Category Archives: Cross

“OBJECTION! ARGUMENTATIVE” IS THAT REALLY A VALID OBJECTION DURING CROSS EXAMINTION?

An  outstanding Seattle plaintiff’s trial lawyer  & I have been discussing the common objection made during cross examination that the question is “argumentative” because  of a trial we  have a common interest  in where  the  judge  sustains cross  examination questions that directly challenge the witnesses testimony as untruthful where the objection of “argumentative” is made. My position is that cross  examination is confrontational and a testing ground  for  witness credibility by challenging the witness. I believe that judges who sustain  an objection to the confrontation as  “argumentative” do not fully understand  the  function  of cross examination and the rules of evidence. I  decided to  share my viewpoint for your consideration.

To  start in my state, Washington, the rules of  evidence do not specify objections that are authorized. The rules cover admissibility.  It’s up to trial counsel to object relying upon a  rule  of  evidence as a basis for  the objection or rely upon cited case law. Yet, there are well over thirty common objections routinely made by a name only without citing  a rule. For example objections like: “foundation, leading, misstates evidence, assumes facts not in evidence, counsel is testifying, lack of personal knowledge, hearsay, privileged, best evidence” and on  and on. There are some judges  who require counsel to cite the rule of evidence for the objection, but in state court the common practice is for the lawyer to make a generic objection like “confusing, vague  and ambiguous” and  the judge rule without discussion.

One of the more common objections like these is  “argumentative.” Judges routinely sustain this objection because  of their subjective interpretation of  their personal  idea of what is  appropriate cross  examination without reference to rules  of  evidence.  In the trial my friend and  I are discussing the  judge sustains an objection of argumentative when it involves  a direct challenge to the witnesses  testimony as not being truthful.

Too many judges think that is improper, but is it really objectionable  cross  examination? For  example, is it against  the  rules of  evidence and cross  examination to say  to the  witness in a  professional manner: “Isn’t true  that  everything  you just said  is a total fabrication and you are a proven liar?” I say that is totally appropriate but a large number of judges would  label  it “argumentative” and incorrectly sustain the objection  because what  they really mean is that the judge finds  the question impolite and bad  manners  which is  not a valid reason.

When the great white collar criminal defense  lawyer Edward Bennett Williams defended Governor John Connolly charged in  connection with the famous Watergate  scandal many years ago he cross  examined his  accuser Jake Jacobson, a disbarred Texas lawyer. The cross examination has been cited  over  and over as a classic example of  great cross  examination. Here is the key section:

Q: Mr. Jacobson, you’re a liar, aren’t you, sir?

A: No, I’m not!

Q: Take a look at this document. It says “Statement of Jacob Jacobson” on the top. That’s you, isn’t it?

A: Yes.

Q: And that’s your signature on the bottom?

A: Yes.

Q: And the first sentence says, “I lied when I testified before the grand jury,” doesn’t it?

A: Yes.

Q: So you are a liar, aren’t you?

Now, I submit that in most trial courts in my state an objection: “argumentative” to the very first question would  have been sustained because of a mistaken belief that cross  examination is not supposed  to be cross or confrontational. Rather, a sort of logical discussion between  two people over a cup  of English tea. Yet all the great textbooks on cross  examination and the  famous trials involve exactly this kind  of challenge. It is my belief the majority of  lawyers and  judges are not really well versed in  the true purpose of  cross  examination and the actual rules  of  evidence.

Instead trial judges too often  exercise their discretion about their personal view of what  they think  is fair or not. If they don’t like the way the question is asked or think it is confrontational or see it as professionally improper they sustain vague objections like “argumentative.” My belief that lawyers and judges have commonly created an umbrella objection they label “argumentative” which they apply to a great  garden variety of questions asked on cross examination, but particularly confrontational questions .

However, tradition and the rules of cross  examination make , “arguing” with the witness  on cross a basic function of cross examination and not grounds per se for valid  objections. I’m  not talking about abusive demeanor.  I’m  talking about challenging the  witnesses  testimony as untrue for some reason including bias, lack of credibility and so on. What is impeachment by an inconsistent statement if it  is not “arguing” with the  witness about  which point  is correct? What happened to classic cross examination advice in  that situation: “OK Mr. Witness, was what you said then the lie or is the  lie what you have just testified  to? I’m not recommending the question, but I am defending the right  to ask it.

