Know your testimonial objections: the window for objecting during testimony is small. When the time comes, make sure you know what follows 'objection, your honor!'.

Objections can be a curse or blessing, depending on your ability to use and react to them. Many of us formed our first notions about objections while watching Perry Mason, although he tended to use the same three over and over: "Objection! Incompetent, irrelevant, and immaterial." After learning more in law school and using objections in practice, we may disagree on the optimal frequency and force of their use. But one point is beyond argument: Every trial attorney should have a basic familiarity with every recognizable objection.

For all jurisdictions and all forms of evidence, the processes of admission and objection begin with a threshold requirement of relevance. Irrelevant evidence is not admissible and is therefore objectionable; it's that simple. (1)

Once relevance is presumed, you can turn to a list of genetic objections. They are easy to identify and universally recognizable, but because of their generality, they are less potent than specific objections. They are best used in tandem with one or more specific objections or in situations where no other objection applies.

The short list of generic objections can be found in Rule 403 of the Federal Rules of Evidence, which says that relevant evidence maybe excluded if its probative value is substantially outweighed by the danger of

* unfair prejudice

* confusion of the issues

* misleading the jury

* undue delay

* waste of time

* needless presentation of cumulative evidence.

Most states have rules identical or similar to federal Rule 403.

Generic objections can apply to any type of evidence or courtroom presentation, including testimonial, documentary, real, and demonstrative evidence. Each type also has its own special set of objections. (2) For now, turn your attention to the most stressful and unforgiving type: testimonial evidence.

Use it or lose it

The time that elapses between the completion of an examiner's question and the answer can be less than one second. You must, therefore, make your objection immediately or it may be waived. (3) For that reason alone, practitioners need a well-structured, finite list of testimonial objections at their fingertips. This list encompasses nearly all the objections you need during testimony.

The question is argumentative. A skillful practitioner will never diminish himself or herself by arguing with a witness. But when an attorney does violate this principle, the opposition often gladly will let him or her have at it. Therefore, although arguing with a witness is clearly objectionable, (4) a protest is more likely to arise if the examiner attempts to humiliate or vilify the witness. (5)

Despite what television portrays, lawyers do not have the right to harass and embarrass witnesses. Federal rules empower trial judges to prevent such conduct, as do all state rules, although New Yorkers can get away with a bit more than the rest of us. (6)

The question violates the best evidence rule. Once known as the "original-document rule," this rule requires that an original writing be produced; (7) oral evidence of a writing's contents is generally prohibited. The rule applies only if the writing's contents are material. (8) The question "What did it say?" is a dead giveaway that a best evidence objection is in order.

Closely related is the parol evidence rule, which also honors the written word by prohibiting testimony that contradicts the unambiguous terms of a contract. It is a rule of both evidence and contract interpretation. (9)

The question calls for a conclusion. Experts can give opinions and conclusions; that's why we pay them. But they must base their conclusions on facts and scientific methodology. (10) Laypeople, on the other hand, must stick to the facts, although under modern rules, they can draw logical inferences. (11) They are never permitted to draw a conclusion as to the ultimate outcome of the case--by answering questions such as "Who was guilty?" or "Who was at fault?" (12)

The question assumes facts not in evidence. The next time your client tugs your sleeve or otherwise distracts you while the opposing attorney questions a witness, keep in mind the "assuming facts not in evidence" objection. (13) It is an important one, but you won't be able to use it if you don't hear the question and answer in addition to those that preceded them. Tell your client to use a notepad; it's important that you listen carefully for falsely stated, slanted, or unestablished information embedded in questions, which clearly make them objectionable. (14)

Most misstatements in questions are subtle, so listen for inferences that extend or diminish a witness's previous statements. For example, assume that during cross-examination, the defendant in an assault case admits that he "struck the plaintiff as the plaintiff approached." On redirect, instead of asking, "When did you strike the plaintiff?" a sneaky defense attorney might ask, "When did you defend yourself against the plaintiff?"

