The Trial Practice Tips Weblog

Objections to the Form of a Question: A Partial List

Lawyers who are defending depositions (or learning how to to defend depositions) sometimes like a handy list of form objections. If the form objection is not made during the deposition, this type of objection is normally waived.

Here are some typical form objections:

• "Vague." The question is unclear. The question might be too long, some of the key words in the question might have more than one meaning, or the period of time to which the questioner is referring might be unclear. (Similar objections: "ambiguous" and "confusing.")

• "Compound." The question is actually two questions.

Example: "Did you find the cancelled check on the ground and take it with you?"

• "Argumentative." Though it might be a question grammatically, the questioner is asking it not to get an answer, but to make communicate some other message to the witness.

Example:"When you arrived at the deposition this morning, had you already decided not to give me your full attention?"

• "Asked and answered." The questioning lawyer is covering the same ground a second time, asking a question to which he has already received an answer.

• "Assumes facts not in evidence." The question contains a factual statement that has not yet been established.

Example: "Did you interview the employee before firing him?" (asked when there is no testimony that the employee was fired.)

• "Misstates the evidence" or "misstates the witness's testimony." The question contains a factual assumption for which there is no evidence in the case, or the question incorrectly quotes or paraphrases what the witness has testified to in the deposition.

• "Leading." The lawyer is asking a leading question to a witness to which he is not permitted to ask leading questions.

Example: "When you proceeded into the intersection, the light was green, correct?"

• "Lacks a question." Sometimes a lawyer will make a statement rather than ask a question. The defending lawyer can object by saying something like, "Objection, that's not a question," or "Objection, the question was preceded by a statement that wasn't a question." (However, it's likely that you could get the offending comments removed from the transcript before trial even without a timely objection at the deposition.)

• "Lacks foundation." The questioning lawyer is asking the witness concerning a fact or topic about which the witness lacks personal knowledge.

Example: "What warnings were contained on the package insert?" (without establishing that the witness received and read the package insert.)

Some common objections that are not to the form of the question include irrelevance and hearsay.

If you'd like to add other objections to the list, please leave a comment. For more information on deposition objections, see my book, Deposition Checklists and Strategies (James Publishing)

Related posts:

1. "The Anatomy of the Perfect Deposition Question."

2. "When Are Leading Questions Permitted During Federal-Court Depositions?"

3. "Depositions: Don't Ignore Form Objections."

4. "Depositions: Asserting Control with the 'Nonresponsive' Objection."

Trial Practice Tips from David Boies

At the Insurance Defense Blog, Dave Stratton has collected a number of litigation-related tips from David Boies.

Stratton's post is titled "Trial Practice Tips Courtesy of David Boies," and pulls quotes from the (fairly) recent Boies book, "Courting Justice: A Lawyer's Casebook, from NY Yankees v. Major League Baseball to Bush v. Gore."

A sample of Boies's wisdom:

As a leadoff witness you need someone who will point some points on the board and do no damage; you do not want to take a risk. If your first impression with a judge or jury is not good, your case is in trouble. You also want a witness who can explain the overall case and put matters in context.

For more, see Stratton's blog post.

Tip for Direct Examination: Write Down the Answer, Not the Question

This direct-examination tip comes from "Persuasive Direct," by Jim McElhaney, in the January 2009 issue of the ABA Journal--

When you prepare for trial, don’t write out your questions. They’ll sound stiff and unnatural when you read them out loud. Instead, write down the answers you’re looking for on the right-hand side of your outline, leaving the left side of the page for occasional notes and reminders. That system forces you to ‘free-form’ your questions to get the information you need. It makes everything sound more natural, including the witness’s answers.

There's more in the full article, which encourages you to leave the legalese in your office when you head for courtroom.

"Please Tell the Jury": A Formula Guaranteed to Make You Sound Pompous

You hear it all the time when lawyers are presenting their experts to a jury or preserving their testimony for trial:

• "Doctor, would you tell the jury how mesothelioma is diagnosed?"
• "Mr. Expert, I'd like you to explain to the jury how it was possible to measure the width of the device."
• "Doctor, for the jury's benefit, would you describe how blood travels through the four valves of the heart?"

