Prior Inconsistent Statements and Deposition Testimony — What About Differences Between the Errata Sheet and the Deposition? 3 Approaches: “A deposition is not a take home examination.” Greenway v. 1. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992). Anything goes, as long as 30(e)’s technical requirements are met. 2. Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D. Ill. 1981) (“language of the Rule places no limitations on the types of changes that may be made…even if the changes contradict the original answers”). 3. Substantive changes are fine, as long as they do not contradict deposition testimony. Thorn v. Sundstrand Aerospace Corp. , 207 F.3d 383, 389 (7 th Cir. 2000). *Regardless of approach, the original answers remain part of the record and are fair game at trial. 46
Prior Inconsistent Statements and Differences Between the Errata Sheet and the Deposition: Challenge or Opportunity? Challenge Is there an inconsistency if the trial testimony is identical to the errata change? To the original deposition answer? Opportunity Impeachment smorgasbord. Witness who keeps changing answers may have credibility issues. “Multiple impeachment” (Steven Lubet’s point): Even if the inconsistency is on a minor matter, the aggregate effect of minor inconsistencies may be significant. 47
Prior Inconsistent Statements and Expert Witnesses: Goldmines and Landmines 48
Prior Inconsistent Statements and Expert Witnesses: Goldmines and Landmines Goldmines Many experts have written, spoken, and testified on the subject of their trial testimony, A LOT! There are likely to be inconsistencies. There may be multiple inconsistencies on the same subject. 49
Prior Inconsistent Statements and Expert Witnesses: Goldmines and Landmines Landmines There may be so much material available that you will have a difficult time reading it all. It’s easy to get greedy with inconsistencies, so pick and choose carefully. Most good experts are prepared to deal with inconsistencies, so don’t expect a “gotcha.” What you call inconsistency, a scientist may call evolution in thought. In science, thought is constantly evolving, and it is very easy for an expert on a scientific matter to exploit this to explain away inconsistencies. 50
Impeachment and Expert Witnesses: While We’re On the Subject, Let’s Talk About The Learned Treatise Not the same thing as prior inconsistent statements, but this is a good sidetrack , er, segue. 51
Impeachment and Expert Witnesses: While We’re On the Subject…The Learned Treatise An exception to hearsay. 52
Impeachment and Expert Witnesses: While We’re On the Subject…The Learned Treatise FRE 803(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if: (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit. 53
Impeachment and Expert Witnesses: The Learned Treatise Must be authenticated. The expert must testify that the text is generally regarded as authoritative or reliable by those in a particular field. But need not be authenticated by the expert currently on the stand, as long as authenticated by some expert who has testified in the case. That means that your expert can refer to the text and then you can use it against the other side’s expert . Expert need not have read the passage in question. May be used as substantive evidence or for impeachment (in federal court). 54
Prior Inconsistent Statements: Make ’Em Sweat… 55
A LOT. 56
Prior Inconsistent Statements: The Four C’s Commit the witness to the fact you plan to attack Credit the impeaching statement (you made under oath, close in time, etc.) Confront witness with the statement. Confirm with witness that you have read it correctly. 57
Prior Inconsistent Statements: Do’s Do pick your battles, and impeach only on significant issues (unless you have a good multiple-impeachment case). Do impeach on actual inconsistences, not ambiguities. Do know your record. If the witness clarified an answer and explained away a potential inconsistency, or otherwise qualified an inconsistency, make sure you know that. 58
Prior Inconsistent Statements: Do Not’s Do not take liberties with impeachment. If you are being cute, the jury will know. Do not give the witness wiggle room —e.g., “do you recall?” Nail it down. Do not impeach for the sake of impeaching, especially if the statement you are impeaching is good for your side. Do not keep going after you have established the inconsistency. Resist the Perry Mason “aha” exclamation during the examination. It hardly ever works. Save it for closing. 59
Bias, Prejudice, Motive, and Interest Rule ? There isn’t one, at least in the federal rules. No FRE explicitly addresses these bases of impeachment. 60
Bias, Prejudice, Motive, and Interest Bias: An individual/personal reason that prevents a witness from being impartial and objective (family relationship, grudge, employment situation, personal history). 61
Bias, Prejudice, Motive, and Interest Bias: This is key with expert witnesses. Does the expert testify exclusively for one side on an issue? Does the expert work for an industry that stands to benefit from testimony? Has the expert demonstrated a point of view in prior publications? 62
