Sunday, January 30, 2011

Testifying at Deposition (Part II)

 Deposition witnesses are often questioned about documents that are made exhibits during a deposition. In dealing with exhibits, it is important to take time and make sure to review the document completely before answering questions regarding it.  A common trick is to ask questions about a document without showing it to the witness.  Witnesses should ask to see and review any document prior to testifying about it.

Witnesses should answer the question that is asked and no more. It is human nature to want to help the questioner ask the right questions or to tell the questioner what the witness thinks they want to know.  But this causes problems in that expansive answers can lead to endless follow up questions and can lead the questioner to consider questions that were previously not thought of. 

Witnesses need to keep an even temperament during a deposition.  We’ve all said something out of anger that wasn’t meant.  Anger, annoyance, and other emotions can get in get in the way of considering and fully understanding questions.  Deep breaths and counting to 10 or similar measures can serve to break the rhythm and refocus the witness.  A sudden need to use the restroom in such circumstances can be the ultimate rescue.

Witnesses should avoid guessing or speculating.  A deposition is supposed to be an inquiry into facts known by the witness.  A guess or speculation might not be accurate.  It is completely acceptable for a witness to answer that they cannot recall the information needed to answer the question. 

Michigan Legal Intelligence is authored by W. Jay Brown, a Midland Michigan based civil litigation attorney. The foregoing is intended to be for general information purposes only and is not intended to be specific legal advice and does not create an attorney-client relationship between W. Jay Brown PLC and you. Individuals with legal issues are advised to consult an attorney of your own choosing for advice specific to your situation.

Sunday, January 16, 2011

Differences between Civil and Criminal Litigation

 General court litigation is split into two types – criminal and civil.  The terms, rules and penalties depend on whether the wrong involved rises to the level of a crime.

  Crimes are matters where there is a potential loss of liberty – i.e. jail or prison. Civil cases concern money damages or a court directive to take some action. The loser in a civil case doesn’t go to jail after trial. (Do you remember from your high school history class that there are no debtors’ prisons in the U.S.A.?)

 With the potential loss of liberty, society demands that the highest burden of proof (beyond a reasonable doubt) be met.  In civil cases, the general burden is the lesser preponderance of the evidence standard (more likely than not).

In criminal law, you have a prosecuting attorney on one side and a defense attorney on the other. In the civil context, there is still a defense attorney. But, the attorney for the party bringing the case is called the plaintiff’s counsel.  In a criminal context, a defendant is found “guilty” and is “convicted” while a civil defendant is found “liable.”

While the differences can be confusing, I think it makes sense to people if they remember that American justice system reflects societies’ determination that the potential loss of liberty is much more serious than the potential loss of money or other property.

Michigan Legal Intelligence is authored by W. Jay Brown, a Midland Michigan based civil litigation attorney. The foregoing is intended to be for general information purposes only and is not intended to be specific legal advice and does not create an attorney-client relationship between W. Jay Brown PLC and you. Individuals with legal issues are advised to consult an attorney of your own choosing for advice specific to your situation.

Testifying at Deposition (Part I)

        
 A deposition is a question and answer discovery practice where the witness testifies under oath before a court reporter who records the testimony and creates a transcript.  At its simplest, a deposition is the opposing party’s opportunity to find out what the party or some other witness knows and might testify to at trial.

Giving a deposition can be very unnerving. However, try to relax by remembering the primary rule – tell the truth. The facts are the facts and lawyers can’t change facts. The lawyer’s job is to develop and emphasize the most positive facts and minimize or impeach the negative facts.

Witnesses get into trouble in a deposition when they unintentionally give a wrong answer because they didn’t understand the question, or worse, answered a question that was different than the one asked.  As such, it is really important to make sure to understand the question.  Don’t rush giving the answer. Consider the question and make sure it is understood before answering. If the question is unclear, ask for it to be repeated or restate the question back to questioning lawyer to make sure it is understood.

Another big problem is that people often forget things when they are under the stress of testifying.  Watch out for being unequivocal.  Questions that ask for “everything that happened” or whether someone “always” does something or “never” does something should make the internal alarm bells go off.   A witness might not remember everything they did on a day - - - the witness needs to make sure it is understood that their testimony reflects everything they recall at this time while still acknowledging the possibility that there may be other instances.

This next one might seem silly – but I’ve seen it be the downfall of more than one witness.  NEVER assume what the questioning lawyer is saying is actually true.  Some lawyers just ask things that they don’t know or suggest facts that would be favorable to their case and see if the witness will agree.  Listen to the question and unless the suggested facts are 100% known to be true, don’t adopt the suggested facts as the actual facts.

Part two will consider documents within a deposition and overall strategies which might be used in certain circumstances.

Michigan Legal Intelligence is authored by W. Jay Brown, a Midland Michigan based civil litigation attorney. The foregoing is intended to be for general information purposes only and is not intended to be specific legal advice and does not create an attorney-client relationship between W. Jay Brown PLC and you. Individuals with legal issues are advised to consult an attorney of your own choosing for advice specific to your situation.