecting lawyer

The skill of learning when to object can truly be acquired upon deciphering the difference between a technical objection and a strategic objection. Aside from learning how to forgo objecting to immaterial matters as outlined above, when you learn the difference between technical and strategic objections, you may find yourself cleverly forgoing objections on substantive and material testimony in order to help your case.

For example: Assume you are prosecuting an assault. The Defendant had previously been violent toward the victim, but you were unable to convince the judge to allow you to admit those prior instances of conduct per FRE 404(b) in this trial. Assume that during the investigation of this crime, the Defendant told your responding officer: “Why are you arresting me? I did not hurt her! I would never hurt her.

On direct examination of your responding officer, you do not elicit that statement (even though you could per FRE 801(d)(2)(A) – opposing party’s statement). On cross examination, opposing counsel is hoping that statement could paint a positive image of his client. Therefore, opposing counsel unwisely asks your officer to confirm that his client told the officer that he would “never hurt” the victim.  

Can you object? Yes. The question is objectionable. Unlike you, who could admit evidence of the Defendant’s statements per FRE 801(d)(2)(A), defense counsel generally cannot admit statements of his own client as they are hearsay. NOTE: this may not be improper character evidence because it is being introduced by the accused in a criminal trial and is arguably a pertinent character trait, which is allowed per FRE 404(a)(2)(A).

Should you object? NO! Opposing counsel is doing you a favor by “opening the door” to the prior violent offenses that you were prohibited from eliciting. You can now rebut this evidence per FRE 404(a)(2)(A) and various case law governing the principle of “opening the door.” Your ability to strategically forgo this objection to hearsay helped your case and hurt opposing counsel’s.  

 

Principle 2: If it is NOT objectionable, do NOT object.

Some lawyers believe lodging an objection is the proper mechanism for slowing the momentum of opposing counsel when opposing counsel is in the midst of collecting damaging evidence to their case. First, that philosophy often backfires. Lodging an objection naturally draws attention to the testimony objected to, which may result in the jury paying more, as opposed to less, attention to that testimony.  

The more important consideration for not objecting to a non-objectionable question/answer is your license! Colorado Rule of Professional Conduct 3.1 (which tracks ABA Model Rule 3.1 verbatim) provides, in pertinent part:

A lawyer shall not … assert or controvert an issue [in a proceeding], unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension … of existing law.

Lodging an objection for the purposes of slowing opposing counsel down knowing you have no legal basis for the objection violates the oath you took as a lawyer! Before you object, make sure the question/answer is at least technically objectionable – even if the objection is not wise strategically.  Image result for objecting lawyer

NOTE: Counsel may waive certain rights in appeal by waiving objections at trial. For that reason, irrespective of the principles above, you should always keep the record you want to create for appeal in mind while you decide whether to strategically forgo a proper objection.

Trial Boom® teaches you how to identify objections regardless of whether they are strategic. In other words, as you use the courtroom simulator, it is possible that a question may arise, which the simulator expects you to identify as objectionable, but one that you would not otherwise object to at trial. It is necessary, however, to understand the entire scope of objectionable questions for you to begin selecting strategic ones. For that reason, Trial Boom arms you with the ability to learn the broad scope of objections, which you can then couple with your experience and case analysis to determine which of those objections you would actually raise at trial.  

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WHY SHOULD YOU LEARN HOW TO PRESENT A CASE FOR TRIAL?

How Trial Skills Can Help Your Case Even If You Never Make It To Trial

By: Diana A.  Sada, Trial Attorney, Evidence Lecturer

Editor: David C. Schott, Trial Attorney,  Professor of Law

It is true.  Most cases settle.  Most cases never go to trial. Most lawyers never see the inside of a courtroom. So why should you learn how to present a case for trial? Why should you spend so much time learning how to effectively cross examine a witness, properly lay foundation, or conduct an efficient direct examination? Why shouldn’t you, instead, focus on learning how to write better, negotiate better, mediate better, and arbitrate better if that is where the vast majority of your legal career will be spent?

The obvious answer is: BECAUSE YOU ARE A LAWYER!

