Short Take: Getting The Joke

A twit by a young lawyer, who shall remain nameless as the point of this post isn’t to shame him and he seems to otherwise be a good guy, caught my eye. It was obviously twitted for its humor:

A thing that really happened today:

Attorney: “And how do you know that?”

Witness: “I don’t know, hearsay around the neighborhood.”

Me: “Objection, hearsay.”

Judge: “Overruled. I’ll allow it.”

His point in twitting this wasn’t lost on me. He was telling a funny story about some absurd thing happening in court. Law, so dumb, right? Being a curmudgeon, I replied:

You asked an open-ended question like that on cross? What did you expect would happen?

He responded, “Come on, Scott, we’re all just having fun here. Carry on.” So it was just for lulz, which somehow makes ignorance funny because a bunch of insipid people don’t know any better, and are now just a wee bit stupider for the cheap laugh?

Maybe you can explain to me why it’s funny. I don’t find it funny in itself. I find it even less funny because it reflected legal incompetence. Some jokes are incredibly witty if you have sufficient knowledge to get why they’re funny. Other jokes are funny only when you’re so ignorant that you don’t grasp that it’s not a joke at all.

It was a poorly framed question for cross. The answer was not just responsive, but totally not hearsay. The objection was wrong. The ruling was right. But even if none of these things was so, I don’t get the joke. Apparently, I’m alone at this, as the twit has well over 5,000 likes at the moment, many of whom are from twitterers I know to be young lawyers. Some I thought to have potential to mature into competent lawyers.

And that’s what worries me. There are many kid jokes I don’t get, often pop culture references that are a few decades after my time. I realize this. I try not to be a wet blanket even though I have no clue what the joke is.

But cross-examination? I know it. I teach it. This was a demonstration of flagrant incompetence at every level. So maybe, this being twitter and it clearly being offered for the lulz, I should have kept my nose out and not been a cross pedant. So what if the question sucked? So what if the objection was wrong? So what if what I suspect to be the funny part of the joke was correct and, at least to me, not funny? Just because I don’t like a joke doesn’t mean I have to ruin it for others?

And indeed, that was the reaction, with one caveat. Not only did many other, though not all, baby lawyers find the joke funny, even if I didn’t, but most had no clue, not even an inkling, that the funny joke reflected flagrant legal incompetence. The first baby lawyer to reply wrote:

Pretty sure OC asked the open-ended question and he objected to the answer.

Yes, he did. This was a lawyer.*

In the old days, baby lawyers tried to hang out with experienced lawyers and soak in some knowledge. We hung around with our own for fun, but we learned from lawyers who knew what they were doing. We knew damn well that we didn’t have a clue.

There’s a exceptionally different atmosphere in social media. Whether it’s the false bravado of poseurs or the unwarranted self-esteem of youth, I don’t know. What I know is that baby lawyers are all over social media pontificating about stuff they know nothing about. They passed the bar? They’re geniuses. But have they tried a case? Can they try a case? Not if they don’t know how to craft a question on cross-examination. Not if they don’t know what’s objectionable hearsay and what’s not.

They are out there pontificating about the law to non-lawyers, to each other, to their professors and, ahem, to their far more experienced colleagues. They’re brash. They’re brazen. They’re bold. And they’re clueless, which is far more kind than calling them dangerous morons. They neither know it nor care that they are incompetent to try a case if they cannot perform the basic functions.

I hesitate to call them stupid, as stupid can’t be fixed, but they demonstrate neither the knowledge of law and procedure to show basic competence, nor awareness of their ignorance such that they want to learn. They’re full of hubris, passion and unwarranted self-esteem. They’re a few quarts low on knowledge, experience and skills.

But I don’t get the joke, so what do I know?

*In fairness, there were a great many baby lawyers, and others, offering their views. There’s no reason to expect non-lawyers to grasp what’s wrong here, and it’s somewhat understandable that they would find this funny, not realizing the answer that included the word “hearsay” wasn’t hearsay, such that the ruling would appear silly. In other words, if you had no legal knowledge, this could be funny for all the wrong reasons. But this was twitted by a lawyer, and many other baby lawyers thought it was funny, which was shocking.

