Reviewed by David Epstein
New York Objections By Helen E. Freedman and Gerald Lebovits, 534 pages, James Publishing, $239.00
Your adversary attempts to introduce inadmissible evidence. You begin to rise from your chair, hoping that you will able to articulate the grounds for your objection. Of course, preparation is the key to knowing the grounds for your objection and persuading the judge to sustain it.
How do you present your case properly and effectively, based on admissible evidence? When should you object to your adversary’s actions and evidence, and what arguments should you make to support your objection? How should you respond to your adversary’s objections? Of course, there are numerous treatises, books and articles on evidence and trial tactics, which include coverage of making and responding to objections. However, few publications combine these subjects in as clear and useful a way as New York Objections.
New York Objections has been guiding lawyers since it was published almost twenty years ago. Unfortunately, its original author, Justice Helen E. Freedman, stopped updating the volume in 2015. Justice Gerald Lebovits has come to the rescue, turning his encyclopedic knowledge of evidence and trial practice, and superb writing skills, to a complete update of this work.
Justice Lebovits is not only a fine jurist but also a highly respected writer on numerous topics, including legal writing and evidence. A judge for almost twenty years, he is an acting New York Supreme Court justice. Countless students have had the benefit of his knowledge and teaching expertise from his years teaching at Columbia, Fordham, St. John’s and New York Law School. Justice Lebovits is the author of six books and too many articles to count. He has done an excellent job of revising the volume and bringing it up-to-date. New York Objections is well organized and easy to use. It is not limited to coverage of evidentiary issues but rather deals with the use of objections in all aspects of the trial, from opening statements through submitting the case to the jury. Each topic includes a detailed discussion of the law.
Each chapter in New York Objections sets out the specific objections to be made. The legal discussion that follows is thorough, yet succinct and to the point. Justice Lebovits knows what the trial advocate must know, and stays clear of unnecessary esoteric fluff. A thorough compilation of brief case summaries is included in every chapter, summaries that can be used as a quick reference guide to the precedent on point. The cases are carefully selected, well organized and succinctly and accurately discussed.
Perhaps most interesting are the sections providing practical advice. These include practice tips, how to lay a foundation for the particular form of evidence and objection tactics. The sections on tactics deal not only with the tactics in making objections but also with the tactics in replying to objections. This practical advice takes the novice by the hand and leads him or her through the process. At the same time, it provides insights that will be useful to the more experienced practitioner.
The first chapter of the volume deals with objections in general. This includes guidance on the important but often overlooked need to preserve the record for appeal. At the same time, it emphasizes the importance of convincing the trial judge that your position is correct, rather than hoping for relief on appeal. The discussion moves on to give practical advice on actually making the objection. In front of the jury? At a sidebar? By making a motion in limine? Motions in limine are also covered in detail, as are offers of proof.
The next chapter covers jury selection, including the law, examining and challenging members of the panel, and, of course, objections.
The book then moves on to the opening statement, followed later in the book by summation. The volume provides among the best coverage I have seen of these important tools of persuasion, including the practical advice that counsel should not object during his or her adversary’s summation unless there is a clear breach of propriety.
The volume then turns to its extensive coverage of evidence, starting with the often difficult topic of hearsay. It does a particularly good job of discussing the landmark Crawford case, the U.S. Supreme Court decision that has had such a dramatic impact on the use of hearsay evidence in criminal cases. A good example of the book’s approach is its coverage of the hearsay exception for past recollection recorded. It starts by spelling out the specific objection to be made. This is followed by step-by-step guidance on laying a foundation, the tactics involved in making an objection and guidance on how to respond to the objection. The chapter concludes with a quick reference guide to the cases on point.
The book’s coverage of privileges is excellent. It includes constitutional, statutory and common law privileges. A large number of case summaries are provided, well-organized and easy to use. There are practical tips, such as furnishing the court with copies of statutes to support a claim of medical privilege.
New York Objections’ coverage of real evidence and demonstrative evidence, including photographs and documents, recognizes the special problems surrounding the effective use of such evidence. It focuses on laying a foundation and presenting the evidence in a persuasive manner.
The remaining chapters provide similarly excellent coverage of witness competence, direct and cross-examination, expert witnesses, judicial and attorney conduct, submitting the case to the jury, and depositions.
New York Objections is an endlessly useful resource for the New York trial lawyer. Its sound advice, easy to use organization and clarity will make it a tool that the trial lawyer will turn to over and over.
David M. Epstein teaches at New York Law School and is the author, with Dean Glen Weissenberger, of the New York Evidence Trial Manual.