Sunday, September 30, 2012

Objection Dialogue Examples: Example Two, Part I

Let’s keep the same facts that Example One uses, but both opposing counsel and the judge make different choices during the objection argument. Let’s also add some detail into the factual background: the lie was told in the course of an affair the witness had. This time opposing counsel objects under Improper Character Evidence. There’s an easy response to that- this questioning pretty clearly falls under an exception to that rule- but the judge’s understanding of that exception makes things... interesting. This example draws heavily on the discussion in Advanced Objection Techniques: Handling Judges.

1. Opposing Counsel: “Objection, Your Honor, Improper Character Evidence.”
2. You: “Your Honor, may I respond?” [judge nods] “This evidence falls under an exception to the Improper Character Evidence rule because it goes to the character of the witness for truthfulness or untruthfulness. The witness’s past lies give us reason to believe him untruthful.”
3. Judge: “What exception is that, Counsel?”
4. You: “Your Honor, rule 608(b) provides that specific instances of conduct of a witness may be inquired into on cross examination if probative of truthfulness of the witness.”
5. Opposing counsel: “Your Honor, may I respond?”
6. Judge: “One moment.” [finds rule in the provided copy of the Rules] “Counsel, this rule indicates that specific instances of conduct may not be proved by extrinsic evidence.”
7. You: “Your Honor, may I respond?” [judge nods] [reading from your copy] “Your Honor, the rule goes on to state that such incidents may be inquired into on cross-examination if probative of the witness’s truthfulness or untruthfulness.”
8. Judge: “‘In the discretion of the court.’ And I’m not convinced of the value of this line of questioning- you’re asking about one incident far removed from the events of this trial. How is this valuable for us today?”
9. You: “Your Honor, it is valuable for the jury to be able to assess the credibility of the witness in his testimony today, and his truthful character or lack thereof affects his credibility. His past lies demonstrate his untruthful character, and that’s valuable in assessing his credibility.”
10. Judge: “I’m not persuaded that the incident you’re exploring affects his credibility.”
11. You: “Your Honor, may I respond?” [judge nods] “Your Honor, the incident I’m referring to isn’t an isolated occurrence. This line of questioning provides evidence about a lie in furtherance of a systematic and deceptive violation of serious promises, not unlike the ones he made today. That is valuable information to have in evaluating his credibility.”
12. Judge [to opposing counsel]: “Response?”
13. Opposing Counsel: “Yes, Your Honor. Counsel’s comparison between the witness’s wedding vows and the promise to tell the truth that he made today is specious: the emotional and cultural context of an affair is completely different than the context of testifying in court. We have no reason to believe the circumstances of this past lie make it likely that he’ll lie today. The fact is that opposing counsel is delving into an isolated incident that occurred years ago. It’s not useful to us today.”
14. You: “Your Honor, may I respond?” [judge nods]. “The fact that the emotional context leading to an affair is different from the emotional context surrounding court testimony is irrelevant to the argument being made here. The issue is whether that lie significantly affects his credibility today, and it does. The simple fact that he’s willing to lie says something important about his credibility. His willingness to lie to those closest to him says something important about his credibility. And his willingness to lie in violation of a promise says something very significant about his credibility.”
[Again, this has been an exceptionally long argument and the judge could cut it off at any point]
See how completely different that example was? Opposing Counsel was shut out of the discussion for some time after the initial objection, because the judge was the active one. Lets look at a few tricky things that caused in your responses. First, the judge asked for a name of the exception you’re referencing. If that caused you a moment of confusion, you’re on the right track. You referenced an exception, sure, and you should be expecting questions and arguments on that point, but the judge’s question makes it sound like they think it has a name like hearsay exceptions do, and of course character evidence exceptions don’t work that way. The judge may genuinely not remember that. You responded as best you could have, substituting a rule number for a name. Notice that you did not correct the judge or attempt to clarify what they were asking for. The second difficulty was caused when the judge read the first sentence of the rule, which looks like it goes against you, without reading the second, which was what you were actually referring to. Of course, many judges will know that you weren’t using “extrinsic evidence” to prove your point here. But some won’t. It looks like you have to correct the judge, when you absolutely cannot do that. You managed that trick by framing it as simply providing the judge with more information. In this case, you simply read further into the rule. You didn’t contradict the judge- not even a “Yes, Your Honor, but...” You might also have noticed how that argument ceased to be about Improper Character Evidence after the judge asked about the value of the evidence. At that point, it’s essentially become a Relevance objection argument. No one said that- it’s unnecessary- and no one attempted to return the conversation to a discussion of the original objection. What the judge wants, the judge gets: if they’re leaning towards sustaining an Improper Character Evidence objection because they don’t think the evidence is relevant, as bizarre as that might sound, that relevance concern has become the biggest threat to your evidence and it’s what needs to be addressed. Opposing counsel goes along with the switch because a concern that the judge raises is probably one they’re inclined to be sympathetic to- it’s become the best way to keep that evidence out. Judges changing the objection argument from what it is to what they think it should be is a relatively common occurrence. You have to go with the flow.

