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Tag Archives: Objections

Courtroom Objections – An iPhone App

26 Saturday Oct 2019

Posted by Celia C. Elwell, RP in Apps, Evidence, iPhones, Legal Technology, Objections

≈ Comments Off on Courtroom Objections – An iPhone App

Tags

Anthony Shorter, App, iPhone J.D., Jeff Richardson, Objections

Review: Courtroom Objections — trial assistance on your iPhone, iPhone J.D., by Jeff Richardson

https://www.iphonejd.com/iphone_jd/2019/10/review-courtroom-objections.html

Jeff Richardson shares Anthony Shorter’s updated app, Courtroom Objections.  Think of it as a cheat sheet to evidentiary objections and responses for federal and some state courts. Currently, the app covers federal court and these state jurisdictions: AZ, CA, CO, FL, GA, IL, IN, LA, MD, MA, MI, NJ, NY, OH, PA, TX, UT, WI.

The only downside I see to the convenience of this app is that federal courts forbid cell phones and your state court might as well. Even if your court allows cell phones, it is still awkward – or forbidden – to use your iPhone at the counsel table in front of a judge or jury. But in depositions or other settings, it would be a useful and handy tool, especially new lawyers or paralegals.  -CCE

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Written Discovery Basics.

20 Saturday Aug 2016

Posted by Celia C. Elwell, RP in Discovery, E-Discovery, Interrogatories, Legal Writing, Requests for Admissions, Requests for Production

≈ 1 Comment

Tags

Definitions and Instructions, Discovery, Legal Writing, Motion to Compel, Objections

I admit it. I love writing and answering discovery. Too often, I have seen boilerplate discovery asking for something that is not relevant. What a waste. Do not write discovery if you know nothing about the case. Blindly sending boilerplate discovery at best makes you look busy. At worst, it makes you look sloppy.

Discovery rules change. Read and re-read the court rules, local court rules, and the applicable discovery code. At the outset of the case, send your client and the opposing party a litigation hold letter. It does not matter whether either is an individual or a big corporation. Everyone uses email and sends texts on their cell phones.

Before you start writing discovery, you have to be familiar with the facts and law of your client’s case. If you aren’t, read the pleadings. Understand why the plaintiff sued the defendant(s) and what answer the defendant gave to those allegations, including all affirmative defenses. If it helps, make a chart or an outline.

There is a basic way to determine what discovery you should request. First, make a list of what you need to prove your case. We’ll call this List #1. Second, ask yourself whether you have everything needed to prove (or defend) everything on List #1? You won’t. So, third, make a list of what you need – List #2. Your client will provide some of the evidence you need, and you will use discovery to continue your search. Revise List #2 to identify what you need but do not have.

With List #2 as your guide, use discovery to get whatever else you need to prove your case. Each type of discovery is unique. Play to their strengths, which is a post all by itself. Craft your discovery to snag that evidence and identify anyone who is a potential witness and/or document custodian.

A quick word about Definitions and Instructions. Please do not regurgitate the discovery rules. I admit that I do not follow my own advice. I like to remind opposing counsel (and the opposing party) that there is a continuing obligation to supplement discovery. In the hopes that it will save time and aggravation, I also like to add the specific language from the discovery code about when you can object and why.

Define only what is necessary. If there is room for confusion, clarify what is what and who is whom. If the case revolves around specific documents, such as a contract or an event, define it with a simple designation. Your goal is instant recognition of whatever it is. If there are more than one contract or event, make your definitions basic and easy to recognize.

As soon as you receive the responses to your discovery, mark every incomplete answer or objection. Ask for supplementation where needed, and follow up. If an objection is ridiculous or simply obstructive, challenge it while at the same time building exhibits to support a motion to compel (read the rules!). Do not wait until the discovery deadline is looming to stay on top of this.

This one should be a no-brainer, but I still see it every so often. A party objects to the most basic discovery question and refuses to answer. The other side asks a standard, basic interrogatory, and you object. Really? You cannot enforce it. You know it; I know it; and the other side knows it.

Say goodbye to your boilerplate forms. If you use a form, proofread. Know your case. Adapt your discovery plan as the case progresses. These are not all the basics, but it will hopefully give you a running start. -CCE

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Objection! Argumentative!

09 Saturday May 2015

Posted by Celia C. Elwell, RP in Cross-Examination, Direct Examination, Evidence, Making Objections, Objections, Trial Tips and Techniques

≈ Comments Off on Objection! Argumentative!

Tags

Cross-Examination, Objections, Paul N. Luvera, Plaintiff Trial Lawyer Tips Blog, Rules of Evidence

“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. . . .

Continue reading →

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No Sandbagging!

13 Friday Mar 2015

Posted by Celia C. Elwell, RP in Appellate Law, Appellate Record, Issues On Appeal, Preservation of Error

≈ Comments Off on No Sandbagging!

Tags

Appellate Law, Louisiana Civil Appeals Blog, Objections, Preservation of Error, Raymond P. Ward, Sandbagging

Thou Shalt Not Sandbag, by Raymond P. Ward, Louisiana Civil Appeals Blog

http://raymondpward.typepad.com/la-appellate/2015/03/thou-shalt-not-sandbag.html

In the last post, we looked at the jurisdictional foundation of the law on preserving error. Today we will look at one of two purposes of this law: prevention of sandbagging.

What is sandbagging? Black’s Law Dictionary defines it as ‘[t]he act or practice of a trial lawyer’s remaining cagily silent when a possible error occurs at trial, with the hope of preserving an issue for appeal if the court does not correct the problem.’ Black’s Law Dictionary 1542 (Bryan A. Garner, ed., 10th ed., Thomson Reuters 2014). Justice Scalia once described sandbagging as ‘suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later — if the outcome is unfavorable — claiming that the course followed was reversible error. Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring).

