The Legal Advocate

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July Volunteer Faculty Spotlight

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As part of NITA’s efforts to recognize our vast volunteer community, we have initiated a monthly volunteer faculty spotlight. Recommendations come from our programs department staff, who work closely with our volunteers on our public, public service, and custom programs. NITA is pleased to announce Mark Olson as our July Volunteer Faculty Spotlight. Here are just some of the comments our staff used to describe Mark’s work with NITA:

He has made his time available to us every month and has also taken on multiple online programs in a month. Each time he does a program, he comes in with smiles and does a wonderful job getting the participants engaged. He is very informative and gives them great critiques. He really tries to get to know who each attorney is by looking them up prior to the program. He really goes above and beyond.

When asked about how he was introduced to NITA, why he continues to teach for us and a little background of his teaching career, he had this to say:

In the 1990s, our Firm, Oppenheimer Wolff & Donnelly, retained NITA to assist in training our litigation associates in the area of Trial Skills. When I became the Litigation Associate Training Director in the early 2000s, I again reached out to NITA for assistance, and we successfully presented several training programs for our associates. During those sessions, I met Professor John Sonsteng, who asked me to be part of his NITA program at Mitchell Hamline Law School.

I have a passion for working with young and inexperienced lawyers to help them develop trial and litigation skills so that they can be more confident and so that they are equipped to effectively represent their clients. Because I was “thrown in the deep end of the pool” as a young associate and had to “sink or swim,” I vowed that if I ever had the chance to work with young lawyers to help them develop skills so they would be able to navigate the deep end of the pool, I would contribute whatever I could to achieve that goal.

I was an adjunct professor at my alma mater, the University of Minnesota Law School in the late 1980s where I taught Appellate Advocacy. Later, in the mid-2000s, I began teaching Trial Advocacy and Advanced Advocacy classes at the U’s Law School and also at William Mitchell Law School. In 2006, a couple of NITA Program Directors―John Sonsteng, Jay Leach, and Henry Brown―took a chance and invited a “rookie” NITA instructor to be part of their Trial Skills programs in San Francisco and St. Paul―and, as they say, “the rest is history.” Through their mentoring and tutelage (and patience), I have been blessed to be part of the NITA family for the past twelve years. I have taught public programs in Trial Skills, Deposition Skills, and Legal Strategy around the country and also several custom programs at law firms in the same areas. In 2014, I started teaching the Online Deposition Skills program and continue to do that today.

We want to thank Mark for his continued passion and support of NITA’s mission. With 800+ faculty members and over 20,000 hours volunteered each year, we could not do what we do without people like Mark Olson.

Welcome the Newest NITA Advocates

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NITA is proud to announce the 2018 2nd quarter recipients of the Advocate Designation. These designations are awarded to a person who has taken a well-rounded set of courses, proving they are serious about trial advocacy.

advocates_header copy

  • Jeffrey Dornbos | Smith Haughey Rice & Roegge
  • Andrew A. Shank | Eller & Detrich PC
  • Katherine Zimmerman | Womble Bond Dickinson
  • Ignacio Garcia | BGFA
  • Marilu Merzthal Shigyo | Rubio Leguia Normand SCRL
  • Christopher M Humes | Brownstein Hyatt et al

If you have any questions on how you can receive the NITA Advocate or NITA Master Advocate Designation, please review the information on our Advocate Designations page, or email customerservice@nita.org.

Why Do Attorneys Ask Expert Witnesses for an Opinion “to a Reasonable Degree of Certainty”?

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written by NITA guest bloggers Iva Čechráková and Michael J. Dale

“Expert, do you have an opinion that you can state with a reasonable degree of certainty?” These are most often the exact words attorneys employ when examining expert witnesses. This also is the form of question the majority of trial advocacy text authors recommend as the appropriate or traditional question when examining an expert witness, but not all of them provide a reason why. Oddly, most authors do not explain why.