I have a bit more to say about this example. Next time we’ll do the same sort of analysis with it that we did with Example 1, examining the way facts and law were connected and clarified in this argument.

Saturday, September 29, 2012

Case Law Bonus Post: Jackson v. Bryan

  • There are two affirmative defenses useable against action brought for harms caused by the defendant’s recklessness
    • A plaintiff’s own recklessness
    • A plaintiff’s voluntary assumption of the risks arising from the defendant’s recklessness
    • A defendant can pursue either or both of these affirmative defenses.
  • A plaintiff’s own contributory negligence is not a defense against an action brought for harms caused by the defendant’s recklessness.
Notes: This caselaw brings a couple of new vocabulary terms. Let’s go over them:
  • Affirmative Defense: An affirmative defense is a legal argument in which the defense admits (“affirms”) some of what the plaintiff claims, but asserts that there were other factors which excuse them from liability regardless. The classic example of an affirmative defense is self-defense claims in murder trials: the defense admits that the defendant killed someone, but argues that the defensive nature of the killing means the defendant shouldn’t be punished. In an affirmative defense, the defendant takes on the burden of proof. That’s a huge point to remember. The defense’s main advantage in most trials is that their victory is the default setting: the plaintiff has to do all the work of proving things. When the defense uses an affirmative defense, they abandon that advantage.
  • Contributory negligence: Often in complicated real-world situations, the victim of some injury contributed to their own injury. Sometimes they did so through carelessness or stupidity (“negligence”). This is often a defense that’s available to people getting sued: they can argue that the plaintiff was more responsible for the harm than the defendant was, so the defendant shouldn’t be held liable. Notice that we are not allowed to make this argument this year.
We do have two affirmative defenses available to us, described here and in the statutory selections we’re given. First, we have “a plaintiff’s own recklessness,” also discussed in 1302(2). This means that the defense can admit its own recklessness, but argue that the plaintiff was also reckless, using the same definition of recklessness given by earlier case law and the statutes. 1302(2) puts it very precisely: “A plaintiff whose own reckless conduct was a legal cause of plaintiff’s harm is barred from any recovery against a defendant whose recklessness was also a legal cause of the plaintiff’s harm.” Notice that this is a very binary rule: a plaintiff’s recklessness either was or was not a legal cause of their harm, and if it was, they cannot recover at all. This is in stark contrast to contributory negligence arguments, where it’s usually a sliding scale: fault is thought of in percentages, and if the plaintiff is 51% responsible, the defendant isn’t liable- whereas if the plaintiff is 49% responsible, the defendant is. Here there’s no thinking about percentages or relative fault- the plaintiff’s recklessness just either was or wasn’t a cause. That’s a point that might have to be carefully clarified for the judges at times.
The second affirmative defense available to the defense this year is the “assumption of risk” defense. The basic argument here is that while the defense was indeed exposing the plaintiff to risks, the plaintiff knew that and accepted the consequences, and that therefore the defendant shouldn’t be held liable for injuries resulting from those risks. Remember how binary the other affirmative defense was? It’s less clear how the “assumption of risk” affirmative defense works. Look at the text of the statute, 1302(3): “A plaintiff who assumed the risk arising from the defendant's recklessness is barred from recovery for such harm.” There’s ambiguity inherent in that statement because it’s not clear that the defendant’s recklessness is, so to speak, one indivisible thing. Is it possible to assume some of the risk arising from the defendant’s recklessness? If it isn’t, then the defense would need to prove that the plaintiff assumed all of the risk arising from the defendant’s recklessness in order to succeed- a fairly difficult standard to meet. If not, then the defense can use this affirmative defense in conjunction with a standard defense, arguing that some of its choices were indeed reckless, but that the plaintiff assumed the risk of those choices, and that the rest of its choices were not reckless. The latter approach seems the most intuitive to me: asserting that the plaintiff would have to have assumed all the manifold risks of the many choices made in a given case before this defense could have any effect would make it fairly useless. Since it’s Mock Trial and all we have is the material provided in the case packet, we’re free to argue whichever interpretation is more advantageous for our side. However, there are risks in making an argument judges will know is wrong in the real world. In my understanding of the law, the second interpretation is the correct one in the real world: the plaintiff needs to have accepted the particular risk that led to injury. Accepting one risk or accepting risk in general isn’t equivalent to accepting all of them.

