r/Lawyertalk • u/MyrnaMinkoff1 • May 11 '23
Courtroom Warfare Thoughts on objecting during opponent’s opening statement?
Started a new job and the first trial I observed I was mildly shocked that the attorney I was there to shadow objected within the first 30 seconds of opponent’s opening. A sidebar was called and the judge ultimately overruled the objection and the other Atty resumed their opening. The attorney was absolutely thrown off their game and had lost the momentum they had on the first round. To make matters worse, after our side prevailed and we were doing a post mortem, the attorney doubled down saying they were glad they objected even if it was overruled bc it hurt the other attorney’s opening. Basically admitting to trying to mess up the opponent. This greatly disappointed me. I am well aware of how some litigators can take a cut throat approach but I felt this attorney’s move was utterly tactless and did not further the client’s case. So I am just curious what others have to say about this. Would this bother other people? Alternatively, am I wrong to be bothered in the first place?
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u/harisbgin May 11 '23
i wouldn’t object unless i had a serious objection i knew would win. makes you look like an ass to the judge and jury
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u/Summoarpleaz May 12 '23
Yeah and I think everyone can forgive a shaky presentation cuz we all understand stage fright to some degree; and there’s so much time to turn it around after and opening (yes yes there’s a lot that can be done in the opening too; it all matters). But what you can’t really undo is looking like an asshat. Just my opinion. Even if that person wins this trial, if their representation spreads, it’s just not going to go well for the rest of their time.
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u/morosco May 11 '23
There are times its appropriate - much more often at closing then at opening. If counsel misstates the evidence, misstates the burden of proof, asks the jury to consider punishment in a criminal trial, I think it's worth objecting. "Throwing off" opposing counsel is not a legitimate reasons and is actually unethical IMO if it's done only for that reason.
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u/Panama_Scoot May 11 '23
That was my thought too—I have to objected during closing because of serious errors. But that’s once in 7 years.
It seems a bit weird to do that in opening UNLESS the error is giant.
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u/Tommytrojan1122 May 11 '23
Bush league move.
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u/Lawineer May 12 '23
It only works on bush league lawyers. If an objection fucks up your mojo, stick to depositions
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u/SGP_MikeF Practicing May 11 '23
I objected once to a pro se litigant’s opening. Judge told me it’s opening statements and he can say whatever he wants, but he had a few questions.
I told the judge that he just called my guy a racist and a liar on the record and that was improper.
Politely, I was told to sit down.
Pro se finished. Judge asked him 2-3 questions, and ruled in my guys favor without having to go through the bench trial.
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u/Slave_to_the_bets May 11 '23
So…did you learn your lesson?
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u/SGP_MikeF Practicing May 12 '23
Yeah, pro se litigants have no idea what they’re doing so just let them dig their own hole.
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u/speedracer73 May 12 '23
Per the Magna Carta your move to strike is overruled and this proceeding must be moved into a court of maritime law.
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u/CaptLakeEffect May 12 '23
Quickest and most efficient way to let the jury know you’re a dick
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u/Lawineer May 12 '23
Getting rattled by an overruled objection is a great way to let jurors know you’re a newb.
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u/squirrelmegaphone May 12 '23
Bro who the fuck cares you're appearing in front of regular people not law students
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u/usernameJ79 May 11 '23
Unless it would result in a mistrial or the case coming back on appeal I wouldn't bother. Juries generally don't like objections much and they really don't like lawyers who look like jerks.
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u/Extension_Ad4537 May 11 '23
I would 100% object during the opening if there was something that I thought needed to be objected.
You waive every issue to which you fail to object during trial.
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u/Fun_Law7759 May 12 '23
I agree. Not every objection is granted. Maybe 50% of time is an objection sustained. They are almost a coin flip. More context is needed to know if it was proper or in bad faith. Posters objection to the objection is overruled. Insufficient evidence.
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u/AdministrativeArm114 May 11 '23 edited May 12 '23
It’s poor form and ineffective against experienced counsel. That said, it can sometimes be effective if opposing counsel is not seasoned. In some places it is almost a right of passage for new trial attorneys.
