Institute Coordinator                      Course-

Michael O'Reilly                           Danfprtlr;Ba
1. Examination of Jurors (Rule 47, Fed. R. Civ. P.)
2. Opening Statements by all parties’ counsel
Plaintiff goes first
Defendant Cs) follow
3. Plaintiff’s case in chief
Presentation of witnesses
—direct examination of plaintiff’s counsel
—cross exarrination by defendant’s counsel
—re-cross if necessary and permitted by court
4. In a non-jury case
Defendant’s motion to dismiss complaint, e.g., on
grounds plaintiff has shown no right to re3ief
Rule 41(b), Fed. R. Civ. P.
In a jury case
Defendant’s motion for a directed verdict.
Rule 50(a), Fed. R. Civ. P.
5. Defendant’s case in chief
Presentation of witnesses as above
—direct examination by defendant’s
counsel, etc.
6. Plaintiff’s rebuttal case
7. Defendant’s surrebutta].
8. Renewal of motions and Judge’s decision or decision

9. Closing arguments
—Defendants go first
—Plaintiffs follow
10. In non-jury case
—Submission of proposed findings of fact and
conclusions of law. Rule 52(a), Fed. R. Civ. P.
11. In jury case
—Submission of Requests to charge, Judge’s
ruling thereon and charge. Rule 51,
Fed. R. Civ. P.
12. In jury case submission of case to jury followed by
motion for judgment notwithstanding the verdict,
Rule 50(b), Fed. R. Civ. P.
13. Judge’s written opinion, or opinion given orally
from the bench.
14. Settlement or submission of proposed Order or
proposed Judgment
15. Entry of Order or Judgment by Clerk
I —2

(see generally Rules 7(b) and 78, Fed. R Civ. P.)
1. Motion to exclude evidence; see Rule 104, Fed. R. Evid.
2. Motion to strike testimony; see Rule 103, Fed. R. Evid.
3. Motion to limit or restrict evidence; see Rule 105, Fed. R. Evid.
4. Motion to Dismiss Part or All of Claims
—for failure to prove an element of the claims(s)
—for lack of subject matter jurisdiction; Rules 41 & 12,
Fed. R. Civ. P.
5. Motion for Empanelment of Advisory Jury; Rule 39, Fed.
R. Civ. P.
6. Motion to Amend Pleadings to Conform to Evidence;
Rule 15(b) Fed. R. Civ. P.
7. Motion for Consolidated or Separate Trials; Rule 42, Fed. R. ciV. P
B. Motion to Disqualify Judge; see Rule 63, Fed. R. Civ. P.
9. Motion to Disqualify Counsel;
10. Motion to Appoint an Interpreter; Rule 43, Fed. R. Civ. P.
11. Motion to Take Testimony Other Than Orally in Open Court,
e.g. by deposition; see Rule 43, Fed. R. Civ. P.
12. Motion to Quash, Modify or Enforce a Subpoena; Rule 45,
Fed. R. Civ. P.
13. Motion for a New Trial; Rule 59(a), Fed. R. Civ. P.
14. Motion for Reconsideration or Reargument;
15. Motion to Amend Findings of Fact or to Amend Judgment;
See Rule 52(b) and Rule 59(e), Fed. R. Civ. P.
16. Motion for Appointment of Special Master; Rule 53,
Fed. R. Civ. P.
17. Motion to Adopt, Modify or Reject Master’s Report;
Rules 53(e) and 6(d), Fed. R. Civ. P.
18. Motion to review taxation of costs; Rule 54, Fed. R. Civ. P.
Ii — ].

19. MotIon for Relief for Order or Judgment; Rule 60,
Fed. R. Civ. P.
20. Motion for Injunction Pending Appeal; Rule 62(c), Fed.
R. Civ. P.
21. Motion for Stay Upon Appeal; Rule 62(d), Fed. R. Civ. P.
22. Motion for Appointment of a Receiver; Rule 66, Fed. R.
Civ. P.
23. Motion for Permission to Appeal under 28 U.S.C. S 1292(b);

A lawsuit is a battle for the mind of the fact finder, judge
or jury.
It is not enough in these days to simply present the client’s
evidence to a court. The judicial system expects that the liti-
gant’s advocate will be aggressive, competent and ethical.
The client expects to win. The consistent, winning lawyer
understands the methodology of legal presentations and the trial
dynamics associated with success. These lawyers do not win regu-
larly by chance.
The following are my observations for the successful, presen-
tation of a litigant’s case. The battle begins with pleadings and
ends with a winning judgment.
All pleadings must be meaningful and persuasive. Verbose
petitions are not advisable. The language should be simple, direct,
short and correct. They should be edited and checked prior to
Absolute accuracy in describing the claim and damages is
required. Write in a manner which can be read and understood.
Place important thoughts near the beginning. Avoid sloppiness and
errors and be grammatically correct.
Remember, pleadings can be used to impeach a party if the
evidence is in conflict with the pleadings.
For example, the plaintiff alleges in her pleadings that
while visiting her son in his home she fell into a hole concealed
by a rug. At trial her testimony changed and defendant—counsel was
permitted the use of her complaint to show material inconsistencies.
Petitions should contain all legal theories available, not-
withstanding that they may be inconsistent or exclusive. The
Louisiana Code of Civil Procedure permits pleading for alternative
*After 20 years as a practicing trial attorney, including 3 years as
an Assistant District Attorney, and 3 years as a Trial Judge, I
began recording techniques and practices that influenced me as a

or inconsistent relief.
If discovery reveals new information, immediately and
liberally amend the pleadings timely . Avoid a last minute request
to the trial judge for pleading amendments.
The pre—tria]. conference is the first time the attorneys are
able to speak to the judge about the case. An attorney can win his
case at the pre—trial conference by conditioning the judge.
Judges want to accomplish three main purposes at this time:
first, become informed about the details of the claim; second, fix
the trial date and shorten the time of trial as much as Possible;
and third, settle the claim.
The attorney should always be fully prepared for the pre-
trial conference. Know the facts and law as if this were the
trial. He should inform the client of the pre-trja]. conference and
secure authority to settle the case. He should have a firm prede-
termined settlement figure that will permit compromise.
The court will allow the opportunity to present the claim.
This should be done with honesty and conviction, stating one’s
opinion as to the value of the claim in judgment and in settlement.
One should allow Opposing counsel to present his defenses and
his evaluation of the claim. Listening without impatience or in-
terruption will reveal the opponent’s legal position and one’s own
At some point every judge will invite settlement discussions.
Thereafter, depending upon the degree of leadership a judge wishes
to exercise, he will usually suggest a settlement figure or range.
The judge’s suggestion should never be rejected outright. If
dissatisfaction persists, one should attempt to reason further and
promise at least a discussion of the values with the client. Never
appear to be an obstructionist. If the court’s recommendations are
acceptable, the judge should be informed that the figures will be
recommended to the client.
The attorney should not rush out of the conference unless the
judge signals its conclusion. The extra time could be used to
secure stipulations and further discussion of the case. More im-
portant, these free minutes should be utilized to get to know the
judge better.
A trial is like a theatrical dramatic performance. The
trial lawyers direct the witnesses in Presenting the evidence

relating to-an event that occurred in the past. The presentation
is compressed in time and utilizes authentic information and people.
Therefore, the production must be selective, effective and efficient.
The critics review is the “verdict”.
The winning lawyer is keenly concerned about his total con-
duct in the courthouse.
His personality is always pleasant and reasonable no matter
what the circumstances.
He is always prepared . He has full knowledge of all facts in
the case and is well versed in the applicable legal principles. The
pleadings are in order, the file is organized and the witnesses are
ready. Rarely does he request a continuance or have any last minute
He is always creditable and never deceptive with the court or
opposing counsel. The winning lawyer is always honest with the
court. Once the reputation of honesty is established, most judges
rely upon the statements made by the creditable attorney. When
counsel misstates and intentionally grossly overstates a fact, a
penalty occurs. That penalty could be total disbelief in this or
any other case managed by the exaggerating attorney or, for a severe
prevarication, sanctions.
The successful attorney maintains an honest conviction and
confidence in his case. His voice is confident. His composure is
sure at all times. His facial expressions do not show evidence of
injury from an adverse turn of events during the trial. He does not
fumble or search for documents, but knows exactly their location and
produces them immediately. He is rarely apologetic or deferential
and never praises his opponent or belittles himself in the courtroom.
He never concedes that his opponent is correct on important
issues. It is better to remain silent or request further time to
brief a point than to concede. Once one concedes the opponent’s
argument or law, the trial judge will seize and adopt it as con-
trolling on that issue. The winning lawyer is always well dressed,
neatly groomed , and of polite demeanor . His witnesses are clean—
shaven, dressed appropriately, and free of body odors. Their lan-
guage, to the best of their ability, is not disrespectful, crude,
flippant, nor arrogant.
All fact finders are influenced by their culture, heredity
and environment. Judges are offended by witnesses who have apparent
lack of respect for the judicial system. If a witness lacks res-
pect for the system, certainly he would lack respect for the oath
taking process. Therefore, everything testified to by a grubby,
dirty, or crude witness is more likely to undergo greater scrutiny
by the court with the probability of greater chance of rejection

of his testimony.
The good lawyers are always on time , prompt for every
scheduled event at the pre—tr [ al and trial stage. Their briefs are
also timely. Judges observe everything within the courtroom, and
are aware of emotional ebb and flow of the evidence. It is proper
to show pleasure when the witness gives a helpful answer, but one
should never reflect emotion when the answers are damaging. Above
all, one must never lose his temper.
The successful lawyer impresses the judge with his knowledge
of the law . All trial judges deal with a variety of complex legal
issues and most engage in continued legal education to remain
current. If the attorney demonstrates to the judge that he is also
a student of the law, i.e., by providing current, correct and on-
point citations, he will receive more credibility. The greater the
degree of legal scholarship, the greater will be the verdicts.
The attorney should impress the fact finder with candor. He
must always be honest . Judges communicate with one another. If an
attorney is flagrantly dishonest or repeatedly dishonest in dealing
with the court, it will become known and disseminated. More impor-
tantly, the attorney will lose his credibility and disbelief will
surface over everything he claims. One must never lose his trust
in the integrity of the Court.
All judges expect respect in varying degrees because of the
nature of the system. In Court one must be respectful but not ob-
sequious. The attorney should always stand when addressing the
court or jury for any reason. The Court s}iould never be interrupted
when it is speaking. One should avoid judicial praise in the
court’s presence, and should not agree with the court when it is
wrong. An attorney should never boast to his client about how
successful he is with a particular judge. It gives them the wrong
impression. He should never criticize a trial judge for his
client’s loss. Most are doing the best they can, but an attorney
has the right of appellate review to correct a judge’s errors.
The winning lawyer understands stage presence. He will never
thrust his head into the jury box or stand inches away from a wit-
ness. He generally looks the witness, judge or jury directly in the
eye. lie will select a position to speak from that permits him to be
clearly seen and heard in slightly higher than conversational tone.
He does not parade up and down in court, nor is he distracting by
frequent movements. He responds and repeats only major points,
ignoring minor or trivial issues in the litigation. The winning
lawyer attempts to make the judge a business acquaintance. Judges
are human and most are gregarious. If time permits, get to know the
judges. If there is a procedural problem, speak freely to the judge
concerning it. Most judges enjoy helping lawyers, particularly
young attorneys.

Once you know the judge, appeal to his likes or dislikes.
Every judge feels he is expert in some area of law, or that one of
his cases may control all or some of issues before him now. Remind
him of his prior case.
Study your judge. Know his habits for punctuality. Does he
read, and is he influenced by memoranda? Does he like broad issues
in cases such as constitutional questions or civil rights issues?
Or is his attitude narrow and constrictive relating only to the
facts in the case before him? Does he write opinions, and if so,
what is his philosophy? How often is he reversed or affirmed?
The great lawyer knows, or should know, as much about the
trial judge as he knows about his case.
The winning lawyer is brief. Brevity is the chief working
tool of the champion.
All attorneys should be courteous to each other but never
deferential. The secret is control.
The court is sensitive to the rights of all parties. It will
not tolerate rudeness, inconsideration, or discourteous conduct.
Therefore, the great attorney never loses his temper or displays
uncontrolled emotions. He never makes snide comments during objec-
tions or off-color remarks. An attorney will be admonished for a
“cheap shot” and lose his credibility.
Recently, a defense attorney during cross-examination of the
plaintiff, referring to her deposition, exclaimed: “Your Honor — I
con’t understand. She has given us three different versions of the
This remark was incorrect and untimely, resulting in a severe
admonition by the court that may have affected his case.
An attorney must always protect himself. He must never make
disclosed promises that he cannot keep. There is a proper relation-
ship between accommodation and abuse.
A good lawyer endeavors to secure as many stipulations of
fact as possible. These serve a number of useful functions and the
judge will appreciate them. Moreover, they leave a positive im-
pression with the court.
The advantages of stipulations are numerous. They save time.
They avoid the calling and inconvenience of a witness testifying on
a non-disputed fact. They save cleints money and shorten the trial.
In some cases a stipulation may permit the proof of a fact at

trial that a party may no€ be prepared or able to do. It eliminates
a live witness and, therefore, eliminates the possibility of unex-
pected witness error or bad impression.
Conversely, it could preclude the cross-examination of a weak
witness and the opportunity of impeachment. Stipulations can cause
a weak courtroom opponent to appear effective.
A winning lawyer will aggressively stipulate but is always
careful to do so only if the matter is not in controversy or if the
stipulation will do no harm. Always be cautious of your Opponent’s
motive for stipulating.
The winning lawyer always files motions in limine to exclude
detrimental evidence prior to trial.
Generally these motions deal with prior accidents, prior in-
juries, and collateral medical payments.
Pre—trial exclusionary motions should be considered by all
parties prior to trial.
Louisiana recently promulgated Article 460 which permits
separation of the trial of liability from the trial of damages, with
the consent of the attorneys.
Plaintiffs counsel does not like to bifurcate if liability is
weak and damages large. Defendants counsel does not care for the
separation if the liability issue is strong and the damages are
It is suggested that those issues are immaterial if the trial
lasts more than five days. In those situations, it is to everyone’s
economic advantage to bifurcate, particularly in anti—trust or com-
plex litigation.
The opening statement should never be waived. it is the
trial lawyer’s first opportunity to articulate, unfettered, to the
fact finders and appeal to their logic. It is. the setting of the
mood, the prologue.
The winning lawyer will educate and condition the court.
Most lawyers use a narrative form, outlining the facts, law and
issues the jury must decide.
The great lawyer will go further. He includes a motivational
introduction of topics and phrases. He identifies himself and his
client by name. References to his opponents are “the other side” or
“the insurance company”. Usually a theme is suggested or a chal-
lenge of underdog is inferred.

They are concise, brief and appropriately indignant. Most
wilJ disclose the weaknesses in their case to minimize the impact
when they occur, such as prior accidents or pre-existing injuries.
None ever allow the court or jury to lose interest.
All use demonstrative evidence or visual aids, blackboards,
diagrams or models.
The working tools of the trial lawyer are the rules of evi-
dence. The winning lawyer knows all of them, the reason for their
existence, and how to apply the rules of evidence to shape the
facts in his cases.
All judges know the same rules, perhaps in varying degrees,
and apply them according to their education and ability.
The uniform rules of evidence are the rules by which the law-
suit is to be conducted. Like the umpire, the judge’s role is to
enforce the rules. Without evidentiary rules there would not be
standards, known to all lawyers, by which the trial is regulated.
Therefore, it is essential to have minimum standards strictly
enforced for the inclusion or exclusion of evidence.
Always object for good cause. Judges appreciate objections
timely made on proper grounds. Judges do not appreciate dilatory
or irrelevant objections. We appreciate the occasional objections
to allow the flow of evidence to be interrupted, but not the objec-
tion that is overtly suggestive to discredit a witness.
Because of abuse by attorneys in their objections to evidence,
I now restrict any argument or discussion of routine objections.
All counsel need do is object and state the general ground for the
objection, and I will rule. However, if the objection is serious
and involves a sophisticated point of law, argument is permitted at
the bench.
Winning lawyers always proffer important evideiice which was
excluded by the court. This protects the record for appellate re-
The consistent winner chooses his witnesses with care and
forethought. He will always select a witness that will advance the
case and will not succumb to cross—examination. If one witness can
establish a fact, he will call no more. The greater the number of
witnesses, the greater the risk of conflict, confusion, and dis-
belief .
One of the most common errors is the misuse or non—use of the
deposition. One should always order a copy of his client’s deposi-
tion, and have him read it at least twice. He should be prepared
for the confrontation with his deposition.

The effective use of the deposition is the most dramatic
tool that can be used at a trial. Not only does the law permit its
use to support a contention, but allows its introduction into evi-
dence when the witness is unavailable.
Its most important function is impeachment. Properly used by
the skilled advocate, it can be the deciding factor in a case. Fact
finders cannot ignore the misstatements, exaggerations, or prevari—
cations of litigants. Once it is established that a party lied to
the Court, a cloud of suspicion permeates the entire parameters of
the case.
Always pre-mark your items of evidence and exhibit them to
your opponent prior to trial. Judges appreciate this efficiency and
it leaves a good impression of preparedness.
The best lawyer understands that direct examination is the
heart of the case. It is a most difficult task to effectively
execute. Most attorneys do not know how to effectively and eff i-
ciently present a direct examination.
The attorney should always organize the areas of presenta-
tion and have an objective of proof for each section. It is dis-
tracting and repetitious to return to a completed area of testimony.
When Presenting a witness, the attorney should be prepared
with pre-marked exhibits to dovetail into his testimony. When
referring to an exhibit, either the attorney or the witness should
identify it during testimony.
- Questions should always be single and clear.
One should always employ brevity with one’s own witness. The
Opposing party can fill in the gaps and “dress the skeleton” with
cross-examination This reinforces the original presentation.
I cringe when counsel during direct covers every issue or
fact and leaves nothing for the fact finders appetite. No one can
remember every specific fact on liability or damages.
The great witness always reflects honesty and candor. This
demeanor on the stand creates a special bond between the witness and
the Court, resulting in acceptance of his testimony.
A winning lawyer understands the order of calling witnesses
to testify. Usually the plaintiff is called last. The last witness
has had the benefit of all prior testimony. The issues are clear.
The tension is dissipated. The stage is set. All are eager to hear
from him.
- If the plaintiff is weak, it allows the use of other witnesses
to prove the main issues in the case. The plaintiff’s attorney

could call the defendant under cross—examination. Police officers
and other witnesses could establish the main issues of liability.
The treating physician can explain the history, complaints, physical
findings, diagnosis, prognosis, and cost of treatment.
This technique permits a brief appearance by the weak plain-
tiff for formality purposes.
A strong plaintiff should also be concise but could eliminate
the surrogate witnesses.
One should always use visual aids in the presentation of
direct evidence, either in the liability or damage portion of the
presentation or in both.
It is better to demonstrate evidence than to verbalize it.
Evidence which can be seen will be remembered longer than evidence
heard. The courtroom blackboard, photographs, models, movies, and
overhead projectors should be used to emphasize a point.
All winning lawyers have developed the finest skills at
The single common denominator among all of them is “control
and organization”. The adverse witness is closely directed, step
by step, by the use of leading questions, to the questioner’s ob-
jective. Evasive and unresponsive answers are not permitted. The
deposition or other impeaching documents are available to impeach
the helpless witness. The questioning should avoid objections.
The judge is alerted to insure that the witness complies with the
rules of procedure. The attackers tone is firm, strong, conversa-
tional, and polite. Once the witness is impeached, the attorney can
then become aggressive.
Under cross-examination the attorney should always force the
witness to answer yes or no. He should know when the goal is
reached and at that point stop. The witness should never be allowed
to ramble or tell his prepared narrative recital. If the witness
refuses to comply, ask the judge for help and he will then become
an ally.
The great lawyer knows when to cease. Nevertheless, most
lawyers never know when to stop, often ruining the examination or
allowing the witness rehabilitation.
Not every witness needs to be cross-examined. I recommend
cross-examining a witness if it will either produce beneficial tes-
timony or nullify damaging testimony.
If the witness has testified on a minor point, or on an issue
that does not materially affect the outcome of the case, cross—

examination should be passed. For example, in a personal injury
suit where liability is the main issue, one should forego cross-
examination of plaintiff’s lay medical corroborative witnesses.
If a witness has not injured the primary issues and has been
impressive, cross—examination of this witness will cause the jury to
give greater weight to his testimony and will serve no useful pur-
The better attorney will never take a witness and “go fish-
ing”. To undertake a general cross-examination without knowing any-
thing about the witness or his answers is like walking into quick-
sand. One may survive, but the likelihood is disaster.
There are innumerable techniques of cross—examination. Many
excellent lawyers and teachers have written about them.
Two of the most effective and common techniques I have
experienced are the exaggerating plaintiff and the “I don’t know”
Every witness on each side of a case will exaggerate, shade,
or overstate his knowledge of the case. All witnesses naturally want
to ventilate their side of the controversy and impress the decision
makers. Quality lawyers encourage exaggeration and by the use of
a friendly and kind personality, the witness will gladly elaborate
beyond his knowledge of the facts which becomes immediately
apparent to everyone.
A second effective technique is the witness who knows only
the selective, helpful facts in a case, but does not know anything
else. I suggest after he repeats his narrow, memorized story that
he be confronted with his deposition, line by line, or his testimony
each and every, “I don’t know”, “I don’t remember”, “I can’t say”,
“I can’t be exact”, “Maybe”, and “I won’t guess”. It soon becomes
apparent that this witness is unworthy of belief.
Quality lawyers avoid repetition. One should leave where he
has succeeded, and return where he has failed.
Once the witness has satisfactorily answered the question,
“ change the subject” . This avoids the opportunity to change his
story or to correct errors.
Winning lawyers integrate the Opening with the closing argu-
ment, the most important part of the case.
Closing arguments must be organized, timed, goal oriented,
and have impact value. The essential features are informative,
interesting and impelling. The argument must be simple, logical,
and convincing to the decision maker.
The informative argument conveys to the fact finder what he

needs to know—usually a summary of the favorable testimony, re-
ferring to key and undisputed facts. Reference is made to exhibits
and the applicable law. The lawyer should explain th.e issues and
interpret the facts to support a judgment.
The interesting arguments capture the judge’s attention. This
is achieved through the tone of voice, the use of analogies, short
stories, or anecdotes which support a favorable conclusion.
The impelling argument overcomes any logical resistance to an
unfavorable verdict. A clear explanation to the fact finder of what
conclusions the attorney wishes him to reach is essential. Rebutting
only major points, ignoring minor issues, and always being convincing
logical, and confident, is essential.
A winning lawyer always clearly informs the court of what he
wants. He should not hesitate to ask for a sum slightly more rea-
sonable than expected, but he should never fail to ask for specific
damages in a reasonable amount. To ask for an unreasonable sum at
this point could be discrediting and could jeapordize the entire
Finally, one should appeal to the jury’s impartiality and
sense of dity. They should be reminded they are the judges, the
judges of the facts. They have a duty to correct a wrong. This is
the only opportunity in their lives that they can speak out as the
conscience of the community.
The Jury tells them that “verdict means truth”.
A good lawyer can teach the judge something. Quality pre
and post trial briefs are always appreciated when they are timely
In a non-jury case, that is not routine, I suggest a trial
brief. First, it conditions the judge to one’s side of the facts.
Second, he considers evidence not yet introduced. Third, it alerts
him to issues and allows the court time to prepare on the complex
An attorney should always extend to the court a post trial
brief if he feel.s he is going to lose his case.
If the attorney writes a brief, the judge will read it, but
it should be written in a clear, brief and unambiguous style.
In non—jury cases, trial judges are required to give reasons
for judgment. I strongly recommend a polite reminder to the court
that the litigants are entitled to reasons for judgment. They are
essential to determine one’s appellate position, if that is the case.

If you follow these suggestions you will become a consistent
winning lawyer and a superb trial advocate.

A. Pretrial Orders and Pretrial Proceedings
to Narrow Issues for Trial
Judges frequently conduct pretrial conferences
to streamline issues and get a preview of procedural disputes
that will arise during trial, or alternatively, they often
encourage the parties to meet on their own or before a macis-
trate for these purposes. Judges believe that these meetings
may help toward resolving t he entire controversy or in any
event, may expedite the actual trial by determining minor
matters ahead of time. The pretrial conference under Rule 16
was discussed in Phase I (see pp. VII—l et seq). A sample
Pretrial Order is set forth below, indicating how issues may
be stipulated to, how documents may be authenticated and how
trial witnesses are identified.
III — 2.

—— x
71 CIV. 3007 (WX)
On Decen ber 10, 1974, the attorneys for the respective
parties appeared before the United States Magistrate at a pre-
trial conference pursuant to Rule 35 of the General Rules of the
Southern District of New York and Rule 16 of the Federal Rules of
Civil Procedure, and the following action was taken:
1. The parties agreed that the amended pleadings
should not be further amended.
2. The parties agreed that the trial of this action
shall be based upon this Order and upon the pleadings as amended
except that the following issue raised by the pleadings are ex-
pressl.y abandoned: Reinstatement of the plaintiff pursuant to
the claim and prayer for injunctive relief.
3. (a) The partios stipulated that the following facts
are not in dispute in this action, reserving the right to object
to the materiality of any such stipulated fact and its relevancy
to the issues;
(1) Plaintiff, Odessa Carrion, is a black citizen of
the United States of America and a resident of New York City and
the State of New York.
III — 2

(2) Plaintiff, Odessa Carrion, Was employed by
defendant Ysahiva University’s Albert Einstein College of Medi-
cine as a social work supervisor at Lincoln Hospital in the City
and State of New York.
(3) Defendant Yeshiva University is located within
the City and State of Nsw York and includes the Albert Linsteir.
College of Medicine, which has and had an affiliation contract
with the City of New York under the terms of which the Albert
Einstein College of Medicine is and was required to provide
Lincoln Hospital, a municipal hospital, with professional and
other services and to pay the salary of certain staff assigned to
Lincoln Hospital to the extent that plaintiff was employed in
connection with an affiliation contract activities.
(4) YeBhiva University employs more than 50 persons.
(5) Defendant New York University is situated within
the City and State of New York and incltxles the New York Univer-
sity Graduate School of Social Work.
(6) In July and August, 1967, Odessa Carrion filed
a complaint with the New York City C mission of Human Rights,
charging New York University and Y.ehiva University with unlawful
discrimination practices.
(7) On January 22, 1970, the New York City Cortri is5iDn
on Human Rights found that Odessa Carrion had been discriminat
ily denied two proixtional opportunities on .count of her race
and had been discharged by Yeshiva Universit ’ in retaliation for
her charges against Yeshiva University of saployment discrimina-
(8) The complaint against New York University was
dismissed by the Commission on May 14, 1969, at the close of the
presentation of the case on behalf of the complainant, Odessa
Ty r -
J. J J.

(9) Yeshiva University petitioned the New York State
Supreme Court for an order setting aside the final decision and
order of the New York City Human Rights Commission. On August 6,
1970, the New York State Supreme Court annulled the findings and
orders of the Huln*ri R.ightB Commission and ordered that the
complaint of Odessa Carrion before the Con!nission be dismissed on
the merits. The New York City Carunission on Rights appealed
the decision of the Supreme Court to the New York State Appellate
Division, First Depar ent, which unanimously affirmed the order
and judgment of the Supreme Court on February 18, 1971. Leave
to appeal to the New York C ourt of Appeals was denied by that
court on May 13, 1971.
(10) On or about June 3, 1971, Albert Einstein College
of I dicirie of Yeshiva University informed Odessa Carrion that in
light of the decisions of the courts of New York State upholding
her discharge of October 31, 1969, her .mployznent with Yeshiva
University was terminated effective June 4, 1971, and she is re-
quired to return to Yeshiva University $3,200.14 paid to her s th-
ject to court review by Yeshiva University in compliance with the
order of the New York City Commission on Human Rights tt at she be
reinstated with back pay on January 15, 1970.
3. (b) It is the contention of plaintiff, Odessa Carrion,
(1) Defendants Yeshiva University and New York
University discriminated against her on account of her race which
is black on two occasions when filling positions as Student Unit
Supervisor for social work students from New York University by
telling her that the positions paid substantially less than they
were in fact paid and by filling these positions with white persc

tThose qualifications were lesser cr no greater than plaintiff’s.
(2) Defendant Yeshiva University subsequently dis-
cr 1 1 riat.d against her on account of her race and in retaliation
for her filing of charges against both defendants before the New
York City nm* Rights Co.isaion regarding the two Student Unit
Supervisor’s positions, vhen a third position as Director of Social
Services of the Neighborhood Maternity Center arose by telling
her that th. position paid substantially less than either the
person who had held the position was receiving or the person who
eventually obtained the position r.ceived, and by not offering
this position at an appropriate salary to plaintiff.
(3) Defendant Yeshiva University discriminated against
her on account of her race and in retaliation for the aforeitien-
tioned charges before the New York City Nuxnan Lights Co n.ission
when it suspended her without ever having consulted her about
alleged charges against her and discharged her for alleged insub-
ordination for challenging her suspension through appropriate
(4) Defendant Yeshiva University deprived her of her
rights to due process when they suspended and then discharged her
vithout conducting a hearing of any matter at which plaintiff was
3. Cc) It is the contention of defendant New York
University that:
(1) New York University did not participate with
Yeshiva University in hiring of student unit supervisors, and
that it did not discriminate against plaintiff. Defendant New
York University also raises the affirmative defenBes stated in
its Answer to the Amended Complaint in brief that: the complaint
fails to state a claim; the matter is res adjudjcata; laches and
eatoppel apply; New York University is xeinpf under Title VI I;

and plaintiff has an adequate rer edy at law.
3. Cd) It is the contention of defendant Yeshiva
Uriiveristy that:
(1) The plaintiff, c esaa Carrion, was not dis-
criminated against because of her race and plaintiff was discharged
for insubordination. The failure to proTRote or to award new jobs
and the plaintiff’s subsequent suspension and discharge were
within the managerial prerogatives and discretion of the plain-
tiff’s employer. The plaintiff was not denied any due process or
other procedural, rights by her discharge and such procedural rights
have been fully adjudicated by the courts of the State of New York.
4. (a) The parties agree that the following exhibits
areko be offered and are authentic. Each party, however, re-
serves the right to object to the materiality or relevancy of
each exhibit at the tine of trial. If other exhibits are to be
of fere 3 and their necessity can reasonably by anticipated, they
will be submitted to opposing counsel at least ten (10) days
prior to trial.
4. (b) The exhibits to be offered by the plaintiff,
Odessa Carrion, are;
(1) Letters, Mei oranda an .i Documents marked and
furnished to defendants prior to January 15,
(2) The Deposition of Mr. Abraham Silverberg;
(3) Defendant Yeshiva University’s Answers to Inter-
r ’ogatori.e and Responses to Requests for Admis-
(4) Defendant New York University’s Answers to Inter
(5) All or portions of the Transcript of the Testi-
mony given before the New York city Hui an Rights

CO mi$s2On.
4. Cc) The •xhibits to be offerd by the defendant
New York University axe:
(1) The Transcript of Mr. Raymond Cagan’s Testimony
before the New York City Bn?’t*ri Rights Co mission;
Mr. Cagan is now deceased;
(2) The Deposition of Plaintiff, Odessa Carrion.
4. (d) Th exhibits to be offered by the defendant
Yeshiva University are:
(1) The Transcript of Mr. Raymond Cagan’s Testimony
before the New York City Human Rights C tunission;
Mr. Cagan is now deceased;
(2) The Deposition of Plaintiff, Odessa Carrion, and
Exhibits marked therein;
(3) Plaintiff’s official personal file, maintained
by the defendant Yeshiva University and exhibited
to the plaintiff at ner deposition;
(4) The admissible exhibits that may be offered by
the plaintiff;
(5) Letters, 1 4 .moranda and Documents marked and
furniBhed to the plaintiff and defendant New York
University prior to January 15, 1975.
5. (a) The parties agree that the following witnesses
may be called by each of the parties. Should any party hereafter
desire additional witnesses, prompt notice of their identity shall
be given to each other party and to the court by serving and
filing a Pre-Trial Memorandum. the Pre-Trial 14 ra.nduin may be
in a short form statement filed with the Clerk unless served at
trial, when it is to be filed with the trial iedge. Said Memo-
randurri shall set forth the reason why the witnesses were not
therefore identified. No witness may be called at trial unless

identified in such a Pre-Tria]. Memorandum. This restriction ahall
not apply to rebuttal witnesses, the necessity of whose testimony
cannot be anticipated at the time of trial.
5. (b) Plaintiff, Odessa Carrion, intends to call some
or all of the following witnesses:
(1.) Odessa Carrion, the plaintiff;
(2) Manuel 7. Mathew;
(3) Andre Walker;
(4) Violet Ben nels;
(5) Jesse Hamilton;
(6) Richard Weeks;
(7) One of the ‘Directors of a Department of Social
Work of a hospital affiliated with the Health
and Hospital Corporation, to be identified prior
to January 15, 1975;
(8) Abraham Silverberg;
(9) Lillian Roberts.
5. (c) Defendant New York University intends to call
the following witness:
(1) An appropriate witness frox the Treasurer’s
Office of New York University.
5. Cd) Defendant Yeshiva University intends to call
some or all of the following witnesses:
(1) Odessa Carrion;
(2) Abraham Silverberg;
(3) Dr. Nasry Michelin;
(4) Dr. Joseph Smith;
(5) A representative from the President’s Office of
Yeshiva University;
(6) Some or all of the wi nesaes called by the

6. Plaintiff expects to require three (3) trial days.
The defendant Yeshiva University expects to require one and one-
half (1 1/2) trial days. The defendant New York University ex-
pscts to requir. less than one-half (1/2) a trial day.
7. The issues to be tried by the court (with the
consent and agre sent of the parties) are as follows:
(a) Whether jurisdiction under Title VII ezists as
to the defendants;
(b) Whether defendant New York. University partici-
pated in the hiring and firing of student unit supervisors for
New Yor)-. University students at Lincoln Hospital during the
period in question;
Cc) Whether plaintiff was discriz inated against by
either or both of the defendants on account of her race in the
filing of the two Student Unit Supervisor positions and subse-
quently the Director of Social Services of the W.ighborhood
Maternity Center;
(d) Whether plaintiff’s discharge was in retaliation
for or ntotivated by her filing of charges with the New Yor). City
Hunan Rights Cot rniaSiOfl.
(e) Whether plaintiff was entitled to due process,
and if so, was she denied her right to due process by her dis-
(f) Whether plaintiff’s discharge was within the
managerial prerogatives and discretion of the defendant New York
(g) Whether the issues raised by the plaintiff are
barred by res adjudicata or .irrtilar doctrines;
(Ii) What is the pecunary value of the damages to
which the plaintiff is entitled, if any?

8. Plaintiff contends that the following are issues
to be tri.d in addition to the foregoing:
(a) Whether Mr. Abraham Silverberg had authority to
suspend the plaintiff and subsequently to discharge her.
(b) Whether plaintiff’s actions following her
receipt of the Notice of Suspension frorn M i. Abraham Silverberg
were sinsubordinatew, and if so, did those actions justify her
Dated: New York, New York
Attorney for the Plaintiff
Attorney for the Defendant
Attorney for the Defendant
,.__ ,
i. .L J —

1. Ascur e positive h. rg inlng ttitiide, de—emph .size dls grecnent
2. Recogni,e the point of view of the coinp, ny. Accept the sincerity
of the co p,iny . s
3. Est.’bl Ish wh. t the dispute is.
4. Reme ber what is logir 1 to you in y not be lngic l to them, the
bi’sinoss. They will be thinking wh.it is in It for 1h m, why
should we do this, how will it dd to the cost of the s l e?
5. Dent st rt by pointing out the points of (l3s gree ent. Start 1th
the points of greement
6. Decide on your t ct ic . Do von .int to hit n .gree-nent right
u y? Do you w nt to (1eL y gr.-cment 9 Start out with the
Trinor points of di’ g1-e nPnt, if the latter is true.
7. On a point where you w nt to Ti,ive in agrecnent make sure it is
cle rly understood. Don’t duck a tough issue.
8. Ethical conduct is inportant. flaint. in your ciedihility. Deal
with the cor pany s you ‘ ‘on Id like to be dealt with. If you
.arri.nge a settlement by using unethical methods, eventually it
will come back to you. You may win a battle but lose the war.
9. Personalize things that are good, depersonalize thin s which )CU
don’t gree with.
10 Keep the burden of proof on the other side. What does it mean,
prove it.
11 Never ask a question which can he answered yes or no.
12. Keep negotiations moving. If you are blocked on one point, move
to another.
13. Remenber that the comrpanv does have a strong Interest in
a settlement because it will be concerned about its public