The question violates the hearsay rule. Half of all evidence law is devoted to the hearsay rule. But with all the exceptions, and exceptions to the exceptions, how can you be sure when it applies? (15) Here's an easy test: While the opposing attorney is questioning a witness, I ask myself, "How does the witness know that?" If the answer is anything other than firsthand observation, I know that I have a potential hearsay objection. People can obtain information in only two ways: observation and hearsay.

But what if one of the many exceptions comes into play? If an exception is in order, the attorney asking the question should be required to lay an appropriate foundation for it.

The question is irrelevant. Because relevance applies to every type of courtroom presentation, irrelevance has many faces. In addition to the standard Rule 401 notion of relevance, several types of evidence are irrelevant as a matter of law. Among the most common are subsequent remedial measures used to prove negligence, evidence of a compromise or settlement, and evidence of a defendant's liability insurance. (16) Of course, many other lawsuit-specific (and statute-specific) objections fit within this pigeonhole.

The question is leading. Any question that starts with a contraction (isn't, didn't, couldn't, wouldn't, shouldn't) is a leading question. For example, "Isn't it true that ..." signals a question that must, per se, be leading. An examiner's statement may also constitute a leading question. (17) For example: "Of course (nodding head), you shot the sheriff, stabbed the steward, beat the butler, kicked the cat, and strangled the suitor, all while parked in a handicapped parking spot." Sometimes the leader may tack on a polite "Isn't that so?" Leading is always permitted during cross-examination and is permitted on direct if the witness is hostile, (18) confused, or young, or if the questioning is foundational or preliminary. (19)

The question is multiple or compound. Too many conjunctives (ands) and disjunctives (ors) or "negatives" can cause confusion and render both the question and answer worthless. For example: "Is it not true that neither you nor your passenger did not use your cell phone or makeup and lipstick or iPod at the time of the collision?" Questions that combine too many disjunctives and/or conjunctives are objectionable. (20)

The so-called narrative question might also be considered compound. "Tell me everything that happened" sounds harmless, but it invites hearsay, speculation, and conclusions without providing opposing counsel an opportunity to object, so it may be objectionable. (21) But because it is difficult to distinguish narrative questions, and because they often save time, this objection is weak and likely to be overruled. (22)

The question is subject to a recognized privilege. There is little uniformity with respect to privileges. We must look to individual state law for the applicability of a privilege, even in federal actions. (23) And state law varies widely.

All states recognize the attorney-client privilege. The privilege against self-incrimination is ubiquitously alive, enforced, and constitutionally backed. (24) Other privileges recognized by most states include the clergy-penitent privilege (25) and spousal privilege. (26)

On the other hand, the physician-patient privilege is weak; (27) some states don't recognize a general physician-patient privilege. (28) The psychotherapist-patient privilege (which includes counselors, psychologists, and therapists) is generally stronger than the physician-patient privilege. (29) The parent-child (30) and accountant-client privileges are very weak. (31) The journalist privilege is also subject to extreme variation. (32)

The question is repetitive. Lawyers typically repeat questions if they didn't like the answer--or if they did like it and want to emphasize the point. In either event, an objection is warranted. (33)

The question is speculative. Testimony should be based on personal knowledge, not speculation or guesses. There is a big difference between asking the witness to approximate and asking him or her to guess. The approximation is admissible, but the guess is not. (34)

For example, the court should permit a lay witness to estimate the speed of a vehicle that he or she observed immediately before a collision but not to guess the speed of a vehicle that he or she did not observe. Similarly, a lay witness should be permitted to estimate the perceived speed and distance of a moving vehicle, but not whether it could stop in time to avoid a collision. (35)

The question is vague or ambiguous. Questions that are too broad or vague, or simply don't make sense, are objectionable. (36) For example, the defense attorney in a food-poisoning case asked his own witness (who had spoken to a doctor on the night in question), "What was the result of your conversation?" The witness answered, "[H]e said that from the tests they had done that there was no reason to believe that her problem had anything to do with the food." (37)

Conversations do not have results, but they do tend to produce hearsay, so a vagueness objection was clearly in order. Unfortunately, the plaintiff's failure to object in a timely manner opened the door to double hearsay and closed the door to a motion for a mistrial.