 

And, with that comes the possibility that one of your cases may end up in trial.  However, with statistics against that likelihood, is it a waste of time to invest in learning trial advocacy skills? No. Because possessing trial skills strengthens your case whether or not the case proceeds to trial.

Here are three reasons why you should learn these crucial skills irrespective of statistics:

(1) If you do NOT know how to do a trial, your opposing counsel will take you there. 

Your inability to do a trial is not going to remain a secret. Your opposing counsel will take that into consideration in evaluating whether to accept your last offer. What incentive does your opposing counsel have to take your offer if he or she knows that you will fold on the courthouse steps because you are too scared to go inside?

Additionally, trial skills are as valuable as a large litigation budget. For example, if you are a plaintiff’s lawyer and your client has a small legal budget (or you for that matter), your opposing counsel may depose everyone and their neighbors simply to hike up costs and force you to settle for pennies on the dollar. If, however, your opposing counsel believes your financial health allows you to take the case to the Supreme Court and back, he is more likely to disengage from those tactics. In this example, you did not necessarily use your healthy budget. Rather, the healthy budget helped your case.

Trial skills play the same role. You may not have to use them, but the mere possession of those skills makes opposing counsel wary of rolling the dice at trial. Your reputation as a “force to be reckoned with” inside the courtroom will make opposing counsel think twice before he turns down YOUR settlement offer months before trial.

(2) If you do NOT know how to do a trial, how can you fully advise your clients on how to avoid one?

When you first accept a case, you should be evaluating its strength without letting emotion cloud your evidentiary filter. Your client could have been wronged in a very egregious way. However, if, for some reason, those facts are inadmissible, failure to foresee that inadmissibility may lead to misevaluating the strength of your case, risking your client’s time and money. When you first accept a case, you need to think about the ultimate shape of that case in front of a jury after it has gone through the filters of the Rules of Evidence. Playing Devil’s advocate and discussing the weaknesses and strengths of proceeding to trial will allow you and your client to make a well-informed decision.

For example, a client comes to your office and says: “This company ruined my life.  They know that they should have fixed that staircase before I fell and broke my entire body. The reason I know that is because they fixed the stairs immediately after my accident. Not only that, but this company’s owner is a thief. No one likes him. So clearly, I have a great case. Right, Mr. Lawyer?”

You might think: “How can a jury possibly find in that thief’s favor and not in favor of my client?” If you know the Rules of Evidence and how to present a case for trial, you know that you have to look beyond the actions of the “bad guy” in evaluating your case because chances are, many of those facts may not rise to the level of admissible evidence.

Finally, even if your practice is transactional in nature, such as drafting contracts or wills, understanding trial and the Rules of Evidence allows you to comprehend triable issues. That will help you better advise your clients and properly safeguard them from future litigation. After all, it is imperative for the architect to know how the stonemasons actually lay the stone.

(3) Knowing how to present a case for trial will organically strengthen your skills in all other stages of the litigation.

Presenting a case before a judge or jury at trial is an all-encompassing skill. Arguing your client’s case in closing is a skill that forces you to synthesize and simplify facts with complex legal theories. Just as a captain knowing their ultimate destination assists them in plotting each leg in their journey, a trial attorney knowing how to present a case AT trial strengthens his or her ability to navigate the channels leading to that trial. This, in turn, can help you argue your next big Daubert hearing or better draft that motion for summary judgment. Cross-examination can help you develop testimony at your next big deposition with a combative deponent. Knowing objections can help you negotiate at mediation when your opposing counsel (who does not know evidence like you) hangs his entire case on inadmissible evidence.

These are only three of MANY reasons why you should learn how to present a case for trial. It can only help you. So do yourself a favor: learn the Rules of Evidence, and get comfortable in the courtroom.

 


 

Check out the Trial Boom Courtroom Simulator to improve your knowledge of the rules of evidence and hone your trial advocacy skills. And earn CLE while you’re at it!

 

Rules Are Rules: How the Principles of Evidence Apply Similarly in Civil and Criminal Cases

Author: Diana A. Sada, Trial Attorney & Evidence Lecturer

Editor: David C. Schott, Trial Attorney & Professor of Law


Download the “Reference Material to Rules Are Rules” HERE.


