When the judge becomes a recalcitrant -- how to protect your client

While speaking with several great colleagues on the AILA (American Immigration Lawyers Association) discussion boards, I had a chance to share my experiences working with judges who would not allow testimony in the immigration court context. I was asked how I handled such judges -- specifically regarding asylum matters -- and I thought I would share my answer here:

I have run into this -- even the judge not wanting fact witnesses to testify. Let me explain an example regarding immigration and asylum law. In each instance, though, you need to find the underlying law that supports the right of your client to be heard. When that is lacking -- do not fear! Press on with an equity argument and use the same language. The key is putting your concern on the record, as you will see below.

State for the record that your expert's testimony is critical to the foundation and credibility of your case. Further, state that the judge is obligated to hear all facts that bear on the risk of abuse or harm.

“Unlike asylum, withholding of removal is not discretionary. The Attorney General is not permitted to deport an alien to a country where his life or freedom would be threatened on account of one of the protected grounds . . . .” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001); INA 241(b)(3)(A).

If the judge refuses to hear from the expert (or fact witness), object on the record. Then continue. I have won more than one appeal on this objection. Note, though, you MUST note the purpose of the expert (or fact witness) and then object when the judge does not permit it. Also note that if the judge only allows a cursory examination of the fact witness or expert, then that can also qualify for grounds for appeal if you object on the record.

Examples of how to note your objection on the record:

you must introduce the witness or expert and explain what testimony he/she will provide and why it is critical to your case. If the judge does not give you a chance to do this, state, "Your Honor, may I be heard on this matter?" If the judge still refuses, then you must state: "You Honor, for the record, I must state that your refusal to permit XXX to testify prevents you from having a full and complete picture of Mr. XXXX withholding and asylum petition. I object to this."

If the judge allows you to proffer what the witness or expert will testify (that means make a statement on the record indicating what facts will be discussed), and then refuses to permit the testimony, you must state: "You Honor, I understand your ruling on this matter. However, for the record, I must object as I believe it is not possible to have a full and complete hearing on Mr. XXX withholding and asylum petition without this information."

That's it! You've preserved the record for appeal, and stand a good chance of reversing the holding.

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Model Witnesses -- a review of a trial strategy book.

This is a different Blog approach. For my posting this week, I thought I would review a book I recently purchased. I have several upcoming jury trials, and thought I would see if there were any good resources on trial tactics that perhaps I had not seen before. Never hurts to pursue new reading material!

I decided on Model Witness Examanations, by Paul Sandler and James Archibald (Third Edition -- 2010). Not sure if there was a fourth edition, however, this work was recommended to me by a fellow practitioner so I thought I would give it a go.

This is a very interesting work -- first, it provides concrete examples of how to conduct a direct (and cross) examination of a witness under different circumstances and for different purposes. Secondly, it sites rules and cases heavily, providing a strong basis for the example and supporting "reasons" for the rules.

However, there are two significant detractors, and I am unclear why the book does a poor job of addressing them. They seem fundamental to the topic. First, the author makes no attempt to explain what a practitioner should expect if he/she actually used one of the sample approaches in trial. While the examples are generally sound, you ought to bet that opposing counsel will protest and object vigorously -- and Mr. Sandler does little to address what these objections will be. Oh, there are half-hearted attempts to indicate what might be said, and how a judge would rule, and there are some warnings (for example, "Whether the police officer in this pattern can testify to a hearsay declaration by an absent witness might present a problem." - pg. 8), but truly little is discussed about the "jam" effect of opposing counsel objecting and completely throwing the questioning line of thought. And to think a judge would actually site to Rules is just ridiculous. They (judges) rarely do --and often judge get's it wrong, too. For example, helpful might be: "When you use this line of questioning, you should expect objections in the form of objection...."

Tied closely to the first detractor, I did not like how the author brought forth various forms of testimony on one hand, but failed to give examples on how opposing counsel might rehabilitate a witness (or challenge an expert) on the other. Essentially, there are two sides to every case -- and there was not enough examples of for/against positions and how to guide questions on each side (on the same topic). That would have really assisted in developing good case management strategies. As we often teach new associates -- take the position of the opposite side -- thus will you be ready for any argument.

Overall, the work was intelligently written, clearly well researched, and helpful. It will find a nice place in my litigation library. However, with just a few more tweaks, it could truly have stood out as an exceptionally useful training tool.

Do you need a book, article or paper reviewed? Would you like a seminar or class on a particular legal topic? Let us know! We've been doing this for a few years, and would be glad to share our experiences as trial attorneys.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.