Objections to Opening and Closing Arguments and Whether to Make Them

• Author: Mudita Chawla
• Pages: 31-35

SPRING 2022 31

believe it will help your case. It is essential to know your

audience and to read your audience during the course of the

trial so every action you take ultimately helps your client.

Striking the right balance between being too forceful and

not making your point at all is a skill that comes with

practice. e following pointers can help sharpen your

toolkit and avoid pitfalls in the process.

Consider objections during opening statements if opposing

counsel:

• Makes statements that are unsupported by the evidence;

• References inadmissible or unprovable evidence;

• Makes statements that are argumentative;

• Asserts personal beliefs or personal knowledge of facts in

issue (“I know, I believe, etc.”);

• Misstates the law;

• Improperly anticipates objections; and

• Makes disparaging and prejudicial comments about the

other side, or their attorney.

Consider objections during closing statements if opposing

counsel:

• Violates the Golden Rule and suggests to jurors that they

put themselves in the shoes of one of the parties, which is

impermissible because it encourages the jurors to decide

the case on the basis of personal interest and bias rather

than on the evidence;

• Attacks opposing counsel;

• Posits personal opinions and beliefs;

• Misstates the evidence presented at trial or the law;

• Discusses evidence that was excluded;

• Personally vouches for or comments on their client’s or a

witness’s credibility; or

• Makes statements that are prejudicial or inammatory.

Objections to both opening and closing statements are an

opportunity to ensure that the jury focuses on the admissible

evidence and statements that are based on law rather than on

inadmissible evidence or personal belief. fa

Objections to Opening and Closing Arguments

and Whether to Make em

BY MUDITA CHAWLA

The primary purpose of objections during trial is to

prevent the introduction or consideration of

inadmissible information. An additional purpose

in objecting is to allow the judge to instruct the

jury to disregard information it received prior to

the court’s ruling on the sustaining of the objection. Counsel

must make both timely and specic objections and motions

to strike the evidence to preserve the objection for appellate

review where the ground for objection is not apparent from

the context of the discussion contained in the record. A

loosely formulated and imprecise objection, such as only

stating, “Objection,” will not preserve error. A proper

objection is the best way to preserve the issue for appeal. It is

vital to understand the rules governing timeliness, specicity,

and waivers of trial objections; failure to conform to these

rules can result in trial objections being moot.

An opening statement is a vehicle to inform the court and

the jury in a general way of the nature of the case, provide an

outline of the anticipated proof, inform the jury of the

signicance of the evidence as it is presented, and familiarize

the jury by oering a roadmap of what is to come. Counsel

should use this opportunity to portray a theme that will stick

in the jury’s head as well—one that highlights your case and

captures their imagination. e general rule on opening

statements is that no statement may be made that counsel does

not intend to prove or cannot prove. An opening statement is

not an opportunity to argue the case. Reaching too far can lead

to objections and remedies as severe as a mistrial.

A closing statement allows counsel to oer ways of

viewing the signicance of the evidence. Just as with an

opening statement, this is counsel’s last opportunity to sum

up the evidence and present a cohesive and compelling

narrative to the judge or jury.

ere are no federal rules or statutes governing opening or

closing statements, but state, local, and judge-specic rules

exist, so make sure you are aware of these rules in your

jurisdiction. Depending on the jurisdiction, some judges will

set time limits on opening and closing arguments, giving

more time in complex cases.

If you decide to make an objection during opening and

closing statements, you must assert the objection immedi-

ately after the objectionable statement is made, as waiting

until opposing counsel has nished, or after the judge has

charged the jury, is generally too late. Bear in mind that most

judges are unlikely to sustain your objection, and the

interruption might appear rude to the judge or jury, so make

sure you are aware of your audience and only object if you

MUDITA CHAWLA (mchawla@cmfb.com) is a

partner with Chemtob Moss Forman & Beyda, LLP

in New York City. She represents clients in all

aspects of family and matrimonial law. She has sig-

nicant experience settling and litigating disputed

cases before both the trial and appellate courts.

Published in Family Advocate, Volume 44, Number 4, Spring 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.