We have a concept in the law called preservation of error. The basic idea is that, if you want to complain about something on appeal, you have to raise that issue with the trial court rather than waiting until you appeal. So, for example, if you think the witness’s testimony is hearsay or you think the other side’s expert is not qualified because he got his PhD as a prize in a Cracker Jack box, you have to object during trial and get a ruling from the judge before you can gripe about it on appeal.

The underlying reason is a practical one: courts don’t want a party to prove their entire case only to be reversed because of something the trial court could have fixed during trial. All in all, it’s an admirable attempt to streamline the seemingly-interminable litigation process.

This is part of a broader movement in the law away from letting parties ambushing one another and toward making litigants put everything on the table. So, whereas in the old days, you might just show up in court on the day of trial and try to surprise the opposing party with a damning piece of evidence, there’s really very little of that any more.* Now, you have to produce all of your evidence and present all of your witnesses long before trial, so everyone has a pretty good idea what to expect.

* Well, there are very few trials at all any more, but that’s another blog.

In light of this, the thought occurred to me the other day: can we take the concept of preservation of error and apply it to our lives? That is, do we, or should we, have a general “duty to object” in life? This may take some explaining:

I spend most of my working hours talking to, emailing, responding to, and otherwise interacting with other attorneys. They are an opinionated lot. In fact, a big part of an attorney’s job is having opinions. What happens if your client does this? What if you make this argument to the court? What effect will this new statute have on your practice? What do you think of this judge? That attorney? This expert? All day long, you’re evaluating the facts of a situation, applying the law or logic or your gut, and giving your opinion.

This has an effect on most attorneys after 20 or 30 years. Most seasoned attorneys are walking opinion dispensers, indiscriminately offering you their take like so much Pez candy. It doesn’t matter if you asked for their opinion, or if the attorney knows anything about the subject, you’re going to get his opinion one way or another.

Hearing so many opinions every day, I get to hear more than my share of extreme, crazy, or questionable ones:

“Frivolous lawsuits are ruining this country.”

“Insurance companies are ruining this country.”

“You’d have to be a communist to vote for Obama.”

“You’d have to be a fascist to vote for Perry.”

“That judge is an idiot.”

“That lawyer is an idiot.”

“If I was in charge, I’d slash taxes in half.”

“If I was in charge, I’d just double taxes to pay off the debt.”

Honestly, this wears me out. I generally don’t have extreme opinions on things; I think most things are neither the best or worst thing in the world. Also, I usually try to believe the best in people and keep and optimistic outlook, and predictions of doom tend to grate on me.

My usual reaction to these pronouncements is just to smile wryly and maintain silence. In my head, I think of a reasonable response:

“Well, since attorneys usually work on a contingent fee, it’s not in their interest to file frivolous lawsuits. . .”

“There’s usually a lot of different reasons that people vote for a given candidate. . .”

“The judge may not have understood the law in this case, but I’m sure he tried to make the right decision. . .”

“I think tax policy is a little more complicated than that. . .”

but I rarely ever say offer this response out loud.

I usually justify my silence by telling myself that nothing I say is going to change anyone’s opinion anyway, and maybe I don’t have all the information on the subject, and who am I to tell them that they are wrong, but I’ve been increasingly unsatisfied with these justifications. The fact is, they are just lazy, cowardly, and selfish. And, in consigning the person to their “wrong” opinion without at least trying to reason with them is really showing contempt for that person and their open-mindedness and their ability to grow and change and be challenged. And, maybe, I just don’t want to have my own ideas and presuppositions challenged.

Which brings me to back to my question: do we have a “duty to object” in our daily lives? Do we have some sort of moral obligation to express our difference of opinion with others, particularly on more substantial matters?*

* I mean, it’s probably not a big deal if you think Tim McGraw is better than Dwight Yoakam. You’re dead wrong, obviously, but it’s not that big a deal.

I’ve decided that we do, or at least that the more virtuous choice is for us to live forthrightly with one another and try to reason together, difficult or pointless though it may seem. I have resolved, then, to be more courageous in addressing those I have a difference of opinion with. Not just to be argumentative, but to try to reason with them and see why our opinion differs and where we can find common ground.

Besides, I wouldn’t want to get thrown out on appeal for failing to object.