The article below describes the legal discovery process, and was prepared by Richard W. Morefield, Jr., of Bottaro, Morefield & Kubin, LC, a personal injury law firm in Kansas City. For more information, or to set up a free case evaluation, please contact us online, or via phone at 816-531-8188.
DISCOVERY TO SUBSTANTIATE TRUTH OR FALSEHOOD
Materials prepared by Richard W. Morefield, Jr.
Bottaro, McCormick & Morefield, L.C.
4700 Belleview, Suite 404
Kansas City, Missouri 64112
I. Building the Foundation to Determine the Truthfulness of a Witness
One of the most exciting experiences in litigation is catching a rat. Hollywood provides us with entertaining examples of expert trial lawyers catching dishonest witnesses in lies, unmasking falsehoods on the witness stand and bringing victory to deserving underdogs. Unfortunately, Hollywood normally does not show what the lawyer must do behind the scenes to achieve such stunning results.
One exception is the movie, The Verdict. In The Verdict, Paul Newman portrays the nearly washed up, beleaguered plaintiff's counsel in a medical malpractice case against a large hospital. Newman's opposition is a well funded, ruthless defense firm. In the film's climax, Newman demolishes the defense with the revelation that medical records had been altered at the direction of one of the doctors. What makes the film unusual is that it shows the leg work behind Newman's devastating cross examination. Newman searched phone books, libraries and drove to another town to locate a missing nurse identified in the medical records. After countless hours of work, he located the nurse who became his star witness.
The Verdict is an excellent example of how a foundation must be built to prove the truthfulness or dishonesty of a witness. Building the foundation requires a great deal of digging and a great deal of time, but provides a great deal of satisfaction when the case comes together. The film demonstrates the importance of questioning all evidence and attempting to either corroborate it or prove its falsity. In this section, informal evidence gathering is discussed.
a. Basic Witness Information
Although it may not seem very important, even basic witness information should be verified and corroborated. Basic witness information includes name, previous names, address, past addresses, phone number, date of birth, place of birth and social security number. This information is the key to unlocking some of the other information available as discussed below.
In some cases, the basics may be helpful in impeachment. In the recent L'Donna trial (an alleged murder for hire scheme by one of the Plaza area carriage company owners), the prosecution's key witness used a false name on the witness stand. Although the witness's name may not seem to be a key piece of information, demonstrating that the witness has lied about his own name could be the beginning of a great impeachment.
b. Educational Information
Educational information can be extremely useful for finding potential witnesses and additional evidence about a key witness or party. Once the lawyer has learned where the party or witness was educated, he or she can locate high school or college yearbooks and can locate friends, acquaintances or enemies who have useful information.
For example, in a personal injury case our firm was defending, one of my partners learned that the plaintiff, who had suffered a "debilitating back injury", was getting married. My partner located a college yearbook and contacted one of the plaintiff's old fraternity brothers. Unfortunately, we were two days too late to get our investigator to take some covert videotape at the plaintiff's bachelor party which was held at a local "dancing" establishment. Although videotape of the plaintiff cavorting at his bachelor party would have led to an interesting cross examination, we obtained other information that was helpful in getting the case settled at an appropriate level.
c. Employment Information
Employment information can be useful for locating other witnesses, developing a time line for the witness and for corroboration purposes. Look for gaps in employment that indicate time off for injuries, incarceration or other reasons. In an injury case, even past employment records can be useful in dealing with a lost wage claim. The plaintiff may have had a history of alcohol or drug use on the job or other problems that may be inconsistent with their claims. These records are important to the plaintiff's lawyer as well who needs to verify that the client is being forthright and that there are not any skeletons in the closet.
d. Criminal Records
All witnesses should be questioned about past felony or misdemeanor convictions or guilty pleas. This information can also be obtained directly from the state. A criminal records check can also help turn up witnesses who seem to have vanished. When an important defense witness is located in a prison cell, the very real threat of a video deposition featuring the witness in a bright orange prison jump suit can affect the value of a case.
e. Pasts Claims and Lawsuits
It is almost always useful to know the litigation history of the plaintiff and defendant. Many courthouses have computers available where the lawyer can determine if the witness has sued or been sued in the past. This information may provide clues about whether the plaintiff is litigious, whether the defendant has committed prior bad acts or the defendant has already been drained of assets.
