Last time, we looked at an objection dialogue in which the judge played a very active role and analyzed how that affected the arguments and decisions made. I’m continuing that analysis this week, focusing on how the three key aspects of objections- the facts, the law, and their relationship- play out in that dialogue. I’ve put the dialogue text here again for reference.
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, we’re focusing here on the facts, the law, and the relationship between the two. In the first part of the objection, statements of the law are easy to identify: you explain very briefly the exception you’re using in your initial response, and then go on to quote the precise rule in (4) and (7). Keeping the law clear gets much harder after the judge asks you to explain the “value” of the evidence. You’re no longer in a realm governed by an actual rule; the judge’s logic isn’t operating in clear alignment with the rules, and you need to win the objection argument using their logic. You’re now responsible for relating the evidence to the judge’s idea of what valuable evidence is, without really knowing what that idea is. Remember that as similar as this part of the argument becomes to a relevance argument, it isn’t one. Treating it exactly like one is liable to lead you astray. You can explain beautifully why this evidence makes some fact useful for the resolution of the action more or less probable, but if that isn’t the concept of “value” the judge has in mind, your argument doesn’t do any good. Worse would be drawing on the concept that relevance is a low bar to suggest that this “value” issue is relatively easily bypassed. The judge probably doesn’t think this is an easy point to get past; they wouldn’t have brought it up if they did. Acting as if it is misses their point and is likely to make it sound as if your evidence isn’t particularly valuable. So what do you do instead? You make an educated guess. In (9), you stated an uncontroversial principle that might accurately address the judge’s idea of “valuable” evidence when you say “it is valuable for the jury to be able to assess the credibility of the witness in his testimony today.” Notice how direct your word choice is. You don’t make it about relevance, or any other synonym you could substitute: the judge asked how this evidence was valuable and both sentences you utter in responding explicitly address that point. In that sentence you’re also implicitly asserting a “rule” that could govern here. That’s taken on the role the law usually fills in the argument. The judge chooses to accept it in (10), questioning your connection between that principle and the facts- but not questioning the principle.
Both attorneys once again do a solid job of keeping the facts clear in this argument. Early on, the only relevant fact is that the witness lied in the past, and you reference that as necessary to your argument. At (11), things get very interesting quickly: you start establishing a strong connection between the law and the facts through an analogy between lying in court and lying in the context of an affair. Why do you do that? Look at what the judge said to you in (10). They are minimizing the lie’s impact on the credibility of the witness through reference to the surrounding facts: the number of times the lie happened and how long ago it was. You have to do the opposite. You need to tie the fact of the past lie as closely as possible to the possibility of a lie in court, so you play up the similarity between the two situations- you analogize them. Opposing counsel has exactly the right technique in responding. Where you play up the similarities, they play up the differences- they distinguish the two cases. You have a couple of different options for responding to that. You could argue that the difference isn’t real, or you could argue that the difference doesn’t matter. In this case, you opt for the latter, because it’s pretty clearly the stronger approach. There is a real difference between having an affair and testifying in court: asserting otherwise would be a bit ridiculous. But the key aspects, you can argue, are the same. The witness is still lying in the face of a promise.
Showing posts with label Objection Dialogue Examples. Show all posts
Showing posts with label Objection Dialogue Examples. Show all posts
Sunday, October 7, 2012
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.
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.
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.
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.
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