An overview on Preparing for Trial Objections

A legally-driven attempt to prevent the admission of evidence (typically) or argument (sometimes) on the basis that the impugned evidence violates some aspect of the law of evidence or the rules of procedure.” Igor Ellyn, QC, CS, FCIArb. & Belinda E. Schubert How to Make In-Trial Objections Less Objectionable, (2011).
Objections are the means by which evidentiary disputes are raised and resolved. Objections may be made to an attorney's questions, to a witness's testimony, to the introduction or use of exhibits, to a lawyer's demeanor or behavior, and even to the conduct of the judge. Modern Trial Advocacy, 4th Edition.

The Purpose of objections
* To keep testimony fair and honest.
* Controlling information getting onto the court record
* Preventing inadmissible evidence
* Preserving the record for proposes of appeal
* Provide the court with an opportunity to rectify erroneous rulings
* To protect your witness
* To ensure proper questioning
* To eliminate waste of time
* To gain tactical advantage
* Provide a witness more time to think
* Break up the testimony of an opposing witness

Examples of possible objections
* Objections to the form of questions; Leading questions, compound questions, argumentative questions, questions previously asked and answered, repetitive questions, questions calling for narrative answers, ambiguous or unintelligible
* Objections as to substance; Irrelevant, immaterial, hearsay, lack of personal knowledge, assuming facts not in evidence, etc.
* Tendering of exhibits; No foundation, not authenticated, improper copy, etc.
* Improper conduct of counsel

Preparing for objections
* Preparation and anticipation
* Keen knowledge and understanding of substantive as well as procedural law
* Anticipate the testimony of each witness
* Anticipate all documents and exhibits.

The decision to object
* Failure to make a timely objection might be construed as a waiver on appeal. Francis Masaba v. Uganda[1992-93] H.C.B. 17
*A trial is not an evidence class: it’s a battle for credibility.
*Object strategically (only if;-)
*There is a legal basis
*The proffered testimony or exhibit will be detrimental to your case.
*Testimony and evidence that both hurts your case and is objectionable.
*Judge / Magistrate may view you as obstinate or obstructive.
*Judge / Magistrate may think you are incompetent.
*Question is readily fixable.
*Allows opposing counsel the opportunity to explain the value of the evidence objected to.
*Focuses the presiding judicial officer's attention on the impugned evidence.
*There will be times in a trial when an objection may have merit in law but be harmful tactically.

Factors to consider
*Will the evidence I hope to keep out hurt my client’s case if it is admitted?
*Is the evidence I hope to keep out relevant to the case?
*Which rule of evidence does the impugned evidence offend?
*Is the evidence or tactic my opponent is using unfairly ambushing my client?
*If I object, will the presiding judicial officer think I am interfering unfairly?
*Can I rely on the presiding judicial officer to know that this evidence is not relevant??
*Will the evidence I hope to keep out hurt my client’s case if it is admitted?
*Is the evidence I hope to keep out relevant to the case?
*Which rule of evidence does the impugned evidence offend?
*Is the evidence or tactic my opponent is using unfairly ambushing my client?
*If I object, will the presiding judicial officer think I am interfering unfairly?
*Can I rely on the presiding judicial officer to know that this evidence is not relevant??
*Will the presiding judicial officer think there is something to hide?
*How should one make the objection?
*What if the objection is not sustained?
*Should I hold my objection because I have evidence which I may be unable to call if the objection is accepted?
*Is the presiding judicial officer even paying close enough attention that he or she understands the significance of the question?
*What exactly will the witness say in response to counsel’s question if there is no objection?

The timing of objections
*As the grounds for objecting become apparent
*The legal basis for the objection
*Sufficiency of the factual basis
*Don’t interrupt the question posed by the opposing counsel
*But don’t wait until the answer is on the record before objecting
*If the grounds for doing so become apparent only after the answer is given, move court to strike the offending portion off the record.

Making the objection

Note: If there is one essential rule in arguing objections, it is that counsel should not argue with, or even address, each other. It is the judge who will make the ruling, and the judge who must be convinced. It is ineffective, distracting, and even insulting to the court when counsel turn to each other to argue their objections:
*Quickly rise and, as you stand, announce to the court, “Objection, your honour / your Lordship.”
*Court will usually acknowledge you and invite your comments
*If counsel opposite remains standing, you may wish to add, politely, "Your Honour, I will give counsel a moment to be seated before I specify the grounds of my objection".
*State your objection clearly, simply and directly.
*Wait for a response from the Judge / Magistrate.

Responding to an objection
*Don't be resentful. See it as an opportunity for you to rephrase questions better.
*Concede. (If the objection has merit).
*No response (Rephrase the question).
*Withdraw the question or comment that is the subject of an objection.
*Argue on basis of limited admissibility e.g. evidence tendered only for identification.
*Direct response.–Answer the objection with the law supporting the question or submission
*Receive a ruling, favourable or unfavourable, with professional courtesy and dignity.

Important to Note:
*Be certain actually to obtain a ruling on every objection. If none is given, politely insist on one. E.g. “Your Honour may we please have a ruling on the objection raised.”
*The role of each counsel after a ruling on an objection; the party against whom the objection is made must make sure the evidence nevertheless makes it to the record while the party who raises the objection must make sure the offending evidence is not brought onto the record another way.

Ethical and conduct issues
*Ethical issues frequently arise in the context of making and meeting objections. Because the objecting process is one of the most confrontational aspects of the trial, it often tests counsel's reserves of good will, civility, restraint, and sense of fair play. The three most common problems are discussed below.
*Don't use it only as a tactical device to interrupt an opponent's examination, cross-examination, argument or opposing counsel’s concentration.
*Not to be used, to make opposing counsel look bad or to exhibit your superior knowledge of the law of evidence.
*Act politely and civilly at all times.
*When opposing counsel has an objection: stop your examination, be seated, and permit opposing counsel to make the objection.
*Don’t bicker with your opponent.
*Don’t be rude.