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

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A 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 TUESDAY, NOVEMBER 17, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: 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 The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

2 Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial and enter your PIN when prompted. Otherwise, please send us a chat or sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

3 Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you that you will receive immediately following the program. For additional information about continuing education, call us at ext. 35.

4 Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to Conference Materials in the middle of the lefthand column on your screen. Click on the tab labeled Handouts that appears, and there you will see a PDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon.

5 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 (O) (212) (F) (212)

6 6

7 KNOW YOUR FILE 7

8 KNOW THE LAW 8

9 A Powerful Persuasion Principle 9

10 CREATE AN OUTLINE a. b. c. a. b. c. FACTS 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

11 METHODS OF IMPEACHMENT 11

12 The witness has committed an immoral, vicious or criminal act 12

13 The witness has been convicted of a crime 13

14 THE WITNESS LACKED THE CAPACTIY TO TESTIFY 14

15 THE WITNESS IS BIASED 15

16 PRIOR INCONSISTENT STATEMENTS 16

17 THE WITNESS HAS RELIED UPON INACCURATE OR INCOMPLETE INFORMATION 17

18 THE MECHANICS OF IMPEACHMENT 18

19 THE THREE C S OF IMPEACHMENT Commit the witness to the direct testimony. Confront the witness with the inconsistent statement. Complete the impeachment. 19

20 BEWARE OF POTENTIAL EVIDENTIARY PROBLEMS 20

21 BE PREPARED TO AUTHENTICATE ALL IMPEACHMENT EVIDENCE 21

22 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

23 IMPEACHEMENT TOOLS 23

24 DEPOSITIONS 24

25 PRIOR TRIAL TESTIMONY 25

26 CORRESPONDENCE Letters s 26

27 SCIENTIFIC TREATISES 27

28 SOCIAL MEDIA 28

29 Thank You Claire F. Rush, Esq. Rush & Sabbatino, PLLC 111 John Street, Suite 800 New York, NY (O) (212) (F) (212)

30 Impeachment of Witnesses in Civil Litigation: Strategies for Discrediting Adverse Witnesses Stafford Publications Webinar November 17, 2015 Presented by Sean Costello

31 Impeachment Methods Prior Inconsistent Statements Bias Contradictory Facts 31

32 THEY WENT THATAWAY: PRIOR INCONSISTENT STATEMENTS 32

33 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 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). 33

34 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

35 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

36 Categories of Prior Statements Testimony (trials, depositions, hearings) Written statements under oath (affidavits, declarations) Written statements not under oath ( , letters, publications, social media posts) Litigation papers (document responses, interrogatories) Verbal statements (to anyone)testimony 36

37 Prior Inconsistent Statements: The Fantasy (With Apologies to Aldo Nova) 37

38 Prior Inconsistent Statements: The Perry Mason Moment Fantasy 38

39 Prior Inconsistent Statements: The Reality 39

40 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

41 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

42 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 (1 st 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 or a yawn. 42

43 Prior Inconsistent Statements and Deposition Testimony Degrees of Consistency and the Qualified Answer 43

44 Prior Inconsistent Statements and Deposition Testimony What About Differences Between the Errata Sheet and the Deposition? 44

45 Prior Inconsistent Statements and Deposition Testimony What About Differences Between the Errata Sheet and the Deposition? 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. 45

46 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 (7 th Cir. 2000). *Regardless of approach, the original answers remain part of the record and are fair game at trial. 46

47 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

48 Prior Inconsistent Statements and Expert Witnesses: Goldmines and Landmines 48

49 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 on the same subject. 49

50 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

51 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

52 Impeachment and Expert Witnesses: While We re On the Subject The Learned Treatise An exception to hearsay. 52

53 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 on 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

54 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

55 Prior Inconsistent Statements: Make Em Sweat 55

56 A LOT. 56

57 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

58 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, or otherwise qualified an inconsistency, make sure you know that. 58

59 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

60 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

61 Bias, Prejudice, Motive, and Interest Bias: An individual/personal reason that prevents a witness from being impartial and objective (family relationship, grudge, employment situation, personal history). 61

62 Bias, Prejudice, Motive, and Interest Bias: This is key with expert witnesses. Does the expert testify exclusively for one 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

