Tuesday, June 16, 2009

Through The Legal Looking Glass--I Object

When you're watching TV or a movie about courtroom goings-on, you see a lot of things that either don't happen in courtrooms at all, or don't happen that way. Objections to testimony are among those things that always show up in dramatic courtroom scenes, but rarely occur the way they are shown. Just as a clarification in advance, I will be discussing objections to testimony only. Objections to physical evidence are a whole different topic.

There are about seventy proper objections to both testimony and physical evidence which are common among the state and the federal courts, and include certain objections that are proper only in criminal trials. The testimonial objections here will relate only to civil trials. We'll handle the others in future posts. Most objections to testimony are based on English common law, and many are the same or similar from state to state and in the federal courts. I'll be discussing objections in their most recognizable forms. Objections may be raised either to a question, or to the answer. Some objections are self-explanatory. Those discussed here will be the ones you are most likely to see on TV or in movies, or in a courtroom for that matter.

"Mr. Smith, while you were riding around in you car awhile back, there were certain events that may or may not have happened, were there not?" If you didn't understand that question, there's a good chance Mr. Smith didn't either, or doesn't know how to answer it. When an attorney asks a rambling question that doesn't seem to have a point which requires a direct answer, the other attorney will stand up and say "Objection, vague and ambiguous." It may surprise you, but one of the purposes of a trial is to clarify matters, not make them muddier.

No doubt you have heard "counsel is badgering the witness." Much though we might like to sic vicious little critters with nasty teeth and claws on some witnesses, it's a metaphorical expression. It doesn't mean the attorney can't get a little hard-nosed, but he can't appear to be verbally attacking the witness, or asking a question in a manner which would cause the witness to become physically upset and confused, or angry enough to get out of the witness box and slug the attorney. In far too many courtroom movies, the attorney has gone way beyond what would normally occur before the "badgering" objection was raised. It makes for good drama, but it is also a serious breach of courtroom decorum. Another type of badgering is commonly portrayed in movies, and almost never allowed. The attorney gets practically into the witness box and starts shouting questions into the witness's face. Nope. First of all, the attorney must ask permission to "approach the witness" (or the bench) before leaving counsel table. Intimidating the witness, up close and personal, is a serious no-no. If counsel doesn't object, the judge will take the matter into his own hands, frequently giving the high-sign to the bailiff.

Testimony is not an opportunity for an attorney to ask fabulous flight-of-fancy questions about the meaning of life and our place in the cosmos. You have heard "irrelevant" or "immaterial" on occasion, and it is a valid objection. The attorney is not allowed to ask a question which does not bear directly on the matter at hand for the purpose of clouding the issues, or bringing in harmful testimony which has nothing to do with the case before the court. If the question isn't on point, it is objectionable.

An attorney's question must not be "compound." In such an instance the attorney has asked a question that requires two or more answers, even though each question by itself might be valid. In order to keep the record straight, opposing counsel will object, and the judge will have the attorney re-phrase the question. "Now Mr. Smith, when you were driving on First Street at the time of the collision, did you see the red light and proceed through the intersection anyway, and then run into the driver's side of Mrs. Jones's car?" Some pretty good actors have asked questions like that, but good attorneys don't make that mistake. The question needs to be broken into three separate questions. Each question establishes a slightly different portion of the testimonial evidence.

You may have heard "asked and answered," and though it is a valid objection, in most jurisdictions it is only valid against the attorney who has called that particular witness and is asking the first round of questions (direct testimony). It is not a valid objection to questions asked by opposing counsel on cross-examination, since part of the attorney's job is to see if he can get the witness to give inconsistent answers to the question.

The attorneys may not ask questions concerning prior "bad acts" on the part of the defendant or the witness, nor questions attacking character. The objection is usually "improper character testimony." Some good drama has come out of this one, since you may have seen a case where the second attorney raises precisely this kind of question. First counsel objects as "improper character testimony" and the second attorney says "but counsel opened the door to this testimony by bringing up good character, or a prior 'clean record' in his direct examination." If that is true, the court will overrule the objection and the testimony will come into the record. In the above example, opposing counsel cannot simply ask "Mr. Smith, didn't you have an almost identical accident back when you were running that house of prostitution?" when no such issue had been introduced on direct examination.

A witness may only testify to things within his personal knowledge and within the sphere of ordinary understanding. Thus, an attorney cannot ask the average witness for highly-technical testimony, or testimony drawing conclusions from the physical evidence before the court. A layman who has years of experience in a particular field may be allowed to overcome the "calls for expert testimony" objection if the attorney asking the question can prove the witness actually has the knowledge to testify even if he doesn't have the usual credentials.

