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Impeachment of Witnesses in Civil Litigation: Strategies for Discrediting Adverse Witnesses

Using Depositions, Testimony and Correspondence to Impeach With Prior Inconsistent Statements, Contradictory Facts and More

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific TUESDAY, NOVEMBER 17, 2015

Sean P . Costello, Esq., Law Office of Sean P. Costello, Sunbury, Ohio John Zen Jackson, Partner, McElroy Deutsch Mulvaney & Carpenter, Morristown, N.J. Claire Rush, Rush & Sabbatino, New York

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Impeachment of Witnesses in Civil Litigation: Strategies for Discrediting Adverse Witnesses

Claire F. Rush, Esq. Rush & Sabbatino, PLLC 111 John Street, Suite 800 New York, NY 10038 (O) (212) 600-2454 (F) (212) 600-2533 crush@crfslaw.com

6

KNOW YOUR FILE

7

KNOW THE LAW

8

A Powerful Persuasion Principle

9

CREATE AN OUTLINE

FACTS

1. a. b. c. 2. a. b. c.

LAW

• 1. Relevant rule of law
• a. Elements
• b. Terms of art in charge
• 2. Relevant rule of law
• a. Elements
• b. Terms of art in charge

10

METHODS OF IMPEACHMENT

11

The witness has committed an immoral, vicious or criminal act

12

The witness has been convicted of a crime

13

THE WITNESS LACKED THE CAPACTIY TO TESTIFY

14

THE WITNESS IS BIASED

15

PRIOR INCONSISTENT STATEMENTS

16

THE WITNESS HAS RELIED UPON INACCURATE OR INCOMPLETE INFORMATION

17

THE MECHANICS OF IMPEACHMENT

18

THE THREE C’S OF IMPEACHMENT

• Commit the witness to the direct

testimony.

• Confront the witness with the inconsistent

statement.

• Complete the impeachment.

19

BEWARE OF POTENTIAL EVIDENTIARY PROBLEMS

20

BE PREPARED TO AUTHENTICATE ALL IMPEACHMENT EVIDENCE

21

STRATEGIES FOR AUTHENTICATING EVIDENCE

• Stipulate to the authenticity of the

document.

• Subpoena certified copies.
• Introduce testimony from witness who

was present at making and/or signing of the document.

• Introduce evidence of prior admission of

authenticity.

• Offer circumstantial evidence.

22

IMPEACHEMENT TOOLS

23

DEPOSITIONS

24

PRIOR TRIAL TESTIMONY

25

CORRESPONDENCE

Letters Emails

26

SCIENTIFIC TREATISES

27

SOCIAL MEDIA

28

Thank You

Claire F. Rush, Esq. Rush & Sabbatino, PLLC 111 John Street, Suite 800 New York, NY 10038 (O) (212) 600-2454 (F) (212) 600-2533 crush@crfslaw.com

29

Impeachment of Witnesses in Civil Litigation: Strategies for Discrediting Adverse Witnesses

Stafford Publications Webinar November 17, 2015 Presented by Sean Costello

Impeachment Methods

Prior Inconsistent Statements Bias Contradictory Facts

31

THEY WENT THATAWAY: PRIOR INCONSISTENT STATEMENTS

32

Prior Inconsistent Statements: FRE 613

(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney. (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain

• r deny the statement and an adverse party is given an
• pportunity to examine the witness about it, or if justice so
• requires. This subdivision (b) does not apply to an opposing

party’s statement under Rule 801(d)(2).

33

Prior Inconsistent Statements under Rule 613 and The Queen’s Case

• A longstanding rule had been that, before questioning a

witnesses about a prior inconsistent statement, the attorney must first show that statement to the witness.

• Rule 613 expressly eliminated this requirement,

because, according to the Advisory Committee Note, it was a “useless impediment” to cross examination.

• However, there have been some calls to reinstitute the

rule.

• Not all federal courts take Rule 613(a) at face value,

relying on Rule 613(b)’s requirement that a witness be “given an opportunity to explain or deny the statement.”

34

Prior Inconsistent Statements: Okay for Poets But Not So Okay for Witnesses

“Do I contradict myself? Very well, then, I contradict myself, I am large, I contain multitudes.”

• Walt Whitman

35

Categories of Prior Statements

Testimony (trials, depositions, hearings) Written statements under oath (affidavits, declarations) Written statements not under oath (email, letters, publications, social media posts) Litigation papers (document responses, interrogatories) Verbal statements (to anyone)Testimony

36

Prior Inconsistent Statements: The Fantasy (With Apologies to Aldo Nova)

37

Prior Inconsistent Statements: The “Perry Mason Moment” Fantasy

38

Prior Inconsistent Statements: The Reality

39

Prior Inconsistent Statements: Summary

• Not hearsay.
• If a party makes the inconsistent statement, it

is also an admission.

