Category Archives: depositions
Trial Post-Mortem
If you try cases long enough, you are going to eventually lose a few. You need to look at losses as an opportunity to improve. Quite honestly you should learn more from your loses, than your victories. If your are allowed, you should speak with the jurors and see what they thought was important. You need to check the case and consider:
1. Jury Voir Dire: Was a juror biased against your case? Could you have formulated a better question to uncover this bias and possibly exclude the juror. Were there a problem with your case you could have raised in voir dire to find out who could not treat the evidence fairly?
2. Prejudicial Evidence or Arguments: Did the other side present irrelevant evidence or improper arguments? Even if your objection is sustained, it is often difficult to “unring” that bell. You may be able to head off such arguments or evidence in the future through an motion in limine excluding such evidence or argument. It might also uncover problem evidence.
3. Were There Surprises: Perhaps the opposing party hit you with evidence you missed. Next time you may be able to head off such problems by doing what your opponent would likely do in investigating the case. You may need to comprehensively collect and check medical records more carefully and prepare a medical chronology to refresh your client’s memory before questions are incorrectly answered in interrogatories or depositions. Or perhaps, there are other lawsuits, claims or even criminal convictions your client failed to tell you about in advance of discovery and their deposition. You may want to hire a private investigator to do a preliminary background check of your client or just do a Google search of your client’s name to see what you might uncover. You may want your client to give you access to their social media sites to check for potential problems. Better yet, you can educate your client early on about the importance of being completely honest with you. There are few problems that cannot be dealt with if you know about them. It’s the problems you don’t know about that can kill you. I always tell a client that: “You don’t want to take a good case, try to make it a great case (through exaggeration or lying) and turn it into a bad case.”
4. Witness Preparation: Did you adequately prepare your witnesses or client to testify. Good testimony requires that you and your client be on the same page. You need to adequately prepare your client or witness for any landmines that exist and perhaps bring up the problems yourself in voir dire, opening and/or on direct examination to blunt the damaging evidence’s impact. Video-taping a mock testimony session and allowing your client or witness to critique their own performance can work wonders as well.
5. Additional Evidence: Was there a witness you needed to call? Lay-medical witnesses to paint a before and after picture can go a long way in corroborating your client’s testimony that they were injured in this incident and not from some other event or condition. Was there an expert whose testimony might have covered a gap or question in your case? Could a photograph, diagram or model have made your presentation clearer or answered a juror’s doubt?
6. Jury Instructions: Were there jury instructions needed to address points of law pivotal to your case and the jury’s understanding of those issues? Don’t take the easy way out and rely simply on pattern jury instructions. Review the case-law and formulate your on instructions on nuanced points of law that are difficult for the jury to understand and apply to your case.
7. Strategy: Was there something you could have handled better? Was there a better analogy or argument you could have used to make your point or address your weaknesses? Was your overall view of the case cohesive and persuasive. Was your order of witnesses correct? There are a number of great resources available to you from books about famous trials, closing arguments and trial advocacy. Don’t reinvent the wheel. Learn from other’s experience what works and what doesn’t. Seek out a mentor and pick their brain. See my earlier post on Fireside Reading for the Trial Attorney.
I hope the thoughts outline above help you in critiquing your “failures” and turning them into an opportunity for improvement and growth as an advocate.
Litigation Against an Organization: Why you need to do a Rule 30(B)(6) deposition.
If you are suing an organization, it is important that you familiarize yourself with the provisions of Rule 30(b)(6). Rule of Procedure 30(b)(6) provides in pertinent part:
Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
The organization (not you) has the obligation of designating the person or persons needed to adequately answer the questions posed in the various designated areas you wish to ask questions. You as the deposing party have the burden of meeting the “reasonable particularity” requirement of adequately designating the subject areas of questioning. The statements given by the person(s) designated by the organization bind the organization as an admission of a party-opponent.
This is not necessarily the case when a statement is given by a low-level employee who is not a “member of the limited liability company” or officer/director of a corporate organization since their statements only bind the organization if they are:
1) made within the scope of their authority and
2) the person is still employed and has a relationship with the organization.
