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.

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.

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.

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.

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.

Case Law Bonus Post: Motown Car Co v. Mink

Outline

• 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.

Notes
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.

Case Law Bonus Post: MK Studios v. Princess Productions

MK Studios v. Princess Productions
Outline

• 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.

Notes
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.