The complexity of modern society and the resulting expansion in scientific and other sources of technical knowledge increase the likelihood that expert witnesses will testify when disputes are litigated. When an issue is beyond the knowledge of a lay witness, an expert must be called to testify. The expert’s area of knowledge, governed by the Federal Rules of Evidence, may be based upon education, specialized training, and/or experience[1]. Thus, given this background, the expert can help the trier of fact understand the evidence and determine a fact in issue. Under Federal Rule of Evidence 702, when a qualified expert testifies, the testimony may be in the form of opinion or otherwise if the testimony will be helpful.

Expert witnesses occupy a special place at trial and, thus, advocates must bring all of their skills to the task of properly questioning them. Simply asking the expert whether she has an opinion might arguably be weak advocacy and less persuasive than the traditional method. Many people have opinions. But, many of their opinions may not carry much weight. One author states that “expert opinions are the primary―perhaps the only―reason for calling the expert to testify [. . .] and, thus, their disclosure should be the most dramatic and most heightened portion of the direct[2].” Therefore, the advocate should attract the attention of the jury and “choose words that will unequivocally signal that an important answer is forthcoming[3].”

Therefore, the attorney might use stronger, more compelling phrases to persuade jurors and the judge whenever possible. The commonly used language “to a reasonable degree of scientific certainty” most likely represents such language based on the frequency of its use. What is unclear about this phrase is its meaning and the real legal or evidentiary reason why the advocates phrase the question in this specific way. This article attempts to answer this question.

Some authors describe it as a traditional formula[4]. But what is the source of the current formulation? The early common law required that the expert could provide her opinion only if she was able to say the magical words of the traditional formula[5]. Only such an opinion was admissible. The Federal Rules of Evidence do not adopt that view, and many jurisdictions no longer require it. Many jurisdictions now permit experts to testify to possibilities[6]. However, one might conclude that the traditional formula represents the desired stronger and more persuasive statement because the only requirement once relevance is established is that the expert, like other witnesses, may not speculate or guess[7].

Other authors conclude that this phrase adds nothing of legal significance and is not required by the rules of evidence or case law[8]. Thus, unless the judge requires the traditional formula, some suggest that it is best to avoid it[9]. However, these conclusions do not answer the question of whether there is a jurisprudential and evidentiary reason for its use.

The phrase originated in Chicago prior to 1930 as a unique local usage, but the precise origin cannot be determined[10]. It appears that the phrase was created by the efforts of Illinois attorneys to accommodate two inconsistent rules of evidence that were adopted almost at the same time by the Illinois Supreme Court: the Reasonable Certainty Rule and the Ultimate Issue Rule[11]. The Reasonable Certainty Rule prohibited experts from expressing speculative opinions about damages, and it first acted as a rule of substantive proof to establish future damages. Also, it was interpreted to apply to the admissibility of expert medical opinion when testifying about future illnesses or conditions[12]. On the other hand, the Ultimate Issue Rule prohibited experts from usurping the province of the jury by expressing definitive opinions on the ultimate fact[13]. For these reasons, experts were required to express an opinion with a “reasonable certainty,” but were prohibited from expressing an opinion with a degree of certainty that exceeded the hypothetical[14]. The analysis of Illinois cases is consistent with the hypothesis that the phrase originated through the efforts of attorneys to offset the speculative quality of opinions[15]. The attorneys in Chicago began using the phrase frequently, and Irving Goldstein incorporated it in his 1935 manual, Trial Technique[16]. The phrase quickly found its way into nearly every American jurisdiction without regard to its peculiar local origin[17].

Some jurisdictions incorporated the phrase into legal doctrine and attributed legal significance to the phrase, viewing it as required for purposes of admissibility or as a standard of proof[18]. It “resulted from the judiciary’s uncritical acceptance of attorney’s usage without conscious consideration of its meaning[19].”

