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 ****** 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 skilful 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 the admissibility 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.
The problem, unfortunately, is that these types of decisions must be made in an instant. That is why good objections are mostly art form. After years of practice, they become intuitive. And if the objection is made there is a premium on its success. Any particular question or answer not challenged may receive little attention from the jury. But a question or answer that is challenged, then rejected, has thundering negative potential. The new rejected objection tolls like a bell, stirring jurors to full altar as they attend to an answer given by a witness with the permission of the judge over the objection of counsel.
When this happens, the best response is no response. There can be no expression of disappointment. The good trial lawyer, like the elite poker player, is stoical, impossible to read in moments like this. Any remonstration at all can be fatal. It will only highlight the very evidence the objection was designed to thwart. The good trial lawyer never reveals when or whether a ruling contrary to his or her client’s interest is seriously damaging.
How to object
Rise always: Without a hint of rudeness or rancour speak to the judge, never to the lawyer opposite. State your objection clearly, simply and directly. Every objection should have a reason and the reason should be coherent with an underlying legal rationale. In other words, the objection should be specific, not general, in nature.
When you stand, the Court will usually acknowledge you and invite your comments, at which point counsel opposite should be seated. If the court does not immediately acknowledge you, it may be necessary to say, “Your Honour, I have an objection”. If counsel opposite remains standing, you may wish to add, politely: “Your Honour, I will give counsel a moment to be seated before I specify the grounds of my objection”.
The exercise has two parts: first, notice. Second, grounds. Providing the grounds includes in every instance the ability to state the legal basis for the objection, with legal authorities if necessary. In trial courts in the United States notice of an objection and the grounds are usually given simultaneously. For example, counsel may say, still sitting, “Objection: asked and answered”, or, “Objection: hearsay”. Trial counsel in the United States thus are trained to encode objections in few words. Whatever you may think of the U.S. system, it is at least efficient, fewer words with direct and concise reference to the grounds. Usually the law in support of the grounds is settled and beyond dispute. Canadian counsel, while generally afforded wider latitude to state the specific grounds, would do well to strive for greater and greater efficiency. Economy of expression, especially in the context of objections, is a virtue. If the evidence in question is clearly hearsay and inadmissible, no great long speech about hearsay is necessary. Remember your audience. No one likes a pontificator.
The law in support of the grounds to an objection may be so well-known that just the announcement of an objection will result in a favourable ruling to the objection. For this reason, experienced Canadian counsel often give notice of an objection, then pause momentarily affording the Court an opportunity on the objection without requiring the grounds from objecting counsel.
When to object
Timing is everything. If, for example, it is apparent that a question calls for an answer that will violate the rules of evidence or procedure, make the objection the moment the question is asked and before an answer ensues. There is no need to await the answer. If the question does not necessarily call for an answer that will violate the rules of evidence or procedure, the objection should await the answer.
Timeliness is easier to measure during examinations of witnesses. It becomes more difficult in the midst of submissions by counsel to the judge or jury. The unwritten Code of trial lawyers is that they are loathe to interrupt opposing counsel during submissions to the jury, and, although a little less problematic, are also generally loathe to interrupt opposing counsel during submissions to the presiding judge. Usually counsel will wait until opposing counsel has completed the submissions in either circumstance to register an objection. In the case of the jury, usually counsel will suggest to the presiding judge that he “wishes to make submissions to the Court in the absence of the jury”. After the jury is excused by the judge, counsel will make the objection.
It is generally considered poor style to object to the manner or method of submissions of your opponent in the presence of the jury. Counsel should instead make their objections to the presiding judge, and, if the presiding judge agrees that the manner or method of submissions of the opponent are inappropriate, the presiding judge will decide upon the best method to rectify any error when the jury returns.
