Trials in divorce and family law matters can take place in some cases. Many divorce and family law cases settle outside of court. However, for the cases that do not, trial testimony and evidence can have a big impact on the result of the case.
During testimony and presentation of evidence, lawyers can object to testimony or the attempted admission of evidence. Sometimes, courts rule on these objections are rule in pre-trial motions. In other cases, the court has to make a ruling during trial on the presentation of testimony or evidence.
When a lawyer desires to object, the lawyer typically stand and log their objection as testimony or evidence is being presented to the court. The way this typically works is that a lawyer stands up and says, “Objection, your honor.” The lawyer then states their objection succinctly by saying, “hearsay,” “relevance” or any other appropriate objection without explanation. Afterwards, the family court judge usually sustains or overrules the objections. In some instances, the judge may ask for clarification from the lawyer for the basis of the objection.
Common Objections At Trial
Common objections during direct-examination are as follows:
- Not relevant;
- Calls for Speculation;
- Calls for a narrative answer;
- Asked and answered;
- Prejudicial effect outweighs probative value;
- Assumes facts, not in evidence;
- Lack of personal knowledge (no foundation);
- Misstatement of the record (misquoting the witness); and
- No proper foundation (specify missing elements).
Common objections during cross-examination are as follows:
- Beyond the scope of direct;
- Asked and answered;
- Assumes facts not in evidence;
- Compound question;
- Misstatement of the record (misquoting the witness);
- Argumentative; and
- Improper impeachment
If a lawyer does not object at trial, the reality is that they are likely waiving any objections they may have had on behalf of their client. Thus, it is vital for a lawyer to get out of their seat, stand up and object when necessary. Some lawyers keep a list of all objections at the counsel table in case to make sure they are not forgetting an appropriate objection because the time to object can come and pass quickly.
There are also numerous potential problems with witnesses that could also prevent evidence from being admitted. The witness may not have personal knowledge of what they are testifying to in court. The witness could also have applicable privileges that they can raise, such as work-product, attorney-client privilege, etc.
Pre-Trial Motions Are Also Important in Many Cases
Lawyers may also file pre-trial motions to keep evidence out at trial. A common pre-trial motion to keep evidence out is called a motion in limine. Evidentiary pre-trial motions are usually filed weeks or at least days before trial to allow for planning accordingly. Pre-trial memorandum and conferences are also an excellent way for lawyers to preclude evidence before trial.
Objections have to be timely and have a legal basis. During the trial, many attorneys will listen for buzzwords and make evidence objections off of that. This tactic can help save them time trying to figure out if what was said or presented fits into an objection before the timely opportunity for an objection has passed.
More Information on Available Objections
Significant objections to keep in mind during a divorce or family law trial, and that are most frequent, are hearsay, relevancy, lack of foundation, cumulative, and beyond the scope. When considering relevancy objections, courts have to consider whether: (1) the evidence is generally relevant under Federal Rule of Evidence 401 and 402; and (2) does Federal Rule of Evidence 403 considerations prevent admission? Additionally, special relevancy rules may exclude the offered evidence, such as: (1) do character traits apply under rule 404 or 405; (2) do other acts rules apply under 404 (b); do habit rules apply under rule 406; and lastly, do policy exclusion rules apply under rules 407-412?
Lack of foundation is another common objection. All exhibits needed factual and evidentiary foundation before their admission into evidence. In some cases, however, a lawyer may find that it is not wise to object under lack of foundation because opposing counsel might just be missing an element to establish a proper foundation. Raising the objection may force the opponent to establish the missing element.
Another popular objection is cumulative evidence under Federal Rule of Evidence 611. The family court judge has the discretion to control this evidence during trials and can rule on whether it is necessary or whether it is just merely repetitive. If counsel presents one exhibit after another that reinforces what all the others have presented, and there is no additional value, the exhibits may be unnecessarily cumulative and therefore objectionable. The most common example of this may be photographic evidence.
Beyond the scope is another frequently used objection under Federal Rule of Evidence 611. For example, under Federal Rule of Evidence 611(b), cross-examinations should be limited to the subject matter of the direct examination and matters affecting the witness’s credibility. Any time during cross-examination or rebuttal, if the questioning or content is not within the scope of the respective direct or cross, a timely objection is ordinarily proper.
The objections referenced above are not exhaustive, but rather just some of the objections that may come up in the family court. Nonetheless, for parties going through a divorce or family law matter, it is important to have a lawyer with trial experience who is familiar with trial procedure and objections. The ability of a lawyer to act quickly on their feet in court through raising appropriate objections, or through the use of pre-trial motions, can have a big impact.