I was reading Unwashed Advocate today, and thought I would repeat his good advice on how best to make a motion or objection at trial. I have a couple of additional thoughts, but otherwise his is good advice. He says, and I quote extensively:
However, when it comes to making a motion, or stating an objection, I’ve always followed this format.
A. Object/Make Motion
B. State Reason
PDC: Your reason for an objection should be short – preferably giving only the rule number, especially if this is happening in front of members.
C. Listen to other side
PDC: Agreed. But it is especially important if the other side starts to give more detail and argument about why the objection should be overruled in front of the members. If that happens ask for the members to be excused while you take this up in a 39(a) session. Sure, the judge won’t like the up-and-out, but it’s your client on trial. I read any number of records of trial where the trial counsel and judge engage, sometimes in great detail about the evidence and objection – all in front of the members. What a way to educate the members! And then how effective is it to give a curative or limiting instruction – Not!
D. Clarify [your reasons] in light of what other side said.
E. Go back and forth until judge directs a halt.
PDC: At this point you should be focused on what the trial counsel is arguing. Listen to the judge’s questions and respond to them. Sometimes you can hear the judge tell you how to argue your objection, or give you a key to persuading her to rule in your favor. I had a good friend and judge many years ago who would rule, “not on that basis -denied.” Once I got to know his ways I realized that sometimes he was telling you there was a basis you just hadn’t raised it – yet.
F. Listen to ruling from judge.
G1: If the ruling is in your favor. SHUT UP (emphasis added).
G2: If the ruling is not in your favor, ask for reconsideration [or to add to the record] based on clearly articulated factors and state any points that seem necessary to complete and clarify the appellate record. Done and done.
PDC: I would be careful here because of Rule F., and what follows – you have to make a record, but . . .
At this point, I view any further discussion as unnecessary and more likely to create ill-will toward my client. Therefore, I stop. Some want to push further than G2, turning the disagreement with the opposing side into an argument with the judge. I fail to see where this could, in any stretch, be calculated to bring a favorable result to the client. All it creates is bad blood in the courtroom, and the lawyer loses credibility with those who matter the most. Though, I’m sure those who use this technique have a reason for doing so.
PDC: I have seen young trial counsel do this too often. They are basically saying “judge you are wrong and we are right.” Not an effective practice for the particular objection, or future events. Some judges can get shirty about being told they are wrong – even if they are wrong.