I think we have to accept the fact that “argumentative” will continue to be a vague catch all objection, but what we need to educate judges about is that challenging  a witnesses about truthfulness is accepted cross examination and not subject to an objection of argumentative. The fact  the witness is being confronted with a contrary position may fit Webster’s definition of arguing but  the rules  of  evidence on cross examination expect  and condone it. That’s  the real issue, we  need to educate judges that appropriate arguing with a witness  is  the  essence of cross  examination.

OUTLINE FOR CROSS EXAMINATION FOR WORKSITE INJURY

I think I’ve published outlines for cross examination in cases involving workplace injuries, but here’s one I may not have shared before.  This particular case involved a man who was part of a refinery maintenance crew that the refinery hired to shut down and maintain a refinery in Anacortes, Washington. There was a explosion and fire during the work which killed some and injured others. The normal bar  against  suing the owner,  Texaco, did  not apply because  they were not employed by Texaco but, rather were independent contractors.

The jury trial began in a small county after we declined offers of settlement. Detailed models of the refinery and the piping area involved had been created. We also reconstructed the area for video taping demonstrations. The demonstrative exhibits  were impressive. After opening statements and into our case in direct a settlement for many millions of dollars was agreed to and the  case ended so I was not able to try the following cross I had outlined. Here it is for what is worth as untested.

  WARNING-SAFETY CROSS EXAMINATION GENERAL OUTLINE

A.   COLLATERAL ATTACK

  • NOTE: SEE DEPO NOTES

 ELIMINATING OR MINIMIZING RISK OF SERIOUS INJURY OR DEATH 

  1. TRUE THAT TEXACO SHOULD HOLD PARAMOUNT THE SAFETY AND HEALTH OF IT’S WORKERS?
  2. Agree with the proposition that:

“Any risk of serious bodily injury or death is always unacceptable if reasonable means could have been usedto minimize or eliminate the danger?” 

  1. Agree that “it’s better to be safe then sorry?” 
  2. Agree one should first inspect for dangerous conditions?
  3. If a danger is discovered one should eliminate the hazard if reasonably possible
  4. ?If you can’t eliminate the danger then install protective devices around it if possible?
  5. If one can’t eliminate the danger or protect against it, then one must give warnings of the danger so people will know?

(1)        agree that “appearances are often deceiving” and workers might not recognize a danger unless warned about it?

(2)        an inadequate warning is no warning at all?

  1. True that the greater the risk of injury the greater the duty to act?

SAFETY HAZARDS TO WORKERS

  1. IT WOULD HAVE COST FAR LESS TO ELIMINATE HAZARDS OR INSTALL SAFETY DEVICES THEN TO PAY THE COST FOR SERIOUS INJURY
  2. LIFE IS TOO PRECIOUS TO EVER RISK IT WHEN THE HAZARD CAN BE AVOIDED?
  3. COST EFFECTIVE SAFETY MEASURES- COST OF INJURY vs COST OF   PROTECTION

(1)        IN AMERICA, WE CARE ABOUT OTHERS

(2)        IN AMERICA, WE DON’T WANT PEOPLE TO GET HURT

  1. ANALYZING WHAT IS REASONABLE IN ACCIDENT PREVENTION
  2. IN DECIDING WHAT’S REASONABLE IN ACCIDENT PREVENTION, WOULD EVALUATING THE RISK OF INJURY BE IMPORTANT?

(1)        THE RISK OR CHANCE OF IT HAPPENING SHOULD BE CONSIDERED?

  1. THE SERIOUSNESS OF THE HAZARD OR DANGER IS ALSO SOMETHING TO BE CONSIDERED?

(1)        A HAZARD THAT COULD RESULT IN DEATH IS MORE SERIOUS THEN ONE THAT MIGHT MAKE A SMALL BRUISE?

  1. THE COMPARISON OF BOTH OF THESE RISK & SERIOUSNESS OF HARM SHOULD BE MADE IN DECIDING WHAT IS REASONABLE BY WAY OF ACCIDENT PREVENTION?
  2. DO YOU AGREE THAT WHEN IT COMES TO PREVENTING SERIOUS INJURY OR DEATH FROM PREVENTABLE ACCIDENTS, TEXACO SHOULD PRACTICE THE POLICY:

“AN OUNCE OF PREVENTION IS WORTH A POUND OF CURE”

 AVAILABLE MEANS TO PREVENT ACCIDENT AND DEATH

  1.  PUT TAG ON SCAFFOLD
  2. TAPE AREA
  3. LEAVE OFFICE AND FIND NELSON
  4. GOOD INTENTIONS ARE NOT ENOUGH.

THE ROAD TO HELL IS PAVED WITH GOOD INTENTIONS

EVALUATING THE COST AND EFFORT INVOLVED TO ELIMINATE OR MINIMIZE THE HAZARD

  1.  AGREE THAT IN EVALUATING WHAT WAS REASONABLE TO HAVE ELIMINATED, PREVENTED OR MINIMIZED THE CHANCE OF THIS DEATH WE SHOULD CONSIDER:

(1)        IS THE PROPOSED ACCIDENT PREVENTION ACTION POSSIBLE TO DO?

