Category Archives: Depositions

Posted on

Bringing a Missing Witness to Life

by

Have you ever had to present a deposition or interview transcript to the jury?  How did you do it?  Some time ago, I was asked to help a friend present the transcript of an interview in a murder case he was prosecuting.  There were just a few problems with presenting the interview to the jury:

  • The interview was conducted in Spanish, not English, so he couldn’t play the original audio recording
  • Not everything in the interview was relevant to the case, so the jury would only be allowed to hear a limited portion of the interview.
  • Our rules of evidence place limitations on the admissibility of transcripts in criminal trials, so he couldn’t just admit a redacted copy of the transcript and ask the jurors to read it.

    • He resolved those problems by asking the two detectives to re-read their portions of the interview, and asking me to read the defendant’s statements.  Between the three of us, we tried to take the jurors back to the interview room, so they could hear exactly what was said.  Here are five tips I learned to help you present deposition or interview transcripts more effectively:

    1. Ask someone else to help you.  If he had read all three parts of the transcript himself, he would have run the risk of either confusing the jurors or boring them to tears.  By asking the three of us to read our individual parts, he eliminated the risk of the jurors confusing who said what, and made it more interesting for the jurors.

    2. Highlight the witness’s lines.  By taking a highlighter to all of my lines, I could easily see what I was supposed to read next.  That’s especially important when you’re reading from a back-and-forth exchange.  Highlighting all of the witness’s lines ensures they won’t miss any lines and also ensures there won’t be any awkward pauses while you wait for your reader to realize he’s supposed to be speaking.

    3. Clearly mark any stopping points.  If you’re only reading portions of the transcript, use the highlighter or a red marker to draw a line across the entire page where they’re supposed to stop.  When witnesses are involved in a quick back-and-forth exchange, they can get caught up with reading their lines, and miss the small “Stop!” marks written in the margins.  Don’t risk the chance of your witness reading irrelevant or inadmissible testimony to the jury.  Clearly and boldly mark where they should stop.

    4. Tab the appropriate pages.  Just like on the radio, you want to prevent the courtroom from filling with “dead air.”  When your witness is flipping through pages of the transcript, trying to find what portion he’s supposed to read next, it breaks the flow of your presentation and gives the jurors’ minds an opportunity to wander away.  Prevent “dead air” by tabbing the witness’s transcript, so he clearly understands which portion to flip to next.  Combined with the highlighting, this little bit of extra effort will make it much easier for your witness to smoothly present the transcript.

    5. Ask your “reader” to read the transcript beforehand.  By reading the transcript in advance, they’ll note any grammatical difficulties or pronunciation difficulties they might encounter.  You want to make sure that they can pronounce the words and capture the flow of the language.  Think about reading any of Shakespeare’s works aloud – you wouldn’t want to pick up the text and just “wing it.”  By reading the document in advance, your reader will discover if there are any words they can’t quite wrap their mouth around.  They’ll be able to fix the problem beforehand, so that your courtroom presentation flows smoothly.

    Ideally, if you know a witness won’t be available, you’ll want to set up a multi-camera recording of his deposition so that the jury can hear exactly what the witness said and see exactly how he said it.  However, when those recording set-ups are unfeasible or too expensive, enlist the help of a friend to read the transcript to the jury.  Done well, the results can be almost as effective as taking the jurors back to the scene.

    Posted on

    Avoiding Gunfights During Cross-Examination

    by

    If you were in the police academy, one of the most important things you would learn is how to keep safe when you’re out on the street.  To stay safe, you’d want to learn how to prevent verbal confrontations from escalating into physical fights, and how to prevent physical fights from escalating into knifefights or gunfights.  As it turns out, one of the easiest ways to prevent situations from escalating to the next level is by keeping your emotional level lower than the perp’s emotional level.  (One of the other things you learn in police academy is how to use cool words like “perp.”)

    For simplicity’s sake, let’s assume that the scale for emotional levels runs between 0 and 10.  At level 0, you’ve got the Dalai Lama on quaaludes.  You’re calm, cool, and collected, and nothing in the world can upset you.  At the other end of the spectrum, imagine Bill O’Reilly and Keith Olberman battling for control of the country’s political mindset in a winner-takes-all steel cage death match battle royale.  At this level, you’re angry that you can’t get angrier — everything upsets you.

    So let’s say that you’re a rookie cop out on the street dealing with someone at level 5.  To prevent the situation from becoming more violent, you’d want to keep your emotional level lower than theirs, preferably at least 2 levels lower.  By talking slower, being quieter, and acting calmer than the other person, you can hopefully defuse the situation by bringing the other person’s emotional level down to yours.

    But what if you decided to approach the person on the same emotional level, or even worse, at a higher level?  When you’re at a more intense level, then the other person will usually rise to the challenge and increase their level, too.  For example, if the other person is calm, but you start yelling at them, they’ll ratchet up their emotional level and start yelling at you.  In return, you’ll get angrier, and start yelling louder or more profanely.  Before long, if one of you doesn’t step back, you’ll find yourself in a physical confrontation (or worse).

    That’s why good police officers are able to avoid physical confrontations, because they know how to keep themselves “below” the other person’s level, and ensure that the situation is resolved peacefully.

    But here’s the funny thing about police officers…

    Despite all of their training about de-escalating confrontations with people out in the streets and avoiding violence by keeping their emotional level below the antagonist’s level, many of them seem to do the exact opposite when they walk into a courtroom!

    Have you ever witnessed a defense attorney cross-examine a police officer?  It often sounds like this:

    Defense lawyer: Good morning, officer.  I’d like to ask you some questions about your report.

    Police officer: !@%$#%@ you, I want to punch you in the face.