Legal ramifications of objections
Objections may be made for legal or tactical reasons or both. Counsel’s failure to object to a procedural irregularity that does not go to jurisdiction cannot be raised for the first time on appeal.1 While failure by counsel to object at trial in relation to an error of law advanced on appeal does not foreclose its consideration2, the failure of counsel to object in a timely fashion may prejudice an appeal on that ground or may cause the appellate court to apply the no substantial miscarriage of justice proviso in section 686 (1) (b) (iii) of the Criminal Code.3 Often appellate courts will not engage in second-guessing as to whether or not counsel’s failure to object was intended, inadvertent or a mistake. Appellate courts generally take the position that if an objection was not raised in a timely fashion it was intentionally not raised and therefore the results of that tactical decision will not serve as the basis of an appropriate ground of appeal.4
Interestingly, the appellate court may not permit argument even if the trial judge erred in excluding evidence if the evidence was excluded upon the objection of the Appellant’s lawyer at trial.5 So, counsel’s failure to object definitely has consequences on appeal. And the failure to object may have consequences in the trial itself. The position taken by counsel, as a matter of law, must be taken into account by the trial judge also. The objections taken or not taken by counsel may determine the issues to be left with the jury just as significantly as the position taken by counsel may be later taken into account on appeal.6
Reasons to object or not
The reasons to object are myriad. Objections may be raised to provide a witness with more time to think about a question that has been asked, to alter an opponent’s rhythm, to highlight an unfair or unethical tactic, to reveal an unfairness to the jury, to stop or avoid abuse of a witness, to deflect attention away from a particular subject matter or to prevent the admission of inappropriate or inadmissible evidence.
Is it appropriate to use an objection as a tactical device to interrupt an opponent’s examination, cross-examination or argument? Is it appropriate to use an objection as a tactical device to provide a witness more time to answer a troubling or difficult question? Most judges without hesitation will answer that it is inappropriate to use objections for these reasons. However, most counsel will admit that they have used timely objections to accomplish these very goals. The secret to accomplish a desired interruption in the proceedings without criticism from the bench requires an objection of merit. The desired interruption is based on the timing of the objection. But the timing of the objection alone will not suffice. The objection itself must have merit.
It is inappropriate to make objections that are without merit. But, objections with merit, can sometimes be timed to coincide with the additional benefit of affording a witness more time to answer a question or of interrupting the rhythm of an opponent. Trial counsel for this reason often do not object to obviously objectionable questions by their opponents at the first opportunity to do so. Instead, they wait and make their objection at the most opportune time. That opportune time is when the objection has merit, the objectionable question or conduct has been repeated and the flow or rhythm of the opponent’s case can be effectively altered or halted by delivering the objection at that moment.
No matter how compelling the reason to object, however, the reasons not to object are just as myriad. Objections often emphasize the impugned evidence. The objection stops the trial and trains a bright light on the impugned evidence. Thus, rather than deflecting attention from the evidence, the evidence is enhanced. Jurors must think ‘if this lawyer is worried about this evidence it must be damaging’. All the more reason the juror may think that attention should be paid to that particular evidence.
The most significant negative impact of objections occurs when the objection fails. The presiding judge determines that the objection lacks sufficient merit to sustain the objection, or worse, is clearly wrong. In the case of judge and jury, the jury hears the judge tell the objecting lawyer that she is wrong. The jury as a matter of law is required to take its instructions from the judge on all matters of law. The judge advising counsel of counsel’s error in the presence of the jury may undermine the confidence that counsel hopes to engender with the jury.
Worse yet is the use that can be made of a failed objection by opposition counsel. Every objection carries with it the potential to allow opposing counsel the opportunity to explain the value of the evidence objected to and focus the trier’s attention on the impugned evidence. Capable trial lawyers anxiously await meritless objections from their opponents that afford them the opportunity to make mini-jury addresses upon the relevance and value of that very evidence.
Further, many trial judges do not like objections. Counsel should watch both the trial judge’s reaction and the jury’s reaction to each and every objection raised. Negative reactions by either may be the best reason to curtail objections. Judges often do not appreciate the interruption that an objection necessarily causes or feel that objections unnecessarily prolong the proceedings.
