Thursday, July 26, 2012
Scheduling Update
Although I've never explicitly set a schedule, I've been trying to post three times per week: Sunday, Tuesday, and Thursday. I'm going to be out of the country for the next two weeks, without reliable access to internet, so that posting schedule (and posting in general) will be abandoned over that period. Normal posting will resume on Sunday, August 12th.
Advanced Objection Techniques: Arguing Weight versus Admissibility, Part I
Another advanced-tactics argument type is to assert that your opponent’s argument “goes to weight, not admissibility.” What you’re asserting by using that phrase is that your opponent is arguing something that might in fact lower the importance (the “weight”) a piece of evidence has in the minds of the jury, but does not in fact affect the admissibility of the piece of evidence. To put it another way, you’re asserting that the question you and your opposing counsel are arguing over is one that should be resolved by the jury, not the judge. This issue comes up most often in relevance contexts. Most of the time when you respond to a relevance objection, you’re arguing that the information you’re trying to enter is part of a chain of reasoning that “makes the existence or nonexistence of a fact necessary for the resolution of the action more or less probable [College Rules, 2012].” What your opponent might do to respond is argue that your chain of reasoning is bad: the premise you’re trying to prove doesn’t lead to the conclusion you’re trying to prove. That’s often a situation in which the weight versus admissibility argument is useful. For virtually every line of logic connecting evidence one side in a case has, the other side will have something to tear it apart. That doesn’t mean those arguments shouldn’t be presented to the jury- in fact, that’s the entire point of trials! Your opponent is entitled to try to tear your case apart, but you’re entitled to present your case- and you’re entitled to present it to the jury, not the judge. There are limits to that entitlement, and the relevance rule is designed to be sure that those limits are adhered to, but the relevance standard is what we call a ‘low bar’, which basically means you don’t have to do much to ‘leap over’ the barrier it puts in your way. (Proving someone guilty in a criminal case, which you have to do “beyond a reasonable doubt”, is a prime example of a ‘high bar’). As long as you can show that your evidence “tends” to “make the existence or nonexistence of a fact necessary for the resolution of the action more or less probable [College Rules, 2012],” any argument your opponent uses which implicitly assumes a higher standard goes to weight, not admissibility.
So what does that exchange look like? Let’s say you’re the prosecutor in a drunk driving case. You’re trying to enter the testimony of a witness who saw the defendant have a few drinks a couple of hours before he was in a crash and got caught by the cops. Opposing Counsel objects:
Opposing Counsel: “Objection, Your Honor, Relevance.”
Judge: “Response?”
You: “Your Honor, we have a burden to prove that the defendant was intoxicated at a particular time on the day of the crash. Eyewitness testimony describing him consuming alcoholic beverages that day clearly tends to support that point.”
Opposing Counsel: “Your Honor, may I respond?” [Judge nods] “The State has a burden to prove the defendant [Author’s note: the defense counsel should never call their own client “the defendant”. But it’s preferable to trying to think up a name for the character] was intoxicated at a particular time on the day in question. But they’re discussing events that occurred several hours beforehand, without demonstrating a connection between the two.”
You: “Your Honor, may I respond?” [Judge nods] “Provided all parties here concede, as I think we do, that consuming alcoholic drinks at one time tends to cause intoxication later, Counsel’s objection goes to weight not admissibility. Relevance is a low bar; these facts need only tend to show he was intoxicated at the time he drove. Opposing counsel is certainly free to argue that we haven’t met our burden to prove intoxication, but he should be making that argument to the jury.”
In Part II, we’ll go over how to respond to this type of argument when it’s made against you.
So what does that exchange look like? Let’s say you’re the prosecutor in a drunk driving case. You’re trying to enter the testimony of a witness who saw the defendant have a few drinks a couple of hours before he was in a crash and got caught by the cops. Opposing Counsel objects:
Opposing Counsel: “Objection, Your Honor, Relevance.”
Judge: “Response?”
You: “Your Honor, we have a burden to prove that the defendant was intoxicated at a particular time on the day of the crash. Eyewitness testimony describing him consuming alcoholic beverages that day clearly tends to support that point.”
Opposing Counsel: “Your Honor, may I respond?” [Judge nods] “The State has a burden to prove the defendant [Author’s note: the defense counsel should never call their own client “the defendant”. But it’s preferable to trying to think up a name for the character] was intoxicated at a particular time on the day in question. But they’re discussing events that occurred several hours beforehand, without demonstrating a connection between the two.”
You: “Your Honor, may I respond?” [Judge nods] “Provided all parties here concede, as I think we do, that consuming alcoholic drinks at one time tends to cause intoxication later, Counsel’s objection goes to weight not admissibility. Relevance is a low bar; these facts need only tend to show he was intoxicated at the time he drove. Opposing counsel is certainly free to argue that we haven’t met our burden to prove intoxication, but he should be making that argument to the jury.”
In Part II, we’ll go over how to respond to this type of argument when it’s made against you.
Tuesday, July 24, 2012
Advanced Objection Techniques: Arguing the Purpose of a Rule
The standard three pieces of the objection argument are the facts, the rule, and the connection between the two. There are two basic ways to create a connection between the two. Usually you’ll be using what’s called the “plain meaning” of the rule to argue that some particular fact is allowed into or barred from evidence. But you can also use the “purpose” of the rule. It’s a bit like arguing that while the “letter of the law” allows something, the “spirit of the law” forbids it, or vice versa. In real legal analysis and argument, determining the purpose of the law is a tremendously involved and tricky process, involving things like analyzing the legislative history of a rule. You can’t do that in Mock Trial- you don’t have that information in what you’re allowed to draw from and no judge is going to sit through a lengthy argument about legal purpose in a Mock Trial context. There are a few rules, however, for which purpose is clear enough that you can argue from it. You should come to understand those purposes more and more as you become familiar with the rules and hear more experienced people talk about them. One of the major purposes of relevance, for instance, is to prevent wasting a court’s time. The reasoning behind most hearsay exceptions is that in the situation described by the exception, a person’s motive to tell the truth is so great or their opportunity to lie so small that the concerns about veracity that motivate the hearsay rule are no longer pertinent. A lot of rules are also designed to protect the rights of the defendant and to ensure that the trial is fair.
