Misbehaving and Dealing with the Same During a Deposition
Depositions are legal proceedings which are not typically officiated by a court officer. During such affairs attorneys can behave quite badly. Such behavior can range from simple rudeness to conduct that borders on criminal conduct such as threats of bodily harm or emotional charges to go outside and handle the matter like a man. Needless to say, you don’t want to be that guy. Only the trial court can legally terminate a deposition for abusive conduct by an attorney. Rule 30(d)(3) of the Federal Rules of Civil Procedure provides that a party may move to terminate or limit a deposition “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.” If the deposition is terminated you must immediately seek the trial court’s assistance and approval.
This not a course to chart unless it is justified. You and you client can be subject to sanctions and even disciplinary action for improperly terminating a deposition. See Rule of Professional Conduct 3.4. If you guess wrong and do not terminate the deposition properly, you can be responsible for paying the other party’s attorney fees. Smith v. Logansport School Corp., 139 F.R.D. 637 (N.D. Ind. 1991). Here is a famous example of things going south during a deposition courtesy of YouTube:
So be ready if abusive behavior occurs during a deposition. Act quickly and wisely… and remember don’t be that guy.
Why Sorry is the Badest Word…
An expression of regret or an apology by a Defendant is nothing new when a case doesn’t settle and finally makes it to trial. However, should this be allowed? Why no!
Defendants should be prohibited from expressing any apologies or statements of regret to the jury in connection with a civil case not seeking punitive damages. Whether one is sorry or not for injuring a person constitutes neither a defense, nor is it relevant to any issue concerning whether or not to grant compensatory damages. The sole purpose of making such a statement to a jury is to encourage them to return a reduced verdict because the Defendant is sorry about what happened and is really a good guy. General appeals to sympathy or prejudice on the part of a jury are inappropriate and should be prohibited by a trial court. The jury’s obligation is to render a verdict for just compensation, not to hear confessions or grant absolution. Their function is not to forgive, it is to fairly compensate one for their injuries. Only God can forgive.
Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue involving either liability or damages. See Rules of Evidence 402 and 403. See generally, King’s Indiana Billiard Co. v. Winters, 123 Ind. App. 110, 127, 106 N.E.2d 713, 721 (1952). So cut this tactic off with a pretrial motion in limine. Otherwise you may be sorry you didn’t.
Screen Your Expert and Treat Your Case Right by Avoiding Any Big Tricks…
An area which is often overlooked is screening your expert. This is important. Treat it
like you would a major purchase, because it is.
(a) Review and verify Curriculum Vitae. You can devastate an expert if he
lies on his CV. I have done this before with experts who had a long history of testifying.
Surprisingly, even though they had been around for years as experts no one had ever
checked out their background to see if they were legitimate. In one instance I found that
the expert not only wasn’t a professional engineer, but he had never even completed his
degree in engineering! At that time, I used a private investigator to dig up this information. Today you check such things yourself online.
(b) Internet search of expert. Do Google, Bing, Google Scholar, Yahoo
searches of your expert using the following format: “ EXPERT NAME” AND “keywords”. I use key words and phrases such as “ testimony”, “ppt”, “lawsuit”, “pdf”, “
lawsuit”, “deposition”, “You Tube”, “video”, “MIL”, “motion in limine”, “motion to exclude”, “daubert”, “frye”, “conference presentation”, “author”, “dissertation”, “thesis”,
“capstone”, “expert witness” etc. You can also do a full legal name search using the case
law filter to see if you can find any lawsuits.
(c) Expert databanks. Organizations, attorney associations AAJ, State Trial
Lawyers Association, professional list serves, TrialSmith, Westlaw, Lexus-Nexus, often
provide either searchable databases or bulletin boards where information can be electronically posted for inquiry and response. Some can be used at no cost, while others
charge a fee or subscription for searches.
(d) Search of reported cases. I would examine both civil and criminal court
dockets, PACER, Westlaw, Lexus-Nexus, electronic court records. Your expert may have
testified or could have been excluded as a witness. Does he have convictions? Does he
have legal or financial problems?
(e) Obtain and check references. Your check should include calls to attorneys listed by your expert as well as attorneys discovered in published cases.
(f) Verify licensing. Is your expert really licensed or certified? Check– it
should be free. Has he had any disciplinary actions taken against his professional licensing? How will you handle this at trial?
(g) Review website and advertising of expert. What does he say? Are
articles attached or linked to the website? Check out his CV and terms of engagement as
(h) Review social media of expert. Does the expert have a business or
personal page on YouTube, Facebook, Twitter, LinkedIn, etc. What articles, videos, or
comments has he posted?
(i) Eyeball test. What kind of appearance does the expert make? Is he goofy
looking? Is he sloppy or slovenly in his appearance? Is he well spoken? Does he make
good eye-contact? Does he fit the part? Does he have charisma or personality? Would
you want him as your teacher? That is what he will be doing for you: teaching the jury
about your case.
(j) Excluded. Has your expert ever been excluded or admitted to testify over the
objection of opposing counsel? He should know this answer and be able to give you
past hearing transcripts, legal briefs and rulings.
You will be surprised by how much exaggeration and unsubstantiated bragging is contained in an expert’s CV. Find your expert’s problems before you spend your money and risk your case by placing it in the hands of the wrong “expert.”
Direct Examination and Airing Your Dirty Laundry
There is no tactic which will better serve you and your client in establishing credibility with the jury then to bring out negative points during direct examination and confronting them head on with believable explanations. If you wait until redirect, then it may be too late to salvage your witness. I always make a list of problems as the case progresses from investigation through discovery and on the trial. Come up with a strategy of either excluding the evidence or find a way to deal with it honestly and persuasively before the jury.
During direct examination, you can ask questions of your client or witness the jury is likely thinking. The witness is then provided an opportunity to take some of the sting out of the evidence by having a friendly questioner take them through the problem. The opposing attorney on cross-examination will be much more reluctant to extensively cover that area and come across as overbearing, looking as if he is desperate as he has nothing else to ask or add to outside of your examination.
The client or witness should be cautioned to stay calm throughout their cross-examination on any such topics. Once the matter has already been brought out to in direct examination, the jury will be looking much more at the witness’s reaction on cross. If they do not react and you do not react, the jury will likely conclude that the matter is not critical to their decision. Most jurors have never been in a courtroom before and will not consider the points important unless you act like they are.