Tuesday, June 30, 2009

Through The Legal Looking Glass--I Object (Part 2)

Welcome back to legal land, the world of fantasy and fun acting as the underpinnings of the concept of ordered liberty. On June 16, 2009, I covered the first half of the most common objections to testimony raised in court. This time I'll finish with the objections, and add a few notes about what you see on TV and in the movies versus how it works in real life.

Earlier, I covered most of the major objections to testimony. Now I'll address a few more which are common, but not as well known to those who have never served on a jury. As a reminder, we are dealing with testimony in civil cases only. Criminal law is a different breed of cat, with its own unique objections along with all the civil objections.

Occasionally, you will hear the objection "foundation" or "improper foundation." This means the attorney has tried to ask a question which requires prior physical evidence or expert testimony which has not been introduced. A simple example would be an attempt to ask a question about a photograph without first having established what kind of photographic equipment was used, who took the picture, what photographic methods were used, and when it was taken in relation to the matter before the court.

Most foundational questions are handled in pretrial conferences, and the attorneys stipulate that the evidence may be introduced without objection at trial. But until this has been done, or the foundation properly laid out in court, the attorney may not question the witness concerning the photograph. So when you see Brad Pitt or Tom Cruise whip out a photograph, demanding to know if the witness has ever seen it, with great drama and excitement following this sudden revelation, you have been bamboozled. It simply does not happen like that.

Often movies and TV shows depict witness testimony as one long series of questions from both attorneys seeking to get information without any regard for what went before. That does not happen. The attorney who calls the witness originally conducts what is called direct testimony. This is followed by cross examination. The second attorney cannot ask a question about any testimony which was not first addressed in direct examination. The objection is "beyond the scope of direct."

An informal, but very legitimate objection which is covered by other more formal objections does show up in drama and real courtrooms. You will hear "counsel is testifying," or "counsel is making a speech." That's a no-no, and when you see one of those long, rambling speeches posing as a question in a drama, it's there for effect, not for depiction of courtroom reality.

An objection which may confuse the average viewer because it sound so obvious is "best evidence." Of course we want the best evidence. But that's not what the objection is about. When an attorney asks a question about a document, that document must already have been admitted into evidence. And the "best evidence" is the original document. Unless the attorney eliciting the testimony has established a sound legal reason why the original document is not being produced, and that the document that is being produced in its place is fully verified and valid, no testimony regarding the document will be allowed.

When an attorney asks "did you go into the ABC store at 4 PM on the date in question" and the witness replies "I ordinarily don't go into that store at all," the witness has not answered the question asked, and the attorney will object "non-responsive." If the witness continues to do the same thing even after the attorney's objection has been sustained, you will sometimes hear the attorney say: "Your Honor, may I request that you order the witness to answer the question?" At this point the judge will intervene, and if the witness is truly determined to avoid answering the question, the judge can be quite harsh, up to and including a citation for contempt. Furthermore, for the record, the attorney will usually move the court to strike all the non-responsive answers.

And NOW, for the one that is so commonplace, and so frequently misunderstood: Hearsay (as distinguished from heresy, which is heard in another court entirely).

What is hearsay? It's an ancient rule of common law that says nobody can testify to what somebody else said, saw or heard. The most frequent way of phrasing it is "an out of court statement offered to prove the truth of the matter stated therein." My home state of California defines it as follows: Cal Ev Code, Sec 1200(a) Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissable. (c) This section shall be known and may be cited as the hearsay rule.

John cannot ordinarily testify that he heard Joe say that Fred caused the accident. Joe and Fred both need to testify, or nothing they said will come into the record. Unfortunately, the next twenty sections of the evidence code list all the exceptions to the rule. That is a discussion which could fill two or three more posts, so I will defer that to another time. I will simply state a few of the most common. If the witness is testifying to what another person said, and what that person said would be considered reliable because it was testimonial proof that the other person was saying something detrimental to himself, it is frequently allowed. For instance, Joe is a witness at an accident scene. John was the driver of one of the cars involved in the accident. At the scene John says "I ran the red light and didn't see the other car." That is called an "admission against [pecuniary] interest" and the court will usually allow Joe to testify to what John said.

Another exception is "excited utterance (spontaneous declaration)." Joe hears John say "Oh, my God, I threw that rock, but I didn't expect it to break the window and hurt anyone." Joe will probably be allowed to testify to what he heard John say. The reasoning behind this exception is that without coercion and time to reflect, nobody would say such a thing unless it was the truth.

In a contract lawsuit, you might think that Joe testifying that John said "I accept" is hearsay. But Joe is only testifying that the words were said, not that they were true, and thus it is an exception to the hearsay rule. Other common exceptions are "past recollection recorded" in which the testimony is from something said (and written down) at an earlier time. The "business records" exception allows testimony about records prepared in the ordinary course of business without the necessity of calling the person who actually made the records. Things like marriage and baptismal certificates are routinely allowed in without testimony from those who prepared the documents. And beside all the exceptions allowed by individual states, the federal rules just cut straight to the chase and created the "catchall exceptions."