Trial judges have broad discretion in ruling on objections and the admissibility of evidence, and their decisions will not be disturbed on appeal unless they abused that discretion. (38) So be nice to them. And keep this list handy; it's difficult for a judge to rule on an objection unless someone objects.

Notes

(1.) FED. R. EVID. 402. With only slight variations, all state rules of evidence conform to this basic precept.

(2.) For comprehensive lists of objections for real and demonstrative evidence, see ASHLEYS. LIPSON, ART OF ADVOCACY: DEMONSTRATIVE EVIDENCE (1986 & Supp. 2005); for documentary evidence, see ASHLEY S. LIPSON, IS IT ADMISSIBLE? (rev. 2005).

(3.) See Benchoff v. Morgan, 394 S.E.2d 19 (S.C. Ct. App. 1990). There is authority for the proposition that you must act within the sprit second that follows the question or risk a waiver. See, e.g., Reagan v. Brock, 628 F.2d 721, 723-24 (1st Cir. 1980).

(4.) See, e.g., Pitts v. Bode, 403 S.E.2d 66, 69 (Ga. Ct. App. 1991); State v. Hawkins, 572 So. 2d 108, 114-15 (La. Ct.App. 1990).

(5.) See United States v. Beverly, 369 F.3d 516, 535-36 (6th Cir.), cert. denied, 125 S. Ct. 122 (2004); City of Champaign v. Sides, 810 N.E.2d 287, 306 (Ill.App. Ct. 2004), cert. denied, 125 S. Ct. 1645 (2005); Kaczmarek v. State, 91 P.3d 16, 31 (Nev. 2004) (en banc).

(6.) See FED. R. EVID. 611 (a). New York once favored "uninhibited impeachment." See People v. Malkin, 164 N.E. 900 (N.Y. 1928); People v. Lustig, 99 N.E. 183 (N.Y. 1912). More recently, this has changed. See People v. Johnson, 683 N.Y.S.2d 681, 683 (App. Div. 1998).

(7.) See FED. R. EVID. 1002; Ganske v. Spence, 129 S.W.3d 701, 706 (Tex. App. 2004); Tobias v. Korman, 141 S.W.3d 468, 473 (Mo. Ct. App. 2004); cf. Telecom Technical Servs. v. Rolm Co, 388 F.3d 820, 830 (11th Cir. 2004).

(8.) Sylvania Elec. Prods. v. Flanagan, 352 F.2d 1005, 1007-08 (1st Cir. 1965). Most states have a similar rule.

(9.) See Gen. Elec. Capital Corp. v. Ford Motor Credit Co., 149 B.R. 229, 232-33 (D. Me. 1992).

(10.) Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-90 (1993); see also Scully v. Fitzgerald, 843 A.2d 1110, 1118 (N.J. 2004) (holding that an expert's bare conclusion, unsupported by factual evidence, is inadmissible).

(11.) See FED. R. EVID. 701; United States v. Rivera, 22 F.3d 430, 434 (2d Cir. 1994); Ashley v. Hall, 978 P.2d 1055 (Wash. 1999).

(12.) Cf. Dine v. Williams, 830 S.W.2d 453 (Mo. Ct. App. 1992). Also, do not place too much faith in Federal Rule of Evidence 704(a), which says that testimony "is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." The term "embrace" is deceptive.

(13.) See Simpson v. State, 708 A.2d 1126 (Md. Ct. Spec. App. 1998).

(14.) See Cheesman v. State, 497 S.E.2d 40, 43 (Ga. Ct. App. 1998); Coscino v. Wolfley, 696 So. 2d 257, 262 (La, Ct. App. 1997).

(15.) See FED. R. EVID. 803, 804.

(16.) See FED. R. EVID. 407, 498, 411, respectively.

(17.) See, e.g., People v. Miles, 815 N.E.2d 37, 45 (Ill. App. Ct. 2004).

(18.) See, e.g., People v. Calusinski, 733 N.E.2d 420, 424 (Ill. App. Ct. 2000).

(19.) See Virgin Islands v. Dowling, 633 F.2d 660 (3d Cir.), cert. denied, 449 U.S. 960 (1980).