48 thoughts on “Short Take: Getting The Joke

  1. D-Poll

    While the objection was totally wrong, it’s clear from the construction of the “joke” that this was direct, not cross, as the “Attorney” who asked the question is not the same as the “Me” who objected. So, basically, you wasted your opportunity to explain why the objection was inapposite by focusing on the problem of the question, which allows the joke-teller to easily dismiss it as not-his-fault. And rightly, since you didn’t actually say that the answer was responsive in that first reply! So you kind of blew the whole thing there.

    To address the substance of the “joke”, it seems that the lawyer in question was trying to characterise whatever was said before the question which he didn’t feel it necessary to describe as hearsay, not the answer itself. Which he totally failed to convey sensibly.

    1. SHG Post author

      It’s “clear”? Well, that changes everything. And your ability to know not only this clearly, but what happened beforehand, is miraculous. I only wish I had such superpowers. As for my not addressing the objection, I stopped after the first twit as my purpose wasn’t to engage in a twitstorm fight, but that wasn’t nearly as clear, obviously.

      1. D-Poll

        I wouldn’t call it a miracle, but I do have a carefully-honed skill for divining what people actually mean out of their inexact phrasing. Of course I can never be totally sure what he was thinking when he wrote that, but I thought that was too obvious to require Gertruding; I’m still very confident, though, that my characterisation (of ‘Attorney’ and ‘Me’ being two different people) is what the writer intended to convey. Native English speakers simply don’t, almost all the time, use that particular construction unless they intend the words to refer to two different “characters” — the only remotely common exception is when the writer intended to write in the third person but forgot halfway through, but this doesn’t match the typical pattern for that either.

        What you say in your last sentence was also quite clear, but doesn’t change the fact that the twit you did make didn’t convey the most important part of your complaint! Which is of course understandable, since you probably started with the first issue that came to mind as any normal person would. Nevertheless, the part of the criticism that made it to the hearer is a part he almost certainly laughed off as irrelevant if it indeed wasn’t him who asked the question, so the exchange became pointless. I didn’t mean to say that this was your fault as such, just that it was a thing that happened.

        1. B. McLeod

          I think it is not clear, but there seems a reasonable probability “Attorney” was opposing counsel to “Me” and had the witness on cross. If so, one lawyer was responsible for the inartful question and the other for the objection.

          Without more context, it is hard to know what if any damage was done. Assuming either attorney was actually thinking about some kind of trial objective as opposed to random examination and objections, it looks like “Attorney” was trying to bolster a fact through the witness, but largely failed because the witness revealed an absence of personal knowledge on whatever the point was. If a jury was present (unspecified in the anecdote) the inartful objection could still have had some impact in flagging the testimony as defective. (If I were sitting on a jury, I wouldn’t take an exchange like that as proving anything beyond the witness not really knowing if the answer was true).

          1. SHG Post author

            The objection should have been made to any answer to a question without an adequate foundation. You never ask how they know afterward. Then it’s too late. If the foundation isn’t laid, then it should never come in.

            1. B. McLeod

              Witnesses may throw in statements without foundation from time to time. Here, counsel could follow up with a question, “Mr. Witness do you know that?” (the actual issue) and if the answer is any variant of “I don’t” the court would likely sustain a motion to strike the answer under our state law version of Fed. R. Evid. 602.

            2. SHG Post author

              Do you mean when a witness answers a question but provides more info than the question asks for?

              Q: Do you know who shot Mr. Smith? [No objection, since the only question was “do you know,” not “who shot Mr. Smith.”]
              A: Yes, it was the defendant
              Q: How do you know that?
              A: Everybody says so.

              If the question is asked, without objection without foundation, would a judge go back a question or two and strike the testimony? That’s quite amazing.

            3. B. McLeod

              Yes, we can get the court to strike if, in close proximity to the original answer, the witness is shown to have actually had no basis in personal knowledge for the answer. At that point, the jury has also heard the witness admit that, so making the motion and obtaining the ruling really only reinforces that the answer had no value.

            4. SHG Post author

              Nice that your judges have low expectations. The weight is always subject to argument, but to strike an answer to an unobjected question is pretty special.