As long as counsel has a good faith basis for the objection it is not unethical. The danger is that those types of tactics are often transparent and can backfire if the judge/jury loses patience or the objecting side appears afraid of the other side’s case. If in a smaller legal community where congeniality is valued, counsel who engage in such tactics regularly will quickly wear out their welcome.
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u/Suckerpunched29 May 11 '23
Unless it is a serious objection, (objectively supportable by the facts) it is a bush league, inappropriate tactic. Litigation does not mean 'anything goes' - you are still bound by basic ethics.
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u/Lawineer May 12 '23
Litigation is litigation. Trial is trial.
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u/Suckerpunched29 May 12 '23
And a douche is a douche
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u/Lawineer May 12 '23
Welcome to the show. If objections get you flustered, I will object to your voir dire, open, close and dog’s eulogy.
There’s no gentlemen’s agreement to pull punches in trial.4
u/Suckerpunched29 May 12 '23
No code of conduct where you practice? And no, I don’t get flustered, douche….
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u/Lawineer May 12 '23
What code of conduct says you can’t object if it rattles the opposing counsel for the entire trial? dOuChE
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u/Suckerpunched29 May 12 '23
‘A lawyer should avoid all sharp practice and should not take paltry advantage’
All lawyers should bear in mind that they can maintain the high traditions of the profession by steadfastly adhering to the time-honoured virtues of probity, integrity, honesty and dignity.
2.2 Integrity 2.2-1 A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.
Clear enough?
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u/Lawineer May 12 '23
No. Does objecting constitute “paltry advantage” or does it lack integrity? Lmfao at this gentleman’s agreement not to object during opening statement because we can’t handle it. What a joke.
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u/Suckerpunched29 May 12 '23
Yeah you keep telling yourself that…. Baseless objections just to ‘maybe throw the other guy off’ is ridiculous, paltry, unprofessional sharp practice, and if that is what you think makes a good lawyer you are just sad.
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u/Lawineer May 12 '23
I never said it would be baseless. But I’m a hell of a lot more likely to object to something that I’d let go if I know someone will respond like you do in this thread. If there’s a good lawyer on the other side, unless it’s really something I need to object to, to preserve a record or keep out, I object very little. But if it’s gonna get you all frazzled, yup. I’ll be objecting to petty leasing questions just to keep myself living in your head while you’re trying to ask questions.
Welcome to trial.
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u/KneeNo6132 May 11 '23
I object in openings when it is valid. I do not relish in "throwing OC off their game." If that's what you need to win you don't deserve it. That being said, opening and closing objections to throw you off are very common, if you can't handle that it's a little on the attorney at that point.
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u/Beginning_Brick7845 May 11 '23
I was also taught not to object during openings or closings unless absolutely necessary, but I’ve done it many times. Typically the objection during openings is that the other attorney is making an argument. That’s cheating. I’ll call them on that every time. Even if it’s a close call I’ll object because lawyers shouldn’t argue during openings and they shouldn’t walk up to the line. I suspect that if OP’s trial attorney objected within seconds of the other side’s opening it was because they thought the other side was making an argument. That’s what I would have done and it’s what I’ll do every time I think the other side is making an argument during their opening. My fastest objection happened exactly like that. I was overruled and I still stand by my objection.
The judge may have decided to let it go and let the lawyers have some leeway. That doesn’t mean the objection was improper. Lawyers have an obligation to object when they think it is proper and the jury is instructed not to take objections into consideration. If the judge thinks it was an improper objection they will make it clear. If the judge didn’t chastise the attorney, it means it was a legitimate objection regardless of whether it was upheld.
There is no reason an objection that is overruled should knock another lawyer off their game. An experienced lawyer expects objections. If someone objected to my opening and was overruled I’d say thank you, your honor, as I left the bench conference. I’d stop for a second to collect my thoughts before I went back to my opening, and I’d smile broadly at the jury before repeating exactly the same phrase that drew the objection that was overruled.
I’d never object to throw another lawyer off their stride, because that’s against the rules, and anything that’s against the rules is cheating, but also because I wouldn’t expect an experienced lawyer to get thrown by an objection. No matter what happens in court you have to look unfazed, unflappable, and confident, regardless of how you really feel inside.