Thursday, September 27, 2012

Case Law Bonus Post: Yanka v. Edwards Industries

  • Causation has two parts:
    • Cause in fact, or direct cause: requires proving either
      • That the plaintiff would not have been harmed but for the defendant’s conduct
      • Or that the defendant’s conduct was a substantial factor in bringing about the harm.
    • Proximate cause: requires proving both
      • That the particular harm suffered by the plaintiff was a foreseeable result of the defendant’s wrongful or unlawful conduct
      • And was of a type that could reasonably have been anticipated.
    • In analyzing proximate cause, the factfinder must:
      • Identify the particular risks that made the defendant’s actions culpable
      • And determine whether the injury suffered is among those risks.
Notes: Notice that we’ve moved on to the second section of the caselaw. The last one focused on clarifying our understanding of “recklessness” and “reckless disregard.” This one focuses on our understanding of the “direct and proximate cause” language used in the selections from the Midlands Civil code [1200(4)]. Even though 1200(4) is only one element of the list that goes into proving recklessness, it requires that the plaintiff prove two things: that the defendant’s conduct was a direct cause of the plaintiff’s harm, and that the defendant’s conduct was a proximate cause of the plaintiff’s harm. This case law defines direct and proximate cause, and gives us a start at understanding how we determine whether or not something was a proximate cause.
Let’s start by looking at the definition of direct cause. Direct cause means basically the same thing we think of when we normally talk about something causing another thing- you stomping on my toes would be the direct cause of my sore toes. This case law gives us two different ways to prove something is a direct cause. The first one is what’s sometimes called the “but-for” test. It asks a question- but for the defendant’s conduct, would the plaintiff have been harmed- and invites us to do a thought experiment, in which we imagine that the defendant had never done whatever the plaintiff claims is reckless. Would the plaintiff have still been harmed? If the answer to that question is “no,” then the conduct was a direct cause of the harm. The second method of determining direct cause is fairly simple to understand, but less straightforward to apply. The idea of a “substantial factor” is pretty intuitive: the conduct has to have played a major role in bringing about the harm for it to be a direct cause in this test. But the term “substantial” doesn’t lend itself well to precise definition. There’ll be room to argue about whether some action really was a substantial factor in causing harm.
Proximate cause looks like a strange concept at first, but the example given in the case law really does illustrate the point nicely. There’s a disconnect between the risk taken by the parent and the harm actually caused: the law doesn’t hold people liable for those sorts of harms. The “foreseeability” language in the case law is a simple way to understand why: it isn’t fair to punish people for results they had no way of anticipating. It’s that disconnect the case law guides us to look for when it says “the factfinder must first identify the particular risks that made the defendant’s actions culpable and then determine whether the injury suffered is among those risks.” Let’s break that down a bit. The defendant in this case presumably took actions that entailed certain risks: the risk that someone would be killed, for instance. The jury’s supposed to look at the defendant's actions and essentially figure out what those risks were. Then if the plaintiff’s injuries are on that list, the defendant’s actions are the proximate cause of those injuries.

Wednesday, September 26, 2012

Case Law Bonus Post: Smith v. Kierce

Notes: Most of us have had the experience of signing various forms promising that we won’t sue before are allowed to do something. Those documents are a form of contract, and not all contracts can be enforced by the law. In an extreme example, you couldn’t sell yourself into slavery: that contract would be “unenforceable” because slavery is illegal. This case law says that you can’t sign away your right to sue for recklessness, either, and contracts that try to do that are unenforceable. This explains the arguments the plaintiff is making in this case: they can’t argue that the defense was negligent, because they signed away their right to do that and the court is enforcing that part of the contract. But the plaintiff can argue recklessness, even though they also signed away that right, because the court is refusing to enforce that part of the contract. This isn’t something you’ll have to explain to the jury, it’s simply interesting background knowledge.

