Post by Jim on Jan 2, 2010 7:51:30 GMT -5
The Conversational Jump!
This nasty sneak can happen at a deposition, evidentiary hearing, or at trial - any time witnesses are being examined by opposing counsel. I call it "The Conversational Jump".
You must stay keenly on your toes to catch it.
Consider the following:
LAWYER: So, Miss Witness, how long have you been working for Dr. Dinkle?
WITNESS: Let's see, now. It was just before my oldest boy graduated from high school. So. Let me think. That would be about 23 years ago.
LAWYER: And, what are your duties at Dr. Dinkle's office?
WITNESS: I prep the patients for surgery. I start the IV, if one is needed, take their blood pressure, hook up monitors, and generally get the patients ready for Dr. Dinkle.
LAWYER: You must be very good at what you do. [This is your tip-off. Get ready.]
WITNESS: Well, like I said. I've been doing this for 23 years.
LAWYER: Your son must be very proud of you. [See how the lawyer is getting off track? An objection for relevance would set him straight, but he'd just find another way back into the conversational mode. When you hear this kind of stuff, get ready for the real objection coming up.]
WITNESS: Yes, he's thinking about going into nursing like me. We've been talking about where he might go to school. [No harm, yet, so hold off your objection, but be ready! The lawyer isn't the least bit interested in the nurse's son. He's only setting the stage for a conversational jump!]
LAWYER: I know how important it is to go to a good school. How does Dr. Dinkle feel about elective surgery?
There it is!
YOU: Objection, your Honor. Calls for speculation!
See?
You WILL encounter this.
You MUST know when and how to object.
You MUST know the grounds for your objections.
And, you MUST know that when the lawyer goes into his friendly, "didn't we all grow up in the same neighborhood" style of interviewing witnesses, there is a reason! He or she is setting the scene for a conversational jump. You'll stop paying close attention, or so the lawyer hopes. Then, when you're thinking about the parking meter outside or, God forbid, the pointless "conversation", BAM! The lawyer will ask a question you do NOT want answered!
In this case, the lawyer asked an impermissible question that seeks to know what the witness thinks someone else feels or thinks. It's a lot like hearsay. The good Dr. Dinkle is not in the courtroom. If the lawyer wants to know how Dr. Dinkle feels about elective surgery, the lawyer needs to get Dr. Dinkle on the stand and ask the question. The nurse lacks competence to tell the court what someone else feels or thinks. The objection is, "Calls for speculation!" The witness is being asked to speculate what someone else feels, thinks, or might do in a particular situation, etc. It violates the rules of evidence I want you to learn with my 24-hour step-by-step Jurisdictionary self-help course ... whether you have your own lawyer or not!
Every time you hear your opponent's lawyer get chummy with a witness and slide into what I call the "conversational mode", remember this: It ain't 'cause the lawyer wants to be friends with the witness! Nosiree! It's because the lawyer is setting you up for a conversational jump. There is some bit of improper testimony the lawyer needs to get in, and the lawyer knows you must first be lulled to sleep before the question is asked.
Do not go to sleep!
Do not get sidetracked into believing the "conversation" is anything more than a dodge!
I remember a deposition in Orlando some years ago. My client was the wife of an extremely wealthy Canadian, and the RCMP lawyers came down to find out what they could about her husband's business holdings. They didn't care a fig about how many fur coats or valuable paintings my client owned. The only thing they were interested in was her husband's business, who he had dealings with, etc. So, I did my best to drink strong, black coffee for three grueling days of cross-examination - during which the clever Canadian counsel drifted into conversational mode repeatedly, only so the lawyer could sneak in a question about my client's husband. The lawyer kept hoping I'd drift off in a daydream while my client was questioned about the Florida weather, the carat weight of her diamond earrings, or where she shopped when she and her husband were touring in Europe. Again and again I jumped in with both feet when the lawyer sneaked questions about the husband's conversations about his business, "Objection! Inquires into a confidential inter-spousal communication!"
How that lawyer hated me! You see, they don't have a confidential inter-spousal communication objection north of the border, but we do, and I had the pleasure of informing the Canadian counsel of that fact again and again and again. You see, the Canadian team did not come to Orlando to visit Mickey Mouse, nor did they come to chat about boutiques on the Riviera or the lodge in Maine. They came for one reason and one reason only: to learn what they could about my client's husband's business dealings. (He, too, was my client, by the way.)