Preparing a Witness
to Testify
By Sonya Hamlin
BEFORE a witness becomes a witness, he
or she is just a vulnerable person. Under-
standing what this means is the single
biggest factor in successfully preparing a
witness for an appearance in court.
We are now such a product-oriented
society that in our zeal to “go for the
or to “get the job done,” we are
ng our talent for empathy. While we
sue our goals, we fail to notice and
understand how another person feels. We
must start with that understanding if we
wish to change, teach or correct anyone
to do our bidding.
As you begin the preparation of a
witness for examination in court, both of
you bring a set of conditioned responses
to the task. Yours come from your experi-
ence as a lawyer. Those of the witness
come from the experience of growing up,
going to school, working and living in
these times. To find a common meeting
ground. let’s look at the concerns and
expectations each of you brings and how
they affect the preparation process.
Direct examination
Let’s start with the lawyer’s biggest
“What will the witness do on the
stand?” From long and painful experi-
ence you know what happens to the
best-laid plans. Although you know
where you want to go, witnesses—
unpredictable and fallible—can cause
you to back up, fill in, recap, change
course. As you start a process that may
kfire, your anxiety level is high and
r trust level is low.
I mustn’t lose control of the testimo-
ny.” Your anxiety is heightened by the
need to get certain deeds and events into
the testimony in a certâin way, to build
your case as well as to control what the
cross-examination can use against your
“This is complex testimony and must be
very orderly and clear to the jury.” Most
people are not organized thinkers with a
good sense of how to present informa-
tion. They ramble or get too involved in
unimportant details. Your prodding and
directing must be subtle in the court-
room, so you face a large task in prepar-
ing so the witness understands and learns.
“Will the witness be solid and credible
enough for the jury and able to under-
stand the cross-examination?” You’ve
seen good direct examination damaged
by a sharp cross-examiner and an intimi-
dated witness, and the situation has been
beyond your control. The intangible stuff
of which credibility is made, the way the
jury will perceive your witness and the
witness’s own capacity to deal with con-
flict all contribute to a sense of powerless-
Anxieties of the witness
So you enter the preparation process
expecting problems, looking for the wit-
ness’s weaknesses and needing to control
what happens. But if you’re worried,
consider how the witness must feel. You
cannot begin to work ‘our wisdom with-
out knowing the most basic anxieties and
priorities of the witness. Here are some
“This is it. This counts.” The serious-
ness, what’s at stake and the tact that the
witness will have only one chance create a
rumble of anxiety that can blot out what
you’re saying.
“What impression will I make? Will
they like me?” From early adolescence
we design the image of a person of unac-
ceptables (nose too long, body too fat,
voice too high) that stays with us forever.
That and the popularity thermometer we
all use in growing up come into full play
as a witness imagines asking for accept-i
ance by the jury. Beyond the text of the
examination, other needy voices ar&
clamoring for the witness’s attention.
“I will be in the spotlight, perform--
ing.” Everyone has pride and would like’
to do well, especially in public. Yet few of
us have the natural ability to perform or
the desire to be front and center. People
usually carry memories, of past embar-
rassments on stage or don’t have that
experience at all.
“I’m afraid i’ll forget what you’ll teach
me. What if I make a mistake?” Early
learning fears from school days and the
knowledge that the witness must learn
facts and sequences from you work
against an open mind and a confident
productive learner.
“Can I handle cross-examination?”
Most people fear conflict. Cross-exami-
nation is conflict against a highly skilled
adversary who sets unpredictable traps.
The potential for loss of face and. even
80 ABA Journal, The Lawyer MagaLine
Illustrations by Guy Wolek

rrtparation techniques
What are some of the ways you can
contend with these anxieties to create a
comfortable atmosphere and a good
working relationship in which the witness
can learn and be prepared?
Environment. Everyon creates visual
“turf.” Your office, working tools, desk,
phone, secretary, pictures and diplomas
on the wall all underscrre who you are
and that this is your niche in the world.
Although it spells competence to your
witness, it also says this is not the wit-
ness’s niche. The attendant sense of loss
of power is not a good way to begin a
relationship of mutual trust and interde-
Step one is.to get out from behind your
desk and go to a neutral corner—either a
comfortable seating area in your office or
a small conference room. Offer some
coffee. Feeding and nurturing are good
postures for a would-be -teacher
Stage fright. The best way to handle
fear is to identify it, state it and discover
why it’s there. The worst way is to say,
“There’s nothing to be afraid or’ and
ton’t worry, just listen to me.” This
creates guilt and embarrassment
it feeling inept, emphasizes depen-
dency and inadequacy and does not dis-
pel fear.
Explain that stage fright is normal aiid
that everyone becomes nervous, even
you. The witness fears a bad perfor-
mance, far from perfect. Tell the witness
there is no “perfect 10,” that everyone
testifies in a different way. Tell the wit-
ness that he’s an expert because this story
happened to him and he knows more
about it than anyone on earth. Tell him
you understand his fears and that’s why
you are preparing him so he’ll be com-
fortable in court.
Ask exactly what scares the witness,
what is imagined and anticipated. Not
only will you know what to work on but
you’ll create an environment in which
telling the truth is safe, so that when you
hit places that confuse, the witness will
feel free to stop and ask for some expla-
nation, instead of pretending to under-
stand and tacitly agreeing. We all hate to
admit weakness. Make a non-judgmental
space for the witness to be straight with
you. Remember, a scared witness is an
unthinking, unconvincing witness.
Take the witness to the courtroom. Im-
agining the courtroom is often worse than
reality. Demystify the courtroom to re-
lieve anxiety. Let the witness sit in the
witness chair and find the most comfort-
able, relaxed posture to adjust to the
Make the witness’s role clear. People
do better when they know where they’re
going, what they’re doing and why. Ex-
plain that when questions are answered in
court. the witness is giving jurors the
information on which to base their deci-
sions. Tell the witness that juries, like all
of us, have a hard time listening, learning
and paying attention. That helps you
explain why you both need to find the
best, clearest and most interesting way to
tell the jury the story. That’s the reason
for this preparation.
Explain the jurors. Describe the audi-
ence fully. Explain that jurors identify
with witnesses. They will understand the
witness’s life, work, needs and fears be-
cause they have similar ones. They don’t
expect a polished performance. Just
speaking from the heart with energy and
clarity will work.
Explain your themes. Without knowing
where you mean, to go with the case, the
witness unwittingly can leave out the
most important parts of the testimony.
Explain what needs to be emphasized,
what the key issues are and what the
cross-examiner will try to prove or dis-
prove. Make the witness a participant,
not a wind-up toy.
Explain the organization of the exami-
nation. Show how you will go from per-
sonal history to a background of the
event to specific descriptions, and so
forth. Show how you will keep the wit-
ness organized with topic sentences and
transitions. Explain how you will foc us on
and call for details as needed so the
witness needn’t tell it all in the first
Show the witness how you’ll help if
something is forgotten. Show the witness
how you’ll interrupt to redirect if things
go astray and that your interruption is
intended to focus or clarify the story.
In cross-examination, as in direct, both
you and your witness have many con-
cerns. For you the major one is on which
points opposing counsel will focus, how
you can stop that and what to do in
redirect. These are mainly professional,
factual concerns, although there is an
element of anxiety, and you bring your
rational, experienced lawyer’s mind to
bear on them.
For your witness, however the key
concerns are deep-set emotional ones.
Without understanding either the tactics
of cross-examination or knowing what
testimony will.be extracted on direct ex-
amination, only the witness’s intuitive,
feeling self will surface in contemplation
of cross-examination. Here are some of
the likely feelings:
“It’s an unfair fight.” A well-prepared
professional can make vulnerable layper-
sons feel like underdogs, lessening their
powers and courage.
“What will they ask? Can I answer it?”
Throughout direct examination, the wit-
ness worries about what has been said
that can be used in cross. Not only does
worse, loss of the case creates tremen-
dous fear.
Consider all these issues that work on a
witness’s mind and emotions. Until you
r them away, they will block anything
try to teach.
82 ABA Journal, The Lawyer’s Magazine

this increase anxiety, but it can also para-
lyze the witness with self-criticism in try-
ing to filter answers on direct
“What will the questions mean? Where
are they leading?” Trying to second-
guess where the cross-examiner may be
going confuses the witness and impairs
careful listening
“No one can help me.” The sense of
aloneness fills the witness, who feels vu!-
nerable and isolated, with no support
from you
“But I’m telling the truth!” The wit-
ness wilL be attacked Veracity will be
questioned The natural tendency is to
become defensive, which makes people
look guilty even if they’re not, or to
become aggressive and try counter-
punching Neither works well for the
“Be a man” or “I’m only a woman.”
Historically and culturally, men and
women have been trained to respond
differently to overt aggression What
they’re supposed to do and how they in
fact feel creates great conflict
Society has taught men to stand up and
fight back Yet many men do not like
conflict and wish to withdraw. Confront-
ed by the aggression of cross-examina-
tion, with no other viable role model,
they feel called upon to “tough it out”
and, hating that, fear they will do it
badly Nor do they feel good about ad-
mitting it and asking for help, especially
from another man
Women have not seen many role mod-
els for aggressive behavior, although this
is changing The traditional feminine role
is nurturer and bystander, not combat-
ant, and the new modes are not yet
universal As they anticipate cross-
examination, women often fear aggres-
sion and feel powerless to fight back as
they hear the old voices telling them to
“be nice, be ladylike “ They generally
don’t have ready, comfortable, strong
responses to conflict
These attitudes toward conflict and the
pressure of all these concerns can color
sharply what you want your witness to
Preparation techniques
To prepare for cross, as in preparing
for direct examination, the conditioned
responses and fears of the witness must
be recognized and addressed first Then
give the witness the tools to fight back.
Explain ‘i hat opposing counsel iants.
Explaining the closed-question tech-
nique, the probing for an admission,
helps tell the witness what to expect He
also needs to understand your view of
what the cross-examiner will go for Be
sure lie understands the “what” and the
“wh)” before you go on
Explain the psychology of the jury.
Jurors will respond with sympathy for the
witness if there’s a very aggressive cross,
particularly if you’ve done your direct
well, because they already feel some con-
nection to the witness Explain that jur-
ors identify with laypersons against pro-
fessionals and that it’s the American
custom to root for the underdog Ex-
plaining all this gives the witness courage
and a sense of rapport with the jury
Jurors like to see sure-footedness and
someone hold ground calmly and with
conviction Jurors don’t understand all
the fine points of cross They just get a
general picture of integrity and who’s
Explain the victim mentality, the feeling
of being bullied. Find out how your wit-
ness feels about and handles conflict
With passivity, defensiveness, avoidance,
aggression? Don’t be judgmental Give
the witness permission to feel any way at
Explain the psychology
of the jury. Explain
that jurors identify
with laypersons against
professionals and that
it’s the American custom
to root for the underdog.
all—just get it out so you can explore it
together. Supply techniques that will fit
the witness’s personality and style and
make the individual feel comfortable an-
swering back
Give the witness some power. Cross-
examination seems so one-sided that it is
hard for a witness to feel powerful too.
Provide a mental image for the witness to
picture when crowded or put upon by the
opposing counsel—to imagine gently but
firmly pushing the lawyer back. Teach the
witness to take a breath or to sit up and
re-energize in order to regain forward
momentum and stability.
If the questioner pushes for an impossi-
ble yes or no, explain that the witness
may reply that “I can’t answer it that
way” and then qualify the answer
A good response to a complex question
is Which part do you want me to answer
first’>” This is better than trying to answer
everything, hoping to get it all straight
Witnesses should see themselves as
having power over their answers Cross-
examination doesn’t require acquies-
cence but rather thought and considera-
tion before answering
Depersonalize the attacks. Explain that
the witness stands in the way of the
opposing lawyer making his or her case
The witness under attack must think “It’s
not me, it’s what I’m talking about” or
“He’s attacking issues, not a person.”
This helps handle those naturally defen-
sive feelings and sense of personal hurt
It moves the witness toward positive,
attentive thinking
Teach the witness to listen. It’s human
nature to anticipate the questions, espe-
cially when you feel vulnerable Show
how a lawyer can hide a meaning in a
question Make the witness learn to listen
and think before answering and to wait
for the end of a question before deciding
on an answer Do a drill of cross-
examination, stopping and asking what
the witness thinks you meant and where
you’re going with a line of questioning
Teaching techniques
To teach, you must be aware of the
personal and emotional effect you have
on the witness If the witness is not
comfortable or willing or doesn’t know
what you’re doing or why, your instruc-
tions will fall on deaf ears
Role-play all situations. This lets the
witness experience direct and cross at first
hand, and it creates a base for all you’ve
said and will say It’s the only way the
witness can really experience and imagine
in advance, and it gives you a clear view
of possible problems
Videotape and replay. This lets the
witness see what works and what doesn’t,
based on your previous explanations, and
is the most effective way to help the
witness understand and change The ob-
jective tape, not you, becomes the critic
It’s easier for the witness to absorb and
much more eloquent and persuasive.
Don’s give general instructions. Be
careful not to say “Talk louder” or
‘Don’t talk too long on this subject ’
These are too vague and create anxict
How long is “too long”? How loud is
“louder”? Be specific and give reasons
Show how you’ll fix it if it happens in
Don’t o ’crdirect. Don’t squash the wit-
ness in preparation Too much coaching
and criticism can paralyze the witness and
make the witness too self-critical to speak
and think well
April 1985 • Volume 71 83

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Be positive In any criticism. Tell the
witness what’s right and what’s wrong. If
something won’t work, explain how the
jury, the ultimate audience, will see and
hear it. This is good motivation for
Isolate the witness. Get the witness
used to being in a chair away from a desk
or table. You want the witness to experi-
ence isolation and lick that anxiety before
going to court.
Do a tough, aggressive cross-
I examination. Stand behind a lectern as a
I cold and lethal cross-examiner or charge
I forward full of accusing voice and ges-
I ture. How does the witness react to the
I worst that can happen? Then teach the
I countering techniques.
I Witnesses come to preparation filled
with anxietie; and needs. Unless vo”
discover these and use them as the base
on which to build and teach, your witness
cannot hear you because of the sound of
inner turmoil.
Get to know your witness. Your work-
ing through the witness’s conditioned at-
titudes and anxieties can make a much
more copperative and aware witness.
Both of you will form a much more
effective team in the courtroom.
(Sonya Hamlin of New York City is a
lecturer and consultant on communica-
tions skills in business, politics and law.
This article is adapted from new her book,
What Makes Juries Listen, published by
Law & Business Inc./Harcourt Brace
Jow’novich, and reviewed in she March
ABA Journal, page 90.)
This comprehensive digest
discusses and analyzes the
1500-plus construction.and design
case reported each year in the

1. Before you testify, try to picture the scene, the objects
there, the distances and exactly what happened so that you can
recall the fact; more accurately when you are asked. U the
question s about distances or time, and if your answer is only
sri estimate, be sure you say it is only an estimate.
2. SPEAR IN YOUR OWN WORDS. Don’t try to memorize what you are
going to say. Doing so will make your testimony sound ‘pat and
unconvincing. Instead, be yourself, and prior to trial, go over
in your own mind those matters about which you will be
3. A neat appearance and proper dress in court are important.
The trouble with an appearance that seem; very casual or very
dressy is that it will distract the jury during the brief time
you’re on the stand—and they won’t concentrate on your
4. For the same reason, ivoid distracting mannerisms such as
chewing gum while testifying. Smoking is not ‘allowed.
5. Juror; who are or will be sitting en the case in which you
are a witness may be present in the same public areas where yçu
will be. For that reason, you should not discuss the case.with
anyone. Remember, too, that jurors may have an opportunity to
observe how you act outside of the courtroom.
6. When you are called into court for any reason, be serious,
avoid laughing, and avoid saying anything about the case until
you are actually on the witness stand. Also, dç not read in the
7. When you are called to testify, you will first be sworn in.
When you take the oath, stand up straight, pay attention to the
clerk, and say ‘I do’ clearly.
B. Nost important of a3.l, you are sworn to TELL THE TRUTH. Tell
it. Bvery true fact should be readily admitted, even if not to
your advantage or to the advantage of the prosecution. Do not
stop to figure out whether your answer will help or hurt either
side. Just answer the questions to the best of yo4r memory.

g, Do not • aggerate. Don’t make overboard statements that yo
may have to correct. Be particularly careful in responding to
question that begins, ‘Wouldn’t you agree that...?’ Remember
that statements like, ‘Nothing else happened’ are dangerous;
after more thought or another question, you may remember
something else. Say instead, ‘That’s all that 1 recall,’ or
‘That’s all I remember happening.’
10. When a witness gives test.tmony, he is first asked some
questions by the lawyer calling him to the stand; in your c e,
this, is an Assistant United States Attorney. This is called e
‘direct examination.’ Then the witness is questioned by the
opposing lawyer (the defense counsel) in ‘cross •xaznination.
(Sometimes the process is repeated two or three times to help
clear up any confusion.) The basic purpose of direct examintizn
is for you to tell the judge and jury what you know about the
case. The basic purpose of Cross-examination is to raise doubv
about the accuracy of your testimony. ‘Don’t get mad if you Ze
you are being doubted in cross’-examinaticn--.that is the deZern
counsel’s job. DO NOT LOSE TOUR TEMPER.
3.1. A witness who is angry may exaggerate or appear to be 3.m s
than objective, or emotionally unstable. Keep your temper.
Always be courteous, even if the lawyer questioning you appe
d .scourteous, .Don’t appear to be a wise—guy’ or you will
the respect of the judge and the jury.
12. Although you are responding to the ques tions of a lawyer 7
remember that the questions and answers are really for the j j’s
benef it. A .ways speak clearly and loudly so that every jur
e ’tl? “eu
3.3. DO NOT nod your head for a ‘yes’ or ‘no’ answer. Speak sr
that the court reporter (or recording device) can hear the
14. Listen carefully to the questions you are asked; No mst .z
how nice the attorney may seem en cross—examination, he or she
may be trying to discredit you. Understand the quest .on, have £ t
repeated if necessary, then give a thoughtful, considered
DO NOT GIVE AN ANSWER WI?UODT’TRINKING. While answers should sot
be rushed, neither should there be an unnaturally long delay. ‘ a
simpl. question if you know the answer.
3.5. Explain your answer if necessary. Give the answer in yo
own words, and it i question can’t be truthfully answered w .tt a
‘yes’ or ‘no,’ explain the answer.

16. Answer ONLY the question asked you. Do net volunteer
information not actually asked for.
17. If your answer was not correctly stated, correct it
immediately. If your answer was not clear, clarify it
immediately. It is better to correct a mistake yourself than to
have the opposing attorney discover an error in your testimony.
If you realize you have answered incorrectly, say, ‘May I correct
something I said earlier?’
lB. The judge and the jury are interested in the facts that you
have observed or personally know about. Therefore, don’t give
your conclusions and opinions, and don’t state what someone else
told you, unless you are specifically asked.
19. Unless certain, don’t say ‘That’s all of the conversation’
or ‘Nothing else happened.’ Instead say, ‘That’s all I recall,’
or ‘That’s all I remember happening.’ It may be that after more
thought or another question, you will remember something
20. Sometimes, witnesses give inconsistent testimeny-somethin
they said before doesn’t agree with something they said later. If
this happens to you, don’t get flustered. lust explain hon stly
why you were mistaken. The jury, like the rest of us,
understands that people make honest mistakes.
21. Stop instantly when the judge interrupt’s you, or when an
attorney objects to a question, and wait for the judge to tell
you to continue.
22. Give pos tive, definite answers when at”all posa le. Avoid
saying, ‘I think,’ ‘I believe,’ or ‘In my op inion if you can. be
positive. If you do know, say so. Don’t make up an answer., You
can be positive about important things which you natur.illy would
remember. If asked about little details which a person naturally
would not remember, it is best just to say so if you don’t
23. When being questioned by defense counsel, don’t look at the
Assistant United States Attorney or at the judge for help in
answering a question. You are on your own. If th question is
improper, the Assistant United States Attorney will object. If a
question is asked and there is no objection, answer it. Never
substitute your ideas of what you believe the rules of evidence

— ‘I-
24. Sometimes a defense ttorney may ask this question: Have
you talked to anybody about this case?’ U you say ‘no’, the
judge or ury knows that doesn’t seem right, because a prosecut
usually tries to talk to a witness before he takes the stand a
many wit gse have previously talked to one or more police
officers, or federal law enforcement agents. It is perfectly
proper for you to have talked with the prosecutor, police or
family members before you testify, and you ihould of COurse
respond truthfully to this question, Say very frankly that ‘y u.
have talked with whomever you have talked with——the Assistant
United States Attorney, the victim, other witnesses, relativ
anyone else. All that we want you to do is to tell the truth
clearly as possible,
25. After a witness has testified in court, he or she should .
tell other witnesses what was said during the testimony until
after the ease is over. Thus, do not ask other witnesses abou
their testimony and do not volunteer information about your n 1

7 E AEVIEW OF L177G4 770/IP [ VoL.2:253
Seriptof Basic, Gcxiera Remarks to Be Used
in Witness Preparation
1. 114, , £ the qu e:.n. Concentrate on every word. Wait until
you hear the last word of the quesuon before you start your answer.
If you listen closely to ordinary convex ation, you will see that we cut
one another off quite frequendy, not to be rude but to keep the con-
versadon movuig. Do not do that at the deposition. Listening zi
hardwork. fyoulistenazyoushouid,youwillbetiredaxtheendof
the day.
Z Be e u he the qucszii. If the lawyer drone his voice or
wm ne coughs or a truck honks its horn outside and you miss a
word or two, say that you did not hear the question. Do this even if
you are almost certain that you know wh&t word you missed.
i Be Jw-ejeu w dcrstead the qi Aon. Sometimes the question will
be so long or so convoluted that you do not iow what you are being
asked cepc that it concerns subject A. You may be tempted to an-
swer by saying something about subject A in the hope that the law.
yer will then go on to some other subject. Do not do that. Just say
that you do not understand.
You may not understand because the lawyer is not exact in his
language For example. be may ask you if a certain letter was sent
after “that.” You may not be sure to what fact or event he is refer-
ring wizen he says “that.” Say that you do not understand the
quest on.
You may no be certain of the me Mng of a word used by the
lawyer. Oryou maynotbesurehow he is using it. Say that you do
not understand the question.
If you do not understand, do not help the other lawyer in
the question. Do not say, “1! you mean this, then my answer would
besuázndsuth ifyoumea nthat,myanswerwou1dbesoandso.”
You may very well give the other lawyer ideas that he never bad
I ” ” telfl Say only that you do not understand.
1. 4azswer the querI . After you have listened to, heard, and tin-
derstood the question, then answer answer the qiwtzot. Some lawyes,
say that if you are asked your “s”; you should give your “ ‘ne but
not your addr Others say that 95% of the questions can be an.
swered, “Yes,” “No,” “I don’t keow,” or “I don’t remember.” Those

statements go too far but they make the point. Generally you-sbou1
keep your answer short and to the point.
What you learned in taking teats in high school or college applies
here. Answer what you are asked. If the question begins “Who ”
your answer should be a niv ’ e; if “Where,” a pl e If “When, a
date; and so on.
If you do not know or do not remember, say that. You do not get
ext points by guessing. If you are pretty sure of the answer but nm
100% certain, say that .
You do not get tr points for giving perfectly clear and com-
plete answers. Norinnily if there is some ambiguity in your answer,
that will be a problem for the opposing party, not for you.
Sometimes, after you give your answer there will be a silence.
The other lawyer may be thinking how to word his next question.
Silenc5 somethnes v a witness uncomfortable. You may be
tempted to fill the silence with words. Do not do th t Keep qu
and wait.
it a question irritates you or ? T ke you angry, resist the tempta-
tion to argue with the other lawyer. If you get into an argument with
a lawyer, you will lose. Just give whatever facts you know responsive
to the question and then keep quiet.
U .efr’. !. ‘i”’ ‘ q i!res longer answer, give h.
Use your common e. . Do not ii ake the other lawyer play
“Twenty Q iestions.” But if you are in doubt, keep your answer
short. Do not speeches. Remember that every word is another
target for the other lawyer.
In d 1i’ g with the other lawyer, your ‘ “inner should be courte-
ow and open , but mentally you should be on guard ax all times.
Even if something is said “off the record;” the other lawyer ea ask
you about it when you are back on the record.
Imay object to certain oucstions. Try cat to be diwacted by
that. Do not guess about why I have objected. However, the objec-
tion is a r irtIer to you to keep contrazicg.
Imay go further and i uct you not to answer the question. Ill
do, follow my msn uczion. Iniay get into n ouble with the court if I
am wrong, but you will not.
£ Stü*b * tfid uwe . You may hear the same question tore
once. It your arigin2l answer was accurate, stick to is. The fact
that the other lawyer frps eoI iI g back to the question does not

328 rdEL VZ WGFLITrC4T1ON (Vo l 2 255
mean that you are not answering properly. You must give the facts
as you know them. If you gave them right the first time, stick to your
a wer.
Of course, the other lawyer is an experienced and skillful ques-
tioner, and be may try through his questions to create doubt in your
mind even about facts that you I ow very well. Take an easy exam-
plewh bhas nothing to dowith this case Suppose hcshows youa
coffe pan aslayouwhatitis. Yousayacoffeecup. Hethen
pauses , gazes at the cup, and lets you squirm. Then, after letting you
wonder what he knows that you don’; he leaz ’ forward and says,
“Now, Mr. Witness, is it your testi’ ony here today—under oath—
that that object is a coffee cup? Do you really mean to say that?”
There is a natural tendency tobat . k off and say, “Well, I thought it
was a coffee cup.” That nnall ch ge in your testimony may be au-
ciaL Suppose a witness says the first time that he had the green light
and then says that he thought he bad it. That would be a devastat-
ingchange. Soifyourflrst answerwastrue,sticktoitanasay,” .
itisacoffeecup.” Whatdoatheother ZWYe?dOthCfl? Hcwiflgo
on so another subject quickly when be sees that you cannot be
Of course, if you Te2.lile that your earlier answer was in error or
incomplete, you should co t or supplement it. Obviously, you
siio au aiiy that an . Li? n” s tr’ie ;f u became aware that
it is not.
6 7’ ll th th. You must always follow that rule. You should
not interpret snything else that I have said to you to be at odds with
that rule. You will undoubtedly be asked some questions that we
have not covered here today. ‘When that occurs, do not get upset.
Focus on the question and, if you can, answer it. You may be asked
ifwemet to prepare for thedeposition. Tell thetruth.

Handling witnesses brings together the art and the science
of law. It calls for applying both well-defined rules and
intuition. Our law schools are beginning to realize the
need to teach techniques of witness examination. This
issue explores the art and the science of the process.
Robert F. Hanley begins with an analysis of the
inherent difficulties faced by lawyers who seek to elicit
rational, understandable information from often con-
fused, forgetful and frightened witnesses. He gives a
broad overview that discusses the preparation and pre-
sentation of lay witnesses; the order of presentation;
preparing a lay witness for the opponent’s cross-exam-
ination; preparing to cross-examine the opposing wit-
nesses; and preparing, presenting and cross-examining
expert withes es.
Stuart A. Summit focuses upon the preparation of an
Important witness to testify upon deposition and at trial.
Mr. Summit contrasts major differences between
deposition and trial preparation and outlines the trial
lawyer’s crucial role in each. Professor Irving Younger
translates and publishes for the first time “a recently dis-
covered letter” in which M. Tullius Cicero lays down the
ten commandments of cross-examination—-command-
ments strikingly similar to those developed by Professor
Younger. Lansing Palmer then treats the use of deposi-
tions in cross-examination, examining the pertinent pro-
visions of the Federal Rules of Civil Procedure and the
Federal Rules of Evidence and suggesting techniques for
using deposition testimony both for impeachment and
also as evidence against the opposing party.
Nancy Rosner and Elliott A. Taikeff examine the diffi-
cult questions of whether to put a criminal defendant on
the stand, and how to proceed once the defendant does
take the stand. John W. Castles 3d outhnes the prepara-
tion of an expert witness for his direct testimony and his
cross-examination and suggests guidelines for the initial
selection of expert witnesses. In the area of administrative
trial practice, Michael S. Home reviews the developing
practice of submitting all or part of direct administrative
testimony in written form, and suggests the types of cases
in which written direct testimony would be appropriate.
One of this Journal’s main purposes is to make avail-
able to the practicing bar and to judges information
about the professional skills that are essential for effec-
tive advocacy. The editors feel that the authors in this
issue have made a valuable contribution toward that goal.
F. Wallace Pope, Jr., Associate Editor
J. Berry St. John, Jr.,Associate Editor
Preparing and Examining Witnesses

Working the lMtness Puzzle
b Robert F. Hanley
We trial lawyers have an impossible job. We do not have
a nice, anesthetized patient lying under a sterile sheet
passively waiting for the surgeon’s knife. We must
operate on a wiggling, frightened witness who perceived
little of what he saw, recalls little of what he perceived,
and has great difficulty expressing what he recalls.
As you stand at the end of the jury box, or at the
lectern, or wherever the judge requires counsel to stand,
you look at your terrified, not overly bright witness and
you realize it is your job to bring forth from his mouth an
account of a complex or involved incident or transaction
in such a way that six or twelve untrained jurors will
understand and accept it. No wonder we so often resort
to leading questions and everything short of a semaphore
in an attempt to control the situation and minimize the
chance of a real disaster.
That witness is usually not of our choosing. We may be
able to avoid calling one or two of the least gifted wit-
nesses to whatever happened, and we can establish the
order in which we call the witnesses, but generally we
must rely upon those who witnessed the event or par-
ticipated in the transaction. Our freedom in presenting
our client’s story is further limited by complicated and
far from consistent rules of evidence. The human factor
and the laws of evidence conspire to present us, the
American trial lawyers, with an extraordinarily difficult
Our success or failure rests largely in the manner In
which we prepare and present those witnesses. The
following observations dealing with those processes have
been arranged in the following order: (1) the preparation
and presentation of lay witnesses; (2) the order of pie-
sentation; (3) preparing lay witnesses for your oppo-
nent’s cross-examination; (4) preparing for cross-
examination of your opponent’s witnesses; and (5) the
preparation, presentation and cross-examination of the
expert witness.
Most cases will be won or lost on the basis of witnesses’
The .iithor. a number of the Chicago firm of Jenner & Block. ice
fl r,ner chairman of the Socnon of Lnzgation.
knowledge, recollection, and perception and their ability
to describe the events at issue. As a trial lawyer, you must
take the witnesses you find, train them in simple expo-
sition and teach them how to communicate, simply.
clearly and accurately. You must become a teacher in
effective communication. You must teach the witness to
use simple words and short sentences. You must intro-
duce him to the eloquence of brevity. You must teach
him to listen.
Not Very Alert
You must also become something of a psychologist
The witness is often a person who has seen an event o
been through a transaction he was probably not anti-
cipating. He undoubtedly was not expecting to be called
upon to recount what he saw. He was, therefore, no more
alert than usual, and that usually is not particularly
Because the witness has only a hazy recollection of the
details of the event, he will tend to substitute “logical”
guesses for recollection. The trial lawyer knows that
those logical guesses will provide his opponent with out-
standing demolition material. The human mind does not
stop with the facts it has perceived; it transforms those
facts and supplements them.
Most witnesses suffer perception and communication
difficulties. We must somehow overcome or at least
mitigate the damaging effect of those shortcomings. We
realize that witnesses are inattentive to details, generally
have poor memories, and tend to oversimplify. A witness
tends to modify his story to please the questioner, even
on cross-examination.
Knowing the effect of these human weaknesses, what
can we do about them’ The witness must be shown the
effect of this kind of testimony. A good starting point for
preparing a witness is to run him through a rehearsal of
his direct and cross-examination on a tape recorder and
play it back to him while you provide a running com-
mentary. You might have prepared yourself with a good
college textbook on public speaking. One excellent

example is GUIDE TO GOOD SPEECH by Ernest Wrage
and James McBurney.
In presenting a witness on direct examination. I like to
let the jury know immediately why I have called him.
What, in a sentence. will they hear from this witness? If
the witness did not participate directly in the drama. I let
the jurors know immediately so they won’t be disap-
pointed later.
Q: When did you first visit the site?
A: The day after they poured the concrete slab.
Q: What did you do?
A: I took measurements and photographs.
Then I like to set the scene.
It Is not only objectionable but unwise to have a wit-
ness tell a narrative until the jury is looking at the event
or transaction through the witness’s eyes. Don’t have the
witness “tell the court and jury please in your own words
what transpired” until the court and jury know where,
when and with whom the event about which you want
him to testify took place.
If your witness gets off the track during his direct
examination, bring him back with an apolo ’. “Sorry.
Mr. Jones. I didn’t follow you there. Now where were you
standing in relation to the red tractor?”
Don’t repeat a question when you are especially
pleased with the answer. How many tisnes have you
repeated a question for emphasis and had the witness
change or blur his previous answer in the hope of
pleasing you? A nice pregnant pause to let the answer
sink in is much more effective and much less dangerous.
We all know that it is usually a good idea to steal the
march and bring Out the damaging portions of the
witness’s story ourselves rather than wait and have our
opponents bring them out on cross-examination. A word
of caution: Many of us give our opponents far too much
credit. We bring out every little negative aspect of the
case. But doing so confuses the jury and makes for a
terribly ineffective account. Often your opponent will not
have thought of it, and you will have unnecessarily
diminished the value of your witness’s testimony.
Honest Witness
You will, from time to time. find an absolutely truthful
witness. He will have told everything accurately—with-
out flourishes, exaggeration or ambiguity. One tactic
suggested by Weilman in his A or Caoss Ewi-
DIATION (and used by Abraham Lincoln with success) Is
to ask this extremely honest witness about some aspect of
the case about which you are certain he knows little or
nothing. His answer, “I’m sorry, sir. I don’t know
enough about that to swear to it.” is an excellent way to
corroborate his credibility.
Another technique used by advocates for at least a
century is to omit on direct examination a portion of the
story with which the witness had considerable trouble at
his deposition. You will have prepared him carefully in
the trouble area and together you will have solved or
mitigated the problems encountered on deposition. You
will sit back smugly through your opponent’s ineffec-
tive cross-examination of your well-prepared witness.
I think most of us over-try our cases. We put on too
many witnesses. The testimony becomes repetitive and
dull. Even our own witnesses often hurt our case. Don’t
call witnesses you really don’t need.
Psychologists tell us that people remember what they
hear first and last. Usually you should start with the
witness who will tell the story most effectively. If you have
one who can tell all or most of the story. put him on
I don’t like to start witil, an adverse witness. Some
lawyers start with adverse witnesses as part of their
standard operating procedure. But adverse witnesses are
up there with one thought in mind: to kill my client and
me. I put them on only if I really need their admissions.
Even then. I carefully control them with a deposition in
one hand, pretty much as a lion tamer uses a whip and
chair. Every time that adverse witness strap from his
Control an adverse
witness with a depo-
sition, as a lion tamer
uses a whip and chair.
deposition. I let him feel the whip: “Mr. Witness, you do
recall coming to my office last month? You recall that
your lawyer was with you and that you were sworn to tell
the truth and at that time and place, I asked you this
question and you made this answer. Question: ‘Did you
see the bus?’ Answer: ‘No.’ Were you asked that
question and did you make that answer?”
Hold him in. Ask questions in the same form they were
asked on the deposition—it enhances the effect of the
impeachment and keeps him from destroying your case
and usually forces out of him the admission you need. On
adverse examination, control is the key. Get your admis-
sion and run.
I bury the adverse witnesses in the middle of my case.
If one hurts me, I can still take some sting out of it by the
testimony of friendly witnesses. Where possible. I have
reserved someone who can re-establish the fact a bad
witness has blurred or demolished.
Save a good witness for last. Usually I like to finish
with a good strong expert, and I use a hypothetical
question as a mini-closing argument. I like a final
witness who I am relatively sure will hold up on cross-
A Practice Cross
In preparing your lay witnesses for your opponent’s
cross-examination, you actually should conduct a
practice cross and put your witness through what you
anticipate will be the cross-examination. A trial lawyer
does not want to give the witness the impression that
there is anything improper about preparing him to
testify. The witness should be told the difference between
preparation to make certain that he can clearly present
his story and the unethical coaching of a witness. where a
lawyer gives him a story to recite.

Wherever you practice, you should take “how” and
“why” and “how do you explain” out of your cross-
examination vocabulary.
We are told never to ask a question the answer to
which we do not know. We are told that the trial is a poor
place to seek discovery. Sometimes poor preparation
makes you violate this rule. Usually you’ll wish you had
not. When you go off script, remember to take steps and
leave yourself an escape route. First. just a little step—
if the witness agrees, a second slightly longer and more
dangerous step. If he balks, you may have to take a small
step back or laterally to an alternative and safer area.
Save the Best
It Is important to distinguish between cross-examina-
tion and closing argument. Save your ultimate point for
your closing. Don’t try to get the witness to admit that he
was mistaken or was lying. He will invariably take
something away from the victory you won. During your
closing argument when his mouth is closed, you can
remind the jurors of the difference between the witness’s
version of the story during direct and cross and counsel
them that when a person lies about one thing he is
certain to lie about other things.
I like to try to close my cross-examination on an up-
beat. It is surprising how often lawyers sit down after a
witness has made a telling point against them or after
their opponent’s objection to a question has been sus-
tained. If you have properly prepared your cross, you will
have saved your best line of questions till the end and will
sit down hearing that nice little rustle that always follows
an effective cross-examination.
We are all increasing our reliance upon expert opin-
ion. The types of expert witnesses used are varied:
economists; actuaries and other wage and damage ex-
perts; structural engineers; architects; foundation ex-
perts; real estate appraisers; accountants; individuals
You can often convince
him that injustice
will be done if he
does not testify.
with a wide range of marketing experience in various
Industries; psychologists; the expert who has made a life
study of people’s buying habits and who knows how to
design and conduct a public opinion poll, market sur-
veys or consumer reaction tests. It is a rare case today
that does not include some opinion testimony. Some
think it is being overdone. I have not experienced over-
utilization of expert testimony, but I have seen much
misuse of it.
Sometimes it is hard to persuade a qualified expert to
testify. Flatter him. You can often convince him that a
great injustice would be perpetrated If he, the world’s
only living expert on Middle English tapestry, does not
take the stand against the charlatans who would try to
convince the jury that a shoddy, poor copy woven across
a saggy warp was authentic. You are an advocate. Use
the skills you have to persuade the witness you need him
to testify for you, for your client, for art.
You must assure the expert at the outset of your first
conversation that you do not expect him to become an
adversary. Tell him that you only want him to recount in
a clear, humble, straightforward manner his qualifica-
tions, his opinion and the basis for his opinion. Often if
you settle for a reasonable degree of scientific certainty.
rather than absolute certainty, his reluctance to testify
will dissolve.
Insist on and pay for a “consultation”—before an
expert’s deposition is taken. Arrange for enough time to
permit a complete exploration and simplification of the
scientific aspects of the case. Start from scratch. Make
no assumptions. Have your expert define each term and
explain each step he takes in reaching his opinion. Let
the expert (especially one who has had no courtroom
experience) know that the consultation is to prevent
embarrassment to him as well as to you. Review every
piece of technical data upon which he will rely. Make
certain that you understand it and are in agreement as to
its significance. Explain the theory of your case, end he
will help you find the places where you are vulnerable
and buttress them.
Like to Show Off
Most trial lawyers are excited about new technology.
We enjoy obtaining at least a superficial look at new
fields of knowledge. We generally enjoy talking to the
experts. We like to show off our newly acquired expertise
in conversations with our expert witnesses.
The trouble is that some of us never stop showing off.
We continue to carry on mysterious conversations witi
our experts during the trial. We sound right out of
medical or engineering school symposia. Jurors probably
think, “Here are a couple of extremely smart fellows. I
wish I knew what in the world the two of them are talking
about.” The mystery hour won’t help much when the
jury retires to deliberate. You and your expert have a
teaching job to do. It can usually best be done in short
steps. You both watch the jury for the telltale sign of
imperception — the lost look of the walleyed pike.
Those twelve people have not shared your exciting new
educational experience. You and your expert must get
through to them. That means taking that overqualified,
overpriced, fancy-talking professor and making him into
an English-speaking human being. Teach him to speak
simply and to draw simple, understandable sketches and
Encourage him to explain his testimony—first to you,
ultimately to the jury—by using charts, diagrams, maps,
drawings, or in the case of doctors, by x-rays, skeletons
or medical drawings of the parts of the body Involved.
Make him be specific. Forget fancy projections. Most
jurors can’t read a blueprint—most of them did not
take a course in engineering drawing. Use drawings they
will recognize from their experience. Make your expert
tell it to you and then to the jury as if he were reviewing a
book on his subject for a bright bunch of fifth graders.
Not cloying, not patronizing. but very, very clear and

Q. What is a caisson, professor?
A: Caissons are supports for buildings. They are
used to support tall buildings.
Q. What kinds of caissons are there used today in
constructiOn in Chicago?
A: Mainly two types. Both are made of concrete.
One goes right down to bedrock, and the other
goes to hard clay or hardpan and is belIed like
sailors’ trousers. Both hold up and act as part of
the foundation of the building.
Q: With the court’s permission. would you leave the
witness stand, and using the blackboard, des-
cribe for the court and jury how the caissons sup-
port the building.
A: Now these columns I have marked A. B. and C
are columns of concrete running from the sur-
face of the ground down 125 feet to bedrock.
This is the way it would look to you if you could
slice off a piece of earth and look at the caissons
from the side. Sort of the view you get of ants
working in their dirt hills on one of those glass-
enclosed ant farms they sell in pet stores.
In your preparation, make your expert interrupt him-
self and define every technical word he uses. Interrupt
him in practice sessions until he does it automatically or
at least at the slightest cough from you. Try to avoid
having to interrupt him constantly during his testimony
to define terms. If he forgets and your coughs don’t help,
you should take the blame: “Sorry, doctor, I’m afraid
you lost me there — what were you referring to when you
used the term ‘annular space’?”
Figures of Speech
Get your ex ert to use similes and examples. Make
him watch the jurors as he would a class of students. Do
they understand? Are they following him, or has he lost
them? Make your expert as jury-aware as you are.
Go through your direct examination outline with him
carefully. It is as important to insure effective com-
munication by repetition of your examination with an
expert as it is with a lay witness.
Take your time in qualifying your expert. Try in
pretrial conferences, to instill patience in the judge. Ask
him not to push you through your examination of your
expert’s qualifications. The judge may have heard a
thousand orthopedic surgeons qualified. The jury has
not. Do not, of course, accept your opponent’s offer to
dispense with a recital of your expert’s qualifications by
stipulating that he is qualified. You might express your
appreciation for the recognition of your witness’s
qualifications, but since the qualifications go to the
weight to be afforded the testimony as well as to the
admissibility of the opinion, you believe that the jury is
entitled to hear the qualifications in detail.
Take your expert carefully through the cross you
anticipate. Use leading questions and warn him how
your opponent might use them unfairly. Tell him to say
so if it would be misleading or inaccurate to give an
unqualified answer. Warn him of pitfalls. Tell him to
listen to questions very carefully and not to supply
missing parts with assumed facts. He should be told not
to change his manner during his cross. He should cer-
tainly be careful but not evasive or hostile. He should
only answer the question asked and stop. He should
never argue with counsel and never, never exaggerate.
Be sure to let your expert know that he will be given an
opportunity to clarify, amplify or correct his testimony
on redirect examination and that he is not required to
straighten out your opponent by argumentative answers.
Advise him not to be afraid to change his testimony
immediately if he realizes he has made a mistake.
Most Fertile Areas
Point out the most fertile areas of cross-examination:
textbooks, his own writings, other possible causes.
inexactness of the science, possibility of errors of fact in
the hypothetical question. Tell him that on redirect
examination you will ask him if he took into considera-
tion the other possible causes before he reached his
Obtain a written bibliography of his professional
writings and accomplishments (curriculum vitae) and
skim them for embarrassing or inconsistent opinions.
Ask him to help you ferret out seeming inconsistencies.
Often they disappear.
Do everything you can to present him to the jury as an
honest. fair, sincere, friendly man of science who has
done his homework and knows his subject. And God
bless him if he is a little humble. The meek may not
inherit the earth, but they can certainly help you to per-
suade the jury you are on the right side of the case.
The successful cross-examination of your opponent’s
expert usually requires much thought and preparation;
you must shake some of the gloss from him and from his
harmful opinion. Usually, if he is well-qualified and has
expressed an opinion recognized by your expert to be
honest and sound but at variance with your expert’s
opinion, you may be well-advised to obtain an admission
that the question is the subject of professional debate.
You probably are wise if you establish your theory with
your expert and conduct an apparent or ghost cross-
examination of your opponent’s expert. His financial
arrangement with your opponent may be of interest to
the jury. The number of times he has testified for your
opponent or for your opponent’s side of cases may seem
terribly shopworn to you, but it will be new to the jury.
Occasionally your opponent will have come up with a
witness of the highest competence in his field, but his
field isn’t specifically related to the subject in issue. His
qualifications may be adequate enough to get him over
the admissibility hurdle, but his experience and training
have been general and not specifically directed to the
Issue in your case. You may not want to attack the plain.
tiff’s expert directly, but you can show indirectly and
comparatively that he has general knowledge, where your
expert has specific, detailed knowledge.
You may be able to have the expert testify that there
are alternative explanations. Your expert tells you that
such alternatives are certainly possible. You have not lost
mucn of anything if the plaintiff’s expert denies the
(Please turn to page 34)

