Have you ever walked out of a deposition with the adrenaline rush of knowing that you just obtained critical information during your interrogation of the witness? You received an answer you never thought you’d get? On the way back to your office you call your colleagues to report the good news. Then you call your client. Wow, things couldn’t be better for the case.
Now fast forward thirty days. The witness elected to read and sign. You receive the errata sheet in the mail, and you realize both substantive and form changes have been made. Yikes! The witness clearly consulted with his lawyer, and decided that the answer was awful, and needed to be changed. There goes the Perry Mason impeachment at trial. There goes your stellar cross. There goes the case.
One technique that some of our clients use to combat the flip-flopping witness is to videotape the deposition. The videotape doesn’t prevent the witness from making a substantive change; but it certainly makes it harder. Let’s assume that Willie the Witness was asked at trial how fast he was going right before the car accident. He calmly, but assertively, answers “fifty miles per hour.” There’s no doubt in his mind. But wait. After the deposition, Willie’s lawyer tells him that the speed limit is actually forty miles per hour. Uh oh. So when Willie goes to read and sign, he makes the change. Without the videotape, it just appears as a change. However, with the videotape, impeachment goes so much better because of Willie’s confidence during the deposition. Remember, there was no doubt in his mind.
Next time you expect a difficult witness, consider having a videographer present.
