Are there classes in law school that teach the magic words that litigation attorneys are supposed to say in court in specific situations? I spent some time in court recently in a few different types of proceedings, and I really did hear phrases like “May it please the court” and of course, “Objection”. And when he said “Objection” (civil case litigant representing himself) it seemed obvious to everybody exactly why he objected, and the judge just said “Sustained” and everyone moved on.
Are these bits of protocol merely customary, or more rigorously required? What happens if a lawyer, or someone representing himself, breaches this protocol?
I never had a class in it. You pick it up by osmosis. Profs talking about cases, going to court just to see what’s up as a student, then early days in a law firm, and actually going to court, where you see more senior counsel in operation.
How common are mock trials? Is that something you do multiple times in law school?
Sam Weinberg: “I strenuously object?” Is that how it’s done? Hm? “Objection, your Honor!” “Overruled” “No, no. I STRENUOUSLY object.” “Oh! You strenuously object. Then I’ll take some time and reconsider.”
When my father was in law school (he went to night school for four years when I was around 8-11 years old) he used to talk about “moot court,” which as he described it was practice courtroom trials.
Not being a lawyer myself, I would expect that objecting strenuously would be a tactic you would use against really egregious behavior from the other side, such that the judge might say something a little stronger than “sustained.” Maybe “You know better than that, counsel” or “The jury will disregard that question.”
I was in traffic court one time. And, for whatever reason, I kept inadvertently calling the judge Ma’am instead of Your Honor. But she could presumably tell that I wasn’t being intentionally disrespectful and didn’t make an issue out of it. I think most judges feel that as long as your demeanor is acceptable, they’re not going to get too concerned with whether or not you’re following the correct protocol.
I learned from just watching. Be careful though. I was in mock trial once and used the techniques I learned on the same judge the following day. I knew I should stand when I objected, but the attorney in court did not always do this. I copied his mannerisms and she gave me very high marks, but specifically pointed the lack of standing when she “graded” me.
I caught up with her later and asked her about it. What she said gave me great respect for the law:
'You didn’t hear me say anything in open court, as I didn’t want to take any chance that the jury would hold it against his client. I most certainly did when we were in chambers."
One of favorite phrases:
'With the Court’s indulgence" = “Hang on, I’ve got that paper right here let me find it.”
Any decent judge will be understanding as long as you treat the court with respect (and stand when you are speaking).
I thought even the queen could be addressed by Ma’aam after the first time addressing her formally, but don’t take my word on it.
My first year of law school, we had mandatory “moot court” sessions (simulated oral argument, often in an appellate setting) where we learned things like “may it please the court.” I also took a trial practice course that covered objections (and how to object). Most of it you pick up watching other people do it. The precise protocols will also vary by jurisdiction and by court.
I begin oral arguments with “May it Please the Court.” I don’t think it’s necessary, but it’s not a bad warm up and it’s the one part of the argument that I know will go correctly. If a lawyer (and certainly if a pro se litigant) skipped that, I don’t think anyone would care.
Someone would probably be expected to use “objection” when objecting (if only to keep the record clear if it becomes an issue later on). But as long as it’s clear what you’re doing, I don’t know if it’s expected (but what else are you going to say?).
Most (but certainly not all) judges are pretty lenient on pro se litigants as long as they behave politely.
In my constitutional law class (political science undergraduate, not law school), the instructor made the point that certain language works better in court that other language. His example was that you should never say, “Your Honor, you don’t understand”; you should instead say, “Your Honor, I have not made myself clear”.
In Niven and Pournelle’s “The Mote in God’s Eye” a junior officer learns that the way to say “You’re wrong” to a higher ranked officer is “That turns out not to be the case.”
A witness, David Wallace, testifies that George Saunders told him that the Defendant was high on crack. The Defendant’s attorney objects to the testimony without stating the grounds for the objection. The Court, believing the objection to be about Saunder’s expertise in judging who is and who is not high on crack, overrules the objection because George Saunders has enough specialized training to know. However, the testimony was hearsay and should have been stricken.
Can the appellate court review the hearsay issue? The answer is generally “no.” You have to object on the correct ground, and you have to state the ground. Same result if the attorney objected and identified only the expert opinion issue without identifying the hearsay issue."
When I was on jury duty, one of the defense attorneys asked the witness, in effect, “Isn’t it true you committed the crime and are framing my client?” The DA only said “Objection,” since the grounds didn’t need explaining, and the judge overruled as soon as the word was out of his mouth.
I remember once when the defense attorney began a question, and the DA objected to the way it was worded. It was sustained. Then the defense attorney asked another question that still wasn’t worded properly and the DA only said “objection,” since it was clear it was on the same grounds. Eventually, the defense attorney worded it in a way that was proper.
In other, less blatant, cases the DA or defense attorney stated the reason.
One thing that you’ll see on TV that I’ve heard you’ll never hear in actual court is:
Prosecutor: “Did you or did you not eat the cake?”
Defense: “Objection, your Honor”
Prosecutor: “Withdrawn”.
Apparently that sort of thing really pisses the judge off, since you’re both cutting the judge off (he’s supposed to make the decision on the objection) and if you’re so sure your question is objectionable, you shouldn’t have asked it in the first place. It’s a quick way to get slapped with contempt of court.
