Sunday, August 26, 2012

Advanced Objection Techniques: Destroying Expert Witnesses

Last time we discussed a variety of reasons you might need to rely on evidence that isn’t on the record in an objection argument, and how to deal with that. The final situation where this need arises is simultaneously narrow, complicated, and extremely common. I’d go as far as saying it happens at least once every college Mock Trial season. Every Mock Trial expert witness is designed such that their conclusions have some good points and some bad points: there is always evidence undermining the experts’ conclusions. There are also always standards governing the admission of expert testimony- Rule 702 and, in college cases, usually a few pieces of case law. So a cross-examiner can object to “Lack of Foundation” when an expert begins to give their conclusions. The problem with that is, most of the time the objection won’t succeed based purely on the evidence given in direct examination. Sometimes opposing counsel will forget to have the witness provide answers to all of the necessary foundational questions, but often that simple procedure is executed perfectly. What the crosser really wants is to draw all the evidence undermining the expert that will come out in cross to the presiding judge’s attention in direct, before the expert’s conclusions are entered. Notice what a difficult position this is to be in. If the directing attorney and witness have done their jobs properly, the witness has just answered every necessary foundational question- there shouldn’t be any signs of weakness yet. What the crossing attorney has to do is convince the judge that answers they can’t control to questions they haven’t even begun to ask yet will so radically undermine that foundation that the witness’s answer shouldn’t even be heard. That’s a difficult task, which is not to say it should be abandoned. The effect of this effort, if successful, is powerful: the entire direct is effectively negated.
You have basically three options for bringing the necessary evidence to the judge’s attention. First, you can treat it as if it’s the same as the situation discussed above when you want to draw on evidence your side hasn’t entered onto the record yet. Simply tell the judge, “Your Honor, on cross-examination evidence will be provided that...” and explain how the evidence provided on cross undermines the foundation laid on direct examination. Second, you can ask “May I make an offer of proof?” and then do the same thing you did in option one. Or third, you could ask permission to voir dire the witness. That essentially means you’re requesting permission to interrupt the direct examination in order to briefly cross-examine the witness. Option Two is not the right choice, in my opinion. Asking to make an offer of proof when you are not the one conducting the current examination is an unusual step, to put it mildly- the judge’s instinct is going to be to say “no.” Ideally we’d like to bypass that instinct. The choice between Option One and Option Two is going to be a matter of the particular witness and a reading of the judge’s preferences. Option One has the advantage of looking the most normal: it closely mimics the perfectly acceptable practice of describing evidence your side will be putting in. The downside is that it will rapidly become apparent that you’re essentially testifying. Remember how an offer of proof is a promise that the witness will testify in a particular way, and that the judge evaluates the credibility of that promise? You’re essentially doing the same thing in Option One. The more detailed and controversial the evidence you’re describing, the less credible the promise, and the less ideal Option One is. Option Three reverses the situation. Requesting a voir dire is abnormal in the extreme. “Voir dire” is an ambiguous term in the legal world, and it is more commonly used to refer to the process of questioning prospective jurors. When you request a voir dire, the judge is likely to either not know what you mean or think that you’re asking for something that isn’t possible or relevant in the current situation. If you can get past that significant hurdle, this is a solid option: you can put in all of the evidence you want in the traditional format of the cross-examination and have a complete set of ammunition for fighting out the Lack of Foundation objection you’re building towards. But a voir dire is like an impeachment in that it is dramatic: you’re building high expectations for what it is you’ll be doing. If you don’t have any major knockout points to cross the witness over, if you’re just doing the standard Mock Trial cross nit-picking, you’re better off avoiding a voir dire.
If you do decide to go for a voir dire, you begin with something like this:
You: “Objection, Your Honor, Lack of Foundation. May I be heard?” [judge nods]. “Rule 702 requires that expert witness testimony... [cite the part of Rule 702 that’s most relevant for this situation]. At this time, I request permission to voir dire the witness. If allowed to do so, evidence will be provided that shows that this witness’s testimony does not meet those criteria.”