Counsel does not conduct a trial to bathe the judge in false or unwarranted adoration or capitulation. Counsel must not shrink from the duty to represent the client fully. Counsel has a positive duty to assist the court in the pursuit of a fair trial based only on relevant, admissible evidence. Consequently, even in circumstances where the trial judge seems more focused on completion of the trial than ensuring only relevant, admissible evidence provides the basis of the decision; counsel must fearlessly make objections that are necessary to protect trial fairness. Failure to do so only prejudice the client’s position at trial and may adversely affect the client’s prospects on appeal.
So, the rule that should guide counsel when making objections should be: make your objection, make it in a timely fashion, know the law that supports your objection, be able to state it clearly and succinctly, then sit down to receive the ruling. And, the corollary of the rule should be: don’t object if the reasons to withhold an objection outweigh the possible benefits.
How to receive a Ruling on an Objection
One should receive a ruling, whether favourable or unfavourable, with professionalism, showing neither elation nor disappointment. Demonstrations of disapproval such as slamming books, throwing pens or looks of anger or disgust toward the Bench are strictly prohibited. Demonstrations of disapproval will have to await your private attendance in some private place far removed from the courtroom. Your remedy, if any, is a successful appeal. Nothing is gained and much may be lost by inappropriate remonstrations in the presence of the judge or jury.
Similarly, winning an objection should not lead to gloating, a smug, satisfied look or any other behavior that might draw attention to successful counsel. Instead, counsel should move on in a businesslike fashion with the evidence having the benefit of the favourable ruling. In order to train yourself to roll with the punches, adopt this attitude: of course you won the objection; you should receive a favourable ruling because you would not make an objection without merit. Your work is unfolding as it should because you are here to assist the court in determining the evidence that is relevant and admissible. So move on, there will be time to applaud your advocacy skills later and privately.
What to Object to
The simple answer to the question of what to object to at trial is anything that violates the rules of evidence or procedure that govern the admissibility of evidence, subject to tactical reasons that might convince you to withhold your objection. What follows is a short, nonexhaustive list of common, sustainable objections that can be made at trial:
Reference to inadmissible evidence
Reference to Counsel’s personal opinion
Reference to Opponent’s evidence
Reference to possible penalties upon conviction
Statements that cannot be supported by proof
Statements by prosecutor referring to an accused’s silence upon arrest
Reference to prior judicial rulings at a preliminary or prior trial
Reference to Counsel’s personal opinion on any matter including guilt or innocence or credibility of witnesses
Prejudicial or Inflammatory arguments
Inaccurate References to law
Inaccurate References to evidence
Reference to evidence not presented
Reference by prosecutor on the failure of the accused or spouse to testify
Reference to a defence ruled unavailable or inappropriate by the trial judge
Reference to evidence heard in the absence of the jury but not ruled admissible
Reference to possible penalties upon conviction (exception: advising the jury of the consequences of a finding of “not criminally responsible on account of mental disorder”)
Counsel telling jury to disregard law
Reference to decided cases
Speculation as to why “potential witnesses” did not testify
Personal attacks on witnesses or counsel
Appeal to jurors’ prejudice or bias
Appeal to jurors to ‘send the message to the community’ by verdict
Objections to Questions Relating to Evidentiary Matters
Calling for irrelevant evidence
Violations of the best evidence rule
Seeking disclosure of privileged communications or the identity of a confidential informant without court order
Requesting production of a “record” relating to a complainant or witness related to any of offenses listed in section 278.2 without court order
Reference to sexual reputation of a complainant without court order
Reference to evidence of recent complaint
Calling for conclusory answers
Seeking an unqualified opinion
Calling for hearsay
Calling for speculation
Based on a false premise, eg. Assuming facts not in evidence
Without proper evidentiary foundation eg. Asking for psychiatric opinion without presenting the evidence upon which it is based
Leading Questions on matters that are not introductory or noncontentious
Repetitive Questions (“Asked and Answered”)
Vague, misleading or ambiguous Questions
Multiple part Questions requiring multiple answers
Lacking relevance or probativeness
Badgering or Intimidating a witness
Objections Relating to Demonstrative Evidence
Inaccurate or Misleading
Without proper evidentiary foundation
Containing inadmissible evidence or commentary
Altered without explanation or evidence
Prejudicial value outweighs probative value
Responding to Objections
Counsel is, of course, always entitled to withdraw a question or comment that is the subject of objection if counsel believes the objection has merit. Tactically it is often advisable to withdraw an offending question or submission rather than lose an argument on the propriety of the question or submission. Withdrawing may demonstrate counsel’s sense of fairness and also counsel’s knowledge of the law.