If you are a civil practitioner, should you approach learning the Rules of Evidence differently than your criminal practitioner counterparts? Should you bother listening to that criminal practitioner giving you advice about the Rules of Evidence?

The short answer is, “yes.”

One of the biggest misconceptions lawyers have is the assumption that the Rules of Evidence are as distinct as the Rules of Civil v. Criminal procedure.  For that reason, many assume that learning evidence by using a criminal fact pattern (such as Trial Boom’s first case, The People v. J.W. Booth) is a narrow exercise if they are civil practitioners.  To the contrary, the principles behind the Rules of Evidence are applied very similarly in civil and criminal cases.  If you learn the application of evidence in either the civil or criminal arena, you can use that knowledge interchangeably with only a few distinctions to keep in mind.

Three-quarters of the rules make NO distinction between criminal and civil cases.

Many of the rules that do make distinctions are intuitive, while others are simply inconsequential distinctions for the purpose of trial (e.g. compensation of experts).

Additionally, many rules do not actually distinguish the application of the rules in civil and criminal cases; rather, those rules apply exclusively in criminal OR civil cases.


Here is a breakdown of the Rules: 

There are 11 articles in the Federal Rules of Evidence. Within those 11 articles, there are 68 rules total with various exceptions and/or exemptions. Of all those rules, only 17 create distinctions or apply exclusively to civil or criminal.

That means 51 out of the 68 rules apply identically across the board. 

Some differences may exist in how case law applies the rules. Nonetheless, 51 of the rules themselves apply similarly, irrespective of whether the case is civil or criminal.

So what does this mean? Rules are Rules!

Here are two examples to illustrate:

Example #1

Fed. R. Evid. 404(a)(1) prohibits the introduction of a person’s character or character trait to prove “propensity” (i.e., that the person is acting in conformity with that trait on a particular occasion). If you look at the language of the rule, you will notice that 404(a)(2) is a subsection that applies only in the criminal context. Under this subsection, a criminal defendant is permitted to introduce evidence of a pertinent character trait in a criminal case. While this subsection does not apply in civil cases, the prohibition of using character evidence, which is the essence of the rule, applies similarly in both types of cases. Additionally, knowledge of the entirety of the rule, even if you only practice civil, comes in handy when dealing with opposing counsel who may not be an evidence wiz like you.  In the event opposing counsel is attempting to use that subsection in a civil case, your knowledge gives you the tools to lodge a well-articulated objection.

Example #2

Fed. R. Evid. 404(b)(1) prohibits the introduction of instances of conduct to prove character.  This prohibition is applicable in BOTH criminal and civil cases. Thus, learning 404(b) in a criminal context helps you in the civil context and vice versa.  The distinction between the two types of cases is that 404(b)(2) places additional requirements in criminal cases relating to notice.

Generally, Rule 404(b) is not frequently used in civil cases because issues such as motive, identity, intent, etc. are not usually elements of civil claims or defenses.  However, nothing in 404(b) prohibits its use in a civil case. In fact, it can often be used in civil cases involving intentional torts, or cases where notice, ownership, existence of a dangerous situation, or other claims are in play.

Assume you are trying to learn this rule by reading a criminal case involving a charge for reckless driving causing injuries. In that case, Mr. Smith hit a pedestrian in a school zone while he was speeding. Investigating Mr. Smith’s background reveals that he had previously been cited for speeding in that same school zone about one month before the accident. You also learn that the prosecutor successfully argued for the inclusion of this prior bad driving pursuant to 404(b)(2). The prosecutor wanted to use that prior bad driving to prove that Mr. Smith knew this was a school zone. In other words, it was not being introduced to show that because Mr. Smith was a bad driver before, he was a bad driver in this occasion. Rather, it was used for knowledge.  Analysis of these facts in the civil context is nearly the same.

To illustrate, turn the fact pattern above into a negligence case where the family of the injured pedestrian is suing Mr. Smith for damages. That family’s lawyer (you) can use nearly the same argument as the prosecutor to introduce Mr. Smith’s prior speeding ticket to show he knew this was a school zone.