Copy ight 1982 ABA Section of• Litigation.
Further reproduction, in whole or in part,
Reprinted with permission from Litiaation ,
1977 at p. 14 by Stuart A. Sinitt.
AU rights reserved.
is prohibited.
Vo1 ne 3 No. 2, Winter
The Thtness Needs Help
by Stuart A. Summit
The important witness has the most difficult role in litiga.
tion. The subjective pressures on any witness—whether a
party or not—make testifying a frightening prospect. Few
lawsers perceive the d fficu of the wimesss job. and
that may explain why lawyers are supposedly among the
worfl witnesses.
The least we can do u help the poor fellow. By ‘he lp I
do not mean the casual run.through that suffices for
many. A is entitled to substantial assistance not
only on the subject .marter of his testimony. but alsoot the
special problems of being a witness.
The important witness in civil litigation wifl be
examined twice—at the oral deposition and ax triai—and
his role in each phase is different. The preparation should
be different, too. One startling fact is true in both phases:
being a witness is a highly artificial business for which
there is no adequate backgroiknd or experience. Prepare.
tion ofan important witness must start from scratch, who.
e ’er the witness and whatever the case.
Testifying at an oral deposition is the most artificial
process of all. The witness will think he is participating in
an essentiafl) oral event—he will be questioned and must
answer. That impression is dangerous. A deposition is a
process by which a document is prepared. and nothing
else. All that MOrtlrs s the rrwsscnpr. Somehow you must
convince the wjtn 5 5 that his job is to thrtate &
irnportain document.
Think of it! A lawyer or business executive faced with
having to prepare an important wming will consider what
be wants to say and will draft and edit until he is satisfied.
He may seek the opinion of others before he permits the
document to be made final. In the real world n ’s treat
documents of potential importance with respect.
But the witness at the deposition I given no such
opportunity. No matter bow much he preparer before he
enters the deposition room, he cannot know what
questions will be asked, and he cannot preparc answers in
advance. His opportunity to cba ge answers is limited. H.
M. £. u.u. a Nr York 1m. uWsajbr t —
muss account for changes. It will not be enough for him to
say. as we sometimes do of an early draft of a legal
document.thatitsordydgflciezicy i s that itcan be
improved. The witness will not be permitted, without
peril. to improve his answ n.
There are a number of ways to ricip keep the witness
aware throughout the deposition that he is dictating an
important document. The most important principle is
that the witness should take his time. No less than five
seconds should elapse between the last word of the
question and the first word of the answer. The witness
should be drilled to know what five seconds are, anc to
stay ptifoctly quiet for at least that long. (Five seconds is a
very long tune indeed when everyone in the room is staring
expeetant yJ The witness must be taught that this long
pause before answering is invariable—once he has given
his name and address, that must be his pattern. If he
answers some questions quickly, he will be unable to
sustain the pattern, and may warn the examiner of areas
of concern.
During the long pause between question and answer .
the witness should make sure he understands the
question, say so If he does not, and compose his answer.
He should not begin to talk until he knows the last word be
is going to say. If the question isso open-ended that the
answer cannot be composed wholly in advance, ax least he
should make notes of the thoughts to be indudul in the
answer .
Talk toStexiographer
The witness should face the examiner until he is ready
to answer the question, then turn and speak to the
stenographer. Facing the stenographer will remind nim
he Is dictating. The witness should talk in sentences. He
should be as concise as the question permits. That does
not mean stretching to give a yes or no answer, but using
as few words as completeness permits.
The witness should be taught that it is the examiner’s
job to ask a question so that it can be intelligently
answered. It is the lawyer’s role to argue with the examiner.’
If argument is necessary, but never he witness’s. Unless

instructed by you to the con ary. he is to an wser as best
be can all questions he understands. He should ask that a
question be repeated or rephrased until he understands it.
He does not ask the examiner any questions, be does not
state gratuitously the cause of his need for rephrasing;
in sum. he does not assist the examiner. The deposition
the adversary’s inning. and is is an pan of the witness’s
burden to make points. He is to answer questions, and
nothing more. His general attitude should be that of the
bystander, who has no interc t in the outcome.
From the outset, the witness should be infarmed,
pe sely and repet vely , of the differences between
knowledge, hearsay. and surmise. He must never answer a
question by sua Ling he knows something he does act.
The . ingle that begins “I don’t know, but I’ve been told”
makes the distinction neatly. The witness only testifies to
what he has been told ifhe is asked what he baa bom
told—otherwise, be does act know something he has
merely been told.
Witnesses make mistakes. Point out how normal that
is. so he will not become flustered or worse. He should
correct errors as quickly as he realizes thetn—isnerruptjng
Ifoeceasary. If it is a matter of importance and he has any
doubt, he should confer with you first. Many witnesses
attempt to defend error, but it cannot sucessJully be
done. ‘Don t —correct the error quickly, and don’t
build a story around it.” On the other hand. he should be
suspicious of re ’ollecuo s newly found while testifying.
and you should test these before they become a matter of
Before your first briefing meeting. you should have
reviewed all that you know about the witness’s role in the
vents in suit. Separate the documents he wrote from the
iocumerns he saw and the ones he neither wrote nor saw.
It is important to remind the witness of what he did not
kno i during the events in suit, because he may have
learned much after the fact.
Relaxed First Session
The first briefing session should b relaxed, and neither
lawytr nor witness should be subject to time pressures or
interruptions. At this early stage you must get to know the
witness as a person. to understand his pers ective on the
events in suit, and to start identifying the areas where be
needs the most help, it is best to start by giving your
o’ei.all picture of the case, generally Including his
involvement, Then ask him to tell of his involvement in his
own words, without reference to documents or notes. In
particular, ask him to comment on your description oflus
role. This is no time for close questioning; let him tell his
story as he sees it.
Be particularly alert as the witness tells his story for the
first time. The nuances in his first narration can be
considerable. Facts glossed over, omitted or unduly
anph.tin,d are clues to possibly troublesome areas.
Unless the witness is your Individu al client, do not be
certain he views you as an ally. An employee of a large
concern, for example. may well view the company’s lawyer
as a source of potential danger. It is critical that you find
inmon ground and that he comes to trust and rely on
i. (A sensitive task, but it must be done.)
Should the witness’s spontaneous recital of his role
conta;n any surprises. attempt to clarify, but be gentie.
Assuming you have received no major surprises, you nave
probably aceomnpltshed as much as you should at the first
‘briefing conference. At this point, assign homework and
schedule a second meeting. As a minimum, give him a
package containin g copies of all the original documents
with which be should be familiar, and a brief chrono.
logical rectal of the major events surrounding the case. If
there are interrogatory answers or transcripts of prior
witnesses bearing on his anticipated testimony, he usually
should have thine also.
The hard work begins at the second briefing
conference. Ask the witness whether he sees any problem
wish the role you expect him to play in the litigation, and
__ if his homework has produced any questions. Before
going fUrther. ie ”establish or redefine the common
Take the witness
through a serious
exan iinatjon under
laboratory con clitions.
ground: the witness will resent a failure to do so. He must
be satisfied that he can properly and truthfully do what is
expected of him. In the course of re-establishing cr
redefining the witness’s mole, carefully identif) his areas of
knowledge and those where he lacks knowledge. Then.
remind him of your instructions about how to answer
questions and take him through a casual examination
coveTinghisenhirekno iIedge. B) acasualezamir.ation, I
mean one that may be interrupted for questions and
comments. Give him a running critique on his answers.
and he may seek advice too.
After the subject.marier is covered through casual
questioning, you should take the witness through a serious
examination under laboratory conditions. This should not
take place in particularly comfortable surroundings.
beverages should not be served, there should be no inter.
ruptions. and the conditions under which the deposition
will be held should be duplicated. Another lawyer should
be present. If possible, to get a cold evaluation. During a
serious examination there are no comments or questions
from either the lawyer or the witness; these are saved.
Do not spare the witness at this point. Let him see.
through your questioning. where a gratuitous comment
can lead. Jfhe says he cannot answer without a document.
produce the document. Show hiwi the dangers of evasion,
Use your knowledge of the whole case to try to have him
claim knowledge he does not have. Try to make him look
foolish for every “1 don’t know.” If he claims not to
understand a question, ask him what he does not
understand. Do all the things you know how to do to make
a witness am.
When you are done, you may need to re ’establjh that
you really are on the witness’s iide. Do not overlook this.
No matter how poorly he performs, reassure him, pointing
out that the object of preparation is to avoid the problems

II1 L CT JU L Iuv.M’Id%VU. &I II .M. I VW Vbe. W
nct permit complacency.
Whether to conduct any further questioning at this time
should turn on whether the witness seems ready for more.
if he seems anxious to show he can do better, go ahead. ;
eithererein. at the end of this meeting. schedule the next.
Three full practice examinations are the minimum for a
witness who has an important role, and make sure you
leave enough time for at least that amount. The last
practice examination should be scheduled just before the
deposition, and intermediate examinations should be
scheduled a few days apart. The object of leaving
Intervening days between practice examinations is to test
the witness’s memory. Unless he seems hopeless. ask him
to do no homework for his last practice examination, so
you may see how be will do on that basis.
Use Another I w er
if another lawyer familiar with the cue is available, you
may wish to have him take the witness through the
second serious examination, so that the witness does ant
get so used to you that you can no longer test him. This will
give you the opportunity to watch and evaluate .
In the course of observing the witness under laboratory
conditions, you must make decisions about the conduct of
the deposition. You may detect that the witness cannot
keep details in his mind that he should be able to testify
about. 1 don’t know’ at the deposition may limit the wit.
nest’s usefulness at the vial. In that event, iou will want
the witness to have in front of him at the deposition
whatever is necessary to assist his memory. He may have
notes or a document collection to refresh his recollection.
Because the examiner will be able to see them, the witness
should not use pm ileged documents or notes that contain
1 work product. Conversely, a witness who has a good
recollection without notes or documents is probably better
off without them. If he needs anything, your files at the
depésition should be organised so that you can quickly
supply it.
A deposition witness prepared enough times by these
method.s should be able to handle the unique and difficult
r ic auignea to mm witnour uie neec tor you to intervene
at the deposition. That is the ideal.
Often a deposition witness will resist making available
the time necessary for proper preparation. Lawyers.
doctors. senior executives and pubbe officials particularly
make this mistake. The prospect of a trial is awesome
enough to frighten a witness into acquiescense. but a
deposition in a lawyer’s office may not impress him. This
is simply untenable and. somehow you must commurncste
the seriousness of the risk. This is no tune to be
deferential—you will not be thanked for it when things go
it is best If there is a long period between depositim and
trial, since the witness’s role will be quite different, and he
must shake some of the habits you instilled for the
The witness’s role at ma! bears little relationship to that
at the deposition. The trial Is almost exclusively an oral
event. While the trial transcript may become important,
this will be purely as a record of what took place. in
contrast with the deposition transcript, the making of
which is all that took place. Thus, many things that wme
unimportant at the deposition become of great impor .
tance for the trial.
Critical Cbore
Your first critical éhoie is to visualize the witness on the
stand. What will he be like? You should (or must come to)
- know him and his patterns of speech and thought well
enough to make that judgment. Think rough his
strengths and weaknesses. Is he brash? Ponderous? Doss
be think slowly and talk quickly. or think quickly and ti&
slowly (the ideal)? Does he have nervous mannerisms?
Doss he tend to use large words, or too many?
Videotaping should be excellent for this purpose. A lot
could be learned from watching a videotape of the witness
being questioned at length.
One of the greatest dangers is that the witness will react
differently on the witness stand than in the deposition
room or your office. If he is not a seasoned witness, take
him to an empty courtroom and have him sit on the
witness stand. Point out how things will look at the actual
trial. Take him toe trial in progress . (Ills is permitted. he
should watch prior witnesses testify at the trial iaelf )
To prepare him for the substance of answering
questions, you should start all orer again even if he was
extensively prepared for a deposition. Be sure that you do
not make the witness’s role any harder than Is has to be.
Before you start to prepare hint for trial decide prn sdy
what areas he needs to corer on direct examination and
what areas he must know for cross-examination. You will
have the deposition transcripts, and while you may give
him summaries, he should read the transcripts of his own
deposition, word for word. As to the deposition
transcripts of other witnesses, do nor expose hint to
information he cannot testify about. He should see.
however , what other witnesses have said about areas of
overlapping knowledge. He should again be given a
collection of the documents and interrogatory answers
that relate to him.
By now you should have identified every problem a
for the witness. Areas where be and other witnesses

disagree should be discussed at length. While somewhat
141Mf4.tOt recollections M17 DOT undercut an cnth case,
itness should not be in the p iton of disagreetog
ithers without knowing it and being certain about his
- recollection. This is m e whether the witnesses with
3Th he may disagree are friendly or u frie dly.
The witness must be prepared for both direct arid esom.
examination, and the emphasis should be balanced
between the two. it isa frequent spectacle to see a witness
tell much about the events covered on direct examination,
and grow vague on cross. He appeers to be purposely
withholding information from the cross-examiner. This is
often unfair the fauft may be the l&w rvt’s failure to be
sure the witness less prepared for eross .ezamlnation as
fordirect. Conversely, some enjoy practicing their
s-examinati o n techniques to the point that their
witness is ready for anything $ hostile questioner may ask
but cannot tell a straightforward story.
For direct examination, I find it helpful to prepare a
short narrative statement of everything I need the witness
to say, prepared as if he were w ti g a high school essay.
While he must understand, of course. that be will not be
given the chance to state his story so neatly front the
witness stand, it still helps the w’mess to see it in this
1 do not give a witness the pre ,e questions that 1 will
ask. He is made familiar during the practice P aIiiinations
with the areas that will be coie,ed in his direct examina-
tion. but no more. Scripts are to be avoided. A witness
*hould not be perinmed to become comfortable with a
particular way of asking a question, and your examination
- of limited effectiveness if you have to read the
)ns. You must be free to extemporize. Cross-
satlon will not be conducted from a script, so the
as must be prepared on the whole subjeci.matter, no
mutter ho the qu stion is asked.
Limits of Direct
Witnesses have difficulty understanding the limitations
of direct examination. It pays to educate them, so that
they will appreciate the limitations under which you are
operating in questioning them. Do not use lending
questions when you are conducting a practice direct
it may help to divide the practice ewninations, direct
and cross. berwe n two or more lawyers. if others are
available, ask them to prepare a cross-examination of the
witness as if they were his adversary. Ask them to
determine what areas they would concentrate on. and to
do so. (It can be enlightening to ask the witness what
be would ask if be were responsible for his own cross-
examination. This is a good way of determining what is
worrying him most.) -
The object, obviously, is for your witness to be as
p ausib l e on the tand as he can be You rebuilda
personality. Instead, you must take the personality and
mannerisms that you find arid work with them. if the
witness is a fast talker, you may get him to slow dawn
somewhat, but you cannot count on it. Instead, you must
make certain he is so full of information and so aware of
t* rnces. that you can live with his speed. if be is
us. perhaps that mannerism can be conberted to
concern and thoughtfulness. That kind of maximization
of the witness’s own traits is the most that can be
a ornp )ished. A self-conscious witness is almost
invariably a bad one.
For the thai even more than the deposition, the more
practice the better. I know of no disadvantage to repeated
rigorous examination, a you must stay with It until you
an sadsfle6.-
Depending on the importance of the case arid the
witness, there is almost no limit to the number of sessions
or hours that can be constructively devoted to practice. At
the beginning, concentrate on direct, and take your
witness through the full direct. under laboratory
There is almost no
limit to the time that
can constructively be
devoted to practice.
conditions, with the critique following. The witness will be
better able to cope with rigorous cross-examination after
he is confident of his direct testimony. Then, after
achieving a reasonable performance on cross-ezamina.
sian, alternate between direct and cross, with discussion
saved for the conclusion of a full m’ninatian, Do not
permit the practice examinations to become a ritual. You
or the lawyers helping you prepare the witness must vary
your routines and should exchange roles as well. These
examinations must be rigorous or the witness will receive a
false sense of security.
On the other hand, you do not dare destroy the witness’s
confidence just before he gets on the stand. It can be fatal
to delay your initial final preparation to the last minute. so
that the difficult side of cross-examination and critique
musttakeplacewjtjtina fewdaysorhours oftheactiaal
testimony. If you start early enough. the more brutal
aspects of the proceas can be covered , and the last few
practice sessions can be utilized to give or restore to the
witness a sense of confidence.
I prefer that the witness use no notes or documents in
t tifyi g unless a question specificall> calls for it.
However, this must depend on the witness. If he has a bad
memory and no amount of practice and homework can
core it. you are much better off If he does take notes or files
to the witness stand. Some witnesses will never be
comfortable without such props .
If the adversary examining the witness at the deposition
wfllbethesameasatthethal,ftiseujerfor wjt, s if
they will be different, you should familiarize the witness
with the examiner’s methods. if the witness will not be
able to watch the adversary examiner during the trial, try
to arrange for him to do so in advance. If that is not
possible. then you should describe to the witness in as
much detail as possible the nature of the examiner and his
Be sure to warn the witness that he may be under
(Please tnrn to pc e 3 )

A Letter in Which Cicem
Lays Down the Ten Commandments
of Cmss -Examination
Thinslated and Edited bylrvingYounger
The world lost a good part of the literature of Greece
when the library at Alexandria burned. Julius Caesar
was unperturbed, however. Told that “what is burning
there is the memory of mankind,” he replied, “A shame.
ful memory. Let it burn.” (G.B. Shaw, Caesar and
Cleopatra Act II) His equanimity has about It some-
thing of the smugness of the patriot. The logos of Athens
may have been going up in smoke; the virtus of Rome
was not. Alexandria’s library contained but little Latin
literature. For one thing, the Egyptian chrestomaths
devoted themselves single-mindedly to Greek. For
another, most of Latin literature had yet to be written.
Busily writing some of it in the very year of the
library’s destruction was Marcus Tullius Cicero, whose
eminence in affairs as politician and trial lawyer is the
gossip of posterity. Between tenures of public office and
appearances before the jury box, Cicero produced
poetry, history, oratory, and philosophy, enough to fill
thirty-one quarto volumes. With time and energy left
over, he wrote letters. Eight hundred and thirty-five
survive, among them 416 to his lifelong friend, Titus
Pomponius Atticus. To these must be added a 417th,
copied in a crabbed scribal hand on both sides of a
yellowed sheet of papyrus, handed tome as wrapping by
a Neapolitan fruiterer from whom I had purchased a
dozen cherries, and now, rescued from the obscurity of
the twenty centuries since Cicero wrote it, published for
the first time. Modern lawyers may find in it an interest
not entirely antiquarian.
* S *
The gods know, dear Titus, that nothing an advocate
does is simple, but of all the things an advocate must do,
by far the most difficult, the most complex, and the most
subtle is cross-examination. I had better say at once what
It Is I mean to signify by the word “cross-examination.” I
do not refer to friendly cross-examination, in which the
advocate questions a witness who, though called to testify
Irnng Yo 4JIer teachez tn al advocacy at Conidll Law School.
by the adversary, supports the advocate’s side of the
controversy. Nor do I refer to cross-examination of a
witness who takes no position between the litigants but
who possesses information which the advocate, through
his cross-examination, wishes to lay before the jury. I
refer, rather, to impeachment, cross-examination to
discredit, cross-examination the purpose of which is to
persuade the jury or the judge that the witness is not
worth believing. That is the kind of cross-examination
most commonly encountered and the kind most difficult
to do competently.
Three Qualities Needed
To do it better than competently, to do it superbl
requires the convergence in one cross-examiner of three
The first quality is experience. Advocacy is not a
phenomenon of infancy. A competent advocate must
have behind him at least twenty-five jury trials. When he
has tried his twenty-five, he begins to know what to do.
The second quality is talent. More about it later. It is
the third quality of which I wish to speak just now.
No advocate ever cures his stage-fright. From first to
last, when he stands up to cross-examine, panic beats on
his chest and prostration lurks nearby. Two questions fill
the advocate’s mind. One is, “What shall I ask?” The
other is, “How shall I ask it?” And those two questions,
dear Titus, find their answer in the third quality, a
thorough grasp of both the rules of evidence and the
principles of advocacy, which for ease I shall call tech-
nical mastery. Do you want an answer to the first ques-
tion, “What shall I ask?” The rules of evidence supply it,
in ways about which I shall write you after the Senate
adjourns. Do you want an answer to the other question,
“How shall I ask it?” It is furnished by the principles of
The chief, the central principle of advocacy, in all its
parts and in every aspect, is preparation. Preparation.
Preparation. Whether he has one week, one month, o
one year to prepare, the advocate concentrates upon ha

case to the exclusion of everything else. The case is un-
interruptedly in his mind when he is awake and forms the
matter of his dream when he sleeps. To what end? That
nothing come as a surprise. Everything at trial must be
planned. Everything must be anticipated. Because if it is
not, it will go wrong. The courtroom is the most intricate
of institutions. So much happens, there is so much for
the advocate to do. to know, to sense, that none of it can
be done ex tempore.
What follows is that the summation must be worked
up in advance. Indeed it must. Before the trial starts, the
advocate knows what he will say to the jury when it is
over. He should be able to say it at home to an amanuen-
sis whose transcript can be compared with the summa-
don actually delivered in the courtroom. The two must
If the surprises -exceed
10 percent, the
preparation was poor.
be within 90 percent of each other. I allow 10 percent for
the disappointments of existence. If the surprises amount
to more than 10 percent of the trial, if the summation
delivered at home is not within 90 percent of the sum-
mation delivered in the courtroom, the advocate has
prepared poorly.
Since the summation is worked up in advance, then
the part of it that deals with the credibility of the adver-
sary’s witnesses is also worked up in advance. Yes, before
the trial starts. the advocate knows that what he will say
to the jury at its conclusion about the credibility of the
opposing witnesses.
There, dear Titus. there is the secret of cross-examina-
don. The advocate will cross-examine only to the extent
necessary to obtain the information he needs to support
the argument he has planned in advance to make in his
summation about the credibility of the cross-examined
witness. And once he has obtained that information, he
will stop. Stop. S.t-o-p. That four.letter word is the most
important in the advocate’s vocabulary. When things are
going well, what should he do? Stop. When things are
going badly? Stop. When he doesn’t know what to do?
Stop. When he is ahead? Stop. When he has blundered?
But not yet I, rrtus, for I wrote above that the prin-
ciples of advocacy tell the trial lawyer how to ask the
questions on cross-examination. I must now set forth
those principles, artlessly and without embellishment.
Do you recollect the conversation of the rabbi we met
once while strolling in the Forum? It suits my fancy to
call these principles of cross-examination command-
ments and to number them from one to ten. Here, then,
are the ten commandments of cross-examination.
Be brief. The cross-examiner’s purpose, always
remember. is to obtain the Information necessary to
support an argument in summation about the credibility
of the witness. Well, never more than three such argu-
ments. Two better than three. One best of all. So obvious
is the reason for this commandment that it is often over-
looked. No matter how simple a case may be to the
advocates, to the jurors it is always confusing. They have
not studied it in advance: they learn about it for the first
time in the courtroom, and what’s more, they learn
about it, not by reading, which is how we are accustomed
to learn, but by listening, which we are not at all accus-
tomed to do. There is a very low limit on the capacity of
the juror to absorb information by ear. Once that limit is
reached, he can absorb no more. Ask him to do so by
dragging out the cross-examination and he becomes
bored and sullen. The interminable advocate, in short, is
rarely the victorious advocate.
Short questions, plain words. For some reason, many
lawyers think.that the sign of a lawyer is the habitual use
of fancy words, long sentences, and elaborate syntax.
Why don’t lawyers understand, as do practitioners of all
other arts, sciences, and mysteries, that simplicity marks
the master? Simple words and simple sentences are not
only good style; they are also good sense. The jury
probably includes two or three simple folk, and the
advocate must talk to them as wefl as to the learned. He
cannot talk to them if his tongue drops only tangled
clumps of twisting polysyllables.
Ask only leading questions. The law of evidence con-
tains a single rule about the form of questions on direct
examination. Leading luestions are forbidden. They are
forbidden because they suggest the desired answer,
because they put words in the witness’s mouth. Therein
lies the vice of the leading question on direct examina-
tion, and therein lies its utility on cross-examination. On
cross-examination, an advocate never asks anything but
a leading question. Every question on cross-examination
should put words in the witness’s mouth: all the withess
need do is reply, in strict rhythm, “Yes,” “No,” or “I
don’t know.” That is how a clever advocate controls a
witness, and controlling the witness, making him say
only what the advocate wants him to say, is the whole
Idea of cross-examination. Isn’t it?
Never ask a question to which you ds not aimady know
the answer. Cross-examination is not an examination
before trial. It is hardly the occasion for discovering what
the case is all about. If a lawyer doesn’t already know
what the case is all about, he shouldn’t be trying it. This
fourth commandment is a direct corollary of what I said
earlier concerning the secret of cross-examination.
Knowing before the trial starts what be will argue in
summation about a witness’ credibility, the advocate also
knows the information he needs to support that argu-
ment; and in cross-esamination he will seek nothing else.
Hence the advocate always knows the answer to the
question before he asks it. If he doesn’t know the answer,

he won’t ask it. Two qualifications are necessary here.
First, even though he does not know the answer, a good
cross-examiner may ask a question when he does not care
what the answer Is. Second, It is possible not to know the
The advocate always
knows the answer before
he asks the question.
does not permit the witness to explain an answer, for that
would be to hand control of the cross-examination to the
witness, and the good advocate allows no one but himself
to control the cross-examination. Of course, the judge
may interrupt and give the witness an opportunity tc
explain. That is one of life’s misfortunes. And, of cours
the proponent of the witness may come back on redirec.
exam ination to elicit an explanation. Let him. Do not do
it for him. Possibly he will neglect to do it, and in any
event, to the jury the explanation that comes later always
has the false ring of an afterthought.
answer to a particular question at the start of the cross-
examination, but to discover the answer by cunning use
of preliminary questions to which the ans er Is either
known or unimportant. The advocate closes doors, he
eliminates possible explanations, and gradually escalates
himself to the point where he does know the answer. He
has learned it in the course of the cross-examination, and
so he may now ask the question.
Ihten to the answer. From time to time, a witness will
say something extraordinary. It is contradicted by other
testimony; it is contrary to human experience; it is incon-
sistent with the way the universe is organized. Yet the
cross-examiner goes heedlessly on, as if somehow he
hadn’t heard the answer. Correct. He hasn’t heard the
answer, and the reason he hasn’t heard it is that he
wasn’t listening, and the reason he wasn’t listening is
that he was so immersed in his own fright that he had left
no reserve of attention for listening to the witness. Now,
fright is natural, but if the lawyer wishes to be a true
advocate, he must train himself to overcome it. Not that
fright ever disappears. It does not. It must be mastered,
however, controlled, limited, so that the cross-examiner
can turn from himself and listen to the witness.
Do not quarrel with the witness. It is only human for
the cross-examiner to be tempted to respond to the
witness’s absurd or patently false answer with “How dare
you say that?” or “Do you really expect the jury to
believe such bilge?” Resist the temptation. To quarrel
with the witness is unurbane. It infallibly elicits a sus-
tained objection on the ground that the question is argu-
mentative. And it serves to permit the witness to ration-
alize an absurd or patently false answer, diminishing or
altogether avoiding its adverse Impact on the jury.
Better, should the witness give such an answer, for the
advocate simply to s-t-o-p.
Do not permit the witness to explain. The good advo-
cate asks leading questions only, as required by the third
commandment, questions to which he already knows the
answer, as required by the fourth commandment, and
questions which do not quarrel with the witness, as
required by the sixth commandment. He gets his “yes”
or “no” or “I don’t know,” and briskly moves on. He
Do not ask the witness to repeat the testimony be give
on direct examination. If the jurors hear something
once, they may believe it or they may not. If they hear it
twice, they will probably believe it. And if they hear it
three times, they will certainly believe it. Thus, when a
lawyer asks a witness on cross-examination merely to
repeat his direct testimony, all he accomplishes is
elevation of the witness’ credibility. What had been a
perhaps becomes a doubtless. That, dear Titus, is not
the purpose of cross-examination. And has it struck you
that the law of evidence makes it easy to obey this com-
mandment? It specifies many subjects into which a
lawyer may inquire to discredit a witness without ever
permitting the witness to repeat his direct testimony. But
more on this in the letter I will write you after the Senate
AvoId one question too many. After a while, the advo-
cate develops an instinct for this commandment. He
cross-examines; he asks an especially good question; he
gets an especially good answer; and he stops. Without th
instinct, he will not stop. He pursues the point with
question following up on the especially good question.
Sometimes, as he asks it, the cross-examiner says to
himself, “I just know I shouldn’t ask this.” But too late.
The question has been asked. It cannot be recalled. And
invariably it turns out to be one question too many.
Save the explanation for summation. Assume this
case: a lawyer has conceived in advance of trial an un-
answerable argument to make to the jury in summation
about the credibility of an opposing witness. The argu-
ment rests upon information the lawyer can obtain by
cross-examining in scrupulous compliance with these
commandments. The only difficulty is that the argument
is so profound, the cross-examination so masterful, that
the jury will not then and there, while the cross-examiner
is cross-examining, grasp the point of the cross-examina-
tion. The lawyer now feels the desire to draw out the
cross-examination so that the jury comprehends at once
the nature of the questioning and the brilliance of the
questioner. Should he succumb, he is lost. In drawing
out the cross-examination, it is inevitable that the lawyer
will violate one or more of these commandments affd
thereby dissipate the force of the cross-examination. All
the better for the lawyer that the jury not understand.
(Please turn to page 49)

Wbrking the Witness \izz e
(Conwtuedf um page 13)
probability since your expert will support your theory
and If your expert is more persuasive, he may shake the
jury’s confidence in your opponent’s expert . These is
always the hope that you will gain an admission of an
akeroathe probability. You won’t ha’s much of a
problem if you took a good deposition. You know how
the expert will testify. You will undoubtedly ha’s had to
pay his witness fee, but It is money well spent .
At the experts deposition, look for and try to develop
uncertainties and qualifications In his theory. Most
sxperte will admit there Is a possibility that there is
another explanation and even that he has occasionally
been wrong. Use caution in probing for qualified open.
ions on cross at thai If you have not developed the
qualification In the deposition. EAperis have a way of
becoming convinced of the certainty of their opinions
when theyarean eked. It fly uuw5eto I n s I s tO na
yes or no answer from an expert. Let him qualify and
then use his qualifications during your closing argument
to show his uncertainty and unresponsiveness.
Use your expert to help you prepare for crois-eum-
Istation of your opponent’s expert. Rave him show you
where to probe for weaknesses In the proc.dure and
methodology adopted by the expert in reaching his
opinion. Perhaps the expert skipped some steps In a
known process or failed to perform recognized teem. Get
him to point them out and have your opponent’s expert
admit these omissions.
If your opponent’s expert is testifying strictly on the
basis of a hypothetical question, bring out the fact that
he has no personal knowledge of the fact , Vaz r the
hypothetical and ask the witness how the change would
affect his opinion. This is excellent as a method of testing
the expert’s knowledge and fairness and as a preface for
pour expert’s testimony. It is effective If you can isolate
each factor the wItness has stated as supporting his
opinlor 1 and then Inquire hypothetically whether the
removpj of that factor would affect his opinion. Find a
weak link, one piece in the pule. and you have the basis
for some effective argument during your dosing
argument. Always try to pin an admission that a con-
tradicting source is well known.
Witnesses are human beings, and they are most
unusual If their testimony is unbiased, disinterested and
completely honest. ft is usually colored and partisan. As
an advocate, you must educate them and n’ e them put
aside their partisanship. John A. Wilson dosed an ex•
cellent paper on common sense in advocacy as foflowv
No one is more conscious than I that I have been
giving rather freely, much advice on a very old and
most difficuft subject. And, therefore, let m c con-
dude on a note of caution and admonition both to
myself as well as to you: As a noted woman advo-
cate. Portia in The Merchant of Venice. put in
‘If to do were as easy to know what were good
to do, chapels had been churches and poor
men’s cottages princes’ palaces ,”
It is certainly asi r to discuss methods of presenting
witnesses effectively than to present witnesses quietly,
smoothly. clearly, pervasively and elegantly, but the dif-
ficulty does not excuse the effort.
The Witness Needs Help
(Conwrued from page 17)
scrutiny the whole time he is in the courthouse. The judge
or jury may observe him in the corridors or sitting In the
back row. It is old-fashioned to dwell on clothes and
grooming. but I believe a witness Is entitled to know that
unusual clothes look much move unusual from the
witness stand. While the witness must be comfortable,
the judge and jury find hint plausible, andif his
clothes or manner are, to their perception, poisly
inconsistent with the role he verbally portrays, plausibility
is undermined.
I have not dealt with the difficult ethical questions that
can arise in preparing a witness for deposition and thai.
Dean Monroe Freedman did so In the Springs 1976 imus
of LmGAuon. In his article (Counselling thi Client Re-
fceshing Recollection or Prompting Per vr 7), he no
the difficulty of being certain that the witness understands
the Impact of what he says. whil, avoiding the
encouragement of false recollection, orwoese, A good thai
lawyer knows what rings true, at least by the time of al,
and the ethical lawyer (the practical one, too) will
naturally (and gently , assuming good faith) guide his
client toward the avoidance of incorrect recollection and
ctiaactermafion. There are many situations, however,
where the lawyer’s instinct will be of no help, and the
dilemma posed by Dean Freedrvian remains such.
The elaborate suggestions I have made may smack of
theatrical staging. If so, It is not the methods suggested foe
preparing the witness that are the uie , but the discovery
and thai processes themselves, it is not the function of this
article to ponder whether adequate preparation of a
witness, and other such lawyer’s techniques, assist or
deter the search far truth. Again others have done so (fat
example, see The Search jb Truth—An Umpircal View,
by District Judge Marvin E. Frankel, 30 Rzcoan
N.Y.C.B.A. 14(1975)). The oral deposition and thai ass
artificial eventa, and it is not a public service to rebel
against that fact at the expense of a particular witne or
client. The witness deserves, and desperately needs, the
exercise of the lawyer’s highest thHIt

Direct Examination
The purpose of direct examination testimony is to prove all of the necessary factual elements to
establish a prima facie case for your client’s claim. This is done by presenting the relevant witness
testimony and exhibits favorable to your theory of the case. Without proving the necessary
factual elements to establish a prima facie case, the trial judge can direct a verdict against your
For discussion about Expert Testimony, you may want to refer again to Chapter 7 and
specifically to the Expert Testimony Trial Planning Worksheet contained therein. For discussion
about your consideration in calling the defendant(s) under the Rules for cross examination, see
Chapter 19.
As to the techniques of direct examination, the following suggestions might be helpful:
1. Prepare an outline of the key facts each witness will testify to;
2. Organize the key facts in a logical, coherent manner either chronologically or
topically in a narrative form;
3. Organize your direct examination so it is brief and simple;
4. Questions you ask of any witness should be short, clear and direct;
5. Use short, simple action words in your questions and language that can be understood
by any person;
6. The witness is there to tell a specific story, so use open-ended type questions to allow
the witness to freely tell the facts in their own words;
7. As to the critical and crucial portions of witness testimony, use closed-type questions
to elicit and emphasize the details;
8. Use topical sentences to announce the transition of witness testimony to another
topical matter, (i.e. “Calling your attention to . .
9. Focus your attention on the witness and the testimony actually given by the witness;
10. Whenever possible, use diagrams, charts, exhibits, or any other visual evidence to
tie in with the witness’s testimony;
11. When it is appropriate and relevant, bring out any harmful matters on direct
12. Move the direct examination along at a brisk pace. When you come to the point of
critical testimony, slow down the tempo so that important details and facts are clearly
and directly understood in the witness testimony;
13. If a witness can’t recall important facts, help to refresh the witness’s memory with
supporting documentary evidence to recall those facts;
14. Plan the conclusion of each witness’s testimony to end with an important question
and answer;

15. When you’re through with the witness, STOP. (i.e “I have no further questions.”) If
you have no further questions and opposing counsel has finished with cross
examination, excuse the witness, and
16. If there is a real need for redirect examination, be brief The primary purpose of
redirect examination is to rehabilitate the witness in allowing the witness to clarify or
explain any inconsistent matters raised by cross examination. Likewise, redirect
examination can be used to cover any important facts you may have omitted or for-
gotten to ask about in your direct.
Some important matters you should guard against on direct examination are:
1. Don’t ask leading questions of witnesses. (Do ask leading questions on cross-
2. Do not repeat the name of the witness in each question;
3. Do not repeat the answers given by the witness and then go on to ask a question;
4. Don’t preface your questions with distracting mannerisms such as “I see,” “OK,” etc.
5. Exclude complex or technical language in your questions. Make your questions
understandable for the jury. The witness serves as the jury’s eyes and ears to the facts.
Most witnesses will use your language in their response, so keep it simple and the jury
will have a better grasp of the answer;
6. Don’t interrupt the witness’s answer to a question Allow the witness to finish answering
the question before asking another;
7. Don’t ask a lot of irrelevant questions. Get straight to the point of the witness’s
testimony; and
8. Finally, if you can’t hear a witness, stop and ask the witness to talk loudly and clearly so
that the jurors can hear the testimony.
As to any witness who will testify for you, organize and structure their direct o>.Inhination
the following simple way:
Who am I?
When did I know what I know?
Where was I when I first knew of it?
How or why do I know what I know?
What do I know?
Another approach:
Who am I?
When did it happen?
Where did it happen?
Where was I when it happened?
What happened?
How did it happen?

under direct examination should become the center of the Jury or
Court’s attention. Because the trial lawyer is able to exert little
control of his witness during direct examination, direct examination
requires preparation in depth. Direct examination is that portion
of the case in which persuasive testimony and documentary evidence
is of a positive nature.
Direct examination contrasts sharply with cross examination.
In cross examination, the examiner becomes the focus of attention.
Questions most often are leading and severely control the respondent
in his answers. Cross examination is negative in nature. A point
can be won or a witness discredited with destructive cross, but a
case is generally won with persuasive direct testimony.
experts. They have no special expertise which qualifies them to
give competent opinion evidence on matters for which they are not
equipped by special training or experience. But lay witnesses
through one or more of the primary senses (sight, hearing, smell or
touch) have competent knowledge of a material fact at issue. Wit-
nesses may also be classified as to whether or not their testimony
is directed to proof of liability or damages. Generally, the plain-
tiff is the only witness on direct, whose testimony will relate to
proofs of liability and damage.
WITNESS PROBLEMS . Some lay witnesses have particular problems.
A witness may be unkempt or dirty. A witness may be very shy or
bland or mentally limited. Other witnesses may appear to be biased
or demonstrate obnoxious behavior. Some witnesses speak too much or
wander from the point. Generally, you may classify witnesses as
forensic or non—forensic. A forensic witness gives an impression in
appearance and spoken word of credibility. It is not necessary that
the witness appear dapper or be a polished speaker. But it is
necessary that the witness’s appearance be clean, consistent with
his background and that his testimony be given in such a way as to
be persuasive. Most witness problems diminish in careful pre trial
preparation. You must build the witness’s ego and confidence, at the
same time you direct him to an acceptable level of performance. Loss
of patience or intemperance on your part will prevent rapport and
create hostility. Through organization of testimony, explination of
its purpose and rehersal, by question and answer, a poor witness may
become a fair witness. However, over coaching must be avoided. The
witness’s testimony should be his own .

A widow may have difficulty expressing her sense of loss in a
wrongful death action. The plaintiff may have turned inward and
“locked out the world” and consequently created a wall around her
grief. You must make her feel comfortable with you. Ask questions
of common experience to unlock the door:
Q. “What was Daniel’s favorite food?
Q. What did you fix him for breakfast?
Q. Did Dan have a favorite T.V. program?”
A series of personal questions which recall a vivid memory and
call for direct answers will generally produce open and relaxed res-
Many lawyers have been confronted with a “macho” man. A
client who has suffered a serious injury, but who is reluctant to
admit pain. Think of ways to illustrate pain without asking for a
description of pain:
Q. John how do you feel about drugs like morphine, codeine?
Q. John, before your left hand was slashed off, did you ever
take morphine?
Q. How many times did they give you morphine, the first time
you were in the hospital?
Q. Why did they give you morphine?
Q. Does your stump still pound sometimes?
Q. Why haven’t you been taking the codeine Dr. James
Q. John, do you still feel the same way about drugs as you
did, before the machine sliced your hand off?
WITNESS PREPARATION . After you have clearly determined your
theory of the case and the ultimate facts which support the theory,
then begin pre-trial witness preparation.
Your must first select the witnesses most favorable to your
side of the case. These witnesses may be classified as indispensa-
ble, necessary or permissible. Try to limit the number of witnesses
you intend to call, only after preparing all favorable witnesses.
List the ultimate facts you must prove to prevail on liability
and each document or exhibit which is necessary to prove or explain
an ultimate fact. Then match the ultimate fact and exhibits with
the witness who shall give the most credible testimony, as to the
fact at issue. Deterrnjne.which exhibits shall be introduced during

the course of the witness’s testimony and which exhibits shall
amplify the testimony. Follow the same procedure for proof of
Auto accident - X - speeding ran Red Light
striking Green in Crosswalk. -
Eyewitness Red x ran Red Light Diagram
Eyewitness Blue x - speeding Photo of Inter-
Police Officer Green in Crosswalk Photo of Lights
Photographer Res Gestae
Plaintiff Green Guilty Plea to
Doctor Treatment — Personal X—rays
Hospital Librarian Non-Economic Loss Hospital Record
Nurse Economic Loss Doctor Bills
Economist Cast
Boss or fellow employee Medical Chart
Plaintiff Green Wage Statements
Tax Return
Discount Table
Union Benefits
Employment Records
Only the plaintiff and the physician in the problem illustrated
are indispensable. The second eyewitness, photographer, hospital
librarian, boss, nurse are permissible. The remainder are necessary.
In order to determine in which category a witness falls, you
must be acutely aware of the Rules of Evidence and the Ultimate Facts
of your case. By examining the above charts you can appreciate that
all ultimate facts are capable of direct testimony from the plaintiff
and his physician. (They are indispensable). Similarly, all criti-
cal exhibits are subject to introduction through careful predicates
directed to either the plaintiff or his doctor.
The better eyewitness is NECESSARY. But you need only the
better of the two, not both.

Having prepared all witnesses—select those which are indis-
pensable and necessary. Never use a necessary witness whose testi-
mony is repetitive of the testimony of an indispensable_non_party
witness or repetitive of that of a better witness. Avoid necessary
witnesses whose testimony may help prove one element of the case, but
casts doubt on other important facts.
The eyewitness who testifies x ran a red light . . . but
also is uncertain that the pedestrian_p1ajntjff_.. 5 in
the crosswalk at impact.
Use permissible witnesses who are forensically sound, interesting and
offer very small opportunity to harm your case.
The plaintiff’s boss who volunteers to testify to the
plaintiff’s pre-accjdent work conduct and disposition.
Provide each witness with an outline of the questions you in-
tend to ask. Attempt a chronological development of facts or se-
quences. Review the witness’s prior statement and deposition. Avoid
preparing one witness in the presence of another witness. Ask your
witnesses not to compare notes. Acquaint the witness with courtroom
procedure. Familiarize the witn—ss with the order of trial; the
necessity for his testimony; and the projected order of call. Put
?ach witness through a mock cross examination. The following is an
‘illustrative list of general directions and guidelines given to a
(1) Be honest.
(2) Read prior statements and depositions and point out
any discrepancies.
(3) Estimates of time, distance, speed, etc. are permissible.
(A better answer is . . . ‘The car was going 30 to 35
m.p.h.’ (than); “The car was going 35 m.p.h.”)
(4) On direct, explain answers fully.
(5) Answer the question asked—stick to the point.
(6) Independent eyewitness, investigative officers and
the like should not favor either side—”tell it like
it is,” but without “partiality.”
(7) Lawyers don’t always ask a clear question. A witness
should tell a lawyer when he doesn’t understand the
question asked.
(8) Look at the jury when testifying.
(9) Respond directly to all questions by the judge and
listen closely to the judge’s instruction .
(10) Be courteous at all times (Yes, sir . . . No, sir)
(11) Don’t exa9gerate or embellish, it is generally better
to understate.
(12) Be fixm in your testimony. Don’t equivocate. The law
only requires your best recollection of what happened.
Be emphatic in what you recall.

