The Form of the Question: Text, Materials and Exercises on the Evidentiary Rules of Form
By Daniel J. Capra and Ethan Greenberg
West Academic Publishing, 410 pages
Have you ever found yourself in a situation where your witness is being cross-examined and the questioner asks what you believe is an objectionable question? You rise to object and the judge asks, “What are the grounds for your objection?’” You stutter and withdraw your objection. Once you read “The Form of the Question,” you should never face that problem again; your eyes will be opened to the many possible objections you may have missed in the past, or failed to preserve for appeal. Whether an experienced litigator or a novice, “The Form of the Question” will help you hone your cross-examination skills.
This book guides you through the rule against leading questions, explaining the major exceptions to the rule. Other topics covered include the objections: asked and answered, calling for a narrative, argumentative, badgering, compound questions, badgering a witness, assuming a fact not in evidence, vague, beyond the scope, and motions to strike.
The book explains each rule, sets forth relevant case law, and provides actual trial transcripts which are dissected for the reader. It includes exercises that enable to reader to best develop or enhance their cross-examination skills.
In addition to providing the nuts and bolts of cross-examination, this book discusses the use and misuse of objections. It examines the reasons either to make or forgo objections. There is a discussion on when to make an objection in order to preserve the issue on appeal, how specific the objection must be and how to respond to an objection.
After reading this book you will gain a better understanding of the art of cross-examination. Your ability to identify a proper objection and evaluate whether or not you should raise the objection will be enhanced. This is a must-read for any litigator.
The authors, an academic and a former litigator and current judge, bring interesting perspectives and insights to the topic. No question is left unanswered—pun intended.
Daniel J. Capra is a professor at Fordham University School of Law School. Since 1996 he has served as Reporter for the Judicial Conference Advisory Committee on the Federal Rules of Evidence. Professor Capra is the author of numerous books and articles on the law of evidence, including “Evidence: The Objection Method” (with D. Prater, S. Saltzburg, and C. Arguello), “New York Evidence Handbook” (with M. Martin and F. Rossi), “Federal Rules of Evidence Manual” (with S. Saltzburg and M. Martin), and “Principles of Evidence” (with G. Lilly and S. Saltzburg).
Ethan Greenberg is an Acting Supreme Court Justice, in the Criminal Term in Bronx County and teaches evidence at Fordham and Cardoza Law Schools. He is the author of the book “Dred Scott and the Dangers of a Political Court.” Before his appointment to the bench, Judge Greenberg was a member of the firm of Morgan Lewis & Bockius, focusing chiefly on commercial litigation. Judge Greenberg is also a colleague of Judge Laura A. Ward, who authored this review.
Laura A. Ward is an Acting Supreme Court Justice, assigned to the Criminal Term in New York County.