If you’re going to use this technique, you need to state what you allege is the purpose of the rule, in much the same way as you should always briefly explain the rule or definition at issue. This will usually be one or two responses on in the argument- don’t bust out the purpose of the rule as the first thing you say. When it is, treat your statement of purpose much the same way you treat a statement of a definition or of a rule: state it as clearly and briefly as possible, and demonstrate the connection between it and the facts. For instance, one way in which I have used this technique is to argue that the “Statements made for purposes of medical diagnosis or treatment” (803(4) College Rules, 2012) hearsay exception does not cover statements made by doctors. My argument goes:
“Your Honor, this hearsay exception exists because patients are motivated to tell the truth to their doctors- they want to receive accurate diagnoses and treatment, so the law judges them likely to tell the truth. Doctors have no comparable motive; their personal well-being isn’t changed if they lie. They have no special reason to be truthful when making diagnostic statements, so this hearsay exception can’t be understood to include those statements.” (Please note that I am not trying to tell you that’s the right way to understand that exception. It’s just an interesting way to use the technique).
If you’re going to use this technique, you need to state what you allege is the purpose of the rule, in much the same way as you should always briefly explain the rule or definition at issue. This will usually be one or two responses on in the argument- don’t bust out the purpose of the rule as the first thing you say. When it is, treat your statement of purpose much the same way you treat a statement of a definition or of a rule: state it as clearly and briefly as possible, and demonstrate the connection between it and the facts. For instance, one way in which I have used this technique is to argue that the “Statements made for purposes of medical diagnosis or treatment” (803(4) College Rules, 2012) hearsay exception does not cover statements made by doctors. My argument goes:
“Your Honor, this hearsay exception exists because patients are motivated to tell the truth to their doctors- they want to receive accurate diagnoses and treatment, so the law judges them likely to tell the truth. Doctors have no comparable motive; their personal well-being isn’t changed if they lie. They have no special reason to be truthful when making diagnostic statements, so this hearsay exception can’t be understood to include those statements.” (Please note that I am not trying to tell you that’s the right way to understand that exception. It’s just an interesting way to use the technique).
Sunday, July 22, 2012
Advanced Objection Techniques: Making Multiple Objections
Multiple Objections
You’re likely in the course of your Mock Trial career to encounter content (questions or answers) that could be objected to on multiple grounds. There are three basic ways to handle this:
1) Object in every possible way at once.
This is usually a weak approach. By throwing multiple objections at the judge, you’re creating the appearance that this is a huge issue which is going to take a lot of time and energy to resolve. If the judge doesn’t have the same impression, you’re losing credibility- it looks like you’re overreacting. It also makes you look desperate, like you’re throwing everything at the judge and hoping something will stick. Using one strong objection would work- so you can only be using six because none of them are strong.
This is effective if the content is egregiously objectionable and the judge knows it. Using multiple objections then emphasizes how ridiculous the content is, and might prompt the judge into a quick ruling. Importantly, you’re using multiple objections here to create a particular impression in the judge: that this issue is easily resolved in your favor. Your tone needs to support that impression. Rattle off all the objections you’re making fairly quickly, like it doesn’t take you much effort to think of them because they’re so obvious. A touch of surprise or impatience in your tone- you can’t believe this even came up- can also help. The ideal is the judge not even letting you finish your list before instructing opposing counsel to pose another question.
2) Put forward only the strongest objection
This is usually the right choice. It avoids the issues mentioned above and plays out virtually identically to the objection arguments that only involve one rule.
3) Start out with one objection and switch to another
There are two reasons you might do this. First, you might have tried to go with approach (2) and realized the judge wasn’t buying it or your argument was otherwise failing. Without conceding that your initial objection failed, say something along the lines of “Your Honor, in that case, I renew my objection to [your new objection]”. Be careful to pay attention to the judge on this one- if they’re leaning your way on the first objection, don’t give up on it!
Alternatively, you might have deliberately used your initial objection to strengthen an argument for a second objection. Essentially, sometimes opposing counsel will concede points or make claims in arguing for one objection that make them vulnerable to another. If that happens, it can be advantageous to switch to the other. Relevance is a very common objection to do this with. Say that someone’s trying to put an out-of-court statement into evidence. Instead of objecting to hearsay right off the bat, you might start with relevance. Hearsay, remember, requires that the statement be used for the truth of the matter asserted. To make a good relevance argument, opposing counsel will tell the judge what he’s using the statement for. If at that point they essentially admit that they’re using it for the truth of the matter asserted, you’re in a strong place to make a hearsay argument. Or you can do it the other way around: if you object to hearsay first and opposing counsel states a flimsy excuse for putting the statement in other than for the truth of the matter asserted, you can then object to relevance- the flimsy point they say they’re trying to make is irrelevant. With this technique, you might choose to abandon the first objection you made, in the same way as described in the above paragraph. But it might sometimes be advantageous to argue both at once, and this requires some careful and clear argument. Usually you’re not genuinely objecting on two grounds at once. You’re setting up a dilemma: if the content escapes one objection, it is covered by the other. You’re not arguing that the statement is both hearsay and irrelevant; you’re arguing that it is either hearsay or it’s irrelevant. Opposing counsel can escape one objection, but not both. If you’re confused, hang in there- I’m definitely going to provide an example down the line that covers this technique.
