Dallas Bar Association

15 Key Objections Every Lawyer Should Know

by William A. Newman

Preventing the submission of improper evidence is crucial. Objections are the tools that manage this flow of evidence. Although not exhaustive, here are 15 important objections every lawyer should know:

1.                  Hearsay. Rules of Evidence Rule 801(d) defines hearsay as “a statement . . . to prove the truth of the matter asserted.” If the passenger testifies that the driver said, “The light turned green,” this statement may be hearsay if offered to prove that the light was green; however, if the passenger was asked, “How do you know the driver was watching the road?” the response would not be hearsay.

2.                  Competence. Everyone is competent except the Judge, jurors testifying about deliberations, children, the insane, or those excluded by the Dead Man’s Rule. Tex. Evid. R. 601(b). That Rule says neither party may testify to statements by the deceased unless (1) corroborated or (2) the witness is called by the opponent.

3.                  Argumentative. This is not an objection to being disagreeable. An argumentative question makes jury argument, summarizes, draws inferences, or comments on evidence. A question that began, “If Jesse Contreras had not been shot like a dog . . .” was argumentative.

4.                  Harassment. Harassment occurs when a question is asked to embarrass, bully, or brow beat. However, even “harassing” questions might be allowed if otherwise relevant

5.                  Best Evidence Rule. Although circumscribed, the best evidence rule finds continuing vitality in the Rules. Under the best evidence rule, secondary evidence, such as a copy, is not admissible if an original document exists unless you prove “authenticity.” The use of mechanically produced duplicates is allowed unless a party raises a genuine question about their accuracy. Testimony about the contents of a document is subject to the best evidence rule.

6.                  Leading Questions. A leading question suggests the desired answer. For instance, “You were at the bar on the night of July 5, weren’t you?” Leading questions are permitted: on cross, on preliminary matters, for adverse witnesses, or when the witness is infirm and needs help.

7.                  Lack of Foundation.  Applies when the witness does not have “personal knowledge” of the subject of testimony. Tex. Evid. R. 602. It may also apply to a failure to prove an exhibit or failure to lay the proper predicate for an expert.

8.                  Opinion Testimony. A lay witness’s opinion is only admissible if it is “rationally based on the perception of the witness.” Tex. Evid. R. 701(a). A lay witness cannot offer an opinion about the ultimate cause an accident. He can say that a car seemed to be going excessively fast, but cannot offer an opinion of velocity or draw a conclusion beyond his perception.

9.                  Daubert Objection. Does the proffered opinion actually assist the jury? If not, it probably is not admissible. If it is conclusory, it offers “no evidence.” Generally, you must object before the evidence is offered. But “no evidence” issues may be raised later. Remember that Daubert principles apply to all experts, not just scientific.

10.              Ambiguous. An ambiguous question is one that is likely to confuse the jury or witness. Tex. Evid. R. 611.

11.              Asked and Answered. This objection is appropriate when a question is repetitive and unlikely to lead to additional evidence. Tex. Evid. R. 403, 611.

12.              Assumes Facts Not in Evidence. Facts must be established by a witness or other evidence. You may not otherwise assume facts. Tex. Evid. R. 611. However a lawyer may explain how the inference comes from earlier evidence or reframe the question as a hypothetical.

13.              Compound. A compound is one that simply contains two or more distinct inquiries. Tex. Evid. R. 611.

14.              Authentication. Authentication is “a condition precedent to admissibility” and “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Tex. Evid. R. 901. Rule 901 contains a non-exclusive list of ten types of authentication. Rule 902 lists “self-authenticated” documents, including sworn business records.

15.              Bolstering. Unless the opposing party has already questioned the character or truthfulness of a witness, evidence with the purpose of proving that the witness is worthy of credit is bolstering. Although the word is not present in the Rules, the substance is found in Rules 608(a) and 613(c).

 

William A. Newmanis an attorney for The Bassett Firm. He can be reached at wnewman@thebassettfirm.com.

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