Updated: Mar 4
Sometimes you’re in court, at a hearing or at trial, and something happens that strikes you, right in your gut, as very bad for your case, to the point of serious harm. But you don’t know right away the legal basis of why it’s bad, and you don’t have time to sit there and think about it. If you had time, you could identify what struck you so strongly and articulate it, and then articulate why it’s objectionable, and why it should be stopped or testimony stricken. But, when you are sitting at counsel table navigating the proceeding, the hearing or trial is continuing on at speed, and if you stop to think the moment will be past.
Jump up and stop the proceeding. You can jump up and say “Objection!” or you can jump up and ask for a sidebar – insist on an immediate sidebar. If it strikes you strongly, trust your gut and jump up right away.
What do you say? Clearly if the testimony or action struck you forcibly as devastating to your case, then it’s unfair. So you say that, in one of these ways:
“Judge, this testimony [or action] severely undermines my client’s right to a fair trial.”
“Judge, this testimony [or action] is fundamentally unfair.”
Why is it unfair? Sometimes the judge will know, better than you, why it’s unfair and nothing else need be said. On those occasions when you have to say something, tell the judge why it’s so harmful – and you know why it’s harmful even when you don’t know the technical legal basis. In lay terms, just tell the judge why it’s harmful. For example:
“Judge, I never heard this before, I am totally (or unfairly, or unduly) surprised by this testimony.”
“Judge, counsel keeps coming over and pointing at my client.”
“Your Honor, this demonstration makes it seem like my client is guilty.”
“Your Honor, counsel’s conduct [whatever it is, name it] is depriving my client of a fair trial.”
“Judge, that characterization is devastating to my client and deprives him or her of a fair trial.”
You’ll find that, once you get up at stop the action, your thinking will catch up with your action, and you will – possibly even during discussion with the judge and opposing counsel – come up with a cure or solution to stop the damaging testimony or action. Of course, whether it’s sufficient to correct what already happened is something you have to decide. When in doubt, move for a mistrial.