(a)        WAS IT POSSIBLE TO DO?

(2)        IS IT A KNOWN AND ACCEPTED ACCIDENT PREVENTION METHOD? – USED BY OTHERS?

(a)        THIS IS A KNOWN AND ACCEPTED PRACTICE?

(3)        WHAT WOULD IT  COST?

a) NORMALLY A LOT LESS EXPENSIVE TO PREVENT ACCIDENTS THEN THE SUFFER INJURY OR DEATH?

(4)        HOW MUCH TIME DOES IT TAKE?

(5)        HOW DIFFICULT IS IT TO DO? – WHAT EFFORT IS REQUIRED?

(6)        IS A SUBSTANTIAL PERSONAL DANGER OR SACRIFICE IN CARRYING OUT THE SAFETY MEASURE?

COMPANY TOOK SAFETY FOR GRANTED 

  1. ISN’T IT TRUE THAT WORKERS HAVE THE RIGHT TO ASSUME THEY KNOW THEIR JOB AND WILL IT RIGHT?

(1)        THAT MEANS THEY HAVE RESPONSIBILITY AND ACCOUNTABILITY FOR HOW THEY DO THEIR JOB?

(a)        RESPONSIBILITY: YOU WOULD AGREE, IF SOMEONE HAS CONTROL OVER A WORK SITE  THEN THEY ARE RESPONSIBLE FOR THE SAFETY OF THOSE USING IT?

(b)        ACCOUNTABILITY: YOU WOULD ALSO AGREE, IF THEY DON’T ACT IN A REASONABLY RESPONSIBLE MANNER WITH REGARD TO PUBLIC SAFETY THEN THEY SHOULD BE ACCOUNTABLE FOR THE CONSEQUENCES LIKE EVERYONE ELSE IN THIS COUNTRY?

  1. Took for granted:

(1)        THE FACT IS BOTH TOOK THE RESPONSIBILITY FOR ACCIDENT PREVENTION  FOR GRANTED HERE DIDN’T THEY?

(b)        NEITHER POSTED WARNING SIGNS OR DID ANYTHING TO ADVISE THE WORKERS OF THE DANGER?

WORKERS HAVE RIGHT TO ASSUME OWNER WILL KEEP WORK SITE IN SAFE  CONDITION FOR WORKING

  1. HAVE RIGHT TO ASSUME WILL ADOPT POLICIES AND PROCEDURES TO ELIMINATE POTENTIAL HAZARDS OF SERIOUS INJURY?
  2. WORKERS HAVE RIGHT TO EXPECT THAT IF A POTENTIAL HAZARD OF SERIOUS HARM EXISTS ON TEXACO=S PROPERTY TEXACO WILL TAKE SAFETY ACTION

(1)        WHEN YOU FLY ON A COMMERCIAL AIRPLANE YOU DO NOT            HAVE TO CHECK THE TIRES, THE GAUGES OR ASK ABOUT THE TRAINING OF THE PILOT.

TEXACO WAS IN THE BEST POSITION TO KNOW 

  1. RESPONSIBILITY: IF YOU HAVE CONTROL OVER THE WORK SITE THEN YOU ARE RESPONSIBLE FOR THE SAFETY OF WORKERS ON THAT SITE?
  2. ACCOUNTABILITY: IF YOU FAIL TO FULFILL YOUR DUTY OF SAFETY THEN YOU ARE ACCOUNTABLE?
  3. NOT ACCEPTABLE FOR TEXACO TO FAIL IN IT=S DUTY TO PROVIDE A SAFE WORK SITE AND BLAME SOMEONE ELSE?
  4. IF A DRIVER=S AIR BAG FAILS TO WORK, THE MANUFACTURER SHOULDN=T BE ALLOWED TO SAY: “BUT IF HAD DRIVEN SAFELY YOU WOULD WOULDN=T NEED AN AIR BAG”

CONCLUSION

(See deposition for strong conclusion point)

 

A CROSS EXAMINATION SUGGESTION


We all have our own way of preparing for cross examination and for the style we adopt during the process. I thought I’d reprint a section of part of a cross examination preparation from a drug company products case to give you an general idea  of one of the steps I take in preparing for cross examination. This would represent part of a whole examination and would be part of the preparation. The actual cross examination could end up in outline form or it might be a stack of exhibits with tags containing ideas.