Note that you immediately requested permission to speak more rather than allowing opposing counsel the first response. If opposing counsel has done their job properly, it will appear that all the foundation has been laid: the presumption is against your objection. You should fight that as soon as possible by making it clear where you’re going.
There is one final concern with all three of these approaches: if you succeed, you’re also likely destroying your own cross. Most of the time you’re crossing an expert witness over their conclusions, after all. If you keep those conclusions off the record... what have you left yourself to talk about? Consider carefully what you’re going to do on cross examination if you succeed before you attempt to block the witness’s conclusions.
Next time, we’ll discuss how to respond to any of those three approaches as the directing attorney of an expert witness.

Thursday, August 23, 2012

Advanced Objection Techniques: Using Un-Entered Evidence

In Tuesday’s post, we discussed offers of proof. An offer of proof is fundamentally a tool for using evidence that hasn’t yet been entered onto the record in an objection argument. You can use it when that evidence will be coming in fairly soon in the examination you’re currently conducting. Please note that is a fairly narrow circumstance; you can’t just use an offer of proof whenever you want to use evidence that hasn’t been entered yet. Let’s look at some situations where you might want to use such evidence and can’t use an offer of proof.
The most common and straightforward such situation is when you want to reference evidence that you know your side will be putting in later, but it hasn’t yet. Let’s say that there’s eyewitness testimony that a purple car was at the scene of a murder, but that evidence hasn’t come in yet. You’re talking to a witness and trying to establish the color of the defendant’s car. Opposing counsel objects to relevance- what use is it to us what color the defendant’s car is? You don’t need to request an offer of proof in order to respond. Simply tell the judge in broad terms what evidence you’ll be putting in later, and connect that evidence to what you’re putting in now. For instance, you might say, “Your Honor, the witness just testified that the defendant owns a purple car. We will later in our case-in-chief provide evidence that a purple car was seen at the scene of the murder: evidence that the defendant has access to such a car is clearly relevant in establishing the identity of the murderer.”
Objection arguments in which you need to use an argument of opposing counsel’s that they haven’t made yet are somewhat trickier. Again, this only comes up with any frequency in relevance arguments, where the evidence you’re trying to put in is relevant only as a rebuttal to an argument you anticipate opposing counsel will make. It’s perfectly acceptable to tell the judge exactly that: that you anticipate that opposing counsel will make a particular argument and you’re offering this evidence to rebut that point. It helps to be able to point to some indication that they do in fact plan to make that argument- a quotation from their opening statement, for instance- but it isn’t necessary. It can also be useful to gently remind the judge that here, unlike in real court, rebuttal witnesses aren’t allowed, so you have to be allowed to anticipate and respond to opposing counsel’s argument. So if, for example, opposing counsel emphasized in their response that they hadn’t yet made the argument you’re anticipating, you might reply: “Your Honor, although Counsel has not yet begun to make this argument, in their opening statement they made clear their intent to do so. Since we are unable to call rebuttal witnesses at this proceeding, we are offering evidence on that point now and that evidence is relevant.” Many judges will then turn to opposing counsel and ask if they do in fact plan to make that argument. If they say yes, the discussion turns into a normal relevance objection battle wherein you debate whether the evidence you’re offering really is pertinent to the point you’re trying to make. If they say no, you’ll usually want to say “In that case Your Honor, I’m happy to pose another question,” gracefully conceding the objection argument. Sometimes it’s pretty clear that they’ve actually already begun making the argument they deny making, however. Drawing on our earlier example, if the prosecution has put in evidence about the color of the car at the scene and the color of the defendant’s car, they very clearly intend to make the argument that they’re the same car. Don’t back down if that happens- point out all the pieces of the argument that they’ve already put in and re-assert your right to rebut their point. If they haven’t, though, and deny that they will, you’re pretty safe in backing down. If they then proceed to use that argument, the judge will think one of two things: either they made a bad-faith argument and essentially lied to the presiding judge, or the attorneys on the counsel table are coordinating their arguments badly. Either way, they’ve lost more credibility making that argument than you have by not countering it. Please note that you’ll need to be sure that rebuttal evidence really is the only reason you want to make whatever point you’re trying to make. If you want it in for some other reason and are forced to back down when it’s clearly not appropriate as rebuttal evidence, you’re out of luck.
There’s one other situation in this category which is complicated enough to warrant its own discussion. That’s what we’ll be covering next time.

