"If you know" or some variation thereof is a frequently-used objection (actually a caution) at a deposition where the defending lawyer warns the witness that they shouldn't answer the question and offers the witness a way out of answering it. Such interjections are raw, unmitigated coaching and are never appropriate.
U.S. District Judge Mark Bennett illustrated the wholly improper use of this tactic in a recent opinion where he sua sponte sanctioned a lawyer from the Jones Day firm for repeatedly making this specious interjection. Judge Bennett's opinion came in a products liability case alleging that tainted baby formula made by Abbott had caused permanent brain damage to an infant, Security National Bank of Sioux City, Iowa v. Abbott Laboratories, No. 11-4017-MWB. The lawyer's "if you know" interjections were as follows:
Q: Are these the ingredients that are added after preparation or after pasteurization?
Counsel: If you know. Don't guess.
A: If you could rephrase the question. There's no ingredients on 28.
Counsel: So you can't answer the question.
* * *
Q: If it is high enough to kill bacteria, why does Abbott prior to that go through a process of pasteurization?
Counsel: If you know, and you're not a production person so don't feel like you have to guess.
A: I don't know.
* * *
Q: Does it describe the heat treatment that you referred to a few moments ago, the heat treatment that occurs in the dryer phase?
Counsel: Okay. Do you know his question? He's asking you if this is what you are describing.
A: Yeah, I don't know.
* * *
Q: ... Is there any particular reason that that language is stated with respect to powdered infant formula?
Counsel: If you know. Don't -- if you know.
A: No, I -- no, not to my knowledge.
Counsel: If you know. I mean, do you know or not know?
A: I don't know.
And here is Judge Bennett's apt description of these tactics:
When a lawyer tells a witness to answer "if you know," it not-so-suddenly suggests that the witness may not know the answer, inviting the witness to dodge or qualify and otherwise clear question. For this reason, "instructions to a witness that they may answer a question 'if they know' or 'if they understand the question' are raw, unmitigated coaching, and are never appropriate.
I couldn't have said it better myself.
Judge Bennett's sanctions opinion was discussed in a previous post: Deposition Objections - Improperly Coaching the Witness.
How often have lawyers at a deposition faced "objections" by their opposing counsel which are little if nothing more than thinly-veiled cues to the witness to respond to the question in a particular way. U.S. District Judge Mark W. Bennett, one of the Nation's most interesting and thoughtful district judges, concluded recently that enough is enough and imposed sua sponte sanctions on the Jones Day law firm for their misconduct of one of its attorneys in a deposition. Interestingly, the sanctions followed a trial in which Jones Day defended successfully Abbott Laboratories and a products liability case alleging that tainted baby formula made by Abbott had caused permanent brain damage to her infant. The case is reported as Security National Bank of Sioux City, Iowa v. Abbott Laboratories, No. 11-4017-MWB.
Judge Bennett recites the following "clarification-inducing" objections as coaching the witness:
Q: Is there – do you believe that there is – if there is any kind of correlation that could be drawn from OAL environmental samples to the quality of the finished product?
Counsel: Objection; vague and ambiguous.
A: That would be speculation.
Q: Well, if there were high numbers of OAL, Eb samples in the factory, would not that be a cause of concern about the microbiological quality of the finished product?
Counsel: Object to the form of the question. It is a hypothetical; lacks facts.
A: Yeah, those are hypotheticals.
Q: Would that be a concern of yours?
Counsel: Same objection.
A: Not going to answer.
Q: You're not going to answer?
A: Yeah, I mean, it's speculation. It would be guessing.
Counsel: You don't have to guess.
Here, the questioning plaintiff's lawyer is asking simply if (a) certain environmental sample readings could correlate to the product's quality, or if not that much then (b) could those environment samples could raise concerns about the product's quality. These are, as Judge Bennett, notes "completely reasonable questions" to a knowledgeable witness.
There will be additional postings about these bad-faith deposition objections, one of my pet peeves. I invite others to share their experiences.
The defective product case recently decided by the Sixth Circuit, Lee v. Smith & Wesson Corp., No 13-3597 (July 29, 2014), is an interesting case. There was a previous post: Is Expert Testimony Inadmissible Because the Plaintiff's Expert's Theory Contradicts the Plaintiff's Testimony?
The plaintiff, Lee, was injured while firing a revolver made by Smith and Wesson that discharged irregularly and caused severe damage to his right eye. He sought to present expert opinion testimony from a mechanical engineer, but the district court excluded it because the expert's theory contradicted Lee's account of the incident. But Lee's testimony was not a judicial admission barring the expert's testimony as the Sixth Circuit explained:
... Lee's deposition testimony, in any event, does not constitute a judicial admission. ... The purpose of the doctrine is to promote the expedition of trials by allowing parties to rely upon lawyers' admissions. "In order to qualify as judicial admissions, and attorneys statements must be deliberate, clear and unambiguous."