• If under oath, it may be substantive evidence.
• Witness must be given opportunity to explain,

deny, or admit inconsistent statement.

40

Prior Inconsistent Statements: Timing

• The witness must be

“afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate [the witness] thereon . . . .”

• But Rule 613 doesn’t dictate

when that happens.

• The rule prescribes only that

the opportunity be presented.

41

Prior Inconsistent Statements: Just How Inconsistent Must They Be?

• Statements need not be “directly contradictory” to be
• inconsistent. United States v DeSimone, 488 F.3d 561,

572 (1st Cir. 2007).

• Obvious: Witness testifies in deposition that the light

was green. Witness testifies at trial that the light was red.

• Not so obvious: Witness testifies in deposition that it

was raining. Witness testifies at trial that it was misty.

• The judge decides if something is inconsistent enough

to fall within Rule 613.

• The jury decides if the inconsistency warrants a “wow”
• r a yawn.

42

Prior Inconsistent Statements and Deposition Testimony—Degrees of Consistency and the Qualified Answer

43

Prior Inconsistent Statements and Deposition Testimony—What About Differences Between the Errata Sheet and the Deposition?

44

• Fed. R. Civ. P. 30(e): Allows witness to

make changes “in form or substance.”

• Many lawyers assume that witnesses

cannot change the substance of an answer (“yes” to “no” or “green” to “red”).

• But the rule explicitly says they can.

Prior Inconsistent Statements and Deposition Testimony—What About Differences Between the Errata Sheet and the Deposition?

45

Prior Inconsistent Statements and Deposition Testimony—What About Differences Between the Errata Sheet and the Deposition?

3 Approaches: 1. “A deposition is not a take home examination.” Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992). 2. Anything goes, as long as 30(e)’s technical requirements are met. Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D. Ill. 1981) (“language of the Rule places no limitations on the types of changes that may be made…even if the changes contradict the original answers”). 3. Substantive changes are fine, as long as they do not contradict deposition testimony. Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000). *Regardless of approach, the original answers remain part of the record and are fair game at trial.

46

Prior Inconsistent Statements and Differences Between the Errata Sheet and the Deposition: Challenge or Opportunity?

• Challenge
• Is there an inconsistency if the trial testimony is identical to the errata change?
• To the original deposition answer?
• Opportunity
• Impeachment smorgasbord.
• Witness who keeps changing answers may have credibility issues.
• “Multiple impeachment” (Steven Lubet’s point): Even if the inconsistency is on

a minor matter, the aggregate effect of minor inconsistencies may be significant.

47

Prior Inconsistent Statements and Expert Witnesses: Goldmines and Landmines

48

Prior Inconsistent Statements and Expert Witnesses: Goldmines and Landmines

Goldmines

• Many experts have written, spoken, and

testified on the subject of their trial testimony, A LOT!

• There are likely to be inconsistencies.
• There may be multiple inconsistencies
• n the same subject.

49

Prior Inconsistent Statements and Expert Witnesses: Goldmines and Landmines

Landmines

• There may be so much material available that you will have a

difficult time reading it all.

• It’s easy to get greedy with inconsistencies, so pick and choose

carefully.

• Most good experts are prepared to deal with inconsistencies, so

don’t expect a “gotcha.”

• What you call inconsistency, a scientist may call evolution in
• thought. In science, thought is constantly evolving, and it is very

easy for an expert on a scientific matter to exploit this to explain away inconsistencies.

50

Impeachment and Expert Witnesses: While We’re On the Subject, Let’s Talk About The Learned Treatise

Not the same thing as prior inconsistent statements, but this is a good sidetrack , er, segue.

51

Impeachment and Expert Witnesses: While We’re On the Subject…The Learned Treatise An exception to hearsay.

52

Impeachment and Expert Witnesses: While We’re On the Subject…The Learned Treatise

FRE 803(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if: (A) the statement is called to the attention of an expert witness

• n cross-examination or relied on by the expert on direct

examination; and (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit.

53

Impeachment and Expert Witnesses: The Learned Treatise

• Must be authenticated. The expert must testify that the text is

generally regarded as authoritative or reliable by those in a particular field.

• But need not be authenticated by the expert currently on the stand,

as long as authenticated by some expert who has testified in the

• case. That means that your expert can refer to the text and then

you can use it against the other side’s expert.