I’ve publishing it in it’s gross form before the additional editing and without explaining the significance of some of the outline as it’s simply an example to illustrate one way to prepare for cross examination. It would be reviewed and revised and finally end up in a brief outline format. This is how I start the process.

                                                   CROSS EXAM POINTS

COLLATERAL ATTACK

  1. lack of materials to base opinion upon
  2. how many hours to date
  3. number of times testified for plaintiffs vs
  4. total fees to date
  5. if a drug company ignores indications of risk and danger to children they would be wrong
  6. In the drug industry there are safety red lights or warnings aren’t there?
  7. wouldn’t you agree we have the right to trust pharmaceutical company to protect us from risk and danger?
  8. how much is hourly rate
  9. number of times testified for defendants
  10. relationship to: defense lawyers, experts etc.
  11. would you agree a drug company must hold the safety, health and welfare of the public paramount in selling their products

GENERAL POINTS

  1. FEES & RELATIONSHIP TO DEFENSE & ATTYS 
  2. TALKED TO ATTYS?? 
  3. PHARMACEUTICAL CO’S DUTY OF REASONABLE PRUDENCE 
  4. DUTY TO USE REASONABLE MEANS TO:

(1)       DISCOVER AND ELIMINATE PREVENTABLE RISK OF SEIZURE, BRAIN OR DEATH CAUSED BY SIDE EFFECT 

(2)       IF NOT PREVENTABLE, TO GIVE TIMELY & ADEQUATE WARNINGS 

(3)       TO ANALYZE, INVESTIGATE, AND TEST IT’S PRODUCTS 

(4)       TO STAY ABREAST OF MEDICAL RESEARCH, SCIENTIFIC KNOWLEDGE AND MEDICAL PUBLICATIONS ABOUT IT’S PRODUCTS 

  1. PHARMACEUTICAL CO’S DUTY TO WARN 
  2. ALWAYS WRONG TO DELIBERATELY WITHHOLD OR CONCEAL DANGERS BECAUSE OF FEAR OF HURTING SALES 
  3. COMPANY SHOULD: 

(1)       USE METHODS OF WARNING WHICH ARE EFFECTIVE 

(2)       USE WARNINGS WHICH SUFFICIENTLY INFORM GENERAL PRACTIONIER AS WELL AS SPECIALIST 

(3)       GIVE COMPLETE AND ACCURATE INFORMATION PROMPTLY 

(4)       GIVE WARNING ABOUT DANGEROUS ASPECTS OF IT’S PRODUCT EVEN AFTER IT HAS BEEN PUT ON THE MARKET

  1. DUTY ARISES WHENEVER REASONABLE PERSON USING PRODUCT WOULD WANT TO BE INFORMED OF RISK

 

(1)       DO YOU HAVE AN OPINION, BASED UPON REASONABLE PROBABILITY, WHETHER: 

(a)       THESE DEFENDANTS, KEY & SCHERING, UTILIZED METHODS OF WARNING PHYSICIANS LIKE DR. EDWARDS, WHICH WERE REASONABLY EFFECTIVE, TAKING INTO ACCOUNT, BOTH THE SERIOUSNESS OF THE DRUG’S SIDE EFFECTS, ADVERSE REACTIONS OR DANGERS AND THE DIFFICULTY INHERENT IN GIVING SUCH INFORMATION PHYSICIANS LIKE DR. EDWARDS WHO OUGHT TO BE SO INFOMRED? 

(b)       THESE DEFENDNATS GAVE TIMELY AND ADEQUATE WARNINGS TO THE MEDICAL PROFESSION OF THE DANGERS FROM THEIR PRODUCT THEO DUR? (Cirpo interaction, Saturation kinetics, Baldini rule re stat levels) 

(e)       THESE DEFENDANTS KNEW OR HAD REASON TO KNOW OF THESE DANGERS? 