Tuesday, September 25, 2012

Case Law Bonus Post: Kirby v. Davis

Notes: Again, this case is telling us how to use the facts of a particular case to decide whether or not someone was reckless. We just finished saying in Hopson that risky conduct might not be reckless in emergencies. This case looks at the narrower situation of predictable emergencies. Predictable emergencies can be set apart from emergencies generally because they can- and maybe should- be prepared for, so maybe companies and people should be held liable if they fail to do that. This case law says that if someone made a mistake in an emergency, one of the factors to be considered in deciding whether or not they should be “excused” (held not liable) is whether or not they should’ve been better prepared for that emergency.

Case Law Bonus Post: Hopson v. Dawson

  • There are rare circumstances in which:
    • It may be reasonable to take actions that involve a high degree of risk of serious harm to others.
    • Dangerous action may be better than no action at all.
  • This does not preclude liability for actions taken in an emergency if the actor’s tortious conduct caused the emergency.
Notes: This case again illustrates the relationship between the factual situation of a case and the legal concept of recklessness. The idea it articulates is a fairly commonsensical one: sometimes we have to do very risky things in an emergency. That shouldn’t be considered reckless. We could probably get to this conclusion if we thought hard about the definition of recklessness explained in MK Studios. Recklessness there is understood to be a function of the relationship between the risk involved and the benefit to others. In the types of emergencies described here, the risks are very high, but so are the potential benefits, like saving a life. So the risk and the reward are still proportionate and the conduct wouldn’t be reckless under the MK Studios rule. Hopson gives us basically an argumentative shortcut to that conclusion: we don’t have to recreate that line of logic in trial because the Midlands Supreme Court already did.
It’s worth noting also that the last sentence has two possible interpretations. It might mean that actors can still be held liable for the type of conduct discussed in the rest of the case (risky choices made in emergency situations) if they caused the emergency in the first place. But it might also mean that non-reckless conduct after an emergency doesn’t excuse- “preclude liability”- for actions that caused the emergency. Based on the fact that the preceding case does seem to exclusively talk about liability for risky emergency conduct, I think the argument for the first interpretation is stronger. But a case for the second interpretation could be- and might be- made.

Sunday, September 23, 2012

Objection Dialogue Examples: Number One

This is the first of the objection examples I promised. It draws on all of the Objection Basics information and a bit on a technique covered in Advanced Objection Techniques: Arguing Weight versus Admissibility, Parts I and II.