Alternatively, even a credentialed witness may be disqualified from answering if opposing counsel is allowed to voir dire the witness on his expertise, and establishes that the witness is in fact incompetent to answer the question reliably. And when there is no way for the witness to draw any scientific or logical conclusion from the testimony and evidence, the objection is simply "speculation." A weird way around this problem is for the attorney to pose a hypothetical question to the expert. The question and answer don't establish what happened in this particular case and with this specific evidence, but poses a situation which is similar to the case at bar, and elicits an answer that explains what most likely would have occurred under the same or similar circumstances. Tricky devils, we lawyers.

You will also hear "argumentative." This objection means the question misstates the evidence, misquotes a witness, indicates the attorney's personal belief or opinion, or the content and tone of the question argues the case rather than asking a genuine question. Unlike badgering, the attorney is being perfectly civil, he's just asking an improper question. This is also a common place for overwrought attorneys to make lengthy speeches posing as questions. This happens all the time in the movies, but it rarely happens in real trials.

Objection, "cumulative," is exactly what it sounds like. Testimony cannot be offered which does no more that re-state prior testimony of the same witness or prior witnesses. The courts tend to be fairly lenient on the first repetition, but by the third or fourth, the court will sustain the objection.

I'm sure you've heard the objection "prejudicial." That means the attorney is trying to introduce testimony which will "inflame the passions of the jury" by bringing up matters that may be true, but have little or nothing to do with the underlying question of liability. In our car crash example, it would be improper to ask the witness if he "saw the two little girls standing on the corner who were so terrified that they both collapsed on the sidewalk." It may very well be true that the witness saw exactly that, but is is a melodramatic attempt to add it to the narrative record. It is prejudicial, and it also, as discussed above, irrelevant. An attorney may, and should if necessary, object on more than one ground.

The attorney on direct examination may not ask a "leading question." A leading question is one in which the question implies the answer, and is used to get the witness to say what the attorney wants him to say. An example would be "when the defendant ran into your car after speeding through a red light, were you unable to get out of the way despite your being an expert driver and highly attentive?" That's a leading question (and it's probably also vague, ambiguous, argumentative, conclusionary, irrelevant and compound, but who's counting?). But unlike the typical TV or movie drama version, opposing counsel can happily lead the witness down the primrose path with almost complete impunity on cross-examination.

That's plenty to absorb for one post. I'll discuss the remaining common objections in my next legal post, as well as discussing how very wrong the movies and TV usually are in the way they portray how objections are raised and dealt with in a real courtroom. I will also touch on the one objection that everybody thinks they know and understand (but don't)--hearsay. You'll find out that there's far less drama in a courtroom than you imagined, and that there is good reason why attorneys frequently have to ask the judge to get the bailiff to wake one of the jurors up.

17 comments:

Writer X said...

LawHawk, one time when I was called for jury duty, not only did the bailiff have to wake up a juror but he had to wake up the judge as well. (And it was a rather dicey "Public Sexual Indecency" case) Of course, I was expecting to see "Perry Mason" or at least "LA Law" and was supremely disappointed. No passonate speeches; no one running in through the door screaming, "I did it!!" It was quite tame.

The one thing I found interesting though is that my sense was that a lawyer didn't ask a question unless he/she already knew the answer. It was very choreographed.

AndrewPrice said...

Writer X,

One of the hardest things for lawyers to learn is what NOT to say. Not only are there many thing that you are not allowed to say -- like mentioning insurance, BUT you learn to never ask a question you don't know the answer to or to ask questions that lead to bad areas for your case.

The absolute hardest is to ignore testimony that is harmful. If you have no response, you don't try to beat the witness up, like they do in Hollywood -- because that doesn't help you. It just highlights that you have no answer.

So instead, you sit quietly, looking bored as the other side discusses the issue and then you ignore it yourself when it's your turn. The jury often takes their clues from your reactions. If you jump up and down, they know it was important. If you stare out the window and start doodling, they will actually zone out.

JG said...

You are seriously ruining all legal drama for me. A lot of it got ruined when I worked for lawyers, true. But I never was in the courtroom with them, so that still was able to align with my fantasies.

LawHawkSF said...

WriterX: I promise that I will occasionally slip in a short story about some things that have happened in court that weren't scripted. But mostly things are pretty predictable. As you and Andrew have mentioned, lawyers are taught not to ask questions they don't already know the answer to. But most of us have done it from time to time, and we've usually paid the price.

Andrew: We'll both be commenting on what not to do over the course of these law blogs. But you mentioned the one that most non-lawyers miss. It's hard enough knowing what to say and when to say it. It's even harder to know when to shut up, even when all your instincts are crying out to stand up and nail that s.o.b.

JG: A healthy percentage of questions and answers are objectionable. In my concluding post on objections, I'll be discussing why lawyers routinely don't object even though they could successfully do so. And I promise that there will be some humor in the whole thing. Drama even, occasionally. Twenty years in courtooms, and I have to say that there were probably no more than ten or fifteen times when things looked even faintly like a TV show. Over time, Andrew and I will probably reveal a few of our little tricks for keeping a jury from knowing we're terrified.