You’re likely in the course of your Mock Trial career to encounter content (questions or answers) that could be objected to on multiple grounds. There are three basic ways to handle this:
1) Object in every possible way at once.
This is usually a weak approach. By throwing multiple objections at the judge, you’re creating the appearance that this is a huge issue which is going to take a lot of time and energy to resolve. If the judge doesn’t have the same impression, you’re losing credibility- it looks like you’re overreacting. It also makes you look desperate, like you’re throwing everything at the judge and hoping something will stick. Using one strong objection would work- so you can only be using six because none of them are strong.
This is effective if the content is egregiously objectionable and the judge knows it. Using multiple objections then emphasizes how ridiculous the content is, and might prompt the judge into a quick ruling. Importantly, you’re using multiple objections here to create a particular impression in the judge: that this issue is easily resolved in your favor. Your tone needs to support that impression. Rattle off all the objections you’re making fairly quickly, like it doesn’t take you much effort to think of them because they’re so obvious. A touch of surprise or impatience in your tone- you can’t believe this even came up- can also help. The ideal is the judge not even letting you finish your list before instructing opposing counsel to pose another question.
2) Put forward only the strongest objection
This is usually the right choice. It avoids the issues mentioned above and plays out virtually identically to the objection arguments that only involve one rule.
3) Start out with one objection and switch to another
There are two reasons you might do this. First, you might have tried to go with approach (2) and realized the judge wasn’t buying it or your argument was otherwise failing. Without conceding that your initial objection failed, say something along the lines of “Your Honor, in that case, I renew my objection to [your new objection]”. Be careful to pay attention to the judge on this one- if they’re leaning your way on the first objection, don’t give up on it!
Alternatively, you might have deliberately used your initial objection to strengthen an argument for a second objection. Essentially, sometimes opposing counsel will concede points or make claims in arguing for one objection that make them vulnerable to another. If that happens, it can be advantageous to switch to the other. Relevance is a very common objection to do this with. Say that someone’s trying to put an out-of-court statement into evidence. Instead of objecting to hearsay right off the bat, you might start with relevance. Hearsay, remember, requires that the statement be used for the truth of the matter asserted. To make a good relevance argument, opposing counsel will tell the judge what he’s using the statement for. If at that point they essentially admit that they’re using it for the truth of the matter asserted, you’re in a strong place to make a hearsay argument. Or you can do it the other way around: if you object to hearsay first and opposing counsel states a flimsy excuse for putting the statement in other than for the truth of the matter asserted, you can then object to relevance- the flimsy point they say they’re trying to make is irrelevant. With this technique, you might choose to abandon the first objection you made, in the same way as described in the above paragraph. But it might sometimes be advantageous to argue both at once, and this requires some careful and clear argument. Usually you’re not genuinely objecting on two grounds at once. You’re setting up a dilemma: if the content escapes one objection, it is covered by the other. You’re not arguing that the statement is both hearsay and irrelevant; you’re arguing that it is either hearsay or it’s irrelevant. Opposing counsel can escape one objection, but not both. If you’re confused, hang in there- I’m definitely going to provide an example down the line that covers this technique.
Thursday, July 19, 2012
Objection Basics: Abridged
The condensed version of the content discussed in Objection Basics: Part I, II, III, IV, and V:
Objection: A verbal appeal to the judge in the course of a direct or cross examination to enforce the Rules of Evidence by forbidding a question or excluding an answer.
The Record: A record of the happenings of a trial which the jury will have access to and which they are supposed to base their decisions on. A literal record is not kept in Mock Trial, but competitors are to act as though one is.
The Steps of Making an Objection
1. Stand up and state that you are objecting. Remain standing until the a ruling has been issued.
2. State the rule under which you are objecting.
Steps 1 and 2 will usually be fulfilled in a statement of the form “Objection, Your Honor, [Rule Name or Number].”
3. If necessary, clarify what you’re objecting to.
This can be accomplished either in the initial statement of the objection or in your first response.
4. Make or listen to the initial response.
Request permission to respond before you do, by saying “Your Honor, may I respond?” The initial response should usually be a concise statement of the core argument being made to defend against the objection.
5. Make or listen to the subsequent responses
There are 3 core things that need to be clarified and related to each other logically to make a good objection argument:
Keep arguing until the judge clearly wishes to rule. If you were making the argument and you won, tell the judge “motion to strike.” This removes the objected-to content from the record.
I have this post in a handout-style PDF format; if you wish to have a copy, email me and I’ll send it. Next time we delve into some advanced objection material.
Objection: A verbal appeal to the judge in the course of a direct or cross examination to enforce the Rules of Evidence by forbidding a question or excluding an answer.
The Record: A record of the happenings of a trial which the jury will have access to and which they are supposed to base their decisions on. A literal record is not kept in Mock Trial, but competitors are to act as though one is.
The Steps of Making an Objection
1. Stand up and state that you are objecting. Remain standing until the a ruling has been issued.
2. State the rule under which you are objecting.
Steps 1 and 2 will usually be fulfilled in a statement of the form “Objection, Your Honor, [Rule Name or Number].”
3. If necessary, clarify what you’re objecting to.
This can be accomplished either in the initial statement of the objection or in your first response.
4. Make or listen to the initial response.
Request permission to respond before you do, by saying “Your Honor, may I respond?” The initial response should usually be a concise statement of the core argument being made to defend against the objection.
5. Make or listen to the subsequent responses
There are 3 core things that need to be clarified and related to each other logically to make a good objection argument:
- The rule: the principle of law, the logical principle, or the definition of a term that is at issue
- The facts: the statement of the witness or the question of the attorney that is being discussed.