Appellate courts hate sandbagging. As proof of this proposition, here are some quotable quotes:

  • ‘The Sixth Circuit’s decision to require the filing of objections is supported by sound considerations of judicial economy…. The Sixth Circuit’s rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from ‘sandbagging’ the district judge by failing to object and then appealing.’ Thomas v. Arn, 474 U.S. 140, 147–48 (1985).
  • ‘The rationale behind this Court’s opinion in Lewis was distaste for the ‘sandbagging’ practice in which defendants circumvent district judges and raise objections for the first time on appeal.’ Perales v. Casillas, 950 F.2d 1066, 1071 (5th Cir. 1992).
  • ‘If the record indicates that counsel for the complaining party deliberately avoided making the proper objection or request, plain error will almost never be found. This court will not tolerate ‘sandbagging’ defense counsel lying in wait to spring post-trial error.’ U.S. v. Sisto, 534 F.2d 616, 624 n. 9 (5th Cir. 1976).

Ththere no-sandbagging rule is a consequence of the appellate court’s jurisdiction, which is limited to reviewing the trial court’s actions. It is also a matter of fairness to the district court. In the appellate courts’ view, it is unfair to the district court to complain of that court’s error on appeal without having given that court a fair opportunity to avoid or correct its own error.

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Deposition Advice for Witnesses.

20 Tuesday Jan 2015

Posted by Celia C. Elwell, RP in Depositions, Discovery, Federal Rules of Discovery, Objections

≈ Comments Off on Deposition Advice for Witnesses.

Tags

Depositions, Dr. Ken Broda-Bahm, Leading Questions, Objections, Persuasive Litigator, Witness Preparation, Witnesses

Don’t Be Led (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/lbeehbe

The name ‘Discovery’ doesn’t quite do justice to the litigation phase it describes. When it’s done well and with purpose, the point of discovery isn’t so much to discover evidence as it is to create evidence. In deposition, for example, the deposing attorney’s fondest wish is not to discover the witness’s view of what happened, but instead to get that witness to confirm the attorney’s version of what the case requires. For that reason, taking a deposition is all about control. The deposing attorney would just testify on his own if he could, but the process doesn’t allow that, so the next best thing is to fully control the witness. And the best way to fully control the witness is to lead. . . .

Continue reading →

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Deposition Objections – How To Make And Defend Them.

18 Sunday May 2014

Posted by Celia C. Elwell, RP in Attorney-Client Privilege, Depositions, Discovery, Evidence, Objections

≈ Comments Off on Deposition Objections – How To Make And Defend Them.

Tags

Depositions, Evidence, Lawyerist Blog, Objections, Susan Minsberg

Proper Deposition Objections, by Susan Minsberg, Lawyerist Blog (with hat tip to Evan Schaeffer!)

http://lawyerist.com/16801/proper-deposition-objections/

Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself. . . .

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A New Theory of Hearsay – Part 1.

11 Tuesday Feb 2014

Posted by Celia C. Elwell, RP in Admissibility, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses

≈ Comments Off on A New Theory of Hearsay – Part 1.

Tags

Character Evidence, Colin Miller, Evidence, Evidence ProfBlogger, EvidenceProf Blog, Federal Rules of Evidence, Hearsay, Hearsay Declarant, Hearsay Exceptions, Objections, Witness

A New Theory of Hearsay: Incorporating Rule 403 Into the Hearsay Analysis, by Evidence ProfBlogger (Colin Miller, Editor), EvidenceProf Blog

http://tinyurl.com/m6fchaq

Federal Rule of Evidence 803 provides exceptions to the rule against hearsay that apply regardless of the availability of the hearsay declarant. Federal Rule of Evidence 804 provides exceptions to the rule against hearsay that apply if the hearsay declarant is ‘unavailable.’ As exceptions to the rule against hearsay, these Rules merely place qualifying statements beyond the scope of Federal Rule of Evidence 802. And what this means is that, like all evidence, statements falling under a hearsay exception must be relevant under Federal Rule of Evidence 401 and have a probative value that is not substantially outweighed by dangers such as the danger of unfair prejudice under Federal Rule of Evidence 403. And yet, parties almost never make Rule 403 objections to evidence offered under a hearsay exception, and courts almost never sustain such objections. Why?

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No Whining in Opening Argument.

13 Friday Dec 2013

Posted by Celia C. Elwell, RP in Evidence, Making Objections, Opening Argument, Trial Tips and Techniques

≈ Comments Off on No Whining in Opening Argument.

Tags

Demonstrative Exhibits, Dr. Ken Broda-Bahm, Evidence, Objections, Opening Argument, Persuasive Litigator, Trial Tips & Techniques

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

http://tinyurl.com/kb35ho4

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The Cardinal Rules of Trial Advocacy

05 Tuesday Nov 2013

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

≈ Comments Off on The Cardinal Rules of Trial Advocacy

Tags

Closing Argument, Evidence, Objections, Opening Argument, Trial Tips & Techniques

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

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Comprehensive Discussion of Trial Procedure and Techniques

19 Saturday Oct 2013

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

≈ Comments Off on Comprehensive Discussion of Trial Procedure and Techniques

Tags

Closing Argument, Cross-Examination, Direct Examination, Indiana University School of Law, James A. Tanford, Jury Selection, Objections, Opening Argument, Trial Notebooks, Trial Tips and Techniques

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

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