SAMPLE: PERSONAL INJURY PRACTICAL GUIDANCE-CHECKLIST Trial Objections Cheat Sheet By Thomson Reuters The ability to quickly object to an improper question, or respond to an objection, is an important skill. This Checklist sets out the grounds and rationale for the most common objections, as well as responses and exceptions to those objections. Contents • Introduction ................................................. 3 • Objection: Improper Re-Examination .......... 7 • Objection: Abusive or Harassing ................. 4 • Objection: Irrelevant ................................... 7 • Objection: Ambiguous or Vague .................. 4 • Objection: Leading the Witness .................. 7 – Exception: Non-Controversial Matters ......7 • Objection: Apology ..................................... 4 – Exception: Adverse Witness .......................8 – Exception: Testimony ..................................4 – Exception: Hostile Witness .........................8 – Exception: Criminal Proceedings ................4 – Exception: Statements Around • Objection: Opinion ...................................... 8 the Apology .................................................4 – Exception: Lay Opinion...............................8 – Exception: Expert Opinion ..........................8 • Objection: Argumentative ........................... 4 • Objection: Needless Repetitions (Asked and • Objection: Personal Opinion of Counsel ...... 8 Answered) ................................................... 4 • Objection: Prejudicial .................................. 8 – Exception: Clarification ..............................4 • Objection: Privilege (Solicitor-Client) .......... 8 • Objection: Authenticity Not Established ..... 4 – Exception: Voluntary Waiver ......................9 • Objection: Calls for a Legal Conclusion ....... 4 – Exception: Implied Waiver ..........................9 – Exception: No Legal Analysis Required .....5 – Exception: Inadvertent Waiver ...................9 – Exception: Communications in • Objection: Character Evidence .................... 5 Furtherance of Crime or Fraud....................9 – Exception: Character in Issue .....................5 – Exception: Public Safety .............................9 – Exception: Similar Fact Evidence ...............5 – Exception: Innocence at Stake ...................9 • Objection: Facts Not in Evidence ................. 5 • Objection: Privilege (Litigation) .................. 9 – Exception: Good Faith Basis ......................5 – Exception: Litigation Has Ended ................9 – Exception: Waiver ..................................... 10 • Objection: Hearsay ...................................... 5 – Exception: Necessary and Reliable ............6 • Objection: Privilege (Settlement) ...............10 – Exception: Not Admitted for Truth of Its – Exception: Waiver ..................................... 10 Contents ......................................................6 – Exception: Admissions ...............................6 • Objection: Privilege (Common Interest)......10 – Exception: Declaration Against Interest ....6 – Exception: No Underlying Privilege ......... 10 – Exception: Dying Declarations ...................6 – Exception: Waiver ..................................... 10 – Exception: Business Records .....................6 • Objection: Privilege (Case-by-Case) ...........10 – Exception: Medical Records .......................7 – Res Gestae ..................................................7 • Objection: Speculative ...............................10 – Testimony from Another Proceeding .........7 2 Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. Introduction At trial, timely objections are necessary to: • Prevent unfavourable and inadmissible evidence from making its way into the record. • Preserve possible grounds of appeal. Objections should be used sparingly. Too many objections can irritate the judge, and an overruled objection can have the opposite of the intended effect by actually highlighting the evidence you were attempting to exclude. While the grounds and authorities for some of the most important objections are set out below, these are not intended as scripts but as a reference tool to help you deal with unanticipated objections on the spot. When making an objection, you should: • Make your objection before the witness has an opportunity to answer the question. • Stand up to get the court’s attention. • If the judge has not noticed that you are standing, you can try to get the judge’s attention by saying “Your Honour (or “My Lord” or “Justice”, depending on local practice), I have an objection”. • Succinctly state the grounds for your objection. Direct your submission to the judge, not opposing counsel. • Sit down when you have finished stating the reason for your objection. The judge may give the opposing counsel a chance to respond before ruling. • Rise again if the judge gives you a chance to respond to examining counsel’s argument. • Get the ruling on the record. If the judge’s ruling is not clear, ask for clarification. This may be important on appeal. Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 3 OBJECTION: ABUSIVE OR HARASSING Exception: Statements Around the Apology Unnecessarily aggressive cross-examination will not Statements of fact made along with the apology may be tolerated. A lawyer must not needlessly abuse or be admissible to the extent they are separate thoughts harass a witness (Law Society of Upper Canada’s Rules (Cormack v. Chalmers, 2015 CarswellOnt 13944 (Ont. of Professional Conduct, Rule 5.1-2(m); Law Society of S.C.J.), at paragraphs 8-9). Alberta Code of Conduct, Rule 5.1-2(s); British Columbia Code of Professional Conduct, Rule 5-1(2)(m)). OBJECTION: ARGUMENTATIVE A party may object to, and a court may limit, cross- A question is argumentative when it requires a fact examination that is abusive (R. v. Lowe, 2009 CarswellBC witness to accept an inference put to it by the lawyer 1923 (B.C. C.A.), at paragraph 51), irrelevant, overly that has not been proven. Merely asking someone to wordy or insulting (R. v. Jacobson, 2004 CarswellOnt agree or disagree with a statement is not necessarily 5733 (Ont. S.C.J.)). argumentative. The question must assume as true matters to which the witness has not testified and which OBJECTION: AMBIGUOUS OR VAGUE are in dispute between the parties (R. v. Buxbaum, 1989 CarswellOnt 89 (Ont. C.A.), at paragraph 18, leave to A witness does not have to answer a question that is appeal refused 1989 WL 935714 (S.C.C.)). ambiguous or vague (Ortega v. 1005640 Ontario Inc., 1999 CarswellOnt 2002 (Ont. Master)), confusing, unclear Examiners are not to argue with a witness or put forth overly broad or misleading (Forlii (Guardian of) v. Wolley, arguments in the guise of questioning (EnCana Corp. v. 2002 CarswellBC 1493 (B.C. S.C. [In Chambers]), at Devon Canada Corp., 2009 CarswellAlta 1084 (Alta. Q.B.), paragraph 9). at paragraph 4) The court may intervene to curtail or clarify questions that are vague, wordy or repetitive (R. v. Snow, 2004 OBJECTION: NEEDLESS REPETITIONS (ASKED CarswellOnt 4287 (Ont. C.A.), at paragraphs 22 and 25). AND ANSWERED) The mere fact that something has been “asked and OBJECTION: APOLOGY answered” is generally not considered a valid objection. Where a question is being repeated to the point of being An apology is inadmissible in evidence in a civil or abusive or berating the witness, or a waste of court time, administrative proceeding or arbitration under Ontario’s it may be appropriate to object (R. v. McLaughlin, 1974 Apology Act, 2009, S.O. 2009, c. 3 (Apology Act). Similar Carswell Ont 4 (Ont.C.A.), at paragraph 22; R. v. Lowe, legislation exists in other provinces (see Alberta Evidence 2009 Carswell BC1923 (B.C. C.A.), at paragraph 51). Act, R.S.A. 2000, c. A-18, section 26.1; Apology Act, 2006 S.B.C. c. 19 (BC Apology Act)). An apology: Exception: Clarification • Is an expression of sympathy or regret; a statement Where the question is repeated because the witness’s that a person is sorry. answer was vague or incomplete, the objection will be • Need not contain or imply an admission of fault overruled (Schindler Elevator Corp. v. 1147335 Ontario or liability. Inc., 2010 CarswellOnt 5400 (Ont. Master), at paragraph Exception: Testimony 26; 694984 Alberta Ltd. v. Badger Daylighting Inc., 2014 CarswellAlta 770 (Alta. Q.B.), at paragraphs 38 and 39). In Ontario, admissions made in the course of testifying in a civil proceeding, including out-of-court testimony, are excluded from the protections provided by the OBJECTION: AUTHENTICITY NOT ESTABLISHED Apology Act and therefore admissible. The same is true A private document or real evidence is inadmissible in in Alberta, though the BC Apology Act is silent. court until a witness has: • Identified the document or real evidence. Exception: Criminal Proceedings • Established its connection to the events under Provincial apologies acts do not apply to criminal consideration by the court. prosecutions as criminal law falls under federal • Vouched for its authenticity and convinced the trier jurisdiction. of fact that the document is what it purports to be. In Ontario, an apology is also admissible in the (R.v.Schwartz, 1988 Carswell Man 170 (S.C.C.), at prosecution of a provincial offence. The Alberta Evidence paragraphs 64 to 66). Act, R.S.A. 2000,c.A-18, simply uses the word ”offence” in the