- The connection between the two: in an objection argument, it is the connection between a rule and the facts that is argued about. One side is arguing that what a rule is intended to exclude “matches” the situation here. The other argues that there is no such match, or else that the content here matches an exception to the other rule.
- Pay attention to and respond to the judge’s understanding of the argument.
- Stay coherent. Make sure your responses are consistent with what opposing counsel just said and with each other.
- If you use a copy of the Rules of Evidence, do so sparingly. It is best used only when you’re demonstrating that you have the text of a rule exactly correct.
- Don’t use phrases like “I think,” “I believe,” or “In my opinion...” Your opinions and beliefs don’t matter here.
- Do not “confer with co-counsel”. That means don’t ask your teammates for help, even with the judges permission
- Don’t ask the judge to explain a rule to you
- When the judge rules, stop arguing. Don’t even ask to respond.
Keep arguing until the judge clearly wishes to rule. If you were making the argument and you won, tell the judge “motion to strike.” This removes the objected-to content from the record.
I have this post in a handout-style PDF format; if you wish to have a copy, email me and I’ll send it. Next time we delve into some advanced objection material.
Tuesday, July 17, 2012
Objection Basics: Part V
In Objection Basics: Part IV, we discussed rules and guidelines for the main body of the objection arguments. Now we'll consider the sixth step in this process, concluding the objection argument.
6. Conclude the objection argument
Most of the time you’re not going to have any control over the conclusion of the argument. The judge is going to decide they’re convinced by one of you and rule, and that’s the end of it. Sometimes the judges will just let you argue and argue for an extraordinarily long time, however. Most objection arguments have a natural conclusion. You and opposing counsel will have narrowed in on a central question. You’ll both have made your cases for your version of the answer to the question, and all that remains is for the judge to decide on the answer. What happens if the judge keeps letting you argue beyond the point where you have arguments remaining? First of all, do not tell the judge, however politely, that you’re done arguing or that they need to rule. Your responsibility is to be a zealous advocate for your client; that means that whenever you have a chance to, you’re advocating on their behalf. You don’t get to stop as long as the judge is still asking to hear you. Note that I say “asking” to hear you. Some judges will be clearly conveying that they wish to rule (they might show reluctance when asked to allow someone to respond, they won’t immediately look to the next attorney for a response, etc. Body language and tone are your hints here), yet still allowing responses. If you have no further substantive points you want to make, simply not asking to respond is your best option. But if they’re open to hearing further argument, you’re going to need to ask to respond and respond again- you want the last word. Consider that you may be missing an argument the judge expects but hasn’t heard yet. If you can’t think of anything along those lines, then you have two options: 1) listen carefully to opposing counsel. Have they changed their argument in a way you should respond to? Do that if they have. 2) Reiterate your primary or strongest point. Don’t act as though it’s new. Say something like, “Your Honor, I’d simply reiterate that... [your main/strongest point]” or “Your Honor, once again the key point here is... [your main/strongest point].” Remember to control your tone. This might be getting frustrating or nerve-wracking, but the right way to frame it is, as always, with confidence: you’ve made your point intelligently and now you’re just reminding everyone of how right you are. Eventually the judge will begin indicating that they wish to rule, and the discussion will draw to a close in that fashion. If the judge says the objection was sustained, the objection succeeded. If they say it was overruled, it did not succeed.
There’s one final step that you’ll need to perform if three things are true: 1) you were the person obecting; 2) you won and the objection was sustained; and 3) the objection was to something that the witness said (as opposed to to a question). You need to say “Motion to strike” to the judge. “Motion” essentially means you’re requesting that the court do something. “Strike” specifies that you’re asking the court to remove the objectionable content from the record (which is explained back in Part I). Removing that content from the record was the entire point of your objection, so remembering the motion to strike is extremely important. If you don’t ensure that the content gets removed, you needn’t have bothered objecting. Do pay attention to what the judge says as they’re ruling, however; some judges will remove the content from the record without being asked, and asking them again will just make you look weird. They won’t say “motion to strike”; they’ll say something more like “The objection is sustained and the objectionable content will be stricken from the record.”
I'm going to post a one-page hitting-the-highlights version of all of the Objection Basics posts on Thursday. After that, there will be a few posts on what I would consider advanced objection material, and then we'll finally get to some examples.
6. Conclude the objection argument
Most of the time you’re not going to have any control over the conclusion of the argument. The judge is going to decide they’re convinced by one of you and rule, and that’s the end of it. Sometimes the judges will just let you argue and argue for an extraordinarily long time, however. Most objection arguments have a natural conclusion. You and opposing counsel will have narrowed in on a central question. You’ll both have made your cases for your version of the answer to the question, and all that remains is for the judge to decide on the answer. What happens if the judge keeps letting you argue beyond the point where you have arguments remaining? First of all, do not tell the judge, however politely, that you’re done arguing or that they need to rule. Your responsibility is to be a zealous advocate for your client; that means that whenever you have a chance to, you’re advocating on their behalf. You don’t get to stop as long as the judge is still asking to hear you. Note that I say “asking” to hear you. Some judges will be clearly conveying that they wish to rule (they might show reluctance when asked to allow someone to respond, they won’t immediately look to the next attorney for a response, etc. Body language and tone are your hints here), yet still allowing responses. If you have no further substantive points you want to make, simply not asking to respond is your best option. But if they’re open to hearing further argument, you’re going to need to ask to respond and respond again- you want the last word. Consider that you may be missing an argument the judge expects but hasn’t heard yet. If you can’t think of anything along those lines, then you have two options: 1) listen carefully to opposing counsel. Have they changed their argument in a way you should respond to? Do that if they have. 2) Reiterate your primary or strongest point. Don’t act as though it’s new. Say something like, “Your Honor, I’d simply reiterate that... [your main/strongest point]” or “Your Honor, once again the key point here is... [your main/strongest point].” Remember to control your tone. This might be getting frustrating or nerve-wracking, but the right way to frame it is, as always, with confidence: you’ve made your point intelligently and now you’re just reminding everyone of how right you are. Eventually the judge will begin indicating that they wish to rule, and the discussion will draw to a close in that fashion. If the judge says the objection was sustained, the objection succeeded. If they say it was overruled, it did not succeed.
