For some years I have subscribed to the American Journal of Trial Advocacy. Subscriptions are available at $24 per year from the American Journal of trial advocacy, Cumberland school of Law of Samford University, 800 Lake Shore Dr. ROBH 301, Birmingham, AL 35229.
This month Garry S Gilden this written an excellent article “cross examination at trial: strategies for the deposition” which I recommend to you. Some of the points he makes include the following. He sets out the basic format for impeachment at trial from the depositions. He outlines the foundation which should be laid at the deposition to avoid the witness evading the impeachment attempt. This foundation includes an acknowledgment from witness that:
(one) the witness acknowledges he or she is under oath (two) the witness is not taking medication might affect the ability to testify truthfully (three) the witness can hear the questions clearly and (four) the witness will speak up if they do not understand the question and (five) the witness will have the opportunity to read the deposition if they wish and make corrections.
As to technique, he recommends one fact per question to control the ability to be evasive. He suggests that the question involved objective facts and avoid the request for subjective conclusions from the witness. For example if one asks “Isn’t true that as you drove on College Street at the time of the accident, you were speeding? ” the witness me have an explanation as a response. However, if one were to ask what the speed limit was and then the speed at which the car was moving you avoid the problem.
To limit an area he recommends what he calls “the funnel technique.” By that he means asking a question such as “Please tell me each and every reason for an action.” This is followed by such questions as “were there any other reasons ?” and ended with and have you now told me each and every reason?”
With regard to the impeachment at trial, he suggests an indirect approach allows evasion. Questions such as “didn’t you testify at deposition” or “read page three, line four to the jury” allow explanation with answer. Instead he recommends the lawyer reading the answer or showing it on a screen and asking “Have I read that accurately?”
The suggestions are fundamental, but on point and a good reminder to us all about preparing for depositions properly.,