Under Rule of Evidence 801(d)(2), “non-hearsay” for the “admission of a party-opponent” is defined as follows:
(d) Statements which are not hearsay. A statement is not hearsay if –
* * *
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the party’s agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
A Rule 30(b)(6) declarant/deponent’s answers to questions during the deposition are considered a “statement by a person authorized by the party to make a statement about the subject“. The organization can only authorize such a statement if the area of questioning has been identified in the deposition notice. The trick is to make sure your designation of the areas of questioning is specific enough to cover the questions you wish to pursue during the deposition. Otherwise, the organization is free to argue that they were not authorized to make the statement and bind the organization. One caveat to this point, is that the organization likely has a duty to raise the objection at the time of the deposition if the problem could have been obviated at the time of the deposition by making a clarification in the question. Rule 32(d)(3)(A) states that “[a]n objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.”
If the opposing party designates the wrong person or fails to prepare them they risk possible discovery sanctions and ill-considered and ill-conceived answers to critical questions in the litigation. The burden is on the organization to properly prepare and name as many people needed to answer your questions. It is kind of like obtaining requests for admissions from your opponent on the fly. It can be very powerful tool you can use to box in your opponent.
Integrity: A Client’s Most Valuable Asset
Clients sometime forget what is their case’s greatest asset. It is not the great photos, their expert witness, or even their attorney. The greatest asset their case has is the Client’s integrity and credibility as a witness. If a claims adjuster, an insurance defense attorney or jury thinks your client is a liar why would they want to give him a dime even if he is hurt? Clients sometimes let the “dark side” enter their hearts and cloud their judgment.
In the Star War’s Movie: The Empire Strikes Back, Luke trains on a remote planet to become a Jedi Knight. His Master, Yoda, tells Luke that fear and anger will pull him to the dark side, and that there is no turning back from the dark side once he embarks on that path.
These same emotions can draw a client towards the dark side. Clients can be fearful, greedy, and angry. Instead of answering questions truthfully, they can be tempted to try and make their case better than it really is in order to get even or because they are afraid of losing. I have long told clients to avoid the temptation to try an improve on the truth by exaggerating their injuries or by lying.
“You don’t want to take a good case, try to make it into a great case, and turn it into a bad case!”
Next time, caution your client to tell the truth, the whole truth and nothing but the truth. Deceit and exaggeration are problems that are almost impossible to solve through trial advocacy. Credibility is the advocate’s most valuable currency in the marketplace of ideas.
Coaching the Witness: How to Handle the Speaking Objection.
You are in a deposition and you are hammering an opposing witness. The witness has backed off of her speed estimate and is just about to concede she has no real basis to estimate her speed when the opposing attorney interrupts and launches into a speech:
Q. So, you would have to guess or speculate as to how fast you were traveling at the time of the collision?
Counsel: Well, that’s not what the witness said at all. What she said was that she thought she was going 35 m.p.h. She was not guessing when she said that…
Or perhaps you have not even got a chance to ask a question on a topic when this happens:
Q. Did you consider the walkway to be unsafe?
Counsel: Well, you can answer it if you know!
Or perhaps the other attorney just gets mad and tries to bully you out of a line of questioning by threatening to end the deposition. This is a pretty common occurrence in both civil and criminal depositions. So what do you do? How do you handle such behavior? Well, such interference is improper and is prohibited under the Federal Rules of Procedure. It is usually improper under the state rules of procedure or the court’s local rules as well. Federal Rule of Civil Procedure, Rule 32 provides that:
(c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.
* * *
(2) Objections. An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3). [Emphasis Added]
In other words, coaching a witness while testifying is strictly prohibited. In addition, the power of a party and their counsel to end a deposition is very limited. Rule 30 of the Federal Rules of Civil Procedure provides:
(d) Duration; Sanction; Motion to Terminate or Limit.
(1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.
(2) Sanction. The court may impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.