There’s one final step that you’ll need to perform if three things are true: 1) you were the person obecting; 2) you won and the objection was sustained; and 3) the objection was to something that the witness said (as opposed to to a question). You need to say “Motion to strike” to the judge. “Motion” essentially means you’re requesting that the court do something. “Strike” specifies that you’re asking the court to remove the objectionable content from the record (which is explained back in Part I). Removing that content from the record was the entire point of your objection, so remembering the motion to strike is extremely important. If you don’t ensure that the content gets removed, you needn’t have bothered objecting. Do pay attention to what the judge says as they’re ruling, however; some judges will remove the content from the record without being asked, and asking them again will just make you look weird. They won’t say “motion to strike”; they’ll say something more like “The objection is sustained and the objectionable content will be stricken from the record.”
I'm going to post a one-page hitting-the-highlights version of all of the Objection Basics posts on Thursday. After that, there will be a few posts on what I would consider advanced objection material, and then we'll finally get to some examples.
Monday, July 16, 2012
Objection Basics: Part IV
In Objection Basics: Part III, we left off after discussing Step 4, the initial response to an objection. Now we'll deal with subsequent responses.
5. Make or listen to the subsequent response.
Up to this point two major things have happened: either you or opposing counsel made an objection, and either you or opposing counsel made an initial response to that objection. Now the person who made the objection will request and often receive permission to defend their objection against whatever response was made. Typically then the other lawyer will ask permission to respond, and will again attempt to undermine the objection. Then the objecting lawyer can ask to respond and once again defend their objection, and on and on until the judge rules. The judge can jump in and rule at any point. The judge may also decide to break up this neat back-and-forth by following up on an argument themselves, or asking a question, or even inserting an entirely new argument into the discussion. There isn’t a formula for any of your responses at this point: your goal is to win the objection argument by making logical and clear arguments that persuade the judge. A few guidelines to keep in mind are:
You’ll probably have noticed that between the guidelines and the rules, I’ve cut off virtually every source of outside help you could have: you can’t ask your teammates or the judge and can only use the Rules of Evidence in limited circumstances. Believe it or not, you are always better off handling the argument yourself then you are leaning on someone or something else. Think of it this way: the judges are scoring your performance. If we can see someone else doing the work, we’re not going to give you points for it.
- Pay attention to the judge’s understanding of the argument. If it becomes clear that they’re finding some point you’re making particularly effective, hammer that point, even if you don’t think it’s your strongest. If they ask you about some argument opposing counsel isn’t touching, address that. If they ask about some entirely different objection, address that. The judge is your first priority.
- Stay coherent. There’s a lot going on inside your head when you’re dealing with an objection argument. Ideas about how to argue are going to be popping in and out of your head, and you’re trying to respond to points the judge and opposing counsel are throwing at you. What happens to a lot of people is they start making many arguments- even good arguments- at once, that don’t clearly relate to each other or to what’s been said in the discussion thus far. Tie what you’re saying to a point opposing counsel made or that the judge is asking about. This is an advantage of starting your responses with the definition or principle of law you’re discussing. If the judge is asking you about hearsay, beginning with a definition of hearsay is obviously a coherent response to the question.
- Remember the three points to keep clear: the rule, the facts, and the connection between the two
- I allow the teams I coach to refer to a copy of the Rules of Evidence during objection arguments, in moderation. Don’t use it like you’d use notes on an open book test, frantically flipping through for something you can turn into an answer, and don’t use it as a crutch, relying on it every time. It’s best used when there’s a dispute over the text of a rule; by pointing your finger to a page and reading, you’re making it absolutely clear that you have the text correct.
- Don’t use “I think/I believe” statements. Simply put, no one cares. The judge wants to know what the law is, not what you think it is. Phrases like “I think/I believe/in my opinion” are usually used as qualifiers. Complete confidence in your assertions is essential in an objection argument- qualifiers are antithetical to what you’re trying to do. Drop them. The reason this is only a guideline and not a rule is that you can make statements like “It is our burden to prove...” Or “The argument we’re making here...” which can look very similar to “I think/I believe” statements. The difference is that you’re still stating facts when you make those sort of assertions; you aren’t describing your personal opinions. The judge does care about your burden and your argument. They don’t care about your opinion.
- When the judge rules, stop arguing. You don’t even get to ask to respond. The judge is the absolute, final authority in the courtroom. That means that the ruling they just gave is the absolute, final authority on the objection argument you just had. You must avoid even the appearance of challenging that authority.
- You’ll see other teams request and usually receive permission to consult with co-counsel during objection arguments. They’ll then lean over and talk the objection argument through with the other lawyers on their team. Don’t do this. It’s a clear admission that you can’t handle the argument on your own. Using this crutch costs you whatever points you would have gotten for handling the objection well, and probably some additional points for being unable to handle the objection at all.
- Don’t ask the judge to explain a rule to you. This approach has all the downsides of admitting you can’t handle the argument on your own, and it implies that the judge has some obligation to teach you, which isn’t the case.
You’ll probably have noticed that between the guidelines and the rules, I’ve cut off virtually every source of outside help you could have: you can’t ask your teammates or the judge and can only use the Rules of Evidence in limited circumstances. Believe it or not, you are always better off handling the argument yourself then you are leaning on someone or something else. Think of it this way: the judges are scoring your performance. If we can see someone else doing the work, we’re not going to give you points for it.