            5. B. McLeod

              The way I have always understood this practice (and why it also makes sense to me, beyond just that I am used to it) is that the absence of a foundation in personal knowledge is not always immediately apparent, in part because that foundation can be self-supplied by the witness. So if the witness (as in this example) says that he or she knew something, I think our courts would say you don’t have the objection at that point, but if it becomes apparent soon after that the witness in fact had no basis in knowledge for the testimony, the objection can and should be raised at that point, and our courts will strike.

              Based on your amazement, I glean that your New York courts require you to object to the volunteered information for lack of foundation when the witness speaks. What happens then? Do you judges strike that part of the answer if the foundation in personal knowledge has not been shown, or do you go into a voir dire of the witness at that point to sort the issue out?

            6. SHG Post author

              To be fair, I always look for foundation before I would ever let a witness testify as to substance without objection. And if the foundation was shaky, or a judge allowed unfounded testimony, I would rip it to shreds in cross rather than move to strike and use it to my advantage. Striking is a pointless remedy, as the bell’s already been rung and can’t be unrung. A curative instruction means little to a jury, but a sound thrashing allows me to turn their witness into mine to show the failure of proof.

            7. B. McLeod

              Almost always, yes. But striking can make a difference on appeal. A long time ago, a lawyer who was older than I was then, but not older than I am now, demonstrated to me the advantage of actually correcting the record.

            8. SHG Post author

              The question “do you know” is a yes or no question. The “what do you know” is a different question. The sequence for laying a foundation is this:

              Q. Do you know who shot Mr. Smith?
              A. Yes
              Q. How do you know that?
              A. I saw Mr. Smith get shot.
              Q. And who shot Mr. Smith?
              A. The defendant.

              The correct answer to “do you know” can’t be anything without an evidentiary foundation as you don’t know, but you believe. Only when you have an evidentiary foundation do you “know.”

    2. Miles

      It’s weird that you say that it’s clear. Being of a generation where words had definitions and clarity was generally considered a virtue, I try very hard to understand some of this gibberish. I read it once, twice, sometimes more. And still, I can’t quite figure out what they’re talking about.

      As for whether this is clearly direct, Scott’s twit said “cross.” He didn’t reply, “no, it wasn’t cross, it was direct.” Might that suggest it isn’t as clear as you believe? But even if it was direct, did he call a witness he never prepared so that he had no clue what the witness would say in response to his question? Any way you twist it, it’s massive incompetence. Your attempt to “explain” it merely raises different incompetence, but the one thing it assuredly is not is “clear.”

      1. SHG Post author

        A while back, I asked what it meant that I was a “get off my lawn” kinda guy. People seemed to say they understood it, but were completely incapable of explaining it in any cognizable fashion. I suspect the problem is that to younger people, words no longer have meaning, but feelings, and that’s close enough for them.

        1. Ross

          And it’s not just young lawyers that operate on feelings. I get all sorts of “I feel like we should do” crap from young IT analysts who have no clue what they are talking about, and suggest things that make no sense. I then have to hurt their feelings and deny their 30 seconds of lived experience by explaining reality. At least my young folks can’t destroy a life by getting it wrong.

          1. B. McLeod

            I have seen several surveys that have concluded more judges rule “intuitively” than “logically,” and there will likely be free-ranging feelz at work on most juries as well. It is part of how litigation works, irrespective of whether it should be.

        2. Roger

          Where I come from, being a “get off my lawn” kinda guy means you’re an old crank who yells about minor infractions that don’t cause you any harm while ignoring the joy the activity is giving the participants. I don’t know if you really are a get off my lawn guy, but I think that’s a fairly common understanding of what the phrase means and I suspect you know that, so I’m not sure where the confusion is. It’s not that different from your description of yourself as a curmudgeon.

          A curmudgeon might criticize someone for asking a poor question on cross when the context leaves it open as to whether the question came on cross or direct, then jump on someone else for being a mindreader when that person concludes that the question was asked on direct. He might then write a whole post on how the original tweet was an example of a baby lawyer making people dumber by spreading ignorance about the law when it’s not at all clear that the tweeter actually didn’t understand the issues. I suppose the author of the twit could have written:

          A thing that really happened today:

          Attorney: “And how do you know that?”

          Witness: “I don’t know, hearsay around the neighborhood.”