(3) Motion to Terminate or Limit.
(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.[Emphasis Added]
(B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending.
A witness should answer any question posed unless it calls for privileged information. Redwood v. Dobson, 476 F.3d 462, 468 (7th Cir. 2007)(held instructing a witness not to answer a question is improper absent a claim of privilege). Likewise, a party has no power to unilaterally stop a deposition; that power rests solely with the court. In order to get a protective order terminating deposition, a moving party must show that examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress a witness or party. If an attorney is engaging in harassing and abusive questioning, then a party has the power to halt the deposition and promptly seek an order terminating the deposition. However, this must be done immediately. Such a measure should only be used in extraordinary circumstances since the losing party risks incurring sanctions. Smith v. Logansport Community School Corp., 139 F.R.D. 637, 640 – 641 (N.D. Ind. 1991)(held a party had no right to halt a deposition just because a question may have been asked and answered earlier in the deposition since an attorney had a right to challenge the consistency of the recollection of the witness).
Normally, I will call out opposing counsel if they make a speaking objection and state: “Speaking objections are prohibited. You are not allowed to give a speech. What is your legal objection and the Rule of Evidence you are relying upon?”
After, opposing counsel states his legal objection; I then have the court reporter read back the question to the witness so that there is not a need to restate the objection: “If the Court Reporter would please read back the question to the witness so that there is no need to repeat the objection.” This usually results in the witness forgetting the advice, and answering my question. If the interference continues, I advise opposing counsel of the law and the provisions of Rule 30 one more time and have the question read back.
If opposing counsel continues to interfere, I call the court for help or file a motion for sanctions under Rule 37. There are a number of cases out there to support such a motion. See Woods v. Ramsey, 199 F.3d 437 (5th Cir. 1999). Have your legal authority ready and cite it into the record of your deposition. This should put an end to such antics.
Strategies for the Cross-Examination of Experts
In my last post, I discussed what a trial attorney can do to prepare for the cross-examination of an adverse expert. Below are some strategies that can be used in successfully cross-examining an adverse expert witness:
1. Favorable Evidence: One tactic that should not be ignored is using the opposing party’s expert to concede to facts favorable to your side of the case. These could include the fact that your client was injured by a motor vehicle collision, that there is no evidence that your client is a malingerer, that your own expert is well-qualified or well regarded in the community, etc. You can use the expert to corroborate the propositions which make up your expert’s opinion or reasons. This is why it is important to make sure you have the expert’s report and/or have taken his deposition. In this way you will know in advance whether the expert will agree with the proposition you want to prove. It is best to prove these favorable points before attacking the expert as he may be less willing to concede a point once you have attacked him as being biased.
2. Narrow the Expert’s Apparent Expertise: This is where having the expert’s curriculum vita (resume) in advance is important. If the accident reconstruction expert is self-taught or never went to college you may want to prove that he does not have a degree in mechanical engineering, in fact he has no degree at all, or the expert is not a certified professional engineer or a medical doctor and could not sit for a board examination even if he wanted. You can prove the expert has never taken engineering calculus or college physics, etc. If the expert is a psychologist, you can contrast his inability to prescribe medications with that of an actual medical doctor such as a psychiatrist who may do so.
3. Varying the Hypothetical: Inquire into the basis for or the underlying assumptions supporting an expert’s opinions and then ask the expert if the evidence showed “X” if this would change his opinion. Before asking such questions it is usually important to anchor the underlying principles and rules the expert is utilizing in analyzing the evidence and rendering his opinion. For example, I remember a neuropsychologist I cross-examined about his opinion that his patient had suffered permanent brain injury and brain atrophy as the result of a traumatic blow to the head. The Diagnostic and Statistical Manual used by the expert indicated that to make a differential diagnosis, one had to rule out other causes for these symptoms such as long-term abuse of alcohol. The expert agreed with these principles and the need for an accurate medical history to make an accurate opinion as to the cause or etiology of the patient’s symptoms. I asked him: “Would such information be important to know? Yes. Would the medical history affect the accuracy of his diagnosis and opinion? Yes. Later in his deposition, I looped back and confronted him with medical records establishing the patient’s long term abuse of alcoholism and his treatment for alcoholism. The expert agreed this evidence was important and ultimately withdrew his opinion after being presented with evidence of chronic alcoholism. Had he refused to concede this point, I would have argued to the jury that the expert did want to be confused by the facts as his mind was made up. The jury would have seen this expert as narrow-minded and dishonest.