The trouble with the "tell the jury" formulation is that you risk sounding arrogant. You're suggesting that although the jury needs instruction, you already know the answer.

It's a problem that's easy to fix. Simply ask the expert to "tell us" or "explain to us" or "tell us why." Or leave out the "us" altogether--that works too.

It's a useful tip that was suggested by a one of the judge-lecturers in this CLE program, which I was watching in order to satisfy my Illinois compliance.

Related post:"Communicating with Juries by Acting Like a Regular Person: Is It Even Possible?"

Taking Control of Direct Examination

Has a witness on direct ever given you an unexpected answer to a key question? Did you know how to recover from this tricky situation? For a step-by-step guide, see "What to Do When Your Witness Forgets," by Elliott Wilcox at "Winning Trial Practice Techniques"--

First things first: DON’T PANIC!  Far too often, attorneys (especially younger attorneys) lose their minds when they get unexpectedly bad responses from their witnesses.  The worst thing you can do at this point is to give your jurors the impression that you’ve just lost the case.  Chances are, the witness’s incorrect answer isn’t nearly as fatal as you think it is, so put on your poker face.  If you freak out, the jury will amplify the importance of the negative answer.  Just keep your cool — you can fix this.

For the complete answer, which includes a few different methods for regaining control of a failing direct examination, follow the link above.

Related post: "Stipulations That Will Streamline Trial."

Communicating with Juries: The Well-Placed Pause

There's an article at Winning Trial Advocacy Techniques titled "Adding Impact to Opening Statements" that makes this observation:

One of the most powerful tools in your opening statement and closing argument toolbox is the well-placed pause. Often, that brief moment of silence following a profound thought can be more important that the words themselves.

Read the full article to learn why, when, and how to pause for maximum effect during your opening statements and closing arguments.

Six Tips for Improving Your Direct Examinations

Here is a basic blueprint for putting together a direct examination. The tips are basic, but worth remembering--

• Find out what information you want to elicit. The rest of these tips deal with technique; this tip deals with substance. You're presenting the witness at trial in order to prove facts you need to make or defend your case. Knowing which facts will be presented through a particular witness is the key to a good direct. You can't pull it off without a thorough understanding of your case. Make a checklist of the facts you're using the witness to prove. Keep the checklist handy when you're presenting the witness; don't hand the witness over for cross-examination until you've checked all the items off the list.
• Prepare the witness. Make sure you're on the same page about the facts you want to elicit; make sure that the witness is going to say what you expect him to say. But don't commit yourself to particular questions, and don't let the witness develop scripted answers. If the direct examination seems too stiff or practiced, the witness will lose credibility. You want the direct to seem spontaneous. See "A Direct Examination Tip from Geoffrey Fieger."
• Think about the questions you'll ask. If you're experienced enough, it will be sufficient to simply assemble the checklist mentioned above. Keep your questions short, and make sure they'll allow the witness to tell his story in a logical and clear way. Except for preliminaries, you can't lead. Make use of headline-type questions that announce both to the witness and the jury where you're headed next, e.g., "Now I'm going to ask you a few questions about the morning before the accident, okay?"
• Be prepared to handle objections from your opponent, both to the form and substance of your questions. If your opponent objects to a leading question, use the tip found in  "An Easy Way to Fix a Leading Question." You should also be prepared for objections about admissibility. Run the direct examination through in your mind and try to figure out when the objections will come and how you are going to deal with them.
• Think about your opponent's cross-examination. If there are bad facts that worry you, consider revealing them yourself during your direct.
• When the time comes for direct, give the witness enough room in the way you develop the testimony that he'll seem like a person, not a robot. The witness is the star during direct, not the lawyer. But if the witness is having trouble keeping on point, reel him in. "Thanks for your answer, but I'm asking a slightly different question. . . " Look for signs that the witness is confused; if it happens, back up and begin again.

