No great art is achieved without sacrifice. The best actors, writers and painters labour over their materials, honing and refining them day after day, until they seem “natural” or “spontaneous”. The work of the artist is the work of the trial lawyer. Good advocacy is acquired when the lawyer has the persistence, the patience and the humility to practice and re-practice until the skill she exhibits at trial seems as if it were naturally imparted.
Nothing is more likely to demonstrate the artistry of a trial lawyer than a timely, strategic objection. By contrast, ill-conceived, or intemperate, or irrational objections are dramatic signs of a lawyer’s weakness, or worse: Competent trial lawyers learn over time that effective objections require, above all else, a keen knowledge and understanding of substantive as well as procedural law. The lawyer can never stop studying and reading and absorbing the law and its processes. In this context, I imagine the law as a large, ever-changing backdrop. The more I know of it, the more at ease I become working with
it, and the more likely I am to develop what others might perceive to be “an ear for error” or what the judge might consider a helpful or, even better, a valuable interjection, steering the court away from error.
This is not to say that knowledge of the law is all the advocate needs to become skillful in the art of the objection. No. There will be times in a trial when an objection may have merit in law but be harmful tactically. In that event, despite the likely success of the objection, it is a better strategy to withhold it.
When to use or not to use an objection is difficult to define. There are so many subtle nuances to a trial. With that caveat in mind, I offer the following observations gleaned from my own experiences. I resist the temptation to object to every objectionable matter. I do not want the judge to view me as obstinate or obstructive. But I also do not want him to think I am incompetent. For me the key is to make a quick assessment of the objection’s impact upon the trier of fact. If I consider that my objections, even if successful, will be seen as part of the overall scheme of hiding the truth from the judge or jury, I do not raise it.
The Impact of Objections on the Trier
Lawyers are statutorily barred from serving jury duty. This is unfortunate, because trial lawyers need to realize how jurors perceive them. My sense is that objections by trial lawyers are often viewed by jurors as irksome and condescending, an indication that the lawyer does not trust the ability of the jury members to determine for themselves what is truly relevant. I am convinced, too, that jurors tend to regard objections to theadmissibility of evidence as attempts to keep certain facts from them because to let them
in on the “secret” would hurt the cause the lawyer is paid to protect.
We spend years, of course, developing an understanding of the law of evidence. Even then, some aspects of it – for instance, similar fact evidence – seem somehow stubbornly elusive. So it is in a way empowering to be able to rise and object that some fact or document proposed as evidence is “irrelevant” or “immaterial” or otherwise caught by an exclusionary rule. For jurors, though, this kind of language is obscure or elitist and often
interpreted as a ruse to block the introduction of important but damaging evidence.
If there is even a remote possibility that members of the jury might perceive an objection in this way, then the first tenet of good advocacy before a jury is to ask: “Is the objection necessary?”. And, second, will the evidence, even if admitted, do any substantial harm to my theory of the case? If either of these questions leaves you in any reasonable doubt, I think you should withhold the objection on the basis that it may do more harm than good.
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