You’re cross-examining the witness over an incident in which they lied 5 years ago (responses numbered for convenient later reference). This, you believe, is relevant to his credibility, but opposing counsel objects to relevance, arguing that the incident was too long ago to be useful.
1. Opposing counsel: “Objection, Your Honor, Relevance.”
2. You: “Your Honor, may I respond?” [judge nods] “This evidence is relevant because it goes to the witness’s credibility.”
3. Opposing counsel: “Your Honor, may I respond?” [judge nods] “This evidence has no bearing on the witness’s credibility today; the alleged lie took place many years ago, it can’t be considered relevant to today’s case.”
4. You: “Your Honor, may I respond?” [judge nods] “The bar the relevance rule sets is a low one: evidence need only have any tendency to make any pertinent fact more or less probable. Past lying certainly tends to impact a witness’s credibility.”
5. Opposing counsel: “Your Honor, may I respond?” [judge nods] “The relevance rule does indeed set a low bar, but this evidence doesn’t meet even that test. The credibility that matters for this case is the witness’s credibility today, while he’s testifying. Such far-removed actions don’t impact that credibility.”
6. You: “Your Honor, may I respond?” [judge nods] “Counsel’s argument goes to the weight to be given this evidence, not its admissibility. Past lies, no matter how far removed, certainly have some tendency to impact the witness’s credibility. They’re arguing about how much impact that has, but that’s a question for the jury to decide.”
7. Opposing counsel: “Your Honor, may I respond?” [judge nods] “Your Honor, we’re not arguing about how much impact this incident has upon the witness’s credibility today- we’re arguing that there is and can be no impact. For evidence to be relevant, it has to have some tendency to make some pertinent fact more or less probable: this evidence has no such tendency.”
8. You: “Your Honor, may I respond?” [judge nods] “Counsel just told us that this lie can have no impact on the witness’s credibility. That’s the fundamental premise we have to accept for her argument to hold: that past lying not only does not but cannot have any impact on the witness’s credibility today. That’s simply absurd.”
[The judge is likely going to be antsy to rule by now- this has been a drawn-out objection battle. Many judges would have chosen to end it much sooner.]
This is, I think, a very high-quality objection argument. Each response was on-point and well-articulated. Let’s look at what made it good. Remember the three things I’ve said need to be clear in good objection arguments: the facts, the rule, and the connection between the two. Check how many times a rule was articulated here. I count three explicit paraphrases of the definition of relevance, and one clear connection between relevance and the witness’s credibility. Could they have worked it in more? They probably didn’t need to, but it could have been useful as a buying-time-to-think tactic. You could argue that response (5) involves that- does the attorney really have to reiterate that relevance is a low bar? Well, maybe not, but I think it’s a good lead in to saying that the evidence fails even the simple test relevance sets, which is a strong rhetorical tactic: it’s a clear and firm statement of the argument.
Did they keep the facts clear? I think so. The fact at issue here is very simple: the witness lied a number of years ago. Each side emphasizes the facts that are useful for their case: you reference past lies repeatedly, and opposing counsel keeps mentioning that the lie was years ago.
What about the connection between the facts and the rule? Both sides set out their versions of the connection at least once: “This evidence is relevant because it goes to the witness’s credibility,” and “This evidence has no bearing on the witness’s credibility today; the alleged lie took place many years ago, it can’t be considered relevant to today’s case” both make those connections. Notice that both of those statements came very early in the objection argument: it is important to make those connections early on so the judge can understand where the argument is going. Opposing counsel’s statement that “the relevance rule does indeed set a low bar, but this evidence doesn’t meet even that test” also clearly connects the relevance rule in general to this particular example- and does so while addressing the precise point you just made. Both attorneys are making many other points: you attack opposing counsel’s argument as a whole by pointing out that it goes to weight and not admissibility, and you attack a particular premise by asserting that denying a connection between credibility and lying is absurd. You’re not done purely by laying out your version of the facts, the rule, and the connection between the two: doing that is necessary for a good argument, but it often isn’t sufficient. Notice also that none of the responses made fit into any particular formula. Objection arguments should never be formulaic. Each response is structured in that all the sentences fit together in a logical way, but that structure is and should be dictated by the unique logic of each argument, not by any external rules.

Saturday, September 22, 2012

Case Law Bonus Post: Gilbertson v. Everest Experience & Armstrong v Bennett

Gilbertson v. Everest Experience
This case is another one that describes how context helps us evaluate someone’s conduct- in this case, it helps us decide “whether conduct was done with reckless disregard.” It essentially says that not following pre-existing standards (“customs of the community or one’s previously promulgated procedures”) can be used in determining whether or not someone acted with reckless disregard, but it doesn’t settle the question.

Armstrong v Bennett
Notes: Although this bit of case law is rather long-winded, the central point it makes is pretty simple: the promises a company makes in its pamphlets or brochures are part of its contract with its customers. In the context of this case, this explains Lee’s argument to Neptune employees about the refund.

Friday, September 21, 2012

Case Law Bonus Post: Wallace v. DeVeas

This is similar to Bangs in that it describes factors we can consider when evaluating whether or not someone upheld the appropriate “standard of care”- whether they acted in reasonable care. It tells us that someone’s skill and knowledge can be considered in determining a standard of care, and gives a guideline for what that standard of care looks like a specific case, that of members of a trade or profession. Let’s take ziplining as an example. Most laypeople don’t know much about ziplining safety, so it might look like reasonable care to us to, say, secure a person to a zipline by only one hook. But let’s say that’s not the standard professional practice. Maybe the standard of that industry requires a back-up. A ziplining professional who didn’t use a backup hook, then, would arguably not be using reasonable care.

