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.
Tactical Objections
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.
Technical Objections
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.
Effective Objections
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.