Commentary: Raising the Bar - 'Foot in Mouth': Impeachment, part two

People rarely tell a story exactly the same way twice. That's why depositions can be gold mines for trial lawyers. Statements made in the deposition often prove to be inconsistent with what the witnesses relates at trial, creating opportunities for impeachment.

Presenting that inconsistency so as to diminish the witness' credibility in the jurors' minds isn't as easy as it seems. The careful trial lawyer will prepare for the moment beforehand so she knows how to conduct the cross-examination just right.

There's no better way to learn than by doing, but here's an example of a skillful use of a deposition transcript to impeach an adverse witness:

June Smith, an alleged witness to an accident, is on the stand. She is the aunt of Mary Jones, the infant plaintiff in a suit for negligence against Smith's landlord for allegedly failing to repair a kitchen screen door. The child touched the door, which fell, ultimately resulting in Mary's fall from a second-story porch. The witness is trying to show that the door fell solely because Mary touched it. Cross-examination on behalf of the landlord proceeds:

DEFENSE COUNSEL: Q.Is it your testimony that you saw the infant plaintiff touch the screen door and fall through the kitchen door onto the porch, and then from the porch onto the ground?

A.Yes.

Q.Ms. Smith, do you recall that you were summoned to appear in my office over one year ago?

A.Yes.

Q.Do you remember coming to the office with an attorney?

A.Yes.

Q.Do you recall that we met in my library and that a court reporter was there who took down the questions I asked you as well as your answers to those questions?

A.Yes.

Q.The testimony that was taken down by the court reporter was taken down or recorded the same way as in this court, except there were no judge or jury present, is that correct?

A.Yes.

Q.And you were under oath then just as you are now?

A.Yes.

Q.The lawyer that accompanied you to my office for what was your deposition is the same lawyer who represents you now, is that correct?

A.Yes.

Q.When you finished testifying, your testimony was typed up by the court reporter word-for-word as you gave it and was submitted to you to read and to correct any mistakes, isn't that true?

A.Yes.

Q.Did you in fact read your deposition?

A.Yes.

Q.You did find mistakes in the transcript, did you not?

A.Yes.

Q.And you made notes of the corrections you felt had to be made, didn't you?

A.Yes.

Q.And then you signed your deposition as corrected by you before a Notary Public, isn't that true?

A.Yes.

Q.Ms. Smith, I am now going to read to you from the deposition, beginning at line 7 on page 81 of the transcript of the testimony as typed by the court reporter and corrected by you:

Q.Prior to the accident involving the infant plaintiff, where were you, Ms. Smith?

A.I was in the bedroom looking after my little boy.

Q.When was the last time you had seen the infant plaintiff prior to the accident?

A.After we had breakfast, she was playing with the other children staying with me, and I went to nurse my baby.

Q.Am I correct in understanding that your testimony is that after breakfast you left the infant plaintiff with the other children, and that you went into the bedroom to nurse the baby, and that you did not see the infant plaintiff until after she had the accident?

A.Yes.

Q.Now, Ms. Smith, what I have read was your testimony under oath on April 14, 2002, wasn't it?

A.I cannot remember what I said at that time, but I suppose that what you read is what I said, if that's what it says.

Q.Well, you are not suggesting that what I read was anything but your previous testimony, are you?

A.No.

Q.Now, is your testimony today correct under oath, or was your testimony correct as you gave it in April 2002?

A.I don't know.

It is not always effective simply to ask the witness whether he or she recalls his or her deposition being taken. Members of a jury may not know the significance of the deposition. Therefore, you may wish to ask detailed questions, as in this example, to illustrate the gravity of the deposition testimony and to emphasize the inconsistency.

The last question, Now, is your testimony today correct under oath, or was your testimony correct as you gave it in April 2002? is optional. Some attorneys prefer this type of finish to dramatize the inconsistency. Others prefer to end the examination without this final question, reserving opportunity in closing argument to elaborate upon the significance of the discrepancy. The advantage of the first approach is that the heightened dramatization can influence the jury during the cross-examination. The weakness is that the witness, when confronted with, Are you lying now, or were you lying then? has the chance to explain away the inconsistency.

Another approach

A different approach to the same type of impeachment with arguably the same effect would be as follows:

Q.Ms. Smith you just testified that you saw the infant touch the screen door and fall?

A.Yes.

Q.But over a year ago, in your deposition, you testified under oath that - and I quote -you did not see the infant plaintiff until after she had the accident?

A.Yes.

Q.No further questions.

For other useful examples, see Aetna Casualty & Surety Co. v. Gynes (713 F.2d 1187 5th Cir. 1983), in which previous deposition testimony is used to impeach trial witness testimony. Also, Shearing v. Lolab (975 F.2d 1541 Fed. Cir. 1992) includes attempts to impeach witnesses when they have recollections that were not mentioned in previous depositions.

Studying such impeachments can be helpful. Asking the right questions in the right order doesn't come naturally. Presented with a blatant inconsistency, some trial lawyers may wish to rashly point out the discrepancy, effectively shouting, Gotcha! A better advocate avoids shrill behavior and proceeds with restraint. Opportunities for impeachment are too valuable to mishandle.

Trial lawyer and author Paul Mark Sandler is a partner with Shapiro Sher Guinot & Sandler in Baltimore. His column appears Fridays in The Daily Record.

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