Category Archives: Making Objections

Objection! Argumentative!

09 Saturday May 2015

Posted by in Cross-Examination, Direct Examination, Evidence, Making Objections, Objections, Trial Tips and Techniques

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“Objection! Argumentative” Is That Really A Valid Objection During Cross Examination?, by Paul N. Luvera, Plaintiff Trial Lawyer Tips Blog

http://plaintifftriallawyertips.com/objection-argumentative-is-that-really-a-valid-objection-during-cross-examintion

An outstanding Seattle plaintiff’s trial lawyer & I have been discussing the common objection made during cross-examination that the question is ‘argumentative’ because  of a trial we  have a common interest in where the  judge  sustains cross-examination questions that directly challenge the witnesses testimony as untruthful where the objection of ‘argumentative’ is made. My position is that cross-examination is confrontational and a testing ground for witness credibility by challenging the witness. I believe that judges who sustain an objection to the confrontation as ‘argumentative’ do not fully understand the function of cross-examination and the rules of evidence. I decided to share my viewpoint for your consideration. . . .

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May Defense Counsel Ask Plaintiff Whether He Was Referred to Doctor?

21 Sunday Dec 2014

Posted by in Attorney-Client Privilege, Cross-Examination, Defense Counsel, Depositions, Direct Examination, Discovery, Interrogatories, Litigation, Making Objections, Negligence, Personal Injury, Plaintiff's Counsel, Privilege and Confidentiality, Trial Tips and Techniques

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“Did Your Attorney Refer You to that Doctor?” by Daniel E. Cummins, TORT TALK Blog

http://tinyurl.com/phfds4w

In a recent Delaware County Court of Common Pleas decision in the case of English v. Stepchin, No. CP-23-CV-786-2014, 101 Del. 424 (C.P. Del. Co. Nov. 12, 2014 Kenney, P.J.), President Judge Chad F. Kenney upheld a defense attorney’s right to inquire of a personal injury plaintiff whether or not plaintiff’s counsel had referred the plaintiff to her treating physician.

This issue came before the court on a Motion for a Re-Deposition of the plaintiff by defense counsel.

At the original deposition, plaintiff’s counsel objected to the defense counsel’s question to the plaintiff as to whether or not plaintiff’s counsel had referred the plaintiff to her treating physicans. Plaintiff’s counsel asserted that such discovery was barred by the attorney-client privilege.
In his Opinion issued on the matter, President Judge Kenney held that, ‘whether counsel referred Plaintiff to her treating physicians does not constitute legal assistance so as to justify properly invoking the attorney-client privilege.’ More specifically, the court found that whether an attorney referred his client to a medical provider for treatment cannot be considered to have been a communication from an attorney to his or her client associated with the rendering of a legal opinion or the provision of legal services so as to invoke the applicability of the attorney-client privilege.

President Judge Kenney also stated that any asserted privilege ‘failed to outweigh the interest of the accessibility of material evidence to further the truth-determining process’ at a trial of a personal injury matter.

The Court granted Defendant’s Motion and ordered a 2nd deposition limited to the issue of who referred Plaintiff to her treating physicians.

Anyone wishing to review this decision, may click this LINK.

Direct and Cross-Examination – Links, Tips, and Resources.

13 Sunday Jul 2014

Posted by in Child Witnesses, Cross-Examination, Direct Examination, Experts, Making Objections, Trial Tips and Techniques, Witnesses

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Examination and Cross-Examination: Getting the Facts, Trial Practice Skills, Pace Law Library

http://libraryguides.law.pace.edu/content.php?pid=149008&sid=1265851

Links on Direct Examination, Cross-Examination, Examining Expert Witnesses, Child Witnesses, and other related links. -CCE

Are Acronyms Effective or Alphabet Soup?