          Me: “Objection, may we approach the bench. Your honor, I move that the response to that question and the previous question be stricken and the jury be instructed to disregard. The answer to the last question shows that the answer to the previous question was based on hearsay. I did not object to those questions because they did not, on their face, call for hearsay and I did not have any reason to suspect they were based on hearsay until the last response. Taken together, the previous question called for hearsay and the last question called for indirect hearsay or hearsay by implication.”

          Judge: Overruled.

          In my jurisdiction, at least, that version would have reflected a correct understanding of the law, but it kinda takes the funny out of the joke.

          1. SHG Post author

            First, you have provided perhaps the only cogent response to what “get off my lawn means.” Whether it’s correct, or just what you think, I can’t say, and since it’s here rather than in the post that discussed it, people aren’t here to comment about it. In any event, it smells about right, given the tendency of Millennials to conflate the subjective and objective. Whether an infraction is minor or major is a matter of perspective, such that something I see as being serious is trivial to you. We each see the problem through our own lens of knowledge and experience, but Millennials have no sense that knowledge and experience contribute anything to one’s opinion.

            As for the legal part, you’re not a lawyer, your “Objection” was legal gibberish and the reason your comments are so often trashed is that non-lawyers are not entitled to make up legalish sounding shit and spew it.

            1. Sgt. Schultz

              Wait what? Are you trying to say there’s no objection where you tell the judge you fucked and failed to object to hearsay that came in before a foundation was laid and ask the judge to go back and strike it even though you didn’t object because how the hell should you know what to do?”

              On the bright side, he did say the objection would be overruled.

            2. SHG Post author

              I was out playing golf when the comment came in, and struggled with whether to approve it since the legal part was so dumb. But the “get off my lawn” part was interesting, and it was my turn to hit, so I let it go. I really hate non-lawyers spewing nonsense when other non-lawyers won’t realize it’s a non-lawyer spewing nonsense.

            3. Roger

              On the internet I may just be a dog, but in the great State of Missouri I am, in fact, a member of the bar who gets to spout my legal gibberish to judges. Maybe it’s just a sign of how weak the bench and bar are here in flyover country, but judges often manage to find their way to ruling for my clients. If it matters to you i’d be happy to send contact information that confirms this, but at the end of the day it probably doesn’t really matter. If what I say is gibberish it’ll still be gibberish whether or not I fooled the bar examiners into giving me a ticket to practice.

              I enjoy your takes, though I often think you jump to unwarranted conclusions that lead you to be unduly harsh. You don’t enjoy my takes. It’s your house, so it’s your rules. I’ll keep looking in the window but won’t try to come inside again. I still appreciate the view, even if I’m not too crazy about being yelled at to get off the lawn.

            4. SHG Post author

              To be honest, I believe you, and yet find it extremely surprising.

              By the way, before you judge me “unduly harsh,” consider what I have to put up with here. Those who have seen the inside of this nuthouse tell me they don’t how I tolerate any of this. It’s different on my side of the computer. I think I’m unduly soft, but then I know what the hundred comments a day I trash look like.

  2. David

    Seemed clear to me also, but original tweeter could have made it clearer by writing e.g. “Other Attorney” instead of just “Attorney”. Though the original twitter thread there was an explanation that it was opposing counsel who asked the question, prior to the above-noted comment about asking an open-ended question.

    1. SHG Post author

      Every aspect of that twit was legally bad. There’s no comfort to be had by “clarifying” (he did get a hundred plus lawyer “pedants” noting that it was just really bad lawyering) after the fact that Lawyer A wasn’t the only legal moron, but had help from Lawyer B.

      1. Sgt. Schultz

        It occurs to me reading through the comments that you asked whether the twit was funny at all, was funny coming from a lawyer and reflected a deeper issue with young lawyers spouting off legal nonsense on social media. Instead of dealing with these questions, your comments are nitpicking who said what to whom.

        The problem isn’t just the 5,000 lawyer and non-lawyer morons who retweeted this unfunny demonstration of incompetent lawyering, but your readers as well. I hate to tell you, but they haven’t demonstrated any more intelligence. This is one fucked up comment section.

        1. SHG Post author

          Frankly, I didn’t realize that until you now pointed it out, but yeah, these comments are complete crap. Another day when I ask myself why I bother.