Even though this phrase has achieved a certain status, it appears that the phrase lacks a definite and ascertainable meaning. The phrase apparently has different meanings in different jurisdictions and in different contexts, generating substantial confusion among experts, legal professionals, and courts. Some experts suggest that the phrase is a legal term of art meaning “more probable than not”—or a 51 percent probability[20]. Others assume that it means something more than a probability—almost a near absolute certainty[21]. Legal professionals use this phrase, but they have not achieved any consensus as to the meaning of the phrase. Some courts interpret it as a “substantive comment about the likelihood that a proposition is true[22].” A majority of courts equate it with a preponderance of the evidence standard[23]. Courts in some jurisdictions interpret it as more demanding, perhaps even approaching the beyond a reasonable doubt standard[24]. One hint of a solution to the evidentiary standard inconsistency could be the recent decision in United States v. Snider[25], where a federal district court in Oregon noted that the court did not ask the experts whether they could express their opinions to a “reasonable degree of medical certainty,” as the question is usually posed in civil cases as a reference to the preponderance standard because in criminal cases this requirement can create confusion about the burden of proof[26].

This confusion results from the incoherence of the phrase itself. The noun “certainty” implies it is the absolute, while the adjective “reasonable” essentially negates the absolute implication of “certainty[27].” While texts on trial advocacy technique reflect the extensive use of the phrase, neither the texts nor the early reported decisions suggest that the phrase has any legal significance. In none of the opinions did the court indicate that this particular phrase was essential or even helpful[28].

In the 1969 case of Boose v. Digate, an Illinois court declared that an expression of reasonable degree of certainty does not relate to substantive certainty about the likelihood of the future condition, but rather to “the general consensus of recognized medical thought and opinion concerning the probabilities” The phrase simply represented an appropriate locution for introducing substantial evidence. The only reasonable explanation for the spread of this phrase are trial advocacy texts and, most specifically, the Goldstein text, Trial Technique[31]. Prior to its publication, the phrase did not appear in a single opinion outside of Illinois[32]. However, the author did not explain that this phrase represented local usage in Illinois courts. Thus, it is understandable that attorneys throughout the United States, without knowledge of this local custom, would assume that the phrase was essential and required.

Interestingly, based on the National Commission on Forensic Science’s recommendations regarding the Testimony Using the Term “Reasonable Scientific Certainty,” it is certain that the phrase was not initiated by physicians[33]. In its recommendations, the Commission stated that “medical professionals and other scientists do not routinely express opinions or conclusions ‘to a reasonable scientific certainty’ outside of the courts[34].” “Such terms have no scientific meaning and may mislead factfinders when deciding whether guilt has been proved beyond a reasonable doubt[35].” Significantly, the Commission commented that there is no common definition as to what threshold establishes certainty[36].

While use of the phrase has become custom and practice, the modern view recognizes that the term is not required. In People v. Ramirez[37], the Colorado Supreme Court found the phrase outdated and inappropriate for determining the admissibility of expert testimony under the current standard codified in Colorado Rules of Evidence[38]. Thus, the court overruled the cases to the extent they approved this standard[39]. A recent decision in West Virginia, Edwards v. McElliotts Trucking, LLC[40], clarifies that the use of the phrase “by experts in court contributes to false sense of confidence in expert opinion and sows confusion about the ‘objectivity’ of the expert’s process[41].” The court also held that “because the phrase has no relation to scientific inquiry and no stable meaning in the law, resort to it only serves to obscure the reliability of the expert’s opinion[42].” Furthermore, the United States Department of Justice has recommended that its attorneys refrain from its use in court[43].

Nevertheless, courts continue to require some level of certitude by experts. Thus, experts can express opinions that a fact was “more likely than not” or “probably” true, but they cannot base their opinions on a mere “possibility” or “speculation” that a fact “might” or “could” be true[44]. Still, courts in several jurisdictions refer to “reasonable medical certainty or probability” without clarifying whether the terms were meant to be synonymous or to represent distinct alternative criteria[45]. On the other hand, courts in most recent cases have held that the experts are not required to phrase their opinion by using the traditional formula and may convey their testimony in a language, which sufficiently shows and persuades the judge that she reached her own best judgment to a reasonable certainty even if not using these exact words[46].