63 Bias, Prejudice, Motive, and Interest Prejudice: A group-based reason that prevents a witness from being impartial and objective (racial, ethnic, religious, ideological). 63

64 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

65 Bias, Prejudice, Motive, and Interest Motive and Interest: Particularly important with experts who are hired guns. 65

66 Bias, Prejudice, Motive, and Interest Motive and Interest with Expert Witnesses: Easy to capitalize on public distrust of scientists paid by industry. 66

67 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

68 Contradictory Facts What are they? Facts that are different from what the witness testifies they are. 68

69 Contradictory Facts Deal with them like you do prior inconsistent statements. The form of the question matters. 69

70 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

71 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

72 Thank You! 72

73 Thank You! It s Over. Sean Costello, Esq.* The Law Office of Sean P. Costello, LLC Columbus, Ohio sean@seancostellolaw.com *Licensed to practice law in Georgia and Ohio.

74 Impeachment of Witnesses in Civil Litigation: Strategies for Discrediting Adverse Witnesses (continued) Strafford Publications Webinar November 17, 2015 John Zen Jackson

75 Topics to be addressed (1) Impeaching Your Own Witness (2) Avoiding Pitfalls of Impeachment (3) Rehabilitating Witnesses After Impeachment 75

76 (1) Impeaching Your Own Witness 76

77 Common law concept of vouching for witness is gone 77

78 FRE Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness's credibility. 78

79 Consider impact if you have the burden of proof Does disbelief of the now discredited witness provide affirmative proof regarding the subject of the impeachment? 79

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

81 Same if the impeachment is by a prior statement of a party opponent 81

82 Where a party s own witness provided damaging testimony, the party is permitted to contradict that evidence with evidence from another party witness. 82

83 Impeachment through contradiction by other witness 83

84 FRE Mode and Order of Examining Witnesses and Presenting Evidence 84

85 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

86 Direct impeachment under FRE 607 through prior inconsistent statements, convictions, bias, prejudice, reputation or other means can be done. 86

87 Refreshing the witness s recollection I don t remember versus I don t know 87

88 FRE 612 Writings Used to Refresh Recollection (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 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to crossexamine 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. 88

89 Past Recollection Recorded 89

90 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

91 (2) Avoiding Impeachment Pitfalls 91

92 The purpose of cross-examination To tell your story through the other side s witnesses To argue your case through the witness 92

93 Argue through the witness, not with the witness It is not necessary to cross-examine crossly. 93

94 The great error of cross-examination That every cross-examination should attempt to impeach the adverse witness 94

95 Inherent risk of failing in the attack on a witness's credibility has the consequence of impeaching and undermining the examiner's credibility 95

96 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

97 Keep in mind the other ways to cross-examine Cross-examining to Get Help (Hitchhiking) Cross-examining to Limit 97

98 Elicit favorable information before attacking the witness 98

99 After eliciting favorable information, damage the witness early in the examination The law of primacy 99

100 Quit while you are ahead and do not expect to hit a grand slam 100

101 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

102 Do not create an inconsistency by taking a statement out of context 102

103 Do not lose control Documents Repeating questions 103

104 Frame questions with as few negatives as possible Clarify ambiguous responses - "that means 'yes'?" 104

105 Do not impeach on information favorable to your case 105

106 Make sure the impeachment is consistent with your theory and theme for the case 106

107 End on a strong point The law of recency 107

108 (3) Rehabilitating Witness After Impeachment 108

109 Explanation On Re-direct Opening the door 109

110 Rule of Completeness 110

111 FRE 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 other part - or any other writing or recorded statement - that in fairness ought to be considered at the same time. 111

112 Prior Consistent Statements 112

113 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

114 This 2014 amendment expanded the substantive use of prior consistent statements. 114

115 The rule in Queen Caroline's Case-- modified in Federal Rules but not completely eliminated 115

116 FRE 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 only 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

117 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

118 FRE 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 occurred 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 crossexamination. 118

119 119

120 Thank You John Zen Jackson McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP 1300 Mount Kemble Avenue P.O. Box 2075 Morristown, NJ Tel: (973)