          1. Billy Bob

            Yea, but that is what makes your loyal readership come back,… for more punishment. Punishment is rehabilitative, you understand, the very foundation of our criminal injustice system?

            Without punishment, there is no rehab, got it? You are performing an “invaluable” function without realizing. Rehabilitating the readership without sending us to prison. Ha. Just think of all the tax dollars saved the clueless pewblic! Who could care less for whatever reason, as long as it’s not them or a loved one.

            Baaadtards, all of them. And no, I’m not drunk, but workin’ on it, Jim Beam-breath. Johnny Walker Black goes down reeeal easy too.

  3. Troutwaxer

    In order to make me less stupid, if “Attorney” and “Me” are two different people, which of them did something wrong, and what did they do wrong?

    1. SHG Post author

      Both.

      1. You never ask an open ended question on cross examination, and
      2. if it was direct as some believe, it’s inconceivable to put a witness on the stand for direct who hasn’t been prepared and without knowing what his answers to questions will be.
      3. The answer wasn’t hearsay.
      4. The objection was silly and wrong, and should have been overruled.
      5. The judge’s decision overruling the objection was absolutely correct.

      You’re welcome.

        1. SHG Post author

          If you weren’t so adorable, I would have just told you to go to law school, which would have been mean since you wouldn’t learn the answers to these questions anyway.

          1. Guitardave

            FWIW, This NLM appreciates your answering TW,..so, thanks.

            >I think I’m unduly soft, but then I know what the hundred comments a day I trash look like.<

            100?… THAT sounds like a major fucking PITA. ( With that in mind, it almost makes me think i was a little hard on you with that pep talk i gave you a while back…almost :-)) There are options….I think it was Castaneda that said something about , "if you find yourself on a path without Heart, get the fuck off it"…or something like that…

            1. SHG Post author

              Picture a 1000-word-salad comment, largely off-topic, from some lunatic SJW or MRA, replete with jargonized nonsense, epithets, conspiracy theories, etc., and then multiply that by ten or 50, and that’s what I have to sift through to decide whether it’s something that illuminates or makes stupider. And I tend toward posting comments, even if I think they’re dumb, because I want to give people their opportunity to speak their mind.

              And then others grab hold of the worst, stupidest, aspects of dumb comments and do off on tangents and down the rabbit hole to the point that nothing about the comment thread reflects anything about the post. I write a post about hearsay, and suddenly it’s a thread about how to ethically code flying cars in Spain from the perspective of butchers in Iowa. This is what I get for doing SJ.

  4. Billy Bob

    What’s a curative instruction? Sounds like medical terminology to me. I thought this was a law blog! Something that comes with the bloody prescription medication?

    No matter how hard you legal folks try, you manage to distort the English language to your own ends and destinations. That’s why we
    civilians who are not privileged enough to attain bar-certification (?) Hate you so much.

    Despise might be more accurate. Just look at your gibberish, as Roger from the big MO points out. MO has 115 counties, each with its own “courthouse.” Imagine practicing law in that godforsaken place where there are more hogs and chickens than people. Been there, done that. Not a pretty picture for you bicoastal folks who may be used to civilized discourse and “rules of procedure.”

    In the big MO, rules of procedure are whatever the court deems appropriate under the cicumstsnces. If you catch my drift? SHG may object, but I suspect Roger is a brave man. They exist in the Show Me state, where we have a love-hate relationship.

    P.S., we’re back to bicoastal, Liz Warren-breath. Front page, today’s Sun. Globe.

  5. MelK

    As a non-lawyer: I read the joke. It’s a perfectly good example of “humor on the subject of lawyering”. And because it so perfect, it is easy to overlook or disbelieve the “this really happened”. We laugh in our ignorance.

    And that’s why this anecdote serves so well to teach exactly the points you’ve laid out. We’ll remember the joke, and if we paid attention, we’ll remember from you folks discussing it why it is an example of poor lawyering. Mind, there are so many other ways to fail that it won’t do us any good by itself, but one grain at a time the pothole gets filled.

    And lest you mistake this for a tummy-rub, it is both the article and the discussion among you actual lawyers that makes this post … well, at least feel worthwhile to me. This isn’t a teaching blog, and the post wasn’t made to educate us mutts. That it managed to do it anyway is just a plus.

Comments are closed.