In conclusion, there is not a consistent definition of what these words mean, and, thus, it does not follow that experts should be required to recognize and express their opinions in that way. There is no clear answer provided by case law or secondary sources that demonstrate whether this phrase equates to “more probable than not standard” or “beyond a reasonable doubt standard.” In addition, the United States District Court for the Southern District of West Virginia stated in the footnote to Edwards v. McElliotts Trucking LLC[47] that “the origin story of the phrase reveals its arbitrary birth, unthinking adoption, and most importantly, its vacuity of meaning. Accordingly, it has no place in the admissibility analysis[48].”

Therefore, if lawyers are to consider continuing to use the phrase “to a reasonable degree of certainty,” they should use it because it is more persuasive, the judge expects it, or it is local practice, but not because there is some jurisprudential basis for its use.

Iva Čechráková is a graduate in law from Charles University, Prague, Czech Republic, and a dual degree graduate of Nova Southeastern University College of Law, where she was until recently a research assistant to Professor Michael J. Dale. She can be reached at ivacechrakova@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at dalem@nova.edu. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here.

To read more articles by Professor Dale’s research assistants at Nova Southeastern, click here.


[1] Fed. R. Evid. 702.
[2] L. TIMOTHY PERRIN, H. MITCHELL CALDWELL & CAROL A. CHASE, THE ART & SCIENCE OF TRIAL ADVOCACY 396 (2003).
[3] Id.
[4] RONALD L. CARLSON & EDWARD J. IMWINKELRIED, DYNAMICS OF TRIAL PRACTICE: PROBLEMS AND MATERIALS 342 (4th ed. 2010); see also DAVID D. MALONE & PAUL J. ZWIER, EFFECTIVE EXPERT TESTIMONY 91 (3rd ed. 2014) (the authors indicate that the counsel should make the presentation of the expert’s opinion dramatic, ask in formal language to call the juror’s attention to it and to assure the judge that the counsel followed the legal formalities because the formal language gives it weight and the terminology “reasonable degree of certainty” is required in almost identical language in many jurisdictions). [Note: However, the authors do not mention any specific rule, case law or the reason for this use.]
[5] CARLSON & IMWINKELRIED, supra note 4, at 342; see also State v. Holt, 246 N.E.2d 365 (Ohio 1969) (holding that “. . . where in answer to question whether, as result of the analysis, he had an opinion ‘based on reasonable scientific certainty as to the’ [. . .], his response was that ‘the samples are similar and are likely to be from the same source,’ such response fell short of the legal requirement of ‘reasonable certainty’ or ‘probability’, so that admission in evidence of such answer over objection constituted prejudicial error.”) [Note: State v. Holt was later negatively impacted by State v. Brenner, 533 N.E.2d 701 (Ohio 1988).]
[6] Dupree v. County of Cook, 677 N.E.2d 1303 (1997); United States v. Davis, 44 M.J. 13, 16 (C.A.A.F. 1996). However, the opinion can be vulnerable to effective cross-examination because the advocate can compel the expert to admit that the opinion is a mere possibility, not a probability or a certainty and may convince the trier of the fact that it is a speculative opinion and the other party does not met its burden of proof.
[7] CARLSON & IMWINKELRIED, supra note 4, at 342.
[8] THOMAS A. MAUET, TRIAL, STRATEGY, SKILLS, AND THE NEW POWER OF PERSUASION 410 (2nd ed. 2009); see also STEVEN LUBET & J.C. LORE, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 236-37 (5th ed. 2015) (the authors are not expressly saying that the traditional formula is a proper way to ask an expert about her opinion but call for testimony in straightforward, unequivocal terms that emphasizes accuracy and certainty in order to prevent miscommunication and loss of expert’s credibility); see also STEVEN LUBET, EXPERT TESTIMONY: A GUIDE FOR EXPERT WITNESSES AND THE LAWYERS WHO EXAMINE THEM 8 (1998) (the author in the earlier edition of the text emphasizes that in most jurisdictions an expert’s opinion must be stated to a “reasonable degree of certainty” even though he admits that the term is difficult to define may be ambiguous or an oxymoron, and thus, he asks a variety of questions such as, “What is a reasonable degree of certainty?” or “How do you know when you have it?” and answers that most likely the best approach is self-referential; however, he also warns that “reasonable certainty” is merely the minimum level of confidence required for the expression of an opinion in court).
[9] MAUET, supra note 8, at 410.
[10] Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About “Reasonable Medical Certainty,” 57 MD. L. REV. 380, 381 (1998).
