|Oregon State Bar Bulletin AUGUST/SEPTEMBER 2008|
In Jonathan Harr’s award-winning legal thriller, A Civil Action, the legendary Boston trial attorney Jerome Facher admonishes his Harvard law students on their duty as litigators: "You’re expected to make objections. Keep evidence out if you can. If you fall asleep at the counsel table, the first thing you say when you wake up is, ‘I object!’"1
When I was in law school, my trial advocacy professor gave the same advice: "Object early, object often." Making a record for appeal, he told us again and again, was paramount; failing to preserve the issue at trial was to waive it forever after.
With all deference to my trial ad professor and the redoubtable Mr. Facher, I have come through the experience of my own civil litigation practice to hold a fundamentally different view. While the ability to object is one of the most important weapons in the trial attorney’s arsenal, it is one that should be used sparingly — perhaps even reluctantly.
Clearly, there are times when raising an objection at trial is not just advisable but mandatory. No one would dispute that an attorney who neglects to keep out clearly inadmissible evidence that prejudices her or his client’s case has committed malpractice.
But some attorneys advocate the use of objections not just substantively but also strategically, as a tool to disrupt the flow of an opponent’s case and to throw her or him off stride. This, I submit, is a mistake, at least in the context of a civil jury trial. Whatever tactical advantage might arguably be gained by making oneself an irritant to opposing counsel is almost certainly lost by the corresponding degree of annoyance building in the jury, whose members will not fail to notice who it is who is slowing their receipt of evidence to a crawl — or that most of your ostentatious interruptions are being swatted away by the judge like so many pesky houseflies. As Ted Runstein, who has been trying cases in Oregon since 1966 and is listed among our "Best Lawyers" in Portland Monthly magazine observes, "Unnecessary objections offend the jury and make them think you are trying to hide something." To state the blindingly obvious, people generally don’t hide things unless they have things to hide, a point that will not be lost on the group of six or 12 charged with deciding your case.
Julie Elkins, one of the senior litigators with Zipse, Elkins & Mitchell, who has been in the game since 1986, recalls a time when she was asked to watch one of her colleagues (whom she knew to be a smart and talented attorney) in trial to help determine why he appeared to have hit a streak of bad luck with juries recently. It was not long before she was able to tell him what was wrong: "You’re objecting too much." But, her colleague protested, his objections were well-taken and had for the most part been sustained. That didn’t matter, Elkins explained: "The jury thinks you’re trying to hide something." Her colleague resolved at that point to be much more circumspect in objecting, and his trial results improved dramatically.
Interestingly, an informal poll of judges in Multnomah County indicates a strong consensus on this point. The experience of the Hon. Dale Koch has been: "I find multiple objections to be more irritating than effective, and my impression is that jurors share that opinion. An objection should be raised only if it is really essential, not in an attempt to throw the other attorney off stride."
His colleague Judge Steven Todd adds, "The fewer objections the better. The best lawyers rarely object during trial." Instead, they deal with evidence matters prior to trial through motions in limine.
Judge Michael Marcus agrees: "I would argue that every objection is likely to cost counsel something with the jury, so that a rational approach would avoid the cost when possible and incur it sparingly when it is sufficiently likely to be necessary to produce a net gain."
Objecting also risks underscoring the importance of evidence that might better be allowed to pass without immediate comment. As litigation veteran K. William Gibson, who has been a full-time arbitrator for about seven years, notes, "If you object a lot, jurors get the sense that you’re trying to keep the ‘good stuff’ from them." Of course, like most rules, this one has its exceptions. Gibson winces as he recalls a long-ago trial in Washington County in which it was clear that the jury did not like his client and was enjoying the fact that his opponent was constantly peppering him with objections, as by doing so he was preventing "the dark side" from winning. But such cases are rare. Much more often than not, the way to guarantee that your jurors pay close attention to a matter of evidence is to passionately try to prevent them from hearing it. As Multnomah County Circuit Court Judge Marcus advises, "It is the objection presented with vehement outrage that most often backfires on the proponent."
