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When this happens in a deposition, take what you can get
Q: So what did you do before you began the operation on my client?
A: I reviewed the chart, and spoke to the nurses, the same as I always do. Perhaps I should have double checked with the patient to make sure they had not eaten anything before administering anesthesia…
Sometimes the witness, no matter how well-prepared, may not be aware that a fact is harmful to them. Or sometimes they may accidentally let something slip that they didn’t intend to. When the witness inadvertently or unknowingly says something that’s beneficial to you, what do you do? Pound the table loudly and scream “booyah!”? Well that’s what you WANT to do…but what SHOULD you do?
In a situation like this, you must be mindful of whether or not the witness is likely to try to retract what they’ve said if you continue harping on the issue. You don’t want to point out to the witness that they’ve made a really horrible admission that hurts them and helps you. So sorry, pounding the table, pointing at them and screaming “busted!” probably isn’t a good idea.
BUT, the absolute WORST thing you can do is go back and ask the question again to “make sure” that the witness answered it the way you wanted when you already have something that’s very useful. When you do this, the witness might realize what’s going on and say ‘oh I misspoke, I actually meant X’. In addition to alerting them to a potential mistake, you’ve given them more time to think about the answer and come up with an excuse or concoct or change their story. Suddenly, the very nice question and beautiful answer you got has been marred by subsequent testimony that essentially eliminates any benefit you just received.
In this particular example, the doctor all but admitted that he didn’t ask a simple question that he should have. The most significant part of the answer is not that he did or did not ask the patient. Rather, it was the admission that he should have done so. That’s about as good an admission of negligence as you are going to get. But if you decide to harp on this point by getting him to repeat that he should have asked, you’ll likely get backtracking, “Well it was not really required because we ask that multiple times leading up to the operation” or “it is not required to ask the patient if they have eaten, I merely said I ‘should have’ in this instance because of the benefit of hindsight.” It’s inevitable that opposing counsel will do his dead-level best to “fix” the bad statement, either via affidavits, rehabilitating examination, or via other witnesses. But those attempts are going to be a lot less persuasive than if the witness rehabilitates himself during the same deposition session even before a break to consult with his attorney.
Once you get an answer that’s good for you, unless it’s simply not clear, and you know it won’t be clear on the transcript, leave it alone. Take what you can get and move on to the next issue.
Remember, you’re not going to be quoting pages and pages of transcript testimony most of the time. Instead, it will be just a very small snippet, so a 10-word question followed by a 2-word answer is plenty when you’re trying to make your point during a motion or even at trial.
Comments
I’ve successfully used depo video at a handful of trials and arbitration. Even when the witness does not contradict himself/herself on the stand, you often capture video where the deponent took 45 seconds to answer a key question, or kept looking at their attorney with that “save me” look on their eyes. You are correct that juries often miss the impact of prior contradictory video testimony, which is why trial attorneys go the extra mile to get the witness teed up with questions like, “are you sure?” or the liturgy of “do you remember having your depo taken….?” If the “contradiction is slight, (at depo witness said accident was at 5:20 and at trial she says 5:30) don’t waste your time trying to make a Perry Mason moment out of it.
If deposition testimony could easily be disregarded during trial then lawyers would not take depositions. But, as you point out, the cross examining lawyer cannot just point out that the witness provided a different answer during the deposition. There is an entire process that the crossing lawyer must go through to properly impeach a witness and “make it stick” with the jury. With a fact witness a contradicting answer is more easily used to your advantage. If the witness said “the light was red” in the deposition and now says “the light was green” at trial then it’s pretty easy to argue to the jury that the witness is not credible. But with an expert it is tougher because the expert can simply say she was “mistaken” in the deposition and now after more time to analyze the issue she has come to a different conclusion. This means that you have to do more work in the deposition to box the witness in and then you have to do more work during cross examination at trial to impress upon the jury the significance of the expert’s flip-flop.
Even with everything I’ve said above we don’t have any information about your trial. Indeed juries are very difficult to understand sometimes, and it’s entirely possible that the lawyers on your side did everything correct. Also it’s possible that the expert testimony was not the key factor in the jury’s decision. Without speaking to the jury afterwards you’ll never really know.
How often are deposition transcripts or videos successfully used to impeach a witness? In two recent cases where I’ve testified as an expert, The other expert completely contradicted a critical answer from his deposition. My client’s attorney brought it up on cross, and the witness simply repeated his new answer. In both cases, judging from the verdict, this had no effect on the jury. They simply ignored his deposition testimony.
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