Practice Pointer: How to Conclude a Deposition While Avoiding Later Attempts to Change Testimony

Once you have exhausted the witness’ knowledge regarding their knowledge of the subject matter of the dispute, filled in the gaps, and created usable testimony by gaining recapitulation and are about to conclude the deposition, you want to do all that you can to make sure the witness cannot later change testimony without looking biased or lacking in veracity.  Consider asking the following questions which will provide you with some good testimony in the event the witness attempts to materially change his or her testimony at the time of trial:

  • Witness, do you agree that I have given you every opportunity to tell me what you want the court to know about the incident leading to this suit?
  • Do you agree that you have given me truthful testimony today?
  • Is there anything that you think is important about the incidents related to this lawsuit that I have not asked you about?
  • If there is, please tell me about that now.
  • So, you have told me everything that you believe is important about this lawsuit?

Gaining this testimony will not prevent the witness from changing testimony, but it will allow you to highlight the fact that the witness didn’t think the “new” testimony was important at the time of the deposition, and allow you to argue that the trier of fact should discount the testimony for that reason.


Royal Oak, Michigan, August 28, 2018: Howard & Howard Attorneys PLLC is pleased to announce that twenty-nine of our attorneys were selected by their peers for inclusion in The Best Lawyers in America® 2019. Since it was first published in 1983, Best Lawyers®has become universally regarded as the definitive guide to legal excellence. Best Lawyers® lists are compiled based on an exhaustive peer-review evaluation. 83,000 industry leading attorneys are eligible to vote (from around the world), and almost 10 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world were received. For the 2019 Edition of The Best Lawyers in America®, 7.8 million votes were analyzed, which resulted in almost 60,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers® is considered a singular honor. Corporate Counsel magazine has called Best Lawyers® “the most respected referral list of attorneys in practice.”

Practice Pointer: How to use an Adverse Witness to Help Your Case

Besides obtaining information from an adverse witness regarding the events which are the subject of the suit, you should also try understand how this witness will attack your claims.  Finally, you should attempt to do what you can to turn the witness into a witness for your case.  There is certain information you can get from each witness that allows you to attack the witness at trial.   Explore lines of questioning designed to elicit the following:

  1. What information must the witness admit?
  2. What information shows bias or impeaches the witness’ credibility?
  3. On what items may the witness’ testimony be limited (didn’t hear or see or experience X, Y, and Z)?
  4. Where is the witness weak?
  5. What does the witness know that agrees with your case?

Nevada Standards of Review on Appeal

A Digest

Abuse of Discretion

In General

“An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.”  Rabkin v. Oregon Health Sciences Univ., 350 F.3d 967, 977 (9th Cir. 2003) (citation and internal quotation marks omitted); In re Korean Air Lines Co., Ltd., 642 F.3d 685, 698 n.11 (9th Cir. 2011).

Under the abuse of discretion standard, a reviewing court cannot reverse absent a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon a weighing of relevant factors.  McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 953 (9th Cir. 2011); Valdivia v. Schwarzenegger, 599 F.3d 984, 988 (9th Cir. 2010) (citing SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001)); Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000) (noting reversal under abuse of discretion standard is possible only “when the appellate court is convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances”). Continue reading Nevada Standards of Review on Appeal

Can a Party to Litigation Object to a Subpoena Issued to a Non-Party Witness for Documents?

It happens often.  A subpoena is issued to a third party who isn’t part of litigation because that party might have documents that are useful in a lawsuit.  When responding to the subpoena, can a party to the litigation step in and object on behalf of the non-party witness?  The law is clear that a party has standing to challenge a subpoena issued to a non-party only “when it alleges a personal right or privilege with respect to, or has possession of, the materials subpoenaed.” See Platinum Air Charters, LLC v. Aviation Ventures, Inc., No. 205CV-01451-RCJ-LRL, 2007 WL 121674, at *2 (D. Nev. Jan. 10, 2007) (citing Jez v. Dow Chemical Co., Inc., 402 F.Supp.2d 783, 784–85 (S.D.Tex.2005)); First Am. Title Ins. Co. v. Commerce Assocs., LLC, No. 2:15-CV-832-RFB-VCF, 2017 WL 53704, at *1 (D. Nev. Jan. 3, 2017).  In other words, because the party is not the recipient of the subpoena, it has standing to challenge only where its challenge asserts that the information is privileged or protected to itself.  See Diamond State Ins. Co. v. Rebel Oil Co., 157 F.R.D. 691, 695 (D. Nev. 1994) (Jerry T. O’Brien, Inc. v. Securities and Exchange Commission, 704 F.2d 1065, 1068 (9th Cir.1983), rev’d on other grounds, 467 U.S. 735, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984), citing Donaldson v. United States, 400 U.S. 517, 523, 91 S.Ct. 534, 538, 27 L.Ed.2d 580 (1971)). Continue reading Can a Party to Litigation Object to a Subpoena Issued to a Non-Party Witness for Documents?