(13) Don’t nod or shake your head, you must speak your
answers clearly in a normal or slightly louder than
normal voice.
(14) Don’t memorize your testimony.
(15) Don’t chew gum or slump in the chair. The jury may
believe you are being rude.
(16) Wear your Sunday best or your official uniform.
(17) Do not wear heavy or expensive jewelry. Dress
conservatively. Men may wear a solid color suit,
dress shirt, tie and solid color shoes. Or, men
may wear a work uniform or a leisure suit. Women
may wear tailored suits or skirts and blouses or
work uniforms. Colorful prints should be avoided.
The skirts or dresses may be knee length but no
higher and blouses should be full cut, and bras
should be worn. Avoid heavy makeup.
(18) Be patient while waiting outside the courtroom for
a call to testify. My trial associate shall con-
tinuously check with you while the trial is going on.
(19) With other than me or my associate, do not discuss
the case at lunch, during recess, in the restroom
or anywhere in the Courthouse.
(20) If you recognize a juror or prospective juror as
someone with whom you have been previously ac-
quainted immediately call it to my attention.
It is a good idea to have a list like this typed up and given
to the witness before preparation begins. Review the guidelines
first by emphasizing them in every case and give all witnesses these
same guidelines. Tell the witness that you hope the guidelines
assist in answering some questions the witness has been thinking
about. Later if a problem is encountered with a witness, you can
refer to the guideline that applies in a way which will not hurt
the witness’s feelings.
ORDER OF WITNESSES : Most trial lawyers agree that you should
begin and end your case with the strongest witnesses. This is so
because the first impression and last impression made on the judge
or jury are the strongest. Most of us tend to believe what we have
heard first and last . When selecting the order of testimony, also
try to divide the case into logical areas. In a personal injury
case it will help to try liability first and then damages. Do not
call witnesses out of logical sequence in a jury trial. Try to avoid
out of sequence calls in Bench trials.
TYPES OF QUESTIONS : Direct examination calls for the use of
particular techniques. It is important to be aware of your trial
judge’s tendencies in selecting the techniques to be used. Some
judges will not permit a long narrative answer by a witness and will
require the attorney on direct to “coax” the narrative from the
A FULL OPEN QUESTION : seeks a response which is expansive and

“On Saturday, September 15, 1980, describe anything
unusual that happened?”
A PARTIAL OPEN QUESTION : is more restrictive and directs an
answer to a particular area of inquiry.
“After the light turned red, what did the Blue Ford do?”
A CLOSED NON-LEADING QUESTION : does not suggest an answer
but restricts the response.
“Which side of the Blue Car was closer to you?”
A LEADING QUESTION : suggests an answer and is objectionable
on direct .
“On Saturday, September 15, 1980, you saw the light turn
red for the green car, but the green car didn’t stop, did
Remember on direct that you want the witness to tell the story.
The witness should testify, not the lawyer.
One approach is to ask wide open questions. If the witness
pauses or comes to the end of a line of testimony, then the last
related significant fact is repeated in the next question.
Q. What happened?
A. The light turned green for traffic on Canal St.
The Plymouth on Canal Street went forward on green.
Just then I heard a screech of tires and I saw the
bus run the red light and strike the Plymouth.
Q. After the bus ran the red light and smashed the
Plymouth . . . what happened next?
After full natural sequence of testimony is completed, the ques-
tioner can then direct the witness back to recall specific signif i—
cant details.
Q. Earlier you said you heard a screech of tires—
which vehicle screeched?

Q. How fast was the bus going when it smashed John’s car?
(1) Most direct examination can be categorized by the key
words which are used to frame proper direct questions: A question
directed to a witness should begin with and seek to determine a WHEN,
WHEN did it happen?
WHERE did it happen?
WHY were you there?
WHAT were you doing at the time?
WHO was involved?
HOW did it happen?
(2) Do not ask questions on direct for which you have not pre-
pared the witness.
(3) Following an answer, do not repeat the question.
(4) If there isa known weakness in the case or witness, expose
the weakness on direct. The weakness should be sandwiched by strong
witness testimony as to other facts. The strong—weak—strong formula
should be followed.
(4) Always maintain rapport with your own witness. Even when
angry with a response on direct, maintain an even disposition.
(6) Choose your words very carefully for clarity and impact
“When X crashed into the back of you, what happened?”
Rather than, “After you were rearended , what happened?”
(7) Always end a direct examination on a high note.
(8) Attempt to develop testimony in a logical order (chronolo-
gical order is preferred).
(9) Keep questions short. ( Never use a compound question.)
(10) Use simple language.
“What happened after the crash?”
as compared with “What happened subsequent to the accident?”
(11) Do not bog down in needless detail.
EXAMPLE: (To non—party eyewitness in a rear—end collision)

Q. “Where do you work?
A. “At Jefferson gas station as a mechanic.
Q. “What were you doing on January 15, 1980 at approximately
7:00 P.M.?
A. “Coming home from work.
Q. “How many cars did you repair that day?”
(12) Position yourself so that the witness will have to look in
the direction of the 5ury, in order to look at you.
(13) Don’t ask questions while moving.
If you hand a witness an exhibit, return to your stationary
position at the end of the jury box before speaking. Never ask a
question with your back to the jury.
(14) As you conduct the direct examination, check off on your
outline the ultimate facts and exhibits presented by the witness.
(15) Do not lead, Leading will provoke objections and disrupt
the continuity and rhythm of direct testimony. Answers to leading
questions are not persuasive .
(16) If you have two non—party witnesses in proof of the same
ultimate fact, use the strongest witness first. If the testimony of
this witness remains persuasive throughout direct and cross, do not
call the second witness.
(17) Never question a witness on direct by use of an exhibit
with which he has not been made familiar in preparation.
(18) Do not comment on the answer, following a witness’s
A. The other car was not visible.
Q. You couldn’t see it ?
A. I called police.
Q. Fine , what happened next?
(19) Don’t use one witness to prove more of your case than
should be reasonably expected. In other words don’t stretch the
witness to fill gaps in your theory of the case. Either use other

witnesses or exhibits or develop a new theory.
The purposes of Direct Examination are to accredit testimony
and exhibits, explain circumstances and to persuade as to the ulti-
mate facts.
There are three primary segments to a direct examination.
During the first segment you accredit the witness by addressing ques-
tions to the witness’s background, impartiality, opportunity to ob-
serve and ability to recollect facts.
The second area of questioning sets the stage. The witness
recalls why he was present, describes the location, weather and other
pertinent background details.
In the final stage the witness recounts the proofs of an ulti-
mate fact at issue.
Accredit the witness, set the stage and prove the point.

By Daniel Riesel
Perhaps no trial advocacy subject is so neglected as
that of the art of the direct examination. Voluminous tor e
are published annually dealing with the art of cross—exartinatior
and such other exotic trial skills as opening statements arjd
‘the voir dire- . of veniremen. However, it is the direct exar :r a-
tion that most often comprises the bulk of transcripts. More-
over, an enforcement case will often rise or fall on the e5 i1ty
of the EPA lawyer to put his case in chief into evidence
through clear, coherent and un:nterrupted direàt testimony.
(a) Preparation for Direct Testimony
Direct testimony of an unprepared fact witness is
often dirvicult t lTr it7 because of the prohibition aga nSt
leading questions. On the other hand, careful witness pre-
paration will eliminate the need to lead or founder. Because
the novice litigator has the opportunlty to prepare witnesses
and to write out questions, hard pre—trial work can make ever.
the most inexperienced litigator appear to have a profess:ona.
courtroom demeanor. Although one attorney’s practice may not
work for another, I suggest the device of reducing direct
examination to a series of questions and outlines of answers
which are placed in an indexed looseleaf trial notebook. Thus,
the following type of script might be used:

Q. What happened after you gained entry to
the plant?
A. I was accompanied to the plant manager’s
office by a security guard.
Asked to wait in plant manager’s office.
.Waited with security guard in plant
manager’s office for fi-ve minutes.
Q. What occurred at the plant manager’s
A. After five minutes, I was introduced by
a security guard to an individual wearing
a pin striped suit.
Q. Did you identify the individual in the
pin striped suit?
A. Yes.
Q. How were able to identify that individual?
A. I recognized the individual as David Sive,
a person who described himself to me as the
plant manager on previous visits to the plant.
Q. What happened then?
A. The plant manager and I had a conversation.
Q. Who was present during the conversation?
A. The security guard, the plant manager and I.
Q. What did you say to the plant manager, and
what did the plant manager say to you?
A. The plant manager said that he was glad to
talk to the EPA.
That he was very busy but that he had his
staff prepare a report of the samples taken
from the composite sampling chamber.
V —2—

Q. I show you the Government’s Exhibit “14” for
identification and I ask you if you can identify
A. Yes. This is the report that the plant tanager
handed e at the end of our conversation.
Q. What is the basis for your identification?
A. Identifies initials and date of receipt on
cover of-report and on each page.
(b) Organization of Direct Examination
The initial task in constructing the outl ne of the
direct examination is to choose some logical method for organ-
izirig the testimony. In most straightforward cases an attorney
will use a chronological approach — carefully going over each
event in its chronological sequence. Of course, there re
certain cases when the chronological approach will only pr : ..:e
tedium and obfuscation. At any rate, the key to organizing
direct examination should be to hold the trier of facts’ ir. erest
and to leave them with a closing favorable impression.
In complex cases, care should be given to laying :‘ t
the Government’s proof and theories in a trial mernc and perhaps
an opening statement. The complex case can often be pulled
together by a “summary” witness using a chart or graph.
(c) Pitfalls In A Direct Examination
Ci) Legalistic Phraseology — Lawyers often cannot stop

from using legalistic terms. An example of this poor practice
would be:
Did you have an occasion to observe conditions
at the plant?
Why not say:
What did you see at the plant?
(ii) Compound Questions — It is objectionable to ask two or
more questions at one time. Care should be tak n to frame each
question so that it elicits a discreet answer.
Example : Did you receive and examine the bottles
containing sample effluent from the sampling
chamber at the Adament Iron Works?
(iii) Questions That Assume Facts In Evidence — Questions
which attempt to elicit testimony based on facts not in evidence
are objectionable. Thus, where there has been no testimony as to
the identity of the out—of—court declarent:
Q. What did the plant manager say to you?
(iv) Leading Questions — Leading questions are objectionable
unless they are prepatory equestions.
An example of a permissible leading question:
Q. Did you go to the plant on October 7?
An objectionable leading question would be:
Q. Did the plant manager admit you to the plant
on October 7th?
Cv) Foundations — Foundations, if laid properly, will
eliminate leading questions, compounded questions and many other
problems that confront the direct examiner.
vII—L —

A leading trial advocacy commentator notes:
“The trouble with foundation is that lurk
everywhere, waiting for a chance to trip
you up ... nearly everywhere you look in
the law of’ evidence there is something you
have to introduce first before you can prove
what you are really after. In other words, you
can, if like view the whole law of evidence
from the question: What do I have to prove
Prof. James W. McElhaney “Foundations”
Litigation — The Journal of the Section
-. of Litigation, American Bar AssociatiOr.,
Vol. 14, No. 3, Spring’197B, page 143 .
The commentator goes on to note that the most important
foundation is to establish the witnesses’ qualification.
“There is a basic requirement that any exact
witness must be shown to, have firsthand know-
- -. - ledge about the matter about which he is abc t
to testify.” (Ibid).
To this writer, the art of laying the proper founda-
tion for each question is the essence of direct examination and
involves the logical organization of direct testimony. Sucn
methodical laying of foundations should prevent one’s adversary
from interrupting the direct examination with such inspired
objections as “if he knows, your honor” or “no four dation”
Needless to say, foundations are more readily seen in suc
matters as the introduction of exhibits.
(vi) Repeated Questions — One of’ the most frequently held
(and perhaps annoying) is that of “asked and answered, your
honor.” Generally, trial judges will not allow examinerS to
aks the same question twice. This pitfall can also be avoided

by the careful organization of the direct examination. How-
ever, even the most carefully laid direct examination may oft
go awry. In that case, the examiner might use the ploy of
dropping the subject and moving off to another subject and t er
come back to the fumbled question by coud irg the question in
different language. Indeed, the script for direct examination
may often include two or three approaches to the same question
when the examiner expects that he may .have trouble in the
sae area.
v ii —6-

The delicate art
of cross-examination
Perry Mason’s approach is for television,
nbt live courtrooms
by Allan Browne
0 ne of a trial lawyer’s greatest
thrills is conducting a cross-
examination that demolishes the
adversary’s case. His feeling is
probably akin to the ecstasy of a
baseball player who hits the win-
ning home run in the ninth inning
of the final game of the World Series.
But cross-examination is risky
business, and a lawyer who reck-
lessly cross-examines every un-
friendly witness is more likely to
strike out than to hit a home run.
Fortunately, cross-examination
is not a mystical art Incapable of
definition. A few simple questions
can help you decide whether it is
wise to cross-examine a particular
witness. Then, if you go ahead,
there are guidelines you can follow
to become a more effective cross-
Although many lawyers believe
they should cross-examine every
witness, this is definitely not ad-
visable. Cases are rarely won during
cross-examination, and if you can-
not hammer home your case
through your own witnesses’ direct
testimony, you are probably wise
to settle. Far from helping your case,
an ill-considered cross-examina-
tion can actually drive the pro-
verbial nail into yourclient’s coffin.
So ask yourself the following ques-
tions before you decide to undertake
a cross-examination:
Has the witness hurt my case? If
the witness has testified only on
peripheral matters or in a manner
adverse to your client on an im-
material point, you should con-
sider saying, “No questions, your
honor,” when it is your turn to
Can I use a friendly witness to
rebut? if the witness has testified
adversely to your case In a material
way, but you have a friendly wit-
ness who can refute that testimony,
consider using only the friendly
witness to rebut the adversary’s
point. The ultimate game-plan in
any trial is to control the eviden-
fiery proceedings; eath time you
venture into unfriendly waters by
cross-examining an adverse wit-
ness, you run the risk of r&in-
Allan Browne is head of the litigation
department and a partner In the Los
Angeles firm of Ervin, Cohen 5 essup.
He specializes In the field of .impetith’e
business practices.
C!Iifornie LawyeT

quishing control. Building your
case with the testimony of a friend-
ly witness is less risky and often
more effective than cross-examin-
ing an unfriendly one.
Did the witness impress the Judge
or Jwy’ If the WItneSS’S manner was
not particularly convincing—IL for
example, he appeared unsure, eva-
sive or fumbling—the witness may
have been his own worst enemy. In
such a case you don’t need to make
the witness appear less credible. In
fact, a strenuous, hard-hitting ex-
amination of a weak witness can
backfire by evoking sympathy from
the judge and jury.
Will cross-examination empha-
size damaging testimony? Many
bright and articulate witnesses are
able to subtly volunteer non-respon-
sive information during cross-ex-
animation that might cause the
judge or jury to reconsider previous
testimony in a more positive light.
If there is a substantial likelthood
that a witness will be able to em-
phasize damaging evidence, do not
Will cross-examination create
sympathy for the witness? You may
invite disaster by rigorously cross-
examining a child, widow, or per-
son of less-than-average intelli-
gence. For example, making a per-
son of below-average intelligence
look foolish when he is perceived
to be basically honest Is a monu-
mental blunder.
Will cross-examination open
new areas for re-direct? A danger
in any cross-examination Is that the
witness may recall new Information
that he did not disclose during
direct examination. On re-direct,
your opponent may be able to use
this Information to his advantage.
Your answers to these questions
will rarely all point in the same
direction. Some of your responses
will suggest to you that cross-ex-
amination would be a mistake;
others may encourage you to pro-
ceed. Unfortunately, during the
heat of trial you don’t have much
time to reflect on the matter. It Is
never a good Idea to blindly follow
e general rule, but keep In mind
that If you have reasonable doubts
about the outcome, you are prob-
ably better off foregoing cross-
Conducting cross-examination
If you decide that cross-exami-
nation is essential, the following
guidelines may Improve your ef-
Use plain words and short ques-
tions. Do not speak legalese and do
not ask questions that are lengthy,
complicated and convoluted. Your
aim Is to communicate with the
witness and to convince the judge
and jury, not to Impress listeners
with your vocabulary.
if you have reasonable
doubts about the
outcome, you are
better off foregoing
Be selective. it is not necessary
to cover every point counsel
touched on during direct examina-
tion. Suppose, for example, the
witness testified on 12 different
subjects, 10 of which are devasta-
ting to your case. You would be
foolhardy to deal with each of those
10 matters. Instead, select a few
topics on which the witness Is vul-
nerable and attack those areas mer-
cilessly. If you can discredit a wit-
ness’s testimony on two or three
major points, it is relatively easy
during closing argument to con-
vince the jury that the remainder
of the witness’s testimony is un-
Control the witness’s responses.
The purpose of cross-examination
is to elicit responses from the wit-
ness that serve your purposes. Your
questions, therefore, should gen-
erally begin with, “Is It not a
fact.. ?“ or “Isn’t It true.. ?“ or
“Wouldn’t you agree with me
that.. ?“ or “Isn’t it a fair statement
that.. ?“.Askillfulaoss-examlner
can be Identified by the length of
the witness’s answers. If the re-
sponses are along the lines of “yes:’
“no,” “I don’t remember,” the
ross-examiner has framed his
questions effectively
Never ask “why.” Nine times out
of 10 the witness will hit that pitch
into the left field bleachers. The
only exception to this rule is when
you have previously asked a “why”
question during a deposition and
have tied down the witness to
a response that is directly un-
Avoid repetition of direct testi-
mony. Frame your questions care-
fully so the witness has no oppor-
tunity to reaffirm the vulnerable
aspects of your case. Under no cir-
cumstances should you allow the
witness to repeat damaging direct
Know the answer in advance.
Never ask a question unless you
already know the answer. In other
words, be sure the witness has pre-
viously committed himself to the
answer in depositions, interroga-
tories, correspondence, verified
pleadings or other documents.
Then if the witness gives you an
answer that is materially different
from the one you expected, you
will be able to impeach that testi-
mony by relying on the arsenal of
information you developed before
thai. If you are uncertain of the
witness’s answer because the sub-
ject was not covered before trial,
don’t ask the question.
Listen carefully. Trial lawyers are
often so busy thinking about their
next question that they don’t listen
carefully to the witness’s testimony.
As a result, they miss clues that
suggest important follow-up ques-
tions. Don’t wony if you must pause
after the witness’s answer to frame
the next question in your mind; it
is important to pay attention to each
response. The pause may even work
to yout advantage, since the judge
and jury will have longer to consi-
der the witness’s answer.
Don’t quarrel with the witness.
In every thai there Is at least one
exasperating witness. You are best
advised to adopt an even milder
and more courteous approach than
usual with such a person. Above
all, avoid the temptation to get
angry or caustic; It can only hurt
the case and your credibility as a
Save something for closing ar-
gument. Ides Ily, your case should
Cafliomfa Lawyer

reach a climax at the closet there-
fore, leave your ultimate, argument
for the closing suminafion. It can
be very dramatic to reveal in final
argument the crucial importance
of a fact that appeared to play only
a minor role chiring your cross-ex-
amination. ,W you dwell on a start-
ling bit of’evidence during cross-
examination, you may steal your
own thunder.
Request doily trnnscnpts. When-
ever you expect a witness’s testi-
mony to be crucial to your case,
order a limited daily transcript of
your cross-examination (and even
the direct examination) for use
during your closing argument.
Often, crucial testimony is given
weeks before final argument, and
by that time, you and opposing
counsel may differ in good faith
about what the witness actually
said. You can be sure of the testi-
mony if you have the transcript.
Request a daily transcript well in
advance, then alert the reporter the
day before the witness testifies, so
that arrangements can be made to
have someone else transcribe the
testimony if the regular reporter is
too busy.
Cross-examine sparingly. The
final rule is perhaps the most iinpor-
tant: Too little cross-examination
is often better than too much. If
you have any doubts about asking
a certain question or following
a line of questions, you probably
should not. Don’t give the witness
an opportunity to clarify earlier
testimony. If testimony on direct
examination has been ambiguous
or equivocal, leave it alone during
cross-examination. You can then
point out in your closing argument
that such inconclusive testimony
does not hold up in light of your
own witness’s strong contradictory
These tips on whether and how
to cross-examine are meant only to
guide your thinking. They should
not be slavishly followed. The
greatest trial lawyers, after all, are
those who possess the intuition and
judgment to know when the rules
for examining a witness should not
be followed. 0
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Cmss -Examination:
Using Depositions at ‘hal
b Lansing R. Ptiliner
A corporate director is on the witness stand. He and his
fellow directors voted in favor of making a successful
tender offer for a company that turned out to be worth.
less. They are now defendants in an action by their
shareholders. who assert that the tender offer resulted in
a waste of corporate assets. The witness is trying to show
that his vote to acquire the target company was reason-
able. He has testified that before voting he examined the
target company’s financial statements. The plaintiffs
lawyer is now cross.examining:
Q: Are you testifying today that you saw financial
statements of the target company prior to your
vote on September 4, 1974?
A: Yes.
Q Sir. do you recall your deposition being taken in
this case on March 10. 1975 at my office?
A: Yes.
Q: You were asked certain questions under oath at
that time, were you not?
A: Yes, sir.
Q: You were represented by counsel at that depo-
sition, were you not?
A: Yes.
Q: Now, sir, I am going to read to you beginning at
line 4 on page 38 of your deposition:
Q: The records of the corporation reflect that it
acquired 70 percent of the stock. Do you re-
call if prior to the acquisition of that stock
you received any financial statements of the
target corporation?
A: I personally did not.
Q: Do you recall if any were made available to
A: Not to me.
Q: Did you have any knowledge of the worth,
the financial worth of this company at the
time the Board voted to acquire its stock?
The author isa member of the New York Bar au.d is anoaased with
the New York firm of Skearman & Sterling
‘A: No. I had no knowledge of that.’
Q Now, sir, is this a reflection of what your recol-
lection was as of March 10, 1975?
A: That is correct.
Q: Isn’t it a fact that you did not even look at any of
the financial statements of this company before
you voted approval to acquire its stock?
A: Look, I reviewed all these things. I was asked
questions cold at that time and I, as I have told
you here, I glanced at them. I did not review
them or analyze them.
Plaintiffs’ counsel has destroyed the witness’s credibil-
ity by demonstrating that he said one thing at his depo-
sition and the opposite at trial. Neither statement has
been elicited to prove whether or not the defendant
examined the target company’s financial statements.
The mere fact that of the two statements one must have
been incorrect is sufficient.
A Valuable Aid
Deposition testimony can be a valuable aid to the
cross-examiner at trial, both to impeach the testimony of
a witness and to prove the cross-examiner’s case. Rule
32(a)(1) of the Federal Rules of Civil Procedure permits a
deposition to be used to contradict or impeach the
testimony of a witness. Confronting a witness with an
inconsistent statement contained in a deposition weakens
his credibility in the mind of the jury or judge and high-
lights contradictory statements that would otherwise be
buried in the trial record. It can also raise doubts about
the witness’s testimony on other matters and may upset
him and lead to additional contradictions or admissions.
In some cases, a plaintiff’s witnesses may consist
entirely of parties defendant, each of whom can be
examined—actually cross-examined—as an adverse
witness under Rule 611(c) of the Federal Rules of
Evidence. Suppose some or all of the defendants have
been deposed at least once and that the transcripts con-
tained inconsistent statements and admissions. At trial,
the plaintiff’s lawyer could use deposition testimony both

to impeach the defendants’ testimony and as evidence of
his case-in-chief, it might also develop that material in a
defendant’s deposition could be more favorable to the
plaintiWs case than the contradictory testimony given at
trial. When that occurs, the plaintiff can introduce the
more favorable deposition testimony under Rule 32(a)(2)
of the Federal Rules of Civil Procedure.
Multiple Uses
Also, the deposition testimony of defendant A could be
used to Impeach A’s testimony at trial and also as
substantive evidence against A under Rule 801(d)(1)(A)
c i the Federal Rules of Evidence. in addition, A’s depo-
sition testimony could be used on the cross-examination
of defendants B, C and D to impeach their credibility by
confronting them with statements made by A that con-
tradicted their trial testimony.
Such effective use of depositions at trial depends on
thorough preparation, which must begin before the
pretrial deposition itself. When you are struggling to
learn facts during the early stages of a case, it is easy to
overlook that your questions and his answers may be
read back to a witness in a courtroom before a jury many
years later. Depositions of a party are particularly impor-
tant, since every word a party utters not only may be used
to impeach his trial testimony but also may qualify as an
admission, defined in Rule 802(d)(2) of the Federal
Rules of Evidence as a statement “offered against a party
tas] his own statement, in either his individual or repre-
sentative capacity. - - .“ As defined in this rule, these
statements are not hearsay, and one must not under-
estimate the rule’s importance.
From the outset of discovery, you should consider the
effect on the jury of the presence or lack of a subpoena
for a deposition—the lack perhaps suggesting undue
cooperation by the witness with examining counsel. More
importantly. you should not waive the requirement that
the witness sign his deposition. If he has had an oppor-
tunity to review the transcript to correct errors and has
signed his deposition, he can hardly be heard at trial to
complain that the stenographer misheard his prior
it is important to prepare for the examination of
witness at a deposition as thoroughly and orderly as I
trial. Prepare an outline of the areas about which yoi
examine the witness. Ask clear questions that reç
clear answers. Remember that your questions and the
witness’s answers may become part of a trial record. If
the deposition transcript is confusing. the effect of con-
fronting a witness on cross-examination at trial may be
completely lost on the jury.
Upon learning the witness’s version of the facts, make
sure he commits himself to that position. if the transcript
Is full of equivocation, it cannot help you at trial and may
harm your case. If, in a rambling deposition transcript,
you find a nugget with which to confront the witness at
trial, be sure he has been consistent on the point within
the deposition itself. If not, your opponent will use Rule
106 of the Federal Rules of Evidence to force you to
introduce any part of the deposition that would eliminate
the contradiction you sought to raise.
Decide on Use
You must decide before trial which portions of deposi-
tion testimony to use as evidence for your case-in-chief
and which portions to reserve for cross-examination.
Sometimes an admission made by a party opponent at
his deposition is the only evidence available to establish
an essential element of your case. When this is true, you
must introduce the admission into evidence as part of
your proof. Often, however, you will have other evidence
to establish your case and can reserve some depositioi
material for impeachment on cross-examination.
Creating a system to put your hands instantly on pr
inconsistent statements contained in deposition tt
timony is another essential part of pretrial preparation.
in a case with relatively simple issues and facts, an index
to deposition testimony may be sufficient. In a complex
case you should prepare summaries of the depositions as
well as an index to the testimony. These digests will serve
as valuable pretrial aids and will be useful reference
sources during the trial itself, when you may only have a
lunch break to dig out contradictory testimony. In recent
years, the computer has become a valuable aid in large
cases for indexing deposition testimony and for doc-
ument retrieval. Vendors of computer systems estimate
that the need to store 15,000 to 20.000 pages may be
considered an economic threshold for use of a computer-
based system. Whatever method you prefer, you must
have available at trial the resources to find prior incon-
sistent testimony with a minimum of time and effort.
Few things impress a jury less than having to wait while
trial counsel thumbs through deposition transcripts
looking for testimony, and of course this gives the witness
valuable time to consider his answers and recall his prior
If a witness has been properly prepared for trial, he
will have reviewed the testimony given at any pretrial
deposition. While this reduces the chance of surprising
him with a contradictory statement at trial, it increases
the damage to his credibility if an inconsistent statement
can be used.

If you think you might be able to impeach a witness’s
testimony, you must get him to take a firm position on
the issue at trial. Lead him into an unequivocal position
with no room to explain away his prior inconsistent
testimony. This may require that you postpone the con-
frontation during your cross-examination until you are as
certain as you can be that the witness’s position at trial is
dear to the jury. You should balance the need to pin
down the witness against the risk that an alert witness
might equivocate if he thinks you are trying to commit
him unalterably to a position. Once he is so committed
that he cannot easily change his testimony without
Impairing his credibility, confront him with his prior
Inconsistent statement.
Successful impeachment can be illustrated by the
hypothetical case against the company directors referred
to at the beginning of this article. At issue Is the acqui-
sition (for an allegedly grossly inflated price) of a
company in which one of the defendants had a direct and
Indirect financial interest. At trial, the directors argue
that the acquisition price was reasonable and that there
Lead him into an un-
equivocal position with
no room to explain away
inconsistent statement.
had been full disclosure to the board of the acquiring
company of the director’s interest in the transaction. It is
crucial to the defendant’s case that they obtained full
disclosure. Otherwise, they could ILot avail themselves of
a defense that they exercised due care in making a
business judgment to take over the company. One of the
directors testifies on cross-examination:
Q: Did you know that the X partnership was a
vendor to the corporation with respect to a por-
tion of the shares which were to be purehased
by the corporation?
A: I knew at that time.
Q: Did you also know that your fellow director,
Mr. Y, was an investor and limited partner of X?
A: I was told so.
Q: Now, I am going to call your attention to the de-
position you gave on April 26, 1974 and specific-
ally to line 16 on page 39 and thereafter. Page
39, line 16:
Q: Did you know that one of the parties that
sold a significant portion of the company’s
stock to your corporation was the X partner.
A: No, I did not know that.
Q: Did you know that Mr. Y had a financial
Interest in the X partnership?
‘A: No I did not. I am learning all kinds of in-
teresting things.
Q: Did you know that prior to my telling you
this at this time?
A: No, I did not know that.
Q: To your knowledge, there were no represen-
tations made to you which indicated that
Mr. Y indeed had an interest in the X part-
‘A: No.’
Q. Now, is your testimony today correct under oath
or was your testimony correct in April of 1974?
A: I knew at that time. I had forgotten it.
Q: Why did you give contrary testimony under oath
April 26, 1974?
A: Sir, I gave you the best testimony I could at that
time, and I am doing the best I can today.
Devastating Tool
This exchange illustrates bow prior inconsistent state-
ments taken under oath, with proper preparation and
use, can be a devastating tool in impairing a witness’s
credibility. Sometimes witnesses forget, and sometimes
they lie. Successful impeachment can support either
At an appropriate point, you must impress the jurors
with the solemnity of a deposition. They may be vaguely
aware that it is a written statement of questions and
answers, but not that it was taken under oath, that all
parties had a right to be present, that the deponent’s
counsel had the right to cross-examine or that.the witness
had the opportunity to review and correct the transcript
of his deposition before testif ring at trial. You may not
want to interrupt the flow or dull the impact of cross-
examination to explain these facts to the jury before you
use the witness’s deposition. To avoid this, you may
prefer to impeach the witness first, then inform the jury
of the circumstances surrounding the taking of the
deposition. I prefer to use a series of questions and
answers to avoid an objection that counsel is giving a
lecture to the jury and to establish a pattern of questions
to which the witness must respond by saying yes:
Q: Was your deposition taken in this case on May
12, 1976?
A: Yes.
Q: Were you represented by counsel at that depo-
A: Yes.
Q: Was your testimony given under oath at that
A: Yes.
If the witness has made corrections in his deposition
transcript or has signed it, I might also ask:
Q: Were you given the opportunity to read the tran-
script of your deposition and to make correc-
A: Yes.
Q: Did you read it?
A: Yes.
Q: Did you make any corrections in your testimony?
A: Yes.
Q: Did you sign your deposition before a notary
A: Yes.
- (Please n .m to page 49)

Selecting and Preparing
the Expert Witness
byJohnW Castles 3d
In today’s complex commercial and technical world most
Important civil cases will require expert testimony.
Indeed, much will depend on the extent to which the
court accepts the expert testimony of one party or the
other. You may be a good lawyer, but you are going to
Jose the case if the other side’s experts are better than
yours. Thus, a critically Important part of your direct
case consists of selecting a first-rate expert and preparing
him to testify.
In general, the two functions of the expert are to
provide the court with technical knowledge and informa-
lion in the expert’s special field of study or experience
and to apply his special knowledge to certain objective
facts to derive conclusions important to your client’s
case. Examples of the first are concepts utilized in
measuring the value of a going concern and concepts
developed in medical, accounting or other sciences or
specialized fields. The court then uses the scientific
concept to evaluate the significance of basic facts, that is,
certain of the events out of which the controversy arose.
Examples of the latter are opinion testimony about the
cause of a particular injury or the value of a business.
Ask Other Lawyers
To find potential expert witnesses, talk to lawyers who
have had cases involving expert testimony relating to the
same or similar subject matter. Find out who has done a
really good job. Beware of the professional expert who
devotes most of his time to testifying. He may trip over
some testimony given in an earlier case, or the judge or
jury may regard him as a professional wltness—.sorneone
more interested in earning a living from testifying than
from practicing in his field of expertise. Academia is a
fertile source of persons who may make — expert
witnesses; you should explore the faculty of graduate
schools that are concerned with your field of expertise.
Other sources for identifying possible experts are man-
agement consultants, who have a broad range of contacts
The author isa membe, of the New York Rn ’ and h ‘ sd wok
the New York Cay fi nn of Lord. Day & Lord.
with specialists in many aspects of many different lines of
businesses. There are numerous sources to go to for
recommendations. Try several of them. Get a line on at
least two and preferably three candidates for each expert
you intend to use.
In choosing a witness, you are looking for someone
who will impress the judge or jury on a crucial part of
your case—causation, for example, or valuation. In the
last analysis this comes down to the subjective judgment
of the trier of fact. All of the tangible and intangible
factors that go into impressing a decision maker come
into play. There is no absolute list, but among the
important considerations are:
The extent of the prospective witness’s experience in
real life in making the very judgment he will be called
upon to make in your case. He should earn his living
making these judgments. and he should be a recognized
success in his field. If he is to give an opinion of the value
the stock market will put upon a going enterprise, don’t
consider him unless he regularly is paid to make such
judgments as pan of his responsibilities in real life.
• He should be a recognized leader in his field. The
chairman and chief executive officer of a recognized
investment brokerage firm is better than a vice-presi-
dent; the professor holding a chair at a famous business
or medical school is better than an associate professor.
• He should be able clearly and persuasively to arti..
culate his ideas in simple terms, readily understandable
to the layman.
• He should be able to think quickly and correctly
under hostile questioning. In short, he should possess the
mysterious quality called ‘presence.”
If he is from the academic world don’t use him unless
he has regularly had practical experience rendering pro-
fessional judgments of the sort you are Interested in.
This should not be a problem, for many well-known
professors are very active as consultants in their special-
If your expert has written In your field of interest, be
sure to read every word of his that bears on the issue.

Nothing is worse (and less excusable) than to have your
expert’s opinion impeached by something he has written.
And, of course, for the same reason, you must review all
his prior testimony from other cases.
Al the first interview with your potential expert, you
want the answer to one question: can he help you in this
case 9 Do not immediately sign him up as an expert
witness. If you decide to retain him, do so as a consultant
and possibly as a witness. At your first interview it is
more often than not impossible to determine whether the
expert will be able to help at all. He will have to examine
the documents you will supply and after studying them
must sit down with you and review the matter In detail
before reaching a definite decision on whether he can help
(and if so, whether as a consultant only or also as a
witness). Only after discussion in depth can a decision be
As Few As Possible
As a general rule, use as few experts as possible to
establish a particular point. Quality is more important
than quantity. Employing numerous experts on the same
point creates the risk of contradiction or disagreement.
Once the expert has been chosen, the first step in
preparing him is to snake every effort to demolish the
theory, analysis or conclusion he says he is prepared to
testify to. Never accept his conclusion merely because he
Is an expert and must therefore know what he is talking
about. Remember, his views are going to be challenged
and will be weighed by a judge or jury. Those views must
square with common sense. It is up to you to çsake sure
your experts’ views indeed square with common sense,
for if they don’t you will be in serious trouble at the trial.
Put yourself in your opponent’s place and explore with
your expert every conceivable way he may be attacked on
the substance of his testimony. I am not referring to
preparing him for cross-examination but to analyzing the
substance of his position. Once this is done, and you are
satisfied his position is solid, you can prepare him to
Adoption of the Federal Rules of Evidence has greatly
simplified the formal requirements for the direct
examination of expert witnesses. A witness must still be
qualified. But once this is done (a simple process con-
sisting of a description of his professional career with
special emphasis on his experience with the particular
matter he will present) the Federal Rules of Evidence
permit him to state his conclusion and give his reasons.
The complex hypothetical question is no longer required.
More important, it is no longer necessary for the expert’s
opinion to be predicated upon facts that are or will be in
evidence. Federal Rule 703 provides:
The facts or data In the particular case upon
which an expert bases an opinion or inference may
be those perceived by or made known to him at or
before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.
This permits the expert great latitude with respect to
factors upon which his opinion is based. All he need do is
specify what they are. The burden is on the cross-
examiner to demonstrate either their nonexistence or
irrelevance (Federal Rule 705).
Simple Format
The format for the expert’s direct examination is very
simple. After he is qualified, he is asked, “Were you
asked to review and evaluate (certain data] to determine
(the ultimate question on which he is to give the opin-
ion]?” “Did you do so?” “What is your conclusion?”
“State the basis for your conclusion.” Obviously it is the
answer to the last question that determines the cogency
of the testimony. And it is this which you must have
reviewed very carefully before your expert witness takes
the stand—not only for substance (this you have done
earlier in your discussions) but for form. If the answer is
long (it is a rare expert who can deliver the answer in one
clear piece). it should be punctuated by questions that
move the witness from one segment to another. Clarity is
better served and the jury’s attention best retained by
short and concise responses to properly focused ques-
• Witness and examiner must understand each other.
Nothing disrupts a direct examination more than a
failure of communication between examiner and witness.
The surest way to avoid this is to prepare with the witness
the questions and answers In writing. The witness can
then review them carefully and know exactly what is
expected of him.
The final step in preparing the witness is to anticipate
the cross-examination he will face. You have already
analyzed the substance of possible attacks on his posi-
tion. Now you must anticipate the form of the questions
and the sequence in which they will be put on cross-
eximination by the other side. This is no simple task, but
If done properly, It will ensure the success of your expert.
His confidence and assurance will grow as be hears on
cIQss-examination the very questions you have put to him
beforehand. Effective refutation of cross-examination
goes a long way to ensure the acceptance of the witness’s