[11] Id. at 406–30.
[12] Id.
[13] Id.
[14] Id. at 410–14.
[15] Philadelphia & Reading Coal & Iron Co. v. Industrial Comm’n, 165 N.E. 161, 162 (Ill. 1929); Armour Grain Co. v. Industrial Comm’n, 153 N.E. 699, 701 (Ill. 1926); Benton Coal Mining Co. v. Industrial Comm’n, 151 N.E. 520, 525 (Ill. 1926) (these three cases represent worker’s compensation cases); Herbst v. Levy, 279 Ill. App. 353, 358 (App. Ct. 1935) (this case evidences that this phrase was used not only in worker’s compensation claims but also in different practices―in this case, the expert witness was asked “whether he could determine with reasonable scientific certainty the cause of the capsizing of the boat”).
[16] Lewin, supra note 10, at 425–54, 456–57.
[17] In Ohio, New York, Arizona, Delaware, Florida, Michigan, Hawaii, California, and Montana, the phrase entered the vocabulary of attorneys with only mild endorsement from the courts. On the other hand, in Washington, Minnesota, Missouri, Wisconsin, Pennsylvania, New Mexico, Tennessee, Oregon, Colorado, and South Carolina, the phrase received a strong endorsement from the courts.
[18] Twin City Plaza, Inc. v. Central Surety & Ins. Corp., 409 F.2d 1195, 1203 (8th Cir. 1969) (holding that if the witness possesses extraordinary training to aid laypersons in determining facts and if he bases his answer upon what he believes to be reasonable scientific or engineering certainty, generally the evidence should be admitted, subject, of course, to the cross-examination of the adversary); Penteluk v. Stark, 244 Minn. 337, 340 (Minn. 1955) (the court incorporated the phrase in its description of the standard of proof of permanent injuries, stating that “the rule is that for a person to recover for permanent injuries it must appear to a reasonable medical certainty that there will be permanent injury”). Later Minnesota courts held that it would be also satisfied by testimony expressed in terms of probability.
[19] Lewin, supra note 10, at 396.
[20] Id. at 402; see also Douglas Danner & Elliot L. Sagall, Medicolegal Causation: A Source of Professional Misunderstanding, 3 AM. J.L. & MED. 303, 305 (1977).
[21] State v. Austin, 368 N.E.2d 59, 61, 66–67 (Ohio Ct. App. 1976).
[22] Lewin, supra note 10, at 403–04.
[23] Dallas v. Burlington N., Inc., 689 P.2d 273, 277 (Mont. 1984); Wheeler v. Central Vt. Med. Ctr., Inc., 582 A.2d 165, 170 (Vt. 1990).
[24] Cf. Hashimoto v. Marathon Pipe Line Co., 767 P.2d 158, 165–67 (Wyo. 1989).
[25] 180 F. Supp. 3d 780, 795, 798 (D. Or. 2016), appeal dismissed (Sept. 7, 2016).
[26] Id.
[27]Edwards v. McElliotts Trucking, LLC, 2017 WL 3611848, at *3, 5 (S.D.W. Va. Aug. 22, 2017) (reference to footnote 2); see also Lewin, supra note 10, at 400–01.
[28] Not until 1937 decision in Shell Petroleum Corp. v. Industrial Commission, 10 N.E.2d 352 (Ill. 1937), where the court attached significance to the failure of a witness to state his opinion with reasonable medical certainty. However, the Court did not provide any reason why it was so crucial to express the opinion in this way or explain the meaning of the phrase.
[29] 246 N.E.2d 50, 53 (Ill. App. Ct. 1969).
[30] Id.
[31] IRVING GOLDSTEIN, TRIAL TECHNIQUE (1935).
[32] Lewin, supra note 10, at 453.
[33] NAT’L COMM’N ON FORENSIC SCI., DEP’T OF JUSTICE, TESTIMONY USING THE TERM “REASONABLE SCIENTIFIC CERTAINTY”, available at https://www.justice.gov/archives/ncfs/page/file/641276/download.
[34] Id.; see also Daubert v. Merrell Dow Pharms., 509 U.S. 579, 590 (1993) (stating that “it would be unreasonable to conclude that the subject of scientific testimony must be ‘known’ to a certainty; arguably, there are no certainties in science”); see also Danner & Sagall, supra note 20, at 308.
[35] NAT’L COMM’N ON FORENSIC SCI., supra note 33.
[36] Id.
[37] 155 P.3d 371, 375–76 (Col. 2007).
[38] Id.
[39] Id.
[40] 2017 WL 3611848, at *3 (S.D.W. Va. Aug. 22, 2017).
[41] Id.; see also NAT’L COMM’N ON FORENSIC SCI., DEP’T OF JUSTICE, RECOMMENDATIONS TO THE ATTORNEY GENERAL REGARDING USE OF THE TERM “REASONABLE SCIENTIFIC CERTAINTY” (Mar. 3, 2016).
[42] Edwards, 2017 WL 3611848, at *4.
[43] Id. at *3; see also Seth Augenstein, DOJ’s Code of Conduct: No More ‘Reasonable Scientific Certainty’ (Sept. 2016) available at https://www.forensicmag.com/article/2016/09/dojs-code-conduct-no-more-reasonable-scientific-certainty.
[44] Lewin, supra note 10, at 462–63.
[45] Holecek v. Janke, 171 N.W.2d 94, 101 (N.D. 1969); State v. Holt, 246 N.E.2d 365 (Ohio 1969); Lane v. State Farm Mut. Auto. Ins. Co., 308 N.W.2d 503, 512–13 (Neb. 1981).
[46] Marpaka v. Patel, 2017 WL 84655, at *2 (N.J. Super. Ct. App. Div. 2017); Aspiazu v. Orgera, 535 A.2d 338, 342 (Conn. 1987); State v. Jarrell, 608 P.2d 218, 230–31 (Utah 1980).
[47] 2017 WL 3611848, at *4, 5 (S.D.W. Va. Aug. 22, 2017).
[48] Id. (reference to footnote 2).

