Goal-Oriented Objections

militarydefenselawyers051Rethink how you approach objections. As James McElhaney explains, “[O]ne of the problems with modern legal education [is that w]ithout even trying, we somehow train lawyers to think they’re evidence cops – people who are supposed to guard against improper information beign admitted in trial. But that’s not our job. A trial is not an evidence exam . . . The point of objecting is to shape the case.” James W. McElhaney,
Persuasive Objections
, A.B.A. J., Jan. 1999, at 70.

  • It turns out, not surprisingly, that jurors don’t like it when lawyers object: “[J]urors don’t like testimony to be interrupted by multiple objections. They want to hear both sides of the story, and a lawyer who repeatedly objects can leave the jury with the impression that his client has something to hide.” Margaret Graham Tebo,
    Duty Calls
    , A.B.A. J., Apr. 2005, at 35, 37.
  • Rather, your presumption should be, “I am not going to object.” That forces you to think through why you are making an objection and whether you are going to be persuasive when you make that objection.
  • Here is a very simple system and is really all you need to remember at the counsel’s table: don’t make the objection unless: 1) you will likely win, AND 2) you have a good reason for making the objection.
  • That system is a simplified version of one advanced by Professor David Schlueter. Here is his system. Object when:

    The objection is plausible

      1. The objection is plausible, AND
      2. The judge will probably sustain the objection, AND

    You have a strategic or tactical reason

    1. You have a strategic or tactical reason for making the objection. a. Strategic objectives include: (1) Excludes evidence that will rebut my theory of the case. (2) Excludes evidence that might significantly corroborate the opponent’s case. (3) Forces the opponent to rely on less persuasive evidence. (4) Note that you should be able to spot these objectives early and so can litigate the issue with a
      motion in limine
      . You should know what hearsay is going to hurt and which doesn’t matter. You should know what evidence cannot be authenticated. Take care of that before trial. b. Tactical objectives include: (1) Break the flow of a great exam. (2) Fluster another attorney. (3) Fluster a witness. (4) Give your witness time to think. (5) Give yourself time to think. (6) Note that it is not unethical to do this. Look back to Prof. Schlueter’s first two points. If you made the objection, then the objection is plausible and you will likely win. Therefore, the objection you are making is not frivolous or baseless under AR 27-26, Rule 3.1 – in fact, you will likely
      the objection. And, you are not making the objection
      for the purpose of harassing or maliciously injuring someone. You are taking the action primarily to exclude improper evidence or questioning.