So how much do the objections in the real world of the courtroom differ from those you see in staged dramas? More than you might imagine. All the shouting, arm-waving, and loud arguments are non-existent. That's just TV and movie stuff. In most courts "objection" is all you'll hear. In some courts, a brief comment is required to go with it stating the simple ground for the objection. In that case, you will hear "objection--foundation." The judges want shorthand, not lengthy speeches. If the other attorney truly believes the objection is improper, he is given the opportunity to simply say "the objection is not well-taken because . . . . " The judge will often simply sustain or overrule the objection, and everybody moves on. Often, the attorney who has asked the question improperly will be told to "re-phrase." But if the judge wants further argument, he will call the attorneys to the bench ("counsel, come to the bench," or "counsel, sidebar"). If the judge thinks the jury is in any way being affected by the colloquy going on outside their hearing, he may take the argument into his chambers out of the sight and hearing of the jury. And in complicated legal wrangling over objections, the court may simply defer its ruling for a few hours or days, and require the attorneys to return with research and briefs on the topic.

The more experienced the attorneys, the less likely you are to see constant objections being raised. Some basic rules of thumb determine when an objection will be raised. The lawyer should feel fairly certain that the objection will be sustained. The objection may be raised if the testimony would be damaging to the case to such an extent that failure to object would be more dangerous than risking the objection being overruled. There will be an objection if the witness is testifying in a misleading way which damages the client's position seriously. Tactically, an attorney may object if a long stream of genuine but harmful testimony is being obtained, and the attorney simply needs to disrupt the roll the opposition is on. Sometimes, the purpose of the objection is to preserve a record of pretrial motions or a previous similar objection.

So why would an attorney not object? The objection might be valid, but it is on a point that is harmful but not deadly, and an overruled (or even sustained) objection would only call attention to the opposition's position. Or the objection is valid, but only slows things down since the testimony will come in anyway, just by a longer route. As a practical matter, jurors tend to get short-tempered with attorneys who slow the proceedings down with constant objections, no matter how valid. And sometimes the attorney will want to listen to an entire line of testimony to see if it could be fatally flawed overall. In that case he will defer his objection until a point at which he can object, and have all or the major part of the testimony stricken from the record. Alternatively, if the attorney objects and is overruled, he may say "Your honor, I will defer further objections to this testimony subject to a later motion to strike."

You are all now experts on testimonial objections. So the next time you see your TV or movie lawyer make an improper objection, make a speech during the questioning period, or violate the rules of evidence, I expect you to stand up, get out of your chair, face the TV or the movie screen and shout: "I'm as mad as hell, and I'm not going to take this anymore."


Writer X said...

Can a lawyer ever object to anything his own witness is saying?

StanH said...

It sounds like this is where you play with your pen instead of over objecting as was you stated in your earlier essay. My limited experience in a court room (thank you Lord) my buddy says he always prefers competent experienced counsel on the opposing side it makes the case progress better with a better result?

AndrewPrice said...

Writer X,

The short answer is YES, BUT...

If you have to call a hostile witness, the court will let you treat them as hostile (you've probably heard that on tv). What that means is that you can use leading questions and you can ask the court to help you -- which is basically a form of objection.

At your request, the court can instruct them to answer the question (if they won't talk), or shut them up if they start giving a speech unrelated to your question (though they will get plenty of leeway).

But if you called the witness, and they aren't hostile, YOU bear the responsibility for what they say. So not only can you not object, you can get into trouble.

For example, if they go into an area that you convinced the judge to exclude from the trial, they "open the door" to allow the other side to run with it. Very bad.

What's worse, there are certain things you can never say at trial. For example, you can almost never mention (or even hint at) insurance or prior convictions. Thus, if your witnesses responds how the other guy "is covered" or "or has insurance" or "has already been paid" or is a series criminal, then the judge will usually, angrily declare a mistrial and then sanction the ATTORNEY, because it is the attorney's job to make sure the witnesses know what they can and cannot say.

But other than that, you can't really object to anything your witness says. All you can do is try to fix it.

AndrewPrice said...


The hardest thing to learn as an attorney is when NOT to object. Don't object just because you can.

Only object when it will help you.

And always keep in mind that every time you object, you highlight what was just said.

AndrewPrice said...


What was up with the "test" yesterday? I kept waiting to see if we had passed?

StanH said...

You did indeed my friend. Just wanted make sure I had my sign in straight.

AndrewPrice said...

Well Stanh, hit the "follow" button and claim your invisible t-shirt and your no-expenses paid trip to wherever you can afford!

Unknown said...

