The No Objection Objection

Objection – Do you really want to go down that road?

In the 90’s, I was summoned for jury duty. I responded with no expectation of being seated as a juror. After all, I was a lawyer – who would allow a lawyer to participate in a trial as a juror?

To my surprise, I was seated for a very highly publicized trial which made the national news.  In fact, several of the jurors appeared on 60 Minutes to talk about the trial afterwards. I declined that invitation. If you ever have the opportunity to participate at trial as a juror, consider it a tremendous educational experience.

Since this trial was about a physician removing life supports from his newborn son, it was highly publicized and the attorney for the physician was very skilled. So was the prosecutor.

During the course of the trial, as jurors, we were instructed to withhold discussions about the case until we were to deliberate by the judge. Several times during the week-long trial the other jurors would attempt to discuss the proceedings. Each time, I would remind them that we were not allowed to do so. When we adjourned to the jury room for the first time, one of the jurors asked me a question about the trial proceedings. He knew from voir dire that I was an attorney. I responded that it was not appropriate for me to answer his questions and that he would have to submit his question to the bailiff for the judge to answer. I told the other jurors to forget I was a lawyer, as they wanted to look to me for advice, and instead, to think of me as woodworker.

After being charged by the judge to deliberate, several of the jurors commented on how much they liked defense counsel because he didn’t raise objections as often as the prosecutor. They didn’t like delays during the trial and felt that the prosecutor objected too often. Besides, his objections were often not sustained.

The No Objection Objection

Often defense counsel started to object, but those objections were never made a part of the record. That was because they were done silently. They were never even noticed by the prosecutor.  To this day, I don’t know if defense counsel did it intentionally. But, I thought it was an interesting strategy if done intentionally.

Here is how the “no objection objection” took place. First, defense counsel objected on the record in exactly the same manner every time he made an objection. He would rise up slowly raising his right arm and pointing his index finger toward the ceiling. He would say very deliberately and in a measured tone, “Your honor, I must object.”

Almost as often, he would rise up slowly raising his right arm and again pointing his finger toward the ceiling. But rather than vocalize the objection, he would wave his hand toward the judge as if to say, “forget it”. Then he would sit right down. This was done while the prosecutor had his back to defense counsel. The prosecutor never knew this took place and the jury saw it happen.

However, the jurors took note and were distracted from testimony that the prosecutor felt important for them to hear. To their eyes, defense counsel appeared to be letting the prosecutor have his way. Jurors may have assumed that he was allowing something that was objectionable. Due to the defense counsel’s distracting behavior, they were unable to pay strict attention to the testimony that defense counsel disfavored. Finally, the judge was never given the opportunity to rule on whether it was a legitimate objection or not.

Had defense counsel made the objection for the record, he would have drawn attention to unfavorable testimony. Of course, the judge could rule in favor of defense counsel and instruct the jury to disregard what just transpired. Some would say that this is an impossible task to rid your mind of that memory. This makes the “no objection” even more powerful – if that was defense counsel’s intention. I will never know.

In the future if you find yourself at trial – keep in mind, “no objection”  may be your best tactic or is it? The lawyer who engaged in this process was able to pull it off because he was a very skilled trial attorney. Or, it may have only worked because it wasn’t intentional. Either way, I know how the jurors expressed a more favorable opinion towards defense counsel because he wasn’t constantly breaking up the momentum of the trial like the prosecutor. I have tried a lot of cases and observed my share as well. I believe new attorneys very often object more often than necessary with unintended consequences.  Think before you object – will that testimony really impact the outcome of the trial? If so, object, if not, consider the possible negative consequences of making that objection.

Also, if you ever get called for jury duty, consider it to be an opportunity to fine tune your skills.  Learn how to be a better litigator by seeing a trial from the jurors’perspective.