Dealing With Speaking Objections In Trial
I. Why are we talking about speaking objections?
Trial work is messy. The instructions to high school students involved in the OBA’s mock trial program include this warning: “Unexpected obstacles in the course of a trial are the rule rather than the exception.” To be successful, trial lawyers must prepare to deal with common issues that arise in trial. Trial preparation includes anticipating possible problems, and trial practice includes dealing with problems as they occur, whether anticipated in advance or not. Speaking objections are a recurring problem in trial. We were prompted to write this article as a result of failure: failure in dealing with speaking objections at trial, and failure to effectively present our client’s cases at trial as a result of problems with speaking objections. This article is about defining and recognizing speaking objections and addressing them in various ways.
From time to time, the authors have had problems dealing with speaking objections at trial, so we asked some veteran trial lawyers about how to deal with it. Answers varied. One said, "After the second or third speaking objection, ask the judge politely, "What is this court's position on speaking objections?"" One of the authors tried that. The judge turned and pointed his finger out as his veins bulged on his forehead. "You know this court’s position on speaking objections!" he yelled . "NOW DEAL WITH IT!!!" the judge finished. The speaking objections continued. In another trial, opposing counsel was continually making speaking objections both during direct and cross examinations. The judge was asked to get involved and shut the lawyer down. The judge very clearly stated that he did not have time to explain his position on speaking objections to either of the lawyers. A request was then made to strike opposing counsel’s “testimony,” and the judge explained that the speaking objections were not testimony and instructed the questioner to move on.
Trial judges generally prefer that us trial lawyers deal with our own problems. Asking the judge to get involved is a last resort, and even then, doing so almost always ends badly. Fortunately, there are ways we can effectively deal with speaking objections which we will discuss below.
II. What is a speaking objection?
Making objections is one of the important parts of a trial lawyer’s job. Not only is a timely objection a crucial part of preserving an issue for appeal, but, properly made, an objection can keep evidence out and determine the winner and the loser. It is important for us as trial lawyers to know why, when, and how to make objections.
ELEMENTS OF AN OBJECTION
“An objection must be courteous, timely, and specific.” A proper objection includes the following three elements:
1. The lawyer addresses the court and indicates that he or she is raising an objection. “Your Honor, I object,” or, “Objection, your Honor.”
2. The lawyer specifies what he or she is objecting to, e.g., the question or testimony. “The question calls for . . .” or, “The witness . . .”
3. The lawyer specifies the legal ground for the objection, that is, the generic evidentiary doctrine the proponent is violating. “Hearsay.” “Non-responsive.” “Speculation.”
To be effective, an objection must be timely and state the specific ground of objection if the specific ground is not apparent from the context. See Okla. Stat. tit. 12 § 2104. In other words, if it is clear from the context that opposing counsel’s question calls for hearsay, it may be sufficient to stand and simply say, “Objection.” If the context is unclear, if there is no ruling, or if the court ask for the basis, to say, “Objection; hearsay.”
A problem trial lawyers encounter in discovery and at trial is the abuse or misuse of objections. A judge is generally not present at deposition, so the process may be perceived as a free-for-all. At trial, if our opponent believes or senses that the judge may not get involved in some respect, bad behavior may ensue as well. A speaking objection is where, under the guise of making an objection, the lawyer makes argument or otherwise makes statements not based on the rules of evidence. At trial, our opponent may sometimes try to use speaking objections to interrupt questioning, distract the factfinder, make argument, or even coach the witness. This tactic often takes the following form: the lawyer says “Objection” followed by a long tirade about the question, the questioner, any part of the lawsuit, or even a personal opinion. Although such actions are unprofessional and an inappropriate use of objecting, in the heat of the battle it can be difficult to deal with the problem unless we recognize what is happening and know what to do about it.
Speaking objections can occur both during direct and cross examination. Examples are as follows:
Question: You went to the strip club in July?
Counsel: Objection. If you recall.
Answer: I don’t recall.
Question: You went to the strip club at least three times in July?
Counsel: Objection. Don’t guess.
Answer: I’d only be guessing and I’m not going to do that.
Question: You went to the strip club at least once in July?
Counsel: Objection, the witness can answer the question if he remembers how many times he went to the strip club and in what months.
Answer: I don’t remember how many times I went to the strip club in any given month.
Question: What, if any, payments did you make on the construction loan during July?
Counsel: Objection. The evidence does not support that the plaintiff made any payments on the construction loan and this testimony should not be allowed.
Question: How many times did you visit your daughter at the hospital during June?
Counsel: Objection. This party does not tell the truth and the court should not believe his testimony.
Question: What relief are you requesting from the court in this case?
Counsel: Objection. This dispute is all her fault and since she caused this mess she shouldn’t be entitled to any relief. The defendant is the party that has been wronged, not this greedy plaintiff. Also, the question calls for a narrative statement and should be stricken.
For further reading, trial lawyer Eric Guster wrote an excellent article about what speaking objections are and what’s wrong with them in his commentary to the George Zimmerman trial. Guster, E. (2013, July 2). George Zimmerman Trial: What Is A Speaking Objection? http://newsone.com/2625255/george-zimmerman-tria-speaking-objection/.
III. What do the rules say?
Not much. Some states and courts have rules and statutes that provide that an objection made in a deposition or at trial must be made specifically and concisely rather than in an argumentative or suggestive manner. The Oklahoma Evidence Code implies this to a degree at Okla. Stat. tit. 12 § 2104. Various local and “chamber” rules also have limits on objections in discovery or at trial. Federal Judge Claire Eagan’s Trial Rules require,
When you object in the presence of the jury, make your objection short and to the point. Do not argue the objection in the presence of the jury, and do not argue with the ruling of the Court in the presence of the jury. Do not make motions (e.g., motion for mistrial) in the presence of the jury. Bench conferences should be kept to a minimum.
