South Carolina Trial Law Blog

Evan Schaeffer recently wrote a post on How to Start a Deposition at his Illinois Trial Practice Weblog. It’s a good post for young lawyers on how to get started. That reminded me of the opening questions that I use to lock a witness down in the event that the witness needs to be impeached at trial:

• Is there any reason you can’t do the deposition today? We have to do this at some point, but is there any reason today is any worse than any other day?


• Are you under the influence of alcohol, prescription drugs or anything else that would affect your ability to understand or answer my questions?


• Have you ever given a deposition before? (If so, find out when and under what circumstances. What other depositions have you given?)


• The purpose of this deposition is twofold. First, this is my only chance to talk to you. I want to hear your side of the story. So, if I ask a question you don’t understand for any reason, please ask me to rephrase the question. If I ask a question that’s too long, if I use a lawyer word, or if for some reason you just don’t understand what I’m asking, please don’t answer the question. Ask me to rephrase the question. Would you do that for me?

• But if I ask a question and you answer it, I’m going to assume you understood the question. Is that fair?
• The reason I want to know what your side of the story is because I don’t like surprises. When we plan for trial, we need to know what your version of events are, even if we disagree with them. Which brings me to the second purpose of the testimony, if we go to court and your testimony changes substantially, I’m going to use this deposition to show the jury that you’re changing your story. We’re not trying to play a game of ‘Gotcha’, but if your story changes substantially would that be fair?
• (A lot of times they’ll say that their story won’t change. Yes, but if your story does substantially change, would it be fair to tell the jury that?)
• You understand that this is sworn testimony?
• You understand that you have sworn to tell the truth? 

So what have we done here. We have ‘closed the doors’ on:

• I was drunk or under the influence


• I was  (getting divorced, losing my business, had a teenager, under an extreme amount of stress) and not thinking clear


• I didn’t understand the question


• I didn’t understand the importance of the deposition and just answered any old way


• I didn’t think it was as important as trial testimony


• I didn’t know what the purpose was. Sorry, but this is the real story at trial.

You also have:

• Let the witness know that you will impeach them if they lie, before they do it. This eliminates the jury from feeling that you’re playing ‘Gotcha’.


• Had the witness say that they believe it is fair for you to impeach them.

With most witnesses, you’ll never need to use this. But if you do, you’re ready for impeachment at trial.

I might just give you a call. I need a new Myrtle Beach employer so i can get some workers comp! No I'm just kidding I really just need the workers comp claim.

my case is in district Civil Court
i'm pro se
i want to impeach the opposing witnesses
have lots of contradictions
i think i don't have to give this information during discovery...right?
but when/how do i bring it to the judges attention?

Virginia,

There's a lot more to that question than meets the eye and beyond the scope of this blog.

In general, impeachment material is provided to an inconsistency in statements with the witness. You have to wait until the witness makes a statement before you show that he has said something else before.

I can't answer whether you have to provide the information in discovery. It really depends on the information and how you intend to you use it.

Even if you are pro se, I would recommend hiring a lawyer for a few hours to review some of the procedural issues.

Good luck with your situation.