4. Have the Witness Define Technical Terms: “Pull back the curtain” as Toto did in the Wizard of Oz and make the expert put his statements in simple plain English if a clearer understanding of the term is helpful to your side of the case. Experts love to speak in technical jargon that dresses up their testimony for very simple events. For example, if the doctor testifies that the witness had a “contusion” on his arm, then point out that this is just a fancy term for a “bruise”. This removes the mystery behind the expert’s testimony and allows the jury to make their own assessment instead of blindly relying on the expert.
5. Typos, Spelling and Math Errors: If the expert’s report has such mistakes, first show important it is for the expert to pay attention to detail and carefully review his opinions before submitting a report, then bring out these errors on cross. You can also have the opposing expert spell long complicated terms for the benefit of the court reporter. Sometimes experts will be unable to accurately spell such terms. If he stumbles you can continue to do this as the deposition precedes. If you suspect that the expert is using a computer program to do his calculations and is “math illiterate” provide him with a calculator and have him vary the input data and recalculate the speed of a vehicle or its stopping distance. Oftentimes experts are unable to do the calculations at all. You can later argue “sloppy in, sloppy out” or “garbage in, garbage out” or that the expert really is not very “expert”.
6. Use the Expert to Criticize His Own Client: Sometimes an opposing party will do something in a fashion that is not safe or wise. It could even be on a topic the expert was not hired to assess. Use the expert, to show that the procedures used by his client were unsafe, improper or ill-advised. This is especially useful if you know the expert will have to agree or look biased and/or stupid to contest such a proposition. Some experts will try to dodge the question by saying “I was not hired to make that sort of analysis”. Don’t let them side step your question and demand that answer “yes, no or I have no opinion”. If they say that they have “no opinion”, you can show that is something the other party (the expert’s client) could have asked the expert to analyze, but did not.
7. Lack of Firsthand Knowledge: Demonstrate the expert lacks firsthand knowledge. It may be a defense medical examination where the doctor saw your client only once or perhaps he is basing his opinion solely on his review of the medical records. In contrast, your client’s doctor has seen him over an extended period of time on numerous occasions. Ask the expert “It is always preferable to see a patient many times over an extended period in evaluating a person’s condition?” If you think it is unlikely he will agree with this, you can ask: “Was the plaintiff seen on this date by his own doctor and examined? Yes. Your examination of the patient was limited to single occasion. My client doctor saw him over 25 times? Yes. Over twenty-four months? Yes. You have to accept my client’s doctors observations as true because you were not there? You are limited to what is contained in the records? Yes.
8. Show the Expert’s Opinion is Based Upon Unreliable Evidence or Rests Upon the Truthfulness of a Questionable Source: If you can show that a witness relied upon by the expert is mistaken, inaccurate unreliable, or lying, then have the expert concede that this type of information is important to the accuracy of his opinion and that he is accepting this information as true, accurate and reliable. You can ask: “Unlike you, the jury will be able to evaluate the witness’s demeanor and credibility when they testify? Yes. Again you can use the “garbage in, garbage out” approach in closing to undermine the expert’s opinions if you can establish the supporting data is not reliable.
9. Lack of Thoroughness: Demonstrate that there are more tests the expert could have performed to get more accurate data to use in his analysis. This could be things such as the expert could have used a similar vehicle to figure stopping distances, that the expert failed to actually test the road’s surface to find the “actual” coefficient of friction instead of just taking some number out of a text-book or guessing.