There are other local rules and opinions dealing with speaking objections in a limited context, such as at deposition. See, e.g., Part A of Rule CV 20.5 of Rules for the District Court, Tulsa County, Oklahoma; Damaj v. Farmers Ins. Co., Inc., 164 F.R.D. 559 (1995). More problems may be encountered when a court does not have a specific local rule or when the trial judge is lax about enforcing the rules.
Even though the rules are often not as specific as we might like, virtually all trial lawyers know that speaking objections are improper, because, rather than being founded in evidence, speaking objections truly are improper argument or unauthorized communication with the witness or the jury. As speaking objections characteristically consist of strategically-made, impermissible arguments, opinions, or editorial comments, they are clearly distinguishable from legitimate objections that simply state legal grounds for the preclusion of evidence. Where an objection truly requires more than a simple statement of such legal grounds, experienced trial lawyers know they need to seek a sidebar conference or to ask the court to excuse the jury so that more thorough arguments can be made.
IV. What can we do about speaking objections?
There is not a single perfect solution. Obviously, trial lawyers must know the rules of evidence so as to recognize when an objection truly is appropriate by either side. Further, counsel should familiarize him or her self with local and chamber rules about courtroom and trial conduct. Non-binding authority such as that cited in this article, including Damaj, supra, and articles such as Eric Guster’s may be persuasive to a trial judge in the context of a pretrial motion or sidebar conference, so it may be helpful to prepare and carry to every trial a “pocket brief” or memo on the issue of speaking objections. As every case is different, we must always be aware and listening to what is happening in order to make the best possible decision about which of the below tactics to employ in any given moment.
Where trial is approaching in a case where speaking objections were a problem in depositions, a pretrial motion may be the first appropriate way to bring the issue before the court, as there will be a historical basis for the motion in the deposition transcripts. The relief requested in such a motion may include a proposed order that the objecting lawyer says, "I object,” but nothing more until the witness is allowed to leave the room, whereupon the objecting lawyer may state whatever he/she wants for as long as needed. When the objection is complete, the witness may return. A lawyer who will not agree to this should be required to explain to the judge why the witnesses need to hear (and be coached by) the speaking objections. The judge may take such a motion under advisement or even overrule the motion at the pretrial stage, but the effect of bringing the issue to the judge’s attention before the trial even starts can be powerful and make us more persuasive when addressing a speaking objection problem once trial is underway.
When a lawyer exceeds simply making an objection and moves into argument, one may interrupt the lawyer to object to the nature of the speaking objection. In so doing, rather than refer to it as a “speaking objection,” be as specific as possible: ‘argument,’ ‘improper commentary on the evidence,’ ‘editorial comment,’ ‘expression of opinion,’ or ‘coaching’. To use and modify a previous example:
Question: What, if any, payments did you make on the construction loan during July?
Counsel: Objection. The evidence does not support that . . .
Questioner: Objection. Counsel is making improper argument.
Or, Objection. Improper commentary on the evidence.
If a pattern develops, or where there has been more than one speaking objection during the trial, the next approach may be to request a sidebar and there identify and object on the record to the speaking objections that have already been made, with an objection to further speaking objections.
The questioner may also “loop” off the speaking objection. “Objection, he was a good parent so this is irrelevant.” Loop: “As a good parent, you smoked crack every day?” “As a good parent, you sold prescription pills to your child’s classmates?” “As a good parent, you consumed sleeping pills and alcohol together?” We must be aware and listening to be able to loop words from a speaking objection to the witness: “Your lawyer said you are a good parent when you sold drugs to your child’s classmates?” “Your lawyer coached you to say you are a good parent?” Finally, a motion to strike the statements of counsel may bring the issue to the judge’s attention. “Your honor, I move to strike counsel’s statement as it was not a proper objection; rather, it was improper commentary and coaching of the witness.” The next question may also begin with, “The jury needs to hear from you, Madam Witness, and not from Attorney X -- so please answer, . . ."
If, after utilizing the techniques mentioned above, opposing counsel continues to make speaking objections and the judge continues to allow them, and your case is being impacted negatively, the final, and most aggressive step is to “fight fire with fire.” One may choose to reveal the lack of an evidentiary basis for an objection with the following, "Would counsel please state the rule upon which he bases his objection?” or turning to the lawyer and asking, “What is the evidentiary basis for objecting?” An opponent whose trial strategy involves making lengthy speaking objections will likely during his or her examination provide ample opportunities for speaking objections and argument for your case that rival or exceed those made by him or her. Remain respectful to the court and to your opponent, but protect your client’s interests. Often the judge will realize what is happening and level the playing field by instructing both lawyers to refrain from making speaking objections. Many have said it before: as trial lawyers, our credibility is everything in the courtroom. Often, we know in advance when we may have a problem with our opponent simply because of his or her reputation or the way he or she acted in depositions. Whether we are in trial in a courtroom where we practice every week or in a jurisdiction to which we vow to never return, we must anticipate and appropriately address problems like speaking objections. The sooner we can recognize the problem and bring it to to the court’s attention, the more opportunity we may have to use the tools discussed above to bring it to a halt. “If you bite and devour each other, watch out or you will be destroyed by each other.” We should continue to strive to treat one another with dignity and professionalism as we advocate for our respective clients.
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