"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.
Robert L. Abell
www.RobertAbellLaw.com
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