A Lawyer's Guide to Trial Objections

hello fellow members of the Illinois State Bar Association my name is elder Ken I'm a trial lawyer managing partner with the law firm of Meera Bali Durkin and Rudin here in Chicago and today I have the pleasure of talking to you about trial objections before I get into the comments I have about trial objections the very first thing I want to share with you is something that I have found essential in my years of practice everyone who wants to be a trial lawyer needs to purchase one of these illinois rules of evidence pocket books from our isba they're available on the website or they're available right at the chicago regional office for purchase back in 2010 our Illinois Supreme Court codified the common law into this rules of evidence and you need to do more than just purchase it you need to read it because when you're making your objections at trial you don't have times to pull out the pocketbook and look for a objection it's got to be second nature to you now let's talk about trial objections the first item I want to cover about trial objections is when trial lawyers should consider making an objection it's very important the very important part of considering whether to object or not has a number of factors first and foremost is how will the jury react to my objection we must always remember that a trial is a is like a theatre performance you're the director the producer and a participant in that performance your jury is the audience so it's important and we know that there are studies that say the jurors don't like too many objections they think it breaks up the story they think sometimes that you're trying to hide something but every once in a while it's necessary to make these objections and when you do so you have to do them with some scrutiny the second part of the consideration of a trial lawyer in making an objection is how will my objecting affect the case well if it doesn't affect your case then it's a waste of time to object if nothing's going to happen good or bad let the question even if objectionable be answered the third and a very important part of consideration for making the objection is are you protecting your record for appeal all trial lawyers know that win or lose there's always the possibility of an appeal and so if the question asked or the answer may be the type of an answer or question that could create air and an error that might result in a reversal on appeal it's important to protect that record and object because if you don't object you have waived the air in that question and answer another issue to consider when making your objection is your witness and I call it a tactic or a tactical reason to help protect your witness sometimes you might feel your opposing counsel is just taking your witness into the corner and pummeling like Sonny Liston on a boxer you need to object just to break up the the staccato of that question-and-answer program throw your witness a lifeline and make an objection come up with some type of an objection and that pretty much covers the reasons that you need to consider on making an objection but they have to be second nature to you secondly we must consider as trial lawyers how and when to make your objection the when part is the easiest part because you need to make your objection as soon as possible as soon as the opposing counsel who asks a question you find objectionable finishes his question you need to jump in much like a game show and hit the the button and make your objection before the witness answers now some witnesses do answer real quickly because they know what they want to say and under those circumstances it's very important that if the judge sustains your objection you ask the court to please strike the witness's answer and instruct the jury to disregard the answer otherwise and you can't unring the bell they've heard it the judge may instruct them not to answer but the fact that you asked the court and it's asked the court to do so lets them know it's an important issue and that the other lawyer made an error that objection should be timely when the how how do you make your objections well again as we stated at the outset when you are on trial you are in fact on stage so it's very important that you always maintain professionalism you be courteous to the witness to your opposing counsel to the court and most importantly to the jury so courtesy and professional are of paramount importance you must also give the court the reason for the objection the legal reason the foundation free objection you can't just say objection and then if it's sustained without saying its form foundation hearsay whatever we're going to get into some of the common objections in a in a minute or so then the appellate court is left to a guessing game as to what your objection was for and if they don't have season it's going to be disregarded and that objection is for naught so it's important that you give the grounds for the objection you do it in a courteous and professional manner and if your objection is sustained just show courtesy thank you your honor and move on if your objection is overruled the worst thing you can do is show that you're upset with the court slam your hand on the desk throw papers around or do something like a petulant child again the jury is watching you at all times and so it's important that they know that you know what you're doing and there are ways and if you watch our CLE online at some other time on trial objections you'll find there are ways that you can get across to a jury that the judge is meeting out justice unfairly another thing to consider as to when and how to make objections is consider the experience of your opponent it's very important there were times when I was younger lawyer without this gray or now white hair that I'd make objections and there be an older more seasoned attorney that would be you know objecting to my questions and I would use that to my advantage and let the juror think that the jury think that he was picking on me now that I'm on the other side of that fence it's important that if you need to make the objections and your opposition is