Category Archives: dos and don’ts

Proper Objections at Your Expert’s Deposition

 
Palais de justice historique de Lyon, France

Objections should be kept to a minimum. The Rules contemplate that
objections should be concise and afford the examiner the opportunity to cure the objection. See Fed. R. Civ. P. 30(c)(2) (noting that “objection[s] must be stated concisely”); id., Advisory
Committee Notes (1993 Amendments) (noting that “[d]epositions frequently have been unduly  prolonged . . . By lengthy objections and colloquy” and that objections “ordinarily should be  limited to those . . . grounds that might be immediately obviated, removed, or cured, such as to
the form of a question”). Rule 30(c)(2) provides:  

Objections. An objection at the time of the examination—whether
to evidence, to a party’s conduct, to the officer’s qualifications, to  the manner of taking the deposition, or to any other aspect of the  deposition—must be noted on the record, but the examination still  proceeds; the testimony is taken subject to any objection. An  objection must be stated concisely in a nonargumentative and  nonsuggestive manner. A person may instruct a deponent not to  answer only when necessary to preserve a privilege, to enforce a  limitation ordered by the court, or to present a motion under Rule  30(d)(3).  

The Notes to the Advisory Committee for the Amendments of 1993 state that “[w]hile objections
may, under the revised rule, be made during a deposition, they ordinarily should be limited to
those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on
grounds that might be immediately obviated, removed, or cured, such as to the form of a  question or the responsiveness of an answer.” Rule 32(d)(3)(A) & (B) state specifically which  objections must be made or waived:  

(A) Objection to Competence, Relevance, or Materiality. An
objection to a deponent’s competence—or to the competence,  relevance, or materiality of testimony—is not waived by a failure  to make the objection before or during the deposition, unless the  ground for it might have been corrected at that time. 

(B) Objection to an Error or Irregularity. An objection to an error
or irregularity at an oral examination is waived if:  

(i) it relates to the manner of taking the deposition, the form of a
question or answer, the oath or affirmation, a party’s conduct, or  other matters that might have been corrected at that time; and  

(ii) it is not timely made during the deposition. [Emphasis Added].

The Rules should be abided by during the course of the deposition.

Form objections. While unspecified “form” objections are certainly concise, they
do nothing to alert the examiner to a question’s alleged defect. Because they lack specificity, “
form” objections do not allow the examiner to immediately cure the objection.  

Permissible objections. If an objection could have been obviated at the time of
the deposition and it is not made, it is deemed waived. The only objection you should make are “insufficient foundation”, “compound”, “argumentative”, “asked and answered,” and “work
product privilege” or “attorney client privilege.” All other objections are available and can be
raised at a later time.
Below is a list of potentially impermissible objections (check your jurisdiction):  

1. Speaking Objections. Speaking objections are not allowed and can draw
sanctions. Your objection needs to be short and concise.  

2. No right to consultation. A witness has no constitutional right to consultation
while testifying. Perry v Leake, 488 US 272 (1989).  

 3. Recesses. It has been held a deponent has no right to consultation during
depositions and during recesses. Hall v Clifton Precision, 150 F.D.R. 525 (E.D. Penn. 1993).  

 
4. Communications during recesses. There is no attorney client or work product
privilege for discussion between attorney and deponent during recesses. You can ask what they
talked about. Id.  

 
5. Questions by Defending Counsel. An attorney cannot state on the record their
interpretation of a question asked. Hallsupra.  

 
6. If you know or if you understand is a speaking objection (coaching). Suggestions such as
“if you know” or “if you understand” are raw unmitigated coaching and never appropriate.
Serrano v Cincinnati Ins. Co., 2012 WL 20871 *4. (Kansas)  

 
7. Calls for speculation. Objections to “speculation” are not form. It’s also
coaching. Serrano, supra.  

 8. Vague Objection. Saying a question is “vague” is improper speaking objection.
Serrano, supra. Likewise, a lawyer cannot object saying he/she didn’t understand the question.
Hall, supra.

 
9. Multiple objections. Rambo-like multiple objections prohibited. In Re
Stratosphere
, 182 F.R.D. 614 (D. Nev. 1998).  

10. Excessive number of objections. Excessive number of objections is
sanctionable. Fed. R. Civ. P. 30(d), Committee Notes 1993.

The Problem with Problems.

memorySo do you want to know what the problem is with problems? Most people are like an ostrich with its head buried in the sand in fear of what they might see.  We all have a tendency to ignore our problems and procrastinate.  This is fatal thinking or à total lack of thinking.

Instead of waiting until the last second before the trial starts or the evening before your closing argument, look for problems as well as inspiration the first day the case comes into your office.  Continue to hunt for inspiration and problems as the case progresses. Attorneys should not wait until the last moment to prepare their opening statement or closing argument.  This is often too late and provides little time to use your creativity as an attorney and advocate for the client.