Pn senting Direct Testimony
by Michael S. Home
When one contemplates presenting a direct case, at least
in a trial, the spoken word normally comes to mind—
questions and answers, a dialogue through which a
lawyer and his witnesses develop a coherent, effective
statement of facts that seeks to persuade a judge or jury.
But for many years various administrative agencies. such
as the Federal Communications Commission, the
Federal Power Commission, and the Civil Aeronautics
Board, have encouraged presiding officers to require
direct testimony to be submitted in writing. Some courts
have also required lawyers to present written direct
testimony in certain non-jury cases.
Greater use of written direct testimony is receiving
encouragement from various groups, and the practice
may become even more widespread. Thus, litigators may
wish to be familiar with its mechanics, the factors that
have to be weighed in deciding whether to use written
direct, and some of the practical considerations to keep
in mind when using the procedure. While the goal of
presenting a coherent, persuasive statement of the facts
does not change when written direct testimony is used,
the means by which one seeks to achieve it are somewhat
Early Deadline
Typically, the decision to use written direct testimony
is made at a prehearing or pretrial conference. A dead-
line usually well in advance of the trial or hearing is
established for the parties to exchange the written direct
testimony of their witnesses and to provide copies to the
judge or presiding officer. The testimony may be in the
form of a narrative statement, the transcript of a depo-
sition taken in the proceeding, or perhaps some other
writing of the witness such as a specially prepared
question-and-answer presentation.
After the exchange but well before the hearing date,
the parties usuallly must advise each other of the names
The author is a pa, the W.zhii gro finu COeÔIJION £
of the witnesses desired for cross-examination. If an
opposing party does not want to cross-examine your
witness, his written direct testimony may go directly into
evidence (subject to any legal objections raised) without
his personally appearing in the hearing. Of course, if you
were advised that your witness was to be made available
for cross-examination and he failed to appear, his tes-
timony would be excluded.
Waste of Time
In some cases the sponsoring withers or someone in his
absence may be permitted or required to read the written
statement into the record verbatim, like depositions and
other written matter in a jury case. However, particularly
in administrative proceedings, this is usually regarded as
a waste of time. Some presiding officers will not permit
even a brief oral question-and-answer summary of the
written statement. When the testimony is not going to be
read into the transcript, it is usually marked for iden-
tification as an exhibit of the party presenting the
witness, and direct oral examination often consists of
little more than asking the witness whether the statement
was prepared by him or under his direction, whether he
has any corrections, and whether as corrected the state-
ment is true and correct. After a quite brief oral exam-
ination along these lines, the written testimony is offered
into evidence and opposing counsel takes over. For
developing objections to the admissibility of all or por-
tions of the written testimony, opposing counsel fre-
quently may be permitted to conduct a voir dire exam-
ination of the witness. In responding to objections to
your witness’s testimony, you may be given an oppor-
tunity to examine him orally to show that the objection
should be overruled. If objections are sustained to por-
tions of the written testimony, the transcript will Identify
(or at least every effort should be made to see that it
Identifies) the excluded portions by suitable references to
page and line numbers. Once objections to admissibility
have been resolved, and assuming objections to the tes-
tisnony in its entirety are overruled, cross-examination

takes place followed by an opportunity for oral redirect.
With respect to the use of written direct in the future,
the Administrative Conference of the United States has
recommended that agencies, in conjunction with
adopting other prehearing discovery procedures, require
not only that the names of witnesses be exchanged but
also that narrative summaries of their expected testi-
mony be provided in advance of the bearing. 1 C.F.R.
§ 305.70.4 (1976). It ii only a small further step for an
agency to require that the full direct testimony of wit-
nesses , at least on certain aspects of the case, be sub-
mitted in advance of the hearing. As part of a number of
steps designed to streamline and expedite its
adjudicatory hearings, the FCC took such a step last
year. In rules that went into effectluly 1, 1976, presiding
officers are given discretionary authority to require that
all or part of a party’s direct case be presented in writing
hi certain types of FCC proceedings; in some other types
the FCC’s rules expressly “encourage” the parties to
agree on the use of written direct. 47 C.F.R. 1.248(d).
This and related reform measures adopted by the FCC
last year grew out of an extensive study in which corn-
inittees of both the Federal Communications Bar Asso-
ciation and the ABA participated.
Ultimate Tool
Proponents of the greater use of written direct hope
that it will eliminate surprise, facilitate settlement and
narrow the areas of actual dispute. In one sense written
direct could be viewed as the ultimate discovery tool,
because it pins down a party’s direct case and, at least
where oral supplementation is restricted, virtually
eliminates opportunities for unfair surprise.
From the litigator’s point of view, the use of written
direct has both advantages and disadvantages that must
be weighed carefully in the context of a particular case.
There are at least five potential advantages to be con-
1. “The question and answer method is a strained
device for obtaining information in an orderly fashion.”
McElhaney, An Inn’r4uctzon To Direct Examination,
LITIGATION, Vol. 2, No. 2, p. 37 (1976). When the
information is technical, and especially if it is also
voluminous, the question and answer method can be
strained to the breaking point. In an FCC proceeding,
for example, it is silly to have e radio engineer recite from
memory his calculations of the estimated populations
and areas likely to gain or lose broadcast service with a
proposed change in broadcast facilities. Similarly,
asking a series of questions of an economist who
responds with a series of snippets of an intricate study he
has made of the probable economic consequences of a
proposed change in broadcast facilities is a highly
artificial method of presenting his study. Written direct
avoids these problems. Further, when the witness has a
large vc4ume of data to provide, he will almost certainly
need notes before him while testifying, and these in turn
will have to be made available to counsel conducting
cross-examination. It simply makes more sense to have
the witness submit his entire testimony in writing rather
than through the charade of recalling it orally.
2. Written direct helps avoid the problem ofa witness’s
forgetting a critical point while on the stand or, even
worse, saying the opposite of what you expected him to
say. If you have experienced the unpleasant surprise of
bearing a witness say “black” after having repeatedly
told you “white” in prehearing interviews, you will
readily appreciate this advantage.
3. Generally, written direct allows the introduction
into evidence of more background Information and
supporting data than you can put in through an oral
presentation. The reason for this is basically a matter of
human nature. Few presiding officers will see a com-
pelling need to strike extensive but marginally relevant
backup information if it is skillfully woven into a written
document. But an attempt to present the same material
orally is likely to offend even the most tolerant presiding
officer, who will balk at the prospect of consuming hours
of bearing time.
4. If handled properly, written direct can save sub-
stantial amounts of actual hearing time. In some cases it
may also reduce the time needed to prepare a witness,
since he will not have to recall facts from memory.
Another consideration (given the fees charged by
reporters) is that written direct that Is not read into the
record can reduce the size and cost of the transcript.
5. Finally, there are clear advantages in having your
opponent’s direct case presented in writing since your
preparation for objections to admissibility and for cross-
examination can be focused very precisely. Some lines of
cross-examination, which you might prudently prepare
on a contingent basis when an adversary’s direct case is
going to be presented orally, will not be needed at all
with the foreknowledge of written direct. Your experts
can review the written testimony of your adversary’s
experts in great detail and relative leisure, so that they
can be of considerably more use to you in preparing for
cross-examination. These advantages are especially
significant when discovery has not provided a picture of
what your adversary’s witnesses will say.
Developed for Experts
Taken together, these factors suggest that written
direct is most likely to be advantageous when expert
testimony and voluminous statistical material are
Involved, and probably the practice of using written
direct in agency hearings was developed specifically with
expert testimony in mind. Indeed, the Federal Power
Commission rules outlining the procedures for employ -
Written direct is most
useful for expert
testimony and voluminous
statistical material.
lag written direct could be read as restricting Its use to
the testimony of experts . 18 C.F.R. § 1.22(a),
1.26(c)(2)(iii) (1976). However, the use of written direct in
FPC and other agency cases has not been confined to
expert testimony, and there does not seem to be any corn-

palling reason for restricting its use in that fashion.
The most obvious and serious disadvantage of written
direct is the reduced impact the direct case is likely to
have on the presiding officer. Even the most conscien-
tious presiding officer may find it impossible carefully to
read written direct testimony before the hearing. Having
the witness read his testimony aloud, even where per-
mitted, does not eliminate this problem. since a lengthy
monologue of “canned” testimony is far less likely to
hold the presiding officer’s attention than the give and
take of a live question-and-answer presentation. More-
over, reading aloud often Is not permitted, so that often
the presiding officer actually sees the witness largely in
the context of cross-examination. Thus, except in the
happy event that the cross-examination is completely
Ineffective, the live bnpression your witness makes is one
of making concessions that detract from your case or
struggling with mixed effectiveness to avoid making
Certifies the Record
In some administrative agency cases the presiding
officer merely certifies the record to another body for
decision without preparing an initial or recommended
decision. While in such cases the problem of reduced
impact is obviously not as serious, it is not completely
eliminated, because the decision-maker reading the cold
record may well discount “canned” testimony. thinking
A disadvantage is that
written direct locks
witnesses into fixed
positions early.
that the attorney played a major role in its preparation.
Conversely, he may give undue weight to the live cross-
examination. In which the witness is clearly standing on
his own to a much greater extent. Thus, even when the
presiding officer plays little or no hand in preparing a
decision, the problem of reduced impact cannot be
Another disadvantage of written direct is that it neces-
sarily locks you and your witness into precise positions
long before the hearing occurs. When written direct has
to be exchanged a month or more before a hearing, this
is not a small problem. because the amount of time you
and your witnesses have to prepare the direct presenta-
tion is sharply reduced. To some extent this problem can
be ameliorated by presenting oral additions or correc-
dons when the witness identifies his written statement.
But this tactic has limited value: there is at least a pos-
sibility that opposing counsel will not seek cross-exam-
ination, in which case it is cumbersome to make addi-
tions or corrections. Also, seine presiding officers take a
very dim view of substantial additions and corrections.
especially those that would introduce an element of
surprise into the proceeding. And even where they are
permitted, additions and corrections unless made with
some very strong justification tend to detract from the
overall credibility of the direct presentation by suggest-
ing vacillation and carelessness.
Since all parties are typically required to use written
direct for certain issues when used at all, some of th.
advantages you might obtain when presenting your direct
case through written testimony will also be obtained by
opposing patties. Their witnesses will not forget or
stumble over a critical point. They will get additional
marginally relevant material into the record, and per-
haps rely upon it later for purposes other than those used
to defend its admission. And, of course, your opponents
will have more time to prepare cross-examination of your
witness and objections to his testimony and will be able
to review at leisure all of his prior statements and
writings for apparent Inconsistencies that might go
undetected If your witness had not provided his direct
testimony in writing.
Once the decision has been made to utilize written
direct, the question becomes how best to develop the
testimony. One solution is to submit the transcript of an
existing deposition; when you cannot expect complete
cooperation from the witness, this may indeed be the
only way of submitting your direct case in writing, and
you may find yourself taking depositions primarily to use
them as your witness’s direct testimony.
Tallormade Statement
But if the full cooperation of the witness can be
expected. you will probably decide that a tailor-made
narrative statement is the best approach. If there have
been depositions of such a witness, they are likely to have
been taken at the initiative of opposing counsel and will
not constitute the most effective organization of tF
testimony from your point of view. Also, the deposition
may not contain points that you now wish to develop
through that witness but chose to ignore in the depo-
sition. (In some cases, agency practice may require you
to submit “canned” questions and answers, but this
captures none of the spontaneity of a live presentation
and simply results in a much longer document than a
simple narrative statement.)
Any conscientious litigator must expect to be deeply
involved in the drafting of written direct testimony.
Many highly qualified experts hold their laurels and
credentials in spite of the way they use the English
language. Innumerable persons who are articulate
speakers and competent to handle the subject matter of
their testimony turn out to be no more adept at handling
pen and paper than most lawyers would be at handling
the controls of a spaceship. Ambiguities. redundancies,
vague phrases. overgeneralizations. and Incomplete
sentences that go unnoticed in an oral presentation and
produce no more than a slight blush when read in a
transcript, very seriously impair the effectiveness of
written testimony and simply must be avoided. There is
something of a vicious circle at work here: because the
typical presiding officer will presume that an attorney
played a significant role In drafting prepared testimony.
the unedited work product of a layman generally will no’
suffice and the lawyer therefore must put his oar in. Bi

clearly you are far less damned if you do (and do well)
than if you don’t.
This is not to say that narrative testimony calls for
anything like the writsng skills the lawyer typically
employs in preparing a pleading. For one thing, what is
justifiably disparaged as “lawyer-like” language can
seriously impair the credibility of written direct
testimony. Argumentative characterizations, excessive
adjectives and the like must be eschewed. Even if
opposing counsel is unsuccessful in having such language
excluded from the direct testimony and (often he will be
successful), he is likely to persuade the presiding officer
that the testimony contains too much of the lawyer and
too little of the witness. For another thing, It is the
witness, not the lawyer, who is ultimately responsible as
the “author” of the testimony, no matter how extensive
the ghost-wrUur’s contribution. If the witness Is not
comfortable with the testimony the chances of his doing a
decent job on cross-examination are slim at best. When a
sponsoring witness on cross-examination, for example,
states that he cannot explain, does not understand, or
(worst of all) disagrees with a particular passage in “his”
direct testimony, the testimony will not necessarily be
excluded, but its effectiveness may be so seriously im-
paired that the benefits of having the statement in the
record are nominal.
Should Be Factual
Written narrative testimony should resemble in
content if not in form the information the witness would
provide in a question-and-answer oral presentation. It
should, in short, be factual and devoid of objectionable
fCatures such as repetition and unqualified opinion. Yet,
since it is written, one would like to include opening and
closing summaries, clear transitions, and other
“guideposts” which on oral examination are provided by
the attorney’s questions. To minimize objections, it is
desirable to limit guideposts, but omitting them entirely
is not essential or even sound. Particularly if you have
reason to hope that the presiding officer will read the
testimony carefully before the hearing, you will want it in
a form that will enhance his understanding. Therefore,
when faced with a choice of providing an intelligent
guidepost to the reader and inviting what would not be a
particularly serious objection even if sustained, most
attorneys would favor use of the guidepost. Also, some
guideposts can be included in your transmittal letter with
the witness’s written testimony, although such letters do
not become part of the record and long or argumentative
letters probably are counterproductive.
All of this means that a first draft of the testimony
should be completed far in advance of the exchange date,
whether prepared by the witness or by the attorney on the
basis of interviews of and information obtained from the
witness. If the witness prepares the draft, the attorney
will almost invariably wish to make organizational and
other changes to maximize persuasiveness and minimize
vulnerability to objections. If the attorney prepares the
first draft, or after he substantially revises the witness’s
draft, the witness must review it in depth with the
When the written testimony nears final form, an initial
preparation of the witness for cross-examination, as
though it were to occur the next day, is very desirable.
This step may suggest further changes in the draft testi-
mony to facilitate the witness’s performance on cross-
examination. If he is obviously vulnerable on a particular
point, it may be better to concede that point in the
written testimony rather than allow opposing counsel to
score a seemingly dramatic triumph on cross-examina-
tion. You must always keep In mind that your witness
probably will be seen by the presiding officer only while
It is essential to
anticipate and minimize
an adverse impact
of cross-examination.
under cross-examination. This makes it essential to take
all possible precautions to anticipate and minimize an
adverse impact of cross-examination.
Finally, a word is in order about cross-examination of
an opposing witness who has given written direct tes-
timony. As noted earlier, advance exchange of written
direct should facilitate the development of cross-exam-
ination. This is one advantage which has to be seized. A
presiding officer who is tolerant of halting cross-exam-
ination following lengthy question-and-answer direct
examination is far less likely to be tolerant of such
ineptness when you have had a substantial advance
opportunity to review the direct testimony verbatim. In
short, the cross-examination following written direct,
like any good cross-examination, should be direct and to
the point.
Similarly, you will have had considerable time to
consider objections to the direct testimony and some
opportunity to do research and prepare memoranda in
support of objections. As with cross-examination, a
presiding officer will not tolerate poorly conceived objec-
tions when written direct is used.
Clear Advantages
There are clear advantages to the use of written direct,
particularly when the testimony is likely to be lengthy or
to involve technical, scientific, or statistical data. But
equally clearly there are numerous situations in which
written direct is inappropriate. These include instances
in which witnesses are likely to contradict each other on
matters of personal observation and other situations in
which the witness’s demeanor is important in the deci-
sion-making process. Like the more traditional forms of
discovery and other hearing and prehearing procedures.
written direct testimony is a tool for handling litigation.
and if used in appropriate circumstances and efficiently.
It can expedite the legitimate ends of all litigation. But
like other tools, it can cause considerable mischief if it is
misapplied or misused.

Expert Witness Cross-Examination — Checklist
1. Illustrate a gap or deficiency in the qualifications of the expert.
2. Determine the expert’s capacity to understand the subject under exami-
3. Inquire of the expert how many times he has appeared as a paid State’s
4. termine how much the expert has been paid for his appearance.
5. Inquire as to how much time the expert has spent in examining, treating
or observing, as the case may be.
6. Where It is known that either no comparisons or only a few have been
made, inquire of the expert whether his opinion was checked or cor-
roborated with those of any other experts in the field.
7. Inquire of the expert the reasons for his opinion and the method(s) by
which he reached such an opinion; interrogate on the details of the
8. Pose hypothetical facts varied from the actual case to test the expert’s
knowledge of fairness.
9. It is a valid subject of inquiry to determine if the expert has made
errors of opinion in similar cases.
10. Counsel should point out’ where possible, variations between objective
testirrcny or findings and subjective testimony or findings.

Expert Testimony
The expert witness is in effect your co-counsel for the case. Planning for the direct examination
of the expert witness is not much different than planning for the direct examination of any other
witness (for further discussion refer to Chapter 17—Direct Examination). Because of the expert’s
qualifications and skills, the expert can testify in the form of an opinion or otherwise as to
scientific, technical or other specialized knowledge which would help the jury to understand the
evidence or to determine a fact in issue.
The primary purposes for the expert’s testimony is to give an opinierr
1. As to causation of the plaintiff’s injury or in the defendant’s case, the lack of causation;
2. As to the consequences of the plaintiff’s injury or in the defendant’s case the lack of
serious or non-significant consequences.
If you are going to have some choice in the selection of the expert for a case, you should
carefully consider and be informed about potential experts before making your final selection.
Obviously, in choosing your expert, your main concerns will be:
1. How the expert will appear;
2. Whether the expert can present complex technical testimony in simple lay language
for the jury to understand; and
3. The expert’s availability and willingness to appear for the trial.
Try to avoid selecting an expert who may appear aloof or be condescending in manner.
Prepare the expert’s testimony well in advance of trial. Consider what effect, if any, Fed. R. Civ.
P. 26 (b) (4) or your state’s counterpart rule will have in the trial preparation of your expert.
Discovery of facts known and opinions held by experts developed in anticipation for the trial may
be obtained as provided by Fed. R. Civ. P. 26 (b) (4). By all means, avoid hasty last minute
preparations and conferences with your expert. The various reports and records you receive
should provide you with the basic framework by which you can plan the expert’s testimony. In
your pretrial conference with the expert, explain how the expert’s testimony will be relevant to
help the jury resolve the factual issues favorable to your case. It is imperative that the expert
testify clearly with simple, understandable language. If the expert does use technical language in
his or her testimony, have the expert explain to the jury the meaning of such technical words.
During the trial, establish the witness as an expert by laying the foundation of the expert’s
qualifications and special skills. Some normal areas for inquiry in this process are: educational
background, licensing/professional boards, professional/staff/organization memberships,
teaching positions and writings.
Many jurisdictions no longer require that the expert be asked the opinion in the form o a
hypothetical question, but rather to allow the trial lawyer to directly ask the expert’s opinion
based on reasonable certainty (verify the rule in your jurisdiction). Finally, don’t forget to ask the
expert for the underlying reason(s) for the opinion rendered.

Expert Testimony Planning Worksheet
1. Will I be able to exercise my choice(s) in the selection of an expert for this case? ____________________________________________
2. What type(s) of experts dol need to testify for my case? _________________________________________________________________
3. Who are some of the potential experts I might choose from? (You might want to ask other lawyers or daims adjusters who have had cases
similar to yours).
Communication With Jury
Experience As Witness
Communication With Jury
Experience As Witness
Other cases expert has testified in ________________________________________________________________________________
Do you want to order the experts transcript from those other cases? _________________________________________________
4. Name of expert best suited for the needs of my case. (You might add alternate choice(s).
5. What will be the fee arrangement for the expert to testify? Has the fee arrangement been conduded?
6 Does the expert need any physical evidence to examine? Specify the evidence needed: ____________________________________
7 Will the physical evidence be turned over to you voluntarily or will you have to make a Rule 34 Demand or Motion to obtain the
physical evidence?
Will the physical evidence be returned to you by the expert? If so. when? ______________________________________________
8 When will I see the expert to discuss the case and the experts testimony?
Date Time Location _______________________________________
Date - Time Location ___________________________________
9. Have you received the expert(s) report(s)? If not, when can you anticipate receiving them? Will you send a copy of the expert(s) report(s)
to opposing counsel? (Consider what effect, if any. Fed. R. C lv. P.26(b) (4) or your state’s counterpart rule will have in your trial preparation
for the expert.) Has this been done?
30 Copyrigt.’ 1980 The Toi I Trial System

Expert Witness Qualification — Checklist
A. Educational Background
1. Enumerate formal education, Including degrees, program of Study or
courses taken.
2. Names of Instructors/professors where prominent or well-known in
particular field.
3. Attendance at or participation in special training courses, seminars,
conventions or Study groups.
B. Teaching Experience (where applicable)
1. Name(s) of university or school where expert employed.
2. Nunter of years employed at various 1nSt1tut1on .
3. Academic rank at the school/university.
4. Enumerate what subjects were taught by expert.
5. point out who were students of the expert (i.e., doctor who ..iaches
other doctors].
C. Professional or Practical Experience
1. Student/apprentice of any prominent expert in particular field.
‘. Hunter of years of active experience in the area.
3. Identify nature of active/practical experience (nunter of autops es,
fingerprint comparisons, firearms identifications, etc.].
4. Point out any associations as advisor or expert with other governmental
agencies, police departments, crime laboratories, etc.
D. Authorship, Publications or Speaking Engagements
1. Enumerate any lectures given by expert, when, where and to what group(s).
2. Where any books have been written by expert, identify subject, pub-
lisher and number of copies (printings] where appropriate; especially
if used as textbook of authority for other students.

3. Where expert contributes to professional Journals, Identify journal,
readership and circulation and how often [ regular columnist].
E. Honors or Recognition for Services
1. Enumerate any state or federal honors, If any.
2. Recognition of expert by civic groups, peer groups or professional
organizations should be pointed out.
F. Membership in Professional Organization
1. Local, state and national organization membership of expert may be
impressive, especially when expert Is serving on con nittees of such

Rule 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert,
his testimony in the form of opinions or inferences
is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness
and (b) helpful to a clear understanding of his testi-
mony or the determination of a fact in issue.
Rule 702. Testimony by Experts
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a wit-
ness qualified as an expert by knowledge, skill, ex-
perience, training, or education may testify thereto
in the form of an opinion or otherwise.
Rule 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon
which an expert bases an opinion or inference may be
those perceived by or made known to him at or before
the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions
or inferences upon the subject, the facts or data
need not be admissible in evidence.
Rule 704. Opinion on Ultimate Issue
Testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier
of fact.
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion
The expert may testify in terms of opinion or in-
ference and give his reasons therefor without prior
disclosure of the underlying facts or data, unless
the court requires otherwise. The expert may in any
event be required to disclose the underlying facts or
data on cross-examination.

By Daniel Riesel
(a) General Problems
Actions brought by EPA will undoubtedly involve
significant testimony by experts. The limited discovery of
experts set forth in the Federal ules of Civil Procedure and
the liberal rules for expert testimony set forth in Article VII
of the Federal Rules of Evidence present special problems fQr
the enforcement litigator.
Rule 26(b)( I) Fed.R.Civ.P. severely limits the
discovery of experts as a matter of right to interrogatories.
Provisions are provided for further discovery only
upon application to the court. See Rule 26(b)( )(A)(ii) and
26(b)( l)(B).
On the other hand, Rule 705 of the Federal Rules of
Evidence allows an expert to testify “without prior disclosure
of the underlying facts or data....” Accordingly, any consid-
eration of expert’s testimony should initially concentrate on
the absence of normal discovery which is compounded by the
relatively new rules of evidence which allow experts to testify
as to their opinion without previously giving the foundation
for such opinion.
This problem can be axacerbated where an expert
testifies before a jury as to his opinion and the court sub—
VIII — 1

sequently determines that his opinion should be stricken
because it was not based on a proper foundation that expert’s
adversary may have the problem “unringing the bell.”
(b) Limited Discovery of Experts .
(1 ) Trial Preparation: Experts. Discovery of facts
known and opinions held by experts, otherwise dis-
coverable under the provisions of subdivision (b)(1)
of this rule and acquired or developed in anticipa—
tionof litigation or for trial, may be obtained only
as follows:
(A)(i) A party may through interrogatories
require any other party to identify each person whom
the other party expects to call as an expert witness
at trial, to state the subject matter on which the
expert is expected to testify, and to state the
substance of the facts and opinions to which the
expert is expected to testify and a summary of the
grounds for each opinion. (ii) Upon motion, the
court may order further discovery by other means,
subject to such restrictions as to scope and such
provisions, pursuant to subdivision (b)(L )(C) of this
rule, concerning fees and expenses as the court may
deem appropriate.
(B) A party may discover facts known or opinions
held by an expert who has been retained or specially
employed by another party in anticipation of litiga-
tion or preparation for trial and who is not expected
to be called as a witness at trial, only as provided
in Rule 35(b) or upon a showing of exceptional
circumstances under which it is impracticable for the
party seeking discovery to obtain facts or opinions
on the same subject by other means.
(C) Unless manifest injustice would result,
(i) the court shall require that the party seeking
discovery pay the expert a reasonable fee for time
spent in responding to discovery under subdivisions
(b)(ii)(A)(ii) and (b)( 1)(B) of this rule; and (ii)
with respect to discovery obtained under subdivision
(b)(A )(A)(ii) of this rule the court may require, and
with respect to discovery obtained under subdivision
(b)(Ze)(B) of this rule the court shall require, the
party seeking discovery to pay the other party a fair
portion of the fees and expenses reasonably incurred
by the latter party in obtaining facts and opinions
from the expert.

With respect to discovery of an adverse party’s
experts there are basically four categories.
1. Experts a party expects to call at trial.
(A) Discovery by limited interrogatories, Rule
26(b)(J )(A)(i),
(B) Further discovery obtained only by court order,
Rule 26(b)(Ai)(A)(ii),
2. Experts retained or specially employed in anticipa-
tion of litigation or preparation for trial but not
experts to be used at trial..
Discovery only under “exceptional circumstances.”
See, e.g. Pearl Brewing Co. V. Schlitz Brewing Co. ,
15 F.Supp. 1122 (S.D. Tex. 19Th) .
3. Experts consulted in preparation for trial but not
No discovery.
. Experts whose information was not acquired in prepara-
tion for trial. The class, which includes both
regular employees of a party not specifically employed
on the case and also experts who were actors or
viewers of the occurrence that gave rise to suit.
Evidence fully discoverable, 8 Wright & Miller,
Section 2029, pp. 285—287.
As indicated above, Rule 26(b)(14) severely limits the
discovery of expert trial witnesses. Thus, Rule 26(b)(1 )(j)
limits “(d)iscovery of facts and opinions held by experts
otherwise discoverable...” to interrogatories which may “require
any other party to....”
(1) “identify each person whom the other party
expects to call as an expert witness at trial...”
(2) “to state the subject matter in which the expert
is expected to testify...”
(3) “to state the substance of the facts and opin-
ions to which the expert is expected to testify,
...“ and to -

(Li) “a summary of the ground for each opinion.”
The discovery of experts pursuant to subsection
(b)( 4) of Rule 26 provides for a limited discovery as a matter
of right. Subsection (ii) goes on to provide “upon motion the
court may order further discovery by other means subject to
such restriction as to scope and such provisions, pursuant to
subdivision (b)( I)(C) of this rule concerning fees and expenses
as the court may deem appropriate.”
“ [ F]acts.known or opiniona held by an expert .....
who is not expected to be called as a witness at trial...” are
discoverable only “upon a showing of exceptional circumstances
under which it is impracticable for the party seeking discovery
to obtain facts or opinions on the sane subject by other
means.” Rule 26(b)(’)(B), Fed.R.Civ.P.
Paragraph “C” of subdivision (b)(Z ) requires, in
the absence of “manifest injustice,” payment in certain cases
to the expert responding to discovery and in other cases to the
party responding.
The Rule does not prevent discovery of facts furnished
by a party to an expert, or of facts furnished by an expert to
a party. See In re Brown Co. Securities Litigation, 5U F.R.D.
38 4 (E.D. La. 1972). Such facts were discoverable before the
1970 amendment of Rule 26 which added subdivision (b)( ).
For a discussion of the meaning of “a summary of
the grounds for each opinion,” In re Brown Co. Securities
Litigation, supra .
VIII _ i

The meaning of “exceptional circumstances” in 26(b)
(L )(B) is discussed in Kozar V. Chesapeake & Ohio Railway Co. ,
320 F.Supp. 335 (W.D. Mich. 1970);
Discovery of computerized modeling methods is dis-
cussed in Pearl Brewing Co. v. Joseph Schlitz Brewing Co. ,
15 F.Supp. 1122 (S.D. Texas 1976).
(c) Duty To Su’pplemerrt .
The fact that discovery is limited is reflected in
Rule26 (e)(1)(B), Fed.R.Civ.P., in that, that rule requires
that it is an exception to the rule that discovery responses
need not be supplemented. Thus, Rule 26(e)(1)(B) specifically
provides that “a party is under a duty seasonably to supplement
his response with respect to any question directly addressed to
(B) the identity of each person expected to be called as an
expert witness at trial, the subject matter on which he is
expected to testify, and the substance of his testimony.”
Note, that 26(e)(1)(B) may not be co—extensive with
26(b)( )(B). As Rule 26(e) contains the phrase “and the
substance of his testimony” whereas, the earlier subsection
concludes with the phrase “and a summary of the grounds for
each opinion.”
The failure to supplement may result in the inability
to have the previously unidentified expert testify at trial.
ee Cage v. New York Central Railroad , 276 F.Supp. 778
(W.D. Pa.) aff’d . 386 F.2d 998 (3rd Cir. 1967) ( per curiam) See
Weiss v. Chrysler Motors Corp. , 515 F.2d i4i49 (2d Cir. 1975),

new trial ordered because defendant’s failure via interroga—
tories to disclose the theory its expert would rely upon
prevented plaintiff from presenting expert testimony on her
direct case.
The teaching pertaining to discovery of an adverse
witness by oral deposition are genera11y applicable to the
discovery of experts. Presumably, Rule 26(b)(U(i) interro—
gatories will be routinely served and that discovery will not
normally include discovery of adversary’s expert opinions, or
opposed to facts known to experts.
In a deposition of an expert, the examiner must make
a determination whether he will pursue the adversary’s expert
to obtain concessions and hopefully damaging admissions as
opposed to further uncovering the facts and methodology upon
which he bases his opinion will depend on the considerations
inherent in discovery strategy.
With those caveats, this discussion is applicable
to depositions of experts taken either by the consent of the
parties, or as ordered by the court pursuant to 26(b)( )(B)(ii)
(trial experts) or upon a showing of “exceptional circum-
stances under which it is impracticable for the party seeking
discovery to obtain facts or opinions on the same subject
by other means” — for adversary’s non—trial experts. Rule
26(b)(’l)(B), Fed.R.Civ.P.

(a) Rule 702
An expert is a person who may give his testimony in
the “form of an opinion ” where he is qualified by “knowledge,
skill, experience, training or education” if “scientific,
technical, or other specialized knowledqe will assist the trier
of fact to understand the evidence or to determine a fact in
issue. See Rule 702, testimony by experts.
(b) The Advisory Committee’s Note to Rule 702 :
Whether the situation is a proper one for the
use of expert testimony is to be determined on the
basis of assisting the trier.
“There is no more certain test for determining
when experts may be used than the common sense
inquiry whether the untrained layman would be quali-
fied to determine intelligently and to the best
possible degree the particular issue without enlight-
enment from those having a specialized understanding
of the subject involved in the dispute.” Ladd,
Expert Testimony, 5 Vand. L. Rev. Zfl8 (1952).
When opinions are excluded, it is because they are
unhelpful and therefor superfluous and a waste of
time. 7 Wigmore S1918.
The rule is broadly phrased. The fields of
knowledge which may be drawn upon are not limited
merely to the “scientific” and “technical” but extend
to all “specialized” knowledge. Similarly, the
expert is viewed, not in a narrow sense, but as a
person qualified by “knowledge, skill, experience,
training, or education.” Thus within the scope of
the rule are not only experts in the strictest sense
of the word, e.g., physicians, physicists, and
architects, but also the large group sometimes called
“skilled” witnesses, such as bankers or landowners
testifying to land values.
(c) Examples of An Expert .
Scientists (PhD or less), engineers, meteorologists,
and other professionals who have academic training in areas of
v”— 7

expertise are easily qualified as experts. However, one must
remember that general expertise not a broad discipline may not
qualify an expert to testify with respect to particular and
specialized areas of that discipline.
- The Advisors Notes make it clear that not only may
the academically trained tradiitional expert, such as doctors,
scientists and engineers testify by way of opinion, but also
where witnesses have acquired specialized knowledge throughout
practical application they may be qualified experts.
“Practical experience may be the basis of qualifica-
tion as well as academic training.” Grain Dealers v.
Farmers, etc. , 377 F.2d 672, 679 ClOth Cir. 1967);
“A person may become qualified as an expert by
practical experience and home study. Professional
education is not a prerequisite.” Santana Marine
Service, Inc. v. McHale , 316 F.2d 1 7, 1J48 (5th Cir.
“The expert need not have experience with the speci-
fic subject that he is testifying on.” Thus, pro-
fessors of engineering were properly permitted to
express opinions about “defects in design of truck
and exhaust system even though they had no actual or
practical experience in products manufacture.”
Jardner v. General Motors Corp. , 507 F.2d 525 (10th
Cir. 197k).
In Jardner , the court stated “where an expert had the
education or background to permit him to analyze a given set of
circumstances, he can through reading, calculations, and
reasoning process from known scientific plans make himself very
much an expert in the particular product even though he has not
had actual practical experience in its manufacture.”
A military pilot could testify in matter regarding
commercial craft in which he had no experience as lack of
v”— 8

experience only held to weight of testimony and not its admis-
sibility. Eastern Airlines, Inc. v. American Cynamid , 321 F.2d
683, 691 (5th Cir. 1963). The foregoing should demonstrate
that EPA employees and contractors Scan be qualified as experts
through preparation and careful development of their credentials.
(d) Recent Examples and Problems .
An “ illumination expert ” allowed to testify from
reconstruction of accident that defendant should have seen the
deceased. Esler v. Safeway Stores , 585 F.2d 903 (8th Cir.
1978). Broker, allowed to testify on value of corporate stock
warrants, Klein v. Tabotchnick , 1459 F.Supp. 707 (S.D.N.Y. 1978).
The most difficult qualification is that of a lay
witness such as a construction superintendent. However, see
Crass v. Tennessee Valley Authority , 1 160 F.Supp. 9111, 9145 (E.D.
Tenn. 1978).
Government experience, if handled properly, may be
an excellent basis for qualifying a witness as an expert.
However, bias from employment is a factor going to credibility.
Sims v. Mack Trucks , 1159 F.Supp. 1198 (D.C. Pa. 1978).
Must be able to meet two basic standards.
(1) Must qualify as an expert in area in which
he is to testify.
Thus, the area of expertise of an electrical engineer
may not extend to an expertise as to the cost of installing
certain pollution control devices , unless that engineer has

qualifications that go beyond his basic engineering degree,
such as actual study and experience in installing such devices.
See Sims V. Mack Trucks, supra . Where expert was quali-
fied as an expert in use of comment but court believed issues
revolved around Cement Self—Transit mix trucks.
(2) Must be qualified to appear .
Experts may render written reports solely for the use
of lawyers, or they may have to testify before a judge or jury.
The qualifications for a person b ing able to explain hist ries
may differ widely from those who can only articulate their
opinions in writing or in the confines of a private conference.
(1) Does the witness have the ability to explain tech
findings in a clear and comprehensive manner.
(2) Ability to have to think on his feet.
(3) Does he deal in facts and not theories.
(U Is he a practitioner or professional witness.
(5) Both public and private sector experience.
(6) Familiar with literature in area.
(7) Published (in area — danger if out of area).
(8) Local or national expert.
(a) The expert must speak english .
The expert must reduce his technical knowledge to
understandable english.
VII I 10

The expert must undertstand that he is testifying for
the benefit of lay triers of fact.
The expert must not exhibit a disdain for laymen or
the adversary’s expert witness or the defendant’s attorney.
The expert should be encouraged to develop convincing
illustrations of his theories. Thus, the expert witness might
describe the amount of waste material emitting from a plant
during a single day “as filling the courtroom.”
(b) Joint Pretrial Preparation .
Attorney and expert must do pretrial preparation as
a joint venture. The expert and the attorney should work
together to understand the subject matter and its relationship
to the legal issues in question. This joint work should
include an early joint commitment and encompass discovery
efforts as well as the preparation for direct and cross exam-
ination of the defendant’s witness.
Of course, at an early stage, the attorney should
go over the expert’s
(i) field notes, tests and similar data;
(ii) prior drafts of reports and the final report;
(iii) calculations;
(iv) assumptions; and
(v) prior testimony and publications.
Cc) Literature .
The expert and the attorney should familiarize
themselves with the literature pertaining to the subject matter
that will be at issue during the trial.
VIII_ 1 1

The Agency represents that it will do literature
searches for the enforcement branch. Commercial services are
also available.
A handy checklist for expert preparation has been
developed by one commentator:
Thus, we see exemplified in the Hearst case
certain fundamental principles in the science (or
art) of preparing an expert to take the stand:
1. Be sure the expert is completely objective
and truly impartial, rather than serving as
a surrogate advocate.
2. Be sure the expert avoids inserting himself
into the case, as by communicating with the
adverse party, his counsel, or his expert
or other witnesses.
3. Be sure the expert avoids any references to
the personalities of litigants or of
. The fee of the expert should be no more
than commensurate with the time and effort
expended in the particular case, the
difficulty of the case, and the expert’s
professional charges.
5. The expert should simply answer the ques-
tions put clearly and firmly, and not
volunteer any extraneous matter (such as
“You’ll stop at nothing...”).
6. The attorney calling the witness should
carefully review the records of the witness
prior professional association and engage-
ments, and seek to learn his peers’ evalua-
tion of the competence of the witness.
7. The witness’ prior experience as an expert
witness should be explored and the number
and types of the litigations should be
accurately ascertained, and his prior
opinion testimony scrutinized.
VIII —12

8. He should be cautioned to avoid any public
comment, above all to the press, radio, TV
or other publicity media.
9. Any and all books or articles written by
the witness, or even for him, or under
his name by free—lance writers, or others,
should be carefully reviewed for inconsis-
tencies with the witness’ proposed testi-
mony at the future trial.
10. The witness should not be privy to coun-
sel’s trial strategies, such as jury
selection, lest he be regarded as more of
an advocate than an impartial expert
11. Counsel calling the witness should as-
certain whether any derogatory materials
exist about the witness, so counsel can
refrain from “opening the door” to such
hearsay matters of opinion and speculation
that would otherwise probably be excluded
by the trial court.
12. Counsel might do well to ascertain all
other names which the witness has used or
has been known by, or under which he has
13. The lawyer might warn the prospective
witness that his entire past life, and
especially all his earlier professional
career, may be subjected to intense,
outside investigation, and in—court in-
terrogation, so that he should reveal to
the attorney calling him any earlier
associations or experiences that might be
invoked in an effort to discredit him on
the stand.
1 . The witness should be reminded of Harry
Truman’s oft—quoted remark, “If you can’t
stand the heat, stay out of the kitchen.”
The witness—stand is no place for the
faint—hearted, however brilliant they may
be, and however valid their opinions on the
subject at hand.
15. The witness who chooses to run the gauntlet
of’ possible severe cross—examination should
VII I —13

be counseled to keep his cool. While
exhibiting reasonable resiliency, he should
be encouraged to stick by the opinions he
has developed as a result of years of
professional training and experience and
which he has stated under oath in answer to
the attorney qualifying him as a true
expert whose expressions of opinion were
entitled to be received by the court.”
Kraft, Using Experts in Civil Cases , Practicing Law Institute (1977)
pp. 32—3g.
(a) Facts and Evidence are Facts or Data Reasonably
Relied On.
The basic tenet of expert testimony is that the
expert’s opinion must be based upon facts that fall into one or
both of two categories: (i) Facts in evidence, (ii) Facts not
in evidence but reasonably relied on by experts. Traditionally
an expert could only base his opinion on facts admissible in
evidence, that is, facts introduced into evidence prior or
subsequent to the expert’s testimony. The second category long
recognized by certain courts as an exception to the “facts in
evidence rule” can be described as those “facts or data of a
type reasonably relied upon by experts in the particular field
in forming opinions and inferences upon the subject.” Rule
.7 , Fed.R.Evid. embodies this exception and it codifies the
more liberal cases that have held that an expert’s opinion
can be based on such hearsay facts or data as are “reasonably
relied upon by experts.” That is facts or data that are not
introdu ed into evidence, but are nevertheless a reliable basis
for the expert’s opinion.

Despite the liberalization of the facts in evidence
rule, any preparation of an expert must involve a careful
analysis of whether his opinion is based on facts that will be
placed in evience or of facts that are not placed in evidence,
but are of such a trustworthy character that they can be
characterized as “facts or data reasonably relied upon...”
within the meaning of Rule 703.
(b) New Rule Does Not Lessen the Need To Analyze
Basis For Expert’s Testimony.
Although the expert may .eimply be qualified and .hen
give his opinion, that opinion is subject to being stricken or
on the othfr hand, be given little or no weight by the trial
court if it appears that critical assumptions were not based
upon facts in evidence or on reliable hearsay facts. Accord-
ingly, the new rules present many opportunities and problems to
the trial lawyer. Initially, preparation must include a
determination of which part, if any, of the expert’s opinion
will be based on facts in evidence, and which part, if any,
will be based on hearsay facts and data. The problems associ-
ated with placing facts in evidence are treated elsewhere. - The
problem associated with hearsay facts are treated below.
(c) Reasonably Relied On Exception .
The reasonably relied on exception in Rule 703
clearly provides that facts or data contained in standard
references sources may be used by an expert in forming his
opinion. However, the rule goes beyond that and allows the
expert to rely on tests and opinions that are not in evidence,
VI I 1... 15

if such tests and Opinions are reasonably relied in forming an
opinion by experts in the field. Thus, the real issue may be
not whether the tact, data, test or opinion has been admitted
in evidence, but how important to the proponent case is the
underlying tact, data, test or opinion. If such tact is
critical to the case and there can be an issue raised as to Its
accuracy the enforcement attorney should, if possible, place it
in evidence instead of having the expert rely upon it as
material “reasonably relied upon by experts.”
The final arbitrator of what should be admitted in
evidence and what need not be admitted in evidence is the trial
judge. Thus, the proponent of such “facts or data” may have to
prove by learned treatise or otherwise that the hearsay “facts
or data” are of a type that the expert can rely on for his
(d) The Exception To The Facts And Evidence
Rule is an Important “Codification. ”
The Advisory Committee’s Notes to Rule 703 suggests
that the more permissive cases have been codified in the
exception to the Admissible in Evidence Rule.
Indeed, it is thought that the Advisory Committee’s
Notes provides the most dramatic statement for the so—called
liberal or permissive view on admitting such hearsay facts or
Thus the Advisory Committee’s Notes to Rule 703
initially analyze three possible sources for the facts or data
upon which expert opinions are based. “The first is the
VIII —16

firsthand observation of the witness, with opinions based
thereon traditionally allowed.” The Committee gives the
example of a treating physician. The Committee then observes
that the traditional hypothetical question or having the expert
witness listen to factual testimony prior to rendering his
opinion is the second traditional method.
The Committee then indicated “(T]he third source
contemplated by the rule consists of presentation of data to
the expert outside of court and other than by his own peroep-
tion.” The Committee Notes that “ [ i]n this respect the rule is
designed to broaden the basis for expert opinions beyond that
current in many jurisdictions and to bring the judicial prac-
tice into line with the practice of the experts themselves when
not in court. Thus a physician in his own practice bases his
diagnosis on information from numerous sources and of consider-
able variety, including statements by patients and relatives,
reports and opinion from nurses, technicians and other doctors,
hospital records, and x—rays.”
The Committee’s explanation .of this more liberal
or broadening comment is “EM)ost of them are admissible in
evidence, but only with the expenditure of substantial time
in producing and examining various authenticating witnesses.
The physician makes life—and—death decisions in reliance upon
them. His validation, expertly performed and subject to
cross—examination ought to suffice for judicial purposes.”
Finally, the Committee justifies its enlargement with the
v” — 17

following explanation:
“If it be feared that enlargement of per-
missible data may tend to break down the rules of
exclusion unduly, notice should be taken that the
rule requires taht the facts or data ‘be of a type
reasonably relied upon by experts in the particular
field.’ The language would not warrant admitting in
evidence the opinion of an ‘accidentologist’ as to
the point of impact in an automobile collision based
on statements of bystanders, since this requirement
is not satisfied..”
(e) ‘ Problems of Admissibility .
The regulation of evidence is within the discretion
of the trial court. Accordingly, the trial judge will make a
determination as to the admissibility of the “facts or data
reasonably relied upon.” The trial court may also strike
expert opinions if substantial to the opinion testimony he
determines that it was based upon facts and data not reasonably
relied upon.
Thus, the leading commentator has observed that
before experts will be able to testify as to hearsay,
“ET)he court will have to find pursuant to Rule
10i4(a) that the particular underlying data is of
a kind that is reasonably relied upon by experts in
the particular field in reaching conclusions. If
there is a serious issue the trial judge will examine
the expert outside the presence of the jury to
determine whether these conditions are met. The
proponent of the expert may wish to introduce text-
books in the field or other evidence indicating that
experts in the field in question customarily rely
upon the material in question in performing their
work. Since Rule 703 is concerned with the “trust-
worthiness of the resulting opinion, the judge should
not allow the opinion if the expert can show that fl
customarily relies upon such material or that it is
relied upon only in preparing for litigation . He
must establish that he as well as others would act
upon the information for purposes other than testify—

ing in a lawsuit.” Weinstein’s Evidence , Volume 3
Examples of such “facts or data” are: testimony
about the result of test drills for Bauxite although experts
did not participate in tests and test reports were not put in
evidence. United States v. Aluminum Company of America , 35
F.Supp. 820 (S.D.N.Y. 19i40); statistical models and surveys, In
re Sugar Industry Antitrust Litigation , 73 F.R.D. 322 (E.D. Pa.
1956); IRS agents opinion based on audit performed by others,
United States , 572 F.2d 1406 (3rd Cir. 1978) economics expert
able to rely on figures from Bureau of Labor Statistics rather
than obtaining actual figures on expenses of decedent in
.1: I - (:1. .laT,t . i. • r_ ... . I.(:
calculating future damages, Higgens v. Kinnebrew Motors, Inc. ,
5147 F.2d 1223 (5th Cir. 1977); “Facts or data found in the
literature of the profession, even though not themselves
admissible in evidence, properly form a part of the basis for
an expert’s opinion....” Menda v. Ford Motor Co. , 509 F.2d,
213; 222 (7th Cir. 19714).
(a) Traditional Submission of Expert Testimony .
For convenience sake I have divided expert testimony
into seven phases:
(1) Qualification of witness as an expert;
(2) Proffer of witness as an expert;
(3) Opponent’s voir dire of expert;
(14) Fact testimony of expert;
VII I_19

