Divorce is not pleasant. Divorce requires you to disclose your entire financial life and have your ability and even right to be a parent questioned. Worst of all, you can be directly confronted about your personal foibles and failings by a stranger who is being paid to tarnish your reputation: your spouse’s divorce attorney.
Thankfully, there are limits on the behavior of divorce attorneys…at least within the confines of the courtroom. One such limit is the objection that a question is “argumentative.”
Illinois court processes are governed by the Illinois Supreme Court Rules which subsequently empower the Illinois Rules of Evidence in determining what is allowed in a trial or hearing.
“[B]y order of the Illinois Supreme Court, the Illinois Rules of Evidence will govern proceedings in the courts of Illinois” Ill. R. Evid. Preamble
The Illinois Rules of Evidence require the court to keep everyone efficient and polite.
“The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” Ill. R. Evid. 611
When anyone is asking a question that is not effectively ascertaining the truth, wasting time, harassing and/or embarrassing someone. Either attorney or the judge can make the oral motion: “Objection! Argumentative”
The judge (unless they made the objection) will then determine if the objection is overruled (not valid) or sustained (valid). If the objection is sustained, then the questioner can ask the same question in a nicer way…and possibly be objected to again until the taint of argumentativeness is no longer imbued within the question.
As my mother always says, “There has got to be a nice way to say that.”
“A trial court properly uses this discretion to preclude repetitive or unduly harassing testimony, or to exclude evidence of bias that is too remote or uncertain.” People v. Prevo, 706 NE 2d 505 – Ill: Appellate Court, 4th Dist. 1999
Whether a question is unduly harassing is in the eye of the beholder but the question is probably harassing if the question is sarcastic or implies wrongdoing on the part of the witness. There’s no need to make inferences via sarcasm or implication. Just ask the witness a question.
Consider the following sarcastic and implied wrongdoing examples:
“Oh yeah? So you told the truth that day, right?” vs. “You were telling the truth that day?”
“You were in the car he took to the liquor store that was robbed?” vs. “You were in the Chevrolet that night? You went to the liquor store that night? He was there with you?”
This does not mean you always have to be nice to the person you’re questioning. If the witness is biased and/or a liar. You can ask questions about their bias and/or lies under the impeachment rule.
“The credibility of a witness may be attacked by any party, including the party calling the witness, except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of affirmative damage.” Rule 607 – Who May Impeach, Ill. R. Evid. 607
“Cross-examination to show bias, interest, or motive to testify falsely is a matter of right.” People v. Schnurr, 564 NE 2d 1336 – Ill: Appellate Court, 2nd Dist. 1990
Even though you’re impeaching someone you still have to be a little civil. You must ask factual questions and not make insulting innuendos and arguments.
“Any limitation of cross-examination is within the sound discretion of the trial court; a reviewing court will not interfere unless there has been a clear abuse of discretion resulting in a manifest prejudice to defendant.” People v. Frieberg, 589 NE 2d 508 – Ill: Supreme Court 1992
The evidence of impeachment has to be real. The basis of the bias or lies cannot be mere inference.
“Furthermore, when impeaching by showing bias, interest or motive, `the evidence used must give rise to the inference that the witness has something to gain or lose by his testimony’ and, therefore, the evidence used must not be remote or uncertain.” Triplett, 108 Ill.2d at 475-76, 92 Ill.Dec. 454, 485 N.E.2d 9, quoting People v. Phillips (1981), 95 Ill. App.3d 1013, 1020, 51 Ill.Dec. 423, 420 N.E.2d 837
Even when impeaching someone you cannot ask repetitive or especially harassing questions.
“Questioning cannot be repetitive or unduly harassing, and the evidence must give rise to an inference that the witness has something to lose or gain by his testimony; therefore, the evidence must not be remote or uncertain.” People v. Schnurr, 564 NE 2d 1336 – Ill: Appellate Court, 2nd Dist. 1990
Bad behavior in court can always be punished by a finding of direct civil contempt.
Direct contempt “takes place in the very presence of the judge, making all of the elements of the offense matters within the personal knowledge of the judge and tending directly to obstruct and prevent the administration of justice” (People v. Howarth (1953), 415 Ill. 499, 508, 114 N.E.2d 785, 790.)
If the judge is seeing an attorney asking terribly harassing and insulting questions and the attorney doesn’t cease those questions, that attorney can be held in contempt. But, a divorce is a civil case so it will be civil contempt. As soon as the attorney behaves himself, he or she is out of trouble.
“Civil contempt is a sanction or penalty designed to compel future compliance with a court order.” Felzak v. Hruby, 226 Ill. 2d 382, 391, 876 N.E.2d 650, 657 (2007)
The level of rude questions has to be pretty extreme to validate a contempt finding. Us lawyers are supposed to be “zealous advocates” for our clients. The original Zealots were 1st century Jewish rebels who at public gatherings, pulled out daggers to attack Romans and Roman sympathizers alike. So, from a zealot’s point of view, what’s the big deal about a few rude questions?
“While counsel may have been overzealous or improperly sarcastic at times, we are of the opinion that his conduct in the courtroom constituted a good faith attempt to represent his clients without hindering the court’s functions or dignity, and, therefore, that they did not constitute a direct contempt of court.” People v. Miller, 281 NE 2d 292 – Ill: Supreme Court 1972
If an objection of argumentative question is not immediately accepted, you can remind the court that the time for argument is the closing statement, not the direct or cross-examination.
Argumentative Questions In A Deposition
A deposition is not a trial. A deposition is designed to gather information via questions. So, deposition questions are much broader, looser and more numerous than questions in trial. The argumentative question objection does not exist in a discovery deposition. The attorney can be as rude as they want.
“The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules. The deponent may be questioned by any party as if under crossexamination.” Rule 206 – Method of Taking Depositions on Oral Examination, Ill. Sup. Ct. R. 206
At some point, rudeness and harassment will stop a deposition. “At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in any manner that unreasonably annoys, embarrasses, or oppresses the deponent or party, the court may order that the examination cease forthwith or may limit the scope and manner of taking the examination as provided by these rules. An examination terminated by the order shall be resumed only upon further order of the court. Upon the demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to present a motion for an order.” Rule 206 – Method of Taking Depositions on Oral Examination, Ill. Sup. Ct. R. 206
Furthermore, the rude attorney is having every single word they’re saying recorded for posterity by the transcriptionist. That transcript will make a fine exhibit in defense of the rude attorney’s motion for continue the deposition.