Assuming, however, counsel does not agree that the objection has merit, counsel who has asked the question or made a submission that raises an objection should immediately be seated to allow objecting counsel to be recognized by the court and to state the grounds of the objection. When objecting counsel has completed the grounds of the objection, counsel receiving the objection should be prepared to answer the objection with the law supporting the question or submission. Responding counsel must be able to demonstrate, as a matter of law, the appropriateness of the question or submission. Again, counsel should state the grounds upon which she relies succinctly, and then be seated to receive the ruling.
Counsel is entitled to receive a ruling. If the presiding judge is unwilling or unable to provide a specific ruling with reasons to the objection and counter-argument, counsel whose position has been overruled should insist that the judge provide the basis of the ruling. Without the reasons for the ruling, the trial record is incomplete. This can be accomplished politely but firmly by urging the presiding judge to provide the basis of her ruling, even in cursory form if necessary, so that the record of the objection and ruling is preserved.
When to be objectionable: Civility and Collegiality
If by “objectionable” we mean anything even remotely connected to a lack of civility or collegiality with other lawyers engaged in the trial process, the simple answer is never. The truth is that there has been a deterioration in civility among members of the profession. Professional tradition and the public interest call for fair, civil and courteous dealings between counsel and with clients. Failure to live up to that tradition arguably diminishes the profession and the public’s impression of lawyers, and, arguably leads to a less satisfying career especially for the lawyer lacking in civility.
No doubt the reasons for increased incivility are many. Years ago lawyers were not under pressure daily to answer e-mail messages or faxed letters instantly, manage busy court schedules with computerlike precision, or, compete in a world of information overload. In one recent case, this writer was sent approximately 39,000 pages of disclosure on computer disk with a covering letter suggesting that the preliminary hearing on the matters disclosed in the 39,000 pages could “hopefully” be scheduled in “the next few weeks”. Even if one had no other cases to try in the next few weeks, the sheer volume of this disclosure would leave little time for sober reflection in such a short time frame. But such are the perceived exigencies of this modern day profession. Sometimes it seems that we measure our effectiveness by speed rather than careful decision-making.
If one were to speculate on the main reason for a deterioration in civility one would likely look at the changes in the ‘business of law’ for an answer. Surely less collegiality and fraternization and increased competitiveness among lawyers is contributing to the deterioration in civility. This noble profession has somehow become big business. Legal costs are increasing dramatically and with them client expectations. And when client expectations rise occasionally lawyers attempting to meet those expectations abandon professional objectivity.
