First of all, why would an attorney make an objection during trial?
If you ever go into a courtroom and watch what happens in a civil trial involving an accident matter, or a medical malpractice matter or a wrongful death matter, you will notice that objections are made all the time.
Some attorneys make frequent objections.
Other attorneys barely make any objections.
There is strategic reasons for why an attorney would make an objection.
There are also legal reasons.
Let's touch on some of the legal reasons here.
If a lawyer asks a question that has nothing whatsoever to do with the claims being made or the defenses that being raised, a typical objection would be that the question is irrelevant.
Let me give you a perfect example...
Let's say this is a medical malpractice trial and the injured patient has brought a lawsuit against her doctor.
The injured patient believes that her doctor violated the basic standards of medical care causing her significant injury.
The injured patient is on the witness stand.
She is now being cross examined by the defense attorney, the lawyer who represents the doctor she has sued.
Imagine if the defense lawyer were to ask “Mrs. Jones, how many times does your husband beats you at night?”
That question would prompt an immediate objection from the plaintiff's lawyer, the attorney who represents the injured patient.
There are many legal reasons why an attorney would make an objection, but the first one is likely to be “Your honor, that's irrelevant!”
The next objection would likely be that this question was “Palpably improper.”
Where the question has absolutely nothing to do with the claims being made or the defenses that are raised, then in all likelihood the judge will prevent the witness from answering the question.
Unless of course this is a collateral attack.
"What's that," you ask?
It's an attempt to attack the witness' credibility on an unrelated matter to the claims that are being made in this case.
There are many instances where an attorney is permitted to ask the witness questions that reflect upon her credibility.
For example, if the defense lawyer has a good faith basis for asking the next question, he can always ask it and always get an answer.
“Mrs. Jones, have you ever been convicted of a crime?”
You see, the attorney will already know the answer to that question.
He will have done his research.
He will also have asked the same exact question during her pretrial testimony known as a deposition.
Pretrial testimony took place one or two years before the trial.
If the witness said she had never been convicted of a crime and his research reveals otherwise, now he's going to get the witness to perjure herself by getting the same exact answer.
That type of question is always relevant to determine whether or not the witness is being truthful.
At trial, when the defense lawyer asks the injured patient whether she has ever been convicted of a crime, if she says no, when in reality the answer is yes, he has now caught her in a lie.
Really smart attorneys will then use that lie to show the jury that this witness cannot be trusted.
They will also try to use that prior conviction to show that she is not honest.
The better practice is to simply have the witness admit that she been convicted in the past and remind the jury that prior criminal act had nothing to do with the claims being made in this medical malpractice lawsuit.
When the defense lawyer tries to attack Mrs. Jones on the issue of her prior conviction, if we raised an objection claiming it was irrelevant, the judge would likely disagree and require the witness to answer the question.
Whether or not someone has been convicted of a crime has much to do with whether or not they are believable. In that instance, that specific question would not be irrelevant.
You should also know that when an attorney makes an objection during trial, the trial judge must make a snap decision about who is right and who is wrong from a legal standpoint.
The judge must immediately determine whether the question being asked of the witness is somehow related to the issues in the case.
If it is not, then the judge will prevent the attorney from getting an answer to his question.
At the end of the trial, the judge will let the jury know that simply because an attorney has asked a question does not constitute evidence. It is only when the attorney asks a question and then gets an answer from the witness does that represent evidence that the jury can consider when deciding whether the injured patient is entitled to a verdict in her favor.
If the judge feels that a specific topic is relevant to the issues before the jury, he will then allow the attorney to ask the question and will require the witness to answer it.
Let me give you another example of a question that is totally irrelevant but comes up in almost every wrongful death case here in New York.
In these untimely death matters we always argue that if it were not for the carelessness of a driver or careless doctor, this victim would still be alive today.
During the course of the lawsuit, the defense has an opportunity to question the surviving family members. One question they always want to know is whether the person who died had life insurance.
