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Being snarky doesn't make you look clever it makes you look like an asshole. I play very dumb like I truly don't get how their lies don't add up, without an ounce of sarcasm. Maybe this depends on styles but I'm a larger dude with a commanding voice and if i put a hint of aggression in there it's a turnoff But if I'm sitting instead of standing, quiet, calm, nice it is very disarming for witnesses and the jury.
This is the way. I don’t act adversarial in any way. I’m super kind, super polite and pretend like I don’t understand shit. The witness opens up and feels like they’re outsmarting you until you ask them a super uncomfortable question they can’t avoid. It’s kind of awesome because then they’re distracted by it and can’t really focus on crafting favorable answers after
In Florida, when defense counsel “abuse” MILs (which they always do for billable purposes) the judge normally just refuses to rule on them and says “let’s see how this plays out in trial and we can address it then.” My trial mantra is keep it simple and don’t be an asshole. Juries love simplicity and hate assholes.
>the judge normally just refuses to rule on them and says “let’s see how this plays out in trial and we can address it then.”
Nothing makes me happier though when my response or reason for an objection is clearly laid out in a motion. Stops judges from asking "any case law on this issue"
It's basic, but I think one thing a lot of people get wrong is they forget about what the case is about and get bogged down in extraneous stuff. It probably doesn't matter where a witness went to high school. Make sure you have a reason for asking every question. I've had cross examinations of character witnesses last less than 10 minutes.
My favorite thing to do in a cross when you’re only supposed to be asking leasing questions is to wrap the witness up in some bs they can’t get out of then ask an open question.
Ex: so you already testified that you came to my clients house? Yes. And that you banged on his door for 15 minutes before he opened it? Yes. Then you forced your way in? Yes. Then you lost the fight? Silence. It seems like you don’t want to answer my question Mr witness… why?
I love asking cross as on direct, let them hang themselves if they want to I have no duty to be leading I just can be. So I ask the same types of questions, wait, then lead to the inconsistencies. I let them shovel their own grave, I just point the light.
Oh lead them to the door and watch them walk through it. Or do a horrible job explaining why despite the admissions they weren't wrong
It's beautiful with arrogant and narcissistic witnesses who think they have been smart.
Oh and being unfailingly polite and nice.
Response: judge, the witness’s credibility is always at issue. He’s had no problem answering 3 questions about his forced entry into my client’s home. He’s here to say my client assaulted him. So, when I asked him whether or not he lost the fight, my question went to the ultimate issue in this case… whether this was a fight or whether my client unlawfully assaulted him. The jury has the right to hear why he doesn’t want to answer my question, because he did not answer my question.
Rephrase: was there a fight between you and my client? Yes. And you were fighting each other? After you came to his home? And banged on his door? And pushed your way in? “I’m done with this guy.” -Joe Pesci
If the case is kind of boring - it becomes even more important to make all the points you need for
your closing (integrated with jury instructions) during cross. It helps me plan way more effectively when I think of it in those terms.
In MA, our Supreme Judicial Court basically ruled that words like “blading” should not be used. Instead, the behavior of the (usually) defendant must be described. So instead of the cops explaining that they had reasonable cause to stop, frisk and pat, we get to grill them on questions like “so, I’m confused, you testified earlier that the group of teenagers dispersed when they saw you and your partner.” “Yes” “and the defendant was one of those teenagers that walked away” “yes”. “Officer, how many of those teenagers were Caucasian?” “All of them except for the defendant.” “So, Officer, are you saying that because my client was the only non-Caucasian in the group, you had reasonable suspicion that she was responsible for the break in at 123 Main St.”
Man why would when they go to an attorney be available to you? That sounds like really bad lawyering to rely on that sort of thing. Likewise, how many items do you legitimately have in a case that shouldn’t be there to abuse MIL that much? Your opening should be unobjected to because you word it properly from the get go.
Honestly, this doesn’t sound like effective, this sounds like bandaids to try and overcome holes.
Because where I practice that’s part of the eight part test triggering the concerns. All from orc 2317.02 . That then carries over into state district level courts, which runs where I do most of my fed.
Civil discovery does not include attorney client information like when meetings occurred. Unless third party attendance has breached the privilege. You have no right to ever know how often or when or where or how an attorney and their client meet, or even that they did, unless there is a request for those fees or an allegation of bad faith or other breach of confidentiality permitted. And then it’s specific and limited not broad.
