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August 2014
August 18, 2014
August 06, 2014
"If You Know" -- Deposition Objections That Coach the Witness's Answer
"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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August 04, 2014
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.
Robert L. Abell
www.RobertAbellLaw.com
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August 01, 2014
Can a plaintiff's deposition testimony be a judicial admission causing an expert's opinion testimony to be excluded?
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.
The majority opinion in the Sixth Circuit's 2-1 decision was authored by Circuit Judge John Rogers joined by Senior Circuit Judge Eugene Siler; Senior Circuit Judge Damon Keith dissented.
Robert L. Abell
www.RobertAbellLaw.com
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