• Expert need not have read the passage in question.
• May be used as substantive evidence or for impeachment (in

federal court).

54

Prior Inconsistent Statements: Make ’Em Sweat…

55

A LOT.

56

Prior Inconsistent Statements: The Four C’s

Commit the witness to the fact you plan to attack  Credit the impeaching statement (you made under oath, close in time, etc.)  Confront witness with the statement.  Confirm with witness that you have read it correctly.

57

Prior Inconsistent Statements: Do’s

Do pick your battles, and impeach only on significant issues (unless you have a good multiple-impeachment case). Do impeach on actual inconsistences, not ambiguities. Do know your record. If the witness clarified an answer and explained away a potential inconsistency,

• r otherwise qualified an inconsistency, make sure you

know that.

58

Prior Inconsistent Statements: Do Not’s

Do not take liberties with impeachment. If you are being cute, the jury will know. Do not give the witness wiggle room—e.g., “do you recall?” Nail it down. Do not impeach for the sake of impeaching, especially if the statement you are impeaching is good for your side. Do not keep going after you have established the

• inconsistency. Resist the Perry Mason “aha” exclamation

during the examination. It hardly ever works. Save it for closing.

59

Bias, Prejudice, Motive, and Interest

• Rule ?
• There isn’t one, at least in the

federal rules. No FRE explicitly addresses these bases of impeachment.

60

Bias, Prejudice, Motive, and Interest

Bias: An individual/personal reason that

prevents a witness from being impartial and

• bjective (family relationship, grudge,

employment situation, personal history).

61

Bias, Prejudice, Motive, and Interest

Bias: This is key with expert witnesses.  Does the expert testify exclusively for

• ne side on an issue?

Does the expert work for an industry that stands to benefit from testimony? Has the expert demonstrated a point of view in prior publications?

62

Bias, Prejudice, Motive, and Interest

Prejudice: A group-based reason that

prevents a witness from being impartial and

• bjective (racial, ethnic, religious,

ideological).

63

Bias, Prejudice, Motive, and Interest

Motive and Interest: The witness stands

to gain or lose depending on the outcome of a

• case. Greed, fear, revenge, love, or all of them,

may color testimony.

64

Bias, Prejudice, Motive, and Interest

Motive and Interest: Particularly important with experts who are “hired guns.”

65

Bias, Prejudice, Motive, and Interest

Motive and Interest with Expert Witnesses: Easy to capitalize on public distrust of scientists paid by industry.

66

Bias, Prejudice, Motive, and Interest

Motive and Interest with Expert Witnesses: But it is also easy to take it to

• far. Be careful with the “hired gun” approach,

because it works both ways.

67

Contradictory Facts

What are they? Facts that are different from what the witness testifies they are.

68

Contradictory Facts

• Deal with them like you do prior

inconsistent statements.

• The form of the question matters.

69

Contradictory Facts

Form dictates proof.

• Example 1:

Q: “Did you drive your car between 8 and 10 pm last night? A: “No.”

• Example 2:

Q: Didn’t you drive your car into a ditch last night at 9 pm? A: “No.”

70

Contradictory Facts

• In Example 1, the question did not assert a
• fact. The witness’s answer ends the colloquy.
• In Example 2, the question’s form implies

that the witness actually drove into a ditch. With the witness’s denial, the questioning attorney may now need to prove it with extrinsic evidence (if it is noncollateral).

71

Thank You!

72

Thank You!

It’s Over.

Sean Costello, Esq.* The Law Office of Sean P. Costello, LLC Columbus, Ohio www.seancostellolaw.com sean@seancostellolaw.com *Licensed to practice law in Georgia and Ohio.

Impeachment of Witnesses in Civil Litigation: Strategies for Discrediting Adverse Witnesses

(continued)

Strafford Publications Webinar November 17, 2015

John Zen Jackson jjackson@mdmc-law.com

Topics to be addressed

(1) Impeaching Your Own Witness (2) Avoiding Pitfalls of Impeachment (3) Rehabilitating Witnesses After Impeachment

75

(1) Impeaching Your Own Witness

76

Common law concept of vouching for witness is gone

77

FRE FRE 607 607 - Who May Impeach a Who May Impeach a Wit Witness ness

Any party, including the party that called the witness, may attack the witness's credibility.

78

Consider impact if you have the burden

• f proof

Does disbelief of the now discredited witness provide affirmative proof regarding the subject of the impeachment?