In one recently reported case7, the Court of Appeal for Ontario described counsel’s behavior at trial toward opposing counsel as follows:
Mr. Tait accused Mr. Wunder of “a complete lack of integrity”; of cheating and intentionally defying the rules of practice; of using the right to object to Cross examination “to suggest answers to every witness who has come into this courtroom”; of abuses of the Rules Civil Procedure; of using and abusing solicitor-client privilege as a “mask for deception”, to “conceal misconduct”, “as a manipulative device”, “to conceal the devices by which the evidence of witnesses is manipulated” and as a “shield for deceit”; of “manipulating” the evidence and facts; of deliberately misinforming an expert witness; “flatly lying” to the court; of deliberately misleading the court, showing contempt for the court, defying and deceiving the court about the evidence of Dr. Whyte; of “trickery” and sleight-of-hand”; and of committing an outrage on the court. Mr. Tait told the trial judge that he (Mr. Tait)[was] wrong to assume Mr. Wunder was competent and would comply with the Rules Civil Procedure, and he even suggested that Mrs. Marchand made a mistake in choosing Mr. Wunder as her counsel.8
And, Mr. Tait was not the only counsel who seemed to have checked his sense of civility at the courtroom door. What follows are some of the remarks attributed to his co-counsel Mr. Liswood:
Mr. Liswood, too, maligned the Appellant’s counsel. He accused Mr. Wunder of manipulating, abusing and making a mockery of the judicial system; of using the Rules of Civil Procedure as an “excuse to permit unchecked grossly improper manipulation of the whole litigation process”; of “flagrantly subverting” the Rules of Civil Procedure; of “suppressing” facts and information from the defence; of “contrivance and manipulation” in the delivery of expert reports; of continually withdrawing from his commitments; and of violating Rule 10 of the Rules of Professional Conduct by knowingly attempting to deceive the court and by knowingly mistaking the contents of documents.9
Civility is presumably the hallmark of our best counsel. So what evidence did these experienced trial counsel have to support their intemperate comments toward another member of the profession? Apparently none. This outburst of incivility ended in the Court of Appeal for Ontario not with a bang, but a whimper. It was referred to in this way:
In this court, Mr. Ortved and Mr. Curry, who acted for Dr. Asher, made no attempt to defend Mr. Tait’s conduct or to substantiate any of Mr. Tait’s allegations against Mr. Wunder. Instead, they candidly acknowledged that Mr. Tait’s conduct toward Mr. Wunder had fallen below an acceptable standard. Mr. Liswood also acknowledged that his own conduct at trial had been unacceptable. We have little doubt that the appellants must have found the repeated maligning of their counsel unsettling, to say the least.10
To the Court of Appeal I would respectfully suggest that an opportune moment to resoundingly reject this lack of civility was lost. This despicable behavior was raised in the context of focusing on the conduct of the trial judge. The appeal ground related to whether or not the trial judge’s failure to halt this unacceptable behavior demonstrated bias. However, it is unacceptable for the Court to refer to this behavior and simply conclude, “The unprofessional conduct of counsel is a matter for the Law Society of Upper Canada”. The court should have, even in the context of an allegation of bias, outlined specifically how the trial court should handle such egregious breaches of civility. With respect, it was not sufficient to suggest the trial judge could have done more without saying specifically what he could or should have done in the fare of such unprofessional conduct.
And for counsel to have expressed those comments toward another member of the bar in open court and in front of that colleague’s clients, it is, with respect, a grossly inadequate response to simply acknowledge that this behavior “fell below an acceptable standard”.
Contrast this approach with the approach suggested by Justice Anthony Kennedy of the United States Supreme Court in his 1997 Address to the Annual Meeting of the American Bar Association:
Civility is the mark of an accomplished and superb professional, but it is even more than this. It is an end in itself. Civility has deep roots in the idea of respect for the individual. We are civil to each other because we respect one another’s human aspirations and equal standing in a democratic society. We must restore civility to every part of our legal system and public discourse. Civility defines our common cause in advancing the rule of law.11
The Advocates’ Society has published “Principles of Civility for Advocates”12 providing useful guidelines for lawyers interacting with other lawyers. The thrust of the guidelines is to suggest that counsel should always show courtesy toward opposing counsel and encourage those under their supervision to conduct themselves with courtesy and civility also.
As a profession it seems that we have a great deal of work to do in fostering better relationships with our colleagues. The profession ought to find ways to increase mentoring by senior lawyers with new members of the profession. Mentoring is less likely to occur as naturally as it did in the past when the pace of the business was much slower and less competitive. The Law Society must create incentives to cause that worthwhile process to be renewed.
And, our law schools must be encouraged to place greater emphasis on teaching civility in law school curriculums. Articling programs and Bar Admission course programs must also take responsibility for educating our new members on the need for civility among lawyers. Lastly, programs like this, offered as part of the Continuing Legal Education of lawyers, must continue to encourage members of the profession to honour our professional tradition of courtesy and civility.