possibly less experienced and having some difficulty do it in a manner that is showing the jury that you are attempting to mentor or educate your opponent not bully him the studies show that most of the time a jury determines who they think should win following an opening statement so if you think the jury was on your side after your opening you don't want to do something to lose them especially something that's that's inappropriate now let's talk about what some of the common objections would be that most trial lawyers would run into in any type of case doesn't matter if it a tort case or a contract case or whatever and again they're all found in the Illinois rules of evidence the pocketbook that you need I'll break them down into two facets the first one is procedural objections now again assume that everyone in that jury has watched a law show on TV or gone to a movie where lawyers are in a courtroom or a trials going out or whatever and that's primarily the only experience they have with with the courthouse so when you're in there making your objections the procedural objections are objection form objection what's the form counsel leading sustained procedural objections are the type of objections that allow your opponent to correct himself the court will instruct the the opposing counsel if the objection sustained rephrase that question counsel gives him or her an opportunity to correct their mistake and therefore those type of objections are usually not resulting in any type of reversible error more importantly are your substantive objections those are the ones that if you miss them or let them go wave and they could result in you losing a case what are some of the typical substantive objections that you might not need to make well first of all I believe though there's already been a CLE or you may have reviewed things about pretrial objections we have things called motions in limine a motion in limine our motions that we bring before the selection of the jury with the court and argued with the court reporter and the judge rules on things that we attempt to keep out of evidence before the jury might hear it now the import of a motion in limine with respect to trial objections is this a lot of people don't know this I've had experienced attorneys forget that this is an Gordan if your motion in lemonade is is granted to keep something out that the other side might want to get in and then they approach it at the time of trial before a jury you need to object objection your honor motion in limine the judge will know what that means when you use the term motion and lemonade if you don't object even though you may have won a motion and lemonade back in the chambers you've waived it I've had a very seasoned attorney approached me recently going through a record and he had an opportunity possibly an appeal to reverse and experts testimony based upon speculation and he failed to object to the witness's testimony even though the judge had already ruled on a motion in limine and fail to do so waived that testimony and allow it to go to a jury so motions in eliminate whether you win or lose if the objection must be made at the time of trial you have other substantive issues hearsay out-of-court statements made for the proof of the matter stated those are substantive objections where if you allow witness mr. Jones what did did you see any witnesses yes I did what did they tell you now it's not a party so you're if they are going to say what somebody told them out of court it's hearsay you must object if you don't object you've waived it it's gone and that that story goes to the jury issues such as alcohol consumption our poison pills when it comes to a personal injury trial miss witness did you smell alcohol on the plaintiffs breath yes I did objection before they say yes I did and and the reason for that is the mere smelling of alcohol is not enough there must be some evidence of impairment that will probably be the basis of a motion in limine hearsay statements alcohol insurance is another topic some witness is usually a doctor even they don't know any better unless a lawyer that's calling them tells him don't mention the term insurance they said they might mention well his insurance paid it so objection insurance is another poison pill because theoretically jurors aren't supposed to know that a party may be covered by insurance the most common objection of substance that has significance in a trial today are objections for reasons of Supreme Court Rule 213 Supreme Court Rule 213 as we all know especially 213 / n 3 & paren our expert disclosures and we live in a litigation society today that circles around expert testimony whether it be liability medical whatever forensic economics there's a lot of experts that are called to testify under the disclosure doctrine parties must disclose their expert opinions in written form opposing counsel has a right to take their depositions regarding those opinions and whatever has not been disclosed either in written form or in the oral discovery deposition is subject to being barred so witness doctor gets on the witness stand and goes beyond what his disclosures you must immediately say objection 213 it shifts the burden right away to the person offering that evidence your opposing counsel to show the court where the doctor previously disclosed in either written form that opinion or in his oral discovery deposition that opinion there have been some exceptions or extensions of that limitation to allow what they refer to as a logical corollary or an extension of that opinion where 1 plus 1 must equal 2 even though he didn't say 2 in his deposition that's the only logical conclusion where 1 plus 1 will lead you so this brief summary or discussion we've had here today are the type of objections that most trial law years can expect to encounter to use at the time of trial for more information on trial objections please view our full presentation recorded during the Foundation's evidence and objections program and available in the isba online CLE archives

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Length: 16min 4sec (964 seconds)

Published: Thu Sep 08 2016