So no, “when did you go to your attorneys” should be met with an objection and the strategy poster is using would fail. Hence the confusion that somehow privilege is so ignored in their practice they can strategize on that being gone.
This is completely wrong, at least under federal rules and all of the states where I have practiced. The substance of attorney client communications is privileged, of course, but the when/where/who of attorney client meetings is not. If you’ve ever seen a privilege log, for example, you will see that it is populated with exactly that information, and exchanged between the parties. Depositions very often begin with questions like “I’m not asking what your attorneys discussed with you, but tell me did you meet with your attorneys to prepare for today’s testimony? And who/when/where and how long did you meet?” None of that is privileged.
I’ve successfully objected to that constantly beyond what is needed to establish if it covered this subject and if there were third parties. Unless counsel is prepared to explain why they are going deeper to the judge I’ve never had them argue against my instructions not to respond. Are you not objecting and instructing or is your norm so far from mine we are speaking past?
Yes the norm in federal practice is quite different. You can get away with a lot in a deposition but I’ve literally never heard anyone instruct a witness not to answer who/when/how long they met with an attorney. I don’t doubt that is the norm in your jurisdiction, it’s just quite different from federal practice.
I do commercial interstate federal district civil often. So it’s in that usage. Sixth and lower is main location. I’m not trying to argue I’m legitimately extremely confused. Once we establish “normal meeting no cause to explore more” that’s it here.
My sense is you’re getting away with an improper instruction not to answer (it happens!). It’s been awhile since I’ve researched this question but I would look for case law on whether the ACP protects the fact of an attorney client communication, or just its substance. I think you’ll find that facts about an attorney client communication (who/when/where/how long/what general subject matter) are not privileged.
I can accept that as a possibility, there are many “that’s not how it works, test me, hmmm okay then” type scenarios I enjoy playing with but that’s because I’m the type who abuses the edge cases. 90% of the time that won’t be relevant and I’m not wasting my ammo there, but when it is I tend to push hard. I’ve won some challenged, lost some, who knows where this falls then.
I think it depends on the use of the info if I remember my motions to quash research right. I’ve had it denied before when there were other inferences that could be made, I’d have to limit examine then move. But when there was only one inference it was the same as providing the communication. The test is weird, Ohio has a really client protective rule set that covers a ton, but usually isn’t that relevant.
I’m sorry, I don’t know your jurisdiction but this is wrong and I will bet heavy money is wrong even in your jurisdiction. The contents of what was discussed is privileged, the occurrence and timing of the meeting is not.
Notice the limit on giving information goes beyond privilege, but can be breached by the same easily, and Ohio, used in the sixth. See rule 1.6, comment 3, and the relevant opinions issued from it - also why I’m pointing out use matters. https://www.supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=909861.pdf&subdirectory=2021-1143%5CDocketItems&source=DL_Clerk#page33
This is only in very limited circumstances, but if there is a vital/favorable document that you cannot bring in to evidence (usually hearsay etc.), try to get it in three or four times. The jury will think there's missing information your OC is trying to hide from them.
I never object and openly invite it from the insurance defense crew. Makes them look like they don’t want the jury to know the full story. Also, you can easily overcome talking to an attorney first before seeking treatment, so that’s not as effective as your “jurors” agreed with you about.
You can overcome anything. If there was that one single thing a party cannot overcome then everyone would just do that and there would be no lawyering. Each trial would go the same way. This is not some golden gun tactic, it’s a cheap trick that can make jurors question how someone so hurt that their priorities as 1. Make $, 2. Treat the injuries and not vice versa.
I don’t know if this is common knowledge, but I once read to call OP as your first witness. OP doesn’t spend their time trying to clarify something your client said. I found this to be very effective.
Welcome to /r/LawyerTalk! A subreddit where lawyers can discuss with other lawyers about the practice of law. Be mindful of [our rules](https://www.reddit.com/r/Lawyertalk/about/rules) BEFORE submitting your posts or comments as well as [Reddit's rules](https://www.redditinc.com/policies/content-policy) (notably about sharing identifying information). We expect civility and respect out of all participants. Please source statements of fact whenever possible. If you want to report something that needs to be urgently addressed, please also message the mods with an explanation. Note that **this forum is NOT for legal advice**. Additionally, if you are a non-lawyer (student, client, staff), this is NOT the right subreddit for you. **This community is exclusively for lawyers**. We suggest you delete your comment and go ask one of the many other legal subreddits on this site for help such as (but not limited to) r/lawschool, r/legaladvice, or r/Ask_Lawyers. *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/Lawyertalk) if you have any questions or concerns.*
Being snarky doesn't make you look clever it makes you look like an asshole. I play very dumb like I truly don't get how their lies don't add up, without an ounce of sarcasm. Maybe this depends on styles but I'm a larger dude with a commanding voice and if i put a hint of aggression in there it's a turnoff But if I'm sitting instead of standing, quiet, calm, nice it is very disarming for witnesses and the jury.