    Okay, that’s a bit of an exaggeration.  But if you’ve spent much time in the courtroom, chances are you’ve seen a witness fall apart during cross-examination by letting their emotions get the best of them.  It’s not just police officers — expert witnesses, corporate officers, lay witnesses — anyone can lose their cool in the courtroom.

    For example, here’s the deposition of a CEO who got a little upset during his deposition:

    (Ultimately, he and his lawyer were fined $29,000 for his actions during the deposition.)

    Unfortunately, when your witnesses lose their temper during cross-examination, jurors lose respect for the witness.  In an instant, your witness can move from “trusted observer” to “biased jerk,” forcing the jury to discount everything he says.  (It’s not just witnesses, either.  If you lose your temper with a witness, even when the witness deserves it, you’ll sacrifice your credibility with the jury.)

    So how can you prevent emotions from taking control in the courtroom?  How do you ensure that your witnesses come out on top by keeping their emotional level lower than the cross-examiner’s?

    The first thing to do is to help your witnesses understand how untrustworthy they look when they lose their cool.  Videotape the witnesses during your mock cross-examinations back in the office, and make them watch the videotape.  Often, nothing needs to be said.  For many witnesses, this is the first time they’ve ever seen themselves on video, and once they see how undignified they look when they get upset, they’ll understand why you want them to monitor their emotional level.

    Once they’ve seen how they look when they get upset, the next step is to help them understand what is triggering their anger.  Is it a specific factual topic?  The examiner’s tone?  An implied (or explicit) accusation?  By identifying the triggers, you’ll prepare your witness to anticipate when they’ll get upset during cross-examination, and help them avoid the confrontation.

    You’ll also want to teach your witness which tactics your opponent uses to get under people’s skin and trigger their anger.  Many attorneys are one trick ponies.  Rather than using solid cross-examination skills, these lawyers will rely on raising their voice, rapid-fire questions, attacking integrity, misstating the witness’s name or rank, forcing the witness into “I don’t know” responses, staring down the witness, or other “tricks” that anger the witness.  If your witness is prepared, they’ll know to expect the lawyer’s trick so they won’t be taken by surprise and can maintain their calm exterior.

    Finally, you’ll want to prepare your witnesses for what they should do when they recognize that they’re starting to lose their cool.  Remind them to slow down, take a breath, and pause before answering.  Whatever it takes, they need to keep their emotional level lower than the cross-examiner’s.  If they can’t, the jury will ignore what they say, and their testimony will be worthless.

    Posted on

    Is your deposition record worthless?

    by

    The depositions were taking longer than expected, and they were some of the most boring depos I’ve ever attended.  As we approached 3 o’clock, I could barely keep my eyes open.  Luckily, closing my eyes for a brief moment helped me “see” what  the deposition transcript would “look” like, and helped me understand the differences between talking to a witness, versus talking to “the record.”  Take a look at two sample questions that were asked:

    “This blood here, is that from this general area here, or is that from another area?”

    “Is this photograph here a photograph of this area here?”

    Huh?  Do you have any idea what they’re talking about?  Do you know where the blood is?  Neither will they when the attorney if she tries to impeach the witness using this deposition during trial.

    That’s why it’s important to clarify what you’re referring to during deposition or during trial.  If the attorney had referred to the photograph by exhibit # (“Referring to Plaintiff’s Exhibit #15”) or by general description (“We’re looking at a contact sheet of photos you took at the scene, specifically, the 2nd photo from the left on the third row, page 7”) then we would have some idea what they were talking about, and our record would be clear.

    Are you paying attention to your record during deposition and during trial?  If not, you may be minimizing the effect of valuable impeachment material or omitting crucial information that the appellate courts need to “see.”  To help you create a better record, take a look at these examples:

    Example #1: (BAD)

    Q: “So, this is where the shell casings were found?”
    A: “Yes, right there where you’re pointing.”

    When this question was asked during the deposition, it was abundantly clear to the witness and to the attorneys where these shell casings were located, because we were all looking at the same photo.  The image was directly in front of us, and the attorney was using her finger to point out different sections of the photo.  But after reading the transcript, do you have any idea where the shell casings were found?  If the location of the shell casings was in dispute, would you be able to cross-examine the witness using this transcript?

    If you’re not careful about creating a record, your transcript will be as worthless as this one is.  When no one can “see” what you’re talking about, you won’t be able to impeach the witness.  Look at this next example to see how the simple act of identifying which document you’re referring to can dramatically increase the impeachment value of your transcript:

    Example #2: (BETTER)

    Q: “Referring to Plaintiff’s exhibit #19 — this is where the shell casings were found?”
    A: “Yes, right there where you’re pointing.”

    Murder scene
    Plaintiff’s Exhibit #19

    This method is better, at least you know what you’re supposed to be looking at.  There’s still room for improvement, however, because you still don’t know which part of the photograph they’re referring to.  Take a look at example #3 to see how to make your record crystal clear:

    Example #3: (BEST)

    Q: “Referring to Plaintiff’s exhibit #19 — this is where the shell casings were found?”
    A: “Yes, right there where you’re pointing.”
    Q: “The cones marked by ‘M,’ ‘N,’ ‘T,’ R,’ and ‘S’ in the photograph?”
    A: “Yes.”

    Murder scene
    Plaintiff’s Exhibit #19

    Now do you have any questions about where the shell casings were located?  By being specific, the examiner removes all doubt about where the items were found.  If your photo doesn’t have cone markings, have the witness use a permanent marker to  distinctly identify the areas you’re discussing.

    As a trial lawyer, you spend a lot of time in depositions.  If you’re going to invest that much time, you want to ensure that your record is clear and that you maximize the value of your impeachment material.  A quick and easy way to do that is to make sure you know what your record “looks” like.