OBJECTION YOUR HONOUR! ROBERT S. HARRISON JENNIFER McALEER FASKEN MARTINEAU DuMOULIN LLP THE BASICS What is an Objection? By definition an objection is an interruption. It should only be made when it is warranted. But when it is warranted, it should (and sometimes must) be made. Objections first made in the Court of Appeal to evidence heard at trial as a general matter will be far too late. How To Make An Objection Get on your feet Objection, your Honour ; or I have an objection, your Honour. Then explain the basis of the objection. Do not do it backward, as in That s hearsay! How to argue an objection Arguing an objection is essentially a mini argument on a mini motion. Usually the judge will ask what is the nature of the objection. You will tell her. Unless it is self-evident to the trial judge that your objection is groundless (or unless she agrees with you and wants to hear immediately from examining counsel), you will be asked to state briefly why the question is improper. Examining counsel will then respond and you will be given a reply, if necessary. On occasion, the argument of an objection may be prolonged if a significant point of law has been raised, or a ruling on the objection will have broader implications for the examination of the particular witness or for the balance of the trial. For example, the question objected to may raise larger issues of whether legal privilege has been waived in whole or in part. If you have anticipated having to make certain types of objections (or respond to them), you should come armed with the relevant authorities. Your evidence book should always be at your side.
- 2 - OBJECTIONS DURING COUNSEL S OPENING Generally speaking, judges have a low tolerance for counsel being interrupted when making submissions. You will get your turn and, from a tactical perspective, it can be more effective to let opposing counsel become firmly committed to an erroneous position before you get on your feet. So, keep your powder dry, subject to recognizing that there may be exceptions: (I hate to interrupt my friend, but ). For example: 1. Counsel is misleading the trial judge on a crucial evidentiary point, which you can easily correct. 2. Counsel is taking legal positions (causes of action or defences) that are not in the pleadings, and you object because you want to push opposing counsel while on her feet as to whether these new legal positions are seriously being advanced and require a response. OBJECTIONS DURING EXAMINATION-IN-CHIEF Excluding the Witness It is very common - and frequently essential - that before you articulate the basis of an objection that the witness be asked (by the trial judge) to leave the courtroom. (This point is just as important for objections during cross-examination). You should not have to telegraph the basis of your objection to the witness, nor should opposing counsel have the opportunity to telegraph the desired response. It is also potentially confusing for a witness to have to listen to lawyers argue about the witness evidence. Leading Question A leading question is one which suggests the answer to the witness, - the most basic leading question is one to which a yes or no answer will suffice. Once the damage is done it is hard to undo it. Learn to recognize the start of a leading question so that you can object before the substance of the question is asked (examples: Would you
- 3 - agree ; Am I right that ). Leading questions are acceptable when introducing noncontroversial subjects, but that s it. Be alert. Object early. Try to set the ground rules to stop leading questions from continuing. Asks for Hearsay Objections on this ground are very common. For example, testimony relating a conversation may start out innocently enough, but then may drift into an attempt to prove a fact on the basis that it was relayed to the testifying witness during the conversation. This is hearsay and is inadmissible. Beware the state of mind exception to the rule against the admission of hearsay. That is to say, the evidence is not being tendered to prove the truth of what was said but to demonstrate the declarant s state of mind. No foundation This, perhaps, is an American expression, but if it becomes apparent that a witness is stating facts or reporting observations without any groundwork having been laid to establish that the witness knows what he is talking about, an objection on this basis may be appropriate. But you may want to save this for cross examination. Prior Refusals on Discovery (Rules 31.07(2) and 53.08) Your trial brief should include a list of refusals and, if you did your discovery correctly, you have warned opposing counsel that objection would be made to any attempt to lead evidence on areas refused during the discovery. Calls for an Opinion Witnesses are permitted to express what technically are opinions, but are simply views based on common everyday experience. But questions like How fast was he driving? have buried in them an assumption of expertise that the witness probably does not have.
