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Making Objections and Opposing Them

by Neil Garfield | August 15, 2018

A new publication has come to my attention that every trial lawyer should have, regardless of where they practice. It’s entitled NEW YORK OBJECTIONS. Obviously once you latch on to a point you would need to refer to the laws of evidence in your state or the laws of evidence in Federal proceedings or both. But because of constitutional protections all states must and do subscribe to the same rules of evidence with very few variations. The link is to an article/advertisement for the book. From there you can go buy it. I’m not selling it. I am recommending it.

If you are like most lawyers and pro se litigants you will need help in how to use your new found knowledge of objections and cross examination (there are separate books on cross examination).

Trial law is all about evidence. And evidence is all about the rules under which information or data can be accepted into evidence. Evidence is an asserted fact that can be considered by the trier of fact in making a final determination as to who wins and who loses. The amount of weight given to any evidence is entirely up to the trier of fact. Getting evidence into the record does not mean you won anything.

The trial court has maximum discretion on what evidence carries greater weight than other evidence admitted into the record. Decisions are reversed on appeal in only 15% of the filed appeals. The job of the appellate court is to determine whether there is any evidence that could support the Judge’s decision in the trial. The appellate court might tacitly agree with you that had they been trying the case it would have been decided differently. But that is not the standard. And THAT is why doing well at the trial level is the key to all cases.

All information proffered as evidence, whether in testimony or documents, must have foundation. Foundation is credible information supporting the existence of an asserted fact. So for example if the question is “what is the amount presently due?” then in the absence of foundation, the answer is not admissible. However, if the objection is not made timely then the objection is waived. A late objection without some realistic explanation as to why it is late, will fail to keep the information out of evidence AND it will drill home the fact being asserted by mentioning it for a second time. Before asking a question like that the lawyer proffering the witness must establish that the witness knows through personal knowledge of facts showing that he/she knows the answer and not because someone else told him/her.

There are many other objections about which I have written on this blog. The most common error by lawyers representing homeowners is their failure to object as soon as the question is asked. And the most common excuse for that is that they don’t want to irritate the judge or look foolish. You might just as well concede the entire case if you feel that way. At my age, it’s like doing squats at the gym. If your legs get tired after jumping up to object so often, then you may be doing the right thing. My legs often hurt and I have been known to seek permission of the court to remain seated for my objections.

Raising objections is more of an art rather than any objective set of rules. Preparation for trial means figuring out what objections you will raise and why. It’s easy for a judge to overrule your hearsay or foundation objection if you either don’t know what you are talking about or if you haven’t thought this out. The general practice is to rise and say “objection!” at the same time, the moment you figure out that the question is objectionable — which needs to be before the witness speaks. I like to do that adding”may I explain?” At that point I better have something thought out before trial as to why I raised an objection.

So in order to go to trial and be effective as defense counsel for a homeowner, you need to have a clear narrative in your head as to what you believe to be true and tailor your objections to that narrative. And your narrative needs to be extremely focused on the few paths that might provide traction for the defense. Shotgun trial objections almost always fail.

Timeliness is the principal reason why objections are overruled. Lawyers and pro se litigants will wait patiently, politely for the line of questioning to be concluded. That is when virtually every objection you could ever think of will be overruled.

Be careful about trial orders. I have seen judges repeatedly overrule any objections to admission into evidence simply because the objections were not preserved in accordance with the trial order. That doesn’t mean you lost the case; because on cross examination you can destroy the credibility of the witness and the evidence by showing a lack of foundation, even though you were not permitted to raise the objection. If something is admitted into evidence, that doesn’t mean you can’t attack it.

In foreclosure litigation cases, cross examination is all about foundation. Cross examination continues the narrative driving your objections. Each objection, each question should drive home the central points of your defense strategy.

 

 

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