Surely, trial lawyers know that "Objection!" is the law’s
single most powerful word. No other single word moves the law so quickly,
or the facts so abruptly.
The trial lawyer’s timely, thoughtful, strategic incantation "Objection!"
can change the direction of a trial. An objection — or the failure
to bring one — can determine the outcome of an appeal, reinforce
or disrupt the bond between attorney and client, engender respect, or
antipathy, between attorneys. It can do the same with the presiding judge.
This one word "Objection!" is so powerful that it can stop a
lawyer in mid-sentence, or interrupt a judge in mid-ruling. It can prevent
injustice even where the human tugs of appellate court predilections are
to the contrary.
"Objection’s!" Legal Basis
Objection is a term of art. Its definition is statutory in Nebraska. "An
exception is an objection taken to a decision of the court upon a matter
of law." The effect of an objection is also governed by a statute.
In Nebraska, "every litigant . . . shall be deemed and taken, both
in the trial court and before such judge . . . as well as on appeal or
error therefrom, as excepting to any judgment, order or other ruling,
including the giving or refusal of instructions to the jury, made by such
court, judge . . . at any stage of the case or proceeding, that is material
and prejudicial to the substantial rights of the litigant and he shall
not be required, in order to preserve his rights actually to take, or
to cause to be noted upon the record, any such exception."
The statute is apparently not the final word. Despite the provision that
exceptions need not be taken if a court’s legal rulings are "material
and prejudicial to the substantial rights of the litigant," the Nebraska
Supreme Court routinely holds to the contrary:
Failure to make a timely objection waives the right to assert prejudicial
error on appeal . . . . If, when inadmissible evidence is offered, the
party against whom such evidence is offered consents to its introduction,
or fails to object or insists upon ruling on the objection to introduction
of such evidence, and otherwise fails to raise the question as to its
admissibility, that party is considered to have waived whatever objection
he or she may have had thereto and the evidence is in the record for consideration
the same as other evidence . . ..
Section 25-1139 is no insurance that relief will be granted on appeal where
a party fails to object, and so the assertion of an objection can be as
momentous as its omission. Its absence makes the best of appellate arguments vacuous.
How powerful is the word "Objection!"? It can preserve freedom,
prevent incarceration, keep parents with children, and protect gullible
persons from contracts they do not desire to make. The law knows no single
word with greater power. Failure to timely utter "Objection!"
can put, and keep, persons in prison who perhaps ought not be there. Failure
to timely object can cost a parent custody of a child, notwithstanding
the legislative expression in § 25-1137 that an objection is not
necessary where a "material and prejudicial" ruling affecting
"substantial rights of a litigant" occurs. Even in a commercial
setting, a farmer’s receipt of a contract can charge him with obligations
to perform it, even though he never signs it or assents to it.
Despite its power, or perhaps because of it, the use of "Objection!"
at trial must be tactically, as well as technically, appropriate. Even
the best technical objection may be better withheld than uttered. "Bad"
evidence can open doors that an objection could otherwise keep closed
against the objector. At times, a little hearsay goes a long way. A savvy
trial lawyer might allow an objectionable question and response to swing
the door open to a broader, meatier subject otherwise unavailable for
inquiry upon cross-examination. "Opening the door" generally
occurs where evidence is adduced or comments made by one party concerning
an otherwise irrelevant point, thereby triggering the need for some response.
For example, once a criminal defendant "opens the door" by putting
his character at issue, the prosecution can introduce proof of prior bad
acts. A technically sound objection could keep the door closed. Tactically
withholding the incantation "Objection!" can change the course
of a trial by broadening or narrowing it.
A fine line of professional judgment must be walked when a trial lawyer
decides whether to "Object!", or let a matter play out. Hunches,
senses developed from experience, and hopes about what might develop are
at the heart of this strategy. Careful attention to the witnesses —
and particularly to non-verbal testimony — often supplies the trial
lawyer clues about whether it makes sense to "Object!" or maintain
silence. The risks are multiple. If the lawyer’s hunch is wrong,
damaging evidence might be received. If the hunch is right, the lawyer
looks like a hero.
On appeal, the twitch of the eye, flick of the finger, or nervous movement
of the leg, will not appear in the record. Nebraska’s appellate
judiciary has shown willingness to reweigh evidence, re-evaluate proof,
and to reach a particular result at times — even without seeing
the witnesses. This appellate proclivity may impact the tactical decision
to "Object!," but it ought not. The Nebraska Supreme Court has
invoked the doctrine of harmless error in criminal cases and civil cases
more frequently of late than it did during the State’s first one
hundred twenty-five years of existence. Now, the Supreme Court occasionally
speculates that an erroneous evidentiary ruling "did not materially
influence the jury in a verdict." Jury instructions, too, are subject
to harmless error review.
Balancing the anomalous application of one statute requiring harmless errors
be overlooked against another that obviates the need for objections where
material rights are affected is an example of the dichotomies a trial
lawyer must navigate to be as effective as possible.
Every trial lawyer knows the act of objecting invokes technical rules of
law. Questions are objected to — not answers. The interrogator may
move to strike an answer because it is not responsive, but not because
the answer represents undesirable evidence.