The Legal Significance of Including the Words “If Anything” in a Question at Trial

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written by NITA guest bloggers Marina Kunina and Michael J. Dale

Walk into any courtroom in the United States during a trial and one will hear lawyers ask questions like, “What, if anything, happened next?” or “What, if anything, did you do after that?” This article seeks to understand the background, purpose, and place in a modern legal practice of the use of the phrase “if anything” in questioning a witness. It raises the question as to whether the phrase actually has any legal significance.

The historical background for the use of the phrase is not particularly helpful. One of the earliest case in the United States dealing with the effect of the “if anything” phrase is Albatross v. Wayne, 1847 WL 71 (Ohio Dec. 1847) In that case, the Supreme Court of Ohio was asked to determine whether the question “‘What do you know, if anything, of any custom of trade in delivering goods at Memphis by steamboats, different from the usages of other ports on the Mississippi River?’” was “unfair, leading, argumentative, and faulty in effect, if not in form.” The court, affirming the lower court’s overruling of the objection, held that the question was not “fairly liable to any such objection.” Explaining that the question was not susceptible to objection, the Ohio Supreme Court stated that “the witness, if ignorant of the customs of all the places on the river, would have answered negatively, and so the plaintiff would have gained proof from the mere ignorance of the witness against the existence of the special custom sought to be established as a valid custom at the port of Memphis.” The court further held that the question containing the “if anything” phrase “was as far from being leading as anything could be; nor was there anything unfair in it.”

