Impeaching Witnesses in Depositions to Improve Your Bargaining Power
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How do you achieve the best result for your client in a settlement conference or a mediation?
By having done as much good work to support your own case and destroy your opponent's before you discuss settlement.
And no, you do not need to be an $#%^@ to do so.
Some litigators excuse themselves from cross-examining opposition witnesses at deposition because they "want to save it for trial."
O.K.
But your chances of going to trial are, at best, ten percent. Don't you want to destroy or seriously depress your opponent's expectations of recovery for the ninety percent chance of achieving a dynamite settlement for your clients? One you can trace back, in writing, to your killer deposition skills?
As I've mentioned before, I've been teaching deposition skills for the National Institute of Trial Advocacy in Southern California for more than a dozen years, as well as NITA's Beginning Trial Skills Program for half a dozen years. Here's what I learned.
Most young attorneys -- and I mean from first through fifth years -- have not developed the skills necessary to use the most effective case-destroying device available to them -- impeaching a witness using his inconsistent statements contained in depositions, sworn documents and correspondence.
How do you use prior deposition testimony when you're taking the witness' deposition for the first time? That's what real-time reporting is for. You can use the morning's testimony in the afternoon or, if the deposition goes beyond a single day, you can use yesterday's testimony today and today's tomorrow.
This isn't rocket science. You just have to master a few easy questions while at the same time overcoming any natural reluctance you have to confront the witness when he's sitting across a conference table from you.
And yes, that does require at least a small amount of courage. Fear of this confrontation is, I believe, at the true heart of most litigators' many rationalizations for not impeaching witnesses at the time of their deposition. Or, at least, it was my rationalization in the early years of my practice when I was fearful of those confrontations.
As to the following advice, I likely pulled it from my NITA materials too long ago to remember, having just stumbled across it while looking for something else. It, and a lot of other terrific advice, can be found in the book pictured above. So all credit for the advice below goes to NITA whether it's verbatim or not.
Cross Examination Impeachment of A Witness
One of the most effective ways of impeaching a witness at trial is through the use of depositions and inconsistent statements. Unfortunately, many trial attorneys do not know how to properly impeach using depositions and inconsistent statements.
Depositions
When a witness makes a statement in trial that is inconsistent with his or her earlier deposition testimony, you should first highlight the question that was answered differently later on. Make sure that the trial testimony being impeached is a direct inconsistent statement with the deposition given before trial. You should then ask the following questions:
- Do you remember having had your deposition taken on (state the date)?
- Do you remember that a court reporter was present at your deposition?
- Do you remember having been sworn in to tell the truth?
- Did you tell the truth on that date?
- (If applicable) Do you remember having your attorney present at your deposition?
After you have set the foundation for the impeachment, you ask the witness the following question:
"Do you remember having been asked the following question and your giving the following answer."
At this point, you should read the question previously asked and the answer given by the witness in the deposition.
Done. DON'T ASK FURTHER QUESTIONS. You have impeached the witness. Asking further questions simply allows him/her to squirm out of it.
Use of Inconsistent Statements in Documents
A similar method may be used to impeach a person using an inconsistent statement in a document such as an affidavit, sworn statement or letter.
You should first highlight the inconsistent trial testimony that will be impeached. Next, identify and authenticate the document that will show the inconsistent statement given by that same witness. In order to establish the foundation necessary to impeach an individual with the use of an inconsistent statement, the witness should be asked the following questions:
- Do you remember having given a statement to (person) regarding how the accident occurred?
- Did you give that statement freely?
- Who was present when you gave your statement?
- When was the statement given?
The witness should then be shown the exhibit and asked the following question:
I show you what has been marked as Plaintiff's Exhibit "A" for identification. Is this a copy of your sworn statement?
Finally, read the relevant portion of the statement that directly contradicts the deposition testimony of the witness.
Impeachment through the use of depositions or documented inconsistent statements should be accomplished in an organized fashion and should be performed smoothly and directly. The relevant pages and sections of the deposition should be marked and highlighted beforehand so as not to fumble through pages or lose control of the witness.
There is nothing more impressive than to see an attorney properly impeach a witness through the use of inconsistent statements in documents or in a deposition. It is a very simple procedure to learn and, once mastered, will prove to be an effective means of cross-examining even the most "dangerous" witness you face.
Aren't you feeling all trial lawyerish now? You can take on anybody. Go get 'em tiger!!
