In my recent post on Taking What You Can Get From a Witness, I received a question from a reader who asked, “[h]ow often are deposition transcripts or videos successfully used to impeach a witness?” I don’t know the answer, but the key to the question is successful impeachment. Many more lawyers attempt impeachment than are successful. I’m providing a few tips below that will improve your odds at successfully impeaching a witness. I’ll also write a Part 2 follow-up post with more advanced ideas next week so stay tuned.
An introductory note
There are many ways to impeach a witness. You can use video, police reports, and mathematical calculations to name a few. The techniques for these methods vary based on the admissibility of the underlying evidence used to impeach the witness. A full examination of this topic is better suited to a law review article, or even a book. This post is limited to impeaching a witness with a prior inconsistent statement that the witness made during a deposition.
The standard method
There are some excellent resources on how to impeach a witness with a prior inconsistent statement in a deposition. This memorandum by Mary Kennedy is quite good, and it's currently the first hit on Google when searching for “how to impeach a witness.” This memo covers the basics of impeachment, which in involve the three C’s.
- Commit the witness to their current testimony
- Credit the prior statement
- Confront the witness with the inconsistent statement
This method is commonly taught in mock trial teams and it’s what the judges in mock trials have come to expect. I practiced it endlessly in my mock trial team practices in law school. In addition to Ms. Kennedy’s memo, I recommend reading about some other common impeachment tips here and here.
Below, I’m going into two aspects of impeachment that many lawyers don’t do properly.
1. Belabor the circumstances around the deposition – Credit
One of the key elements of impeachment is to spend a lot of time reviewing the circumstances around the deposition to support the inconsistent statement. Most people get into trouble because they don’t spend enough time with this step. Here’s a sample of what you should ask when crediting the prior statement (note the leading questions):
- We spoke about this issue before, in your deposition?
- In your deposition, I was there in your lawyer’s conference room?
- And your lawyer was there?
- And we had a video camera?
- And we had a court reporter?
- And he was recording everything you said?
- And you took an oath to tell the truth?
- Just like you swore to tell the truth today?
- And you did tell the truth?
- And you had a chance to review the transcript after the deposition was over?
- And you did review it?
- And you didn’t make any changes did you?
- This deposition was 6 months ago?
You can do more, but hopefully these questions convey the point: to explain to the jury what happened in the deposition. When the jury understands the gravity of the deposition, including that an oath was taken, then the inconsistency in testimony becomes more significant. If you have a bench trial or a proceeding in front of a sophisticated arbitration panel, you can skip most of these questions because (hopefully) the finder of fact already understands the point of the deposition.
2. Control the questioning when reading the prior testimony (Confront)
When you confront the witness with the prior inconsistent statement you will do so in one of two ways: (a) with the transcript or (b) with a video of the testimony.
If you’re using video, make sure you have the video cued up to the section in question. This will usually require you have an assistant who can quickly get to the correct part of the testimony quickly. If you wait too long fiddling with the video or the equipment, then your line of questioning will lose its rhythm and the impeachment’s impact will be significantly degraded. Hint: if you struggle with this, check out this
If you’re using the transcript, make sure you read the testimony and then end with “I read that correctly didn’t I” (or some variation in which you confirm). This allows you to control the tone and pacing when the transcript is read to the jury. The conventional wisdom is that if you let the witness read the transcript they'll de-emphasize what was said, either by reading it improperly, reading it too rapidly, or otherwise muddling the reading. In general, this practice of reading the transcript is good, but it’s not an ironclad rule.
Next week I'll be covering the more unconventional, and maybe more controversial, ways to impeach a witness.