I will tell you right now that asking such a question is totally improper.
Want to know why?
Because when a surviving family brings a lawsuit against a careless driver or a careless doctor, we are claiming that that carelessness was a cause of, or a contributing cause, to this person's death.
If a jury ultimately determines that the people you have sued are legally responsible for causing your family member's death, they become legally obligated to compensate the surviving family for all of the harms, losses and damages that the family has now incurred.
That means that they will be required to compensate the family for lost wages.
And future lost wages.
And other financial losses to the family, known as pecuniary loss.
In addition, they will be obligated to pay the family for the pain and the suffering he endured before he died.
The defense tries to go on a fishing expedition during the discovery phase of a lawsuit.
Young defense lawyers try to justify asking whether there is life insurance proceeds available thinking that they can use that information at trial.
The common argument is that they should not be held responsible for paying all this money since the family is already receiving a certain amount of money from life insurance proceeds.
That argument it's totally bogus.
Life insurance has nothing to do with what type of money a careless driver or careless doctor is obligated to pay to the surviving family.
Let's look at it this way... If someone causes you harm and you are able to show that you are more likely right than wrong that they were careless and you suffered significant injury, then they are obligated to repay you a debt that you have now incurred because of their wrongdoing.
That debt must be paid.
That debt will include many different types of damages.
That debt cannot diminished by the amount of money your spouse or parent or child had in their bank account at the time they died.
The amount of money they are obligated to pay is never diminished by the amount of stocks or bonds they had in their possession. The amount of money they are obligated to pay is never diminished by the amount of real estate or property they owned at the time of their death.
The amount of money a negligent driver or negligent doctor is obligated to pay is never reduced by the amount of life insurance proceeds a particular person had at the time of their death.
Why then does the defense make so many efforts to try and learn this information?
They do it to use as leverage during settlement negotiations.
They make the argument that they should not be obligated to pay so much money since the surviving family members will be getting hundreds of thousands if not millions of dollars in life insurance proceeds.
This type of argument will usually fall on deaf ears.
More experienced defense trial lawyers understand that the question about life insurance in a wrongful death case is totally improper.
Can you imagine the defense attorney making this argument at trial?
“Ladies and gentlemen, even though you may find that we are responsible for causing this man's death and you hold us accountable and tell us we have to pay X amount of dollars to compensate this family, you should reduce that amount of money by the $5 million his family is already getting from life insurance."
That type of argument is legally improper.
An attorney would be well within their right to raise an objection should a defense lawyer try and make that argument at trial.
The objection would likely go something along these lines...
“Objection Judge! The defense attorney knows that line of argument is totally improper and irrelevant. He knows better than that.”
There are some defense attorneys who might try to use that strategy to let the jury know that there is life insurance available to help the surviving family.
His strategy might be to ask the surviving spouse whether there is life insurance.
He is hoping the jury will recognize that there is life insurance. The amount may not matter here.
That's because the lawyer might hope the jury will quickly recognize that they should not be giving them significant amounts of money even though the witness will not be allowed to answer the question.
If an attorney were to open the door and ask such a question, the judge would likely give a curative instruction to the jury that they are not to consider whether the surviving family has any life insurance money or not.
However, what the defense lawyer has just done is planted the seed of that possibility in the jury's mind.
There is a saying in law that you cannot unring the bell.
What that means is that once you have heard the bell ring, you cannot get it out of your mind and go back in time to the point before the bell rang. It has already happened. The horse is already out of the barn.
You should also know that if the defense attorney were to intentionally try and influence the jury by asking such a question, it is possible that the plaintiffs attorney could ask for a mistrial.
The attorney could argue that now the jury has become tainted and cannot get this thought out of their mind once they've heard it and would also argue that the jury would now have difficulty reaching a favorable verdict because of what the defense attorney just did.
Another option is that if the verdict goes against the injured patient, there is the likelihood that they will appeal on the grounds that the defense lawyer created the problem that significantly influence the jury in their verdict.