How to Respond to a Lack of Foundation Objection
If you are an attorney or a party representing yourself in a lawsuit ("pro se" or "pro per"), you will inevitably face a barrage of objections at trial. Among these, you can expect to hear at least one lack of foundation objection — but chances are you will hear multiple.
You must be prepared to address this kind of objection if you want to get your evidence admitted at trial so that it may be seen and considered by the jurors in their deliberations.
What Is a Lack of Foundation Objection?
A lack of foundation objection occurs when an attorney or self-represented party tries to enter evidence (like witness testimony or a document) at trial without demonstrating an adequate factual or legal basis for allowing it into evidence.
Every court in the United States operates under a strict set of rules that determine what evidence is — or is not — admissible at trial. Federal courts follow the Federal Rules of Evidence (FRE).
State courts often mirror the FRE, though there are differences from jurisdiction to jurisdiction. Always be sure to follow the rules in your jurisdiction.
Rules of evidence exist to help ensure a fair trial for all parties involved in a lawsuit. They aim to limit the evidence used at trial to facts and documents that are relevant to the case and are not speculative or unreliable.
Learn more about rules of evidence.
How to Respond to a Lack of Foundation Objection
If the opposing attorney makes an objection based on lack of foundation, it can be a simple problem to fix (so long as the evidence is admissible at trial according to the rules of evidence in your jurisdiction).
You might hear a lack of foundation objection when you are questioning a witness but have not shown the court that the witness is qualified to answer the question. Typically, this happens when it has not been shown the witness has personal knowledge or a basis to offer certain testimony.
To recover from this objection, you must lay a proper foundation for the testimony — i.e., demonstrate that the witness has personal knowledge on the topic that qualifies her to answer the question.
You can do this by slowing down, backing up, and asking the necessary questions to lay the proper foundation.
Example of a Lack of Foundation Objection
For example, say the witness testified that he is a retired professional tennis player. Next, you ask him how much rubber is in a tennis ball.
The opposing attorney will likely state an objection that your question lacks foundation. Why? Because your line of questioning has not demonstrated that the witness is qualified to evaluate the composition of a tennis ball.
To lay the foundation, you'd need to back up your questioning to elicit the necessary testimony showing the tennis player is qualified to discuss the rubber content in the ball.
Remember the purpose of the rules of evidence: to ensure that the jury hears facts in the case, not speculation or guesses. If the tennis player has no knowledge about the manufacturing of tennis balls, his testimony might not be reliable.
However, if further questioning reveals that the tennis player had worked as a floor supervisor at a tennis ball manufacturing company for 20 years, it would show that the witness (tennis player) was qualified to answer the question of how much rubber is in a tennis ball.
If you'd like to see the dialogue that demonstrates this exact scenario, including the objection and rephrasing, take a look at 5 Common Objections in Court You Should Master.
Other Trial Objections to Consider
It is crucial to learn how to respond to a lack of foundation objection if you want to get your evidence admitted at trial.
Not only will you need to know how to address this and other objections, but you'll also need to know when to make your own objections — especially if you don't want the opposing attorney to take advantage of your lack of courtroom experience.
To help you on your journey, we've put together Trial Objections 101: Making and Responding to Objections. In this video tutorial, we discuss 18 common courtroom objections, including hearsay, argumentative, leading questions, asked and answered, badgering the witness, misleading questions, etc.