Dealing With Speaking Objections In Trial Shane Henry & Aaron Bundy, FRY & ELDER I. Why are we talking about speaking objections?
is this court's position on speaking objections?"" One of the authors tried that. The judge turned and pointed his finger out as his veins bulged on his forehead. "You know this court’s position on speaking objections!" he yelled . "NOW DEAL WITH IT!!!" the judge finished. The speaking objections continued. In another trial, opposing counsel was continually making speaking objections both during direct and cross examinations. The judge was asked to get involved and shut the lawyer down. The judge very clearly stated that he did not have time to explain his position on speaking objections to either of the lawyers. A request was then made to strike opposing counsel’s “testimony,” and the judge explained that the speaking objections were not testimony and instructed the questioner to move on.
Trial work is messy.1 The instructions to high school students involved in the OBA’s mock trial program include this warning: “Unexpected obstacles in the course of a trial are the rule rather than the exception.” To be successful, trial lawyers must prepare to deal with common issues that arise in trial. Trial preparation includes anticipating possible problems, and trial practice includes dealing with problems as they occur, whether anticipated in advance or not. Speaking objections are a recurring problem in trial. We were prompted to write this article as a result of failure: failure in dealing with speaking objections at trial, and failure to effectively present our client’s cases at trial as a result of problems with speaking objections. Trial judges generally prefer that us trial lawThis article is about defining and recognizing speaking yers deal with our own problems. Asking the judge to objections and addressing them in various ways. get involved is a last resort, and even then, doing so almost always ends badly. Fortunately, there are ways From time to time, the authors have had prob- we can effectively deal with speaking objections which lems dealing with speaking objections at trial, so we we will discuss below. asked some veteran trial lawyers about how to deal with it. Answers varied. One said, "After the second or II. What is a speaking objection? third speaking objection, ask the judge politely, "What Making objections is one of the important parts
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“Jury trials are not an exact science. A lawyer’s decision about what witnesses to call or not call at trial is an exercise of professional judgment, and lawyers must make informed and sound judgment calls in the heat of the moment at trial. . . .” State ex rel. Oklahoma Bar Association v. Ward and State ex rel. Oklahoma Bar Association v. Starr, 2015 OK 48, ¶ 45 (emphasis added). 2 “It is a well established rule of this Court that defense counsel must object, in a timely manner, to objectionable statements. Failure to do so waives all but plain error.” Bland v. State, 2000 OK CR 11, ¶ 89, 4 P.3d 702, 726, citing Smallwood v. State, 1995 OK CR 60, ¶ 38, 907 P.2d 217, 229; Simpson v. State, 1994 OK CR 40, ¶ 12, 876 P.2d 690, 693. 12 Tulsa Lawyer