10. Financial Bias: If the expert at issue has testified for the opposing party, attorney or insurance company before, point out how much money this relationship has generated for the expert or that the expert is a “whore” or a hired gun for the “defense” or “plaintiff”. You can use tax or business records to show this financial bias.
11. Inconsistent Positions: Find similar cases where the expert has testified on the opposite side of the issue. Use this inconsistency to show that the expert is not a scientist, but is rather an advocate for whichever side hires him. Use the expert’s own articles or writings to undermine contrary positions he has taken at trial.
12. Confront the Expert with Authoritative Materials: As mentioned in the earlier post, look for textbooks or journal articles you know the expert will have to agree are authoritative and reliable. You can read favorable points in during cross in support of your position under Rule of Evidence 803(18). This hearsay exception provides:
(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets that contradict the expert’s testimony on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
I hope these thoughts are of use to you the next time you take on an adverse expert witness. I would appreciate hearing of any strategies you may have. Good luck!
Cross-Examination of Experts: Where to Start.
Where do you start with your preparation to cross-examine an expert? The following is a list of areas to review:
1. The Expert’s Curriculum Vita: You should thoroughly review the expert’s c.v. Expert’s will exaggerate and even make up credentials. In a criminal case I was defending the State’s expert, an environmental specialist, claimed he had a B.S. in engineering and was a P.E. which is typically short for being a certified professional engineer. He had signed all of his reports as a P.E. which at the deposition he claimed was short for “plant engineer” apparently suspecting he was at risk. Surprisingly, he claimed that he had never intended that anyone believe he was a certified professional engineer as I move through over twenty separate reports where he used this designation. He admitted that to make such a representation would be a bold-face lie. I then concluded his deposition by looping back to the first exhibit I had him identify and authenticate as being true and accurate, his c.v. There buried about half-way through the c.v. in his own words was the assertion that he was a “certified professional engineer”. He end up admitting to a number of other fabrications as well, including his educational background and other professional certifications. These were all done so he could raise his profile and make more money. All criminal charges against my clients were dismissed shortly after this deposition.
2. Prior Testimony: Expert’s who testify have often times covered similar ground in other cases. Depositions are an excellent source of inconsistent positions and damaging concessions. You can also find areas of bias explored in other depositions. I have subpoenaed expert’s records which they claimed that they no longer retain and ended up using the expert’s prior testimony to establish that they could in fact obtain such information. Trial lawyers often maintain data banks for frequently used experts. Westlaw and Trial Smith also have data banks you can search for a fee. Don’t ignore these sources.
3. Prior Writings of the Expert: Such articles contain principles upon which you can anchor your cross exam because they are the expert’s own words. These are admissible under Rules of Evidence 613 (prior inconsistent statements and 803(18) (learned treatises).
4. The Expert’s Report: A careful analysis can uncover implicit assumptions and the basis of the expert’s opinions. Often times the best way to challenge an expert is to show the foundation of his opinion is resting on sand, not bedrock. The truism of computer science is equally applicable to expert witnesses, “Garbage in, garbage out”. Just remember to anchor the items which are “garbage” as important early in your examination before looping back and pulling the rug out from the expert.
5. Learned Treatises: You should consult the central authorities of your expert’s field as well as journal articles in his field. You should in particular focus on those items you know he will have to admit are authoritative such as journals of organizations he is a member or leading educational textbooks in the expert’s field. Don’t forget the requirements of Rule of Evidence 803(18) which require that someone establish that the writing is authoritative and the text of the treatise you want to use must be read into evidence while the expert is on the stand.
6. The Internet: The Internet is the great equalizer. You can find journal articles, licensing databases, training videos, literature, the expert’s website, test protocol, websites listing experts for hirer and more. I have used training videos to demonstrate law enforcement experts have failed to follow testing protocol for determining whether blood was present and have found You Tube videos regarding protocol for surgical procedures for use in questioning doctors. Google your expert’s name; you can find all sorts of interesting background information and leads. You can check Google Scholar for journal articles and case law from across the land to see if your expert has testified or written any articles he may not have listed.
