I’d like to share an e-mail discussion among some plaintiff lawyers regarding the followingquestion:
What do you all do when you get back the deposition corrections sheet from the defendant and find many "yes"s are changed to "no"s and visa versa, materially changing key evidentiary issues for which follow questions would have certainly been asked at the deposition had the defendant answered as appears on the correction sheet.
Some responded with the recommendation oftaking a second deposition of the witness and asking why the changes had been made.I didn’t agree with taking a second deposition and my response was a recommendation toinsteadcapitalize on the fact the witness had decided to make the change. I recommendedediting a clip of the original video deposition testimony and using that with thecorrection page to demonstratea change had been made. I suggested this be done without takinga second deposition.My reasoning was that it was better to put the focus on the fact there was this inconsistency rather then the reason for the change. I suggested that it was better to force the witness to deal with it in front of the jury rather then hear an explanation created after the deposition.
An outstanding lawyer who was part of the exchange said that it was an interesting question but he would want to know the explanation before he heard it for the first time at trial. My response to him was that every trial lawyer has a different approach at trial that’s comfortable for them so I wasn’t claiming thatlawyers who disagree with my approach are wrong, but rather I was giving my personal preference.
So why do I feel that way? I would not take a second depostionfor an explanation for two basic reasons. The first is that the explanation that’s offered for the correction isn’t the significant issue or at least should not be made the significant issue. What is signifiant is that the witness felt it necessary to make a revision. Since trials are a battle of impression and not logic, my approach to this would be to focus totally on the fact there was an inconsistency when there should never have been one in the first place.That’s because the witness had full opportunity to answer correctly at deposition and after deposition change raises credibility issues. The second reason is the witness will be much more apprehensive about cross examination on the inconsistency if he or she has not had a dress rehearsal and has no clue as to what your attitude will be or what your cross examination will be on the point. Since the witness’s lawyer will have spent a lot of time with the witness helping the witness with the explanation, the witness’s concentration will be on the reason the first answer was wrong.When the cross instead is on the factthere should never have been any conflict on such a major point, the witness will be less prepared to deal with it.
One huge caveat: It has to be something important. You must not impeach, or at least impeach with drama, in my view, on trivial or only slightly important matters because the jury thinks you are being technical and unfair. Jury research supports this and I suggest you evaluate what inconsistencies you impeach a witness over.
So, how would I change the focus to questioning how it is there could be any conflict now over an answer at deposition on a key point in the trial? Well, I haven’t seen the lawyer’s deposition so I don’t know the contents and I don’t even know if the lawyer had video taped it. By the way, is has been my policy for many years to video tape all witnesses depositions except my clients.The benefit is I can print a photoof the witness, I can edit clipsfor impeachment and I can show clips to a focus jury for their evaluation of the witness. Here are some thoughts abouta general approach I’d consider following.
First, I’d decide what tacticsto use. Should I do the build up of the importance of a deposition before confronting the witness with the inconsistency or lay some foundation aout it and then confront the witness followed by more cross or should I do it allafter the impeachment? You need to decide that on a case by case basis. Second, I’d decide what kind of a legal foundation I’d create for admission of the inconsistency.It depends upon the judge and defense counsel and the situation. Sometimes I just charge in with the challenge of inconsistency and ask the witness about it before doing the formal foundation. Most often, however, I want to demonstrate fairness and I follow the usual steps: (1) date of deposition (2) page and line number (3) provide copy to court and counsel (4) wait for everyone to be on the same page with me and then offer the inconsistency. In almost every case that will involve a video clip so instead of reading it I would play it. I would follow that with cross examination about it.
The questions I’d ask about it would be directed at the unlikely event the witness simply made a mistakein the testimony about a key point that became evident only after the witness read the final deposition report.The questionswould vary substantially from situation to situation, but would likely involve something along these lines where it was the defendant who made the change. Please remember this is not a model, but an illustration of questioning one might consider:
- Before the deposition you were fully aware of the importance of what you said under oath?
- You knew that the purpose of the deposition was to give truthful, honest testimony?
- I’ll bet your lawyer told you that the one important rule was to just tell the truth – right?
- You spent time with your lawyer in discussing the deposition before it happened?
- You went over areas of likely questioning and your answers with your lawyer?
- You were told it was important that you listen very carefully to the question before answering?
- To not answer too quickly, until you had a chance to think about the question and make sure you understood it?
- To not answer any question when you didn’t know the answer or weren’t sure of the answer?
- At the start of the deposition I told you that I didn’t want you to answer any question you didn’t understand?
- I told you that if you needed break you could take it?
- I told you if you wanted to correct an answer you had already given, to feel free to do so at any time during the deposition?
- I reminded you that this was an important deposition and to be sure of your answers before giving them?
- You gave the answer we just showed the jury at the time of the deposition?
- You had plenty of time to hear the question and to think about it?
- You didn’t say to us that you didn’t understand the question?
- You didn’t say to us that weren’t sure or were confused or needed time to reflect on it?
- You didn’t offer any qualifications or explanations – you just gave this answer?
- You were fully aware of the fact this was a very important issue in the case?
- You knew your answer had great significance to the issue in the case?
- When you gave the answer you knew you were under oath?
- You knew when you gave the answer how important it was to answer truthfully?
- After giving that answer there are one hundred pages of questions and answers before we finished right?
- At no time during the remaining one or one and a half hours you did not clarify, change or revise the answer you had given before?
- At the end of the deposition I gave you a final opportunity to change any answer you had given and you didn’t want to change your testimony under oath about this question did you?
- The deposition was on November 1, 2009?
- You filled out this correction sheet on December 1st a month later?
- That was the first time you claimed you had made a mistake about this important answer you had given a month before?
- You talked to your lawyer about this change in your testimony before you made the change?
- You knew the importance of the answer you had given under oath when you decided to change it a month later?
- etc etc
The above is just off the top of my head as I type this on thoughts about what you might ask.The goal is makingthe focusnotthe reason for the change butfact the witness made a change.By doing that you cast suspicion on the credibility of the witness which is more important then the reasonableness of the explanation for the change when it comes to jury impression.
I understand why many lawyers would want to know the reason for the change before confronting the witness at trial. Most lawyers have practiced under a system where they can obtain through discovery almost everything in advance of trial and are only comfortable when they have done so. But my personal view is that I prefer not to do give the witness the opportunity to offer an explanation before trial assuming you have a clear inconsistency on a major point. Perhaps my viewpoint on this is due to the fact that when I started the practice of law fifty years ago there was virtually no meaningful discovery. The first time you knew who the witness was or what they were going to say was when you heard it for the first time in the court room. As a result, you learned what to cross exam about, how long to cross exam and when to milk a situation for the impression it made on the jury. As a result, I am constantly viewing the trial from the view point of jury impression.
Please note that this is a discussion which does not have a right and wrong answer to the question, but rather is a matter of lawyer discretion. I hope it has some benefit to you.