I said last time that we'd be discussing full-length objection dialogue examples in Part IV, but I'm now thinking I'll need to cover some of what I would consider "advanced objection techniques" before we can fully explore some objection examples. In Objection Basics: Part V, I'm going to go over concluding an objection argument, and hopefully discuss some advanced material in the next few posts.
Thursday, July 12, 2012
Objection Basics: Part III
All of the rules quoted or referred to in this post will be the College Rules, 2012.
In Objection Basics: Part II, we talked about the basic structure of an objection argument, and how it should make clear three things: the rule, the facts, and the connection between the two. Having said all that, your initial objection response should almost never do all of those things. The job of your initial response is to give a basic sketch of the grounds of your argument. For instance, if a witness on direct examination testifies, “She yelled, ‘He has a gun!’” and opposing counsel objects to Hearsay, your response would be: “Your Honor, this falls under the ‘present sense impression’ exception to Hearsay, Rule 803(2).” That makes a claim about the law, but it doesn’t really explain the law or the connection between it and the facts. It is a very clear and simple statement of the core of your argument, and if you’re lucky the judge will rule for you right then and there. Don’t overcomplicate things while that kind of fast ruling is still an option.
Sometimes, however, that sort of brief statement will sound extremely counterintuitive and unclear to the judge, and in those situations more explanation is needed. At such times, when you’re giving a complete argument, you need to keep those three basic components we discussed in Part II in mind.
Let’s pretend a witness on direct examination said “She yelled ‘Stop!’”. Your opponent stands up and says: “Objection, Your Honor, Hearsay.” What’s your response? Well, the definition of hearsay is: “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” You know from your Mock Trial practices that the important part of that definition for this objection argument is that hearsay has to be a “statement”. You further remember that a statement is “an oral or written assertion.” So you tell the judge, “Your Honor, Hearsay only covers statements, defined as ‘oral or written assertions.’” There’s your statement of the rule. Now you have to explain the connection between that rule and the content here: “‘Stop!’ is not a statement, because it doesn’t assert anything. Therefore it isn’t hearsay.” See how you tied it back to both the definition of a statement- “it doesn’t assert anything” and to the bigger rule- “it isn’t hearsay”?
The short version of that objection response would be “Your Honor, ‘Stop!’ is not a statement.” Even for judges, the commonsense definition of ‘statement’ is likely to leap to mind, and on that view saying that “Stop!” is not a statement is absurd. Remember how there’s a possibility they’ll rule immediately for you when you say something simple and compelling? The reverse is also true- there’s a possibility they’ll rule immediately against you if you say something they consider obviously incorrect. End on a note the judge will find compelling.
Let’s look at an example in which opposing counsel’s choices influence your own.
You cross-examine a witness over an incident in which they lied, 5 years ago. Opposing counsel objects to Relevance.
Your response: “Your Honor, this evidence is relevant because it goes to the credibility of the witness.” This is another simple, short response- the connection between a witness lying and their credibility is fairly intuitive.
What if opposing counsel objects to the same thing under Improper Character Evidence?
Your response: “Your Honor, evidence that goes to the witness’s character for truthfulness or untruthfulness is an exception to the Improper Character Evidence Rule. Past incidents in which she lied go directly to her character for truthfulness.” Why the difference? Well, you might have been alright just saying with only the first sentence here, leaving out explicitly connecting the facts and the law. The connection between “past lying” and “character for truthfulness” seems pretty obvious. But Improper Character Evidence is a complicated, confusing, and often unfamiliar objection, even for experienced legal practitioners. The judge is going to need to put a lot more mental energy into understanding the Improper Character Evidence objection than they would even a tricky Hearsay objection. Don’t count on them having plenty of mental capacity left over to put the pieces of your argument together- do that work for them.
In Objection Basics: Part IV, we'll discuss some guidelines for subsequent responses and analyze full-length objection argument examples.
Tuesday, July 10, 2012
Objection Basics: Part II
In Objection Basics: Part I, we left off with Step 2: State the rule under which you are objecting. Now we need to complete that initial statement making the objection.
3. If necessary, clarify what you’re objecting to.
Step 3 should usually be accomplished in that same initial statement of your objection. It’s mostly going to prove necessary when there could be multiple things you’re objecting to, or when you’re objecting to only a narrow piece of testimony. For instance, if the witness says something like, “She yelled ‘Stop! He has a gun!’ at me,” and you want to object to hearsay, you’d probably want to only object to the “He has a gun!” part, because the first part isn’t hearsay- it’s a command (you probably shouldn’t object to the second part either, because it’s likely to be covered both by present sense impression and excited utterance exceptions, but let’s ignore that for the moment). So your initial statement to the judge would be something like, “Objection, Your Honor, Hearsay, specifically to the second part of the statement.” In that situation, you could also leave it until you get a chance to respond and clarify with “Your Honor, I’m objecting specifically to the second part of the statement, the assertion ‘he has a gun’.”
4. Make or listen to the response
So far we’ve been talking as though you’re always going to be the person objecting. But sometimes you’re going to be the person responding to an objection: you’re going to have to explain to the judge why you should be allowed to ask a question, or why your witness should be allowed to say something. Remember that you are having a conversation with the judge: you are not arguing with the other attorney. Address the judge: face the judge and refer to opposing counsel (respectfully) in the third person. Some Mock Trial teams will forbid their attorneys from ever looking at opposing counsel. Even if you’re allowed to look at opposing counsel, be sure you’re looking at the judge while you talk in an objection argument.