Don't be taken in by friendly-sounding examinations!
There is nothing friendly about litigation!
The lawyer on the other side is out for money! You don't think lawyers go to court because they enjoy it more than playing golf or sailing on their yachts, do you? Never doubt that the only reason lawyers go into conversational mode is to lull you and the witness to sleep so the lawyer can get into the record some information that should never be allowed!
If you already have my complete 24-hour Jurisdictionary step-by-step self-help course, you know about objections and why they are essential to winning! You know when and how and why to make them.
Never count on the judge to control examinations! It isn't the judge's job. I've been in courts where the judge read the newspaper or fiddled with his laptop computer while stupid judge-fearing lawyers questioned witnesses and dared not disturb the black-robed gorilla on the bench.
Not me!
If the judge isn't paying attention, I speak to the problem and get the judge's attention! That's what we pay judges for, to pay attention and enforce the rules! You can't expect a judge to rule properly on your objections if he or she isn't listening!
So, that's today's lesson.
You must listen carefully!
You must keep the judge awake and attentive, even if it means getting the judge angry at you. He'll get over it. But, if you let the judge fall asleep at the switch, and you fall asleep at the switch, you can be absolutely certain the lawyer on the other side will take advantage of the opportunity!
Conversations have no place in the courtroom!
Either put a stop to them early with a relevance objection, or let the other side wander a bit while you perk up your ears and get ready for the reason that the lawyer is getting friendly with the witness.
There's always a reason.
Many lawyers are wonderful human beings.
Some aren't!
When the lawyer on the other side begins to chat with the witness about recipes for chocolate chip cookies, you know it's because the lawyer needs to sneak in some testimony that the rules of evidence forbid. The lawyer intends to break the rules!
Stay awake and be ready to object at the drop of a hat!
Otherwise you'll be like the stupid lawyers on TV who allow testimony to come in, object too late, and sheepishly stand idle as the judge instructs the jury, "Disregard the witness' last statement."
Balderdash!
Jurors don't disregard anything. They notice if your shoes are polished or if your shirt is wrinkled. And, they certainly don't erase from their minds the answers witnesses give to improper and unlawful questions that sneaky lawyers get in by doing the conversational jump.
Get used to it.
This is how the game of litigation is played to win!
This nasty sneak can happen at a deposition, evidentiary hearing, or at trial - any time witnesses are being examined by opposing counsel. I call it "The Conversational Jump".
You must stay keenly on your toes to catch it.
Consider the following:
LAWYER: So, Miss Witness, how long have you been working for Dr. Dinkle?
WITNESS: Let's see, now. It was just before my oldest boy graduated from high school. So. Let me think. That would be about 23 years ago.
LAWYER: And, what are your duties at Dr. Dinkle's office?
WITNESS: I prep the patients for surgery. I start the IV, if one is needed, take their blood pressure, hook up monitors, and generally get the patients ready for Dr. Dinkle.
LAWYER: You must be very good at what you do. [This is your tip-off. Get ready.]
WITNESS: Well, like I said. I've been doing this for 23 years.
LAWYER: Your son must be very proud of you. [See how the lawyer is getting off track? An objection for relevance would set him straight, but he'd just find another way back into the conversational mode. When you hear this kind of stuff, get ready for the real objection coming up.]
WITNESS: Yes, he's thinking about going into nursing like me. We've been talking about where he might go to school. [No harm, yet, so hold off your objection, but be ready! The lawyer isn't the least bit interested in the nurse's son. He's only setting the stage for a conversational jump!]
LAWYER: I know how important it is to go to a good school. How does Dr. Dinkle feel about elective surgery?
There it is!
YOU: Objection, your Honor. Calls for speculation!
See?
You WILL encounter this.
You MUST know when and how to object.
You MUST know the grounds for your objections.
And, you MUST know that when the lawyer goes into his friendly, "didn't we all grow up in the same neighborhood" style of interviewing witnesses, there is a reason! He or she is setting the scene for a conversational jump. You'll stop paying close attention, or so the lawyer hopes. Then, when you're thinking about the parking meter outside or, God forbid, the pointless "conversation", BAM! The lawyer will ask a question you do NOT want answered!
