Shawn Matlock delves into the zen of objecting.  Noting that his experience is that prosecutors object to technical errors because they are technical, without any consideration of the impact the objection will have on the jury, even though they leave the jury with the impression that they are trying to “hide” something. 

Defense lawyers, on the other hand, object based on the circumstances of the trial, less concerned with technical errors if they are inconsequential to avoid the appearance of keeping the jury from hearing testimony that does no harm.  Shawn then gets into the specifics of objecting during opening statements. 

When I was in law school, my trial coach used to say that you should never object during the other side’s opening or closing. I don’t agree with that. Although I don’t hold fast to that rule, I will rarely object to a prosecutor’s opening. Mostly, because I know they will object to mine, and it’s more fun.

I feel like I’m not doing a good job if I don’t get objected to during opening. Why? Well, the first reason is I get to say what I want before they object. Secondly, prosecutors don’t think three steps ahead like we do. They hear something objectionable and the object. They don’t think about how it plays in front of the jury.

Shawn’s right.  In my earliest trials, I tried to avoid saying anything objectionable during the opening.  Why?  Because I shouldn’t do so.  If it was objectionable, it was against the rules, and it was wrong to do something against the rules.  Young lawyers are taught the rules, and we’re told that this is the way we should play the game.

The problem is that it’s not a game. It’s a person’s life, and there’s no satisfaction in playing by the rules but losing the game.  We play to win.  We play to keep a person from getting convicted, and that involves a strategic view of everything that happens, including how we open and whether we can get the other side to do something that will make them look obstructionist to the jury.  Do we try to give the jury a false impression that the prosecutor is trying to conceal the truth from them?  You bet.

The opening statement is where we get to speak, face to face, with the jury.  We prime them for what we intend to do during the trial.   We prepare them to think critically of the prosecution’s witnesses.  We challenge the jury to challenge the government.  Any lawyer who is more concerned about the rules than about using this opportunity to argue his case to the jury doesn’t understand what he’s doing up there.

During openings, I will make argument.  I will testify.  I will raise points that I seriously doubt that I will ultimately prove for lack of a witness to say so, but will plant the seed of problems with the prosecution’s proof and create the foundation for doubt.  And after I get the words out, going beyond the scope of a proper opening statement, I listen for the objection.  I anticipate it.  I expect it.  I’m ready for it.

If the objection doesn’t come, then I push the envelope farther.  I will continue to push until I get every argument out on opening that I possibly can.  If no one objects, I just keep going.  The funny thing about the rules at trial is that if no one invokes them, there are no rules.

When the objects finally comes, I’m ready for it.  I then highlight the objection in order to make sure that the jury knows that I was in the process of telling them something very important about the case, but the prosecutor doesn’t want me to do so.  I make the prosecutor pay dearly for the objection.

Rarely do I object to the prosecutor’s opening.  Rarely do they do anything objectionable.  They are trained to play by the rules, and they usually do.  They are a very rule-based group.  I also want to be in a position to juxtapose how I let them open without interruption, but they refused to give me the same courtesy.  People don’t like the sense that one side is behaving unfairly toward the other.  And we all know that it is rude to interrupt.

When I teach at the ITAP program at Cardozo Law School, one of the other faculty members will often critique a student for asking a question in an improper but effective manner.  This never comes out of the mouth of a criminal defense lawyer.  Usually, it’s from a lawyer who has limited trial experience, who knows the rules and plays by them. 

I tend to explain that I disagree; if the other side didn’t object, and the question was effective, then the student did well.  Sure, they have to know how to properly frame a question, since the objection will force them to rephrase it properly or walk away from it.  That happens a lot when the can’t figure out how to get the question out properly and finally give up.  They tend to get stuck on one approach, and have problems shifting gears on the fly.  This comes with experience.

But the one thing you never want to have happen is the judge telling you after the guilty verdict comes in that you did a wonderful job playing by the rules.  The only rule that matters is to constantly think strategically so that you have given your client the best possible chance at the verdict he seeks.  All of the other rules are just obstacles to overcome.  If there’s no objection, you haven’t pushed far enough.