Objection Dialogue Examples: Example Two, Part II

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.

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.

Case Law Bonus Post: Jackson v. Bryan

Outline:

• 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.

Case Law Bonus Post: Yanka v. Edwards Industries

Outline:

• 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.

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.

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

Outline:

• 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.