I’ve written before about making objections at trial. http//plaintifftrial lawyer tips.com/should-you-object-or-not It is not a simple subject. My inclination is to avoid making objections even when I could except when it is truly called for. We know that an objection calls attention to the subject involved so some thought about what to object to is important. On the other hand jurors have watched enough television that they expect the lawyer to object. I don’t think objections in general are a problem for jurors. However, I’ve tried cases against lawyers who object all the time and jurors really do resent those lawyers especially when it means they have to go to the jury room. The real question is what you object to and how you object.
I’ve previously written that the fact that one has the right to object doesn’t mean you should object. My general policy is that I object when (a) there is a violation of a pretrial motion in limine since if it was important enough to move on in advance of trial it is important to object to a violation of the order (b) to evidence which is inadmissible and prejudicial enough that it would be difficult to deal with it simply by opening the subject on re-examination with the witness (c) it involves personal attacks on the witness for which intervention is called for to protect the witness from abuse- Note that in some cases it is better not to intervene for abuse of a likable witness where juror anger against the other lawyer exists for doing it (d) it involves issues which require a record to be made by objecting and (e) there are other compelling reasons for objecting. Like a strike zone in baseball, you need to develop a skill of knowing when an objection should be made and lean towards avoiding objections during trial.
More important than the question of whether one should object, is the issue of how one should object A trial is a battle of depression and not logic. We create impressions by our conduct, our body language, voice and general demeanor. Anger and outrage rarely work to our advantage. Calm professional words demonstrate self-confidence and authority. When we object correctly we are perceived as simply doing our job as a lawyer. We can however create the impression that we are trying to hide something by overreacting. If we are going to object let us do so in a way that is not offensive to the judge or jury and which communicates our professional skill.
I have a friend in Nashville Tennessee, Randall L Kennard who is a gifted plaintiff’s trial lawyer and a member with me in the Inner Circle of Advocates, a national plaintiff’s trial organization. We agree about many things regarding plaintiff’s trial work. Recently he communicated with me regarding his view about objections during depositions. The subject of deposition objections and representing clients and witnesses at a deposition involves somewhat different considerations than that of trial objections. But, since our practice has become one where discovery represents the greatest portion of our work compared to trial,the subject is important.
Randy writes that defending a deposition is actually very strenuous. Here’s what he said to me:
“I used a box. It takes a lot of energy to give a beating. It takes a lot to take one as well. So, our job is very hard. It requires constant vigilance and watching the defense attorney during the deposition questioning. Pay attention to the facts of the case and what the witness has said. When the defense attorney attempts to use a compound question, with the first part being false and the second part true, you must object to form. We should not let the defense use such tactics.”
As Randy pointed out to me, “do not be hesitant to object to form if there is any doubt as to whether you should object to the question or not” during the deposition you are defending.
The subject of objection during discovery is actually an important and difficult area of practice. Defending a deposition is only one aspect. For example, when you get the rubber stamp objections to every interrogatory, do you move to compel or do you submit additional, more specific questions about the objection until you have a clear abuse demonstrated before you move? My experience is that judges do not like discovery disputes and especially those that require going over interrogatories. They really tend to be reluctant to do much about these issues. Instead of filing a motion, is there a 30(b)(6) deponent you can depose and ask the objected to interrogatories about rather than move?
And, what do you do about the defense lawyer who objects to virtually every question at the deposition and otherwise does whatever they can to obstruct your taking a deposition? You can’t get a discovery master in every case. Judges don’t want to get a phone call about two lawyers arguing about questions and don’t want to hear the dispute on motion either. How do you respond? Do you recess the deposition or continue to the end for a full record of abuse of discovery by the defendant’s lawyer?
The ABA created a video some years back of a staged deposition being taken by a young woman with an older male defending it. The lawyer defending it was condescending, abusive and obstructive to the extreme. It was a teaching video, but not far from the reality in a lot of depositions. While at some point it is only logical to recess the deposition and ask for relief from the court, it is more often the better tactic to remain calm, make your objections clearly and briefly and move on. The more the argument between counsel, the less clear it is who is at fault.
The lesson for me is that the right to object is a valuable tool. It should be used whenever it is important to do so to protect the record. It should be done when it is tactically important, but not every time you are entitled to do so. And, it should be done calmly, professionally and rationally. My thanks to Randy.