AndrewPrice said...

Lawhawk,

This really struck me in my first trial when I realized that whenever the opposing attorney played up some witness statement and I watched the jury turn to me to see my response.

I set down my pen, crossed my legs at the ankle, leaned back and looked at the ceiling as if I wasn't even listening. About a minute later, half the jury was doodling on their jury pads and the rest were just looking around the courtroom. . . bored.

LawHawkSF said...

Andrew: (Folks--don't read these comments, or you'll be on to our tricks) I think I did something the first time by accident, but eventually it became a tool for me. I was getting very nervous about a line of questions the deputy D.A. was asking in a criminal trial. I absent-mindedly picked up a pencil, and started flipping it around, a couple of inches in the air so the point and eraser would reverse positions with each flip. After a couple of minutes, I noticed the jury was watching me flip the pencil. Instinct took over, and when the D.A. asked what I considered the most dangerous question, I flipped the pencil once more, and made sure I didn't catch it. It hit counsel table, then the floor. As I bent over to pick it up, I realized the jury was watching me, and paying no attention to the witness's answer. Of course I continued to use that gimmick, but not in courts where either the judges or D.A.s knew me well. Just when it stopped being effective in Ventura County, I opened my practice in Los Angeles. Hallelujah! A whole new audience who had never seen my routine. In sports and the military, it's called mis-direction. In court, it's called improper.

Tennessee Jed said...

I am definitely looking forward to these discussions. After a couple of Business Law courses in under graduate school, I had actually intended to become an attorney, but about the time I was being accepted to law school, I got hit with a severe case of Crohn's disease that damned near killed me, so I reassessed. Nevertheless, I find the law fascinating, so thanks for tackling the topic.

AndrewPrice said...

Jed,

Glad to hear you're enjoying the series. We're hoping to give everyone a look into the hidden world of law. And we've got a lot of stories to tell!

Next week, by the way, is going to be how to pick a lawyer. I think everyone will find that one extremely interesting. That's probably the number one question I get asked when I meet people.

LawHawkSF said...

Hey, Jed: I'm glad you're enjoying the posts. For Andrew and me, it's therapy. My younger daughter will be starting law school next year, despite my dire warnings. She'll be good at it. She's very pretty, and I could never tell when she was telling me the truth. Those are both pluses in the wonderful world of trial law. I wasn't quite as pretty.

I'm looking forward to Andrew's post about picking a lawyer. I had a method that worked well for getting people to choose me. I advertised "Hire LawHawk, he knows who you are, and where your family lives."

StanH said...

Whenever I’ve had the misfortune to enter our court system, nothing felonious mind you. My very good friend who is also my attorney will spend much of his time like a social butterfly yukking it up with opposing counsel. I understand that it is a profession eh…hmm… and many deals happen before you enter the courtroom, but I would prefer a little Jujitsu, ha.

AndrewPrice said...

Stan,

The Jujitsu in law is behind the scenes. The bad attorneys are the ones who you see coming.

patti said...

i have served on a jury twice. both painful experiences, since i took my role seriously based on evidence provided, not on emotion. anywho, the lawyers played their roles with some dramatic flair that had the opposite effect i assume they were looking for. the fist pound on the desk followed by a "oooo, that hurt" look just gave me the giggles as did the dead-eye stare made in an attempt to express the graveness of the matter. it made me wonder if the lawyers were schooled in such courtroom maneuvers.

LawHawkSF said...

StanH: With the metal detectors I can't get my .357 Magnum into the courthouse anymore. My win rate seemed to fall off a bit around the same time they came up with that. Do you think there might be a connection?

You'd be amazed what you can get the other dummy to say while you're schmoozing him up. The newer the attorney, the easier it is to flatter him into revealing his entire case. We old vets know better. So we just talk golf.

StanH said...

Ohhh… strategy gotcha. You and my buddy think alike, he’s a grizzled veteran and says the same thing, “know thy enemy.” For the client a day in court is a bonafide crappy day, no matter the results, as for an attorney it’s a day in the office.

StanH said...

Almost forgot! As for the .357, sounds more like Judge Roy Bean, now that’s legal representation.

LawHawkSF said...

Patti: Most lawyers don't take acting lessons. Maybe that's the problem--they should. We each develop our own style, but most lawyers are so full of themselves that they assume judges and juries feel the same way. I was an actor from the time I was six until my mid-teens, and one of the lessons they taught us was to stop thinking how we felt about our performance and start learning to see how the audience was reacting. It's why most good movie actors have stage experience. You only get one take on stage. You only get one take in court. Even those lawyers who become good actors too often forget the whole purpose of their performance--to serve their clients, not to get an oscar.

Khassie said...

Having worked in the field of law most of my adult life and having been called for jury duty twice (and sat both times), I can't bear to watch sitcom legal shows. They have very little bearing on the real world and that breaks the suspension of belief for me.

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