October 10, 2023

Podcast - A Checklist of Common Objections

The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small provides a checklist of the most common objections and their shorthand descriptions. Mr. Small shares why he believes this is a key component of being properly prepared in the courtroom, and how this skill set will help trial lawyers know when to pick their battles and save objections for when it truly matters.

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Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.

Most objections have to be made at high speed in the heat of battle, with little or no time for reflection. But that doesn't mean that you can't prepare yourself to make objections when you have to.

One of the best ways to do that is to familiarize yourself with the most common objections and their shorthand descriptions.

Questions may be objectionable because they violate one of the "big four" evidentiary principles: relevance, authentication, hearsay, privilege or because they violate Rule 403 (generally, because the answer would be unfairly or unduly prejudicial). Those types of objections tend to be case-specific, and tied to the facts and the specific requirements of the evidentiary rules.

Because of pre-trial discovery and other disclosure requirements, you can usually anticipate how you might want to object to your opponent's evidence, and what he or she might say about yours. Make that an important part of your trial preparation, and be ready for the important fights.

It's harder to anticipate questions that have an improper form or that are improper only because of their content (for example, a repetitive question). Still, it helps a lot to know the basics. Here are some typical ways in which a question might draw an objection and the shorthand that we use to talk about it.

1. Ambiguous

The question is capable of more than one interpretation. This problem often arises from the use of ambiguous pronouns, particularly the word "that." An objection for "vagueness" is similar.

For example: "Did you see that?" What is he asking? What is she asking?

2. Argumentative

The question is not designed to elicit facts but rather just to argue the case.

For example: "Isn't it true you ran the red light because you were drunk and didn't have control of your car?" OK, this isn't a closing argument, ask a question.

3. Assumes fact not in evidence

The question assumes a fact is true even though such evidence has yet been elicited.

For example: Counsel asks, "Where were you when you signed this document?" before it's been established that the witness actually signed the document.

4. Calls for an expert opinion

The question asks a lay witness to give an opinion that properly may be given only by an expert.

For example: "Why do you think your leg took so long to heal?"

5. Calls for a narrative

The question is open-ended and general. Whether such a question is permissible depends on context. Such a question is normally permitted if the answer is likely to be relatively short, like a single sentence, and not permitted if it would invite the witness to talk at length.

For example: "What happened?"

6. Compound

The question has multiple parts or gives the witness a limited range of alternatives (usually two). Compound questions usually include the word "or" and "and."

For example: "Was the car blue and was the traffic light green?" Which one do you want answered?

For example: "Was the car blue or yellow?" Maybe it was orange.

7. Confusing

The question makes no sense.

8. Cumulative

Sufficient evidence has been heard on the subject, making further testimony unnecessary and repetitive.

9. Lack of foundation

Counsel has not established that the witness is in a position to answer the question from personal knowledge.

For example: Counsel asks, "What color was the traffic light?" before asking, "Were you at the intersection at the time?" and "Where were you standing?"

The term "lack of foundation" is also used to describe a failure to meet evidentiary requirements for admission of an exhibit (for example, that the exhibit is authentic).

10. Leading

The question improperly (for example, on direct with a friendly witness) suggests the desired answer.

For example: "Isn't it true the traffic light was red?" suggests the answer that it was red, instead of "What color was the traffic light at the time?"

11. Mischaracterizes the evidence

The question does not accurately quote testimony or reflect the evidence from the documents.

For example: A witness who testified on direct that she was standing on a street corner is asked, "As you were walking across the street, did you notice the color of the traffic light?"

12. Repetitive

The same question has essentially been asked over and over. Also called "asked and answered."

13. Speculative

The question invites the witness to guess, to speculate or to give conjecture.

For example: "Isn't it possible the traffic light was green?"

As an aside, lawyers seem to object on the grounds of "asked and answered" more than all other categories put together. It's not clear why. It's not uncommon for a lawyer to sit motionless as dozens of improper questions go by — for example, leading questions on direct — and then leap to his or her feet when a single repetitive question is asked. It's not at all clear why that would be so. Asking a witness to repeat a bit of testimony may be a sin, but usually a relatively minor one in the overall scheme of things. And if it helps clarify things, most judges will allow it anyway.

As with everything that happens in a courtroom, you have to pick your spots. You have to pick your fights. You can't effectively object to everything. Try to save your objections for things that matter.

And, of course, the best way to avoid objections from your opponent is to ask proper questions yourself, in the first place.

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