In 1899, the Court of Criminal Appeals of Texas held that a prosecutor was permitted to ask, “If there was any inducement or consideration for the first act of intercourse[,] state what it was.” The Court explained that this type of question, which approximates the “what, if anything” approach, was not erroneous, as “leading or suggestive of the answer.” Harvey v. State, 53 S.W. 102 (Tex. Crim. App. 1899).

In 1855, the Supreme Court of Judicature of New Hampshire was asked to determine whether the plaintiff could introduce his own statement by asking the witness what the plaintiff said to him. The court held that the plaintiff could not introduce the statement at issue in his own way. The court said, however, that a party might ask his witness what, if anything, was said by him that induced him to take notice of what occurred. Wiggin v. Plumer, 31 N.H. 251, 271 (1855). Here, the court seemed to explain how particular wording can avoid a question to be susceptible to a hearsay objection.

In Prickett v. Sulzberger & Sons Co., 57 Okla. 567, 157 P. 356 (1916), the Supreme Court of Oklahoma, dealing with the issue of whether the administrator could introduce the deceased’s statement made to the eyewitness of the fatal incident, found prejudicial error in not allowing the question “‘[W]hat, if anything, did [the deceased] say about the elevator just before he stepped? What, if anything, was said by you and by him in reference to the elevator just as he was stepping off the bridge?’” as calling for a hearsay. Thus, the “what, if anything” phrase did not cure the hearsay.

In Nickell v. State, 205 Wis. 514, 238 N.W. 508 (1931), the Supreme Court of Wisconsin held that the question “[w]hat, if anything, did the defendant . . . say about treating or healing headaches?” was not objectionable as leading. Therefore, older case law, while recognizing the use of the phrase, does not offer much guidance about the justification for its use. Contemporary jurisprudence still uses the “if anything” phrase as, for want of a better term, a trick to rebut a leading objection. Although introductory “if anything” may sometimes correct the leading question, in the present case the question can still remain “leading and may objectionable if it improperly suggests ‘treating’ or ‘healing’ or even ‘headaches,’ or if it is disputed that the defendant said anything on those subjects.” § 27:7, Leading questions, 23 MINN. PRAC., TRIAL HANDBOOK FOR MINN. LAWYERS § 27:7 (2017–2018 ed.).

Morphologically, or form-wise, “if anything” can be regarded as a connective incorporated into the question “to prompt and guide the witness in telling his story.” In a practical sense, “if anything” phrases are utilized as the witness’s “go ahead” signal. When the witness stops testifying because of uncertainty of the appropriateness of proceeding with his answer, “if anything” “[c]onnectives help to lead the witness over such troublesome situations without being subject to [leading] objection.” § 11:37, Connectives, 2 LANE GOLDSTEIN TRIAL TECHNIQUE § 11:37 (3d ed.).

Similarly, when the question “When did you stop beating your wife?” assumes that the witness did, in fact, beat his wife and is not permissible, the question “What did the defendant do to you, if anything?” according to one writer, would be proper as not assuming anything and not being leading. Michael Catalano, 6 AM. JUR. TRIALS 605 (originally published in 1967). The authors suggest that the practical application of the “if anything” phrase may also be an effort to avoid the assuming facts not in evidence objection.

Despite the fact that historically some courts have approved “if anything” questions as not being leading, it certainly can be argued use of the phrase does not solve the problem. It has been argued that such questions tend to suggest to the witness that a positive response should be given. For instance, the question “What did you say to him, if anything?” suggests that the witness, in fact, said something to the person. Stephen E. Arthur, Leading questions; hostile witnesses, 22A IND. PRAC., CIVIL TRIAL PRACTICE § 30.20 (2d ed.).

The extreme directedness of a question can be minimalized by using “a less leading way of getting the same information available.” A leading National Institute for Trial Advocacy instructor has argued that the desired answer to an “if anything” question is not regarded as leading and, hence, would not be objectionable while producing almost the same effect as an aggressive suggestive question. Frederick C. Moss, Beyond the Fringe: Apocryphal Rules of Evidence in Texas, 43 BAYLOR L. REV. 701, 744 (1991).

