Are you paying attention to your record during deposition and during trial?

“What Does Your Record 'Look' Like?”

The depositions were taking longer than expected, and they were some of the most boring depos I'd 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?

That's the problem, because neither will anyone else when the attorney 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.”

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.”

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. Good luck!1

source; www.TrialTheater.com

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