Three years ago, our firm represented the plaintiff in a car fraud case in federal court. During the Rule 26 disclosure conference, the defense counsel revealed three prior lawsuits against his client and represented that they were the only ones of which he was aware. Previously, we had searched the courthouse records in three counties and contacted the attorney general's office. Our research revealed more than 10 prior claims. The other attorney, who apparently had been misled by his client, was red faced when he learned about the other lawsuits. Had we depended on the honesty of the defendant, who we contended had defrauded our client, we would have had very little to work with as far as evidence of prior bad acts. The additional evidence we obtained took no more than a couple of hours of research.
In injury cases, one should always check for past workers compensation claims with the Missouri and Kansas Divisions of Workers Compensation. At the Kansas Division of Workers Compensation, a complete hard copy of settlement hearing transcripts can be obtained. In a recent case, we discovered that a man who had "never been injured before," had been represented by the same attorney and obtained settlements in two prior workers compensation matters involving the same body part. The transcripts of hearing from the prior workers compensation cases were used for effective impeachment during the plaintiff's deposition. That case was settled before trial.
f. Medical Records
Medical records are an extremely fruitful method of obtaining impeaching material in cases involving personal injuries. Keep in mind that there are federal and state laws governing how that information can be used. The restrictions on use and publication of medical records are even more strict for records dealing with the patient's treatment for drug and alcohol abuse and for certain other medical issues.
Medical records, ambulance records and hospital admission sheets frequently contain statements the patient made about how she was injured. Always try to speak with the author of admission notes, nursing notes, and ambulance records. Often, paramedics and others use code numbers or shorthand notations to signify the patient was under the influence of alcohol and drugs.
g. Surveillance
Judiciously used, video surveillance is an excellent method to catch the malingering plaintiff. Unfortunately, surveillance is expensive and often provides little in the way of results. By using the above methods first for checking on the background of a witness, the surveillance efforts can be better targeted to increase the probability of success. It is always helpful to have information about the target's habits, employment, doctors, etc. to provide to the investigator. Check with the various investigation firms. Many have ultra-small video tape devices that they can conceal in a shopping cart, purse, etc. for up close surveillance.
h. Experts
Experts can also be useful in developing impeaching information. Doctors who provide independent medical exams are an obvious source of information to combat the malingering plaintiff. Also, consider hiring a consulting expert to provide information and education about the opposing expert in cases where it would not be desirable to present a competing expert opinion. For example, the defense frequently will not want to present its own economist to rebut the testimony of one offered by the plaintiff. In those cases, a consulting economist can be extremely useful for providing the questions and concepts needed to attack the opponents expert. The other party's economist may base his opinion on faulty assumptions about wage growth, employment rates, inflation or discount rates.
When the witness to be impeached is an expert, take the time to locate and review their previous publications. Nothing is more effective than finding a published article that contradicts the testimony of the expert at trial. Also, contact other attorneys who have used or opposed the expert to determine if there is contradictory testimony or effective impeachment that others have developed.
i. Other Witnesses
Before beginning depositions, it is important to talk informally with as many non-party witnesses as possible. The additional information is almost always helpful in gaining insight into the real story, unadulterated by the litigation interests of the parties. This is particularly helpful in trying to develop an explanation for apparent contradictions in the client's or opponent's view of the facts.
j. Summary
Each of the above areas of information can be helpful in building the foundation for impeachment. Formal methods for obtaining the impeaching material are discussed below. Keep in mind that much of the critical information for impeachment can and should be obtained informally. Opposing counsel will not be aware of the full depth of the lawyer's knowledge of the case or theory. Informally developed information can be better used for purposes of surprise. Formal discovery, while useful, often provides little more than a good starting point for the real investigation. Relying strictly on the formal discovery tools provided by the rules often leaves the attorney with an incompletely developed case.