Bias, Prejudice, Motive, and Interest Prejudice: A group-based reason that prevents a witness from being impartial and objective (racial, ethnic, religious, ideological). 63
Bias, Prejudice, Motive, and Interest Motive and Interest: The witness stands to gain or lose depending on the outcome of a case. Greed, fear, revenge, love, or all of them, may color testimony. 64
Bias, Prejudice, Motive, and Interest Motive and Interest: Particularly important with experts who are “hired guns.” 65
Bias, Prejudice, Motive, and Interest Motive and Interest with Expert Witnesses: Easy to capitalize on public distrust of scientists paid by industry. 66
Bias, Prejudice, Motive, and Interest Motive and Interest with Expert Witnesses: But it is also easy to take it to far. Be careful with the “hired gun” approach, because it works both ways. 67
Contradictory Facts What are they? Facts that are different from what the witness testifies they are. 68
Contradictory Facts Deal with them like you do prior inconsistent statements. The form of the question matters. 69
Contradictory Facts Form dictates proof. Example 1: Q: “Did you drive your car between 8 and 10 pm last night? A: “No.” Example 2: Q: Didn’t you drive your car into a ditch last night at 9 pm? A: “No.” 70
Contradictory Facts In Example 1, the question did not assert a fact. The witness’s answer ends the colloquy. In Example 2 , the question’s form implies that the witness actually drove into a ditch. With the witness’s denial, the questioning attorney may now need to prove it with extrinsic evidence (if it is noncollateral). 71
Thank You! 72
Thank You! It’s Over. Sean Costello, Esq.* The Law Office of Sean P. Costello, LLC Columbus, Ohio www.seancostellolaw.com sean@seancostellolaw.com *Licensed to practice law in Georgia and Ohio.
Impeachment of Witnesses in Civil Litigation: Strategies for Discrediting Adverse Witnesses (continued) Strafford Publications Webinar November 17, 2015 John Zen Jackson jjackson@mdmc-law.com
Topics to be addressed (1) Impeaching Your Own Witness (2) Avoiding Pitfalls of Impeachment (3) Rehabilitating Witnesses After Impeachment 75
(1) Impeaching Your Own Witness 76
Common law concept of vouching for witness is gone 77
FRE FRE 607 607 - Who May Impeach a Who May Impeach a Wit Witness ness Any party, including the party that called the witness, may attack the witness's credibility. 78
Consider impact if you have the burden of proof Does disbelief of the now discredited witness provide affirmative proof regarding the subject of the impeachment? 79
If the impeachment is by a prior statement that had been given under oath, it is free from hearsay dangers and is excluded from the category of hearsay under Rule 801(d)(1)(a) so that it has substantive impact. 80
Same if the impeachment is by a prior statement of a party opponent 81
Where a party’s own witness provided damaging testimony, the party is permitted to contradict that evidence with evidence from another party witness. 82
Impeachment through contradiction by other witness 83
FRE 611 - Mode and Order of Examining Witnesses and Presenting Evidence 84
Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. 85
Direct impeachment under FRE 607 through prior inconsistent statements, convictions, bias, prejudice, reputation or other means can be done. 86
Refreshing the witness’s recollection ■ “I don’t remember” versus “I don’t know” 87
FRE 612 Writings Used to Refresh Recollection (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options. (b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross- examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. 88
Past Recollection Recorded 89
FRE 803(5) Exceptions to the Rule Against Hearsay – Recorded Recollection A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. 90
(2) Avoiding Impeachment Pitfalls 91
The purpose of cross-examination ■ To tell your story through the other side’s witnesses ■ To argue your case through the witness 92
Argue through the witness, not with the witness It is not necessary to cross-examine crossly. 93
The great error of cross-examination That every cross-examination should attempt to impeach the adverse witness 94
Inherent risk of failing in the attack on a witness's credibility has the consequence of impeaching and undermining the examiner's credibility 95
The Ethos of the Trial Attorney a/k/a Rule 1 "Maxim: Cross-examination as to credibility forces the cross-examiner to wager his credibility against the credibility of the witness and the adverse lawyer. " -- Herbert J. Stern, Trying Cases to Win: Cross-examination at 22 (1993) 96
Keep in mind the other ways to cross-examine ■ Cross-examining to Get Help (Hitchhiking) ■ Cross-examining to Limit 97
Elicit favorable information before attacking the witness 98
After eliciting favorable information, damage the witness early in the examination ■ The law of primacy 99
Quit while you are ahead and do not expect to hit a grand slam 100
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