Cross-Exam: Chapter 29

Coping With Objections 

The more the advocate can give context to a chapter, the more the trial court can recognize the importance and relevance of facts to the case being tried.  Objections often stem from the fact that the opponent does not recognize, or does not wish to recognize, the context into which a chapter of material is relevant.  A second area of likely objection is purely technical:  Does the evidence offered comply with the applicable Rules of Evidence?

Objections represent distractions to teaching.

All objections are distractions to the cross-examiner’s efforts to teach her theory of the case, as well as efforts to expose defects in the opponent’s theory of the case.  Distractions are not helpful to the process of teaching the judge and jury, which is the purpose of cross-examination.  However, when the listener becomes irritated by the distraction, the person causing the distraction (the opponent) becomes the object of negative emotion.  These are times to take advantage of the opponent’s overuse or misuse of objections.

Following the only 3 rules of cross-exam eliminates many objections.

COMMON TYPES OF OBJECTIONS

Objections based on “Argumentative”.

Most often made in 2 instances: 

1.      Cross-examiner’s body language, tone, and volume of the questions.

2.      Word selection made by cross-examiner

The cross-examiner should willingly rephrase the question, but not eliminate the word selection.  The cross-examiner should break the word selection down so that it is more clear to the jury that the original word selection was appropriate.

Objections based on “Hearsay”.

It is not difficult to foresee what questions will draw a hearsay objection.  The correct technique to deal with this type of objections is to establish the facts needed to overcome that objections before asking the leading question.

Objections based on “Relevancy”.

The correct technique to use when it is not clear if the question is relevant is to establish context for the evidence in the light of the cross-examiner’s theory of the case.  Seeing a logical relationship will allow the court to deny the objections based on relevancy.

8 Rules To Apply When Objected To

Rule 1:  Be wiling to rephrase objectionable questions.

·         Rather than to fight the objection, the cross-examiner may be better off re-phrasing the question.

·         Willingness to rephrase places the judge in the position of wanting to permit the testimony.

Rule 2:  Acknowledge the correct use of the objection.

·         It is the professional thing to do.

·         It shocks the opponent.

Rule 3:  Baiting the “foundation” objection.

·         Use in the event the cross-examiner has an opponent who attempts to object whenever 
 possible.

·         Use to develop gray areas.

·         The perception is that the cross-examiner is the one trying to move the questioning along, and it is the objecting counsel who is throwing the unnecessary roadblocks to the establishment of the truth.

Rule 4:  Moving it along.

·         If the judge tells you to move it along, it is better to offer to pursue briefly.

·         Cut to the bottom line and leave the area entirely.

·         Those lawyers who police themselves best are least policed by others.

Rule 5:  “Your Honor, I’ll tie it up.”

·         Judges permit lawyers to “tie up evidence”.

·         Lawyers who are skilled in the art of tying up evidence get far more borderline evidence before the jury.

Rule 6:  Tie it up, then go back.

·         If there is reasonable risk that the court has lost patience with the line of inquiry or is on the fence concerning admissibility, cut to the bottom line and establish the goal fact.

·         By establishing a bottom-line point for the court, the lawyer can not safely return to her line of questions, and pick up where the objection first interrupted the chapter.

·         Using this technique, the judge knows that the examiner has returned to where she was interrupted.  More importantly, the jury knows.

·         The opponent will not understand that objections such as this will not distract the cross-examiner.

Rule 7:  Speaking responses – miniature closing arguments.

·         If a speaking response to an objection is permitted by the court, the cross-examiner has the right to tell the judge where the cross-examiner is going with the line of questioning.

·         If not permitted, seek permission to approach the bench.

·         If the objection is that the cross-examiner went into to much detail, the cross-examiner’s response should include a key phrase known to the court as being the standard for cross-examination in that jurisdiction.  For example, “a thorough and sifting cross-examination.”

·         Never push the speaking response further than the cross-examination can establish.

·         Always tie up the response with the theory of the case.

Rule 8:  Dealing with objections designed to assist the witness on cross-examination.

1.      Talking objections that suggests answers to witness.

a.      A cross-examiner, in control, must expose these objections for what they are.

b.      By doing so, the jury is taught that the objection should not have been made.

2.      The favorite suggestion:  “Only if the witness knows.”

a.      This objection was designed to give the witness an “out” before answering.

b.      The witness knows the answer, but doesn’t want to give it; but, the witness must in order to not appear illogical and foolish.

3.      The evading witness:  “I don’t know.”

a.      The witness knows the answer and doesn’t want to give it.

b.      The cross-examiner must avoid permitting the line of questioning to be stopped.

c.       The cross-examiner should go through the line of questioning a second time.

d.      The dodge of “I don’t know” is exposed by carefully building up the known facts to show the obviousness if the desired, but evaded, answer to the original question.

e.      The evidence is highlighted rather than suppressed.

4.      Coping with the objection:  “If he remembers.”

a.      Implicit in every question is a request to relate what is remembered.

b.      Ask questions that use the tag phrase “You remember.”

c.       Work slowly and methodically up through things remembered requiring a “yes” answer, leading to the critical issue that the witness claims he can’t remember.

d.      This will expose the answer of “I don’t remember” as an open and obvious deception.

5.      Coping with the objection:  “The witness already said. . . .”

a.      This type of objection is designed by the opponent to educate the witness under cross-examination as to what story to give.

b.      The opponent either repeats a portion of testimony from direct exam, or a portion already given during cross-exam.

c.       The cross-examiner should:  argue that this was not what was said during earlier testimony or argue that the opponent is improperly making a speaking objection.

6.      Spontaneous looping off the objection

a.      Loop off of the objection itself.

b.      The cross-examiner has expanded her admissible scope of examination.

Samantha@ambroselawgroup.com


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