At times you will see a perfectly sustainable objection, yet the wiser choice would be to bite your tongue. It has been my observation, for example, that quite often when my opponents are off and running with their cases, the rule against leading one’s own witnesses promptly goes out the window. It is clearly improper to ask leading questions of one’s own client or a non-adverse witness, yet I rarely object when this happens (which is frequently). Why? Well, for one thing, letting your opponent slide on this rule is a way to keep things moving efficiently if the substance of the leading questions is not harmful to your case. As Multnomah County Judge Janice Wilson suggests, "an attorney should object only when what is going on is 1) improper and 2) hurting the objector’s case." She is echoed by Judge Keith Meisenheimer, also of Multnomah County, who counsels, "I believe the best trial attorneys object rarely and only when their client’s case is being adversely affected." Judge Jerry Hodson is of like mind: "I personally think that you should only object if you believe that the objectionable evidence or argument is likely to affect the outcome."
In other words, if it ain’t broken, don’t fix it. Once my opponent starts "testifying" to significant information that I suspect she or he would not be able to obtain just as readily through properly formed, open-ended questions, I will often object, and the objection is almost always sustained. To the best of my recollection, I have never had a judge rule that I had waived an objection to leading questions by allowing my opponent to violate the rule temporarily.
Of more substantive importance is the fact that an attorney who leads her or his own witnesses extensively is often making a grave error that opposing counsel should not rush to correct. We as attorneys sometimes become so absorbed in our cases that we forget they are not actually "our" cases at all but rather our clients’. It is their stories the jury is supposed to hear, not ours. The jurors understand that we are advocates, that it is our role to present the evidence in the light most favorable to our clients. But if all of the important information comes from us, and our clients and their supporting witnesses are reduced to having little more to say than "yes … yes … no … yes," etc., we have robbed them of the opportunity to make a vital connection with the jury by telling their stories for themselves.
When I was a young lawyer, a mentor told me something that has stuck in my mind ever since: a trial lawyer should be essentially invisible. An attorney who believes that she or he is dazzling the jury with pizzazz is almost certainly losing. Attorney Gerry Spence was surely on to something when he observed, "Lawyers don’t win cases. Their opponents lose them."2
Sid Brockley, who has been in the Oregon litigation arena as an attorney, arbitrator or mediator since 1966, finds the concern about getting objections on the record for appeal dubious. "All that stuff about preserving the record — I never really understood that." As he correctly notes, only a small minority of civil cases are ever appealed, and of those only a small number are reversed. While Brockley might be more likely to object to leading questions in a case tried to a judge, his general rule for civil cases before juries is, "Don’t ever object."
Ted Runstein offers a memorable gauge for when an objection is needed: the judge’s eyebrows. Early in his practice, he saw a judge visibly react to his opponent’s question and look expectantly at him with his brow furrowed. "Objection!" Runstein blurted out. "On what basis?" the judge replied. Having, in fact, no idea, he hesitatingly squeaked out, "Foundation?" To his relief and bemusement, the objection was sustained.
A corollary to the admonition that one should not object unless it is truly necessary is that an objection is not necessary if one is not confident that it is well-founded. In my experience, the bulk of objections heard at trial relate to relevancy and hearsay. While I’ve noticed that attorneys generally have a competent grasp of the first concept, I’ve heard more misguided objections on hearsay grounds than all other grounds combined. Never mind the two dozen exceptions to the hearsay rule in the Federal Rules of Evidence or the similar number in the Oregon Evidence Code — quite often, it is difficult for people to keep straight what hearsay even is.
As an illustration, when I was a young lawyer, I was questioning an eyewitness to a physical altercation between two people in a videotaped perpetuation deposition when I asked him what he had heard when the initial confrontation began. The witness replied, "I heard shouting," at which point opposing counsel cried, "Objection! Hearsay!" The problem with that objection, of course, was that there was in fact no third-party statement being offered for its own truth at all. In fairness to my opponent, who was even younger and less experienced than I was at the time, I responded with my own rookie mistake: rather than let the objection pass and be ruled on by the judge later, I told the lawyer he was wrong, which led to our getting into a protracted and silly argument on the record, a moment that I look back on with some embarrassment. But the point remains: To make an ill-thought-out objection in the presence of a jury is to risk not only amplifying the importance of damaging evidence in the jurors’ minds but also opening yourself up to the humiliation of having the judge explain to all present why your understanding of the law is incorrect.
Just as in matters of social etiquette, some thoughts are better left unspoken, in the context of a civil jury trial, the most effective use of objections is sometimes not to make them at all.
1. Harr, Jonathan. A Civil Action. Vintage, 1995.
2. Spence, Gerry. Trial by Fire. Harper Perennial,1996
ABOUT THE AUTHOR
Eric E. Meyer is an attorney with the Law Offices of Robert S. Dorband specializing in the defense of civil lawsuits.
©2008 Eric E. Meyer