There are three basic components to every good objection argument: 1) the rule, principle of law, or definition most at issue; 2) the content being discussed; 3) the relationship between the two. To put it more concisely, your objection arguments should include the rule, the facts, and a connection between them. Most of the time the content you’re objecting to will be sufficiently clear from steps 1-3; you don’t need to reiterate that every time, but you should be sure the judge understands what the relevant content is. So most of the time you’ll focus on the rule and the connection between the two.
To understand why I keep talking about the rule, and what rule you should state, it’s important that you have a firm grasp on what you’re doing in an objection argument. Fundamentally, you’re arguing about what whether a particular rule applies. You’re trying to demonstrate that either a rule “fits” the content- that statement is hearsay, or is irrelevant, or that it doesn’t: there’s no ‘match’ between the what the rule prohibits and what you’re talking about here. There are, then, two basic strategies to responding to an objection: pick a part of the rule your opponent is objecting under and explain why there’s no match between that and the content, or pick an exception to the rule your opponent is objecting under and explain why there is a match between that and the content. So to make a clear argument, your argument will often proceed by quoting a rule and then explaining that match or lack of match.
4. Make or listen to the response
So far we’ve been talking as though you’re always going to be the person objecting. But sometimes you’re going to be the person responding to an objection: you’re going to have to explain to the judge why you should be allowed to ask a question, or why your witness should be allowed to say something. Remember that you are having a conversation with the judge: you are not arguing with the other attorney. Address the judge: face the judge and refer to opposing counsel (respectfully) in the third person. Some Mock Trial teams will forbid their attorneys from ever looking at opposing counsel. Even if you’re allowed to look at opposing counsel, be sure you’re looking at the judge while you talk in an objection argument.
There are three basic components to every good objection argument: 1) the rule, principle of law, or definition most at issue; 2) the content being discussed; 3) the relationship between the two. To put it more concisely, your objection arguments should include the rule, the facts, and a connection between them. Most of the time the content you’re objecting to will be sufficiently clear from steps 1-3; you don’t need to reiterate that every time, but you should be sure the judge understands what the relevant content is. So most of the time you’ll focus on the rule and the connection between the two.
To understand why I keep talking about the rule, and what rule you should state, it’s important that you have a firm grasp on what you’re doing in an objection argument. Fundamentally, you’re arguing about what whether a particular rule applies. You’re trying to demonstrate that either a rule “fits” the content- that statement is hearsay, or is irrelevant, or that it doesn’t: there’s no ‘match’ between the what the rule prohibits and what you’re talking about here. There are, then, two basic strategies to responding to an objection: pick a part of the rule your opponent is objecting under and explain why there’s no match between that and the content, or pick an exception to the rule your opponent is objecting under and explain why there is a match between that and the content. So to make a clear argument, your argument will often proceed by quoting a rule and then explaining that match or lack of match.
That's a general guide to making organized and clear objection arguments; in Objection Basics: Part III, we'll talk specifically about your initial objection response.
Sunday, July 8, 2012
Rules of Evidence Links
Quick interlude in the Objection Basics posts to provide convenient access to all the Rules of Evidence I intend to refer to:
College Rules, 2012: http://www.collegemocktrial.org/mock/2008_Rules_of_Evidence.pdf
National High School Rules, 2012: http://www.nationalmocktrial.org/fedrules.pdf
Iowa High School Rules, 2012: http://iowabar.org/associations/4664/files/Mock%20Trial%20Rules%20-%20National%20Adaptation%202011.pdf
Federal Rules of Evidence, 2012: http://www.law.cornell.edu/rules/fre
The Federal Rules are not used verbatim in high school or college Mock Trial, but they're very similar to the rules used in Mock Trial, and they're the rules most of your judges will be most familiar with, so they're useful for competitors.
College Rules, 2012: http://www.collegemocktrial.org/mock/2008_Rules_of_Evidence.pdf
National High School Rules, 2012: http://www.nationalmocktrial.org/fedrules.pdf
Iowa High School Rules, 2012: http://iowabar.org/associations/4664/files/Mock%20Trial%20Rules%20-%20National%20Adaptation%202011.pdf
Federal Rules of Evidence, 2012: http://www.law.cornell.edu/rules/fre
The Federal Rules are not used verbatim in high school or college Mock Trial, but they're very similar to the rules used in Mock Trial, and they're the rules most of your judges will be most familiar with, so they're useful for competitors.
Objection Basics: Part I
Disclaimer: a few basic formulas and suggested response structures are going to be discussed below. There are exceptions to and inappropriate uses for every single one of them. Your coach is always your primary Mock Trial resource.
What is an Objection?
An objection is the means by which the Rules of Evidence are applied. The Rules of Evidence are a lengthy set of standards for what can and cannot be put into evidence in a court of law. Those rules have to be enforced. They’re enforced by making objections in trial: verbal appeals to the judge to enforce a particular rule by forbidding a question or excluding an answer.
Making an Objection: The Essentials
When an objectionable piece of evidence is spotted in trial, via either a question by a lawyer or an answer from a witness, opposing counsel will stand up and state that she’s making an objection and the rule she’s objecting under. The judge may or may not ask her to explain further. Then the judge will often give the other attorney a chance to respond, and he might turn back to the objecting attorney to ask for another response. That can continue for as long as the judge wants it to, and then the judge will rule, either allowing all of the objected-to content into evidence, allowing some of it, or keeping it out entirely. Sometimes judges may also admit or hear the evidence conditionally. The objecting attorney then takes their seat, and the direct or cross examination proceeds.
The Record
When I talk about 'admitting' or 'excluding' evidence, I'm talking about allowing it into or keeping it out of something called 'the record'. 'The record' is a record kept of the happenings of a trial that the jury will have access to, and that they're supposed to make their decisions based on. If a piece of evidence gets excluded, it is, from the perspective of the record, as though that evidence was never mentioned. A literal record isn't kept in Mock Trial, but you're supposed to act as if one is, just as you're supposed to act in virtually every other respect as if the Mock Trial courtroom is a real courtroom. One of the ways you do that is by making objections.
