To Object or Not Object That is the Question

Posted on June 13, 2022 in Uncategorized


By Steven B. Epstein

"Objection!" No other single word uttered during a trial can immediately capture the courtroom's attention. The next words uttered by both parties (if given that chance) will result in a ruling from the court. There will be a loser and there will be a winner. That contest is a moment bursting with dramatic tension, and drama demands attention … and the jury's attention is paramount. Advocates need to seize those opportunities to distinguish themselves, maintain control over the narrative, and further the client's story. Understanding that trial practice is ultimately a contest of credibility, objections at once rely upon each advocate's earned credibility and help build or diminish credibility going forward. The gravity of these small evidentiary skirmishes lurking behind every question is too often lost on less experienced trial counsel. Just because one can make a legitimate objection does not mean one should.

What makes objections so difficult is that in a split second the advocate must engage in a 3-step decision process: 1. Is the question improper? 2. What is the basis of the objection? and 3. Is the objection cost-beneficial? For an experienced attorney, this process happens instantaneously and almost unconsciously. For a new attorney, it can be overwhelming.

The last step is often the most important and most overlooked: is it cost-beneficial to object? The first level of cost-benefit analysis, as discussed above, is the benefit of winning versus the cost of losing. But additional costs exist. Will the objection appear disruptive to the jury? Will the objection draw additional attention to an unfavorable fact? Will the objection awaken Karleigh Miller, Cohen Law Offices, Eau Claire, he jury members who are seemingly disinterested in opposing counsel's presentation?

There are also considerations that may limit the benefit of a successful objection. Does the fact at issue bear on the case theory? Or to put it more bluntly, does defense counsel care? It is a balancing test. If the improper testimony does not hurt the case, then the value of winning is easily outweighed by the danger of (for example) appearing disruptive. On the other hand, if the fact at issue is critical to the defense team's narrative, then the risk of appearing disruptive is easily outweighed by the benefit of success.

As much as any other aspect of a trial, evidentiary objections rely upon the advocate's credibility. That credibility begins being formed the first time lawyers put their names on the record or sign a court document. By protecting and building their credibility in the eyes of the bench and jury box, lawyers earn the benefit of the doubt in the inevitable close calls that arise during trial. By anticipating evidentiary battles, paying close attention to the jury and judge at all times, and never losing focus on the precise case theory and factual narrative, a lawyer can wield objections like a master.

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