79

If the impeachment is by a prior statement that had been given under

• ath, it is free from hearsay dangers

and is excluded from the category of hearsay under Rule 801(d)(1)(a) so that it has substantive impact.

80

Same if the impeachment is by a prior statement of a party opponent

81

Where a party’s own witness provided damaging testimony, the party is permitted to contradict that evidence with evidence from another party witness.

82

Impeachment through contradiction by

• ther witness

83

FRE 611 - Mode and Order of Examining Witnesses and Presenting Evidence

84

Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

85

Direct impeachment under FRE 607 through prior inconsistent statements, convictions, bias, prejudice, reputation

• r other means can be done.

86

Refreshing the witness’s recollection

■ “I don’t remember” versus “I don’t know”

87

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options. (b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross- examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

FRE 612 Writings Used to Refresh Recollection

88

Past Recollection Recorded

89

FRE 803(5) Exceptions to the Rule Against Hearsay – Recorded Recollection

A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

90

(2) Avoiding Impeachment Pitfalls

91

The purpose of cross-examination

■ To tell your story through the other side’s

witnesses

■ To argue your case through the witness

92

Argue through the witness, not with the witness

It is not necessary to cross-examine crossly.

93

The great error of cross-examination

That every cross-examination should attempt to impeach the adverse witness

94

Inherent risk of failing in the attack on a witness's credibility has the consequence of impeaching and undermining the examiner's credibility

95

The Ethos of the Trial Attorney a/k/a Rule 1

"Maxim: Cross-examination as to credibility forces the cross-examiner to wager his credibility against the credibility of the witness and the adverse lawyer. "

• - Herbert J. Stern, Trying Cases to Win:

Cross-examination at 22 (1993)

96

Keep in mind the other ways to cross-examine

■ Cross-examining to Get Help (Hitchhiking) ■ Cross-examining to Limit

97

Elicit favorable information before attacking the witness

98

After eliciting favorable information, damage the witness early in the examination

■ The law of primacy

99

Quit while you are ahead and do not expect to hit a grand slam

100

Stab the witness and don't just needle him or her “Let the small fish go.”

• - Terry MacCarthy

Do not cross-examine on minor discrepancies

101

Do not create an inconsistency by taking a statement out of context

102

Do not lose control

■ Documents ■ Repeating questions

103

Frame questions with as few negatives as possible

■ Clarify ambiguous responses - "that means

'yes'?"

104

Do not impeach on information favorable to your case

105

Make sure the impeachment is consistent with your theory and theme for the case

106

End on a strong point

■ The law of recency

107

(3) Rehabilitating Witness After Impeachment

108

Explanation On Re-direct

“Opening the door”

109

Rule of Completeness

110

FRE 106 - Remainder of or Related Writings or Recorded Statements

■ If a party introduces all or part of a writing or

recorded statement, an adverse party may require the introduction, at that time, of any

• ther part - or any other writing or recorded

statement - that in fairness ought to be considered at the same time.

111

Prior Consistent Statements

112

FRE 801(d)(1)(b) - Exclusions from Hearsay

■ If the prior statement is consistent with the

declarant's testimony and is offered to rebut an express or implied charge of recent fabrication or acting from recent improper influence or motive in testifying OR to rehabilitate the declarant's credibility as a witness when attacked on another ground, it is free from hearsay dangers and is excluded from the category of hearsay under Rule 801(d)(1)(b).

113

This 2014 amendment expanded the substantive use

• f prior consistent statements.

114

The rule in Queen Caroline's Case-- modified in Federal Rules but not completely eliminated

115

FRE 613 - Witness's Prior Statement

■ (a) Showing or Disclosing the Statement During Examination.

When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.

■ (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic

evidence of a witness’s prior inconsistent statement is admissible

• nly if the witness is given an opportunity to explain or deny the

statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

116

FRE 608 A Witness’s Character for Truthfulness or Untruthfulness

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that

• character. But evidence of truthful character is admissible only after the witness’s

character for truthfulness has been attacked. (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about.

117

FRE 806 - Attacking and Supporting the Declarant [in a hearsay statement]

■ When a hearsay statement - or a statement described in

Rule 801(d)(2)(C), (D), or (E) - has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a

• witness. The court may admit evidence of the declarant’s

inconsistent statement or conduct, regardless of when it

• ccurred or whether the declarant had an opportunity to

explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross- examination.

118

119

Thank You

John Zen Jackson McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP 1300 Mount Kemble Avenue P.O. Box 2075 Morristown, NJ 07962-2075 Tel: (973) 993-8100 jjackson@mdmc-law.com