II. Written Discovery
A. Interrogatories
Interrogatories may be the most misused of all of the written discovery tools. Too often, interrogatories are used as a blunt instrument in the attempt to obtain any and all information even tangentially related to a case. This results in predictable objections and either too much or too little information. A better use for interrogatories is to simply determine the identity of the witnesses, the nature of the claims or defenses, the basis for damages, the identity of experts, the existence of witness statements and the identity and location of key documents. This type of information provides the aggressive attorney with the information needed to engage in critical informal discovery and investigation which can then be used to determine the veracity of the opposing party and other witnesses.
Damages interrogatories are particularly useful in understanding and subsequently limiting the damages claimed by the plaintiff.
B. Requests for Production of Documents
This tool is effective for impeachment purposes when carefully focused to locate specific documents or types of documents. Only rarely will the shotgun request for production of documents result in the production of the case winning document. Informal investigation and discovery can dramatically improve the ability to target the types of documents that are needed and that the opponent is likely to have.
When representing the plaintiff, find out from other sources what types of internal documents the corporate defendant should have and determine the names of relevant departments, divisions or sections of the corporation that are or were involved with the issues that are at the heart of the litigation. This can be done by consulting with contacts within other companies within the same industry, by consulting with industry experts or by consulting with organizations such as ATLA, MATA, KTLA, the National Association of Consumer Attorneys, DRI or MODL. Many of these organizations keep information or provide contacts with other attorneys who have information relating to the practices of specific companies.
C. Requests for Admissions
This is probably the most underutilized of all of the discovery tools. Narrowly worded requests for admissions can be used to hem the opponent in to a specific position, requiring him or her to admit or deny key elements in the case, and to establish the authenticity of documents. By having the opponent admit to the creation of other writings, the lawyer may be able to develop important material for later impeachment.
Often, a party will admit to the authenticity of a writing that is inconsistent with a position the party has taken in a case. In a recent contract case involving the sale of electronic equipment, the defendant admitted the authenticity of a letter he wrote to the attorney general's office. In the letter, he admitted that he had entered into an agreement to buy goods from our client. In another request for admission, he denied that he had agreed to purchase the goods from our client. Had the case not settled before the defendant's deposition, the defendant would have been compelled to admit he had lied in the request for admission or had lied to the attorney general.
Best of all, if the opponent denies one of the requests and the clients are required to prove it, the client may be able to have some of those costs assessed back against the opponent. The admissions lock the party into a position from which it is difficult to retreat. For that reason, requests for admissions are useful in cornering a party who is attempting to utilize alternate theories of causation or defense.
We often use requests for admissions that are directed to a defendant's denial of negligence or scienter in his answer and at other elements of our claims. When the defendant stands by his denial of negligence in the requests for admissions, it is important to follow up with a letter to opposing counsel informing her that, based on the denial, a deposition of the defendant will be necessary. If the defendant then chooses to admit negligence at trial in an effort to keep damages down, the defendant can be compelled to pay for the deposition costs. It also permits use of the defendant's denials at trial to demonstrate that the decision to admit negligence is a recent one based more on strategy than a desire to do the right thing.
III. Impeachment and Depositions
To effectively impeach a witness at a deposition or trial requires more than simply acquiring and marshalling a mountain of information, it also requires a carefully planned strategy for how, when and why to impeach the witness. Part of the strategy will be controlled by the information available for impeachment purposes, but the most important element of the strategy is to determine the purpose or goal of the impeachment.
A. Selecting the Appropriate Impeachment
Before rushing into the deposition, some basic questions must be asked. Does the witness have helpful as well as harmful information for the case? Will the witness garner sympathy from the jury? Is the witness an expert? Is the witness someone who must be destroyed, or simply someone who must be proven wrong on a few points?
1. Cross examination of a witness with some helpful information.
Many witnesses who will be called by the opponent have information that is helpful to your case or consistent with your view of the facts. These witnesses must be treated carefully. First, at deposition, it is best to obtain testimony from the witness about all issues that are helpful to your case before setting up impeachment. The witness will be far more helpful before he has determined that a part of his story is being attacked. Second, the impeachment should be no more destructive than absolutely necessary. It would be imprudent to demolish a witness on whom the client depends for some element of his case. The lawyer loses credibility if she asks the jury to believe selected portions of testimony from a witness that she demonstrated is an inveterate liar.