Here Smith & Wesson points to no judicial admission on the part of Lee in his represented status as plaintiff. Instead, Lee has a witness testified as to what he remembered. A tort plaintiff should be able to testify honestly to his memory of what happened and still have his lawyer argue that on the evidence as a whole it is more probable than not that the memory was faulty.
Is an expert witness's testimony inadmissible because the expert's theory contradicts the plaintiff's testimony? Must an expert conform his theory to the factual scenario presented by the plaintiff's testimony? The answer to these questions is "no," as the Sixth Circuit held recently in Lee v. Smith & Wesson Corp., No 13-3597 (July 29, 2014).
This was a products liability case. Plaintiff Mark Lee was injured while firing a revolver made by Smith & Wesson. While target shooting, Lee fired two shots without incident, but, on the third shot, the gun cylinder opened and the blast from the shot did severe damage to Lee's right eye. In support of his claims, Lee sought to introduce the expert testimony of a mechanical engineer, Roy Ruel.
Lee's testimony regarding the incident and Ruel's theory as to how it occurred differed in three respects: "(1) Lee testified that he had no difficulty firing the gun the third time, whereas Ruel stated that the gun did not immediately fire because the cylinder failed to close fully; (2) Lee testified that the cylinder was closed when he fired the gun, whereas Ruel stated that it was open but appeared to be closed; and (3) Lee's demonstration of his grip on the gun showed that he did not touch the thumb latch, whereas Ruel stated that Lee pushed on the thumb latch." Based on these contradictions, the district court ruled Ruel's expert testimony inadmissible; the plaintiff's stipulated to dismissal and appealed.
The Sixth Circuit reversed. First, a basic rule: "a party is not precluded from proving his case by any relevant evidence, even though that evidence may contradict the testimony of a witness previously called by him." Second, a jury could conclude reasonably that Lee was mistaken about what had happened: "a reasonable factfinder could conclude that Lee thought he had closed the chamber but in fact did not, and instead overlooked the opening, which Ruel suggests was the case in Lee's accident." Third, admission of the expert testimony was directly supported by prior decision, Greenwell v. Boatwright, 184 F.3d 492 (6th Cir. 1999), which upheld the admission of expert testimony despite contradictions between the expert's testimony and eyewitness's testimony, because physical evidence was the basis for the expert testimony.
Robert L. Abell
The United States Court of Appeals for the Fourth Circuit today issued a ruling striking down Virginia's ban on same-sex marriage. The case is Bostic v. Harris; it was a 2-1 decision with Circuit Judge Henry Floyd writing the court's opinion and being joined by Circuit Judge Roger Gregory; Circuit Judge Paul Niemeyer dissented and argued that the same-sex marriage ban should stand.
The majority's rationale was a ringing clarion for human dignity and liberty:
The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual's life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.
This ruling is the second by a federal court of appeals to strike down a state's same-sex marriage ban. Last month, the Tenth Circuit Court of Appeals sitting in Denver struck down Utah's same-sex marriage ban in the case Kitchen v. Herbert.
On August 6, the Sixth Circuit Court of Appeals will hear oral arguments in Cincinnati in cases challenging Kentucky's same-sex marriage ban and that of other states in the circuit. Circuit Judges Jeffrey Sutton and Deborah Cook along with Senior Circuit Judge Martha Daughtrey will sit on the panel that will decide those cases.
The Washington Post Wonkblog has a disturbing if not shocking graphic illustrating the extreme racial disparity in the criminal justice system. The story also reports the results of a study finding that the economic progress by black men in American society beginning in 1940 to 1980 has stopped and, in some instances, reversed, a major cause being skyrocketing rates of incarceration.
Since the federal courts have by and large but not completely decided there is no problem with it, federal prosecutors have taken to reading routinely the emails from pretrial detainees and inmates to their attorneys. Nice to know. The New York Times reports: Prosecutors Are Reading Emails from Inmates to Lawyers.
and Justice for All.
The United States' justice system is very, very good at one thing: sending people to prison.
The United States Sentencing Commission voted unanimously yesterday that sentencing guidelines changes that will reduce the sentencing ranges applicable to drug offenses will be retroactive and therefore applicable to defendants who have already been convicted and have been serving their sentences. Generally, the changes in the sentencing guidelines will reduce sentences in federal drug crimes about 2 1/2 to 3 years. Between 40,000 and 50,000 current federal inmates stand to benefit from these changes becoming retroactive. Read here the Sentencing Commission's news release.
The Sentencing Commission held a number of hearings and solicited input from all interested groups; as earlier reported the conference of federal judges supported making the guidelines amendments and their retroactivity: Federal Judges Support Retroactive Application of Sentencing Guidelines Amendments.
The changes will become effective and official on November 1, 2014, unless Congress acts affirmatively to nullify or block the changes. There is little chance of Congress acting on that (or on anything else), so the reductions are expected to become effective. Some judges, as noted by Senior District Judge Richard Kopf on his blog, Hercules and the Umpire, have already been applying the changes, a practice that will save the time and money involved dealing with the petitions for resentencing that will follow inevitably the formal and official adoption of the guidelines' amendments.