- 4 - Evidence would be self-serving Particularly when credibility is an issue, a question asked of a plaintiff or defendant such as Did you later tell Sam what happened? may be objectionable (there are exceptions) on the grounds that the question seeks to elicit a prior consistent statement. The Question is in the form of a hypothetical Sometimes a question asked of a lay witness like If the ping pong table had been located in a larger room, would it have made any difference to whether you felt safe? may be properly objected to on the basis that the question is hypothetical and therefore will elicit evidence which is speculative, not probative, and prejudicial. This is a difficult area. Questions of this nature potentially may be permitted on the basis they are designed to demonstrate the witness state of mind or that they relate directly to an issue in the litigation. Hypothetical questions are commonly, and properly, asked of an expert. Irrelevant / not probative It would be unusual to object to a single question on the grounds that it seeks to elicit irrelevant evidence, but an objection to a general line of inquiry on this basis is proper, and may be tactically essential to permit you to understand the significance opposing counsel attaches to the evidence. The pleadings define the legal and factual issues in a case and if the evidence tendered does not relate to these issues - even on a generous view - objection on the grounds of irrelevance is appropriate. From the perspective of trial judges, the last thing they want to be doing is taking careful note of testimony that has nothing to do with the issues in the case.
- 5 - Prejudicial /Inflammatory Objections on this basis in a civil case are not frequent. However, when, for example, you are defending a breach of contract case and no bad faith is alleged or punitive damages sought, it would be proper to object to questions being asked regarding the effect of the breach of contract on the plaintiff s family. Objecting to the Answer Inadmissible evidence is inadmissible regardless of whether the question was proper. So, for example, if a witness responds with hearsay, it is entirely appropriate to object. Or, if your witness inadvertently wanders into areas protected by legal privilege, an objection would be necessary. OBJECTIONS DURING EXAMINATION-IN-CHIEF OF EXPERTS Preliminary Point - Voir Dire Prior to an expert s being permitted to give opinion evidence, the expert must be qualified as such by the trial judge. Frequently, opposing counsel does not object to Mr. James being accepted as an expert qualified to give opinion evidence in the area of., but there are other times when a voir dire is tactically appropriate. In such circumstances, after counsel reviews the expert s qualifications, opposing counsel is entitled to crossexamine on these qualifications prior to the trial judge s ruling, which, in some cases, may limit the areas the expert is permitted to testify about or, potentially, might lead to the expert s evidence being excluded all together. Substance of testimony not included in expert s report (Rules 53.03(3) and 53.08) Counsel should consider filing a supplementary expert report, if she learns before trial that the expert has more to say which cannot reasonably be said to be included in the opinion contained in the expert s existing report. If you have a substantive objection along these lines, you almost certainly should make it immediately. If successful, it can be devastating.
- 6 - Outside the expert s expertise An objection based on this ground is entirely proper. A tactical decision must be made as to whether this can be dealt with more effectively on cross examination. Failure to comply with the content requirements of an expert report (Contrary to Rule 53.03(2.1)) Again, a tactical decision must be made whether to save the objection for crossexamination. That decision would potentially depend on how egregious the noncompliance was. For example, if an expert in chief started talking about extensive research that was not disclosed in the expert s report, immediate objection to the admissibility of the evidence would probably be warranted. Opinion Based on Facts not Proven If the expert is the opposing party s last witness, an objection is perhaps warranted on this ground; otherwise it should probably be saved for cross-examination. OBJECTIONS DURING CROSS-EXAMINATION Introduction The Supreme Court of Canada in R. v. Lyttle, 2004 SCC 5 (CanLII) has said the following about the right of cross examination, and these comments are applicable to a civil case as well: The right of cross-examination must therefore be jealously protected and broadly construed. But it must not be abused. Counsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value. Gratuitous / Obstructive Interference It is fundamental to our adversarial system that opposing counsel be given a full opportunity to cross examine witnesses and that they should have a fairly free hand in
- 7 - doing so. To put it mildly, trial judges look askance at efforts to disrupt a crossexamination. Exclusion of the Witness Perhaps more importantly than with objections during examination-in-chief, it is appropriate to have a witness excluded during the argument of a significant objection - to eliminate the nature of the issue being telegraphed or the witnesses being coached. The question is unintelligible One thing no witness should have to do, especially under cross-examination, is to struggle to understand the question. So a perfectly proper objection in my view, is to say that you have not understood the question so you do not know how the witness can be expected to answer it. The question, as framed, is improper Examples of an objection on this ground are numerous, but whether the objection has real substance will depend entirely on the circumstances. Examples include: (i) (ii) (iii) Answer yes or no, witness? Do you agree that you breached the contract and that your first name is Harry? Why don t you tell me the truth? Objections as to Premise There can be at least four types of objections on this basis: (i) The question imbeds an implicit assumption which is not (at least yet) in the evidence, and which the witness has not commented on one way or the other. (ii) The question misstates the evidence of other witnesses. (iii) The question misstates the evidence the witness has just given. This is a favourite trick of cross-examiners who like to slide in things that the witness has not really said,
