Trial objections: the way of advocacy.

AuthorLafferty, Latour

    In 1643, arguably the world's greatest strategist and samurai warrior, Miyamoto Musashi, died shortly after completing the influential work on swordsmanship; The Book Of Five Rings. (2) Today, Musashi's work is known more for its enlightened path to understanding, and ultimately a path to wisdom, than for swordsmanship. Musashi did not seek ultimate wisdom, however, but a way to understanding--a search for enlightenment. The path to wisdom, according to Musashi, is through a process of becoming; a way of being. (3) Today, trial lawyers can find this path through the process of lifelong learning because with humility we can each learn to become better at what we do--practicing the art of trial advocacy. (4)

    Although the way to enlightenment in trial advocacy can be applied in many contexts, it is probably most applicable to the art of making trial objections. It has been said that "[i]f you go into any courtroom and watch a trial in progress, you probably will be struck by a disconcerting observation --most trial lawyers seem to make drawn out and poorly worded objections." (5) These deficiencies range from making poorly worded and drawn out trial objections (i.e. speaking objections) to making ill-advised or untimely trial objections, and failing to make well grounded trial objections. (6) The solution to this perceived problem is through the way of trial advocacy--the process of becoming a better trial lawyer through the search for understanding, and ultimate wisdom, in the art of advocacy.

    Trial lawyers can find this way by understanding the purpose of trial objections, the procedure for making trial objections, and the preparation necessary to make proper trial objections (i.e., knowing the "evidence of your case"). The following path to understanding is a fundamental aspect of being a good trial lawyer. Indeed it is the essence of the art of advocacy. Now, please join me in this process of becoming--a way of being.


    The common law purpose of trial objections is codified in Federal Rule of Evidence 103. The basic premise behind the common law, and Rule 103, is the exclusion of inadmissible evidence at trial. (7) Hence, Rule 103 requires that an advocate make "timely" and "specific" trial objections in order to predicate error on a court's evidentiary ruling regarding the admission of evidence at trial. (8) Although the underlying basis for making any trial objection is found in Rule 103, all trial objections must be made in consideration of the other evidentiary rules that are applicable to the evidence of your case. (9) For instance, Rule 611(a) governs the mode and manner of interrogation and presentation at trial while Rules 401-03 govern the issue of evidentiary relevance. Likewise, Rules 801-07 govern hearsay evidence. Accordingly, the overall purpose of any trial objection is to invoke the applicable rules of evidence to preclude inadmissible evidence from being presented to the jury.

    In this context, all trial objections can be categorized as either "content" or "form" objections. (10) Content trial objections pertain to substantive evidence (e.g., calls for hearsay, speculation, or irrelevant evidence) whereas form trial objections deal with non-substantive issues. (11) That is, content trial objections seek to invoke the applicable rules of evidence to exclude either the witness's anticipated answer (i.e., testimonial evidence) or the introduction of an exhibit (i.e., real, demonstrative or documentary evidence) at trial. (12) Form trial objections, on the other hand, pertain to anything other than the substantive evidence. (13) In particular, form trial objections are intended to remedy the manner in which the advocate is asking questions (e.g., leading, argumentative) or the manner in which the witness is responding (e.g., narrative). (14) As you can see, content trial objections address the evidence itself whereas form trial objections address the manner in which the advocate seeks to introduce evidence.

    Ultimately, Rule 103 vests the responsibility for invoking the applicable rules of evidence with the advocates. (15) Although trial judges have the power to decide evidentiary disputes, they rely on the advocates to identify and raise these disputes through the use of trial objections. (16) As with the rules of evidence in general, this rule is intended to expedite the overall trial process by placing responsibility for invoking the rules of evidence, in the spirit of excluding inadmissible evidence at trial, with those who are in the best position to identify meritorious evidentiary disputes--the advocates, of course.(17) Accordingly, the first...

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