(20.) Bd. of Trs. of Contra Costa Jr. Coll. Dist. v. Schuyten, 326 P.2d 223, 226 (Cal. Ct. App. 1958).

(21.) See, e.g., 3 WIGMORE ON EVIDENCE [section] 767 (Chadbourne rev. 1972).

(22.) See, e.g., Silva v. Dias, 116 P.2d 496 (Cal. Ct. App. 1941).

(23.) See, e.g., FED. R. EVID. 501; see also LIPSON, IS IT ADMISSIBLE?, supra note 2, [section] 9.

(24.) Wilson v. United States, 558 A.2d 1135 (D.C. 1989); Commonwealth v. Sasu 536 N.E.2d 603 (Mass. 1989).

(25.) Russell G. Donaldson, Annotation, Communications to Clergyman as Privileged in Federal Proceedings, 118 A.L.R. FED. 449 (1994 & Supp. 2004).

(26.) See generally LIPSON, IS IT ADMISSIBLE?, supra note 2, [section] 9.507.

(27.) See, e.g., McVay v. State, 847 S.W.2d 28, 31 (Ark. 1993).

(28.) See, e.g., Ex parte Smitherman Bros. Trucking, 751 So. 2d 1232, 1235 (Ala. 1999); Arias v. State, 593 So. 2d 260, 263 (Fla. Dist. Ct. App. 1992).

(29.) The privilege is not absolute but rather subject to a balancing test. Jaffee v. Redmond, 51 F.3d 1346, 1357 (7th Cir. 1995), aff'd, 518 U.S. 1 (1996).

(30.) See LIPSON, IS IT ADMISSIBLE?, supra note 2, [section] 9.508.

(31.) There is no such privilege under federal law. In re Hunt, 153 B.R. 445, 450 (N.D. Tex. 1992); see also Airgas Mid America, Inc. v. Long, 812 N.E.2d 842 (Ind. Ct. App. 2004).

(32.) It is cursed in Rhode Island. In re Special Proceedings, 373 F.3d 37, 45 (1st Cir. 2004). Yet it is glorified in California. CAL. EVID. CODE [section] 1070.

(33.) See United States v. Saunders, 166 F.3d 907, 918-20 (7th Cir. 1999); Fettson v. James, 697 N.E.2d 1131, 1135-36 (Ill. App. Ct. 1997). The rule applies to both direct examination and cross-examination. See People v. Riel, 998 P.2d 969, 1000 (Cal. 2000); Kier v. State, 543 S.E.2d 801, 804-05 (Ga. Ct. App. 2000); State v. Hatcher, 524 S.E.2d 815, 816 (N.C. Ct. App. 2000), cert. denied, 531 U.S. 1087 (2001).

(34.) See FED. R. EVID. 602; Strickland v. Doe, 577 S.E.2d 124, 131 (N.C. Ct. App. 2003), review denied, 581 S.E.2d 447 (N.C. 2003).

(35.) Pomella v. Regency Coach Lines, Ltd., 899 F. Supp. 335 (E.D. Mich. 1995).

(36.) Black's Law Dictionary defines the term "vague" as "imprecise," "uncertain," and "characterized by haziness of thought." Also, a vague question might be considered confusing or misleading, and therefore excludable under Rule 403. See, e.g., Goldberg v. Paramount Oil Co., 300 P.2d 329, 333 (Cal. Ct. App. 1956); Moore v. Swoboda, 571 N.E.2d 1056, 1069-70 (Ill. App. Ct. 1991); State v. Knowles, 946 S.W.2d 791, 795 (Mo. Ct. App. 1997).

(37.) Reagan v. Brock, 628 F.2d 721, 723 (1st Cir. 1980).

(38.) Brown v. Hove, 603 S.E.2d 63, 65-64 (Ga. Ct. App. 2004); Care & Treatment of Wadleigh v. State, 145 S.W.3d 434, 438 (Mo. Ct. App. 2004); Payne v. Knutson, 99 P.3d 200, 204 (Mont. 2004).

ASHLEY SAUNDERS LIPSON of Beverly Hills, California, has written several evidence-related books and has taught law courses at the University of La Verne, Pepperdine University, the University of California at Los Angeles, and Michigan State University.