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Bickering Over Evidence

In my last post, I mentioned how the defense wanted the judge to declare a mistrial on the basis of the testimony of Sonya Sipes.

The reason Greg Gaebe gave was that her testimony had “absolutely nothing to do with any definition of rebuttal in any court of law.” When we had her testify, Sipes had been asked questions about communications between her and Gaebe and her and Jack Wishart, which she answered truthfully, providing the court with an account of the instructions or requests she received from Gaebe as well as Mr. Wishart to come in, cooperate, and tell the truth.

What did he want the judge to say?

That Pine Island Farms was not winning?

Personally, I thought it was a flattering statement.

I didn’t see any prejudice to the testimony at all, and actually found Gaebe’s objection interesting from a strategic point of view. I was trying to think of a reason why he might want a curative instruction about his side winning.

It was such an odd move on Gaebe’s part, and one that didn’t pay off. The judge didn’t like it any more than I did. She denied the motion for curative instruction, and the motion for a mistrial.

We spent the next hour bickering over the admissible evidence that everyone still had to introduce before jury deliberation began. Judge Donner was being quite generous with all the lawyers, allowing the defendants and plaintiff each to be comfortable with what we had in evidence.

One by one, DuPont and Pine Farm attorneys Clem Glynn, Doug Chumbley, Greg Gaebe, and David Kleinberg had their turn to go back and forth on items they either did or did not want admitted.

Liz Russo argued for the relevance of using fertilizer records from 1988, ’89, and ’90 to establish chemical purchasing patterns, which had been questioned in terms of relevance despite testimony about planting patterns and when fertilizer is used.

“Is that it?” Judge Donner asked as we got to the last piece of the evidence. “One other thing,” I said, sounding a bit like Lieutenant Columbo just before he was about to solve a big case. “Mr. Gaebe’s exhibits: he’s got blowups of testimony, but some of them are not really testimony. [They’re] just objections back and forth by counsel.”

I had no idea whether Gaebe knew he did this—if it was intentional or he just thought he could get away with it—but there was no way in hell I wasn’t going to call him out on this incredibly low and unprofessional behavior.

“First of all, objections of counsel do not go into anybody’s evidence,” Judge Donner clearly stated. She wasn’t very happy with where this was headed.

You see, whenever a lawyer believes the rules of evidence have been broken during testimony, he may shout, “Objection, move to strike.” If the judge sustains the objection, the testimony is deemed improper and is stricken from consideration by the jury. Whether or not Gaebe was consciously trying to sneak some of the remarks most advantageous to his defense back into play through these boards, the judge was not having any of it.

Gaebe tried to explain his way out of this by suggesting I had it all wrong. “What he’s talking about is the evidence in this case, and we were in a sidebar when he made this objection. Now, you know it’s easy for Mr. Ferraro to say he has some colloquy and objections. The fact of the matter is, he’s given you an incomplete representation of what’s in that thing. This is classic Ferraro, okay?”

But you have to know that Judge Donner was smarter than that.

I’d love to hear from you. Have you ever been in a negotiation where the opponent seriously underestimated you? What was the result? Thank you for sharing!


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