Recently I was asked by a lawyer what I recommended for a deposition the lawyer was taking involving witness who was going to testify to facts in direct conflict with his client’s testimony. A classic two versions of the same fact in conflict. I advised him that these are difficult examinations and had this advice.

To illustrate my advice, I’m making up an example of a case with a conflict issue similar to the lawyer involved. Imagine a case involving a newly hired clerk at a twenty-four-hour small business like a 7/11 who was held up and shot. The clerk, who is the plaintiff, claims the owner knew of the security danger from a previous incident and failed to warn the clerk or take safety measures. Another employee had been previously held up and injured. Now this former employee is going to testify she warned the client about the danger before the robbery and the client did nothing. The client denies it.

Here’s my very general advice.  I think you should include as your plan for the deposition these ideas:

1. You want to commit the witness to their story so there is no room for revision or evasion later. That means details, not generalities.  Who, what, when, where, how many times, why etc. Leave no opening for later giving the witness a chance to explain or add or revise the story as an explanation at the time of trial. This should include the full story – before, during and after – not just the specific conflict.
2. You want the contrast between the two versions,  the client and the witness, to be clear. To do that you need to question the witness about each detail of  the client’s claims and testimony. You want to know exactly what the conflicts are in detail. You should include the client’s surprise and emotional reaction to learning about this witnesses conflicting testimony and the witness’s feelings and reaction to the conflict. Look for explanations or excuses.
3. If you have a clear-cut example of lack of credibility such as a previous  inconsistent statement on the part of the witness use it to see what explanation, if any, is offered.
4. Your deposition should also explore and establish any positive facts or opinions that are helpful to your case.
5. A key factor is the impression the witness makes. Be sure to video tape the testimony for possible focus group review of witness impression and credibility.

At this stage the lawyer’s demeanor should be very calm, matter of fact and professional. No anger, finger shaking or drama. “Just learning the facts” kind of approach. In my view, there are two essential factors in a situation where there is a direct conflict between a witness the client on an important point:

• Credibility evidence regarding bias, prejudice, self-interest or corruption
• A reasonably plausible motive for the witness to tell their story

I suggest your stages of examination should be:

1. Who are you? Full background family background, education, work history, relationship to everyone in public defender’s office, trial and work experience. Everything that might reveal motive or bias plus qualifications.
2. The witnesses story should be totally described to contrast it with the client’s version.
3. There should be a full exploration of all credibility issues in a non-accusatory or threatening manner. Inconsistent records or statements or actions etc.
4. Most important look for any and all possible motives or explanations.

In creating your deposition approach and searching for possible motives or reasons the witness would offer this conflicting testimony, consider these factors:

• Think about the claim being made by the witness. This is someone who was so emotionally traumatized by her experience the store agreed to adopt new rules. This was an emotionally charged experience she will never forget and which has caused her a great deal of emotional anguish to this date. Be sure you emphasize how horrible it had been and continued to be for the witness. You also want to emphasize she the extent of her fully warning your client about all of it.
• Next, bear in mind the witness will claim she warned the client. Yet, the witness wants us to believe, in spite of the client being told about all this and being warned, the client ignored this warning and danger. Instead, the client did nothing about it and continuing working there. That makes no sense. No reasonable person would risk their life or themselves when they knew that the previous employee had gone through this horrible experience without doing something.Does she blame the client for being an idiot or does she claim your client misunderstood and if so what effort did she make to clarify and if not why not etc. etc.
• The important question then becomes: Why? Why would the client do something that dangerous, risky and emotionally damaging without doing anything or saying anything? The “why” is a key issue here. What’s the witnesses explanation? A Key factor is what is it the witness says the client responded as to why they ignored the warning?
• More importantly, given the serious nature of this situation what did the witness do? Did she contact the owner? Did she talk to anyone else and warn them for the client? Did she contact the client more than once? If not, why not?
• On the other hand, consider a possible explanation for giving this testimony. Suppose the witness didn’t fully warn or didn’t warn at all. What if she mentioned what happened to her in a light way, but not a full disclosure or advised in an ambiguous way. Or also consider the possibility the witness may have decided not to say anything even knowing about the situation or simply was negligent in not warning the client resulting in the client being subjected to the same or worse experience. Wouldn’t you expect the witness to feel great guilt or at least shame at having failed to do so when the client was subjected to the same or worse treatment as a result? Wouldn’t you expect a normal person to mistakenly believe they did say something or simply decide to claim they said something when they didn’t out of shame and guilt. Even if she did say something in some light and oblique manner to the client, but failed to make it absolutely clear how serious the problem was, wouldn’t she be likely to think she said something or be motivated today to claim she did warn instead of admitting the truth? Does she feel any guilt at not having said more or follow up? Exactly what is her reaction to this having happened?
• No sweeping generalities here. Precise, short questions about details. You are painting a word picture. Imagine you are describing a silent movie to a blind person. Make it detailed, in color and precise.

This is why it is so critical for you to very carefully establish the full version and circumstances of the claim warning. You need to know exactly what was said and the full who, what, when, where and why.  Time date and words. You need to know why more wasn’t said or done on that date and on every day, nothing more was said until now. You need to establish exactly what is claimed your client responded and the demeanor and attitude of both. A very detailed and complete picture about this is extremely important to your case.

It’s not a complete outline nor does it fit every situation, but it’s a guide to some thoughts on how to handle this situation.