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.

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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  1. Pingback: Objection! Argumentative! | The Researching Paralegal

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