It is also suggested that including the “if anything” phrase in a question may help to avoid the prejudicial effect of the testimony and even prevent some constitutional violations. For example, in State v. Underwood, 281 N.W.2d 337, 338 (Minn. 1979), the Minnesota Supreme Court found the responses by a prosecution witness to a question “Did you talk to him [defendant] any after you got back to Owatonna?” constituted comments on the defendant’s constitutional right to remain silent and, hence, were prejudicial even though elicited by defendant’s counsel on cross-examination. In absence of the appropriate defense attorney’s objection, the prejudicial effect of the testimony could have been reduced by asking, “What, if anything, did the defendant say?” § 5042 Insulating The Jury From Inadmissible Evidence, 21 FED. PRAC. & PROC. EVID. § 5042 (2d ed.).

“If anything” also is thought to be a useful tool for a redirect examination. As the scope of redirect examination is strictly limited to the scope of cross-examination, it is usually hard for the examiner to effectively develop the testimony on redirect examination, because leading questions are not generally permitted. To reduce the objectionable effect of a leading question to get at the desirable information, the “if anything” technique is widely utilized, especially where a leading question seeks to incorporate particular factual matters by refutation in the form of a denial or affirmation. § 611:12 Redirect and recross examination, WINNING EVIDENCE ARGUMENTS § 611:12.

It is obvious that hearsay objections cannot easily be eliminated by use of “if anything” in a question. For example, the question “What, if anything, did you see the officer do next?” itself may not be objectionable due to the wording used. However, the examiner cannot fully control the witness’s response, and the answer “The officer came into my store and said . . .” will still be impermissible hearsay and the objection made must be sustained. § 13:50, Hearsay, 3 LANE GOLDSTEIN TRIAL TECHNIQUE § 13:50 (3d ed.).

And finally, the “If anything” phrase is also not helpful to rebut the hearsay objection against so-called “implied hearsay,” when, although visibly not calling for a hearsay and not being leading, the “if anything” question calls for an answer that does not have any relevance except as to show what one witness said to another witness. David F. Binder, HEARSAY IN A NUTSHELL, VERDICTS, SETTLEMENTS AND TACTICS 360, 362 (1989). See Com. v. Farris, 251 Pa. Super. 277, 280, 380 A.2d 486 (1977).

In conclusion, research suggests that the phrase “if anything” is used to avoid leading questions and assuming facts not in evidence, to guide the witness, and improbably to avoid hearsay. Oddly, there are few reported opinions on the subject, and the commentary in practitioner guides seems conclusory. If the phrase “if anything” is necessary to avoid a leading objection, does that mean that multiple, otherwise open-ended questions will require use of the phrase or something like it? For example, lawyers will have to ask “What, if anything, happened next?” or “Where did you go, if anywhere, after that?” The question then to ask is whether the questions are really leading without use of the phrase. The question can also be asked in the context of the objection assuming facts not in evidence. Does the “if anything” phrase cure the facts coming first from the mouth of the attorney? The authors suggest that the phrase should be abandoned because it does not solve any of the problems it seeks to address, except perhaps to help the witness understand the question. The phrase just seems to be a traditional question filler.

Marina Kunina is a Russian attorney and May 2018 graduate of Nova Southeastern University Shepard Broad College of Law, Fort Lauderdale, Florida. She was a research assistant to Professor Michael J. Dale.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at dalem@nova.edu. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here.

To read more articles by Professor Dale’s research assistants at Nova Southeastern, click here.

Welcome the Newest NITA Advocates

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NITA is proud to announce the 2018 first quarter recipients of the Advocate Designation. These designations are awarded to a person who has taken a well-rounded set of courses, proving they are serious about trial advocacy.

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  • Melinda DeAtley | US Patent & Trademark Office
  • Sean M. Fisher | Brenner Saltzman & Wallman Llp.
  • Amber Candelaria | Candelaria Law Group LLC
  • Denesha James | Dept. Of Transportation FMCSA

If you have any questions on how you can receive the NITA Advocate or NITA Master Advocate Designation, please review the information on our Advocate Designations page, or email customerservice@nita.org.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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