7. Private Investigators: They can help you verify credentials and degrees as well as identify other lawsuits where the expert has testified or been sued. You might even turn up an impeachable offense.
8. Consulting Experts: They can assist you in spotting errors and mistakes in an expert’s analysis. They are also an excellent source for finding learned treatises and journal articles.
9. Other Attorneys: This probably is not the expert’s first rodeo. Check with other trial lawyers in your area who may have come across the same expert. Call lawyers identified in your search of case law or the list of past cases found in the mandatory disclosures required in federal court cases. They can provide useful tips or identify tendencies of the expert.
10. Know Your Case: You will in all likelihood have a better working knowledge of your case than the expert. Cross-reference your evidence, exhibits, documents and deposition testimony and be ready to pounce on any mistakes the expert makes in understanding the case. I have beat adverse experts more often than not by knowing the facts better than the them. This allows you show the jury they are not a trustworthy guide.
11. iPhone Apps: Yes, there is an app for that too. I have used accident reconstruction apps to test and see what a change in the input data would mean to the expert’s ultimate conclusions. I have also used well known apps such as Wolfram Alpha and Power One FE Calculator for similar purposes.
Good luck hunting. Remember nothing beats preparation.
After the Party’s Over: How to Handle a Deposition Errata Sheet
So you have carefully prepared the client for deposition, you have scoured his discovery responses and medical records for any problems, contradictions, omissions and the deposition of your client is over, now what? Upon receipt of the deposition, you, your paralegal and client need to carefully review the transcript for any discrepancies or inaccuracies. You may have noticed these problems at the time of deposition or later while reading it. Your client has one last chance to correct the errors and explain why he answered incorrectly at the deposition.
Under Rule 30 of the Federal Rules of Civil Procedure, your client has a right to check and correct any errors in the deposition. I never waive signature on a client’s deposition, or that of an opposing witness, except experts. This is your client’s last opportunity to correct any problems. You are able, to correct any errors or even misstatements. In addition, court reporters do make mistakes. As a result, you do not want to give up this valuable right. Clients are not computers, they are human beings and can make mistakes.
The rule allows your client to correct those mistakes. You have thirty (30) days from the date the deposition is delivered to you to make these changes. If you fail to act the opposing party can ask that the deposition be submitted “as is.” If you fail to make any changes needed, the deposition will bind your client, and you will be unable to undo the harm. I always try to make sure clients use this right sparingly, and make corrections only when necessary. Nothing is worse than to send pages of corrections. It will seem to a jury as if you are trying to rewrite your testimony.
A couple of caveats… any changes can be used for purposes of impeachment at trial or in some later proceeding. The jury or finder of fact can consider both answers and make their own decision which is more credible. In submitting an errata sheet, a client must timely exercising their rights under Rule 30(e) of the Federal Rules of Civil Procedure, which allows a deponent thirty (30) days to check the deposition transcript and to make any changes as to “form or substance.” The deponent may exercise this privilege by signing a statement under oath reciting the changes and his reasons for making them. If the deponent exercises this right properly, both the original answers and the revised answers and the accompanying explanations become part of the record. See Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir.1997); Lugtig v. Thomas, 89 F.R.D. 639, 641-42 (N.D.Ill.1981). The reasons given “need not be convincing,” but “there must be a reason for every change.” Id.; see also Sanford v. CBS, Inc., 594 F.Supp. 713, 715 (N.D.Ill.1984) (“It is not enough for the witness to give general conclusory reasons for all the changes at the end of the transcript or, as in this case, for the witness to record no reasons at all upon the deposition but merely claim later the reasons are ‘either explicit or reasonably implied from the circumstances.’ ”) The Seventh Circuit has held that “a party cannot create a sham issue of fact by ‘directly contradict[ing] her own earlier statements, without explaining the contradiction or attempting to resolve the disparity.’ ” Holland v. Jefferson National Life Ins. Co., 883 F.2d 1307, 1314 n. 3 (7th Cir.1989), quoting Babrocky v. Jewel Food Co., 773 F.2d 857, 861 (7th Cir.1985).
