Impeaching at Trial with a Prior Inconsistent Statement: How to Validate First

In an earlier post, "How to Cross-Examine at Trial with Inconsistent Statements," I discussed the importance of setting up the impeachment by asking questions that lend validity to the question and answer you are going to use to impeach. The prior post contained some examples of questions that add validity. Here are some others:

• You previously gave answers at a deposition;
• You received a subpoena to attend;
• That's a court order to come and testify;
• You had to come to our office and testify under oath;
• You prepared for the deposition ahead of time;
• You knew it was going to happen before you arrived;
• You were not caught by surprise;
• You came with your lawyer;
• The same lawyer who is with you today;
• The same lawyer who has been with you since this case began;
• The lawyer was there for every one of my questions;
• You knew what the lawsuit was about;
• I brought up this topic at the deposition;
• I asked you under oath, page 119, line 23 (hold up transcript, read answer);
• That is what you told me;
• That is what you told me on the day you were called;
• That is what you told me on the day you were thinking about it;
• That is what you told me on the day when you knew you were there to answer questions;
• That is what you told me with your lawyer right beside you;
• And that is different than what you just told our jury;
• At the deposition, you said you would tell the truth;
• That truth is different than what you said today.

This list of questions, which can be easily revised to match your own trial style, is taken (with a few additions) from a list contained in a presentation at the 2005 ATLA summer convention by James Bartimus titled "Cross-Examination of the Defendant and Defense Medical Expert."