Thursday, September 20, 2012

Case Law Bonus Post: Bangs v. Kelly

Again, our understanding of this caselaw wouldn’t be especially aided by an outline. Definition of a few terms is necessary, however. First, what is a standard of care? You may remember that the Midlands Civil Code selections reference a “duty of care.” That’s a legal obligation to abide by a “standard of reasonable care.” If you owe someone a duty of care, you have an obligation to take reasonable care in performing actions that might harm them. “Determining the standard of care applicable at law” basically means fleshing out that rule- figuring out what someone taking reasonable care would have done in the particular circumstances of the case. Later the case law references “tortious conduct,” which basically means “conduct for which you can be sued.” In short, this case law says that in evaluating whether or not someone acted with reasonable care, we can consider physical and mental limitations of the person, both permanent and temporary. It’s a very intuitive idea if you think about it. For example, most people are being perfectly reasonably careful by driving to work; a blind person is not.

Wednesday, September 19, 2012

Case Law Bonus Post: Nasty Brewing Company’s Famous IPA v. R. Swanson & Co.

I’m not outlining this one since it's fairly short and straightforward. This one is related to Motown Car in that it also says that people’s actions should be evaluated based on what they reasonably should have done, not what they actually did. One of the things Motown Car told us was that actors must “have known or had reason to know of the underlying facts that created the risk.” Nasty Brewing helps explain what “had reason to know of” means. Since everyone is expected to give their surroundings the attention a reasonable person would, everyone “has reason to know of” facts they would have known about if they paid that kind of attention to their surroundings.

Tuesday, September 18, 2012

Case Law Bonus Post: Motown Car Co v. Mink

  • Recklessness in civil liability:
    • Does not require showing that the actor consciously chose to disregard a known risk.
    • Does require showing that the actor must have known or had reason to know of the underlying facts that created the risk.
  • Civil recklessness may be shown by:
    • Demonstrating that the actor knew or had reason to know of facts that created a high degree of risk of physical harm to another and then deliberately chose to act or refrain from acting in conscious disregard of that risk.
    • Demonstrating that a reasonable person in the actor’s position would have appreciated the high degree of risk, regardless of whether the actor was herself consciously aware of, and consciously chose to disregard, the risk.
This case law clarifies another point about recklessness: what the plaintiff has to prove about what the defense knew and believed about the risks it created. They don’t have to prove that the defense’s agents actually consciously knew about and ignored the risks involved in their choices. The plaintiff only has to prove that they should have known. That’s a pretty substantial boon to the plaintiff when you think about it. Imagine how hard it would be to prove someone thought something. Sure, maybe you’d get lucky and they wrote it down and didn’t destroy it- but the defendant probably shouldn’t get away with taking major risks just because there’s no paper trail. They should have known about those risks, and that’s good enough.

Sunday, September 16, 2012

Case Law Bonus Post: MK Studios v. Princess Productions

MK Studios v. Princess Productions
  • The difference between negligence and recklessness is based on:
    • The degree
    • and magnitude
    • of the risk involved
  • Negligence: the risks of the actor’s conduct exceeded its likely utility.
  • Recklessness: A risk all out of proportion to and therefore recklessly disregardful of the interests of others.
  • Reckless conduct:
    • Involves an easily perceptible danger of death or substantial physical harm
    • The probability that the harm will so result must be substantially greater than is required for ordinary negligence.
This case law does essentially two things. First, it clarifies the relationship between negligence and recklessness. Second, it gives us another way to approach understanding recklessness. I say “another” because the Midlands Civil Code selections provided already explain recklessness twice: once through listing its elements (1200) and again through defining it (1300). Why do we need another? There are key terms in both 1200 and 1300 which are ambiguous. It’s not clear what “reckless disregard” is [1200(3)] or what constitutes an “unreasonable risk” (1300). The language of this case law suggests an equivalence between a risk that is “all out of proportion to... the interests of others,” and a risk that recklessly disregards those interests. It thereby suggests a definition of reckless disregard, helping us understand 1200(3). We can also use that language to understand 1300’s reference to an unreasonable risk.
That phrasing- “all out of proportion to... the interests of others” recognizes that we take risks all the time- we get in cars, for instance. But we do that because we expect a benefit proportionate to the risk: to get where we need to go. That risk can be increased to the point where it’s wildly disproportionate to the benefit we expect to get. This case law seems to say that imposing that type of risk on others is reckless. Notice that the level of risk is based both on the outcome of the risk and on its probability. If you run a ziplining company, strapping people in well-made harnesses attached to solid cables and pushing them off heights exposes them to the risk of death: the equipment could break and they’d die. But the probability is low, and that conduct isn’t reckless. Wrapping a towel around a rope, handing it to someone and pushing them off heights while yelling “Hang on tight!” exposes them to the same risk- if anything goes wrong, they’ll die. But the level of risk is greatly increased because the likelihood of that bad outcome is higher, meaning that conduct is very likely reckless.

