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HANDLING OBJECTIONS-ATTORNEYS EXPECTATIONS OF JUDGES - MN Bench Book - Trial Procedures & Practices for Judges
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HANDLING OBJECTIONS-ATTORNEYS EXPECTATIONS OF JUDGES

From MN Bench Book - Trial Procedures & Practices for Judges

Click on “TRIAL PROCEDURES & PRACTICES FOR JUDGES” above to return to main page

By Judge Jim Morrow (Ret.), Minnesota 10th Judicial District.

In May of 1991, Judge Morrow surveyed a broad base of Minnesota litigators soliciting their perspectives on the “do’s” and “don’ts” of how judges handle evidentiary objections. Over a hundred experienced trial attorneys responded with more than 150 pages of complaints and suggestions. With additions by Steve Simon Emeritus Professor of Clinical Education University of Minnesota Law School

The attorneys were broadly unanimous on the following points:

1. Require attorneys to bring motions in limine.

2. State your courtroom ground rules in advance. Attorneys believe it "levels the playing field" if they and their opponent hear the trial rules at the same time from the judge.

Common rules to establish in advance include:
  • What movement you allow in the courtroom;
  • Whether or not (and in what form) you want attorneys to request permission to approach a witness;
  • The timing and method of marking exhibits;
  • Whether or not you allow speaking objections;
  • Whether or not motions or other requests are to be made in presence and hearing of the jury;
  • Other courtroom formalities i.e. thanking you for your ruling.

Consider going over the ground and trial rules in the courtroom with the jury present. If the attorneys know the jury knows the rules they will be much more likely to follow them.

3. Prohibit “speaking” objections. Require attorneys to state their objection and the legal basis only. It is appropriate to interrupt an attorney making a speaking objection and ask the attorney for the grounds of their objection.

4. Require an attorney making an objection to briefly state the grounds for the objection.

5. When a foundation objection is made and sustained, require the objecting attorney to state where foundation is lacking.

6. Don’t react visibly. Avoid sarcastic quips, vocal inflections, facial expressions and gestures that might give the appearance of scolding or favoring one side or the other. If you have to react, do it in chambers.

7. Listen. Stay awake, keep your eyes open and pay attention.

8. Rule clearly, sustaining or over-ruling an objection. Judges too often postpone or simply avoid ruling on objections. Avoid saying “rephrase the question” or “ask another question.”

9. Learn and apply the rules of evidence.

10. Limit the amount of argument on evidentiary issues once trial has begun. If argument is allowed on an objection it should be done at the bench outside the hearing of the jury.

11. Limit bench conferences and chambers discussions, that being said, be flexible enough to grant one when an attorney can articulate why they need one.

12. Judges who never deny an attorney’s request for a bench conference have given control of the trial to that attorney.

13. Sidebar and chambers discussions, if not contemporaneously on the record, should always be subsequently put on the record. The judge can put a summary of what was said at the side bar or in chambers on the record, giving the attorneys the opportunity to add or correct anything said by the judge.

14. Other than stating your ruling on a specific objection where the grounds have been clearly articulated, judges should seldom explain the basis for his or her ruling on objections.

15. Curative and cautionary instructions should be given if requested, but recognize their limited effectiveness. In a criminal case, always ask the defense attorney and the defendant if curative or cautionary instruction should be given. Do this outside the hearing of the jury.See also CURATIVE AND CAUTIONARY INSTRUCTIONS


16. Clarify the basis for your ruling when multiple grounds for the objection have been asserted.

17. It is not necessarily inappropriate to reverse your ruling on an objection should facts/circumstances dictate. Attorneys respect a judge who does so.

18. It is just as important in court trials, as it is in jury trials, to rule on all objections. The attorney making the objection is also making a record for appeal.

19. Inform the attorneys that it is not necessary for them to thank you for your ruling.