bill of particulars conflicting with deposition testimony

BILL OF PARTICULARS CONFLICTING WITH DEPOSITION TESTIMONY TRIAL

Even if the mistaken issue seems minor to you, the mere fact that you know the client to have given false testimony may preclude you from using any of their testimony in the future, even unrelated testimony, even for what may feel like innocuous purposes. As a matter of ethics, you are precluded by your duty of candor to the tribunal from suborning perjury. (We’re assuming there’s no “crime / fraud” exception here, but that provides for optional disclosure, and it’s hard to see when it could apply anyway in a normal civil deposition.)īut staying silent has its problems, too.

Your duties of loyalties and confidentiality preclude you from doing that it’s their decision, not yours, as to how they remedy the problem. Unless it’s a truly minor issue where the witness is simply making a mistake - e.g., citing the wrong page of something, or recounting the wrong year of an event - you should not jump in and correct the client. One troubling situation raised by an audience member (who, from the context given in the question, was likely a defense lawyer, as are most of the active members of the ABA) involved a client you’re defending at a deposition saying something that you know to be incorrect. These lawyers start cases in a “NO” posture, which can escalate to sanctionable conduct when it causes needless objections, a failure to produce evidence or honest testimony, and, finally - after the obstructionism has persisted long enough - an irreversible situation that is impossible to explain away. As we seemed to agree (at least in my view), much of the sanctionable and otherwise inappropriate conduct by counsel arises not from an intentional decision to conceal evidence in a particular case, but from mindless clinging to default obstructionist tactics that they use in all cases. The conversation wandered, as all good discussions of law wander across scenarios with consistent themes, through depositions, motions, ethics, sanctions, and what to do in troubling situations. Judge Jeffrey Cole, author of one of the opinions I discussed at length in that post, was on the panel, which was a thrill for me, and he was as enthused, energetic, and accurate (“read the statute, read the statute, read the statute”) as you would expect from his opinions. My contribution to the written materials was this prior post of mine about sanctions for coaching witnesses in depositions.

In addition, the panelists will discuss how lawyers can work cooperatively and professionally with opposing counsel and what judges want to see from lawyers - and lawyers want to see from judges - to promote civility in the courtroom. The judges on our panel also will comment on the behavior they observe during the discovery process and provide guidance about ways that lawyers can improve the process, when judicial intervention is or is not necessary, and how judges respond to lawyers’ inappropriate conduct. We are also offering a Professionalism and Ethics CLE session on Thursday afternoon immediately before our Welcome Reception entitled: “Through the Looking Glass: What Lawyers Can Learn From Judges and What Judges Can Learn From Lawyers”, where a distinguished panel of lawyers and judges will discuss the deposition practice under the Federal Rules limiting objections, including how lawyers can effectively represent their clients while also complying with the rule and how judges and lawyers characterize compliance.

BILL OF PARTICULARS CONFLICTING WITH DEPOSITION TESTIMONY TRIAL

On Thursday, I was on a CLE panel for the American Bar Association’s “Torts and Insurance Practice Section” annual leadership retreat at the idyllic Palm Springs, where we (two state court trial judges, one federal magistrate judge, a defense lawyer, and yours truly) discussed a mix of discovery practice.

Bill of particulars conflicting with deposition testimony