2. Cross examination of the sympathetic witness
The sympathetic witness must also receive special treatment. Examples of this type of witness are children, the elderly, clergy, and those with special needs or disabilities. As a rule the jury will always identify more with the witness than the lawyer, however, with the sympathetic witness, the problem is more serious. With the sympathetic witness, the lawyer may alienate the jury by attacking the witness. Yet, impeachment may be essential.
With the sympathetic witness, the goal is to set up an impeachment that attacks the foundation for the witnesses' testimony, not the witness himself. For example, in a product liability case we were required to attack the testimony of a 10 year old boy. The boy planned to testify about the condition of a table saw three years earlier when his father brought it home from the hardware store. A key issue was whether the saw was assembled when it was brought home. The boy gave conflicting testimony in his deposition and in a recorded statement taken closer in time to his brother's accident.
Before the deposition, we determined that even if the boy contradicted his first statement, which had been helpful to our case, we would not attack him as a liar. The boy's impeachment at trial was designed to raise questions about his ability to remember and about the perception abilities of a child. Our cross examination during the deposition and at trial focused on the fact that the trip to and from the hardware store was not an important event to the boy and that he had been bored by the whole process. We established that when his brother cut off part of his hand, it overshadowed everything else in his mind. We established that his memory would have been clearer during the week the saw was brought home, that it would have been clearer at the time he gave his recorded statement, and that it became less clear as time went on. We also established that as a ten year old, he was able to remember things better than when he was seven. The impeachment was effective without angering the jury. It was clear to the jury that the boy was a nice kid who did not remember much. They informed us after the trial that they had given no weight to his testimony. While it would have taken less time to impeach the boy directly with his prior inconsistent statements, the jury might have concluded that the lawyers were beating up on a kid and had taken advantage of him during pretrial questioning. Instead, they thought we treated the boy with kindness, but wondered why the plaintiff called him as a witness.
3. Cross examination of experts
Experts are another issue. Because they are paid to testify and some of them testify frequently, impeachment can be more direct and forceful. It is useful to review articles written by the expert before the deposition to determine if any of her articles advocate different principles than those she is relying on in the client's case. Where the expert's prior writings are consistent, it is helpful to enlist the aid of another expert who can provide factual or scientific information with which to attack the expert. Some areas to consider in setting up the impeachment of an expert or controlling an expert:
1. Does the expert have any other opinions not expressed in her report? Does the expert expect to render any other opinions?
2. How often does the expert testify for the plaintiffs or defendants?
3. How often does the expert testify for the other law firm? See, State ex rel. Lichtor v. Clark, 845 S.W.2d 55 (Mo.Ct.App. 1992) for an interesting opinion on discovery into an expert's alleged extensive relationship with a law firm.
4. Would the expert's opinion change if the information provided by the party who hired her was inaccurate? How would it change?
5. How much time did the witness invest in developing his or her opinion?
6. What specific facts did the expert assume or rely upon?
7. What percentage of the expert's income is derived from testifying and what percentage from the practice of their area of expertise?
Recently, I cross-examined a vocational expert who asserted the plaintiff was unable to work and could not perform any of her former jobs. The generality of the expert's testimony on direct was suspicious. His testimony was polished, but strangely devoid of hard facts. I began asking the expert to explain the specifics of the plaintiff's former jobs. He could not state how much lifting plaintiff's former jobs required, what movements plaintiff was required to make in her former jobs, or the manner in which plaintiff performed her former jobs. He could not state whether the plaintiff could perform similar work if accommodated. He admitted that his opinion was only accurate if his assumptions about the plaintiff's work were correct. Some of his assumptions were patently absurd, such as his belief that the plaintiff, a slender, slightly built woman, previously swung a 16 hammer in one hand for eight hours a day. The expert even admitted he did not know if using a wheelbarrow could help the plaintiff because he had never used one himself.
