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Know Trial Objections Cold

185468074Making objections is a key skill for every trial attorney. The more you try cases, the more rote they become. But if you’re relatively new to the courtroom, or it’s been a while since you’ve been there, here’s a system for memorizing possible objections and having them at the tip of your tongue at trial.

This system breaks down the common objections into easy-to-remember words and phrases that you should be able to easily recall during the heat of battle:

  1. Incompetent. Is the witness competent to testify at all? Is the witness competent to testify on a particular issue? For example, does the question ask a lay witness for expert testimony, or does the witness lack personal knowledge of the facts?

  2. Irrelevant. Does the question call for irrelevant evidence? Evidence must be relevant to be admissible.

  3. Hearsay. Does the question ask for hearsay?

  4. No foundation. Is the foundation incomplete or missing? The most common foundational issues involve authenticating writings, establishing identity, showing personal knowledge, the various requirements for introducing opinion evidence, and relevance.

  5. Privileged. Does the question ask for privileged information?

  6. Form of question incorrect. Is the form of the question incorrect? The question may, e.g., be compound, call for a narrative answer, or call for speculation.

  7. Evid C §352. Does the question call for evidence that should be excluded under the broad exclusionary rules of Evid C §352, i.e., will its probative value be substantially outweighed by the probability that its admission will take too much time or create “substantial danger of undue prejudice, of confusing the issues, or of misleading the jury”?

  8. Other objections. Is there some other reason for objecting that does not fall in the categories above, e.g., improper impeachment, improper rehabilitation?

Every objection must be stated to clearly specify its ground. Evid C §353(a). Don’t limit objections to one ground if several grounds are warranted, but be sure they are all warranted and distinctly specified—nobody likes to hear everything but the kitchen sink thrown in!

Also, clearly identify the specific evidence being challenged. This gives opposing counsel an opportunity to meet the objection, and it frames the issue on which the trial judge will make a ruling. For example, in People v Nugent (1971) 18 CA3d 911, 917, the defendant objected at trial only that the question called for a narrative answer and depended on the witness’s ability to remember the victim’s testimony. Consequently, counsel couldn’t argue on appeal that the question called for a conclusion.

Each of these objections is covered in detail in CEB’s California Trial Objections, an invaluable companion for every trial attorney.

Related CEB blog posts:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

14 replies on “Know Trial Objections Cold”

Excellent summary, and let me add the caveat: MOST OBJECTIONS SHOULD NOT BE MADE unless it’s critical to protecting your record or will ACTUALLY keep SIGNIFICANT material out of the trial to your advantage. We all learn to make objections with lightning speed, but the great courtroom lawyers learn when NOT to.

Please read ‘The 10 Commandments of Objections’ for a fuller discussion of how not to alienate your jurors with objections that are legally correct but strategically pointless or even harmful:

Best single book in my trial library: James Publishing’s “California Objections”: an exhaustive treatise on every possible objection, with examples (making and opposing) and caselaw for each. Definitely a must-have.

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