Wednesday, August 22, 2012

Advanced Objection Techniques: Making an Offer of Proof

I keep hammering the point that objection arguments are about the connection between the law and the facts. Sometimes that connection will depend on facts that haven’t been put into the record yet. For instance, if your witness was going to say “She yelled, ‘Stop! He has a gun!” but got cut off by the objection at “she yelled,” you need the wording of the statement to establish the hearsay exception you intend to use. Remember that you as an attorney do not get to testify. You’re not a witness, and that means you can’t just assert facts that aren’t on the record yet. You also shouldn’t accept opposing counsel doing so (more on that later). You employ facts which aren’t on the record using what’s called an “offer of proof.” An offer of proof is a request to the judge to hear your assertions about what facts will come into evidence if the witness is allowed to continue testifying. You make an offer of proof simply by asking to do so. So the example we started with earlier would look like:
Witness: “She yelled-”
Opposing counsel: “Objection, Your Honor, Hearsay.”
You: “Your Honor, may I respond?” [judge nods] “May I make an offer of proof?” [judge nods]. “Your Honor, if allowed to testify the witness will state that she yelled ‘Stop! He has a gun!’ The first portion, ‘Stop!’ is not hearsay because it is not a statement. The second, ‘He has a gun,’ falls under the present-sense impression exception to hearsay.”
You in that example followed the correct procedure by simply asking, “May I make an offer of proof?” Notice that you also gave the judge some context for the facts you’re alleging will come in when you said “if allowed to testify, the witness will state...” Sometimes you’ll need to make offers of proof citing evidence that won’t come in for a few questions yet; you’ll need to give the judge context for that too, usually by saying “Your Honor, this line of questioning will provide evidence that...” You provide that context for two reasons. First, it ensures the judge knows what to expect. If they’re expecting the fact you just asserted to come in immediately, your credibility is hurt if it in fact takes a few questions. Opposing counsel might re-object, and this time they might succeed. Second, it makes your assertion more believable. You’re promising that the witness will testify to something. If you tell the judge not only what the witness will say but when they’ll say it, the judge is more likely to believe that promise.
The example we’ve worked with so far assumed that the offer of proof was given on direct examination. It would seem in theory harder to use it on cross examination. After all, the witness is hostile. How can the cross examiner guarantee what the witness will say? In practice that’s not a serious concern. The judge knows full well you’ve prepared your questions from the deposition and other available documents: your belief about what the witness will say is at least as credible as opposing counsel’s. Opposing counsel would also look a bit silly making the “the cross examiner can’t guarantee the answer” argument if the witness then proceeds to give the answer the crosser said they would. Moreover, many judges wouldn’t stand for that kind of indirect argument: they’d flat-out ask opposing counsel if they believe the witness will say something else. Here’s an idea of how that would play out:
Opposing counsel: “Your Honor, as the cross examiner here, Counsel can’t know what the witness will say- his offer of proof isn’t meaningful.”
Judge, to opposing counsel: “Is it your assertion then that Counsel is wrong about what the witness will testify to? The witness will say something else?”
Opposing counsel: “It  is our contention that Counsel’s belief about what the witness will say isn’t pertinent because this is cross-examination.”
Judge: “Is his belief incorrect?”
At this point, assuming you’re right in your offer of proof, opposing counsel has two options. They can say “We don’t know,” and look like idiots for not understanding their own witness’s testimony. Or they can say “no,” and... look like idiots for affirming what they’ve been fighting against.
Of course, there will be times when the judge isn’t going to do that work for you and you’ll have to defend yourself against that argument by yourself. You can’t turn it into an issue of whether you’re right or wrong quite as easily as the judge can- ignoring opposing counsel’s argument and directly questioning them is a prerogative only the judge gets. I’d suggest directly responding to opposing counsel’s point by making the “preparation” argument I sketched out earlier and then turning it into an issue of whether you’re right. So you’d say something like: “Your Honor, may I respond?” [Judge nods] “Your Honor, this offer of proof is based on the witness’s prior sworn statements, the same basis Counsel would have for a similar offer on direct examination. Further, it refers to testimony the witness is about to give- if the witness does not give the answer I expect, Counsel is free to renew her objection.”
So the only concern on cross-examination is being sure you’re right about what the witness will say and making offers of proof won’t be a problem.
Offers of proof are, broadly speaking, tools for using evidence that hasn’t yet been entered in objection arguments. Next time we’ll talk about instances in which you need to use that sort of evidence, but don’t have an offer of proof available as a straightforward option.

