Five Rookie Faux Pas

April 22, 2019 § 2 Comments

Aside from the fact that much of their attire is shiny new, and their shoes are not (yet) run down and scuffed up, it’s usually easy to spot rookie attorneys by the vexation they spread around them like pixie dust as they make their wake through a hearing. Here are five of the most vexatious:

The Leading Objection.

Attorney 1:  Were you living with your wife when you moved to Kosciusko?

Attorney 2:  Objection; leading.

Now, what did we accomplish in that exchange other than to impress on some observers that Attorney 2 knows the difference between a leading and a non-leading question? Well, one thing it accomplished was to break up the flow of the hearing, which is self-defeating. Another thing it accomplished is to pi$$ off the other attorney, who is likely to retaliate when Attorney 2 goes on direct, which in turn pi$$e$ off the judge who is straining to discern some substance amid this frivolity.

Maybe there is a case out there in which the appellate court reversed because the judge allowed a leading question. If so, it was certainly a jury trial and not a chancery bench trial. But I am not aware of any such case, so keep in mind that your objection is accomplishing nothing to protect your record.

My suggestion is that you save your leading objections for when the other side is drawing blood, like this:

Attorney 1:  Isn’t it true that you could not have possibly admitted to your neighbor your adultery because you weren’t there that day?

Now that’s rightly objectionable, and should by all means draw an objection, which should be sustained. Why? Because it’s really the lawyer testifying, and it goes to the substance of the case.

Moral of the story: Save leading objections to protect your case. Don’t cheapen the objection by whipping it out every time you hear a leading question. We all know that you know what’s leading and what’s not; you don’t need to convince us.

Pleadings are NOT Evidence.

If you want the trial judge to consider a document or the testimony of a witness, you must get that document or oral testimony admitted into evidence. Exhibits to the pleadings and the pleadings themselves are NOT in evidence. They will not be used by the the judge as a basis for her ruling in your case unless and until they are in evidence.

Getting things into evidence does require a command of the rules of evidence. Study them. Know them. Click on the Categories button over there on the right and select “Evidence.” There are all sorts of posts about how to get business records, photos, hearsay, and the kitchen sink into evidence. Know how to do it, and how to authenticate. These are survival tools. You will die in the desert wasteland of litigation without a canteen full of evidence knowledge.

And equally important, keep in mind that only what is in evidence can be considered by the appellate courts (with the exception of offers of proof and documents marked for identification; look those up).

Moral of the story: Get proficient in evidence. It’s to a lawyer what human anatomy is to a doctor. And, if you are one of those characters who managed to be birthed out of the law-school womb into the legal world without having taken evidence, please have the common decency to forewarn your chancellor.

You Can NOT Question a Witness About the Substance of a Document that is not in Evidence.

There are all kinds of legitimate reasons why this is so. The mainmost being that we have no idea whether the information in it is admissible at all. Is it hearsay? Is it authentic? We have no way of knowing unless you lay the proper foundation.

This is a common rookie mistake. It usually draws an objection. When the opposing lawyer is slumbering or inexperienced or merely incompetent and fails to object, I sometimes will stop the questioning lawyer and “gently encourage” him to get the document into evidence before questioning the witness about it. That’s because I don’t want to hear a bunch of inadmissible twaddle that I will have to shake out of my head later when I am writing my opinion.

Are you confused about how to get that document into evidence? Well, not meaning to brag, but there is a helpful post at this link on how to get a document into evidence, step by step.

Moral of the story: Follow the process, step-by-step, to get that document into evidence. If it’s one that you anticipate will draw objections, be prepared to meet them by studying the applicable rules in advance. I am sometimes brought near to grateful tears when I see a lawyer in action who has actually studied the rules.

And Don’t Forget to Offer the Document into Evidence.

It happens from time to time. The lawyer lays the document before the witness, has him identify it, and then launches off into some more breathtaking realm of inquiry. After an hour or so of exhilarating rabbit hunting, the young Perry Mason confidently slaps his sheaf of notes down on the table and proclaims, “Tender the witness.” The document is still sitting there before the witness, unadmitted into evidence. Pity. It might have made the difference in the case.

Moral of the story: All those preliminary, foundational steps to admission are for naught if you don’t ask the court to admit the document into evidence.

Object When You Have to!

Don’t take my caveat above against leading objections to mean that you should never object or that you should curtail your objections. Object when it makes a difference.

Let me repeat that more loudly: OBJECT WHEN IT MAKES A DIFFERENCE!

I have seen lawyers sit there and let the other side get rank hearsay in. I have seen documents full of hearsay and other objectionable material pass through with a nod and “no objection.” If it’s hearsay, object. If the document is unauthenticated, object. If it’s completely irrelevant, object. And so on.

One baffling non-objection I have seen lately is to the question, “How many times have you been arrested?” Look at MRE 609. Arrests don’t mean anything. Anyone can be arrested for anything. I can have you arrested for practically nothing (okay, I will have to file a false affidavit, which will get me kicked off the bench, which I won’t do, but there are plenty of people who do file false affidavits out of revenge, or spite, or for no good reason at all). It’s the conviction that counts, and there are limitations on that. Read the rule.

The judge is not a mushroom to be buried in excrement from which wisdom is expected to sprout.

Morel of the story: Object when it makes a difference, and you will be more effective and make a more effective case. BTW … a little fungus humor never hurt anyone.

§ 2 Responses to Five Rookie Faux Pas

  • Andy says:

    I did get a verdict reversed on leading, but it was baaaaad leading (“the product that injured you said Acme on the label, didn’t it, Mr Coyote?”).

  • Carter says:

    I have often told lawyers that we can recess so that they can get a case where the trial judge was reversed for allowing leading questions, but warned that I will be retired before they will.

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