Failing to Object
Later in this post, I will describe objections to evidence as I understand them. But first I want to address the problem of failing to object. While some new practitioners are overzealous in their use of objections, more fail to make them at all. It’s hard to interrupt, especially when the testimony is going quickly and you aren’t sure which objection to use. It’s worth preparing a few expected objections so you can get the hang of it. For example, you know the other side wants to introduce evidence you think should be excluded. When the topic is raised in a witness question, be prepared to state your objection. You can even make a cheat sheet for yourself.
When practitioners fail to object to questions that are clearly about topics that are irrelevant, far beyond the scope of the direct, or argumentative, I try to send a mental message inviting them to interject. My mental telepathy skills being what they are, it rarely works. Sometimes, I will raise the issue myself. I prefer the advocates to do it, though. They know the case better than I do, and I may be wrong about the issue I am raising.
Just as irrelevant and duplicative questions can unnecessarily delay a hearing, so can failures to object to obviously irrelevant and duplicative questions. Everyone in the hearing is responsible for the efficient presentation of the case.
Too Many Objections
On the other hand, obviously there are advocates who object incessantly. Maybe it’s intended to derail or agitate a witness or opposing counsel, maybe it’s misunderstanding an existing ruling.
In honor of the return of baseball season, I will share that I think that objections should be like challenges to umpire calls that were adopted in spring training this year.
Teams will start each game with two challenges. If a challenge is correct, meaning the system overturns an umpire's call, the team is allowed to keep that challenge to use again. But if a challenge was incorrect, and the umpire's call stands, the team loses that challenge.
I obviously wouldn’t limit the number of objections to two; however, the more I overrule the fewer the advocate should use for the rest of the hearing.
Objections
So what are objections? The following adapted from my book The Beginner’s Guide to Labor Arbitration Practice.
Objections are used to draw attention to evidence that the objecting party believes should not be a part of the evidentiary record. They are invoked during witness testimony or when a document is being introduced.
Here are the basic objections that I encounter in arbitration.
Lacks foundation: This objection is used when a question to a witness assumes a fact that has not been introduced before. It can also be used when a document has been introduced but not identified. If you get this objection, your best course of action may be to back up and ask a few preliminary questions of the witness rather than arguing about it with the other side.
Compound: This objection is used when the question has two or more parts and doesn’t call for a single answer. Again, the best course of action is to ask two or more separate questions that lead the witness to the same conclusion.
Vague: This objection is used when the answer could relate to different things, such as different occurrences. If the question was in fact vague, like, “What did he say?” then just back up and ask a more specific question. If the question made sense in the context of a series of questions, and the objection is being asserted to interrupt your train of thought, don’t let it get to you. Either wait for the arbitrator to rule, or just go ahead and rephrase the question in a way that includes additional information and makes clear that the objecting party wasn’t paying attention or something.
Calls for a conclusion: I hear this objection most often when the moving party wants their union president or the top manager to say what the outcome of the arbitration should be. For example, “Did you have just cause to terminate Jerry?” or “Did the employer violate the contract when he denied Jerry his band practice leave?” These questions and the inevitable objections make me roll my eyes internally. Of course, the manager thinks they had just cause, and the union president thinks the contract was violated. I also know that the ultimate decision rests with me, and I’m not persuaded by the obvious opinion of the party witness.
Argumentative: This objection relates to questions that are really just arguments with the witness. They often take the form of repeated leading questions and have the feel of a bad Perry Mason impression. As I discussed in my section on cross-examination, I am not impressed by arguments with a witness. If an advocate is making a more general point about an issue in the case and the way the matter has been treated historically, I will allow the question, but badgering and arguing aren’t useful for soliciting useful facts.
Hearsay: This is the most complex of the objections and warrants a longer discussion.
Hearsay is an out-of-court statement. It is any statement made by a person who is not testifying at the hearing. Any time a sworn witness wants to tell an arbitrator what someone else said, that’s hearsay. Simple enough, right? How could something as straightforward as that—hearsay—be one of the thorniest issues for new advocates, even folks who went to law school.
When a witness is testifying in court, they are not allowed to share hearsay. The complication is that there are so many exceptions to that rule that the admissibility of hearsay becomes a huge matter of contention at trials.
In arbitration, we make it easier. Hearsay is generally admitted. Parties don’t need to remember every exception to the hearsay rule. That doesn’t mean the arbitrator considers it when making her decision. In fact, most arbitrators personally apply a “no hearsay” rule when they are formulating their decisions. They will not rely on an out-of-court statement to establish a fact.
As a practical matter, it still makes sense to state a hearsay objection to a statement or document which was created by someone other than the person testifying. The objection gives the parties an opportunity to explain to the arbitrator what purpose the evidence serves.