  1. NATURE OF WARNINGS 
  2. WARNINGS: 

(1)       ARE A LAST RESORT – ELIMINATE DANGER IS FIRST STEP 

(2)       MUST COMMUNICATE SERIOUSNESS OF POTENTIAL HARM AND HOW TO AVOID IT 

(3)       SHOULD BE SUFFICIENTLY PROMINENT IN SIZE LOCATION AND OTHER FACTORS TO ASSURE IT WILL BE SEEN & READ 

Note: See boxed warnings from PDR for Schering products 

  1. PROMOTIONAL MATERIAL SHOULD INCLUDE DISCLOSURE AND WARNINGS RE SIDE EFFECTS, PRECAUTIONS & CONTRAINDICATIONS
  2.  
  3. COST vs RISK ANALYSIS
  4. Analyzing What is Reasonable 

(1)       SHOULD CONSIDER:

(a)       LIKELIHOOD OF INJURY HAPPENING 

(b)       SERIOUSNESS OF HARM IF IT DOES HAPPEN 

  1. Cost vs Benefit Analysis 

(1)       SHOULD CONSIDER: 

(a)       COST OF INFORMING OR WARNING

(b)       DIFFICULTY AND TIME INVOLVED IN INFORMING 

(c)       THE BENEFIT FROM GIVING THE WARNING 

 (d)      WHETHER METHOD OF INFORMING INVOLVES ACCEPTED PROCEDURE IN INDUSTRY 

Note: Dear Doctor letters common – Statgram used 

(e)       WHAT HARM CAUSED BY GIVING WARNING

  1. THE LIKELIHOOD OF THE HARM 
  2. THE SERIOUSNESS OF THE HARM COMPARED TO THE BENEFIT
  3. Analysis & Conclusion 

(1)       THE GREATER THE POTENTIAL HARM THE GREATER THE DUTY TO ACT

(a)       (Analogy) CYANIDE POISON PILLS IN SIX OUT OF HUNDREDS OF THOUSANDS OF BOTTLES OF SUDAFED 

(b)       IF ONLY ONE CHILD SAVED FROM SEIZURE, BRAIN INJURY OR DEATH IT’S WORTH THE TIME AND EXPENSE 

(2)       “OUNCE OF PREVENTION WORTH A POUND OF CURE” 

(3)       “BETTER TO BE SAFE THEN SORRY”

  1. DUTY TO ACT AND NOT CONCEAL
  2. PILOT OF 747 SEES FLASHING RED LIGHT: 

(1)       EXPECT HIM TO ACT IMMEDIATELY – NOT PUT TAPE OVER  LIGHT AND IGNORE?

(2)    RIGHT TO TRUST PHARMACEUTICAL COMPANIES 

  1. HAVE RIGHT TO EXPECT AND TRUST CO’S ACTING REASONABLY TO PROTECT PUBLIC FROM HARM 

(1)       PUBLIC DOESN’T INSPECT TIRES AND QUALIFICATIONS OF PILOT BEFORE FLYING – HAVE RIGHT TO TRUST PILOT & AIRPLANE COMPANY 

  1. FAULT CLAIMED 

SEE

 

  1. CLAIMS SHEET
  2. CLAIMS POSTER
  3. CONCEALMENT POSTER
  4. BOCCI TIME LINE POSTER
  5. ATTACK & DEFENSE SHEET
  6. DEPOSITION EXHIBITS
  7. POINTS:

(1)          SENT OUT 3 STATGRAMS WITHIN A WEEK AFTER PRIME TIME – NOT ONE DEAR DOCTOR LETTER

(2)          DIDN’T HAVE TO WAIT – NO FDA REQUIREMENT

(3)          PAST FACTS RE KEY MARKETING 

  1. CROSS EXAM NOTEBOOK TABS 
  2. Tab 1: DRUG MANUF. CODE OF FAIR PRACTICES
  3. Tab 2: SEE REVISED PDR RE “FOOD MAY INFLUENCE” SEE Tab 5 FOR AD – “NOT SIGNIFICANTLY AFFECTED BY”
  4. Tab 6: “LOT OF REASONS” – $35 MILLION Tab 10 memo
  5. Tab 8: FISONS
  6. Tab 9: 10/30/87 MEMO WITH ARTICLES
  7. Tab 12: NOTICE OF ADVERSE – SEE AD AFTER LETTER
  8. Tab 14: EX. 30
  9. Tab 15: McEWEN CASE
  10. Tab 16: ALLERGY ARTICLE
  11. Tab 19: FDA BURN OUT
  12. Tab 26: IF SEEING MORE THEN ONE DOCTOR
  13. Tab 27: NEW ENGLAND ARTICLE

PHYSCIAN QUESTION:

1.       IF A DRUG CO DISCOVERS IMPORTANT INFORMATION RELATING TO THE SAFETY RISKS OF A DRUG YOU ARE PRESCIBING TO PATIENTS A DO YOU EXPECT THEM TO NOTIFY YOU OF THE NEW DANGERS CLEARLY & PROMPTLY? WHY?