The grounds for objection should be stated succinctly and clearly. Where
the grounds specified for an objection at trial are different from the
grounds advanced on appeal, the issue is not preserved for appellate review.
Prohibitions against "speaking objections" are common. It is
utterly wrong for an examiner to "tip off" a witness by suggesting
the correct response within the objection, or otherwise impeding the exchange
of information for reasons unrelated to the Rules of Evidence. Court rules
often prohibit speaking objections. In Nebraska, the Chief Judge of the
United States District Court circulates the following provision in his
"General Observations About Civil Jury Trials." These "Observations"
are distributed by the U.S. Magistrate Judge at each pretrial conference
preceding a trial before Hon. Richard Kopf, Chief Judge:
Objections: No speaking objections. For foundational objections, state
what foundation is lacking. Objections may be made in the seated position,
or the standing position. If you desire a bench conference, state your
request. If you want the bench conference recorded, state your request . . .
Judge Kopf’s observation is consistent with, if more comprehensive
than, the Uniform District Court Rules adopted to govern proceedings in
Nebraska’s State District Courts. Those Rules provide:
Counsel shall not participate in colloquy with opposing counsel, whether
audible or inaudible, without permission of the court . . .
Witnesses and parties shall be referred to and addressed by their sir names,
only one counsel for each party shall examine a witness or make objections
during the testimony of such witness . . .
These Rules pattern after Local Rules common among the United States District
Courts across the nation.
Objections should specifically alert the trial judge of the grounds for
asserting them. For example, an objection that asserts "foundation"
is hardly specific since neither the State nor the Federal Rules of Evidence
contain a rule governing "foundation." The word "foundation"
does not appear in the Evidence Code. Clearly, "foundation"
can refer to virtually any of multiple evidentiary categories; the term
is not sufficient to identify the alleged technical deficiency of the question.
Courts have routinely rejected "foundational" objections as inadequate
to preserve error as unspecific. Instead, more precise grounds such as
"hearsay" or "lack of competence" or "irrelevant"
are necessary. If a specific relevancy, hearsay, or competency issue is
present, it should be further identified. At the same time, an appellate
court should not expect the same level of specificity in the heat of battle
as one might expect to follow reflective review of the record and laborious
legal research while one is comfortably posed at an office desk before
a computer screen and a database of evidence law.
How to Object
The perception they will "lose" objections, and thus harm themselves
before the jury by appearing to be querulous or wrong is common among
inexperienced lawyers — but seldom among veterans of trial. Objecting
often is not "bad" if it is done intelligently.
How one objects is important. It is not necessary for a lawyer to "Object!"
loudly, defiantly, arrogantly, or abrasively. A mildly expressed objection
is as effective, legally, as a forceful one. And it can be more persuasive.
"Objection!" coupled with the phrase "for the record"
can alert the jury that the lawyer is engaged in a technical act believed
to discharge a duty to the client, without quarrel.
A lawyer might even say, "Your Honor, for the record I must maintain
my objection." A conciliatory one does not compromise an objection.
A friendly approach will often lead the trial court to acknowledge that
the lawyer is doing his/her duty and no animosity exists with the bench.
This is good practice.
Conversely, the trial attorney strongly believes the judge is wrong and
may believe there is so much antipathy from the bench that demonstrations
of it will actually help the client’s case. A lawyer in this circumstance
may choose a series of forceful objections, compelling the judge to make
repeated orders overruling the objections, simply to let the jury know
how strongly the attorney feels about the position asserted. When accomplished
deftly, this approach can win over jurors and, at times, cause judges
to rethink their rulings. Every seasoned trial lawyer has seen a judge
rule on the seventh objection in a string of them differently than on
the first or second. Adhering to the position objected to originally is
wise. In fact, protecting the appellate record, the lawyer’s duty
where the subject matter is material and the lawyer believes objections
are in the client’s best interest.
As with every phase of the trial, the method of objecting deserves attention,
along with the act of objecting. To object or not? If so, how stylistically?
And what to say substantively? These are the questions.
Consider, for example, whether it is necessary to state the basis for an
objection, and how specifically the objection must be stated. As noted,
"speaking objections" or objections designed to accommodate
arguments or tip off witnesses, are improper. They also transparently
communicate counsel’s lack of confidence in the witness. Almost
uniformly, speaking objections at trial are ill-advised. Specific objections
must be made to preserve errors for appellate review. For example, a motion
in limine timely filed, but overruled at the commencement of trial, does
not preserve error on appeal. A specific objection must be made at trial
to preserve the argument.
Timeliness of Objections
A myriad of Nebraska Supreme Court rules govern the timeliness of objections.
Perhaps timeliness is an appropriate topic for separate consideration.
Simply stated, however, an objection should be made at the first opportunity
one has to object to the conduct of an opposing party, or to the introduction
of evidence deemed objectionable. Legal problems do not get better with
age, and objections do not have long shelf lives.
Effective use of the powerful word "Objection!" involves a mixed
bag of technical knowledge, professional sensitivity, and tactical judgment.
"Objection!" may be the law’s most powerful word. Trial
lawyers must use it wisely, quickly when appropriate, and do not retreat
once it is invoked.