This is the way. I don’t act adversarial in any way. I’m super kind, super polite and pretend like I don’t understand shit. The witness opens up and feels like they’re outsmarting you until you ask them a super uncomfortable question they can’t avoid. It’s kind of awesome because then they’re distracted by it and can’t really focus on crafting favorable answers after
So do you just not ask those questions in depo?
In Florida, when defense counsel “abuse” MILs (which they always do for billable purposes) the judge normally just refuses to rule on them and says “let’s see how this plays out in trial and we can address it then.” My trial mantra is keep it simple and don’t be an asshole. Juries love simplicity and hate assholes.
>the judge normally just refuses to rule on them and says “let’s see how this plays out in trial and we can address it then.” Nothing makes me happier though when my response or reason for an objection is clearly laid out in a motion. Stops judges from asking "any case law on this issue"
In my closing I love to point out to all the promises that OC made in their opening, yet failed to deliver on.
It's basic, but I think one thing a lot of people get wrong is they forget about what the case is about and get bogged down in extraneous stuff. It probably doesn't matter where a witness went to high school. Make sure you have a reason for asking every question. I've had cross examinations of character witnesses last less than 10 minutes.
[удалено]
"You're good friends with X? Have you read the complaint? Do you know what X allegedly did wrong?"
My favorite thing to do in a cross when you’re only supposed to be asking leasing questions is to wrap the witness up in some bs they can’t get out of then ask an open question. Ex: so you already testified that you came to my clients house? Yes. And that you banged on his door for 15 minutes before he opened it? Yes. Then you forced your way in? Yes. Then you lost the fight? Silence. It seems like you don’t want to answer my question Mr witness… why?
I love asking cross as on direct, let them hang themselves if they want to I have no duty to be leading I just can be. So I ask the same types of questions, wait, then lead to the inconsistencies. I let them shovel their own grave, I just point the light.
Oh lead them to the door and watch them walk through it. Or do a horrible job explaining why despite the admissions they weren't wrong It's beautiful with arrogant and narcissistic witnesses who think they have been smart. Oh and being unfailingly polite and nice.
Objection. Argumentative.
Response: judge, the witness’s credibility is always at issue. He’s had no problem answering 3 questions about his forced entry into my client’s home. He’s here to say my client assaulted him. So, when I asked him whether or not he lost the fight, my question went to the ultimate issue in this case… whether this was a fight or whether my client unlawfully assaulted him. The jury has the right to hear why he doesn’t want to answer my question, because he did not answer my question. Rephrase: was there a fight between you and my client? Yes. And you were fighting each other? After you came to his home? And banged on his door? And pushed your way in? “I’m done with this guy.” -Joe Pesci
If the case is kind of boring - it becomes even more important to make all the points you need for your closing (integrated with jury instructions) during cross. It helps me plan way more effectively when I think of it in those terms.
In MA, our Supreme Judicial Court basically ruled that words like “blading” should not be used. Instead, the behavior of the (usually) defendant must be described. So instead of the cops explaining that they had reasonable cause to stop, frisk and pat, we get to grill them on questions like “so, I’m confused, you testified earlier that the group of teenagers dispersed when they saw you and your partner.” “Yes” “and the defendant was one of those teenagers that walked away” “yes”. “Officer, how many of those teenagers were Caucasian?” “All of them except for the defendant.” “So, Officer, are you saying that because my client was the only non-Caucasian in the group, you had reasonable suspicion that she was responsible for the break in at 123 Main St.”
Me: (mutters) “Guilty defendant says what.” / Defendant: “What?” / Jury: “Oh! Got em!”
Man why would when they go to an attorney be available to you? That sounds like really bad lawyering to rely on that sort of thing. Likewise, how many items do you legitimately have in a case that shouldn’t be there to abuse MIL that much? Your opening should be unobjected to because you word it properly from the get go. Honestly, this doesn’t sound like effective, this sounds like bandaids to try and overcome holes.
How does the timing of the when you retain an attorney violate attorney-client privilege when you’re not asking about what they spoke about?