While most experts have a far better command of the facts, it is worthwhile to probe this area in deposition. If the expert is conversant in the facts, no harm is done. If the expert was not informed of key facts or failed to do proper research and preparation, the expert can be destroyed at trial.
Learned treatises offer a great source for impeaching experts, especially those with opinions on the fringe of accepted scientific principles. The problem is that some experts refuse to accept any treatises as learned treatises. James McElhaney, in his Trial Notebook, offers a useful method of forcing an expert to identify learned treatises which can then be offered for impeachment. He suggests asking the expert questions that suggest he has not been keeping up with his continuing education. When the expert resists, the lawyer can ask the witness for a list of significant books and articles on which he has recently relied. That list can then be used as an additional source of material to read before trial to set up an impeachment of the expert.
4. Cross examining the witness who must be destroyed
Some witnesses, whether fact witnesses or expert witnesses, are so important to the opponents case that they must be destroyed. This approach to impeachment must be carefully set in place in advance of trial and should be used with caution since most juries tend to identify with witnesses rather than lawyers. When a witness is biased and openly antagonistic to the client, however, there may be no choice.
With the witness who must be destroyed, the trial lawyer must use every source of evidence possible to attack the credibility, perception, memory and truthfulness of the witness. This starts with the development of background information discussed above. It continues with pointed direct questions. Probing the witness's discussions with opposing counsel and their interest and bias in the case are fair game.
The best trial impeachments begin with an effective deposition. In a recent personal injury case, one of my partners deposed a hostile witness with an intense hatred of our client. Although the witness was not a party in the personal injury case, our client had previously filed a workers compensation claim against the witness' company. My partner began the deposition by having the witness admit that he had met with defense counsel. My partner asked the witness what subjects had been discussed with opposing counsel. The subsequent questions and answers demonstrated that the witness' testimony was tainted and led to an entertaining impeachment of the witness's credibility at trial:
Q: Has Mr. [Defense Lawyer] ever talked to you about who he represents in this case?
A: He represents [defendants].
Q: Has he ever stated anything to you that would lead you to believe or conclude that he represents your interest in some capacity?
A: I was -- I believe that he said he's the defending attorney
and that I probably paralleled and should support that end is my belief, my understanding from talking to [Defense Lawyer's First Name].
Q: Explain to me what you mean by that. I'm not sure I follow you.
A: That in talking with me that I should probably be supporting the defending side.
Q: So he told you when he came to meet with you to talk about [plaintiff]'s claim against [Defendant], that you should be supporting [Defendant]'s side. That is your testimony?
A: That is correct.
Q: Well, is it a fair statement, Mr. [Witness], that as a result of your communications with Mr. [Defense Lawyer], who represents the defendants, you reached a conclusion in your mind that it was in your best interest to have a position consistent with the defendants?
A: That would be a fair statement.
The revelation at deposition that the witness had been "advised" that it was in his best interest to support the defendant was a surprise, but one that was made possible by direct, pointed questions. Had the witness merely indicated he discussed the facts with opposing counsel, no harm would have been done other than spending a few seconds on an unfruitful subject.
B. Setting the Trap During the Deposition
1. Preliminary preparation
There are numerous techniques for trapping the dishonest witness during a deposition. The process begins when the lawyer begins managing the voluminous material gathered through investigation and formal discovery.
The key is preparation. Technology has finally made it possible for lawyers without photographic memories to develop devastating impeachment without memorizing the entire case file. Our firm uses databases developed in-house to manage documents, information, exhibits and file notes. There are numerous database programs on the market that are easy to learn and relatively easy to program. One of the applications we use in most cases has the following features:
1. Creates a time line that incorporates events, exhibits, testimony, medical records and even file notes. The time line can be modified to include as many or as few categories of information as desired.
2. Creates a complete exhibit list for trial that can be printed by date, exhibit number or status (i.e. offered, objected to, admitted, etc.)
3. Allows us to search for exhibits, events or testimony by subject, witness, exhibit number, Bates i.d. number, physician, medication, date, time, document creator or other topics.