If your client completely reverses his answer you need to clearly and persuasively explain the reason for the change. Under most state and federal law, two contradictory statements about a material matter made under oath on the face of it, is an act of perjury. 18 U.S.C. § § 1621 and 1623. Perjury requires that one make the false statement with knowledge of its falsity and show that it was not made as a result of inadvertence, honest mistake, carelessness, misunderstanding, or a mistaken conclusion. As a result you want to make sure the change is truly a mistake and that real reasons justify the correction. Otherwise, you risk aiding and abetting a crime which is immoral, unethical and illegal. 18 U.S.C. § 1622 – subornation of perjury. After all is said and done, make sure that your client understands that the number one rule is to tell the truth and be accurate.
Refreshing Recollection vs. Past Recollection Recorded
Refreshing Recollection. A client needs to be thoroughly familiarized with what it means to forget as opposed to not knowing something. If one says, “I don’t know,” something, that means it was never in their brain. “I don’t remember,” on the other hand, means that the information was once in their brain, but cannot be retrieved. At the time of trial, an, “I don’t know,” will be utilized to establish that your client is lying. When in doubt, a client should answer, “I don’t recall,” or “I don’t remember,” as opposed to, “I don’t know.” If a client does not remember, you can salvage their testimony by either refreshing recollection under Indiana Rule of Evidence 612, or the information can be established as past recollection recorded under Indiana Rule of Evidence 803(5). These provisions are discussed below in greater detail.
Indiana Evidence Rule 612(a) provides: “If, while testifying, a witness uses a writing or object to refresh the witness’s memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.” Although this evidence rule contemplates the use of writings to refresh a witness’s memory, it “does not address the method by which the witness’s memory may be refreshed.” Thompson v. State, 728 N.E.2d 155, 160 (Ind.2000) (quoting 13 Robert Lowell Miller, Jr., Indiana Practice § 612.101, at 225 (2d ed.1995)), reh’g denied. In Thompson, the Indiana Supreme Court outlined the proper procedure for refreshing a witness’s recollection as follows:
The witness must first state that he does not recall the information sought by the questioner. The witness should be directed to examine the writing, and be asked whether that examination has refreshed his memory. If the witness answers negatively, the examiner must find another route to extracting the testimony or cease the line of questioning. Thompson, 728 N.E.2d at 160 (quoting Miller § 612.101 at 226). In Thompson, the Court recognized that Indiana Evidence Rule 612 does not suggest, much less require, that a writing used to refresh a witness’s memory have been prepared by the witness. Id. at 160-61.
Indiana Evidence Rule 803(5) provides that the following is not excluded by the hearsay rule:
Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party.
Federal Rule of Evidence 612 provides that: if a witness uses a writing to refresh memory for the purpose of testifying, either-(1) while testifying, or (2) before testifying … an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto.
Rule 612 is applicable to depositions and deposition testimony by operation of Federal Rule of Civil Procedure 30(c), which governs depositions upon oral examination. See Federal Rule Civil Procedure 30(c) which provides that “[e]xamination and cross-examination of witnesses [during depositions] may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615”.
If used the document to refresh his recollection, the Court must still make a determination on whether the “writing contains matters not related to the subject matter of the testimony.” Id. Make sure to cover these points with your client so that you are in a position to rehabilitate them.
How to Avoid Bad Questions and Answers
Helping your client refresh their memory regarding facts pertinent to the case is just the beginning of your job in preparing your client to testify at their deposition. You also need prepare your client for problem areas of questioning.
The following is a list of problem questions and how to deal with them during the course of a deposition of your client:
. Compound Questions
Compound questions are questions, which incorporate two questions in one. They are very deceptive and dangerous because a yes or no answer can be interpreted as an affirmative response to the underlying predicate. For example, “Do you beat your wife only on Tuesdays and Thursdays?” is actually two questions in one. The first question is, “Do you beat your wife?” and if yes, is it only on Tuesdays and Thursdays?