(5) Opinion testimony
(a) new form of testimony
(b) hypothetical questions
(6) Cross examination,
(a) preparation for expected cross,
(b) preparation and conduct of cross.
(7) Rehabilitation.
(b) New Form of Testimony .
Once a witness has qualified as an expert, either
by his testimony as to his qyalification or by stipulation of
the parties and agreement of the court, the witness may simply
be asked to give his opinion on a subject without any factual
predicate as Rule 705 specifically provides:
The expert may testify in terms of opinion or
inference and give his reasons therefor without
prior disclosure of the underlying facts or data,
unless the court requires otherwise. The expert
may in any event be required to disclose the under-
lying facts or data on cross—examination.
This means that the expert may be simply asked:
Q. Professor, please describe the conditions
existing at X!Z plant on the date of your
vi sit.
(a) Offers to stipulate . When a witness is highly
qualified, the opposing party may offer to stipulate the
witnesses’ qualifications. This “concession” should be re—
sisted where qualifications are impressive.
(b) Qualifying question . The witness may be asked the
following series of questions to establish his expertise:
v”— 20

(1) What is you.r profession?
(2) What does that profession involve? (The expert
should reply in a sentence or two.)
(3) Do you specialize within the profession?
( ) And what does that specialty involve? (A very
brief description.)
(5) How are you employed?
(6) With respect to your formal education, would
you state what colleges and universities you
attended,.if any, and what degrees you may have
(7) Were those degrees in any specialized area, and
if so, please describe those fields or areas?
(8) Are you licensed as a ... in this State?
(9) Are you licensed by any other State?
(10) How long have you been licensed?
(11) Have you been in practice all that time?
(12) Are you also certified as a specialist in
the field of ...?
(13) And how long have you been so certified?
(1i4) What does certification of that sort involve?
(15) What positions have you held since the comple-
tion of your formal education, and the number of
years in each?
(16) How long have you held your present position?
(17) What are the duties and functions of your
present position?
(18) Now, professor, you said that for 5 years you
were at XYZ Institute. Could you tell us what
you did there and what professional experience
you had?
(19) You indicated that you were on active military
duty during the years 1950—1952. Did your
military duties involve any responsibilities in
theareaof. . . .
vIII_ 21

(20) In the course of your professional duties, have
you had occasion to conduct tests involving the
detection or presence of toxics in bodies of
moving water?
(21) How many Such tests would you say you have
(22) And have you also done any teaching?
(23) Please describe those teaching responsibilities.
(2 4) Have you published any written works in the
field of toxocology?
(25) Have any of these works appeared in learned
or professional journals?
(26) Would you state the title of some of those
works, please?
(27) Do you have an up—to—date and accurate list
of your publications?
(28) Are you a member of any professional associa-
tions, and do you hold any special positions in
those associations?
(29) Have you received any pri2es and awards in the
(30) I know you are modest but please describe a few
of those awards?
(31) Professor, have you ever previously testified as
an expert witness in an administrative or
judicial proceeding?
(32) On how many occasions?
(33) Professor, have you performed consulting duties
in the area of . . . for any Governmental agency?
(3i1) Please describe your duties with the EPA.
(35) In the course of those duties, are you called
upon to analyze . . . 7
May be done by offer:
“We believe that the witness has qualified
as an expert.”
VIII_ 22

“We ask the Court to accept professor “X”
as a qualified expert in the field of Sanitary
After the witness is offered, the opposing party may
request permission to conduct a voir dire in this context is a
cross examination limited to the witnesses qualifications.
The expert witness may testify to facts perceived by
the witness. A logical place for such fact testimony is prior
to the witnesses’ opinion testimony. Thus, an engineer may be
able to testify with respect to the conditions and status of
equipment that’ observed at a defendant’s plant. Similarly,
an engineer may be able to testify as to whether admissions
made by the defendant’s agent in the course of his investigation.
(a) New Method Of Testimony .
Rule 705 Fed.R.Evid. codifies some of the prior
trends in the presentation of expert testimony. Thus, Rule 705
allows the Court to permit an expert to take the stand and
merely give his testimony in the form of an opinion or merely a
description of certain conditions or phenomenon. The expert
may also give an explanation of certain scientific or theories
as opposed to rendering the classic expert’s opinion.
The expert may testify without first giving the
factual predicate for his testimony. This not only eliminates
the requirement of a hypothetical question but also permits the
witness to be placed on the stand and after qualifying as an
VIII —23

expert simply give his •opinion and thereafter explain the basis
of that opinion.
However, the qualified expert may now simply give his
opinion and allow the adverse party to elicit the basis of that
opinion on cross—examination. The Advisory Committee’s notes
comments on this most drastic revision of the rules of evidence:
“It the objection is made that leaving it
to the cross—examiner to bring out the supporting
data is essentially unfair, the answer is that he is
under no compulsion to bring out any facts or data
except those unt vorable to the opinion. The answer
assumes that the cross— xaminer has the advance.
knowledge which isessential for effective cross—
examination. This advance knowledge has been af-
forded, though imperfectly, by the traditional
foundation requirement. Rule 26(b)( 1 4) of the Rules
of Civil Procedure, as revised, provides for sub-
stantial discovery in this area, obviating in large
measure the obstacles which have been raised in some
instances to discovery of findings, underlying data,
and even the identity of the experts. Friedenthal,
Discovery and Use of an Adverse Party’s Expert
Information, 114 Stan.L... Rev. 1455 (1962).
These safeguards are reinforced by the dis-
cretionary power of the judge to require preliminary
disclosure in any event.”
(b) Utilization of Hypothetical Question .
The Advisory’s Committee’s Notes of Rule 705 notes
that “ [ T)he hypothetical question has been the target of a
great deal of criticism as encouraging partisan bias, affording
an opportunity for summing up in the middle of the case, and
as complex and time consuming.” On the other hand, the hypo-
thetical question provides that the proponent of the testimony
with a desirable form of illustrating to the judge and jury the
facts that the expert is relying upon. Moreover, the court may
simply direct the proponent to use the hypothetical form of
v !”— 2 1 4

The form of hypothetical question normally is:
Q. Doctor, I ask you to assume the following set of
facts to be true and correct? (List facts)
Q. Assuming those facts to be true and correct, can
you express an opinion with reasonable (scien-
tific) certainty as an expert whether (state the
A. Yes. -
Q. What is your opinion?
A. (Opinion is given)
Q. Please tell us what. ybur opinion is based oh?
A. (Expert explains how he reached his opinion).
It is often impressive to have the facts of the
hypothetical question written out, marked for identification
and distributed to court and counsel at the time the question
is posed. After the expert finishes giving his explanation for
his opinions, the following series of questions may be helpful:
Q. We have just asked you to assume certain facts
and to give the court your opinion based upon
those facts. When I recited those facts, was
that the first time that they have been brought
to your attention?
A. No, it was not.
Q. Would you tell us when those facts were pre-
viously brought to your attention?
A. Several months’ ago we discussed these facts
and subsequently you gave a statement of the
- same set of facts in writing and asked me to
assume that they were true and to study them and
formulate an opinion based on them.
Q. I show you Government’s Exhibit “A” for iden-
tification. Do you recognize that document?
A. Ido.
- vIII_ 25

Q. Would you tell us what it is?
A. That is the statement of facts that yot gave
me several weeks’ ago which I used during my
earlier testimony.
Q. What did you do when I first gave you the
A. I studied it carefully. I considered the
facts. I did certain calculations, and I
formulated an opinion on the basis of those
Q. Was that the opinion that you gave in court
A. Yes, it was.
(c) Procedure Under New Rule .
Under the new procedure apparently favored under the
Federal Rules of Evidence, the expert, after qualification, may
simply be asked to give his opinion and then explain the basis
for that opinion. This form of testimony involves a great deal
of preparation of the expert so that the expert’s explanation
for his opinion is organized and logical.
Cd) Use of Expert’s Report .
Experts often prepare detailed reports which can be
very useful in explaining their testimony to court and jury.
Of course, there is a great danger that such reports may be
discoverable by the other side and may at any rate be used as a
basis for cross—examination.
The procedure for using a report at trial is to have
at least five copies available: One copy to be marked as an
Exhibit, one copy for the judge, one copy for the adversary,
one for the expert and one for the proponent of the testimony.

The procedure is to distribute the copies and ask the
witness to identify the exhibit. The witness should be asked
if he is the author of the exhibit and should reply that he is.
Thereafter, counsel may direct the witness’ attention to pages
or paragraphs in the exhibit in the hopes that it may prove
useful in organizing his examination. This procedure may be
helpful if they are matters such as charts, graphs, numerical
equations, collection of data and tabulations upon which the
witness bases his reasoning. Thereafter, the report, if fully
authenticated, should be offered in evidence. When a jury is
present the proponent of the testimony may desire the use of
enlargements of the charts or graphs in the report.
The lawyer and expert should thoroughly review the
strengths as well as the weaknesses of the witnesses’ testi-
mony. Any supposed weaknesses that might become apparent to
the adversary should be dealt with in a forthright manner by
the witness. An initial decision should be made whether to go
over that material embodying the weakness on the witnesses’
direct case thus defusing the cross—examination.
The witness should also be instructed in these
various techniques that the adversary will use in cross—exam-
ination. Finally, the witness should be subjected to a mock
cross—examination, and if there is an opportunity chow him
the courtroom and ask to take the witness stand and rehearse
his direct and cross—examination.
v u’— 27 —

(a) Witness Orientation .
The expert witness should understand that the cross—
examination is not the same as peer review but is an adver-
sarial proceeding which is being judged by lay triers of fact.
Accordingly, the witness should be prepared to disregard
certain scientific approaches and deal with examiner in a
courteous manner, but at the same time utilize a practical and
common sense approaches to the examination.
(a) Analysis of Approach .
The basic problem with most cross—examiners is that
they often lack a concept of where they want to go or what they
want to accomplish when examining an expert witness on cross-
examination. Initial decisions should be made as to the
approach and what is intended to be accomplished by the cross-
examination. Thus, an initial analysis may mandate Ci) that no
questions be asked, or (ii) that the examiner concentrate on
getting out the underlying calculations and facts that the
witness has relied upon, and thereafter to discredit the
expert’s testimony by the testimony of the cross—examiner’s
witnesses in rebuttal or on his case in chief. A third ap-
proach (iii) is to discredit the witness on his own cross—
examination. The third approach, of course, is most difficult
and requires the most preparation and art.
(b) Reiteration of Direct Case .
The most common mistake of cross—examiners is to

reenforce the witness’s direct testimony by going over and thus
reinforcing the direct testimony. The cross—examiner’s own
expert should have been present during the direct testimony and
during the pretrial discovery proceedings to ascertain the
method of attack and to go over bit by
- bit the adversary’s calculations and assumptions. This should
be done in a selective manner and the selective process should
be aided by close work between the expert and the lawyer.
(c) Cross—Examination Techniques .
The bromides given to e ery lawyer such as not .to ask
the question unless you know the answer, and to not ask any
questions when in doubt, are of only general application.
Where a witness has seriously hurt your case and there is no
way to rectify the situation by utilization of your own wit-
nesses, some cross—examination must be mounted. The examiner
can use some or all of the following techniques.
(1) Knowledge and Experience .
If the expert’s qualifications are exceptionally
good, •the cross—examiner should attempt to stipulate that the
witness is qualified and should not cross—examine on qualifi-
cations. However, where the proffered expert witness may not
have the requisite expertise in the particular area, he may be
examined to show that he does not have the requisite background
to give the testimony in question.
(2) Bias .
The expert’s credibility can always be questioned if
v”— 29

you are able to show his bias, that is, an improper interest in
the case. Certain questions can be developed to show that the
expert appears only for industry and always gives the same line
of testimony. Similarly, it can be shown that he is employed
by the particular defendant or that he has an interest in pre-
serving the economic well—being of his employer. Of course,
where the witness has a contingent interest in the outcome of
the case he will be discredited after eliciting that testimony.
It is always proper to ask the expert witness if
he is being paid for his testimony. On the other hand, many
judges will not allow the cross—examiner to ask how much is
being paid. Moreover, it is usually accepted that the expert’s
get paid for their testimony and eliciting that fact alone,
would not impress a judge.
(3) Asking the Neutral Question .
The cross—examiner should develop a technique to
handle a situation where he feels compelled to examine but does
not know the answer to certain questions. That device is known
as “Asking Neutral Questions.” Thus, the examiner should be
prepared to ask questions going to the expert’s preparation and
factual basis in such a manner as not to reinforce the direct
testimony, but will elicit questions that will permit the
examiner to ask further questions which hopefully will be
probative. An example of this process may be seen where a
Corps of Engineer official had testified that the construction
of certain sewage facilities on a bank of a stream would

impede the Corps flood control project because the Corps then
would be unable to release waters from a darn upstream from the
proposed sewage control project because the water relased would
rise to a point where it would flood out the sewage plant.
Q. The factors involved in reaching a conclusion
were the width of the stream, the pitch or angle
of the stream bed and the depth of the bed at
any certain point, as well as the amount of
water released upstream.
A. That is. right.
Q. And, you have given us the amount of maximum
gallons of water that can be discharged,
pursuant to the Corps flood control program.
A. Yes, I have.
Q. So given the volume of water, you are able to
make certain calculations with respect to the
level of water that would result in danger to
the proposed sewage treatment plant.
A. Yes, I have.
Q. Did you conduct any surveys of the streams’
width, depth and pitch?
A. No, I have not.
Q. Did you examine a survey or maps that would
give you an accurate estimate of the streams’
A. No, I did not, etc.
Q. Would you tell us the width of the stream at
point “X” on the Exhibit “1”?
A. I cannot.
Q. Would you tell us the width of the stream at
point “X”?
A. I cannot, etc.
Q. You did not accurately ascertain the width of
• the stream; isn’t that right?
v” — 31

A. I did not.
Q. What methods did you use to ascertain the pitch
of the stream bed?
A. I did not use any method.
Q. So, you are saying that to make your conclusion,
you must know the width and pitch of the stream
as we]], as the water flow but you do not know
the first two factors involved in your equation.
Is that right?
A. Yes.
Q. Accordingly, you cannot form an opinion with any
scientific basis as to the level of water
because your equation is dependent upon rotigh
guesses that have no relationship to a survey or
a reading from an accurate map.
( 4) Learned Treatise .
A standard method of cross—examination was to show
that the expert’s opinion was contradicted by a learned treatise.
The requirement was, however, that the expert must have relied
on the treatise in forming his opinion or at least acknowledge
that it is authoritative in the field.
The wily expert has always been able to avoid this
type of example by simply denying the relevancy of the expert
testimony. However, Federal Rule 803(18) solves this problem.
“(18) Learned treatises. To the extent called
to the attention of an expert witness upon cross—
examination or relied upon by him in direct examina-
tion, statements contained in published treatises,
periodicals, or pamphlets on a subject of history,
medicine, or other science or art, established as a
reliable authority by the testimony or admission of
the witness or by other expert testimony or by
judicial notice, if admitted, the statements may be
read into evidence but may not be received as exhibits.”
(5) Maintain Control Over The Witness .
It must be remembered that the expert witness may
have more court experience then you have and if you ask the

witness a “why” question, the witness may go on for several
days in reinforcing the reasons for his opinion. A method of
controlling a witness is to get the witness to answer questions
with a yes or no answer. Of course, the question must be
properly framed and considerable effort must be undertaken to
pin the witness down. A time honored method that may appear
heavy handed but can work is:
Q. Professor, my name is Daniel Riesel and I
represent the Government in thiscase. We have
met before in earlier proceedings, haven’t we
A. Yes, that is right. At my deposition.
Q. Professor, I noticed during your direct exam-
ination how you tried to cooperate with the
defendant’s lawyer, Mr. Webster, in your
response to his questions, and I wonder if
you would give me the same cooperation?
A. I will try.
Q. Professor, as a lawyer for the Government and an
officer of this Court, you understand that it is
my job to ask you certain questions about your
testimony, don’t you?
A. Yes, I do.
Q. Professor, I am going to try to ask you ques-
tions that will call for a yes or no answer. Do
you understand?
A. I probably will not be able to answer those
questions with a simple yes or no.
Q. Professor, as I was saying, I am going to try to
ask you questions that call for a yes or no
answer. If you can answer them, answer yes or
no. Would you be willing to do that?
A. Yes.
Q. But if I should ask a question that you cannot
answer yes or no, then please tell me that you
cannot answer the question, and I will try to
VI II_33

rephrase it so that you can. Perhaps, I will go
on to another question. Is that acceptable to
A. Yes, I guess so.
Q. Airight professor, the answers you give will be
either yes or no, or I am sorry Mr. Riesel, I
cannot answer that question. Can we agree on
that procedure?
A. Yes.
Q. Airight professor. Now, can you tell me
Of course, the examiner cannot risk being unfair on
framing his yes and no questions, but it is perfectly proper to
confine the witness to a yes or no. When the witness attempts
to slip out of the bargain, the bargain can be reenforced as
Q. Professor, as I understand it, a standard
procedure in computing the level of water at a
certain point would be to have an accurate
measurement of the width of the stream.
A. Yes.
Q. Nevertheless sir, you did not conduct such a
survey of the stream. Isn’t that right?
A. I did not need to do so.
Q. Professor, do you remember our agreement with
respect to a yes and no answer?
A. Yes I do.
Q. And you agreed that you would answer yes or no,
or I am sorry Mr. Riesel, but I cannot answer
the question yes or no. Isn’t that correct?
A. Yes.
Q. Thank you professor. Now tell us whether you
had an accurate estimate of the width of the
stream at the time you reached your conclusion?
VI I I ..

A. No, I did not.
(6) Lack of Firsthand Knowledge .
Many experts testify without having any firsthand
knowledge of the situation that they are testifying about.
This lack of firsthand knowledge is particularly important
where the Government may be utilizing Government employees who
have inspected the site and the defendant is employing experts
with an alleged national reputation who are engaged for the
purposes of a trial only.
Q. Professor, if an individual whom you had never
met before called you on the telephone and
described a set of complex facts, you would riot
feel very comfortable in determining a control
devicefor thattacility, wouldyou?
A. No.
Q. In other words professor, we can agree that in
the field of engineering there is usually no
substitute for actually examining the physical
site when it comes to making such a calculation.
A. Yes, most of the time.
Q. Now, sir, you are not telling the Court that
you were actually at the site and took the
A. No, I was not.
Q. In fact, you do not make any examination of the
area yourself?
A. No.
‘ Adopted from article entitled ACross—examining Expert
WitnessesR by James W. McE]haney. Litigation, The Journal of
the Section of Litigation American Bar Association , Vol 3,
No. 4 ( 977) pp. 41 et seq.
VIII_ 3 5

Q. And you did not do any of the calibrations
yourself. Isn’t that right?
A. No.
Q. And to this day you have not made any calcu—
lations based upon your own personal observa-
tions. Isn’t that right?
A. No.
Q. And everything that you have told the court
about your expert opinion — that’s all based on
reading the tile. Isn’t it?
A. Yes.
Q. And it is not based on any examination or physical
examination done by you?
A. No.
(7) Varying the Facts .
The cross—examiner is entitled to vary the terms of
the hypothetical questions or the factual basis for the opinion
given. In order to test which of the basis for the opinion the
witness considers essential. The examiner may have several
methods of attack. He can show that the varied facts are the
true facts, or that the facts relied on do not have sufficient
probative value.
(8) Debunking the Expert .
It is essential for the examiner not to quibble with
the expert or to attempt to demean him. On the other hand,
experts usually like to show off and use grandiose terms. An
examiner may use his weakness to illustrate the frailties of
some of the expert’s opinion. Thus, where an expert has
testified as to the erroneous governmental conclusion that a
flow of water from the defendant’s plant had reached a certain

volume and where he had relied upon a flow meter to calculate
his own estimate of the total amount of gallons per day, he
might be asked a series of questions as follows:
Q. Now professor, this flow meter which you have
described to the judge is an electrical device,
isn’t it?
A. Yes, but it actually works on mechanical prin-
Q. Well, you have to plug it into the wall to make
‘it work, don’t you?
A. Yes. That is the way a flow meter such as an
electromagnetic type current meter would work.
Q. Well, essentially it is an electric machine and
appliance like a washing machine or a toaster
except it is more complex, isn’t that correct?
4, •
A. Yes.
Q. And you testify, as I understand it, that it is
relatively foolproof?
A. Yes, if properly run, it is foolproof.
Q. In other words it never malfunctions if it
is not abused. Is that correct, professor?
A. Yes.
Q. Like a toaster?’
(9) Use of Contrary Factual Evidence .
If the expert’s testimony is contrary to factual
evidence, the expert’s opinion will ordinarily be given less
weight than the factual evidence. The expert’s opinion will be
vitiated if, on cross—examination, the government attorney can
show the sharp contrast between the opinion and the factual or
physical evidence.
Cross Examining Expert Witnesses, supra .
VIII .37

(10) Demonstrating Snap Judgment .
The standard method of undoing the effect of a
wel]. framed hypothetical question is to develop questions that
will show that the expert’s opinion is really a snap judgment.
Thus, the witness may be asked:
Q. Were you presented with a copy of this hypo-
thetical question?
Q. How long before you appeared here to testify
did you receive a copy of the question?
Q. If you were never iven a copy of the question,
when was the rirst time all, the facts were
related to you?
Q. When were you first consulted about the problem
involved in this case?
(11) Conclusion .
There is no substitute for mastering the subject
matter of your adversaries expert as well as the expert’s prior
publications, writings and testimony.
vIII— 3 8

The Care and Feeding
of Experts
How the Attorney Can Enhance Expert Testimony
Harold A. Fedep’
Th. best experts are not neces-
sarily the best Witnesses; a lack
of experience with litigation may
offset their special skills. This
artlcl outlines how attorneys
can mak• the process easIer ft .
experts, and thus make the ex-
perts more effective for clients.
E pert testimony is benclicial
to the trier of fact when cx.
perience and knowledge of
lay persons does not generally extend
to technical, scientific, medical, math-
ematic, or business areas.
Experienced tnal counsel know ex-
pens hose performance in past liti-
gation has been proven, whose cre-
dentials are impeccable, and whose
scientific approach has been demon.
strated. They constantly update the
list through inquiry, observation, and
reading of scientific and technical ar-
ticks and case opinions in which ex-
pert testimony has been tendered.’
After counsel obtains names of ap-
propriate experts, their rdsumds
should be carefully checked; the vitae
data must be accurate, current, and
able to withstand ferocious cross-
examination. It is wise to double-
A TLA member Harold A. Feder
is president of Feder, Morris &
Tomb/rn, P.C.. in Denver, CoIon-
do. He is past president of the Col-
orado Trial Lawyers A sociaiion
and a fellow of the International
Society of Barrisiers.
This article has teen excerpted
from a paper presented to the Amer-
ican Academy of Forensic Sciences
1985 Annual Convention. Reprinted
with permission from the Academy.
check all the information in a rcsum .
One should also consult colleagues
on how a witness comports himself on
the witness stand. Was he able to
assist in fact gathering? Are creden-
tials current and impeccable? Is the
witness articulate? Likeable? Amen-
able to technical suggestions from
other retained people?
Rule 702 of the Federal Rules of
Evidence allows almost any technical,
scientific, or specially trained person
to be an expert. There is no single
criterion for expertise.
Some cases require a line mechanic
or lab technician whose knowledge
and expertise in a technical or scien-
tific field is unparalleled. Others re.
quire the most experienced, learned
academics—teachers or students who
can “teach” a jury in a scientific, en-
gineering, businc’,s, or technical field.
Before selecting the expert, the at-
torney should interview him. Some-
times the interview is best conducted
at the scene of the technical challenge.
Again, it may be better to visit the ex-
pert’s working environment. Some-
times, the attorney should interview
the expert at both locations.
The attorney should give the expert
adequate time to prepare for the in-
terview and should approach it with
appropriate questions and sufficient
technical preparation to a.s css the in-
terview process.
If the expert meets the needs of the
case, the attorney should confirm the
working relationship at the interview
or shortly thereafter. Critical terms
like compensation, deadlines, and re-
sponsibilities should be discussed and
then detailed in writing. The attorney
may consult sample letters such as at-
torney, engineering, or accounting
“letters of engagement” in the corn-
mercial, consinicnon, en neeting, med-
ical, or scientific field for guidance in
drafting the terms. Any qualified ac-
countant or engineer is likely to have
such form letters readily available.
The client should be involved in the
selection and confirmation process
since the client ultimately bears the
financial responsibility for the cx-
pen’s service. He should be at the in-
terview of the expert and should sign
the engagement letter.
initiating the Expert
Once retained, the expert should be
made aware of all available facts: the
client’s understanding of the case,
technical reports, research papers, of-
ficial investigative records, and other
witnesses’ statements. If the particular
case involves places or things, the ex-
pert should inspect them as soon as
In cases that involve a protocol,
like the ordinary series of steps in any
scientific or engineering process, the
protocol from the best available
source should be isolated. The expert
then compares events of the case ‘ ith
the standard for flaws, negligence,
omission, or oversight.
Throughout this stage the expert
should be keeping a list of additional
information required.
The attorney and expert should ful-
ly discuss the legal principles involved
in the case before the expert renders
an initial opinion as to liability, cul-
pability, fault, defect, or negligent
practice. At this juncture, the expert
may develop a series of alternative hy-
potheses to be tested against the data.
The expert’s initial evaluation cus-
tomarily is flexible and questioning.
At this point, it is inappropriate for
the expert to reach anything but ten-
tative conclusions, and they had best
be verbaL
First Planning Conference
All expert witnesses in the case
should be czlled in for the first “meet-
ing of the clan.” Each should bring
TRI.4L. June l9, 5

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results of all preliminary studies and
fact gathering for an exchange of
ideas and theories.
The attorney should open the meet-
ing by explaining that most of what
is discussed will be part of the attor-
ney’s “work product” and “thought
processes.” As such, the materials are
not discoverable by opposing counsel.
This precaution is mandatory, par-
ticularly at the early stages when
various hypotheses are proposed.
A collateral benefit of this first
meeting is that experts begin to ap-
preciate reciprocal strengths and
weaknesses. This is necessary in mul-
tidisciplinary cases demanding a
blending of sciences, skills, and ex-
The client is intimately involved in
the preparation and should be at the
conference. Somehow, at these meet-
ings, the intensity of attorney’s and
witnesses’ work is transmitted to the
client, who then finds it more comfor-
table to honor financial and other re-
quests by attorney and experts.
The attorney should select the loca-
tion for the planning conference care-
fully, meeting either at the scene of
the event or a suitable office. He
should consider access to telephone,
stenographic service, photocopy ser-
vice, and creature comforts in select-
ing the site.
Minutes of the meeting should be
marked confidential. In addition, the
heading should indicate that the
meeting is part of the attorney’s work
product and thought pr3cesses. Con-
fidentiality can also be enhanced by
having the client present, making the
communication in part an attorney-
client communication and hence pri-
The minutes should be circulated
only to those present. A separate tile
for minutes should be established.
Pleading, Discovery,
and Deposition
“Plead not what you can prove
not.” The technical consultant must
therefore assist the pleader in drafting
language of documents. Pleadings
should not be redundant and should
not include questionable information.
Experts not only help to word the
technical parts of the pleadings prop-
erly but can also review discovery
document requests, written interroga-
tories, and requests for admissions.
In technical cases, a body of tech-
nical data, forms, procedures, pro-
tocol, notes, and research materials
can be uncovered with little expense.
The expert can guide collection. It is
often essential that the expert par-
ticipate at this stage of discovery to
ensure that requisite technical mate-
rials are available before deposition.
Preparing for deposition as well as
interrelating previously obtained ma-
terials should be a joint effort of con-
sultants and lawyers.
Essential items to consider in plan-
fling depositions include—
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• Technical data from the client
• Investigative and technical mate-
rials the experts produce
• Pleadings on file
• Products of written discovery,
such as irnerrogatories and document
• Standard scientific works rele-
vant to the subject matter
• Appropriate legal authorities.
The expert can assist the attorney
at deposition both in assessing quali-
fications, capabilities, and demeanor
of opposing witnesses and experts and
in questioning them.
Usually, court approval is neces-
sary before opposing experts may be
deposed. The client must show that
the information sought cannot be ob-
tained by other traditional and less ex-
pensive means of discovery.
The expert may have to attend sev-
eral depositions to ucatch testimony
that might otherwise seem irrelevant
to the attorney.
Depositions may be taken either (I)
for discovery or (2) in lieu of test i-
mony at court because the witness is
beyond the jurisdiction of the court.
In both instances, appropriate experts
should attend depositions to help
guide the attorney.
Obtaining prior court approval for
the expert’s presence at deposition is
an effective precaution. In some juris-
dictions, such matters would be re-
fetied to a local court, which would
then determine whether the expert
could attend. Hearing such matters
on foreign turf is risky. The attorney
should obtain either stipulation or
court order in advance of any deposi-
tion experts will attend.
Trial Exhibits and
Nothing can be as disappointing to
the trial la yer as prepanng costly ex-
hibits that are rejected at trial because
of inaccuracy or lack of foundation.
Exhibits must be technically accurate
and demonstrations must be similar
to the subject under litigation to be
Attorneys should use an expert in
preparing exhibits and demonstra-
tions and should test them before
trial. As a rule, trial exhibits should
also be shown to opposing counsel
well in advance of trial. Stipulations
for admissibility or a court hearing, if
necessary, re an inexpensive price to
pay for guaranteed admissibilny of a
key chart, exhibit, or demonstration.
Final Pretrial Conference
As with the first planning con-
ference, all experts, the attorney and
staff, and the client should be present.
The client’s presence is important be-
cause the client’s testimony can be
sharpened to blend with expert testi-
mony. Often the client will have for-
gotten essential facts; the expert can
ask probing questions to remind him
of events of technical significance.
At this conference, all weaknesses
in the case should be exposed and all
coordination problems among experts
ameliorated. The recalcitrant witness
can also be identified.
As with the first conference, min-
utes should be protected; the em-
phasis is on attorney’s work product
and confidentiality, with appropriate
markings and recitations.
This conference is a dress rehearsal.
All staging and timing should be prac-
ticed. Witnesses, attorney, and client
should be brought to a “peak of per-
formance” using video or audio mon-
itoring if necessary to idernify flaws
and weaknesses.
Unnecessary exhibits should be
dropped; calculations should be re-
checked. Data should be summarized
whenever possible, but having the raw
data stacked in the courtroom, par-
ticularly if it is extensive, can be ad-
vantageous. The pounds of raw ma-
terial experts have evaluated before
trial can enhance the “weight” of
testimony. (The raw material from
which summaries are made must in
any case be available in court for ex-
amination by opposing counsel,
though good practice dictates such
data be made available before trial.)
Preparing Testimony
Preparation for trial is not very dif-
ferent from preparation for deposi-
tion. The attorney should explain the
purpose of testimony and describe the
physical setting in detail, including the
positioning of the parties in the hear-
ing room or deposition chamber. He
should also outline the functions of
witness, attorney, jury, and court per-
sonnel so there are no surprises.
The attorney should emphasize the
importance of careful testimony, par-
ticularly the hazard of inconsistent
testimony between deposition and
trial. He should admonish itnesses
to tell the truth and to prepare for
deposition or trial by reviewing the
facts of the case.
Witnesses should not lose their
temper and should speak slowly,
clearly, and naturally. If they are
familiar with the process, they will not
fear the examining attorney and the
The attorney should admonish wit-
nesses to answer only the question
asked, never volunteering informa-
tion beyond its scope. He should also
remind them that they need not have
an answer for every question.
Most witnesses should be reminded
that questions can also be answered
by “Yes,” “No,” “I don’t know,” “1
don’t remember,” “1 don’t under-
stand the question,” or by a simple
uncomplicated factual answer.
Witnesses should not memorize
their story. They should also avoid
phrases like “I think,” “I guess,” “I
believe,” or 9 assume.” These are
weak and insufficient to meet a scien-
tific burden of proof.
Cautioning witnesses to “take a
breath” before answering is always
good advice. This allows them to ap-
pear deliberate and affords them the
opportunity to digest the question and
frame an answer.
The attorney should warn witnesses
about trap words such as “absolute-
ly” or “positively” and about estimat-
ing time, space, and distance. If tech-
nical information is involved, the spe-
cifics—not estimates—should be
given in the answer.
Fencing, arguing, or second-guess-
ing examining counsel should be
avoided. Witnesses should not deny
having had prior discussion about
testimony if that is the case.
If witnesses make mistakes, they
should quickly correct them. If a
negative or apparently damaging fact
or omission has been elicited, the ap-
propriate course is to admit it and
move on quickly. To fence, hedge,
argue, or equivocate only exposes
witnesses to further cross-examination
and results in loss of credibility.
Witnesses should never answer too
quickly or look to counsel for assis-
tance. The subject of testimony in
court, deposition, or hearing is not a
light matter. Joking and flippant an-
swers should be avoided at all costs.
Exaggeration, underestimation, or ov-
erestimation are all enemies of un-
TRI4L. June !9R5

flary and ill-advised witnesses.
Witnesses must translate technical
terms into common understandable
Demeanor of witnesses before,
during, and after trial should be the
subject of attorney counscling. Cloth-
ing, stance, and posture are also mat-
ters the attorney and experts must re-
view togcthcT before rial.
The attorney should alert witnesses
about the hazards of discussing testi-
mony in the hallways, restrooms, or
public areas around the courtroom.
Conversations with opposing parties
and counsel or jurors must particular-
ly be avoided.
Court orders may be necessary to
have a consulting expert remain in
court during trial if either side has
sought to exclude witnesses.
The use of a key expert during trial
often means the difference between
success and failure. The way the ex-
pert is used can be either beneficial or
disastrous. If the expert is constantly
passing notes and conferring with the
attorney, the client’s case will appear
weak to the trier of fact. It is better if
the expert can be elsewhere in the
courtroom, take notes, and confer
with the attorney during recesses.
At all costs, the expert must be
viewed as a professional interested in
a factual presentation and not an ad-
vocate for one side.
The attorney should tell the expert
to maintain eye contact with the ex-
amining attorney during questioning
and to turn to the trier of fact to give
answers. The expert should never
mumble or speak inaudibly and never
draw or dcmoaslralc so as to block
the view of the fact finder.
Telescoping pocket pointers are ef-
fect lye for the expert who must move
around the courtroom with demon-
strative exhibits. Lapel microphones
free the expert’s hands and allow
comfortable movement.
A final admonition for the expert
in court: A trial is a teaching and
learning exercise. The expert must
transmit knowledge to the fact finder.
In most cases, the effectiveness of the
teaching will determine the outcome
of the contest.
As in any stimulating teaching set-
ting, the teacher is likely to be ques.
tioned. Am icipal ion of cross-exam-
ination questions with the expert will
facilitate persuasive response.
Of particular concern are those
areas the expert isolates as vulnerable
subjects. The lawyer can prepare the
usual cross-examination areas gener-
ically applied to all opposing technical
wit ncs.scs and frame strategy for an-
swers to the technical cross as well.
As in all u’ials, three standard rules
obtain: I) prepare, (2) prepare, and
(3) prepare.
For the inex ner d attorney, sour s for
An association ot attorr’ey’s repre.
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committed to promoting aquatic
Membership open to ATLA atlor•
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of aquatic accidents, such as div.
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Benefits of membership include
Educational seminars on diving
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Periodic newsletters
Resource materials suitable for
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—Sample complaints and
—Depositions of industry
personnel and experts
—Studies and Articles
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—Settlement lists of recently
settled cases
For Add,tion l Membership
Information, Call or Write
(313) 963-1600
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1. Identification and Stipulation.
2. Qualifications (Rule 702 factors) and Resume
3. Work in this case
flow established and when
Chain of command
4. Specific description of work in each general area
Facts I Data; Source Material (examine & copy)
Analysis, Methodology & Assumptions
._..With whom working; transfers of information
Relate wo rk to pleadings (show copy)
Relate work to written discovery (show copy)
5. Same for work in progress (when complete?)
6. Same for anticipated future work (factual record)
7. Similar work?
Other cases (Identify, transcript, info, results)
Other writings, reports a articles .(cite of copy)
8. Will Appear as Witness?
What area (witness characterize)?
What opinions?
9. Adequate Opportunity to Explain All Answers?
10. Closing Formalities
Continued Discovery including Deposition
Reading and Signature

Protecting Your Expert
During Discovery
By James E. Daniels
DEPENDING against expert witness discov-
ery is something lawyers are doing more
and more, but we rarely consider its
special aspects. It is most important to
remember that the main function of ex-
pert discovery is cross-examination prep-
aration and not fact-finding, that whatev-
er ogensive or defensive strategy is
adopted will almost certainly be available
with equal success (or lack of success) to
the adversary since most courts insist that
expert discovery proceed on a quid pro
quo basis, and that an inevitable problem
hampering one’s choice of tactics is the
poor state of the experts preparation.
Identifying trial experts
Expert discovery typically starts with
service of an interrogatory taken verba-
tim from Rule 26(b)(4)(A)(i) of the Fed-
eral Rules of Civil Procedure, and so
options in framing a response are limited.
The paramount consideration in the tim-
ing, quality and quantity of the answer is
the courts’ penchant to grant motions for
further expert discovery on the ground
that the answer to the Rule
26(b)(4XAXi) interrogatory was inade-
quate to permit the other side to prepare
its cross-examination for trial.
Remember that this interrogatory coy-
era only those testifying under Rule 702
of the Federal Rules of Evidence—
experts who will be celled to help the
fact-finder grapple with complex facts
and issues rather than to testify about
events they witnessed, participated In or
learned about in a non-litigation capacity.
The premature identification of an expert
opens the door to discovery that could
prove unwarranted and avoidable. The
interrogatory can be avoided temporanly
by.answenng that, in the words of the
Rules Advisory Committee, the party
does not yet “know” whom he will call.
One risks an order precluding sestimo-
I1) by a later-identified expert, a risk that
becomes greater the closer you are to the
start of trial, or the more complex the
subject area for expert testimony, and
hence the greater prejudice to the adver-
sary’s ability to prepare for cross-
A middle course is to identify persons
liberally but to state candidly In the an-
swer that irnent.ons with respect to calling
the expert to testify are tentative. That
approach reduces the risk of preclusion
because the adversary will at least be able
to start cross-examination preparations
by collecting and studying information on
the expert’s background, prior publica-
tions and the like.
Rule 26A(bX4XAXi) does not define
the word “identify,” so the identification
Itself can consist of several categories of
information: name, address (business and
home), current employer, employment
history, academic background, profes-
sional association memberships, honors
and awards, publications, unpublished
writings and prior testimony. It Is wise to
discuss the answer with the expert ahead
of time, both for the impnmatur on the
information provided and to give the
alert that certain notoriety will soon fol.
The sbjeet antler
Next you must give the subject matter
on which the expert is expected to testify,
a straightforward requirement that calls
for a general description of an Issue or
issues. it is convenient and su5cient to
cite or paraphrase specific allegations in
the pleadings.
The chief di*ulty is to give “the sub-
dance of the faóii and opinions to which
- S Asuraal, The La v)er’s Mi.palae