4. Allows us to search for all exhibits that relate to a particular witness, subject or date.
Before any deposition, we use the database to develop a complete chronology of the case. The chronology printout will often reveal inconsistencies in the statements or documentation of the other party. It also is helpful in keeping track of multiple similar documents such as draft contracts, quotations, offers, counter-offers, etc. that are often present in business litigation matters.
The tremendous advantage of using a database to facilitate impeachment is that each document needs to be read and digested only once. The key information is subject to easy recall. With the documents organized and instantly available, the lawyer has a tremendous advantage over the dishonest witness who must keep all of the facts in his head and remember the details of his falsehood as well.
2. Before Impeachment Begins
When the deposition begins, the lawyer should cover the standard preliminary questions with the witness. The lawyer should explain the purpose of the deposition, obtain the witness's agreement that if he does not understand a question he will inform the lawyer, obtain the witness's agreement that if he becomes tired or needs a break that he will ask for one, inquire if the witness is having any physical or other problems that would prevent him from answering the questions and verify that the witness is not under the influence of any substance which would affect his ability to fairly answer the questions. Finally, the lawyer should inform the witness that if he needs to correct a prior answer during the course of a deposition, that he should do so as soon as possible. Each of these preliminary questions, though boilerplate, help prevent the witness from arguing later that his testimony should be modified.
3. Using Bookends
Effective impeachment at trial requires a concise and usable deposition transcript. This goal is sometimes hindered by the need to discover as much information as possible during a discovery deposition and by the need to follow up each potential avenue of information disclosed by the witness. Nevertheless, planning ahead will enable the lawyer to obtain key information and encapsulate it in a way that can be used at trial.
In a recent article in Litigation, Steven Day advocates a technique he calls "bookends." Bookends are barriers placed at the beginning and end of a subject area in a deposition. As Mr. Day notes, many times a witness will develop new information after a deposition. If the door has not been properly closed, or if a bookend was not properly placed, the witness can evade the examiner at trial by claiming the examiner never asked a question during the deposition that called for the new information.
To avoid this trap, the cross examiner must determine before the deposition what the key issues will be and where the witness could cause the most damage at trial. At the deposition, the examiner should tell the witness what will be discussed during the next few questions and have the witness acknowledge that he understands. The examiner should explain that he is looking for a complete description of everything the witness knows about the particular event or subject. The examiner should also gain the witness's agreement to provide answers that are as complete as possible. Although during preparation for the deposition the witness undoubtedly will have been instructed by the other lawyer not to volunteer information, it is difficult for a witness to refuse to give complete answers. This is the first bookend.
The examiner should then ask a broad question followed by a series of specific questions about the subject to be placed in the bookends. Once the lawyer has closed out the witness's knowledge, it is time to place the other bookend. The lawyer should ask several follow up questions of the type, "Is there anything else you remember [about this subject]?" "Are you sure?" "If you think of something else during this deposition, will you let me know?" "You understand that after this deposition is completed, you will have a chance to read and sign it. When you read this part of the transcript, if you remember something else, will you write that new information down on the correction sheet?" Now the witness is boxed in and will have a difficult time convincing a jury that the cross examiner simply failed to ask the right question.
4. Repetition
Sometimes a witness's story is so good it must have been the product of over-coaching or overt dishonesty. In either case, it may be difficult to shake the witness from his story. It may be better to get the witness to repeat the story - one too many times. If the answer to a key question sounds too rehearsed, one tactic is to ask the witness the same question several times or to ask the witness to repeat himself. This technique can be very effective in a video deposition that is later used at trial for impeachment. The technique is more effective if the question is reworded each time or if the cross examiner asks the witness to repeat what he just said. Normally, a person will not restate a lengthy answer word for word, but will paraphrase or summarize. When the jury hears the same answer repeated verbatim several times, they will get the picture.
5. Logical Connections and Indirect Impeachment
There are occasions where the witness is lying, but there is no direct evidence with which to impeach. In these situations, the lawyer's mastery of the facts and theory of the case can be used to demonstrate the absurdity of the witness's position. The lawyer should look for the logical underpinnings of the client's case or the fallacies in the opponent's case.
