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March 15, 2006

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David Kleczek

I do not agree with your assessment. A deposition is to question the memory of the witness, not the lawyer involved. A witness can later explain an error. For example, the other day I was deposing an individual that had obviously been coached. It was a slip and fall, and the issue was whether an orange cone had been placed at the scene prior to the fall. The witness created an accident report that did not mention an orange cone, and attached was a photo of the scene, also without an orange cone. Upon questioning the witness about the accident report and photos, I asked if the scene was as it had been prior to the fall. He answered yes, and that his report accurately described the scene. No mention of an orange cone, until his lawyer said "except for the orange cone." The witness agreed.

Not only has the lawyer testified, but at trial I will attempt to admit the testimony of the lawyer as evidence of fabrication. I believe the method will backfire on the testifying attorney.

Evan

David: I agree with your comment. I was writing about unintentional errors on innocuous issues; your anecdote involves an intentional fabrication on a material issue. I believe those are different animals.

About your anecdote: what if the defending lawyer had cleared up the testimony after you were finished, i.e., asked this question after you were done: "You testified on direct that this photo depicted the scene prior to the fall. Was there also an orange cone that isn't show in the photo?" If the lawyer had waited to ask that question (and setting aside its leading nature), would that have been made it less likely the witness was fabricating? As you said, a witness gets to explain, and explanations don't always equate to fabrications.

In my opinion, your best evidence is the accident report that didn't mention the orange cone. You don't need to get into the question of the other lawyer's coaching to hang the witness with that. By the way, despite what I said in the post (which as I mentioned, sets forth a different situation than the one you describe), I probably wouldn't have spoken up the way your opposing lawyer did. Assuming there was a cone, I would have tried to prepare my client not to forget it when testifying about the accident report and the picture. If the client still flubbed it despite our preparation, I would have grimaced and kept my mouth shut until later, although I admit that depending on the circumstances it could be a very close call. If my client had already mentioned the cone in earlier answers, I would be much more inclined to bring it up myself at that point.

Now that I think about it, your criticisms of your opposing lawyer assume that he was involved in fabricating a lie. Whether his actions were right or wrong depend in part on whether you're right about that. If you're wrong, then you've got to consider your opposing lawyer's obligation to zealously represent his client, which colors his spur-of-the-moment reactions to certain situations that come up in depositions. That's my opinion anyway.

Litgation can be a very complicated business, don't you think? At least you've devised a plan to respond to what you believe was overreaching by your opposing lawyer. Justice doesn't always prevail, but hopefully it will in your case.

Bonnie Canavan

David,
How will you admit the evidence of the lawyer's statement "except for the orange cone" at trial? Are you going to amend your pleadings to include a count/or defense of fabrication?
Bonnie

David Kleczek

Points well taken, and the line does become even more blurred during the heat of a deposition. You are correct that a witness does a deposition once or twice in her life, and that it becomes easy to forget simple facts when under pressure. We, as litigators, take depositions weekly, and remembering the important facts becomes second nature.

That being said, it would be interesting to see how a judge deals with an attorney's comment to 'jog' the memory of a witness. That is, if I use it to impeach him. I am not suggesting the lawyer is fabricating, only that he knows the importance of the orange cone, and that he wants to make sure all his witnesses talk about it.

Bonnie Canavan

David,
I would wait until motions in limine and move to bar the witnesses answer that was given after the coaching of the attorney. After all the true answer of the witness was given in resoponse to your question. There was no question pending when the attorney started what is basically a conversation with his own witness. The attorney could not have said this if his witness was on the stand at trial. He would have to address it in his direct of his client. That is when you could impeach him with the first answer he gave at the dep.

Robert Stempler, California Consumer Attorney

I must disagree with your example, as the documents that an attorney shows his or her client are attorney-client privileged and the attorney should object on that basis and instruct not to answer. Also, I don't see how the inaccurate recollection of particular documents reviewed before a deposition would affect a case at trial. I agree with your general principle of jumping in to eliminate misstatements at a deposition.

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