GREGORY CHANDLER - The Art of the Objection

I lectured a group of United States Marine Corps recruits last year and showed some clips from the military court-martial movie, A Few Good Men.  My goal was to teach matters such as only obeying lawful orders.  As viewers of the movie may recall, two young Marines had been given an order to train another Marine.  Unfortunately, the training took the form of physical harassment and the Marine that received the training died.

I saw A Few Good Men on television recently, and I noticed a scene from the film that is helpful for trial attorneys. My recent viewing of the movie recalls a class I had at the national session of the  National Institute of Trial Advocacy in 1994.  In 1994, the movie A Few Good Men was less than two years old.   

Anyway, there is a scene in which a Marine prosecutor calls a United States Navy medical doctor to the stand to testify about the dead Marine.  The Navy doctor gave the deceased a medical checkup.  In addition, the Marine prosecutor offers the Navy doctor to the proceedings as an expert medical witness. 

The Navy Judge Advocate General (JAG) attorney, played by Tom Cruise, objects to the Navy medical doctor being presented as an expert witness.  In the view of the JAG defense attorney played by Cruise, the Navy medical doctor, an internal medicine doctor, did not have the required expertise to testify as an expert witness as to cause and manner of death. 

The military judge overrules the objection.  It appears that the objecting attorney expected the objection to be overruled.  As so often happens in trial litigation, an objection is helpful whether the objector wins or loses.  For example, even if the objection is lost, the objection is preserved for appeal.  In addition, an objection, may win points with the fact-finder. 

Whatever the reason for the objection, the defense suffers a blow because of an unfortunate move by a member of the defense team played by Demi Moore.  The JAG attorney played by Moore jumps up and makes a frantic statement that the defense "strenuously objects," and lectures the military judge that accepting the Navy internal medicine doctor as an expert is unfairly prejudicial to the Marines on trial. 

The angry military judge restrains himself and lectures the defense team that the Navy internal medicine doctor is indeed an expert witness and that the Court will accept his opinion.  The fact that the judge shouts that the internal medicine doctor is an expert witness is damaging to the defendants' case. 

The exchange between the defense team and the military judge highlights the fact that making trial objections is both an art and a science.  An objection is not made for the mere purpose of winning an objection.  Rather, an objection is made for the purpose of winning the case.  A good objection advances the goal of winning the case regardless of whether the objection is sustained or overruled. 

Unfortunately, many trial attorneys do not fully understand the art of the objection.  A good
litigator--trial or appellate--takes steps to advance the case even if such step is not successful.

For example, a litigator will often seek to discover medical documents showing a serious injury with the full knowledge that the alleged injured party has no serious injury and, therefore, cannot produce documents showing a serious injury.  An objection by the attorney for the alleged injured party is of little consequence because the asking party knows that the documents requested do not exist. 

With that in mind, we can now go back to the objection in A Few Good Men about the internal medicine doctor being held as an expert medical witness.   It appears that the reason for the objection to the doctor being viewed as an expert medical witness is not for preventing the internal medicine doctor from testifying as an expert witness.  Instead, the purpose of the objection--in front of the court-martial panel--was to cast doubt on the internal medicine doctor's testimony and boost the defense case. 

If the defense presents its own expert witness, the defense expert witness can be presented as more credible than the prosecution's expert witness.  In addition, in closing argument, the defense can argue that the prosecution witness is simply weak.  All seasoned trial litigators know that some points are saved for the closing argument. 

Finally, remember that there is an art in objecting. The reason for the objection is to help one's case without regards to actually winning the objection. 


GREGORY CHANDLER, Attorney at Law
Colonel, United States Army Reserve