I - .
Enter the USFL. Since its founding
three yeats ago, the USFI. has forced
salaries in the NFL up because it broke
through the restrictions and gave players
leverage to make more money. “When-
ever there has been competition,” Benon
said, “salaries have then.” The short-
lived World Football League boosted
NFL salaries for a brief moment, and the
Canadian Football League offers some
•‘The NFL is a very arrogant institu-
tion.” said Richard Bennett, a Washing-
ton, D.C.. lawyer who represents such
players as Pittsburgh Steeler quarterback
Mark Malone and St. Louis Cardinal
running back Onis Anderson. “Because
of the USFI. J ey changed very substan-
tially,” he added. “But no the ?‘.‘FL
believes the demise of the USFI. is immi-
nent. It has become more difficult to get
along with them, and I’m afraid the play.
era will start seeing lower salaries.” ,‘
According to Oakes, the USFL Is put-
ting all its eggs in one htigious basket: its
antitrust suit against the NFL, which Is
set for thai in February of next year.
With franchises folding and the next sea-
son not scheduled until the fall of 1986. a
year and a half after the start of its 1985
season, the nen league is in questionable
shape. /
But in the past, players found tremen-
dous financial opportunit) in the USFL
—Steve Young’s $42 million contract and
Doug Flutie’s $8.3 million contract being
just two examples of money that the NFL
would not have paid. Marginal players
found a place to pla), and star players
found the end of the rainbow.
Induigheg fantasies
For the lawyers who represent the piay.
era, the paictim of sports law means the
chance make a lot of money and to
indulge some childhood fantasies. ‘It’s a
lot of fan,” said Oakes. “You have to
have some basic interest in sports. It’s a
‘people-oriented business, and there are
elements that are tangible—success In
negotiating a contract, your ability to
expand a client base. And, If you repre-
sent baseball players, you have to spend
part of February and March in florida at
spring ttwinMg.
“But ft’s not a picnic,” said Oakes.
“The hours ate not 9 to 5 because your
clients don’t work 9 to 5. A Monday night
football ga ne might not be done until
10:00 on the West Coast—4lmf’s 1:00 in
the East. If your client has apntbtcn. he
will call you right then—at ‘hame,3n the
weekends—that’s pan of the ‘pnctice.
Some people think it’s the ideal puctice.
but it involves a lot of hard .ark,too.”
Living a charmed Ufe
The players are not typical ulenis.
“Tbe have led a little bit of a .clarmed
existence,” Oakes said. • cauc the’
have a special level of skili,and u been
recognized for mans years. ‘ irnetheIess.
whether it’s a baseball player spent
years in the minor leagues ie,!ng on
buses, living in cheap motel . ot a loot-
ball player who spent six . a day
working out, double sessions. h hasn’t
been easy. Beyond that, beyozd their
physical abiht), the) are reasonafl) typi-
cal people, just as different .m trpie in
any other profession.”
The other unusual kuure u they
have the chance to make an o’ -
nary amount of moxie at a .ing
“There is nothing to prepa
that,” Oakes said. li’sonexh o w
your ay up the ladder id ma.
$100,000 when you’re 45, and you’ve
learned hos to manage mone. ahrtg the
way. But In your earb 20s. wu. don’t
have the life experience. and nerall)
the players don’t come from a fumul)
background with money 1 e s no
preparation for what the) re about to
undergo—the pressure of the spotiight,
of performing and winning—ni dlthcult
for a young person.”
“1 think I have an obligation m keep all
this In perspective for the pla m ? Mills
said. “They’ll want more cars 1 think
they need or live a higher hfen * than I
would recommend. . eo
operate and sometimes they dm’t.”
“Our philosophy,” Oakes saiL “is that
If we can relieve a player of won about
many financial and legal prob s.. If they
have someone they can turn t can
concentrate on their sport. S are 50
percent mental. If their mind clouded
with problems, they can’t pesform to
their potential. I can’t help a darn aith
his blocking technique, but I can be a ail-
able to deal with any other kind if prob-
Lawrence Shuiruff as a reporzer am —
Denver Post. He plans to start L sc*
this fail.
New Jersey, Oakes said). In addition,
revenue from the Super Bowl is divided
equally among the 28 se .im .
The unusual result of this shared reve-
nue is that a team—although not the
players—is punished for reaching the
Super Bowl because the out-of-pocket
expenses—training facilities remain
open, parties must be thrown, players’
wives and others must be flown to the
game—often negate the team’s share of
the Super Bowl proceeds.
__ - The intangible rewards are there. A
winning franchise increases in value, the
franchise is more attractive to good play-
— - era, which makes for more fan interest,
which again increases the value of the
franchise—a winning tradition. But for
a) S the owner who Is amply in the game of
1’ football for the mone), there is little
reason to pay big salaries.
When push comes to shove on the
_____ negotiating table, lawyer Mar’. Demoff
said football players are left with one
play—the holdout. A player simply refus-
es i.. play until the ;e his
demands—a process that for some play-
- era has extended well into the season. But
In a profession where qualit) is measured
‘ in tenths of a second, and where the
,— ,,, average career is 4.2 years, it is a nervy
tactic available only to the exceptional
“In all honesty, under the system that
has been created, ft is the player’s only
- method to get his position heard,” said
Demoff, who represents Miami Dolphin
quarterback Dan Marino and Denver
Bronco quarterback khn Elway.
- baDe ngIngtbsdraft
-‘ Elwayisoneofthefewplayeiswbohas
‘ been able to ch.flenr the draft system.
The Stanford star was aho a baseball
player, drafted by the New York Yankees
the summer following his junior year.
After his senior year he was drafted by
the Baltimore Cclii. But Elway didn’t
want to play for the Colts. Trade me, or
• - Ill play baseball for the Yankees, Elway
said. That threat forced the Colts to trade’
him to the Broncos, who signed him so a
five-year contract filling for $3 million a
year. _____
“That COuU.ct totally changed the sal-
ary structure of the NFL,” said Jeff
Dankwonh, Demofs associate. The pie-
vious year the highest salary paid to a
quarterback tas $600,000 to Archie
Manning of the Houston Oilers.
September 1985 • Volume 71 49

the expert is expected to testify and a being summarized. There is an obvious the growing view that early expert disco’.
summary of the grounds for each opin- danger in an answer that ovemates the cry helps narrow the issues in complex
ion.” No standard format or any spscthc expert’s opinions, because an expansive litigation. An early interrogatory from
lavel of detail is isquired. The more answer becomes a powerful cross- the otheT side may disclose an effort to
oomplete and informative the response in examination tool if the expert refuses on use discovery a means to prepare its
this nt round, the less likely a motion the witness stand to embrace some facet own case, such as whether to retain an
for further expert discovery will be grant- of what was represemed to be the cx- expert or so assist a retained expert in
ad. If calculations are involved, it is best pen’s position. The broader the answer, formulating opinions. That is not a prop-
that they be spelled out in a fashion that the more vulnerable the witness. ci use of Rule 26(bX4) discovery, and a
allows opposing counsel to replicate Because the content of Rule valid objection is presented through a
• them. The general rule in this area of 26(b)(4XAXI) discovery is mandatory, showing that the purpose of the interrog-
discovery is that the fuller and dearer the the only available objection Is that the story exceeds the cross-examination func-
answer, the more you can demand from Interrogatory comes too soon. If you are don it was designed so serve.
your adversary. objecting on that basis, be prepared so
It is apparent that experts must be propose a timetable and be aware of both Further written dIscover )
dosely involved in the preparation of this macTeasing pressures on the courts to cx- Additional expert discovery is by mo-
answer, for it is their testimony that is pedite the entire discovery process and don only, and the rules do not guide the
- ‘- —
2:’ _
- C ____
____ J - i j’ L - a
. -•-‘ - :.;-:‘ - . -. • •t 1
j : t- 44 j
______ , -
______ - ..
_______ -
________ . . i 7 ie’ -
__ __ - ‘ - -
___ - 4’ I ’
__ r -
“4 ’ —. . - —. ,t L . —
) ‘
re E t 24
i -W 1 • ‘ -
—. - - - — L -
. - r T • -
• . J * . - -•
-4 — - t

1 - - -
4 “ . -
*•4u1 •J •_ - -i- -— _ — - _ _
.E’ • .:

• The expert’s wrfttui report . While
dearly a source of Information .on the
facts k ’n to and theories held by the
expert. an adequate answer should give
that infonnation in most cases.
• D&eots veiled ex. Because the
documents relied on by the expert pro.
vide an essential basis for cross-
examination. the party seeking discovery
of that material argues from a position of
strength. A supporting basis is available
in Rule 612 of the Federal Rules of
Evidenca, which gives the court discre-
tion to require pretrial production of
wridnp sued to refresh a witness’s recol-
lection ‘If nsoesasry in the Interests 01
Defending counsel’s best strate so
minimi the Impact of this request Is to
Insure that the experts work Is well-
dplinedia the first Instance. In re
. pondi’tg to the motion on its merits, the
available arguments are (I) that as a
matter of law, movant must show consid-
erably more than routine needapplicable
so any case t Invoke the court’s discre-
tInts, given that Rule th(bX4XAXÜ) does
not make its production mandaury:
the elusivene” of defining awhat.anexpe.
does and d’c’ not “tel) ,UpoT*,’ and (3)
the burden invoh ed in pu1Lfl papers
together. ___ ___
• Draft reports and endS pen . Al-
though a fertile sousce far cross-
examination goodies. this disco’cr does
go beyond “the facts knosm .ndopinions
held” by experts. the basic.srem of Rule
26(bX4), into a penphealinat To the
extent that the lawyers aexk -p duct im-
munity extends into the eiq t nness
domain, that immunity is J a if work
papers are discovered.
Your expert’s deposlt
Because a court order or nsent is
required, the first issue is wielber. on
balance. to oppose deposhia iiscovery
of your expert. Consider wiesñer you
and your expert are ,easondiF well-
prepared for the exercise; ñc expert
stands to benefit from the experince of a
deposition; it is feasible o duain the
same benefits. without rho usindant
risks, with a private dry-mn. displaying
the expert’s capabilities as a ti ’ ” will
strengthen or weaken yosubsul
mont discussions; the ndvezsw
pared to conduct a trosbinsone
tion; a deposition of the
expert will be desired; and ttw rength of
the available objections.
Preparing the expert has special as-
pects. First, the expert is ‘not die client.
and the conversations condu to pre-
pare this witness may be d s erable.
Second. it may not be poss 1em instruct
the deponent not to ar questions
that probe into areas that mz.want to be
off-limits. Third. it migla he useful t
have this witness “vohz .’ because
the deposition’s ostensible pirpose is ic
provide a full explication t*le expert’
analysis. Fourth. special moion shoulc
be paid to training the d. ent to han
die superficially inconsi v writings 0
statements with as mudi aplomb an
persuasiveness as possible. h. expert
typically are less recepti than othe
witnesses so suggestions demeano
and attitude, and therefoseisquire mud
es.depositiosi care and cahing. Sixth
be sure to get the expert as I r commit
s .d so and confident in as position a
Unlike the routine dep tion. the c x
pert witness deposition t ) all ’ - b
taken after the ruling that mat
ground rules and subject a
the deposition may go foiwarJ — c
defending counsel’s main nc ! 1
be to stay alert toeftortstakoau
deposition’s pe and seel to pre’ e
courts in exercising their discretion. Even
If parties agree to a program for expert
discovery, some courts will insist on the
opportunity to consider any stipulation
r and cover it in an order. Seek clarification
hi the local rules and from the presiding
-.‘ Except in rare circumstances, written
Rule *bX4XAXii) discovery will take
the form either of lnterrogatones de-
• signed to develop details of the expert’s
position as expressed In the (A)(i) an-
swats or requests for documents related
to the expert’s work on the case and prior
• work.
.. , The best response to a motion for a
further explication of the expert’s expect-
ed testimony is to show that the answer is
sufficient to permit full cross-examination
preparation. Show the answer Is
- clear and not susceptible to different in.
K... terpretations. Show that it presents the
4:: underlying facts and assumptions: the
complexity and stakes may be a relevant
factor. Because the costs of further dis-
covery may be recoverable, your re-
sponse might estimate the categories and
— amount of costs that would be incurred.
Although some courts consider an
order compelling supplemental answers
the first-Choice remedy for Inadequate
— - - answers to identification imerrogatories,
- -, courts more commonly gram motions for
• —.“, documents on a proper showing. The
expert-related documents most frequent-
\ • ly sought are: (a) the expert’s prior pub-
r: lished and unpublished writings and
-. statements; (b) documents relied on by
the expert in forming conclusions; (c) the
expert’s work papers, both in final form
- : - * and drafts; (d)other documents reviewed
by the expert although not relied on In
— o_.
- -. The response to the motion will vary
according to the category of document
• Prior week. It is difficult to contest
the cross-examination value of the ex-
pert’s prior writinp and statements. fly
so pin some mileage by consenting to the
request and, in return, having the adver-
sary split costs of putting material togeth-
er or agreeing that production will be a
______ two-way street. If the expert is prolific
(aren’t they all?), is may be possible so
limit the production to materials that
bear on the issues on which testimony will
be given. Because of the grayness Inher-
ent In that l1a , coupled with the cross-
examiner’s ability to be imaginative
about bow a prior publication bean on
the testimody. It Is often most efficient
and least thky4o identify the universe of
prior work,witb the. idversary4o selert
13 AM Jsursul The LIw)ee i M.j e

that expansion through objections and
communications to the court.
The deposition will likely cover several
• The expert’s credentials, Including
prior writings and prior litigation experi-
and testimony.
• The speciflca of the work performed
and to be performed by the expert in the
pending case, including facts about the
retainer or employment terms and condi-
• The expert’s position on the issues on
which his trial testimony is anticipated.
• The facts, documents and communi-
catiors on which the expert’s testimony
will be based.
• All other documents related to the
expert’s knowledge of and positions on
subjects other than those on which direct
trial testimony will be sought.
• impeachment-type cross-exam-
From the standpoint of the discovery
rules, the fundamental distinction among
these several lines and types of examine-
don is that some enable the adversary to
prepare trial cross-examination, while
others serve the very different purposes
of developing the ewniner’s own case
from someone else’s expert and conduct-
ing dress rehearsal of the trial itself.
Forbidden arena
If the deposition drifts into forbidden
areas, defending counsel has options to
S P rm1tting It to continue without ob-
jection, a sensible tactic when you want
to conduct a similar examination of the
opponent’s expert, or when you feel that
the examination will not do spificiern
damage to justify a battle, or when you
want the expert to endure the experience
on the theory that it will strengthen the
expert for trial.
• Objections for the record , simply to
preserve the point If the depsrture from
the ground rules becomes excessive or
damaging. ___
•A refusal to proceed , on the argu-
ment that exaimnation beyond the scope
of the court’s initial order requires a
second order, with the burden to obtain it
on the proponent of further discovery.
• A motion to the court, by telephone
or on pipers, seeking to preclude further
A recurring issue at expert depositions
is raised by questions directed at the
expert’s communications with counsel
and client. To the extent that the attor-
ney’s work product or attorney-client
confidences have been shared with the
expert, the con dentiality of those mate-
tills is threatened. It may be possible to
limit the disclosure to an identification of
the materials turned over If you argue
that the materials In question were not
relied on or used to refresh a recollection.
If opposing counsel is unwilling so lay
that foundation, this could be aceom-
pushed during voir dire. It should be
emphasized that many courts will con-
clude that any document or fact put into
expert’s possession Is fair game for dis-
covery; it Is imperative that you proceed
cautiously and in a carefully considered
way before revealing sensitive informa-
tion to the expert.
Expert depositions are videotaped with
increasing frequency. Often the epen,
as a nonparty, will have the independent
right to object to the procedure. If the
expert is inclined to exercise that right, it
usually will be desirable to persuade the
expert to endure the deposition. The
availability of a tape to review, generated
probably at the opponents expense. can
be used to help the expert prepare for
trial, both in style and substance.
Obtaining fees and expenses
Rule 26(b)(4) contains special pro i-
dons to deal with the discovery fees and
expenses related to expert trial witnesses.
The costs associated with responding to
Rule 26(bX4XAXi) Interrcgatories are
not recoverable; the reasonable fees of
the expert incurred in pro iding further
discovery will be recoverable unless
“manifest injustice would resuh ; and a
fair portion of other fees and expenses
incurred by the party obtaining underly-
ing work from the expert may be award-
ed, in the court’s discretion. According to
the Advisory Committee Notes. the exer-
cise of that discretion “should depend
upon whether the discovering party is
simply learning about the other part)s
case or is going beyond this to develop his
own case.” 4$ F.R.D. 505. The “manifest
injustice” caveat is designed to protect
the indigent party. Moreover, while Rule
26(bX4XC) is the sole vehicle for recov-
ery of expert witness discovery costs dur-
rng pretrial, the post-judgment provisions
of Rule 54(b), the statutory bases for
awards of costs and a host of local district
court rules still apply.
The opportunity to claim costs at some
juncture suggests the wisdom of having
your experts carefully account for their
time and expenses and to segregate your
own time and disbursements in working
with experts from the outset of the effort.
knvs E. Dsniels Is a kwver p wicing
us N,w )brk City.
-_ .1
kptsber I S5 • hime 71 53


l)iseover of Experts
by Iorgauii Cliii
Added in 1970. Rule 2b(b)(4) of the Federal Ruks of
Civil Procedure as designed to unt ngle the mess uf
conflicting case la goserning discovery from and ab ’ut
expert witnesses. In general, the rule has prosen a suc•
cess, but it has also created its o n problems of Interpre-
tation. Consider the following problems:
• It is not alviays clear ihcn the rule ap .ies. By its
terms, it applies to discovers of facts and upInii t 1 s
“acquired or developed in anticipation ol litigation
Or for mal.” When is a fact or opinion acquired or
deselnped in anticipation of litigation?
• If the rule applies. ho mi ch di cnse’r dues it p r.
mit? A1thc ugh the rule clearh allo s greater dis-
ctnerv from esperts expe:icd to be called as it•
i.esses than from those hired as cnnsultant , ho
much d 1 scovers the rule allos s as to either type of
expert is still subject to dispute.
• l ’ n t ’ protattd from Uflal inanted Is•
co ?
Rule 26(bX4) protects only those facts and opinions
that an esperi acquwca or develops ta anticipation of tin.
gation or (or tjW. Fstts the expert kien and opinions he
,beid before lirãgaticn was aatlcipatcd ai’ bject to the
sucb brou rr wnIry provisions of R e *bXl).
This distinction poses problems when a party is en.
gaged in a business that by its vei nature anticipates
litigation. For example, in Thomas Organ Co. v. Jadran ’
aka Slobodna Plos .dM. 54 F.R.D. 367 (N.D. Ill. 1972),
the court held that an Insurance company examiner’s te-
port was not made In anticipation of litigation. At the
time the report was prepared, the insurer had not yet
consulted an attorney, id. at 371-fl, and suit was not
filed until 16 months later. id. at 371-74. However, as the
Thnma.s Organ court observed. if the phrase “ii ’ antic-
ipation of litigation” Is too broadi ‘oimtrued. insurance
companies will be able to hide their investigators’ reports
and their experts’ opinions behind the protections of
Mr Ch , , embvr of Iidll #4in.Ij ,. s Loi Aarh3
Rule 2( ”bM4) and Rule 2utb)’J. hi .h vrn the work
product duct, me and also use the phrase •‘mn anticip..: ion
of litig .tion.” See generally Rakus v. Erie’ Lackahanna
R.R. 7t F.R.D. 14!’. 146 (W.D.N.Y. 1977): Spoulding
I. De’n,un. 68 F.R.D. 342, 342-346 (D. Dcl. 1975).
The line ber een “materials assembled in the ordinary
course of business,” hieh are not afforded the protec-
tions of Rules 2t ,(bX3), or 2othX4) (i .e Advisory Corn-
minee Nutc to Rule 26(bX3), 4 F.R.D. 48’. 501). and
information ohta’ned “in anticipation of litigation,”
which is protected, is disturbingly elusise. Some courts
hase narro ly definel the phrase “in antlcipdtion of liti.
gation.” For example. in In re Grand lure Invesugarson
(Sturgisi. 412 F. Supp 943 (ED. Pa. 1976), the court
stated that the threat of litigation “must be more real
and imm nent” than “m4flers which may or even likely
will ultimately come to litigation.” Id. at 948. Some
courts even bold that htigatlon cannot be anticipated un•
ll Wty conaete daüris ban been made.
Absent a specific showing by defendants that in this
particular tender offer in early 1975 there as a clear
threat of litigation “involving claims which had al.
ready arisen,” we do not find defendants’ contention
that these documents are prisileged “work product”
Pan:er ;‘. Marshall Field J Co., 80 F.R.D. 718. 725 nb
(M.D. III. 1978), See also 8 hngton Industries v. Exxon
Corp.. 65 F.R.D. 26, 43 (D. Md, 1974),
1% itr , other c bdd thot the n es1-
bt of ?g ss * *t m .Wa’a, to ‘ e Rulca
I1&Nb) aM’ b 4) i 1 bkZ1.. Untied States v.
Lipshy, 1979.2 U.S. Tax Cii. 1 9628 at 88.279 (N.D.
Tax. 1979) (shareholder and other suits were a possibility
because of IRS Inquiries); In re Grand lure Subporna
(John Doe, Inc.), 599 F.2d 504. 513 (2d Cir. 1979)
(investigation to determine whether to file SEC reports
and amended tax returns was “in anticipation of litiga-
don”), In re Grand lure Invesugation (Sun oii cc, i. 59
F.2d 3224, 1229 (3d Cir. 1979) (investigation of illegal

payments was “in anticipation of litigation” because of
the probability that illegal paymer ts had in fact been
will . o .Ukt be found to be
1sii Ju iiot V1itfgstion If It is eondL ’ ed In a manner
de 1y e ordinary course of business of the
•party. Thus, Invectigations by insurance company adjuc.
ters may not be “in anticipation of litigation,’ but
special Investigations of illegal paymen s may be. Fiso,
tRzile *bk4) aboqid more readily apply whso an outside
xpcrt uped fl retained in umi.xtion with a specific,
L 6 tt’PIItter See Connors, A Nrw Look at
an Old Concern—Protecting Expert lnforma:iou Iron:
Diwovety undertheFederaiRules, 18 Di o. L. Riv. 271.
287 (1980).
Two.Stage Process
Rule 26(bX4) establishes a two-stage discovery process
for experts expected to be called as witnesses at trial.
First, “(a) party may through interrogatories require any
other party to identify each person whom the other party
expects to call as an expert witness at trial, to stat’ the
subject matter on which the expert is expected to testify,
and to state the substance of the facts and opinions to
which the expert is expected to testify and a summary of
the rounds for each opinion.” Fw. R. Civ. P.
26(bX4XAXi). Second, “lujpon motion, the court may
order further discovery by other means, subject to (the
payment of fees under certain circumatancesl.” Fw. R.
Civ. P. 26(bX4XAXii).
Because Rule 26(bX4XA) applies solely to a person
who is an expert expected to be called as a witness at
trial, s always the pouibiity tha i oppqsiug counsel
w 1 de v*ntil j*t bdfot e tr 1 daci ezpULs
will be bLi w*neuues . Rule 6 (eXIXB), however, requires
a party ‘seasonabh to supplement” his responses to in-
terrogatories asking about expert witnesses.
Courts have given teeth to this rule. In Weiss v
Chrysler Motors Corp., 515 F.2d 449, 454-457 (2d Cir.
19Th), the defendant had responded to interrogatories
regarding expert witnesses by identifying a certain ex-
pert, but had failed to Indicate the substance of his testi.
morn. Over plaintiff’s objection, this expert was allowed
to testify. A defense verdict resulted.
The Court of Appeals for the Second Circuit reversed.
finding that the defendant’s failure to respond properly
to plaintifrs interrogat wies denied plaintiff fair notice of
defendant’s theory of the case. in so doing, the court re-
jected the defendant’s argument that the tests on which
the expert’s testimony was based were not completed un-
til after the trial had started and that the defendant had
no obligation to supplement its responses to the Interrog-
stories once thaI had begun. See also Tabaichnick v.
GD. Searle & Co., 67 F.R.D. 49. 55 (D.NJ. 1975);
Wallace v. Shade Tobacco Growers Agriesdtaral Ass ‘a.
21 F.R. SFRV. 2d 1130. 1132 (D. Mass. 1975).
!‘ku R* (bX4XA) appears tsqOe l o r”
atones before stbei ØL overy of p 1 vitresses. the
partLi may agree to, or the court can srder , a dlffr*eut
procedj .” Pea# iewMp Co. v. Joseph S(’h! t:
Brei ’ing Co., 415 F. Supp. 1122 (S.D. Tea. 197t). The
Pearl Brrwing court held that the interrogatones were
not required before discovery by deposition or produc-
tion of documents. Jd. at 1137.
Unfortunately, Rule 26(bX4XA) is silent concerning the
rounds 3fl which a court may order further discovery after
the service of interrogatories. A number of courts have
taken a restrictive view and have not permitted further
discovery absent unusual circumstances. For eAample, in
Lana v. BririshEuropean .4irways, Lid.. MDL. Docket
No. 147 (E.D.N.Y. filed March 17, 1976), summarized in
Graham, Discovery of Experts under Rule 26(b,(4 of the
Federal Rules of (‘li-il Procedures: Part I. an Analytical
Study. 1976 U. lit. LAW FoKt. M 895, 9l •l9, the court
denied a motion fot’ depositions of experts based on its
finding that the interrogatory answers were “adequate
and within the spirit of Rule 26(bX4XAXi).” The inter-
rogatory answers. however, were summa v reci!ahs of the
names of experts who would testify, the binad areas of
their testimony, and ashon paragraph stating that the cx-
pelts o Jd basc their testimony on the exhibits at d
testimony presented at a public inquiry on the cac of th
airplane crash at usue.
Courts hs s 111(1 denied further discovery by document
ptoductions. Le., United States v. 145.3! Acres of
Land. 54 F.R.D. 359, 360 (M.D. Pa. 1972), aff’d. 485
F.2d 682 (3d Cir. 1973) (production of an appraiser’s re-
port In a condemnation action is not required since there
was no compelling need for such discovery); Breedlove v.
Beech Aircraft Corp.. 57 F.R.D. 202, 204 (N.D. Miss.
1972) exceptiona1 c4rcumst ces must be sbowi tojusti.
f P.peductius of a& upert’s report).

During the trial you heard the testimony of _______________
who was described to us as an expert in ____________• This witness
was permitted to testify even though he did not actually witness
any of the events involved in this trial.
A person’s training and experience may make him or her a
true expert in a technical field. The law allows that person to
state an opinion here about matters in that particular field.
Merely because ________________ has expressed an opinion does not
mean, however, that you must accept this opinion. The same as
with any other witness, it is up to you to decide whether you
believe his testimony and choose to rely upon it. Part of that
decision will depend on your judgment about whether his back-
ground of training and experience is sufficient for him to give
the expert opinion that you heard. You must also decide whether
his opinions were based on sound reasons, judgment, and inforina-

Other coirts have taken a broader vitw. bilancing the
— need for efl ctive cross-examination against the possibil-
ity that a party will unfairly acquire informatior from an
expert retained by the other party without the proper
sharing of related costs. For example. in Quadrins v.
Sikorsky Aircraft Div.. 74 F.R.D. 594 (D. Conn. 19’7),
the defendant ,aght to obtain t U prepared b tie
plaintiffs’ experts. The plaintiffs argued that the defen-
dant had to show “substantial need and undue hard-
ship” to obtain the documents. Id. at 594. The court re-
jected this test, stating that expert testimony would be
thi itselutiosi of die comple,c and technici!
(actual 4ispu s in this ense. t effective cross.
aminat1on wlfl be essential.” id at 59S. In In ‘r IR’ l
Pcriphcral EDP Devices Antitrust Litigation. 77 F.R.D.
39, 41.42 (N.D. Cal. 1977). the court allowed further
discovery under Rule 26(bX4XAXii), although it found
I BM ’s document request to be too broad.
In a similar vein, the court in Herbst v. 177 Corp.. 65
F.R.D. 528 (D. Conn. 1975). permitted depositions of a
party’s two experts. noting that Rule 26(bX4XCXii) pro-
vides a methanism to prevent one party front avoiding
the cost of retaining his own expert. id. at 531. Rule
26(bX4XCXIi) provides, in part:
(WJith respect to discovery obtained under subdivi-
sion (bX4XAXii) of this rule the court may se-
quire. . . the party seeking discovery to pay the
other party a fair portion of the fees and expenses
reasonably incurred by the latter party in obtaining
facts and opinions from the expert.
Thus, if a court allo ’s further discovery of expert wit•
nesses, it ma order the parts conducting such discovery
to share in the cost of educating the experts about the
facts of a case or the cost of having the experts conduct
research in order to formulate an opinion. iscotery
beyond Initial uitertogatories is often permitted by the
courts, bus the preciae conmurs ot what sill be allowed
under vasying circumsta.noei have ‘c i to be established.
Eiceptlonal Circumstances
Rule 26(bX4XB) provides Vat a part) may discover
facts knowr or opinions held t’ an expert who is not ex-
pected to be called as a witness at trial only if there are
“exceptional circumstances” or if the expert is an ex-
amining physician as provided by Rule 3.Stb).T,o major
qeestionsaxile under this rule.
The first question is created b the Advisory Commit-
tee Note to Rule 26(bX4XB) which states that upon a
“proper showing” a pam may require another party to
reveal the identity of expert consultants. Some courts
have interpreted this comment to mean that the name.
address, and other basic identifying information of an
expert consultant may be obtained through Interroga-
tories without a showing of exceptional circumstances.
E.g.. Baki v. B.F. Diamn,id Cnncn. C v.. 71 F.R.D. 1 ”9.
182 (D. Md. 1976); Sea Cuhn . Inc. v. Continental Ins
Co., 63 F.R.D. 113, 114 (D. Del 1974). See also Arco
Pipr’inr Co. v. S/S Trade Star. 81 F.R.D. 416. 417
(E.D. Pa. 1978). But uv pppry W S Darley & Cn . 54
F.R.D. 278, 280 (E.D. Wis 1973).
The Court of Appeals for the Tenth Circuit is the on >
appellate court that has addressed this question. In Ager
p. Jane C. Szormons Hospital & Training Schnol. 622
F.2d 4% (10th Cir. 1980), the court held that “the iden-
tity. and other collateral infoTmation concerning an ex-
pert who is retained or specially employcU in anticipation
of litigation,’but ncd expected to be called as S witnc’ as
ia1, is not 4.sco’ erabk except as provs4cd in sile
35(b) or s . on a dio 1ng of eptiosal dismstas*es
pnder hlch It Is Impracticable far the petty w ’ klvig
,naytoabta1si fa or Ioni àiiøK same subjort
by other means.” Id. at 503. The Ager court based its
decision on a number of factors, including its concern
(I) that once the identities of retained or special-
ly ernph’yed experts are disclosed, they may be
contacted and their records obtained and infor-
mation normally non-discoverable under Rule
26(bX4KB) might be re ealcd;
(2) that the opponent may attempt to compel an
expert retained or speciall) employed b) an adverse
Disclosing the identity
of experts may lead to
their being contacted and
their records obtained.
party to testify at trial even though the party ie-
taming the expert does not intend to call him or her;
(3) that $ party may call hi opponent to the stand
nd Mk if certam experts re retsioe4 in anttcipa
of ts1 1, bitt nof csfled as witnesses, thereby
kaving with 0* jury an Inference that the retaining
party is attrtnpting to wppresa adverse facts or
opimoes; and
(4) that disclo e of the identities of nontesli-
fylog experts would inevitably k.u”n the number of
andid opinions rvaflsble well as the number of
coosultanti willing to even discuss certain types of
daisas with rad.
Id. at 503.
Agers rationale can be questioned. Some ot the
court’s fears assume questionable conduct by coun el or
practical problems that may not exist. The decision.
however, may be correct in many situations. if an oppos-
big parry cannot discover expert consultants’ opinions.
what proper purpOSe 5 served by disclosing the consul-
tants’ names?
Comparable Information
The second question under Rule 26(bX4XB) is hat
constitutes the “exceptional dri umstan eS’ under which
a court will permit discovery regarding the facts kno n
or opinions held b) experts who are nut expected to es-
‘ify at trial? In deciding whether “exceptiuna circutri-
stances” have been shown, courts gener.rll weigh

whether the party seeking discovery can gain com arahie
information another way and whether the inlormation
sought is crucial to the case. When the part) seeking
discovery has readily available alternatives, courts
regularly deny discovery from expert consultants Inspi-
ration Consolidated Copper Co. v. Lumbermen .s Mut.
Ces. Co, 60 F.R.D. 205, 210 (S.D.N.Y. 1973).
Even when the consultant’s information Is relevant, a
court may find that the party seeking discovery does not
need the information enough to warrant discovery. For
example, In C,ocb.eu v. Virginia Folding Box Co.. 61
F.R.D. 312 (E.D. Va. 1974). an employee brought a Title
VU class action against an employer. The employee
sought discovery of an expert consultant retained by the
employer to evaluate aptitude tests administered by the
employer. The employee argued that discovery from the
expert would show that the employer had prior knowl-
edge of the Invalidity of its test. The court denied the dis-
covery. reasoning that the prior knowledge evidence
would not be “of substantial use” in resolving the Issues
In the case. Id. at 320-321.
More Uberal
In Pearl Brewing Co. v. Joseph Schlitz Brewing Co..
415 F. Supp. 1122 (S.D. Tea. 1976). the court adopted a
more liberal view toward discovery of experts not ex-
pected to testify. The plaintiffs had employed expert con-
sultants to create and run computer programs to support
Its case. The plaintiffs’ expert witness relied, in part. on
the computer output for his testimony. Id. at 3134. The
defendant sought discovery of computer systems docu-
mentation, depositions of the nnnte.tifying computer e-
pens, and production of alternative computer programs
that were considered but rejected. The court granted dis-
covery of the computer system’s documentation and
allowed depositions of the noniectifying experts. Id at
I 138-39. it found that the lcslthing expert could not
otherwise be adequately cross-exdmined about the com-
puter programs on which he based hit opinion, and that
the defendant’s expert would h.e e to spend an enormous
amount of time to understand the computer program
printouts that were voluntarily produced IJ* court did
eoi allow the defendant to ask the plaintiffs’ consultants
about akemadve computer programs t were con-
sidered bus rejected, beause * buM that the defendant
‘ óuId ôo, et d the relevant information about them
from thoplalafds’ Upert wltás. d. at 1140.
The ambiguities of Rule 26(bX4) provide little help for
lawyers trying to protect against unwarranted disclosure.
if possible. however, the best rule to assume is that every-
thing given or told to an expert witness may be di i-
c .H ble. This may make it mote time-consuming for
counsel to prepare an expert, but there are grave risks
from not applying this rule.
Berkrj Photo, Inc. v. £astman.Xodak Co.. 74 F.R.D.
613 (S.D.P4.Y. 1977) illustrates those dangers. One of
Kodak’s attorneys gave the company’s testifying experts
access to notebooks he had prepared for trial. The note-
books consisted of his “synthesis of the facts and factual
Issues,” representing his “legal analysis, mental impres-
sions and . . . lcgJ judgment as to what facts were
needed to be understood, mastered, and possibly pre-
sented in the trial of the Berkry case.” Id. at 614.
Berkey Photo sought discosery of the notebooks.
The court denied discovery of the notebooks because it
doubted whether they played a major role in the formula-
tion of the expert’s opinions and because “given the cur-
rent development of the law in this quarter, is seems fair
to y that counsel were not vividly aware of the potential
for a stark choice between withholding the notebooks
from the experts or turning them over to opposing
counsel.” Id. at 617. But the court gave a clear signal for
the future. Lawyers are at risk if they disclose any other-
wise privileged information to an expert witness:
in this spirit, this court notes now, with hind-
sight. that thcre Is not a compelling rationale for the
view that counsel may (1) deliver work product to an
expert or other witness to be “useful to the client.”
but then (2) withhold the material from an adver-
sary who seeks to exploit the fact of this assistance in
cross-examining the witness. From now on, as the
problem ard the pertinent legal matenals become
more familiar, there should be a sharp discounting
of the concerns on which defendant is prevailing to-
day. To put the point succinctly, there will be here-
alter powufu! reason to hold that materials coo-
dered work prodict should be withheld from pro-
Ipective witnesses If thc are to be withheld from op-
osthg pasties.
Id. at 617.
Federal Rules of Evidence 612 and 705 may also re-
quite disclosure of information an anorne) gives an ex-
pert witness. If the witness uses the document to refresh
his recollection before testifying, the court ma require
its produtiion for the opposing party under Rule 612.
Under Rub , a court may require a;i expert witness w
di’clou the facts or data underlying his opinion befor
be states his opinion on direct examination. Im.any event,
the underlying facts and data may be elicited em cross-
mmination, and arguebty they must be provided in the
kern In which they were transmitted to the expert.
Paper Trail
A problem similar to that in the Berkry case often
arises in pretrial motion pta tice. To support or oppose
such motions, lawyers often submit their expens affida-
vits. The easy way to draft such affidavits is to ask the ex-
pert to do a first draft for later revision by counsel. Alter-
natively, the lawyer may do a first draft and ask the ex-
pert to revise It. Either way, the lawyei and the expert
create a papier trail effective for cross-exarnination. Op-
co 1fl neek to ti t e 4r*fts end, if
b l andt the kq eatk nele. ersus-easmine the ez-
kto e cheer from one aft tothe next. Such a s-
1k nEliun b at 1 d .%beeTamIag. and It can be worse.
An expert’s report on his research and conclusions
poses similar difficulties. Such reports may be discover-
able. Written reports tend to take on a life of their own.
(Please turn to page O4

undcrstanding will Direct ye us to
The law is not what it used to be.
Unless the jury is instructed so that ii
Is able to render its verdict In accor-
dance with the law, trial by jury is
little better than mob rule. Yet this
fact seems to have had little influence
on Instruction ritual. The legal pro-
cess, while going to great lengths to
Insure that juries will be representa-
tive and free from bias and extraneous
Influence, has not protected them
against confusion and misunder.
This state of affairs depreciates the
justice system. It makes juries suscep-
tible to appeals, passion, and preju-
dice and lessens confidence in the re-
sults of jury trials. It Is clearly not in
the interest of the trial lawyer and the
lawyer’s client. Advocacy Is an appeal
to reason, to common sense, and to
those Instincts that animate man’s
sense of justice. A jury confused by its
task and resentful of its lack of under-
standing cannot be counted on In re-
spond to advocacy of a high order.
1 Iiix1aincnta1s
(Cwatisauedfrwn page 9)
polity. You should tell them that a
good expert admits when he Is uncer-
tain, acknowledges he has cried In the
past and doubtless will In (he future,
and concedes Indisputable facts even
when they are adverse. Point out that
a good expert cannot be goaded into
taking positions he has not consid-
ered carefully before assuming the
witness stand.
Next, review the expert’s testimony
with him, finding out what he has to
say, how Ii can best be phrased, and
what questions you should ask to elicit
that testimony. You should consider
whether the expert’s testimony can be
enlivened or made more comprehen.
sible with demonstrative evidence
such as charts, graphs, or slides. if
you decide to use such aids, the expert
should prepare theni or at least assist
In their preparation.
The structure of the expert’s testi.
inwiy is very important. At the outset,
of cuuis -, you must qualily the ex-
pert, hi must jurisdictions this in-
volves demuiisiratiiig that the subject
matter uI the testilsiuny is an urea in
which the trier oh l c will beiieflt by
some assistance and that the expei
has (he (ruining, skill, or experkiice
to provide that assistance.
Unless the substaiice uI the testi-
mony will not be disputed or the ex-
pert’s credentials are unimpressive,
the expert’s qualifications should be
set before the jury or judge in loving
(but also lively) detail. in view of the
Impact that such matters have on
those who weigh credibility, do not
surrender your opportunity to parade
your expert’s pedigree nor accept a
stipulation as to qualifications unless
the expert’s credibility definitely will
not be challenged.
Qualifications aside, (lie expert’s
testimony should be urge iiized like an
assault on Mt. Everest: first, climb
the mountain; second, plant a flag at
the top; and third, climb down. In
climbing up, the expert should detail
oH the preparation, study, experi-
mentation, rejection of alternative
conclusions, and analysis that lie Las
undertaken to formulate his conclu-
sions or opinions. The flag at the pin-
nacle Is the expert’s statement of his
opinion. In climbing down, the expert,
may explain the basis or reasons that i
support his conclusion. Taken In this
order, the expert’s testimony will be
understandable and will lend credi.
blllty to his conclusion.
Once you have formulated (lie
basic outlines of your expert’s testi-
mony, rehearse it with him. Rehears-
al is particularly important if you use
visual aids with the tesiiiiiony. if the
expert has mannerisms or speech pat-
terns that may detract from his credi-
bility, a videotape practice session is
often helpful. You theii can review the
videotape with (lie witness to inipruve
(lie presentation, and repeat the drill
to refluie the expert’s testimony to a
simple, pvrsuasiw perl rniaiice. Sun-
Ilarly, you should try to anticipate
cruss-czaminatioii and prepare re-
sponses to predictable areas of in-
Having followed all these fuilda-
menial guidelines, )UU and your ex-
pert should be nell prepared fur the
rigors of trial. Your expeit ill be, as
lie kuuld b , a euii Ilicilig sulesiiiaii
br )uur position. And }UU will be
equipped iv deal iihi ike opponent’s
experts us s vIl. Altt’i a Ic trials liii
espert Witiiesses, )uU hill be lhi cx
I )i cow1’)
ot’ I 4 X eii’s
(C’unsinuvdfruus p.sgv 10)
cementing an expert’s opinion into a
itiold that may be lnvumisistent ithi
the ladts. All human beings, imiclud-
lug experts, are also liable to use in ’
artful phrases or words upuii occa-
sion. infelicitous phrases iii an ex-
pert’s written rvpoii ate unnecessary
holes below his water line.
- The safest course is to ask an ex-
pert not to put auiythiimmg Into writing
. auless absolutely tiecussamy. H you
need an affidavit from nit expert, ask
him to tell you his opinion and the
bases for It, Draft the affidavit your-
sell’. Read itto (lie expert. (Jet his
approval. Give him only the Ilnal
draft to sign. All oilier dralts ntighit
be protected by the work product
doctrine. As the Supreme Court re-
cently stated, “(b’juiciiig au utturne)
to disclose notes and isiemitoranda ul
witnesses’ oral statements is par-
tk’ularly disfavored because it tends
to reveal lIme anurney’s mental plo-
cesses.” Upjohn c v. v. Unui’d
Siuses. 449 US. 3b3, 399 (19b 1).
The same Is true with getting an ex-
pert’s report. et ii orally.
In priucip)e, U’ au expert’s writlel
statenieimt to you Is discoverable, In
oral statenieiit should be as well. Du
a practical matter, the expert il
nut remember fur any length oh tinu
the exact terms of’ his oral stale
lU C uitb. -
Dcspite the addition ul Ruli
20(bX4 ) In 197U, problems iil
discusery of experts still plague tlii
I’ederal courts. Nevertheless, b
wilhiliuldiiig I’rumii your experts al
uthuer ise privileged miiaierial auid b
avoiding unnecessary written cviii
snunicatiuiis Ii viii and to an expea t
you can sidestep uiiaiiy vi’ t)ie serivu

1. Preparation
Set aside time well in advance (not the night before) to
prepare for your deposition. You’ll want to meet with your ‘
lawyer to review the pleadings, discovery and other
materials in the file. You should plan to discuss the
theory of the case and how your work fits in. You might
consider role playing with your own lawyer taking your
deposition to give you a feel for the real thing. Discuss
these hints—-your lawyer probably has more or he may want
to modify these.
2. Documents
Review them before (and bring them with you when) you meet
with your own lawyer. If you know what your documents say,
you’ll generally give a better deposition. If you examine
do iments while testifying, expect the Opposition to ask
for copies. All requests to provide materials should go
through your lawyer--don’t deal directly with the other
side. Three-ring binders are a good way to organize your
material; you can easily find and remove the materials you
need without thumbing through files (looking disorganized
in the process) or handing over more than you want to.
Stock your binder with clean copies .
3. Questions
Pause before answering-—it gives you time to think about
the question, makes your response seem more considered and
deliberate, and it gives your lawyer time to think and
object If he wants to.
Listen to objections——your lawyer may be trying to tell you
something. If your lawyer objects to the form of the
question you are still required to answer but often an
appropriate answer is 9 don’t understand the question-—
could you rephrase it?N Lawyers (usually inadvertently,
but sometimes deliberately) ask vague questions.
Look for assumptions In the question——you may or may not
agree w1t them. Get clarification If you need It.
Explain your answers. You cannot be locked into a simple
yes or ‘no——you have a right to explain fully If you
want to.
Don’t volunteer——Don’t Volunteer—-DON’T VOLUNTEER

4. Answers
Be aware of the basis of and limits to your knowledge. If
you know It as a fact, say so. If It Is only an estimate,
en understanding or a rumor, say so. A very goo9, but
seldom used answer Is ‘I don’t know.
Avoid absolutes. ‘Always’ and ‘never’ are dangerous. When
It’s appropriate, qualify your responses: ‘to the best of
my knowledge or •at this time.’
Remember that the other side is sizing you up. Be firm
about what you know and think; be forthright about what you
don’t know.
5. The Cold Record
The transcript won’t reveal a wink, a smile or the joking
context of a remark; the record Is cold and, If you’re not
-cogisclous of it, unforgiving. Don’t be suckered In by the
lawyer who claims to be ‘juzza country boy (gal) tryin’ to
make a livin’ in di big city.’
6. Take Frequent Breaks
Depositions are hard work for lawyers and court reporters,
but especially so for witnesses who are not accustomed to
the process. Take breaks to relieve stress, stretch your
legs, get a drink, talk with your lawyer . . . . Take as
many breaks as you want-.the,y won’t proceed without you.
7. Dress and Manner
Be comfortable If you’re not, your deposition will show
It. Normally, you’ll want to dress In your normal work
clothes, but check with your lawyer on this point——there
are often good reasons to depart from this general rule.
Be firmly polite to the other side. Their lawyer may
‘Iskyl and Hyde’ you to see how you’ll respond. The other
s$d.!s lawyer may attack you, your work or your opinions-—
don’t get drawn Into a fight. Remember the Cold Record-.
the other side may forget.
8. ‘D1d You Talk With Your Lawyer?’
‘Of course ’
‘What did he or she tell you to say?’
‘The truths’

9. Questions by Your Lawyer
Depending on the circumstances of the deposition, your own
lawyer may ask questions of you at the end of your
deposition to clarify your testimony, explain additional
matters or for some other purpose. This Is a good point to
discuss in advance.
10. Reading and Signature
After your deposition Is transcribed, you’ll have an
opportunity to read It and make any corrections you believe
are appropriate. It’s extra work but well worth the
effort. There are no perfect transcripts and some
(especially concerning technical matters) are absolute

RE: Preparation of Witnesses for Deposition
Prior to and during your testimony, I would like
you to keep in mind the following proc dural matters:
1. Listen to the question and make sure you under-
stand it. If there is any doubt in your mind as to the meaning
of the question, including any word used therein, request a
2. Pause before responding to a question and think
about your answer. You are in effect dictating a record. A
pause will provide an opportunity for your counsel to interpose
an objection, if appropriate.
3. After discussion of such an objection, plaintiffs’
counsel may either rephrase or withdraw the question. If he
does not, I will advise you to either answer the question or
direct you not to answer it.
4. You have the right to confer with your counsel at
any time. At certain points, counsel may also suggest to you
that a conference would be appropriate and we will go of f the
record and confer.

