This happens in every civil trial here in New York.
It doesn't matter whether it's a car accident trial.
It doesn't matter whether it's a medical malpractice trial.
It doesn't matter whether it's a wrongful death trial.
It will happen every single trial.
What am I talking about?
I'm talking about objections.
Objections made during the course of trial.
Objections made during questioning.
Objections made when evidence is offered.
Objections made when an attorney says something.
Objections are often made during trial.
An objection is raised any time an attorney believes something is improper.
Maybe the question is not phrased properly.
Maybe the question assumes facts that are not in evidence.
Maybe the attorney is putting words into the witness' mouth and now it's presented as a leading question.
Maybe the records that are being offered into evidence are not true and accurate photocopies of the original.
Maybe the medical expert that the defense has put on is not truly qualified to testify as an expert.
Maybe the witness is discussing a conversation with someone else who is not in court to testify and confirm the conversation.
There could be many reasons an attorney raises an objection.
In law school, we are taught to make an objection anytime we believe there is some type of legal unfairness or injustice.
We are taught to immediately stand up and shout out “Objection!”
We are taught to give the trial judge a very brief explanation why we are making the objection.
We are told to stand when we make an objection as a sign of respect to the trial judge.
Once an objection is made, the questioning is supposed to come to an immediate halt.
The witness is supposed to wait until the judge has signaled that the witness can answer or not answer the question.
Once an attorney makes an objection, the judge must make a snap decision about whether he agrees or disagrees with the objection.
However, sometimes, the judge needs additional information.
Sometimes, the judge needs legal briefs to figure out who is right.
When an objection is made, the judge will often ask the attorney who is making the objection what is the basis for the objection.
The attorney must present a concise brief explanation.
The judge will then give the opposing attorney an opportunity to give his opinion.
Once the judge has heard from both attorneys, he will usually make a snap decision.
The judge has three choices on how he can rule.
He can agree with the attorney who is making the objection.
He can disagree with the attorney who's making the objection.
Or, he can decide that he needs more information and will ask for legal briefs from the attorneys.
Actually, there's a fourth option...
The judge can defer his ruling until a later time or until after the jury has reached a verdict.
If the judge agrees with the attorney who is making the objection, he will say “Objection sustained!”
What that means is that the attorney who is asking the question cannot ask that question.
Even though the question has already been asked, he must now move on and ask another question.
When the judge says “Objection sustained” it means that the witness is not to answer the question.
It means the judge agrees with the attorney who has objected.
That might mean that the question was improper.
It might mean that the question was not phrased correctly.
It might mean that the attorney was asking a leading question and putting words into the witness' mouth.
It might mean that the attorney is harassing the witness.
It might mean that the attorney is asking something that is not relevant to the legal issues in the case.
There could be many reasons to raise an objection and just as important, there could be many reasons why the judge would not allow the attorney to ask a particular question.
On the other hand, if the judge disagrees with the attorney who is making the objection, he will say “Objection overruled!”
That means that he is overruling the attorney who is raising the objection.
That means that the attorney can go ahead and ask that particular question.
That means that the witness cannot answer the attorney's question.
That means the piece of evidence that was objected to, can now be admitted into evidence.
That means that whatever the attorney perceived to be improper or prejudicial, the judge felt that it was not.
Another key reason why it is critical for an attorney to raise an objection if he perceives that there is some injustice is that it preserves his right to appeal if he loses.
We are taught in law school that if we do not raise an objection during trial we waive our right to appeal that issue later.
Not only do we have to recognize the problem at trial, but we have to interrupt the proceedings, stand up, raise our objection in open court, and have the judge rule on our objection.
If we fail to raise the objection during trial and only raise it after we have lost the case, the appellate court who will not review the trial level proceedings and we will likely be deemed to have waived our right to have that higher court review that ruling.
What that really means in plain language is that if we don't make the objection during trial, we can't raise this improper ruling when we appeal to a higher court. We will have waived that right.
An attorney never wants to be in a situation to argue to an appellate court that if the judge ruled a different way when the attorney asked this question, the outcome of the trial would be entirely different.
The appellate court would then argue that if this was such an important issue, why wasn't it objected to during trial?
That's a very important and valid point.
The reason it's likely being raised on appeal is because an appellate attorney has now gone through the entire trial transcript with a fine tooth comb to see what legal issues they can attack in an attempt to overturn the verdict.
While that may be good lawyering, the appellate judges look to see whether the trial attorney made the objection at the time the problem occurred.
In other words, did he preserve the issue for appeal?
If the answer is no, then he is likely out of luck and the appellate judges would likely not delve into that issue to decide whether the court made an incorrect legal ruling.
If the attorney did make an objection and the judge rendered a ruling, now the appellate lawyer can raise that issue on appeal and make the argument that the outcome would have been different had the judge ruled correctly.
If you were to observe a civil trial in any of the state courts here in New York, you would notice that attorneys make objections all the time.
You might be thinking that if an attorney is constantly making objections, it must be annoying and frustrating for the jury, the witness and even the judge.
You would be correct.
You would see the attorney jumping up and down like a yo-yo each time he objected, standing up and yelling “Objection!”
That is why you'll find some of the best trial attorneys make objections sparingly.
You must learn how to pick and choose your battles.
Only by experience can you tell which objections are really important and must be made.
As a strategy, if the defense attorney is raising objections constantly and your attorney intentionally makes very few objections, this can be a dramatic contrast between the two lawyers.