Reprise: The Futility of Objecting to the Form of the Question

October 17, 2014 § 1 Comment

Reprise replays posts from the past that you might find useful today.

AN OBJECTIONABLE OBJECTION

September 14, 2011 § 2 Comments

One of the most baffling objections is “Object to the form of the question.” It’s baffling because it doesn’t tell the judge what the real problem is.

It’s actually a lazy objection because it is several objections in one. Problems with the form of the question arise from nine distinct sources, each of which is a separate objection in its own right.

These are the real objections to the form of the question:

  • Leading. MRE 611(c) says that “Leading questions should not be used on the direct examination of a witness except as may be used to develop his testimony.” Which means that the judge may grant some leeway in order to ensure that testimony is developed. Leading is, of course, permitted on cross examination, for hostile or adverse witnesses, and for preliminary matters.
  • Compound question. You can ask only one question at a time. Often the witness answers only one of multiple questions, not always making it clear which one she is answering.
  • Argumentative and Harrassing. This is really two different things. A question is argumentative when it is merely a comment on the evidence, or a legal argument, or an attempt to get the witness to adjudge his own credibility. A question is harassing when the probative weight of the information sought is outweighed by the embarassment to the witness or its outrageous nature. UCCR 1.01 states that “The counsel, parties, and witnesses must be respectful to the court and to each other,” and “Bickering or wrangling between counsel or between counsel and witness will not be tolerated.”
  • Asked and answered. You enjoyed the answer so much the first time that you just can’t resist doing it again.
  • Assumes facts not in evidence. You have broad scope within the bounds of relevance to develop new facts, but not by framing your questions in such a way that they take as true facts that have not been established. In chancery, with no jury, this is a touch-and-feel objection that the judge may overrule and then disregard the answer.
  • Ambiguous and confusing. A question is ambiguous when it is susceptible to more than one interpretation. A question is confusing when it is phrased in such a way that it can be misunderstood.
  • Misleading. Misstatement of the witness’s or another witness’s prior testimony.
  • Narrative. The question calls for a recitation of the whole story, which may or may not include objectionable material.
  • Repetitious. You already made that point. Move on to something else.

Unless you’re objecting just to hear yourself talk, you want your objections to accomplish something for the benefit of your client. General objections like “Object to the form of the question” are an objectionable waste of time. Your chances of getting your objection sustained go up when you make a specific objection.

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§ One Response to Reprise: The Futility of Objecting to the Form of the Question

  • I do not understand why lawyers object by saying something, be it testimony or whatever, is not the “best evidence”. So what?! The best evidence rule applies to a writing and has nothing to do with what is the best evidence of the way something happens. Just makes me mad …..

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