- 8 - with the objective of pushing the witness along. An objection on this basis however can be difficult. Cross-examining Counsel are entitled to summarize what they believe a witness has said. (iv) The question tells the witness that such and so will be the evidence from another witness, and what does he have to say about that? No counsel can say what future testimony will be - it has not been given yet - and no witness should be bullied in this manner. However, it is proper for cross-examining counsel to pursue this kind of inquiry by putting to the question differently: I expect so and so to say such and such or If so and so says such and such and then to suggest to the witness that this anticipated evidence is true. Prior Inconsistent Statements Participants in courses such as these will be familiar with the protocol required to be followed when cross-examining counsel wants to challenge a party with a contradiction from the party s examination for discovery, or some other form of prior inconsistent statements. The foundation for this protocol can be found in a broader principle enshrined in sections 20 and 21 of the Evidence Act, which provide that the particulars of a prior written - or oral - statement (of any kind) that the cross examiner wants to use to contradict the witness must first be put to the witness. It therefore follows that an improper question on cross examination would be Now witness, you once wrote a letter to my client that puts the lie to everything you have sworn to, isn t that so? This is backward. First, the witness must be shown the letter. The same applies for an oral statement. Some Miscellaneous Objections (i) Not Letting a witness complete an answer. This is a valid objection, as long as it is clear the witness is being responsive.
- 9 - (ii) The question elicits privileged information Very few witnesses are attuned to saying What you are asking would require me to tell what I told my lawyer. (iii) Documents not authored by the witness Broadly speaking, a note or memorandum is not proof of anything other than, perhaps, that the note or memorandum was made, unless the person making the note or memorandum testifies. What follows from this is that a question on cross-examination requiring a witness to explain somebody else s note, or to agree his evidence cannot be right because the note is different may well be improper. (iv) Unfounded Suggestions It is not a proper objection that a suggestion put to a witness by counsel on cross examination has no foundation, as long as counsel has a good faith basis for making the suggestion, R. v. Lyttle, supra. Treatment of the Witness Counsel are entitled to vigorously cross-examine opposing witnesses, but abuse of a witness is another thing all together, and trial judges are acutely aware of the difference. Ours is a question and answer system. In other words, counsel on cross-examination are limited to asking questions. That means, for example, that it is not acceptable for counsel to say: Witness, I don t believe you. Counsel s opinion of the witness evidence is first of all irrelevant, and remarks like this can be very intimidating. Worse still, would be this statement by cross-examining counsel: It is obvious that no one in this courtroom believes a word you are saying, including Her Honour. Exaggerated body language designed to have the same effect is just as objectionable. Other objectionable conduct can include shouting at the witness, or standing too close to the witness box (with the purpose of invading the witness space).
- 10 - On a cross-examination, it is not a proper objection that a question has already been answered, but, at some point, enough is enough and the questioning turns into hectoring and requires an objection. OBJECTIONS ARISING ON RE-EXAMINATION Re-examination is a mine field for re-examining counsel, even without objection from opposing counsel, because trial judges are attuned to the limits of a proper reexamination. Typical objections on a re-examination include the following: 1. The question does not arise from something the witness said on cross examination. 2. The question is simply an attempt to repeat evidence already given in chief. 3. The question is leading. 4. The question mis-states the evidence. OBJECTIONS DURING CLOSING This commentary applies to any legal argument by counsel during the trial. The basic rule is: Don t object during opposing counsel s argument. You will get your chance. Trial judges enforce this rule rather vigorously, and it also works for counsel. It is far more effective to let opposing counsel make an argument based on a misunderstanding of the facts, or the law, and then to eviscerate the argument in responding submissions.
- 11 - OBJECTIONS OVERLOAD This paper, and this programme, are about how to make proper objections. Having learned the skill, however, counsel are advised to use it sparingly and well. In this regard, here are a few considerations: 1. If you need to object to a particular line of questioning on admissibility grounds, consider whether a generic objection might be appropriate, to protect your client s position on appeal, but to limit the number of times you need to stand up and down. 2. Consider saving what you may think are clever objections for your cross-examination. 3. Remember that there is good law to the effect that at some point opposing counsel s frequent objections will be seen, if not by the trial judge, then by the Court of Appeal, to have interfered with the other side s right to a fair trial. In that event, you can guess who might have to pay the costs of the first trial personally.