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Brian Peterson

I've seen counsel ACT as though they are reading from a document when asking questions when in fact they are not. This underhanded tactic attempts to lead the witness to believe he said something in a prior written document that he never in fact said. In such cases, I think a speaking objection is appropriate. I noted on the record: "Let the record reflect that counsel is acting as though he is reading from some document which he is not showing to the witness." What else can you do in a situation like that?

Evan Schaeffer

Another option is to have the witness well prepared for that kind of conduct. It happens to me sometimes when a witness I'm defending, often a plaintiff, is being questioned about his or her medical records. I tell witnesses before their depositions to testify based on their memory and not to assume that just because the questioning lawyer says, apparently looking at a medical record, "didn't you tell your doctor X," that it is a true statement. If they remember it differently, they should speak up and say so. If they don't remember, they should say they don't remember.

I also speak up if the lawyer's characterization of an event diverges from the written records. Hopefully *I* have the written records in front of me, even if the witness doesn't. If I'm unsure about what record the lawyer has in front of him, I have no problem asking the lawyer, "What's that you're looking at."

Finally, some lawyers might choose to assert the improper "show him the document" objection. It obviously works sometimes, or lawyers wouldn't assert it.

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