Making an Objection: The Details
Remember that every moment you are addressing the judge you should be standing. To begin an objection, you stand up and address the judge.
Objection arguments will proceed roughly according to a series of steps. The steps are:
1. State that you are objecting.
2. State the rule under which you are objecting.
Steps 1 and 2 are accomplished simultaneously, usually by simply stating “Objection, Your Honor, [rule under which you are objecting]. Most common objections have names (“Hearsay”, “Relevance”, “Improper Character Evidence”), and you should use that name. You might say, for instance, “Objection, Your Honor, Relevance”. If you’re using a more obscure objection and it does not have a name, you’ll need to expand a bit and make it a complete sentence: “Objection, Your Honor, under Rule 703 this evidence is not admissible.” You shouldn’t just say “Objection, Your Honor, Rule 703.” The difference is because the rules that have “nicknames” are common enough that it’s appropriate to talk about them a bit casually- that is, without complete sentences. Talking about obscure rules in the same casual manner is jarring.
You can object to either questions or answers. Sometimes answers are themselves objectionable, and in that case the simple “Objection, Your Honor, [rule]” formula generally applies. But sometimes answers are just starting to become objectionable, and you’re trying to cut it off before anything that should be excluded gets heard. In that case, it is often best to clarify what you’re doing, usually by saying “Your Honor, the witness has begun to testify to [rule name]”, or “Your Honor, the witness’s answer is becoming [rule name]”. If, for instance, you objected after the witness said “Well, she told me” but before any statement was actually entered, you’d say “Objection, Your Honor, the witness has begun to testify to hearsay.” Similarly, questions themselves might be objectionable, and in that case the “Objection, Your Honor, [rule]” formula applies. But sometimes questions are themselves fine, but they prompt an objectionable answer. In that case, you clarify your objection, for instance by saying “Objection, Your Honor, the question calls for [rule name].” If the question was “And what did she tell you?” you might say “Objection, Your Honor, the question calls for Hearsay.”
Part II (and possibly parts after that) will cover procedures and suggestions for the rest of a typical objection battle.
What is an Objection?
An objection is the means by which the Rules of Evidence are applied. The Rules of Evidence are a lengthy set of standards for what can and cannot be put into evidence in a court of law. Those rules have to be enforced. They’re enforced by making objections in trial: verbal appeals to the judge to enforce a particular rule by forbidding a question or excluding an answer.
Making an Objection: The Essentials
When an objectionable piece of evidence is spotted in trial, via either a question by a lawyer or an answer from a witness, opposing counsel will stand up and state that she’s making an objection and the rule she’s objecting under. The judge may or may not ask her to explain further. Then the judge will often give the other attorney a chance to respond, and he might turn back to the objecting attorney to ask for another response. That can continue for as long as the judge wants it to, and then the judge will rule, either allowing all of the objected-to content into evidence, allowing some of it, or keeping it out entirely. Sometimes judges may also admit or hear the evidence conditionally. The objecting attorney then takes their seat, and the direct or cross examination proceeds.
The Record
When I talk about 'admitting' or 'excluding' evidence, I'm talking about allowing it into or keeping it out of something called 'the record'. 'The record' is a record kept of the happenings of a trial that the jury will have access to, and that they're supposed to make their decisions based on. If a piece of evidence gets excluded, it is, from the perspective of the record, as though that evidence was never mentioned. A literal record isn't kept in Mock Trial, but you're supposed to act as if one is, just as you're supposed to act in virtually every other respect as if the Mock Trial courtroom is a real courtroom. One of the ways you do that is by making objections.
Making an Objection: The Details
Remember that every moment you are addressing the judge you should be standing. To begin an objection, you stand up and address the judge.
Objection arguments will proceed roughly according to a series of steps. The steps are:
1. State that you are objecting.
2. State the rule under which you are objecting.
Steps 1 and 2 are accomplished simultaneously, usually by simply stating “Objection, Your Honor, [rule under which you are objecting]. Most common objections have names (“Hearsay”, “Relevance”, “Improper Character Evidence”), and you should use that name. You might say, for instance, “Objection, Your Honor, Relevance”. If you’re using a more obscure objection and it does not have a name, you’ll need to expand a bit and make it a complete sentence: “Objection, Your Honor, under Rule 703 this evidence is not admissible.” You shouldn’t just say “Objection, Your Honor, Rule 703.” The difference is because the rules that have “nicknames” are common enough that it’s appropriate to talk about them a bit casually- that is, without complete sentences. Talking about obscure rules in the same casual manner is jarring.
You can object to either questions or answers. Sometimes answers are themselves objectionable, and in that case the simple “Objection, Your Honor, [rule]” formula generally applies. But sometimes answers are just starting to become objectionable, and you’re trying to cut it off before anything that should be excluded gets heard. In that case, it is often best to clarify what you’re doing, usually by saying “Your Honor, the witness has begun to testify to [rule name]”, or “Your Honor, the witness’s answer is becoming [rule name]”. If, for instance, you objected after the witness said “Well, she told me” but before any statement was actually entered, you’d say “Objection, Your Honor, the witness has begun to testify to hearsay.” Similarly, questions themselves might be objectionable, and in that case the “Objection, Your Honor, [rule]” formula applies. But sometimes questions are themselves fine, but they prompt an objectionable answer. In that case, you clarify your objection, for instance by saying “Objection, Your Honor, the question calls for [rule name].” If the question was “And what did she tell you?” you might say “Objection, Your Honor, the question calls for Hearsay.”
Part II (and possibly parts after that) will cover procedures and suggestions for the rest of a typical objection battle.
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