Saturday, September 15, 2012

Advanced Objection Techniques: Defending Your Expert Witness

Hello again! The blog has been on a hiatus for a couple of weeks: my crappy laptop decided to finally give up the ghost, and I was in the process of moving. I’ll now be resuming regular posting on a “law school schedule” of once a week. I’ll be doing “bonus” posts for awhile here, though, selections from an explanation of this year’s college case law that I’m working on. Since they pertain only to college competitors and only to this year’s case, it’s a bit outside the main scope of my goals, but I hope someone will get value out of it anyway.

To business. Last time, we talked about various ways a lack of foundation objection to an expert witness’s conclusions can be beefed up in hopes of keeping the conclusions out entirely. Now let’s talk a bit about what to do if you’re on the receiving end of those techniques. Start by remembering that if opposing counsel goes for a voir dire, there isn’t anything you can do to block it. They’re entitled to request one and there’s no motion or objection you can make that overrides that entitlement. The judge can decide not to grant one, but that’s up to their discretion. Remember also that whatever technique opposing counsel is using to attempt to block your witness’s conclusions, your situation is actually pretty simple. You’re just responding to a Lack of Foundation argument based in whatever information they manage to get out. Your approach should change depending on what they do, however. Opposing counsel, like you, needs to connect facts and law in order to make a good argument. Lots of them fail to do that, however, and your argument should change depending on which mistake they make. They might make the mistake of only describing the law: asserting that the witness will admit to having failed one of the four requirements of expert witness testimony (Rule 702) or that the evidence on cross will show that the witness failed one of those elements. In that case you should probably argue that their claim is false- the witness will admit no such thing and the evidence has shown the exact opposite: that this testimony satisfies every one of Rule 702’s elements. That argument would go something like:  “Your Honor, may I respond?” [judge nods] “Opposing counsel claims that the witness will admit to failing to use reliable procedures and methods. The witness has just asserted that they did use such methods, and explained both those methods and his expertise in this area. We have no reason to believe the witness will suddenly change his mind about the reliability of his methods, especially given all of the evidence he’s described supporting those methods.” This argument is even simpler if its had after a voir dire: you can point out that the witness admitted no such thing.
Opposing counsel might make the opposite mistake, that of focusing in on the facts to the exclusion of the law, just reciting a list of all the reasons he can come up with to consider the evidence questionable. In that case, hammer the lack of connection between the rule and the facts. The key thing to remember is that no amount of evidence undermining a method and an expert matters if that method and expert still meet the criteria of Rule 702. Your argument might run something like this: “Your Honor, may I respond?” [judge nods] “Opposing counsel has alleged that there are difficulties with the methods used by the witness, and he’s free to explore that on cross examination. But the requirements of foundation don’t state that there must be absolutely no way to dispute an expert’s methods or facts: they state that those facts must be sufficient and the methods reliable. The witness has explained that in his expert opinion, his conclusions fulfill all of the criteria laid out by 702. The foundation for those conclusions has therefore been laid.” This is very closely related to the weight versus admissibility argument discussed previously, and putting it in those terms is also a powerful option.
Of course, there is always the danger that opposing counsel might get it right: they might correctly connect the facts to the law, arguing that a particular action taken by your witness means his methods were unreliable, or that a fact he lacked means his facts weren’t sufficient. Your job is again to attack the connection between the facts and the law that opposing counsel has created. How you do that will be very context-dependent in this type of argument: you’re going to have to respond to whatever problem opposing counsel is asserting exists. I’d generally recommend a two-pronged approach: attack the problem and draw on your witness’s credibility. You can usually attack a problem with an expert’s testimony by trying to minimize the problem, arguing that it doesn’t rise to the level of a problem with the reliability of the method or sufficiency of facts. You should then be relying heavily on your witness’s expertise, making the point to the judge that the guy with the degree, the guy (hopefully) with the backing of his scientific or professional community, thinks these methods were reliable and these facts sufficient. Ultimately this isn’t a response I can explain how to make in detail in the abstract. Ask your coach for help developing a detailed response if you’re worried enough about this happening.