. Summary Questions
Another classic approach to the compound question is to summarize a client’s prior testimony, and then ask at the tail end a yes or no question. Clients often focus only on the yes or no question, and forget that by answering the question without objection or clarification they are affirming the entire scenario outlined in the question. While you, as an attorney, should object to such questions, it is important to educate the client on these problems as well, in case you fall asleep at the switch.
. Questions in Absolute Terms
Questions cast in absolute terms can also be a problem. Whenever an attorney uses such terms as, “Do you always” or, “Have you never,” they are attempting to lock your client in absolute terms. There is nothing wrong with being absolutely sure, you just want to make sure that that is, in fact, the case. If there are exceptions, then the client needs to avoid answering such questions in the affirmative. On the other hand, defense attorneys will use such absolute terms as a means of unnerving a client and backing them off of their testimony. The point is, make sure if you answer in absolute terms, that you’re absolutely correct.
. Milk-Toast Answers
The flip side of this is to water down answers with qualifiers such as, “I think,” “I believe,” or, “In my opinion,” when you actually know the facts. Make sure your client avoids using such terminology. It is better to indicate that you don’t know or recall than to guess or speculate. Once again, the primary rule is to answer truthfully and accurately.
. Exaggerations
Do not exaggerate: Don’t take a good case, try to make it a great case, and turn it into a bad case. The first rule I learned when I began doing defense work from the senior partner at the firm I was at was to let a Plaintiff exaggerate all they want. There is nothing that more quickly undermines a claim or gives rise to the all-popular defense mantra of “secondary gain” than needless exaggeration. This is why reviewing a client’s medical records with the client in advance is imperative.
. Opinions
Be careful of giving opinions, as they are the doorway to guess and speculation on the part of a client. If a client starts to guess and speculate, the next thing you know, they are giving inconsistent answers or violating the rules of physics. As Sgt. Friday in Dragnet said, “Just the facts, ma’am, just the facts.” This should be your mantra to your client as well. Stay factual! Do not guess, and do not speculate. You do not have to have an answer to every question. Remember you are a “human being, not a computer.”
. “Would It Be Fair to Say…”
Usually when an attorney begins a question with, “would it be fair,” it is absolutely unfair to your client. Anytime a client hears a question prefaced with such a line, they should make sure they in fact agree with the proposition set forth in the question.
. Narrative Questions
Defense attorneys will often ask, “Tell me everything that’s still a problem.” The difficulty with this question is that a client can forget important details of their injuries or losses when asked to simply list everything under the sun without any other prompting. While you can object to the form of the question on the grounds that it calls for a narrative, your client ultimately will probably have to answer it. It is important to review in advance all areas of losses and damages with the client to ensure that that do not forget anything. Your client should be prepared to answer at the end of their list that that’s all they can recall at the moment. This allows you to clean the topic up on cross, or later through the signature process where your client is allowed to review their deposition before it is sealed.
. “How Much Is Your Case Worth?”
This is a question that I have used with Plaintiffs, and oftentimes catches them totally off guard. Ultimately, I think the best response is to say that I’m not an expert in evaluating these sort of things, and am trusting my attorney’s best judgment, as well as that of the jury. To actually provide a dollar amount can make your client appear greedy, and be used to prove motive for secondary gain.
. Other Trick Questions
Another classic question to unnerve a witness or a client that attorneys will often use is, “Have you talked too anybody about this case?” Sometimes, a client will think that they’ve done something wrong by discussing their testimony in advance. The client should be put at ease that there is nothing wrong with preparing for their deposition or meeting with you in advance. In fact, most jurors expect attorneys to meet with their clients, as well as witnesses, in order to properly prepare for trial. Obviously, your client has talked to you, and such information is privileged. If the question is posed by opposing counsel and you fall asleep at the switch, you want to make sure that your client seeks a clarification as to whether the attorney is, “Asking for information discussed with counsel.” If your client has discussed the case with other persons, you want to identify this well in advance of the deposition, so that you don’t have to deal with needless prior inconsistent statements.
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