I always keep an electronic document with a list of inspirational quotes, analogies and arguments.  I also have a list of potential problems and issues that I need to address as the case progresses through litigation towards trial.  For example, if during the course of my client’s deposition unfavorable evidence arises about my client’s background or character, I make careful note of the same on my list of problems and issues so that I can deal with it at the time of trial.

So how do you deal with such problems?  You may be able to exclude the evidence with a motion limine under Rules of Evidence 403, 404, 405, 608, 609 or 610, 702 or 802.  If the problem can be addressed in jury instructions, research the law and carefully draft a proper instruction to submit to the court address the issue (such as pre-existing conditions).

If neither of these strategies has a chance of success, then I have to figure out a way to discuss the problem upfront and lessen the evidence’s  impact with the jury.  See my article: Direct Examination and Airing Your Dirty Laundry. Most evidence has a double edge to it.  If the other side is engaging in character assignation point out the tactic and explain why the jury is being misdirected from the real issues in your case.   See my article on Distraction, Misdirection and the Art of Verbal Jujitsu.

I will raise such problems during jury selection and find out which of the jurors cannot put the problem aside or deal with it fairly.  if possible, I will get juror to admit that they cannot be a fair and impartial juror and then try to have them removed for cause or use a peremptory challenge to strike the juror from the venire.

I will raise the problem on direct examination and outline any mitigating circumstances favorable to my client and explain how the transgression occurred.   I don’t wait for redirect and give my opponent the first shot at framing the issue.

Honesty, is the best policy in dealing with such problems.   Remember, everyone is human and no one is perfect.   The jury will understand if you do and you don’t run away from the problem.  Just deal with it.   Likewise,  if I receive inspiration for a good argument, analogy or quote,  I will  send myself an e-mail or text message so that I don’t forget it.

So don’t let your problems, be the problem.  Be proactive and creative.  Do not procrastinate and brood.

Credibility, Credibility, Credibiiliy

20130507-001518.jpgThere are three things to keep in mind when preparing a witness… Credibiliy, credibility, credibility.  Let’s face it; the most persuasive witness is the witness who is most credible. Such a witness speaks clearly, calmly and plainly, does not exaggerate, does not dodge the question, and is able to look the jury right in the eye as they testified. They do not argue, make flippant remarks or engage in sarcasm. It really makes no difference how smooth your witness is, how nice he looks or whether he is glib, if he is not believable.  A con man may have these traits, but that doesn’t mean a juror or jury would trust them. A party or witness needs to resist the temptation to make their testimony better than it really is. As mentioned before, “you don’t want to take a good case, try to make it a great case, and turn it into a bad case.” Here are a few general tips in checklist form for your witnesses:

​1.​ Review any relevant documents, especially statements or depositions.

​2.​ Review any exhibits with the witness and make sure they can authenticate them ​​​properly.

​3.​G o back to the scene of the incident at issue and take in all the details. The ​​​witness should try to visualize what occurred.

​4.​ Dress appropriately in business attire or a suit if proper. Do not dress in a ​​​flashy manner.

​5.​ The witness should be advised of any exclusion/separation orders or motions in ​​​limine which have been granted. Regardless the witness should stay outside of ​​​the courtroom until called to testify and should refrain from speaking with other ​​​witnesses or strangers who might be a potential juror or witness. Tell the witness ​​​they are not allowed to talk with anyone about what has happened in the ​​​​courtroom.

​6.​ If asked if you spoke to anyone, be honest and say yes. Advise the witness that ​​​there is nothing wrong with speaking with you before testifying and if he is ​​​asked about it there is nothing to fear. This is part of the preparation process so ​​​that the jury’s time is not wasted and evidence can come in an orderly fashion. ​​​Emphasize the need to be truthful and accurate and tell the witness if they are ​​​asked that this is the primary purpose in meeting with them in advance.

​7.​ Always be a lady or gentlemen no matter how rude the other attorney might be.

​8.​ Conduct yourself in a dignified manner. No chewing gum or tobacco in the ​​​courtroom. Be mindful that once on the grounds you never know who might be ​​​watching. This includes attorneys, jurors or the judge.

​9.​ Take the stand and clearly accept your oath in a calm fashion.

​10.​ Speak loudly and clearly so that all the jurors can hear your answers and look at them when you answer.

​11.​ Be yourself and speak in terms you are comfortable with, but avoid slang or curse words.

​12.​ Stay factual and avoid exaggerating, guessing or giving opinions where facts will ​​​do the job. Stay away from terms such as “I believe” or “I think” as they indicate ​​​that you are guessing. These terms create “milk toast” answers of little evidentiary ​​value and are dangerous. If you don’t know the answer or cannot recall then ​​​simply say so. Again, don’t guess or speculate.