WriterX: Oops. I got up later than usual this morning (my 9:30 is most people's 6:30). But Andrew answered the question. I'll just add that over the years, I developed "signals" to my witnesses that it was time to shut up and quit talking. It usually involved buttoning or unbuttoning my coat jacket. I had one client who never considered hiring another attorney (he is a dear friend to this day) who just couldn't help himself. Over the course of many years, his need to tell the truth, the whole truth, nothing but the truth, and every truth that ever existed cost us several cases. He was gentleman enough never to blame me for his failure to pay attention to the signals. I hope he's not reading this right now.

Unknown said...

StanH: StanH: Your friend is right on the money. The worst thing that can happen when you have a solid, easy to prove case is to face an attorney who makes every mistake in the book, including constant objections that stall the proceedings and confuse the jury. A few attorneys who have no particular legal skills actually develop this as a method to win cases (or at least not lose too badly). The famous Irving Kanarek (one of the defense attorneys in the Manson trial) was simply not very bright. But he would raise objection after objection after objection. If he couldn't think of anything else, his objection would be "contrary to law" which is not even a valid objection. But in long trials, judges would start sustaining his ridiculous objections so that it didn't look like they were being unfair to the poor beleaguered attorney. "Obvious prejudice" against a lawyer is grounds for appeal, and on the cold trial record, a judge who is making perfectly good decisions can look as if he is prejudiced when he overrules 90% of an attorney's objections. Kanarek worked that trick like a true virtuoso.

Writer X said...

No problem, LawHawk. Thanks for the article. Very interesting, as usual.

CrispyRice said...

These legal articles have been interesting. Thanks!

Unknown said...

Just one more note for everybody. The discussion revolved around civil trials. Those of you who wondered about why a defendant would even testify are thinking about criminal trials (which make much juicier TV and movie drama). The defendant in a civil trial has no constitutional right to refuse to testify. In criminal trials, the jury is instructed that they are to draw no conclusions as to why the defendant did not testify. In a civil trial, the plaintiff has the option to call the defendant as a witness (hostile witness, as Andrew mentioned) if defense counsel didn't call him. Alternatively, plaintiff's counsel is entitled to comment on the defendant's failure to testify.

And even here, there is an exception. In a civil trial, if the plaintiff's attorney asks the defendant a question that might expose the defendant to criminal prosecution, defense counsel can and should object on Fifth Amendment grounds. Wise counsel will simply say "objection" and ask for a bench conference so that the jury doesn't pick up on the criminal element of the questioning. However, this applies only if the defendant has not already been tried and convicted on the related criminal matter.

Unknown said...

CrispyRice: No, thank you. The law can be very exciting, but most of the time attempting to describe it can be very yawn-inducing to the reader. Andrew and I both promise that we will give you some fun stuff from time to time.

patti said...

your articles are totally blowing my image of what it is lawyers actually do. i feel sorry for the lack of dramatics. it would have been the only reason i would have gone into law...to wave my arms and yell objections. instead, i blog.

AndrewPrice said...

Lawhawk, another common trick that attorneys learn is that sometimes you object just to shake things up.

If the other guy is getting into a good rythym you object to break up the flow.

If your witnesses is getting killed, you object to buy them time to gather their thoughts, or to warn them that they are in a dangerous area.

Some attorneys also object (improperly) to tell the witness how to answer the question: "Objection, how can he answer that, he already said he wasn't home." Like a zombie, the witness will respond "I can't answer that, I was not home."

That's improper, but judges don't do much to punish the attorneys who do it.

Unknown said...

Patti: Much though I'd like to think that everything we do is deep and intellectual, I spent most of my legal career in courtrooms because nobody was going to keep this drama queen down. Particularly in criminal trials, I plotted the moment in the proceedings where I could do a "your zipper is down" routine on the prosecutor. The more pompous the prosecutor, the more fun I had. One time, after a prosecutor at a pretrial hearing made my poor client (who actually was a good guy)sound like Dillinger, I simply responded with "The prosecution's case is so bad they should put big ears on it and send it to Disneyland." Watching the judge spit out his drink of water while the prosecutor turned purple was worth the risk. Through the rest of the proceedings, the prosecutor was so busy trying to get revenge that he forgot to put on a decent case (he looked like he was waiting for the other shoe to drop), and my client walked out a free man.

Unknown said...

Andrew: That's what I was getting at when I said the attorney may need to break up the roll the opposition is on.

And sometimes the objection is made with the knowledge that it will be overruled because it makes a point the attorney is not actually entitled to make. As we say, "you can't unring a bell." And unless the objection is grossly improper, as you say, the judge won't do much about it. But it drives the other attorney nuts.

USS Ben USN (Ret) said...

Superb post, Lawhawk!

It's amazing the sheer magnitude of procedures they get wrong in TV or movies, re: the courtroom, or law in general.
I get irritated when they get so much wrong about the military, too.
From insignias to terminology and procedures. The question usually ain't whether they will mess it up but by how much.

Of course, I understand when allowances must be made, for example NCIS cases take weeks, months and even years, and don't get me started on how long forensics testing takes, so I can forgive stuff like that, particularly when the stories and the characters are interesting.
Oh, and they do get the insignias and uniforms right in that show.

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