15 Sunday Jun 2014

Posted by in Acronyms, Closing Argument, Cross-Examination, Direct Examination, Jury Persuasion, Legal Writing, Making Objections, Opening Argument, Oral Argument, Trial Tips and Techniques, Voir Dire

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DUA: Don’t Use Acronyms, by Dr. Ken Broda-Bahm, Persuasive Litigators Blog

http://tinyurl.com/p66tcgk

I’m monitoring a criminal trial this week, and at the end of opening statements, the judge looked at the jury and said, ‘Okay, both sides have been referring to ‘AUSAs’ — they know what that means and I know what that means, but I’m guessing that you don’t know that that means?” Head nods from the jury. ‘It means ‘Assistant U.S. Attorney,’ continued the judge, “so please fill that in wherever you hear it.” Good solution? Better than nothing. But it would have been best if both sides would have simply used the title instead of abbreviating it. The tiny amount of additional time it takes to say ‘Assistant U.S. Attorney’ rather than ‘USA’ is well worth it in terms of clarity and understanding.

But some attorneys, experts, and other witnesses continue to love the economy of the acronym. But particularly in spoken communication, and particularly in front of a jury, that economy comes at a cost: meaning lost in translation and increased cognitive workload even when it is translated. Practical persuaders before a lay audience are well advised to avoid acronyms almost entirely. Okay, I say almost entirely — there are some exceptions (and besides ‘Generally Avoid Acronyms’ would have been ‘GAA.’) The few acronyms that ought to still be used are those that have such widespread familiarity that they almost become words in their own right: USA, CNN, or ASAP. In all other cases where the acronyms don’t benefit from automatic translation, the litigator is best off choosing the full expression and not the acronym. This post takes a look at a few reasons, implications, and replacements for trial persuaders looking to lose the alphabet soup of acronyms. . . .

Apologizing Even When It’s Not Your Client’s Fault.

30 Sunday Mar 2014

Posted by in Closing Argument, Cross-Examination, Damages, Defense Counsel, Direct Examination, Jury Instructions, Jury Persuasion, Litigation, Making Objections, Opening Argument, Settlement, Trial Tips and Techniques

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Show You’re Sorry, Even When You’re Not at Fault, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/ntvjm5r

[A]s we’ve noted before, letting jurors, judges, and opposing parties hear an apology can be effective when you are responsible, or are likely to be found responsible, for at least part of the damage at issue in the case. But what about when you’re not? Does that second kind of “sorry,” meaning “I recognize your loss, but without accepting responsibility for it” create a persuasive advantage as well?

According to some new research, yes, it does. . . .

Like Us, Judges and Juries Get the “Munchies.”

08 Saturday Mar 2014

Posted by in Appellate Judges, Closing Argument, Cross-Examination, Defense Counsel, Direct Examination, Exhibits, Experts, Federal Judges, Judges, Jury Persuasion, Law Clerks, Litigation, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

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Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”), by  Dr. Ken Broda-Bahm, Persuasive Litigator  Blog

http://tinyurl.com/lebleml

It comes as no surprise that a hungry person, be it the judge or members of a jury, find it difficult to concentrate and focus on your client’s case. Long stretches of testimony and argument are hard enough to follow, especially if the case is complex with numerous exhibits and witnesses. Regardless how comfortable the chair, sitting for long periods trying to listen carefully to a case is hard work.

There is more than one way to consider your audience at a trial or hearing. Persuasive argument is one. Excellent trial preparation using technology is another. Considerate and well-timed rest and meal breaks are another tool that can be used to your advantage.

The Rocket Science Blog mentioned in this post can be found at http://tinyurl.com/3dg5e8n. – CCE

Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge’s decisions.  But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors.  Case in point: lunch and snack breaks.  Recent research discussed in the excellent Not Exactly Rocket Science blog appears to show that judges’ decisions vary as a direct effect of the proximity of their morning snack or lunch break.  In case you are using your morning break or lunch hour to read this post, I’d like to make it worth your while by applying the study findings to the more general issue of your decision-makers’ mental work load and offering some recommendations for anyone who needs to make arguments to a potentially fatigued audience. . . .

Lawyers — First Impressions Stick!

02 Sunday Mar 2014

Posted by in Closing Argument, Cross-Examination, Direct Examination, Exhibits, Experts, Jury Persuasion, Jury Selection, Litigation, Making Objections, Mock Trials, Opening Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

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Expect First Impressions to be Carved in Stone, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/org7why

Please note additional links on first impressions, overcoming bad impressions, and using visual images to create a first impression at the bottom of this post at the Persuasive Litigator website. -CCE

We’ve all heard the old saying: You never get a second chance to make a first impression. It is true that when meeting someone new, our brain is quickly putting them into a number of categories. Their background, intelligence, friendliness, attitudes, trustworthiness, and a myriad of other aspects of character are all on their way to being locked into some pretty durable assumptions. In a legal setting, where a juror is reacting to a witness on the stand for example, we might want those credibility determinations to be made over time, informed by the full scope of the testimony. But don’t count on it. . . . 