For example, in a lawsuit between two merchants, the defendant claimed he did not have to pay for a truckload of electronics equipment that the plaintiff shipped because he did not order the goods. There was no written order from the defendant to the plaintiff. The defendant claimed that he orally told the plaintiff not to ship any goods to him. However, the defendant admitted his agent had inspected the goods before they were shipped, the goods were shipped to his place of business, that he had discussed with the plaintiff what the shipping cost would be for the truckload of goods and that he unloaded the goods and paid the shipper for the load. Finally, he admitted that he had sold some of the goods. None of this evidence directly disproved the defendant's testimony, but it did establish that the defendant's conduct was logically inconsistent with his version of the facts.
6. Dealing with the Evasive Witness
Evasive witnesses, or "liars with a conscience", require special consideration. It is absolutely essential during the deposition to listen to the witness's responses to each question. A skillful witness will answer a different question than the one the lawyer asked, or will subtly redirect the subject.
There are several techniques to deal with this type of witness. The first approach to take is to repeat the question. In fact, a polite apology to the witness can be disarming and effective. For example, "I apologize Ms. Witness, my question must not have been clear. What I wanted to know was . . ." By the third or fourth time the lawyer has politely redirected the witness to the question, the witness is exposed for what she is doing. For the truly recalcitrant witness, it may help to politely ask the witness if there is some reason she does not want to answer the question. If all else fails, the lawyer can ask for the intervention of the Court. However, it is best to wait until the witness has thoroughly demonstrated her lack of cooperation before seeking help from the Court.
Another useful technique with the evasive witness is to use extremely short, simple questions that relate to a single fact. Consider President Clinton's deposition testimony in the Paula Jones case where this was not done. The following exchange occurred:
Q: Did you have an extramarital sexual affair with Monica Lewinsky?
A: No.
Q: If she told someone that she had a sexual affair with you beginning in November of 1995, would that be a lie?
A: It's certainly not the truth. It would not be the truth.
Q: I think I used the term "sexual affair." And so the record is completely clear, have you ever had sexual relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1, as modified by the Court.
A: I have never had sexual relations with Monica Lewinsky. I've never had an affair with her.
The attorney never asked if President Clinton or Ms. Lewinsky had engaged in specific types of sexual conduct. The term "sexual relations" as defined in the exhibit referred to above is a long and confusing definition. If the attorney had asked whether President Clinton or Ms. Lewinsky had touched each other in certain areas or in specific ways, he would have closed out the area of inquiry. Instead, there is a dispute about whether the President's testimony was false or simply unhelpful to the cross examiner. The Clinton deposition is a good example of what happens when the attorney does not get specific in the face of non-responsive or unhelpful answers. Cross examination and impeachment cannot be successful if the attorney is unwilling to challenge the witness.
The forgetful witness is another type of evasive witness. Some witnesses have a serious problem remembering anything once they have completed direct examination. Two techniques are helpful. If the deposition demonstrates that the witness cannot remember numerous important facts, the cross examiner can build a trial examination around the chorus of "I don't remember." The lawyer simply needs to pull from the deposition as many significant questions to which the witness testified, "I don't remember" and place all of these questions together in one segment of the cross examination. Second, if the lawyer expects the witness to have memory loss during cross examination, he should begin the examination with a large blank note pad on an easel. The lawyer should place a large hash mark on the notepad each time the witness repeats the "I don't remember" refrain. After four or five marks have been placed on the pad, the witness and jury will realize what is happening. At that point, the witness will either develop startling memory improvement or destroy his own credibility with the jury.
7. Making the Deposition Record Work at Trial
One of the most important facets of making a deposition work against a lying witness is creating a transcript that works smoothly at trial. Creating a transcript with short sections of testimony that provide clean impeachment is essential, but sometimes inconsistent with the goal of learning as much information as possible from the witness. Often, during a discovery deposition, the witness and the examiner will ramble from subject to subject, exploring the full panoply of issues in the case. While this can be an effective method of discovery in some cases, it does not necessarily create a transcript that will make an effective impeachment. Another necessary deposition technique - the effort to close out an area of examination - can lead to burdensome impeachments.