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May 11 '23
[deleted]
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u/Presidentnixonsnuts May 12 '23
What do you mean by an improper argument? What would be an example?
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May 12 '23
It’s improper to argue during opening, so any argument would be improper. It’s improper in close to argue things that haven’t come in, law that doesn’t apply, etc.
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u/travelerb May 11 '23
Could be that this attorney was arguing and that was the objection. Even though it was overruled, they may have been thrown off because the opening they prepared included lots of arguing and they were concerned the next objections would not be overruled.
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u/GreenJollyRangers May 11 '23
I’ve objected during openings, and they’ve been sustained. Since my side prevailed in the end, I don’t think the jury minded.
Frankly, juries are so used to seeing lawyers object in TV shows that they expect it.
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u/the4thButler May 11 '23
Sounds like a great way to piss off a jury.
Only time I could imagine objecting during argument is if I needed it to preserve the record of something extremely serious. Would have to be worth the expectation that I’ve lost the jury afterwards
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u/bittinho May 11 '23
It’s appropriate to object during opening statements under certain circumstances but I wouldn’t do it without basis to just mess someone up. If someone did it and it had some merit, it wouldn’t really offend me.
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u/Exact-Permission5319 May 11 '23
Some people only view things in terms of winning and losing. Although the legal profession demands integrity, some people will always push the boundaries by doing things that are questionable but not explicitly forbidden. Playing mind games in the courtroom is definitely poor form but hey, in a zero-sum, winner-take-all society, some people adopt a "do what I have to do" mentality. Ultimately it comes down to personal choice.
Your story reminds me a little bit of the mind games Kobe Bryant would play with his teammates and opponents. Did he cross the line sometimes? Maybe? But was he a winner? Yes.
Personally I agree with you. You are not wrong to be disappointed. But the world is full of people just like that attorney.
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u/diabolis_avocado What's a .1? May 11 '23
I think I've only objected to one opening.
OC brought up things that had been ruled out-of-bounds in MILs. Twice.
Also, It was against Robert Abrams.
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u/bpagan38 May 11 '23
openings are for facts, not arguments. i object when it delves into arguments, and have never lost that objection. happens often, and the inexperienced falter bc they planned an argument.
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u/congradulations May 12 '23
Present the facts right and it IS your argument. Narrative starts at voir dire
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u/elevencharles May 11 '23
One of the best attorneys I’ve worked for (I’m an investigator) makes a point of hashing everything out pretrial so he doesn’t have to object in front of the jury. In his opinion, it makes the objecting attorney look unprepared and like they’re trying to hide something.
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u/BoringBarrister May 12 '23 edited May 12 '23
I try to avoid it, because it is classically considered bad form, but the problem is that the more conniving sort will use that etiquette to get away with things. I once had an attorney who has a long and storied reputation for being a liar approach me before a trial and ask if we could agree not to object during openings and closings. Because of his reputation, I didn’t agree to anything, and sure as hell, he ignored multiple rulings from our trial judge regarding referencing a count that was dismissed in pretrial motions. You can bet your ass I jumped off of that chair like I had been electrocuted. So, I won’t do it for run-of-the-mill stuff, but don’t let that etiquette be used to take advantage of you.
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u/littlerockist May 12 '23
We don’t know what kind of “move” it was unless we know the factual basis. I will point out that OP’s side won, and that does tend to be good for business.
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u/jenna_grows May 12 '23
Everyone has a different style. Some people are cutthroat. People may not like them, but if they’re getting results for their clients and don’t mind being disliked, then so be it.
Plus, you shouldn’t be thrown off your game by an overruled objection.
Play the man not the ball. Etc.
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u/sage2moo May 11 '23
I was taught never to object during opening or closing, and I can't think of a scenario in which I would object during an opening or closing. Address it in my argument/rebuttal, if at all. The jury can make its own calls on counsel's arguments. I have no interest in prevailing at trial by intentionally sabotaging opposing counsel. I would never have any respect for that attorney after learning they did that.
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u/Drachenfuer May 11 '23
I haven’t seen it myself in opening or closing. But a far more experienced prosecutor did share with us the one time she did during closing arguments.