Sunday, August 19, 2012

Advanced Objection Techniques: Handling Judges

The key concept in interacting with a judge in a Mock Trial context is: show them the appropriate respect. That sounds simple enough, but it gets complicated quickly by two factors. First, most people are unfamiliar with interacting with an office that demands this high a level of respect. Second, you’re interacting with judges in the adversarial context of a trial, and they absolutely cannot be treated as your adversary.
The judge is in charge of the courtroom, and in a sense in charge of the law of the courtroom. Yes, the Rules of Evidence hold sway everywhere- but those rules mean what the judge says they mean. That means they’re the final legal authority in the room. You don’t get to contradict them, or argue with them after they’ve made their ruling. That doesn’t have anything to do with the ego of the particular person sitting on the bench that day. It’s about respect for the office. If according that level of respect to an office is difficult to understand or remember, consider the realities of a judge’s job: they’re routinely moderating fights about deeply important and emotional issues, like property and liberty. They have to command the kind of respect that gets a bunch of pissed-off people to sit down and shut up on command. Treat them with that level of respect. Alternatively, treat them like they could throw you in jail if they wanted to.
The tricky thing about not being allowed to correct judges is that sometimes judges are wrong. Sometimes wrong in minor ways, but sometimes quite badly wrong. They might forget- or invent- entire rules, for instance. And you can’t tell them they’re wrong. You can do something subtly different, however: guide them to realizing they’re wrong. This requires careful presentation. Usually the best way to present it is by acting as if your goal is to clarify your argument. If, for instance, your judge has just made it plain that they do not know “admission by a party opponent” is a hearsay exemption, you’re best served by saying something like “Your Honor, I’m referring specifically to Rule 801(d)2,” which is the rule for admission by a party opponent. That response doesn’t reference what the judge just said. You’re not correcting them: you’re clarifying what you’re trying to do in your objection.  Often you should directly quote the rule. Ideally you should be doing that straight from your copy of the Rules of Evidence- this is one of the situations in which doing so is not only acceptable, it is ideal. The judge has, at this point, certain ideas about the rules of evidence. You’re providing contradictory information. That means you’re not going to be believed. You need to be very clearly appealing to a higher authority. This also helps in framing things non-confrontationally: you’re not asserting that the judge is wrong and you’re right, you’re just reading what it says in this rule. Notice that this means you must have the higher authority (the Rules of Evidence) clearly on your side. If a judge doesn’t share your understanding of the Speculation objection, you’re out of luck, because the Rules never define speculation. You have to discover and use the judge’s definition of Speculation as rapidly as possible.
The length at which I’ve discussed guiding judges around their mistakes is probably deceiving. Most of the time, there’s no way to do that diplomatically. As I said a moment ago, you really only have that option when the Rules of Evidence are clearly on your side. If the judge has made a clear-cut mistake about the text of a rule, you have a chance at fixing that- and you should absolutely take it. If it’s a mistake about how to understand a rule, no matter how egregious, you’re out of luck. You need to adapt your argument to accommodate the judge’s understanding of the Rules.
It’s worth noting that almost as important as never telling a judge they’re wrong is never outright telling a judge they’re right. Now, obviously if they ask anything along the lines of “Am I correct in understanding...?” you can say “yes, Your Honor.” You could also say “no, Your Honor;” they’ve elected to submit this particular understanding of theirs to your judgment and dancing around a “no” by euphemism winds up looking condescending. In general, though, you want to avoid spontaneously saying things like “that’s correct, Your Honor.” Those statements frame the judge as needing your affirmation, and make it sound like you think you know the law better than they do, both of which are false. Put another way, saying “that’s correct” makes it sound like you have the right to say “that’s incorrect,” and you don’t. Similarly, don’t say “I agree” about an assertion of the judge’s. “I agree” statements have all the irrelevance of “I think/I believe” statements (see Objection Basics: Part IV) while implying that you have some right to disagree with the judge’s understanding of the law.