Intolerance Is A Door That Swings Both Ways When Presenting Your Case.

17 Monday Feb 2014

Posted by in Appellate Judges, Closing Argument, Cross-Examination, Direct Examination, Federal Judges, Judges, Jury Instructions, Jury Persuasion, Jury Selection, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witness Preparation, Witnesses

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Account for Ideological Intolerance, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://tinyurl.com/kovy8wo

It’s Valentine’s time again. It’s a holiday of love, but in the political world, we’re moving out of yet another debt ceiling standoff and there is no love lost between the two sides of the spectrum. Liberals point to yet another, albeit failed, attempt to hold the country’s full faith and credit hostage, while conservatives point to yet another increase in an already staggering national debt. Neither side can understand the values, arguments, and priorities of the other. And that’s just the debt. Add in social welfare programs, marriage equality, and — as the actual sign from an Arizona gun shop above testifies — gun control, and you’ve got a pretty bitter divide. Polling shows that we are politically more ‘tribal’ than ever before. As we’ve noted in earlier posts, liberals and conservatives appear to use their brains differently when assessing risk, and are resistant to applying basic empathy across the political aisles. . . .

Framing Your Legal Arguments To Persuade.

11 Saturday Jan 2014

Posted by in Closing Argument, Cross-Examination, Direct Examination, First Amendment, Jury Instructions, Legal Writing, Making Objections, Opening Argument, Trial Tips and Techniques, Voir Dire

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Frame It As “Freedom with Consequences,” by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/mvb6qjy

Ducks and Vikings have been prominent recently on the free expression front of the culture wars. The ‘Duck’ would be Duck Dynasty’s reality star Phil Robertson, who’s recent comments on homosexuality and race caused his network, A & E, to briefly suspend him from the show. The ‘Viking’ would be former Minnesota Vikings punter Chris Kluwe, who was released by the team after controversy following an editorial he wrote in favor of marriage equality. While Kluwe lost his job and Robertson kept his, the similarity in the cases is that both were framed in the public sphere as a question of free expression. But it is less the question of whether Robertson and Kluwe have free speech, but whether they have freedom from the employment consequences of that speech.

Sharpen Trial Advocacy Skills.

28 Saturday Dec 2013

Posted by in Closing Argument, Cross-Examination, Direct Examination, Jury Selection, Making Objections, Opening Argument, Trial Tips and Techniques, Witness Preparation

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The Trial Lawyers Library, trialtheater blog

http://www.trialtheater.com/wordpress/the-trial-lawyers-library/

A trial lawyer’s list of recommended books to develop trial advocacy skills. Although some of the titles may surprise you, each has an intended purpose directly tied to trial advocacy. – CCE

 

 

No Whining in Opening Argument.

13 Friday Dec 2013

Posted by in Evidence, Making Objections, Opening Argument, Trial Tips and Techniques

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Don’t Whine About ‘Argumentative’ Demonstratives (and Argue Back Against Whiners), by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/kb35ho4

The Cardinal Rules of Trial Advocacy

05 Tuesday Nov 2013

Posted by in Admissibility, Closing Argument, Court Rules, Cross-Examination, Direct Examination, Evidence, Making Objections, Opening Argument, Trial Tips and Techniques

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Everything You Ever Wanted To Know About Trial Procedure and Tactics, by James A. Tanford, Indiana University School Of Law

http://www.perma.cc/0WZumCVR9Ao

Comprehensive Discussion of Trial Procedure and Techniques

19 Saturday Oct 2013

Posted by in Closing Argument, Cross-Examination, Direct Examination, Evidence, Judges, Jury Selection, Making Objections, Opening Argument, Trial Notebooks, Trial Tips and Techniques

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Everything You Ever Wanted To Know About Trial Procedure And Tactics, by James A. Tanford, Indiana University School of Law
http://www.law.indiana.edu/instruction/tanford/web/reference/basictactics.html