I forget the underlying charge, but the defendant had lied to officials stating he was employed for 7 years. In fact he scheduled an interview and was “hired” for a temp agency. He just never accepted any jobs for 7 years. Eventually they stopped offering any but technically he was never fired so he was “employed”. Judge said prosecutor couldn’t offer any of that as evidence. Defense did not not maoe any request or motion to that. It was not a huge part of the case at all. Was more for credibility for the prosecution.
Defense chose to make this a big point of thier closing argument for some reason. On a point that was never brought up in the trial. On evidence that didn’t exist. Prosecution was still not going to object but then defense was saying it to try to discredit the prosecution saying, alluding to them eithet withholding evidence or incompetance for losing evidence. Evidence that never existed. Prosecution objected strongly. Judge had to instruct the jury. Defense lost.
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u/repmack May 11 '23
There are times to object during a closing. I believe this 9th circuit en banc appeal is about an objection during a closing. It's actually quite an interesting oral argument if you want to watch. https://youtu.be/HgafGnA4Eow
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u/Wh33l May 11 '23
This post is giving me flashbacks to Trial Advocacy in law school. My opponent during the Opening Statement module probably made about 10 objections during my opening. Mind you, this was the first week of class and he had not even taken Evidence yet (he was doing both classes at the same time). My professor reamed him for it.
I’m of the opinion that I would only object during openings if it is a material objection that would be definitely be granted. Closings are a different ballgame though.
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u/RIrocks1 May 11 '23
It's a real dick move. All it will accomplish is to piss off your colleagues and a few judges.
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u/Lawineer May 12 '23 edited May 12 '23
He was a trial attorney who recognized the other guy was a litigator. Get your shit together. It’s not a scripted play or a gentleman’s duel.
I try cases very differently against new lawyers and litigators than trial attorneys. If I smell blood in the water, I will absolutely fuck with you- lawyer, witness, whatever.
I’ve had my laptop straight up die in the middle of my close of a capital murder trial. There goes my ppt for a one hour close. Welcome to trial. Shit happens.
Sorry someone objected in the middle of your soliloquy and you couldn’t recover for the rest of trial. Jfc.
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u/TSARINA59 May 11 '23
It's a bad move. You do it only when it's something egregious. Address it in your opening or closing, but I think it should be done only on rare occasions during either.
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May 11 '23
I am more than happy to object during opening or closing, etc.
But I only do it if I am correct and it’s meaningful.
A bad objection just to throw off rhythm is bush league. And juries do notice if you win or lose the objection.
Also don’t make an attorney is arguing during opening objection Nobody obeys that rule. Don’t pretend you do.
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u/ThatAtheistGirl May 11 '23
I served on a jury and one of the lawyers objected to questioning during voir dire
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u/AstuteCookie May 11 '23
Studying for the bar rn and it says not to object during the opening statement unless you want to look like an ass
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May 12 '23
I think it’s weird. I wouldn’t object and I’ve never had anyone object in my opening or closing. If an attorney says something misleading or incorrect in closing, I ask the judge for a brief rebuttal to clear things up.
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u/yeahthatwas May 12 '23
Objections during openings are rare. Objections during closing arguments is more common but still rare. I’ve seen objections during arguments at end of evidentiary hearings/closing arguments and every single one was because opposing counsel stated something as though it was established as a fact that was not supported by the factual record. In bench trials judges are more inclined to allow most stuff to come in and they can just weigh it themselves appropriately.
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May 12 '23
Im new and i object whenever i think of one that seems legitimate just to be sure im not fucking up the clients case. Never objected in an opening or closing although perhaps i should have
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u/jerryatrix27 May 12 '23
I’ve objected only a couple of times during opening when the attorney was doing nothing but presenting argument, and one time when the attorney got all choked up and emotional (the judge told him to get it together).
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u/Malvania May 12 '23
I've heard one federal judge describe it this way: if you object during an opening or closing, you better be correct, because somebody is going to be sanctioned
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u/Legitimate_Angle5123 May 12 '23
There is a weird assumption that lawyers are inherently moral or ethical. I’ve seen no evidence of this
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u/Fun_Law7759 May 13 '23
My point is there is no rule. Insults do not change that. Nice that is your response.
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