For other tips about direct examination, see the posts on this weblog in the "Direct Examination" category.

Where and How to Stand During Direct and Cross-Examination

Assuming the trial judge gives you the freedom to move around the courtroom, does it matter where and how you stand during direct and cross-examination?

During direct examination, many lawyers recommend standing near the far end of the jury box, which forces the witness to look at the jury when answering.

Is cross-examination any different? According to Steven Puiszis, President of the Illinois Association of Defense Trial Counsel, it's best to move around during cross-examination. That's according to Helen Gunnarsson's "Cross-Examination: Beyond the Perry Mason Moment," in this month's Illinois Bar Journal--

Puiszis says that he paces around the courtroom during his cross-examination so that the witness will look at him and not at the jury. Doing so not only emphasized Puiszis's role as star but also further diminishes the witness's opportunity to gain credibility with the jury through eye contact.

What's the "role as star" business? During cross-examination, the cross-examining lawyer should be the main focus of the jury's attention. It's the complete opposite of direct, when the witness plays only a supporting role. During cross-examination, the jury's attention should be squarely on the questioning lawyer, who asks leading questions to which the witness can only answer yes or no.

To read Gunnarrson's entire article about cross-examination, look here (ISBA members only).

An Easy Way to Fix a Leading Question

Before I did my first direct examination of a real witness in a real trial, the partner I was working with gave me a bit of advice about leading questions that turned out to be very helpful. He told me that if the opposing lawyer objected that one of my questions was leading, I could probably fix the problem simply by asking the same question with the phrase "whether or not" tacked onto the beginning.

Here's an example. Say your question is "The light was green, right?" and it gets an "objection, leading" from the opposing counsel. Using the partner's method, the new question becomes "Can you tell me whether or not the light was green?" In some cases, the resulting question will still be deemed leading, but if the lawyer objects again, you're already on the right track to fixing the problem. That's important because in the heat of trial, it's often very difficult to figure out how to rephrase questions when met with repeated objections that are repeatedly sustained.

In my example, if the new question is met with another objection, it won't take much thinking to replace it with this one: "What color was the light?" The "whether or not" method is not only a handy crutch, but it also forces you to automatically think about what is was that made the question leading in the first place. While the leading nature of the questions I used as examples in this post is easy to see, in a real trial, things are often much more complicated.

Testifying at Trial: Don't Let Your Client Make These Disastrous Mistakes

Can you take steps to make your client more likeable to the jury? While some people are inherently unlikable, even these sorry cases can be taught how to avoid a few mistakes that will guarantee their unlikability:

• Being Discourteous to Counsel or the Court Most people know not to talk back to the judge, but they shouldn't talk back to opposing counsel either. When answering questions on cross-examination, it usually pays to keep one's cool. Becoming angry is almost always a mistake.
• Failing to Answer Questions Directly Proper questions put to your client by opposing counsel should be answered directly. It's a mistake to answer a different, imaginary question that wasn't asked. Not only does it amount to volunteering, which is never a good idea, but it makes your client appear to be evasive.
• Trying to Explain Too Much Explaining too much also makes your client appear evasive. Clients should be instructed that you will have a chance for rebuttal after the cross-examination is over. This will give them a chance to explain.
  
• Exaggerating Small Details Clients often want to exaggerate small details. If your opposing counsel is skilled, however, it won't be hard for him to turn this small exaggeration into a big lie. Warn your client against exaggerations.
• Refusing to Yield on Uncontroverted Facts There are bad facts in every case. While you undoubtedly have a plan to minimize these bad facts, it won't help if your client draws undue attention to them by refusing to admit the truth on cross-examination. Let your client know ahead of time why the bad facts won't destroy the case.
  
• Failing to Look at the Jury Looking at the jury doesn't come naturally to most people. You can help by standing at the corner of the jury box when asking questions. When answering, your client will be facing the jury in a way that won't looked forced.