Friday, August 17, 2012

Advanced Objection Tactics: Buying Time to Think

Objection arguments always happen quickly. You have a small amount of time to register that there is something objectionable happening, decide that it's worth objecting to, get on your feet, and begin articulating your point. Practice and developing good instincts help immensely with this, but there will still be moments when you need a second for your brain to organize itself enough to argue properly. You’re going to instinctively want to fill that time with “Um”, “Uh”, and awkward silence; your coach is probably working on breaking you of those habits. You can fill in that space instead with initial sentences that are easy to formulate. There are two basic sources of those sentences: the basic principles of law at issue and the main point of your argument. If you’ve prepared properly and certainly if you’ve had a little experience, you shouldn’t have to think about the definition of relevance, or hearsay, or any other common objection. That means those definitions are easy first sentences. You also may have a sense of the main point of your argument before you have an idea of how to articulate the details of it well. Stating or even re-stating that point can be a useful way to begin as you organize your thoughts as well. I’ve tried to emphasize how important it is to make sure the rule is clear, and the main point of your argument should absolutely be clear as well, but sometimes it isn’t strictly necessary to re-state those things explicitly. It can still be acceptable and useful to do so as a time-buying tactic. Even when the point has been made to death and it absolutely is a bad idea to say it yet again, it is still better than standing there silent or filling your sentences with “um.”
Another time-buying tactic involves splitting your objection argument into two tasks: developing your own argument and attacking your opponent’s argument. Sometimes those things will be virtually identical: your entire argument might be that they’re using a faulty premise, for instance. But quite often they can be usefully thought of as separate tasks. In Objection Basics: Part III, we used an example in which you cross-examined the witness over an incident in which they lied five years ago and opposing counsel objected under Relevance, arguing that an incident that was so far in the past could not have bear on the witness’s credibility today. You might attack that point, emphasizing the egregiousness of the lie and the importance of the witness’s credibility today. But you might also be developing your own argument that opposing counsel’s assessment of the impact of this witness’s credibility doesn’t matter, since that’s a question that should be put before the jury. How does this split help you buy time? If you know how to do one task, do that while you think about the other. Quite often it’s easier to attack an opponent’s argument than it is to develop your own; you can jump straight into that even if you aren’t quite sure where your own argument is going.

Tuesday, August 14, 2012

Advanced Objection Techniques: Arguing Weight versus Admissibility, Part II

In Part I of this argument, we assumed you’re the one making the “weight versus admissibility” argument. What happens when you’re on the receiving end of it? Well, you’re in a bit of a tough spot, because the most straightforward way to respond is to argue that their argument doesn’t even meet relevance’s low standard, and you’re going to have a hard time doing that unless their argument is pretty ridiculous. It’s often worth a shot, though, and if your team subscribes to the “never give up, never surrender” school of thought on objections, it may be the best line of attack you have. Your other option is to point other ways they could have proved the same point, or ways they have offered evidence on that point, without invoking the relevance concern. The line of thought you’re essentially selling the judge on is that opposing counsel has a hassle-free way of making their point and we shouldn’t bother with this dubiously relevant content at all. You’re invoking something of the spirit of the ‘cumulative’ and ‘waste of time’ objections (don’t switch to outright using those objections, though) to persuade the judge this line of argument is better kept from the jury. This has often proven effective and is a stronger line of attack than arguing that opposing counsel fails the relevance standard. There is one pitfall to this approach, though: in a certain sense it’s not supported by the Rules of Evidence. Nowhere is it writ that using one line of evidence to support a point rules out using other lines of evidence to support it- the only barrier opposing counsel’s arguments have to surmount to pass a relevance objection is the relevance rule, not your assertions about how they should have avoided a relevance issue altogether (that, by the way, is the line of argument you should use if you’re ever on the receiving end of this particular argument). The only reason it’s not totally illegitimate is that it does appeal to a real sense in which the application of the Rules of Evidence is a balancing test, weighing the need to keep the record clean of objectionable evidence against the need to allow both parties a fair shot at presenting their case. The proponent of this argument is telling the judge there’s a way to do both in one decision.