​13.​ Do not memorize your testimony. Pat answers lack the ring of authenticity and ​​​candor.

​14.​ Listen carefully to the question and do not answer a question that you do not ​​​understand or which has more than one correct answer.

​15.​ Do not quarrel or argue with the other attorney no matter what.

​16.​ Give a direct answer to a direct question. If it can be answered yes or no, then ​​​answer it in that fashion. Do not try and explain the answer if an explanation is ​​​not asked for by the other attorney unless an explanation is truly required. Before ​​​doing so ask the attorney politely, “May I explain my answer?” If he or the judge ​​​says no move on and wait for the next question to be asked.

​17.​ Be careful of absolute terms and questions to “box” you in as a witness. This ​​​includes question that use language such as “So that is all that happened?”, “You ​​​are sure?”, “So you never did…?”, “You always…?”, etc. It is better to respond ​​​”That is all I can recall,” if you forgot something. The answer, “I don’t ​​​know” means it has never been in your brain, while “I don’t recall” means the ​​​information sought has been in your consciousness, but you are unable to retrieve ​​​the information at the moment.

​18.​ Cover with the witness the foundation for “refreshing recollection” under IRE 612 ​​and “past recollection recorded” under IRE 803(5)

​19. ​Don’t try to sneak in answer. If there is an objection stop immediately until the ​​​Court has ruled and you have been either instructed to move ahead or a different ​​​question is asked.

​20.​ Don’t play attorney and object to questions yourself. That is the role of the ​​​​attorneys, not the witness. That being said, you always have the right to ​​​​understand the question being asked.

​21. ​If you have received a subpoena and witness fee, know that this is perfectly ​​​appropriate. If asked, “Are you being paid for your testimony?” answer, “No, I ​​​received a witness fee for my time. My honesty is not for sale.”

​22. ​If you are on the stand for an extended period and are tired or need to use ​​​the restroom, ask for a break. However, do not speak with anyone during the ​​​break. This is inappropriate and could lead to claims or arguments that you were ​​​being coached.
​​
​23. ​Most importantly: always testify truthfully and accurately.

The “Dos” and “Don’ts” of Closing Arguments

What are some common “Dos” and “Don’ts” when it comes to closing argument? Here is a list I put together:

            Do:

  1. Speak loud and clearly.
  2. Be confident.
  3. Vary your tone and location as you move from point to point.
  4. Be organized.
  5. Begin and end on a high note so your points will be remembered.
  6. Help the Jury with the instructions and form of verdicts.
  7. Keep track of your time.
  8. Try out your arguments on non-lawyers to insure your arguments are persuasive and understandable.
  9. Begin working on your closing argument on day one.  It will inform your discovery, preparation and instructions allowing you to develop a cohesive theme from day one.
  10. Be yourself.
  11. Be sincere and honest and the jury will trust you as a guide.
  12. Deal with your problems head-on before your opponent has a chance to address them.
  13. Use your exhibits and excerpts of key testimony from the witnesses.
  14. Use PowerPoint, blowups of testimony, or charts to assist the jury.
  15. Use analogies, quotes and vivid descriptions to keep them interested.
  16. Save your best “zingers” and analogies for rebuttal if you know the defense will have to address the matter in their argument.
  17. Judiciously use repetition as tool for emphasizing significant points.
  18. Have a clear call to action at the very end of your closing.

                       

            Don’ts:

  1. Don’t state your own personal opinion about the justness of your cause.
  2. Don’t misstate the evidence or law.
  3. Don’t mention evidence outside of the record.
  4. Don’t berate or personally attack the other lawyer to the Court.
  5. Don’t tell the jury to ignore the law.
  6. Don’t make a “Golden Rule” appeal to the jury and ask them to decide the case like they would want to be treated if they were in your client’s position.
  7. Don’t exceed the time allotted by the Court.
  8. Don’t personally vouch for a witness or your client.
  9. Don’t appeal to bias or prejudice.
  10. Don’t complain about the Court’s rulings or its treatment of you and your client.
  11. Don’t attempt to shift the burden of proof to the other side when you have the burden of persuasion on a legal claim or defense.
  12. Don’t implicate a defendant’s right to remain silent in a criminal case.
  13. Don’t insinuate that it is a lawyer made case without first obtaining approval of the Court.
  14. Don’t violate any orders granting motions in limine. (Can you say mistrial?)
  15. Don’t bore the jury or beat a dead horse.
  16. Don’t ask the jury to send a message with their verdict unless you have a punitive damage claim.  The purpose of the verdict in the typical tort case is to fairly compensate, not send a message.
  17. Don’t wear any distracting clothing or jewelry.
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