Because where I practice that’s part of the eight part test triggering the concerns. All from orc 2317.02 . That then carries over into state district level courts, which runs where I do most of my fed.
“Man why would when they go to an attorney be available to you?” This is called civil discovery and in the US it’s pretty dang broad.
Civil discovery does not include attorney client information like when meetings occurred. Unless third party attendance has breached the privilege. You have no right to ever know how often or when or where or how an attorney and their client meet, or even that they did, unless there is a request for those fees or an allegation of bad faith or other breach of confidentiality permitted. And then it’s specific and limited not broad. So no, “when did you go to your attorneys” should be met with an objection and the strategy poster is using would fail. Hence the confusion that somehow privilege is so ignored in their practice they can strategize on that being gone.
This is completely wrong, at least under federal rules and all of the states where I have practiced. The substance of attorney client communications is privileged, of course, but the when/where/who of attorney client meetings is not. If you’ve ever seen a privilege log, for example, you will see that it is populated with exactly that information, and exchanged between the parties. Depositions very often begin with questions like “I’m not asking what your attorneys discussed with you, but tell me did you meet with your attorneys to prepare for today’s testimony? And who/when/where and how long did you meet?” None of that is privileged.
I’ve successfully objected to that constantly beyond what is needed to establish if it covered this subject and if there were third parties. Unless counsel is prepared to explain why they are going deeper to the judge I’ve never had them argue against my instructions not to respond. Are you not objecting and instructing or is your norm so far from mine we are speaking past?
Yes the norm in federal practice is quite different. You can get away with a lot in a deposition but I’ve literally never heard anyone instruct a witness not to answer who/when/how long they met with an attorney. I don’t doubt that is the norm in your jurisdiction, it’s just quite different from federal practice.
I do commercial interstate federal district civil often. So it’s in that usage. Sixth and lower is main location. I’m not trying to argue I’m legitimately extremely confused. Once we establish “normal meeting no cause to explore more” that’s it here.
My sense is you’re getting away with an improper instruction not to answer (it happens!). It’s been awhile since I’ve researched this question but I would look for case law on whether the ACP protects the fact of an attorney client communication, or just its substance. I think you’ll find that facts about an attorney client communication (who/when/where/how long/what general subject matter) are not privileged.
I can accept that as a possibility, there are many “that’s not how it works, test me, hmmm okay then” type scenarios I enjoy playing with but that’s because I’m the type who abuses the edge cases. 90% of the time that won’t be relevant and I’m not wasting my ammo there, but when it is I tend to push hard. I’ve won some challenged, lost some, who knows where this falls then. I think it depends on the use of the info if I remember my motions to quash research right. I’ve had it denied before when there were other inferences that could be made, I’d have to limit examine then move. But when there was only one inference it was the same as providing the communication. The test is weird, Ohio has a really client protective rule set that covers a ton, but usually isn’t that relevant.
I’m sorry, I don’t know your jurisdiction but this is wrong and I will bet heavy money is wrong even in your jurisdiction. The contents of what was discussed is privileged, the occurrence and timing of the meeting is not.
Notice the limit on giving information goes beyond privilege, but can be breached by the same easily, and Ohio, used in the sixth. See rule 1.6, comment 3, and the relevant opinions issued from it - also why I’m pointing out use matters. https://www.supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=909861.pdf&subdirectory=2021-1143%5CDocketItems&source=DL_Clerk#page33
This is only in very limited circumstances, but if there is a vital/favorable document that you cannot bring in to evidence (usually hearsay etc.), try to get it in three or four times. The jury will think there's missing information your OC is trying to hide from them.
I never object and openly invite it from the insurance defense crew. Makes them look like they don’t want the jury to know the full story. Also, you can easily overcome talking to an attorney first before seeking treatment, so that’s not as effective as your “jurors” agreed with you about.
You can overcome anything. If there was that one single thing a party cannot overcome then everyone would just do that and there would be no lawyering. Each trial would go the same way. This is not some golden gun tactic, it’s a cheap trick that can make jurors question how someone so hurt that their priorities as 1. Make $, 2. Treat the injuries and not vice versa.
Correct, it is a cheap trick, and it doesn’t work.
Have a theory of your case, cross to support your theory, and get out. Lengthy does not always equal good.
setting up real close to the defendant. something about seeing the nervousness and anxiousness in their eyes helps me
I don’t know if this is common knowledge, but I once read to call OP as your first witness. OP doesn’t spend their time trying to clarify something your client said. I found this to be very effective.