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We have all been there.  During trial a witness testifies inconsistently with her prior testimony.  So you dutifully pull out the transcript to impeach her.  Here is a method I have found that works to limit the witness’ ability to wiggle out of prior testimony.

First, commit the witness to the testimony she gave under oath today.  Say something like “on direct examination, you testified that the light was green for southbound traffic on Rainbow when you entered the intersection, correct?”  Make sure you are quoting the prior testimony as closely as possible in order to avoid having the witness quibble.

Next, commit the witness that she testified under oath at the deposition.  Ask the following questions:

  • Do you remember having your deposition taken at my office?
  • Do you remember that the court reporter administered an oath that you promised to tell the truth during your deposition?
  • It was the same oath that you took today, wasn’t it?
  • You told the truth at your deposition, right?
  • Turn in the deposition transcript to page 81 beginning at line 2 and read along with me “Q: What color was the light for southbound traffic when you entered the intersection? A: I am pretty sure it was yellow but it might have been red.”

Many advocates will at this point ask “which version is true?  Did you tell the truth at your deposition or are you telling the truth today?” or “what color was the light really?” This is a mistake because it gives the witness a chance to explain herself or to blame your questioning for the discrepancy.  You don’t want that.  You want the jury to come to the conclusion on their own that the witness was truthful at the deposition and not today or at least has provided inconsistent testimony and therefore may not be trustworthy.

Instead, be disciplined enough to simply ask deliberately and slowly “Did I read your testimony correctly?”  That way, the only thing the witness can do is agree with you that you read her testimony (that she gave under oath) correctly.  You can remind the jury in closing argument as to the conclusion it should draw from the inconsistency.

Even if you have followed the methods described below to close down the witness’ wiggle room, she might still get away with trying wiggle out of the prior testimony on redirect.  If you are disciplined at the time of the deposition, you can limit that ability.  At the deposition, once you have exhausted the witness’ knowledge, filled in the gaps, and created usable testimony by gaining recapitulation and are about to conclude the deposition, ask the following questions.  They 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:

  • Ms. 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 now told me everything that you believe is important about this lawsuit?
  • You have told me all of the ways in which the defendants have harmed you?

At trial, you may want to read those questions and answers followed by:

  • Those were your answers to each of my questions, correct?
  • Now you testified during direct testimony that you now remember an incident on January 25th when Mr. Jameson sexually harassed you and for which you have suffered greatly, isn’t that correct?
  • But you didn’t mention that alleged incident during the entire deposition, did you?
  • And even after I gave you a chance at the end of the deposition to tell me about anything that you thought was important, you didn’t mention it, did you?

While no system is foolproof, I have found that this system helps to control a witness who wants to quibble about prior inconsistent testimony.

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on business law, business litigation, and acting as an Arbitrator and Mediator. Peers have named him an AV-Rated Lawyer, Best Lawyers, a Top 100 Super Lawyers in the Mountain States multiple years, and to the Legal Elite and Top Lawyers lists for many years. Mr. Young has been appointed a part time Judge, a Special Master to the Clark County, Nevada Business Court, as an arbitrator by the Nevada Supreme Court. He has been appointed as an arbitrator or mediator of well over 250 legal disputes from business disputes to personal injury matters. He has been named Best Lawyers for Arbitration. Mr. Young is a respected author of ten books, including A Litigator’s Guide to Federal Evidentiary Objections, A Litigator’s Guide to the Federal Rules of Evidence, and the Federal Court Civil Litigation Checklist.
Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.

 

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