McElhaney on Litigation

Don’t be an Evidence Cop

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Look at this. it’s disgusting,” said Andy Lundquist, a corporate litigator who occasionally gets to court. “These new lawyers don’t know any evidence, and judges are letting them get away with murder.”

“What do you have there?” said Angus. “It sounds like you’ve been having a hard time.”

“Hard time is an understatement,” said Lundquist. “Here are 20 pages of transcript from a case I defended last month. Lawyer for the plaintiff asked so many improper questions, I had to object all the time. I thought this would be a good handout for the talk I’m giving to Professor Warbler’s students at the law school next week.

Angus skimmed through the whole 20 pages and said, “There sure are a lot of objections here.”

“That’s because there were so many improper questions,” said Lundquist. “I’m going to use this to show the students how vigilant a trial lawyer has to be in the face of incompetence. What do you think?”

“Well, I agree that you have to spot every possible objection,” said Angus. “But that doesn’t mean you should make all of them.”

“What are you talking about?” said Lundquist. “That’s what the rules of evidence are for—making objections.”

“That’s one of the problems with modern legal education,” said Angus. “Without even trying, we somehow train lawyers to think they’re evidence cops—people who are supposed to guard against improper information being admitted in trial. But that’s not our job. A trial is not an evidence exam. You don’t get extra points for making every possible objection.

“The point of objecting is to shape the case—to keep out evidence that’s going to damage your side. You don’t want to object just to show you can, because you might wind up keeping out evidence that actually helps you, or you close a door to something that may have done your opponent serious damage.

“And to be honest with you,” said Angus, “of all the objections on those 20 pages of transcript, I didn’t see any that looked really important. Most of them went to the form of the question, asked for some harmless hearsay or were innocuous asides at the ragged edge of relevance.

“Maybe you’d be better off giving the students a list of all the questions and seeing if they can spot which ones were improper—then ask them if they think the opponent ought to object.”

Andy thought about it. “I’m afraid you’re right,” he said. “And I’ll probably learn more than they will. Any other suggestions?”

“A few,” said Angus. “First, if it’s worth making an objection, you usually want it sustained. So your objections should be persuasive to convince the judge you’re right. But at the same time, you don’t want to ‘de-persuade’ the jury.”

“What do you mean?” said Andy.

“The jurors know you’re an advocate,” said Angus. “They know you’re paid to be there and do the best job you can for your client. Even so, they resent objections. They know you’re trying to keep something out of evidence, and you’re doing it right in front of their faces. Then you request a bench conference, which makes it even worse. The bench conference signals the jurors that you don’t want to risk them hearing some awful thing that would change their minds about your entire case.

“Of course, you should try to minimize that problem by using motions in limine so the jurors never hear the objection or any of the arguments concerning it.

“Still, you can’t anticipate every problem. And even if you could, the judge is not going to take the time to handle every possible contingency in advance. So you’re stuck having to make some objections at trial. But they cost so much in credibility with both the judge and the jury that you ought to make as few as possible.”

Don’t Charge Every Red Flag

Everyone could tell that Angus was doing another one of his famous lists, and I already had my legal pad out:

The more objections you make, the less persuasive they are.

The second rule fits right in with that idea:

Don’t rise to the bait.

Some words can trigger an objection before you give it any conscious thought:

Q: And again …

Objection. Asked and answered.

Q: What was she thinking of?

Objection. Calls for speculation about someone else’s thoughts.

Q: What did he say?

Objection. Hearsay.

Q: Would you tell us in your own words …

Objection. Calls for a narrative.

Q: Did you …

Objection. Leading.

Any of those objections might cut off improper, even dangerous, material. But, when you object based not on reason and context but because the other lawyer used some red-flag word, you are probably objecting too much.

Only object when you’re right.

There is nothing wrong with making an objection when your real purpose is to throw a monkey wrench into your opponent’s direct or cross-examination. But be right when you object. Specious objections are so obvious that even the jury knows you are playing games or you don’t know the rules or—even worse—you don’t understand them.

Rise when you object.

This used to be so obvious it didn’t need to be said. No longer. Some judges don’t enforce the kind of courtroom decorum they expect, but they still resent it when you violate their unspoken rules.

If you want an objection to be sustained, stand up and say, “Objection, your honor.” “Objection, judge” sounds cheeky anywhere but in Chicago, and staying in your seat and growling out a bored “Object” begs for a rude “Overruled” everywhere.

If you are instantly overruled, ask to be heard.

If you say, “Objection,” and the judge instantly says, “Overruled,” you’ve got to state the basis for your objection if you want to make your record. If you don’t want to make your record when your objection is overruled, you probably shouldn’t have made the objection.

Of course, when you are instantly overruled, you are in the difficult position of trying to talk a judge into changing his or her mind without losing face—and face is important to a judge. What you say has to excuse the ruling without making it look like you’re patronizing or flattering the judge:

“Your honor, may I be heard? This evidence looks harmless, but it’s actually highly improper.”

Something like that will buy you some time to give a strong reason for your objection.

If you are immediately sustained, shut up.

You don’t need to give a reason for your objection when the judge rules in your favor—any reason that would support the judge’s ruling is available on appeal. But if you give any reason other than the one the judge was thinking of, you run the risk of convincing the judge that you’ve waived the objection he or she thought you made.

Besides, judges just don’t like it when you keep on talk­ing after they have ruled in your favor.

Don’t object by asking the judge a question.

“Objection, your honor—isn’t this hearsay?” is resented. Lots of judges are tempted to say, “You’ve got to make your own objections, counsel. I can’t do them for you.” It can get worse.

“Objection, your honor—how is this relevant?” might be answered by a judge who does a beautiful job of explaining what you would rather not hear: “Since you ask, counsel, it shows how your witness has a powerful motive for lying about the plaintiff.”

Show the judge why the evidence is unfair.

Injustice—unfairness—is the most powerful persuader there is. And judges want to do what is right, to avoid being unfair. So one of the most effective ways to object is to show the judge how this evidence is going to pour poison in the jury’s ears and be used the wrong way.

Argue to the judge not with the judge.

Arguing with the judge forces the judge to defend the other side—almost guaranteeing an adverse ruling.

You may not want your objection sustained.

John L. Hill Jr., when he was with Locke, Liddell & Sapp in Houston, was defending the Dallas Morning News and United Features Syndicate in their dispute with the Dallas Times Herald over some cartoons that had been switched from one newspaper to the other.

One of Hill’s witnesses was the late Jerry Bittle, the cartoonist who drew the cartoon character Geech. Hill had completed his redirect when he said to Jerry, “We’re about finished, Mr. Bittle. But before you go, I think the jury would love it if you could draw us a Geech.”

Hill was handing a marker to Bittle when the plaintiff’s counsel said, “Objection, your honor. This has nothing to do with any of the issues in the case.”

Hill seized the opportunity to be crestfallen. “Your honor, I’m afraid counsel for the plaintiff is right. It has nothing to do with this dispute. I withdraw my request.”

Bittle was out of the courtroom before the other lawyer could think to withdraw his objection. There was no way the jury was going to forgive that lawyer for taking away a once-in-a-lifetime opportunity.


McElhaney at his best

The ABA Journal is occasionally reprinting some of James McElhaney’s most popular columns from past years. This article originally appeared in the Journal’s January 1999 issue under the headline “Persuasive Objections.”

James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Dis­tinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

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