The two primary methods for creating an effective transcript for impeachment are using self-contained questions and summarizing testimony. Self-contained questions are questions that do not require the reader to refer back to prior testimony or questions to understand context. They are more burdensome to ask than the conversational questions used in many discovery depositions, but they are also more effective for impeachment.
Consider the following exchange from a deposition in a fraud case.
Q: When you were negotiating to sell the property, did you ever make any representations about the prior use of the land?
A: I guess it depends on what you mean by representations.
Q: What did you tell the plaintiff?
A: I told him that the land had been used for mainly residential purposes.
Q: Did you say anything else?
A: I just told him that it was quiet, peaceful and that the springtime was beautiful with all of the tress and wildlife?
Q: Did you say anything about storing chemicals on the property?
A: No.
While there is nothing wrong with this exchange, if the witness later testifies that he told the plaintiff about the barrels of benzene, the impeachment will require use of several questions and answers to provide context. It is better to impeach with a short, quick question and answer than with a lengthy exchange between counsel and witness. The potential impeachment could be more effective if it was set up as follows:
Q: When you were negotiating to sell the property, did you ever make any representations about the prior use of the land?
A: I guess it depends on what you mean by representations.
Q: What did you tell the plaintiff about the property when you were negotiating to sell him the property.
A: I told him that the land had been used for mainly residential purposes.
Q: When you were negotiating to sell the property, did you tell the plaintiff that you stored chemicals for your dry cleaning business on the property?
A: No.
In this exchange, each question can be pulled out and used for impeachment. This procedure can be burdensome for long depositions. In those cases, it may be easier to get the information and summarize it into a leading question. For example:
Q: If I understand your testimony correctly, when you were negotiating to sell the land, you told the plaintiff that the land had been used for residential purposes?
A: That's correct.
Q: While you were trying to sell the land to the plaintiff, you never told him that you stored the hazardous substance, benzene, on the property?
A: True.
By summarizing the key testimony, the lawyer creates the possibility for a tight, clean impeachment using his own words, not those of the witness.
IV. SPOLIATION OF EVIDENCE
One modern trend in litigation is the spoliation of evidence claim. The plaintiff typically uses this type of claim to combat a defendant who has destroyed key documents or other physical evidence. The defense bar has also begun to use spoliation claims to deal with plaintiffs who engage in destructive testing of evidence without appropriate notice to the defense. The remedy where the opponent has spoliated evidence can range from limitation of claims or defenses to a directed verdict or judgment.
Regardless of which side a lawyer represents, it is critical to cautiously preserve all potentially relevant evidence. It also is critical to learn not only what evidence is in the opponent's hands but what evidence should be in the opponent's hands.
The plaintiff's lawyer should notify all parties, insurers and attorneys that a claim exists and that the parties must preserve and protect all evidence. The lawyer should clearly and specifically identify all potentially relevant evidence and categories of evidence that should be in the hands of the other side. The lawyer should consider obtaining a court order directing the defendants or others not to destroy evidence. The defense must make a good faith attempt to comply.
The plaintiff should attempt to examine the entire file of the other party for the relevant time period or periods. The plaintiff should examine the file to see if numbered drafts of documents are missing, if routine reports are missing or if other items that should be in the file are missing. The plaintiff also should determine the defendant's records retention policy. The lawyer should look for selective destruction of documents.
Defendants, too, should be on the alert for missing information from the plaintiff and destruction or disposal of evidence. When evidence is destroyed by the plaintiff, the defendant has every right to argue an adverse inference at trial regarding what the evidence would have shown. Two recent articles on spoliation which were used as resources, discuss this issue in depth.
V. CONCLUSION
The only consistently effective method for defeating liars on the witness stand is preparation and forethought. Although most of the methods discussed above are basic tools in every trial lawyer's arsenal, they are very effective when consistently applied.
BIBLIOGRAPHY
1. Thomas A. Mauet, Trial Techniques (4th ed., Aspen Law & Business, 1996)
2. James W. McElhaney, McElhaney's Trial Notebook (2nd ed. 1987)
3. Edward T. Wright, Winning Courtroom Strategies (Prentice Hall, 1994)
