How to Correctly Use a Deposition to Impeach a Witness with Inconsistent Statements
When a Witness Changes Depo Testimony at Trial
Witness testimony may change from deposition to trial. This is why every trial attorney must be able to quickly impeach the witness with their prior inconsistent statements. Unfortunately, if done incorrectly, this opportunity to attack the witnesses credibility is lost in front of the jury. For this reason, it is crucial that every lawyer or pro se plaintiff must correctly use prior inconsistent deposition testimony in an effective and admissible manner.
Impeachment Using Prior Inconsistent Statements from Depo
First, make sure to have four copies of the deposition testimony. One copy for you, one copy for opposing counsel, one for the Judge and one for the witness. I like to mark up my depo copy while keeping the other copies clean.
Keep Your Trial Questions Consistent with your Deposition Questions
I like to ask the same question I asked in deposition. This prevents any wriggling out from giving the same answer. So keep things consistent in your question to reduce ambiguity.
If the witness gives the same answer they gave in depo, great. Move on.
If the witness gives a different answer than what they testified to in deposition, follow this line of questioning.
Follow Up Impeachment Questions to an Inconsistent Statement
- You would agree with me that . . . [the blue car was more than a car length ahead of you] right?
[witness answers ‘no’]. - You testified in a deposition in this case, right?
- You were under oath during that deposition, correct?
- You swore to tell the truth in that deposition, correct?
- Did you tell the truth during your deposition?
- And you had your lawyer there, right?
- Your Honor, may I approach the witness with a copy of her deposition?
- Ma’am, take a moment and confirm that this is the deposition you gave in this case on [insert date].
- I am reading from page [#], lines {# through #}
Q. Was the blue car more than a car length ahead of you?
A. Yes. Definitely more than a car length. - Did I read that correctly?
Inconsistent Statement is Noted by the Jury. Now Move On!
Some lawyers like to ask more follow up questions like “So your answers have changed in trial from your deposition testimony, right?” I personally see no need for this follow up. Why give the witness a chance to explain her inconsistency? The jury was listening. They understand the witness is changing crucial testimony. You got what you needed. Now move on!
Rehash Changes in Testimony in Closing
Do not beat a dead horse. You should revisit the changes in testimony in closing. Do not belabor the point during your cross examination. Cross exam’s are most compelling when they are short, sweet and to the point.
Our Experience Impeaching Witnesses
At Senior Justice Law Firm, our Boynton Beach injury attorneys work everyday to help our clients get justice for their injuries. We regularly try personal injury cases. We win some trials. Others, we lose. Despite our best attempts as lawyers, many cases rise and fall on the credibility of witnesses. If you can impeach a witness on the stand with inconsistent statements, this resonates with the jury. For this reason, it is crucial that every trial lawyer understands how to successfully cross examine a witness with inconsistent prior statements from their deposition, while complying with Florida law.
