A cross is supposed to be argumentative

Noah Schaffer, The Daily Record Newswire

I’ve been discussing with a colleague, who’s an outstanding plaintiffs’ trial lawyer, the common objection made during cross-examination that a question is “argumentative.”

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.

There are well over 30 common objections routinely made by name only, without citing a rule, such as: “foundation, leading, misstates evidence, assumes facts not in evidence, counsel is testifying, lack of personal knowledge, hearsay, privileged, best evidence,” etc.

There are some judges who require counsel to cite the rule of evidence for the objection, but the common practice is for the lawyer to make a generic objection such as “confusing, vague and ambiguous,” and the judge rules without discussion.

One of the more common of those objections is “argumentative.” Judges routinely sustain it because of their subjective interpretation of what is an appropriate cross, without reference to rules of evidence.

In the trial my friend and I were discussing, the judge sustains an objection of argumentative when it involves a direct challenge to the witness’s 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 it 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. What they really mean is that they find the question impolite, which is not a valid reason.

When the great white-collar criminal defense lawyer Edward Bennett Williams defended Gov. 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 exchange has been cited over and over as a classic example of a great cross. Here’s 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, in most trial courts, an objection of “argumentative” to the very first question would have been sustained because of the mistaken belief that cross-examination is not supposed to be cross or confrontational. Yet all the great textbooks on cross-examination and the famous trials involve exactly that kind of challenge.

It is my belief that 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. If they don’t like the way the question is asked, or see it as professionally improper or even simply too confrontational, they sustain vague objections such as “argumentative.”

My belief is that lawyers and judges have created an umbrella objection they label “argumentative” that they apply to a great garden variety of questions asked on cross-examination, particularly confrontational ones.

Tradition and the rules of cross-examination make arguing with the witness a basic function, not grounds per se for valid objections. I’m not talking about abusive demeanor. I’m talking about challenging the witness’s testimony as untrue for bias, lack of credibility, etc.

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 we need to get the message across to judges that challenging a witness about truthfulness is accepted cross-examination and not subject to an objection of “argumentative.”

The fact that 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.

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Paul N. Luvera is the founder of Luvera Law Firm in Seattle. He was elected to the American Trial Lawyers Association Hall of Fame in 2010.
 

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