In this case, the lawyer asked an impermissible question that seeks to know what the witness thinks someone else feels or thinks. It's a lot like hearsay. The good Dr. Dinkle is not in the courtroom. If the lawyer wants to know how Dr. Dinkle feels about elective surgery, the lawyer needs to get Dr. Dinkle on the stand and ask the question. The nurse lacks competence to tell the court what someone else feels or thinks. The objection is, "Calls for speculation!" The witness is being asked to speculate what someone else feels, thinks, or might do in a particular situation, etc. It violates the rules of evidence I want you to learn with my 24-hour step-by-step Jurisdictionary self-help course ... whether you have your own lawyer or not!
Every time you hear your opponent's lawyer get chummy with a witness and slide into what I call the "conversational mode", remember this: It ain't 'cause the lawyer wants to be friends with the witness! Nosiree! It's because the lawyer is setting you up for a conversational jump. There is some bit of improper testimony the lawyer needs to get in, and the lawyer knows you must first be lulled to sleep before the question is asked.
Do not go to sleep!
Do not get sidetracked into believing the "conversation" is anything more than a dodge!
I remember a deposition in Orlando some years ago. My client was the wife of an extremely wealthy Canadian, and the RCMP lawyers came down to find out what they could about her husband's business holdings. They didn't care a fig about how many fur coats or valuable paintings my client owned. The only thing they were interested in was her husband's business, who he had dealings with, etc. So, I did my best to drink strong, black coffee for three grueling days of cross-examination - during which the clever Canadian counsel drifted into conversational mode repeatedly, only so the lawyer could sneak in a question about my client's husband. The lawyer kept hoping I'd drift off in a daydream while my client was questioned about the Florida weather, the carat weight of her diamond earrings, or where she shopped when she and her husband were touring in Europe. Again and again I jumped in with both feet when the lawyer sneaked questions about the husband's conversations about his business, "Objection! Inquires into a confidential inter-spousal communication!"
How that lawyer hated me! You see, they don't have a confidential inter-spousal communication objection north of the border, but we do, and I had the pleasure of informing the Canadian counsel of that fact again and again and again. You see, the Canadian team did not come to Orlando to visit Mickey Mouse, nor did they come to chat about boutiques on the Riviera or the lodge in Maine. They came for one reason and one reason only: to learn what they could about my client's husband's business dealings. (He, too, was my client, by the way.)
Don't be taken in by friendly-sounding examinations!
There is nothing friendly about litigation!
The lawyer on the other side is out for money! You don't think lawyers go to court because they enjoy it more than playing golf or sailing on their yachts, do you? Never doubt that the only reason lawyers go into conversational mode is to lull you and the witness to sleep so the lawyer can get into the record some information that should never be allowed!
If you already have my complete 24-hour Jurisdictionary step-by-step self-help course, you know about objections and why they are essential to winning! You know when and how and why to make them.
Never count on the judge to control examinations! It isn't the judge's job. I've been in courts where the judge read the newspaper or fiddled with his laptop computer while stupid judge-fearing lawyers questioned witnesses and dared not disturb the black-robed gorilla on the bench.
Not me!
If the judge isn't paying attention, I speak to the problem and get the judge's attention! That's what we pay judges for, to pay attention and enforce the rules! You can't expect a judge to rule properly on your objections if he or she isn't listening!
So, that's today's lesson.
You must listen carefully!
You must keep the judge awake and attentive, even if it means getting the judge angry at you. He'll get over it. But, if you let the judge fall asleep at the switch, and you fall asleep at the switch, you can be absolutely certain the lawyer on the other side will take advantage of the opportunity!
Conversations have no place in the courtroom!
Either put a stop to them early with a relevance objection, or let the other side wander a bit while you perk up your ears and get ready for the reason that the lawyer is getting friendly with the witness.
There's always a reason.
Many lawyers are wonderful human beings.
Some aren't!
When the lawyer on the other side begins to chat with the witness about recipes for chocolate chip cookies, you know it's because the lawyer needs to sneak in some testimony that the rules of evidence forbid. The lawyer intends to break the rules!
Stay awake and be ready to object at the drop of a hat!
Otherwise you'll be like the stupid lawyers on TV who allow testimony to come in, object too late, and sheepishly stand idle as the judge instructs the jury, "Disregard the witness' last statement."
Balderdash!
Jurors don't disregard anything. They notice if your shoes are polished or if your shirt is wrinkled. And, they certainly don't erase from their minds the answers witnesses give to improper and unlawful questions that sneaky lawyers get in by doing the conversational jump.
Get used to it.
This is how the game of litigation is played to win!
