Tuesday, October 22, 2013


Opposing counsel’s asks a question or offers some piece of evidence, say a written statement. You know the question or the evidence is objectionable. You know there is a violation of the evidence rules. But, where in the mass of evidence law is the grounds for the objection? Nothing comes to mind. The attic is bare. If you don’t act fast, the question will be answered; the evidence will be admitted. What now?

We don’t just sit there and let it pass. Get up on your feet – normally this will stop the other side from going further. Look the judge in the eye and confidently say: “Objection.” This will get the judge’s and the jury’s attention. Now, remain calm. If all is right in the world for you, the judge will have identified the grounds without your help and will sustain your objection. Congratulations!

But, what do you do if the judge, with or without the nudging of opposing counsel, says to you, “Grounds, counsel?”

One approach is to have an all-encompassing statement of grounds that applies when the grounds for your objection do not emerge from the recesses of your mind even if you talk and talk. In an early edition of his book McElhaney’s Trial Notebook sage advisor to trial lawyers, James W. McElhaney, compiled a list of catchall objections from around the country that may work to fill the void as follows:

JACK CURTAIN, Boston Massachusetts: He’s getting close to that legal problem, your honor.

JOHN KAPLAN, Stanford Law School: That’s unfair, your honor.

JON WALTZ, Northwestern University Law School: That’s unfair, your honor, and he knows it. . .

FAUST ROSSI, Cornell Law School: Incompetent, irrelevant, and immaterial . . . and against the interests of justice . . . and just no good.

IRVING YOUNGER, University of Minnesota School of Law: He’s getting on dangerous ground, your honor.

TOM MCNAMARA, Grand Rapids, Michigan: Objection, your honor. Counsel knows that’s totally improper.

JAMES BROSNAHAN, San Francisco, California: Judge, could we get on with something that has to do with this case.

HAMILTON BERGER, Perry Mason’s traditional opponent: Objection, your honor, that’s highly unusual. (McElhaney points out that this one got consistent rulings – “Yes, that’s highly unusual, Mr. Mason, highly unusual”).

One way to avoid the situation where you are at a loss for a speedy-on-your-feet statement of the grounds is to review a list of likely objections that will occur during the upcoming stage of trial. For instance, before opposing counsel delivers opening statement, review a list of objections most likely to be applicable during opposing counsel’s opening statement. In two of our books – Trial Advocacy and Evidence Skills – we provide lists of likely objections for each stage of trial.

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