5. Answer only the question that is asked. Do not
attempt to anticipate the next question or embellish your
answer beyond what is required.
6. If there is a pause after your answer, don’t
feel that you are obligated to say anything more. Wait for
the next question.
7. your testimony should be limited to matters as to
which you have first—hand knowledge. For example, if you were
not present during a conversation, you are not competent to
testify as to what was said. Similarly, if plaintiffs’ coun-
se]. asks questions concerning matters outside your area of ex-
pertise, such as an interpretation of the Internal Revenue Code,
indicate that this is not your area.
8. There are various degrees of recollection, par-
ticularly with respect to matters which occurred many years ago.
(A) pecific Recollection — you
specifically recall an event, a state-
ment, or a doci.unent;
(B) General Recollection - you
don’t specifically recall what was said
during a conversation, but have a gene-
ral recollection of the substance of
what was said;
(C) Outlandish Statement — you
dont recall ever heariny this state-
ment but know that if you had heard
it, you would remember it; and,

CD) No Recollection - you don’t
recall an event, conversation or docu-
9. Do not speculate or guess. If you don’t recall
something or don’t know the answer to a question, say so.
10. Certain exhibits have been submitted to you prior
to the hearing. Review the exhibits and determine whether you
have ever seen each of the exhibits prior to your preparation
for the deposition. If plaintiffs’ cdunsel directs your atten—
tion to an exhibit and you don’t recall seeing it at or about
the date it was prepared, so indicate on the record.
11. If you recall seeing the exhibit, try and recall
the time, place and circumstances relating to it. Also deter-
mine whether you had any involvement in its preparation.
12. If you do not recall something, plaintiffs’ coun-
sel may refer you to an exhibit to refresh your recollection.
Review the exhibit and determine whether it refreshes your re-
!collection and so indicate on the record. Do not volunteer to
review an exhibit or any other documents from your
files to refresh your recollection.
13. In discussing dates, it is fair to use approxima-
tions unless you specifically recal) a date.
14. Plaintiffs’ counsel may ask you some hypothetical
questions. If they are based on facts in issue in this litiga-
tion, they are permissible. In e poncJing 1.0 such a question,
consider whether (1) the question falls within your area of ex-
pertise, (2) additional facts would be needed to frame an answer
and (3) additional research would be required.

15. Remember, plaintiffs’ counsel is attempting to
elicit information which will support his contentions. The
purpose of the deposition is not to tell our Bide of the
story and there is nothing to be gained in educating him con-
cerning our position at trial. We will take a break at the
conclusion of the questioning to confer with you as to any
areas which may require clarification on the record.

Defending Depositions
y James E. Daniels
DRosmoNs are often the climax of a
lawsuit. With claims and defenses for the
first time tested by an adversary, perspec-
tives develop that may determine when
settlement will come and at what price.
Some deponents rise to the occasion.
Others, on whom you may have counted,
cause unanticipated problems. The depo-
sition experience may prompt some
with -especially experts and other
volunteers—to develop an urgent desire
to use themselves from further partici-
pation. Most important, among the un-
happiest of clients is the one who vu
made to look a fool at a deposition.
The critical time for the defending at-
torney is before the deposition starts,
advice commonly offered but not so com-
monly followed. The witness must shoul-
der the major burden once the oath is
administered, and lawyers who have
done their job to that point should be
able to listen to the testimony with minor
Interruptions. The main defense against a
capable ewnming attorney a a thor-
_y — w ss-
A deposition on the horizon forces the
lawyer to do work that bad been put off
to another day. For once counsel will
have the client’s undivided attention as
that client anticipates a most unwelcome
sad possibly nnf iniliir experience. Thhe
advantage of the situation. It a a time to
uk—.nd insist on direct answers to—the
many questions that have arisen since
pleadinga were hanged . It a the last
dear chance to get the troublesome facts
brought out privately rather than publicly
and a final opportunity to figure out a
best face to put on them. Counsel’s abili-
ty to characterize the case ends as deposi-
tions begin.
Preparation Imperatives
It is most often a realistic and wise goal
in defending a deposition, whether plain.
tiff or defendant, to have the deposition
turn out to be a nonevent, with nothing
gained and no harm done. It is infrequent
that you warn the witness to re points
and demonstrate a potential to Iselify
effectively at trial. Whatever the specific
goal, these steps must b taken to pee-
pare witnesses:
• Witnesses must be made so fad it
ease with what they know. F opIe In a
position to testify without.substantial fray
of a tough question and an inartfully
phrased document will do a creditable
job. Apprehensive witnesses who muss
twist and turn to avoid real or imagined
traps rarely will escape unharmed.
The lawyer’s job is to show witnesses
that their knowledge is nothing to worry
about and, in certain respects, is an asset
to the case. This does not mean that the
attorney must brainwash deponents to
create a false sense of security. Some may
ny so slant perspective and recollections
to suit the case. Do not attempt that
approach. Find a way to harmonize what
witnesses know (and correctly remem-
ber) with the essential points of the case.
The point to press is that they have facts
that, if examined from the right perspec-
tive, are helpful. Even if altruism and
ethica could be put to one side, witnesses
who cook up stories are sitting ducks.
a Cross-examine witnesses vigorously
to simulate the reality of what is ahead.
Give deponents a tough time. As training
p(uv.ases , teach them how so answer by
pointing out various tedmical mistakes
(which almost always involve doing
something other than answering the ques-
usia asked) and explaining how a careful
answer would have avoided difficulties. It
may seem unpleasant to cross-examine
your own client, but the practice sessions
will be appreciated once the deponent ii
under &e.
• Witnesses must understand that their
main role at the deposition will be to
answer responsively and truthfully. Driv-
ing home the essential features of a ii-
spowive, truthful amwer is a job that
takes time and, for most people , requires
many sped& —. Wimmass must
be taught to understand the difference
between knowledge and surmise, be-
Sntora by 3 lsk
Octeber iNS • blam . 71

real impact. Thke advantage of the flexi-
bility inthe process to get off the record
fur these colloquies. Explain to the client
that tended dialogue between counsel
— benefits the court reporter.
Counsel must actively protect the
attorney-client privilege and the client’s
confidential information during the
course of the deposition. Courts find that
aibject matter waiver has occurred even
in the moss inadvertent of circumatances ,
even when the lawyer expreuly stated a
determination that the privilege not be
waived and the other side so stipulated.
They are particularly intolerant of the
lawyer who permits the opponent to in-
quire into areas that help the cause but
then invokes the privilege to block dis-
covery into potentially harmful areas.
Given h w blurred the line is, the safe
course is to err on the side of instructing
the witqess not to answer.
The better course yet I so d out
during preparation about any legal mat-
ters that Involved the witness , and at that
stage consider bow to deal with the privi-
lege. P actIng company dade saaeu
and other confidential matters aiso it best
handled ahead of time, both with a geod
proseetive order and In alerting depo-
nents to tell you they are about to dis-
close potentially confidential informa-
Sunyawalte _
One critical role fur the lawyer , and
not too obvious to mentlo. , it to cater to
the witness’s emotional, spiritual and bio-
— needs. On that score, there’s an
admonition that may sOund ridiculous
pt to one who has ever defended a
deposition: stay awake. Light lunches are
a must. Thke breaks from time to time.
Although probably no one has studied
this systematically, moss bad testimony Is
even between 300 and 530 p.m. It is
liperative that counsel keep witnesses
The final issue that arises it whether to
ask questions either to clarify or to devel-
op areas of testimony. It is conventional
wisdom that one should not examine
without a very particular reason , because
the self-serving testimony elicited only
opens the door to more questions from
the ether side. Depositions, however,
have so many pretrial uses—motion prac-
tice, expert analysis and settlement talks,
fur ezimple—that it may be prudent to
patch matters up on the spot rather than
leave the awkward testimony untouched.
lenses E. Danielt is a partner in the
New York City law firm of Warshaw,
Burstein, Cohen, Schlesinger & Kuk.
S ABA Journal, Tb. Lawyer’s M yi4n .

1 0. Did she give you any other reason as to
2 why she thought be was severely emotionally disturbed
3 other than be bad been up all night the night before?
4 A. Mo, that’s all she said.
5 -. Q. D JOU remember anything else , Sandra,
6 about that conversation with hiss licCaubey?
7 A. Let me say this. If she said anything
B else other than that, it wasn’t something that stuck.
B 0. Okay. That’s all you remember about the
10 conversation?
1 3. A. Yes.
12 Q. Okay. I don’t mean to go over and ever
33 it, but I’m trying to make sure, Sandra, I understand
14 what you recollect about these events.
35 A. I understand.
16 0. Okay. And I want you to have the
37 opportunity nov to try and reflect on that. You know,
18 do you feel comfortable that that v a the substance of
19 the conversation as you recollect?
20 hR. IIMRINCs She’s asked and
21 answered that twice.
22 0. (By hr. Edenfiel .d) Is that correct?
23 A. That’s all I can remember. If somethina
24 comes to me _ later, I’ll tell you .
I — — — a— - ‘ —
25 I a. Okay, tell your attorney.

I Go ahead.
2 MR. l RRILL: Your Honor, I apologize to Hr. Rogers
for proceeding in his absence, and in order he has the
full story, I will back up and start over.
(By Mr. Merrill) Mr. Dornbusch, in your direct testimony
6 in this case, you indicated that the approach and
techniques that you used in doing your economic feasibility
S analysis are those recommendedaud used by the Water
9 Resource Council, among other agencies, is that correct?
A. That’s correct.
II Isn’t it true that you regard the Water Resource Council’s.
12 principles and standards as authoritative in doing this
part of analysis?
& Not entirely. For the most part, I think they are correct.
a Do you h tve qualifications concerning the use of the
Water Resource Council’s guidelines?
17 TIlE SPECIAL MASTER: Does he have aualificatjons
for what?
i ii (Whereupon, the reporter read
(back the question: Do you
. () i (have qualifications concerning
(the use of the tlater Resource
21 (Council’s guidelines?
I Li
2 1 THE TIITUESS: Yes,I think in general the econor ic
‘.s principles that they describe are valid and useful, but I
dorr.busch — cross — merrill
Front ct• rcport ng Sctvicc
409 Wosi 14th S:rcci lot t ciwsst fluild%nç
C! ‘i:ine.

- _5979
think there are a number of dcrnarture that need to be
2 made, and we have covered at least onc and maybe some
3 others so far that we have made, that I think are more
4 correct, or I should say correct, no’c more correct,
5 but the correct procedures to use.
(Dy Mr. Merrill) Are you saying, then, that you don’t
7 believe that across the board, they are the appropriate
guidelines and standards and methods to be used in this
9 part of analysis?
10 A. Not across the board, that’s right.
Mr. Dornbusch, do you recall when your deposition was
taken in Cheyenne on January 12 and 13, 1981?
A. Was that my second deposition or first?
H It was the second deposition, I believe.
A. Yes, I do.
, (t Do you recall during that deposition I asked you questions
concerning the authority with which you regard the Water
, Resource Council’s guidelines?
A. In general, I remex ber.
u j a Do you remember the answer you gave at that time?
I A. Perhaps you could refer r e to the pac e and we could look
I directly-at that.
Ij Okay. I hand youa portion of the transcript of that
deposition, including the cover pages showing the
dornbusch — cross — merrill
Frontier Reportinr, Service
409 V.’c i .srcc, 1o i wu t Ijti:I n
‘ l ,OO1 C- pcr. W’•’ ‘
v.’: ‘ ‘ — ‘ -

11—4 t ! 5980
a appearances, and I refer you sp cifica11y to the line -
2 I of questioning beginning on rage 294, Line 17. Would you
please read that portion of the transcript into the
4 I record?
A. 294, where?
Line 17.
7 A. Okay. Do you want to take your part, and I’ll take mine?
S No, would you please just read it as it appears in the
RU ._A11 right.
ai Questiori. (By Mr. Merrill) Dave,
what is your opinion concerning the appro—
priateness of the Water Resources Council
guidelines in evaluating the feasibility
of this irrigation project for these five
: projects?
Answer. The Water Resources Council
Question. Yes.
a; •. Answer. It is my opinion that those
are appropriate to use.
Question. Do you have any qualifica—
R S tions of that opinic n, across the board they
are appropriate guidelines for use in the
kind of analysis that you perform?
Answer. Yes, I think that the princi-
ples that they suggest are the correct ones
to use.
Qucstion. flow about the methods that
they suggest?
Ms’ er. t ell, that’s —— I think th
— c os — mcr jl1

general principles that they suggest are
the correct principles to use and the
2 methods that you must use in order to
adhcre to those principles are the correct
3 ones, those are the ones that I have used.
4 TUC WITUCSS: Shall I Continue?
3 Q. Yes, please continue through Line 12.
6 A Okay.
7 Question. Okay, so you would regard
the WRC guidelines as authoritative in doing
S this kind of analysis?
9 Answer. Yes, I would. ,
10 And I believe that’s —— I don’t recall that th
J I were corrections made to that statement, but as I S.
12 essentially, the guidelines are correct. What I tr.
3: 1 to do here in my answer is to distinguish between tI
‘3.3 specific-principles and the methods, and what I was
33 here is that the principles, in general, do apply.
I J methods, however, are —— the methods to be used shot
17 used with some judgment, and I believe the methods I
used were reco nended by the IIRC. The ones I used
I9 the correct ones to use. I have described here, anc
2(1 think we also talked about this in my deposition, t
. . i that I did deviate with respect to some things, suck
‘the’norrnaljzatjon of costs. That is also part of t
. ii deposition.
f r. Dornbusch, I hand you what h s been marked for
dornbusch — cross — merrill
Fncic::.. c c ::
r’ W . ’:t Ceh £ir Z03 MIdw.
1:t,., V/i.’ t.: r.: c 1 -

16 Q. Ms. Matthews, can you tell us what, your current
17 occupation is with the Environmental Protection Agency?
18 A. ‘in a Hydrogeologi .st in the Waste Compliance
19 Section.
I 20 Q• long have you been in that position?
A. jear and a half at EPA.
Q. Prior to coining to the Environmcnta]. Protection
23 Agency, could you give us a brief dcscription of your work
25 A. I was a Hydrologist at USGS for six years.
Certified Court Roporters

Q. What did your duties entail at the USGS?
2 A. A lot of field work. When people have problems,
I’d take water level measurements in wells. People would
tell me where they needed some mo Le hydloloyle, qeoloqic
data. I would go out, drill the wells, supervise the drill-
6 ing crew, get all, the geologic logs of the wells, take
7 water quality samples, run cores, run geophysical
c. 8 logs; bring all that back in the office, write up reports
9 that people could use in water resource investigations.
10 Q. And how long did you serve as a Hydrogeologist
11 for the USGS?
12 A. Six years.
6 13 Q. What is your educational degree in?
14 A. I have a B. S. in Geology.
15 Q. And when did you obtain that Degree?
‘ 16 A. December, 1977.
‘ 17 Q. Did you have any special honors when you were
2 18 an undergraduate?
19 A. The Michael C. Levy Scholarship.
I 20 Q. And what was that?
o 21 A. In Geology.
22 Q. Do you have any publications to your credit in
23 the field of hydrogeology?
24 A. Yes.
25 Q. What are those publications?
Certified Court Reporters

A. From 1979 to 1982, I was in charge of getting
2 out the ground water data resources for Georgia for the
3 USGS. I wrote up a Water Resource Investigation for a
4 big drilling project I had in Waycross, Georgia, and when
5 I left the USGS, I had two that were in —— well, they
6 were in limbo really; they were in the process of being
7 printed. One was for an Athens hydrologic study I had been
8 working on, and one for the Coastal counties of Georgia,
ç the hydrology and geology. -
2 10 Q. Can you tell us something about what your duties
are with the Environmental Protection Agency?
12 A. I review Ground Water Monitoring Plans to make
13 sure they conform with the 265, Subpart F regulations.
.2 14 Q. Can you be a little more specific about the
15 nature of the review that you conduct?
16 A. Okay. I look at the Ground Water Monitoring
17 Plans and make sure the well system they have installed
18 at their facility is adequate in the ways of well location,
19 well construction. I make sure they are sampling for the
20 correct water quality parameters. I check the water quality
21 data to see if there has been contamination, and I just
make sure that they are doing what they should be doing.
23 Q. Have you ever conducted any Interim Status Inspec-
24 tions of regulated facilities?
25 A. Yes.
Certified Court Reporters

1 Q. What doc s that involvc’?
7 7. Well, you qo out in the field; you do record
3 research; you makc sure they have what arc like rnanifcsts
4 on file. You check the facility; you check —— Okay.
5 For me, when I go out, I just do a ground water review.
6 I make sure they’ve got the wells in where they say they’re
in. I check to make sure they are constructed as properly
8 as you possibly can, just looking at them from the surface,
c and I really rely on their well logs and well construction
2 10 data and water quality sampling and files.
11 MR. ALLEN: Your Honor, at this time, I would
12 like to offer Ms. Matthews as an expert in hydrogeology.
MR. PEARSON: No objection.
.2 14 JUDGE YOST: She will be so accepted.
Q. Ms. Matthews, as of May 3rd, 1984, can you tell
17 us how many wells a ground water monitoring system was
18 required to consist of?
19 A. You have to have one up-gradient well and three
T 20 down-gradient wells.
71 Q. When you say “up-gradient”, could you explain
22 what you mean by that?
23 A. Okay. That means that if -- Okay. I can best
24 explain it by giving an example. If ground water flow
25 is to the south, you would probably want a well north of
Certified Court Reporters

Back to. the Students’ T-test, Ms. Matthews, are
of the fact that it has been challenged by --
Yes, yes. I get phone calls every day.
Tell us about that challenge.
They just say that sometimes the data can sort
Certified Court eporters
p ..
you aware
2 A.
25! A.
d )

4 3
1 of skew the results to either positive or negative, and
2 it could show that you’ve got contamination when you really
3 don’t, and vice versa.
4 Q. Well, I guess by “challenge”, —— And I should
5 have finished my question. I mean challenged by industry,
6 environmental groups, and virtually anyone interested in
7 this program, in the Court of Appeals in the District of
• 8 Columbia.
9 A. All I know is that people call me on the telephone,
10 yelling az d screaming about it.
Q. Did you know that your Agency has contracted
12 with the University of California at Berkeley to restudy
13 the whole Students’ T?
2 14 A. Yes.
15 Q. Why do you suppose they’d do that?
16 A. I guess because so many people were calling in,
17 yelling and screaming about it.
18 Q. Well, in other words, they are calling in and
9 yelling and screaming because there is some failure with
i 20 the test or methodology or --
21 A. I think they have sort of lost their confidence.
JUDGE YOST: Who has?
u 22
23 THE WITNESS: Everybody.
24 JUDGE YOST: Does that include EPA?
25 THE WITNESS: Sometimes, yeah.
Certified Court Reporters

I 46
7 Q. Well, why would EPA -- If EPA had all this
confidence in it, why would it contract with the University
4 at Bcrkclcy to restudy the whole thing?
5 A. Because we’re trying to come up with better ways
o to do T-tests, or a better way to come up with an answer
7 that, yes, you polluted the ground water or, no, you didn’t.
• 8 I mean but nobody has been able to come up with any-
9 thing, in the meantime, that works as well as this. I
IC mean everybody yells and screams about it, and I say,
send me something in saying you can do it better, and they
17 never did.
13 Q. But in spite of that, I have tremendous trouble
2 14 understanding how important such a test could be, in fact,
15 how it could form the basis of a major violation, when
; 16 the test is no good and it’s still being studied.
17 A. You use it as a flag to tell you that something
18 is wrong. I mean it’s what we’ve got to work with, and
it’s in the regulations, whether you like it or not. I
i 20 mean there it is.
21 Q. Bang.
JUDGE YOST: Take that.
23 THE WITNESS: That’s what I tell them. I mean
24 what else are you going to use?
25 JUDGE YOST: Don’t ask that of the present
Certified Court eporters

Advuo y Board
J Patnck Hazel, C a,nnan Faas4y Spoiuor
Professor, The Urnveratty of Texas School of Law
F Scott Baldwin
Jones, Jones & Baldwin, Marshall, Texas
Kenneth S Broun
Dean, The University of North Carobna School of Law
Thomas C Gee
Circuit Judge, United States Court of Appeals for the Fifth Circuit
John L Hill
Hughes & Hill, l)allaa, Texas and Austin, Texas
William C Hundley
Hundley & Cacheiu, PC, Washington, DC
Robert £ Keaton
District Judge, United States District Court for the District of Massachusetts
Harry M Reasoner
Vinion & Elkina, Houston, Texas
David W. Robertson
Gravel, Robertaon & Brady, Alexandria, LA
John F Sutton, Jr
Dean, The University of Texas School of Law
Irving Younger
Williams & Connally, Washington, DC
The Review oJLmgabas gratefully acknowledges the financial support
provided by the firm of Coke & Coke, DalIa a , Texas
The Ratssw fL.wgataw (ISSN 0734-4015)1 1 pubinhed at The Univcrsity of Teaai School of
Law, 727 £ 26th St • Ausiut, Texas, 78705, (512) 471-5151, three timer a year—Winier,
Spring, Summer Subscnptiona are $1500 per year Single onpier ale $500 lee the current
volume and $600 back isitas. Subimptioni axe autoaiaucaiiy renewed upon expiration
,anlcss noi of termination is rresivcd
Ce ,y t .jEi C l%2, 1Maams f Tw Law Sc4 at! ht
Depositions: Objectives, Strategies, Tactics,
Mechanics and Problems*
Dennis R. SupIee
I. Introduction ... 257
II. Preliminary Considerations . . . 258
III. Scheduling and Preparing for the Deposition 262
IV. Objectives 266
4. Th.rcow or Athous:o,u? .... 266
8 Other Objatuvs 270
V. The Lawyer’s Manner 271
VI. Strategy and Tactics 272
A. Ciruutg the W:bzgu Ccwznuued to Certain ñopasmans—.
Erfteaal ’y an IWuy and Fradwe 274
8 E.rtabluhu*g a Jh,nue W wh Ma, Thu to &‘aape the
Next A n swer 276
C Wording the Question Aggresswrl , 277
.O Stating the 2)vpcnmt s Paulson Bold?, . . .. 278
E Faring the Who-Cares- What-the-Answer-Is Question . 279
F Establishing the Ok’sosu. . .... . ... 280
C. Pulling Hunself in the Witness’ & oes 280
H austing the Knawledge of the Witness 281
VII. Mechanics and Problems (and More Tactics) . . . 281
A. Who &Lr Where 282
8 TheOath 283
C The Presence of Others 283
“The ( .4ual Slspulalsans” 284
/ Signing 285
2. Cat fratum and Sealvtg .. 285
Copynght 1982 by Dennis ft Stapler
t B S 1964, St Joseph’s University, Ii B 1967, Uniweniiy of Pennsylvania Law
Sthooi Mr Supireis a panDer in Schnader, Harmon, &g&l & Lewis, Philadelphia. He ii
indebted to Douglas M Reever, BJi 1978, Haver rd College, j D 1981, Stanford Univer-
sity, for his ltanea us preparing thai artide Mr Stapler and Mr Reevos are members of
the Pennsylvania Bar

IVol 2 255 1982J
3 Filing
I Resei’vmg Objections Except as to Fosm
E The Intetiogoior’s Prel,msna y Instruchons to the
F The Need to Visualize what the Transaipt Will Look
Liks .
C Pnoote Conzvr .raliwu Retusan the Witness and His
H Renewing Instmchons to the Witness and liwuing
Recapuulatmg Con#athctoiy and Disjointed Testunony
The Witness Who Knows—or Claims to Know—Too
Lit tle
K The Witness Who Says Too Much
L The Witness Who Fights the Objeawe of
the Iiaknvgator
M The Lau vr Who & ys Too M ith
N The Witness Who Needs Time
0. Going Of the Record
P Slarbng and Ending Times and Breaks
Q Cowuel r &aa,wu to Answers—Cord or Bad
Dewwnsntc aid Drawutgs
S Objections
T Iristnic&o&s Not to Answer
U O iainu Riding: an Instncctions Not to Answer
/ Where to Apply
2 WhmtoApp?y
3 WhethertoReass
V ( uertuuw g One’s Owe Witness
W Recessing or Concluding
X Videotaping
Y &wvnanzuig the Testimony
Z Reading and Comectuig the Transcript
VIII Preparing the Witness to Testify
IX Conclusion
I. Introduction
Depositions are the most important of the pretrial discovery tools
In evaluating the strength of a case for settlement purposes, litigators
accord great weight to the performance during depositions of both
their own and their opponents’ witnesses Further, if a case should go
to trial, the deposition transcripts will usually be the lawyer’s most
important resource for cross-examination
Of all the pretrial discovery tools, depositions require the greatest
technical skill. The Interrogator must plan and craft his questions
carefully—yet be prepared to take a completely diffcrent tack de-
pending upon the answers given, the personality of the witness, and
the scope of the witness’ knowledge The opposing lawyer must pre-
pare the witness carefully (assuming that the witness is his client or is
cooperating with him) since he has little control once the deposition
The lawyer who serves the notice of deposition typically will be
the principal interrogator and, aside from the witness, the principal
actor Accordingly, this Article speaks generally, though not exclu-
sively, from the perspective of that interrogator For the most part,
the witness is assumed to be the adverse party or otherwise hostile to
the interrogator. The penultimate section of this Article covers op.
posing counsel’s task of preparing the witness for the deposition
This Article discusses various objectives, strategies, tactics,
mechanics, and problems in taking depositions By and large, there
are no “right” answers to the questions raised, but the lawyer who
considers such matters in advance of the deposition should do a bet-
ter job of interrogating the witness.
To make this Article useful to recent law school graduates, as well
as to more experienced litigators, basic propositions are articulated
rather than taken for granted Generally, it is assumed that the Fed-
eral Rules of Civil Procedure apply
Organization of this subject presents a major problem Each idea
tends to be entangled with several others. Separating them out for
individual treatment may be tedious and artificial; leaving them
jumbled may be confusing This Article attempts to reconcile the
conflict by examining each topic individually but showing how it
connects (or is at odds) with others

IVol 2 255 1982]
H Preliminary Considerations
The most important preliminary question is whether to take the
deposition The attorney must carefully consider several significant
1 Depositions are expensive. Consider the time spent preparing
for the deposition, taking it, reporting on it to the client, and summa-
rizing the transcript, not to mention the cost of serving a subpoena, a
witness fee, the reporter’s charges, and possible travel expenses
2 The interrogator may preserve testimony harmful to his cli-
ent which otherwise would be unavailable at trial’ Adverse wit-
nesses may die. Harmful nonparly witnesses may move away or just
disappear, their memories may fade and their interest wane. While it
is understandable that a lawyer may want to know precisely what
testimony he must prepare to meet at trial, it is not impossible to
cross-examine a witness without a deposition transcript (as criminal
lawyers demonstrate every day of the week) At the very least, it may
be wise to consider postponing the deposition of a witness expected to
give harmful testimony
3 By taking a deposition, counsel may waive an objection to
the competence of a witness For example, a party may waive the
Dead Man’s Act 2 by deposing a witness who would otherwise be pre-
duded by the act from testifying 3
4. The interrogator almost inevitably reveals to some extent
through his questions what he believes to be important to his client’s
daim or defense and what he plans to prove at trial For example, if
I . Feo K Civ P 32(a)(3). Fea K Evm 804(b)(i)
2 Li v g neI U J WIOMOMs, A Tas . issi ON flsi A AMsaICAN Sysrsss no
Evwuicz ni TaIAI.s Al COMMON LAW § 578 (Chadbourn rev 1979)
3 fe, E Wcsic Tss. TI5iI ON Thsi LAW ov Dsi,nomopes § 436 (l880). Annot, 23
A LR 3d 389 (1969) In federal onuul, state competency rules such as the Dead Man’s Act
have no effect exeapi “with respect to an clement of a claim or defense as to which State law
tuppliet she nile oldccssion” Fiw K Evto 60i It is n o t settled whether st tc law governs
waiver when a state competency nile applies in federal noun Ccespsiv 4A J Mooje & J
LucAs, Mooax’a FsioitaAs. Pascncsi 32 10 n I (2d ad 1981) (“Taking and filing a deposa.
lion does not ennsiuuse a waiver of the ‘dead man’s’ statute”) with 8 C WRiGHT & A
Mtii.e.a, FitOsiRAl. PP.ACflC AND Paocstrxiae § 2152 (1970 & Supp 1982) (state law shouid
go n waiver assue)
Sesnetunes there may be a practical way to preserve the objection while obtaining the
desired deposition For example, in a case in which the plaintifl’s testtmony is barred by the
Dead Man’s Act, ii may be feasible to have the plaintill’s deposition nouced and taken by
counsel lo, defendant B (who has a good legal defense to the piaintilFs claim) instead of
counsel for defendant A (who may have real exposure) So the act may be waived as to B
(who has a good defense) but not as to A
the defendant’s counsel presses the plaintiff for an unambiguous
statement that he was never previously involved in an accident caus-
ing personal injuries, the plaintifFs counsel may accurately sense that
the interrogator has evidence of a prior accident lithe plaintiff’s
counsel later learns from his client that his instincts were right, he
may then instruct his client to correct the deposition transcript 4 and
thus effectively dilute the impact at trial of the original erroneous
5 The interrogator forces his opponent to learn the case His
opponent will assimilate a good deal Just by preparing his witnesses
and listening to the questioning
6 The deposition also provides the witness with a dress re-
hearsal The witness will do better next time—at trial—because he
knows what to expect. A witness who is rattled, evasive, and unre-
sponsive at his deposition may perform quite well at trial His dis-
comfort at the deposition will rarely appear from the dry transcript
The jury will see only the interrogator’s chagrin
7 The interrogator may alert his opponent to the existence and
importance of a witness For example, in an antitrust case, if counsel
decides to take the deposition of a relatively low-level employee from
the opposing side on the outside chance that he may know something
useful, the interrogator may find that the witness knows much more
about the nitty-gritty of competition between the parties than the
interrogator wanted to hear But for the deposition, opposing coun-
sel might never have considered that person as a possible trial
8 The lawyer serving the notice must recognize that his oppo-
nent is likely to respond in kind If a notice is served for the deposi-
tion of the opposing party’s secretary, a counterpart notice is likely to
be served the next day by the other side
Having considered these disadvantages, the lawyer should ex-
amine the alternatives to depositions Answers to interrogatones and
production of documents may suffice A telephone interview may
produce remarkably good results Although a witness is likely to be
skittish about a telephone interview with an attorney, he may find
that prospect less odious than appearing in person for a deposition
4 Liv Fi o K Civ P 30(e)
5 &is Model Code of Professional Responsibility F .C 7-18, DR 7-104 (1979) (barnng
asmc direct lawyer-witness contact)

(Vol 2255 19821
At the least, the lawyer will get a good reading on whether the wit-
ness is friendly to his client’s case A face-to-face interview is another
alternative The lawyer may want to follow up either a telephone or
a personal interview by sending the witness a memorandum summa-
rizing what he said, perhaps with a request that the witness advise
the attorney of any inaccuracies or that the witness sign and return
the memorandum.
Another important preliminary consideration is where to fit dep-
ositions into the overall discovery plan. 6 Many lawyers prefer to ini-
tiate depositions only after the opponent answers comprehensive
interrogatones and produces many documents By proceeding in this
way, the interrogator will be better prepared—but so will the wit-
ness. The lawyer for the witness will use she interrogatories as a
checklist of subjects likely to be covered at the deposition’ Addition-
ally, the witness will receive the opportunity to review the answers to
interrogatories and the documents macic available to the other side,
thus refreshing his recollection of the underlying facts. Moreover, the
time for starting depositions will probably be ddayed while the infor-
mation necessary to answer interrogatories is collected and the docu-
ments are assembled. This delay may work to the advantage of the
witness who has more time to assess possible weak points in his testi-
mony and to plan how to deal with them
The interrogator should thus consider more limited discovery as a
prelude to depositions, such as obtaining only answers to a limited set
of interrogatorics and certain key documents, or obtaining only
The lawyer may also consider scheduling a deposition immedi-
ately 8 without waiting for answers to interrogatories and docu-
ments. 9 The interrogator should first ascertain what he is likely to
learn from answers to interrogatories and documents that may be
useful in the deposition. If he is likely to learn very little, the interro-
6 Sat FaD K Civ P 26(d). Proposed Amendment, to the Federal Rules of Civil Proce-
dure Relating to Ducovery. 48 F K D 48), 506.07 (i970) (hereinafter cited at 1970 Advijory
Committee Notosi, A. MORRiLI ., TRIAL Dsps .ou4Cy 1212 C2d ed 1972) ( ,ugge.amg that
detailed background data .uds a, name. and dates be diacovered through interrogatorie. first
in order to save time at deposition)
7 The lawyer filing answers to mterrogatone. ihouid carcfuiiy select the affiant thereto
became opposing counsel may serve a notice be that person’s deposition
B Thu i ,,of course, subject to the time limit imposed cii a plaintiff by rule 30(a)
9 Set Fan K Civ P 26(d), i970 Mvuory Coinnuttee Note., o note 6. at 506-07
lnioToptones and a document requcit may be served with the deposition notice, but with a
later roiponse date, or served after the deposition si completed
gator may decide to start discovery with the deposition Consider,
for example, a case in which the claim is that the seller made oral
misrepresentations about his product The buyer’s attorney may
conclude that since the seller is not likely to make admissions when
given ample time to ponder the questions, inlerrogatories will elicit
little helpful information and may provide the opposition with a list
of topics likely to be covered at the deposition. The buyer’s attorney
may also decide that the seller has probably not generated docu-
ments tending to show the misrepresentations, thus, a document re-
quest probably will not produce much In this situation, it may be
best to get the seller into the witness chair at the earliest possible
time, rather than wait for the completion of less promising discovery
Some cases may call for alternating forms of discovery For ex-
ample, in a complicated case in which the deposition is likely to take
several days, it may be worthwhile to schedule only one day for the
deposition and then recess until other discovery has been completed
In some cases, the interrogator may schedule a deposition early in the
discovery process to learn about the opposing party’s documents and
thus prepare a reasonably specific document request.
Another preliminary decision is the order in which to depose wit-
nesses In most instances, the lawyer will first depose the more im-
portant witnesses and then move to those of secondary importance
In cases with complicated facts, however, it may be best to start with
a less important witness who possesses a good, basic knowledge of the
operative facts For example, in an antitrust case, the plaintiff’s
counsel may decide to educate himself about the industry and the
defendant’s method of doing business by deposing a middle-level em-
ployee of the defendant. The deposition of the president of the cor-
porate defendant, perhaps the single most important discovery event
in the case, may be taken much later If the corporate president is
deposed too early and claims to be uninformed except in the most
general way on certain subjects, the interrogator’s knowledge of the
facts may be too pnmitive to allow him to press the deponent effec-
tively If, after other discovery, the plaintiff’s attorney wants to re-
sume the deposition of the corporate president, defense counsel may
iO “During a tnal iii . traditional to put your client on after your wihnone. have trio-
fled You want him to hear what they say before hr testifies. Turning this defensive
ploy around, generally depose the adverse party beFore you depose his aupposting cast oF
na t han and ne’er-do-weIIs.” K. HSGLAND. TRIAL AND PRACflCS SlUt.Ls IN A Nu,sstw. 258

(Vol 2 255 1982J
seek a protective order to prevent reopening the deposition ii Coun-
sel for the plaintiff may have a difficult time persuading the court
that he should have a second stab at the president
The client should be consulted about many of these preliminary
considerations He should participate in deciding whether deposi-
tions should be taken, what other discovery should be conducted first
and in which order the deponents should be listed The client often
will know who on the opposing gide should be knowledgeable about
a given subject as well as the personal characteristics of the depo-
nents Moreover, the client should know and approve the antici-
pated cost of the proposed deposition program A client who
understands what the lawyer is doing and why is more likely to be
satisfied, especially if he has had a chance to participate in the under-
lying strategic decisions Indeed, the interrogator may decide to have
his client present at the most important depositions. The client may
supply good follow-up questions, will know better what to expect at
his own deposition, and will better understand the strengths and
weaknesses of his claim or defense. Similarly, if the interrogator will
be deposing the opposing party’s expert, he should consult his own
expert in advance of the deposition. He may decide to have his own
expert present at the deposition of the opposing expert to suggest
lines of inquiry based on the answers given.
III. Scheduling and Prcpanng for the Deposition
The lawyer schedules a deposition by serving a notice stating his
intention to depose a certain witness U The notice must include the
name and address of the deponent, if known, and the date, time, and
place of the deposition.’ 3 If the deponent is a party, the service of the
notice is sufficient to require his appearance at the deposition, and a
subpoena is unnecessary.’ 4 The notice may be accompanied by a
request that documents and tangible items be produced at the depo-
ii Su Ft,n K Civ P 26(c)(i)
i2 Fso K Civ P 30(b)(i)
iS II Rule 29 permita the parttm to vary the Form of notice by wntten stipulation F o
R Civ P 29(i)
14 Su Fso K Civ P 37(d), 1970 Adviacry Committee Notet, sitpa note 6, at 542 No
vubpoena ii required to depose an oáficcr, director, or managing agent of a patty, failure of
such a person to appear at deposition after being served with proper notice n treated so the
failure of the patty Su id For discussion of who is considered a “managing agent” of a
party,seeJ MOoab &J LUCM,S1 Sra noteS, at 13055111
sition, in which event the procedure of Rule 34 applies II If the de-
ponent is not a party, he should be served with a subpoena ‘ Indeed,
if he fails to appear because not subpoenaed, the court may impose
costs of other counsel upon the party giving notice of the deposi-
tion If a subpoena duces tecum is to be served on the deponent,
the notice should include, or have attached to it, a designation of the
materials to be produced IS
Other counsel may request that the deposition be taken at a loca-
tion other than that designated in the notice 19 For example, counsel
for a corporate defendant will often successfully argue that the depo
sitions of his client’s employees should be taken at the corporate
headquarters, particularly when the headquarters are not located
within the jurisdiction where the case is pending But defense coun-
sel should use caution in suggesting that the deposition be held at the
defendant’s headquarters since opposing counsel may benefit from
overhearing conversations in halls or on elevators or from seeing pho-
tographs, slogans, or graphs on the wall Additionally, the deponent
may confirm that the company has certain documents, and the inter-
rogator may request that they be produced immediately at the depo-
sition Although the deponent is not technically obliged to produce
such documents, a refusal to do so (if the records are readily avail-
able) may appear arbitrary to the court, and the court may allow the
interrogator to reopen the deposition after the documents are pro-
duced To avoid such dangers, counsel for the corporate defendant
may choose the intermediate course of requesting that the deposition
be held near, but not at, corporate headquarters
Alternatively, other counsel may accept the designation of place
by the party serving the notice but argue that the serving party
should pay the witness’ or counsel’s travel expenses in connection
with the deposition 20 A party serving notice for the deposition of a
witness, party or nonparty, outside the jurisdiction of the court where
iS F o K Civ P 30(b)(5) itunotderwheihcrthe3yreipop. jofruk
applies to a requeti for production under rule 30(b)(5) Su C WRIGHT & A Miu a, ft Vd
noteS, § 2108
16 S Ft o K Civ P 30(a),45
i7 Fs o K Civ P 3O(g)(2)
i8 Fw R Civ P 30(b)(i) The rationaJe of this requirement is to enable each party
“to prepare ior the depotiiion more effectively” P970 Advisory Committee Notes, s pa note
6, at 514
i9 Fu R Civ P 26(c)(2),us 4J Moost. &J LuC ,ntpa note 3,126 70Ji -2to-3l
Ruie26(c)maybeinvohedbyanonpanywIt,i soweiisobyapa y Suid 126701i.il
20 S r i 4 J Moo i & J Lucv , raps nose 3, 1 2677, at 26-550 to -552

IVol 2 255 1982J
the case is pending should recognize the substantial danger that he
will receive a request from some other party for reimbursement of its
travel and related expenses
A party seeking to depose the opponent’s expert must usually pay
him a reasonable fee for the time he spends responding to discov-
ery. Such payment may be required not only for the time during
which the expert is being deposed, but also for preparation and
travel time.rs
The notice may name as the deponent a corporation, partnership,
association, or governmental agency and should describe with rea-
sonable particularity the matters on which examination is sought
The organization named must then designate one or more officers,
directors, managing agents, or other persons who consent to testify
for the organization to appear at the deposition It may be easier to
use this procedure and thereby compel the organization to identify a
witness than to select a name based on limited information and hope
that the witness is sufficiently knowledgeable Of course, if the or-
ganization is an adverse party, it may not identify the most knowl-
edgeable or helpful witness to appear at the deposition
The deposition will ordinarily be stenographically recorded but a
recent amendment provides that the parties may stipulate in writing,
or the court may order, that other means of recording be used. 2 ’ ,‘ ,J ..
21 &,jd az26-346to-348. Fomampeofaiocalruleonthissubjeci, .eeE.DNY
Civ R 5(a)
22 Fs.o ft Civ P 26(b)(4)(C)(i)
23 Note that the privilege of deposing a party’s expert may be made contingent by the
court upon notopetianion to that party of a “lair portion” of the expert’s Ice Fw R Civ P
26(b)(4)(qfu) This nomponsasion. which is in addition to that paid to the expert for his
tune, may be ordered by the court either before or a er the discovery from the expert is
completed Su 1970 Advisory Committee Note., a Ora note 6 at 503
24 Pea ft Civ P 30 )(6)
23 1 • ies i4. rita ft Civ P 37(a)(2) (order compelling designation)
26 One purpeee o(thc rule is to dispense with the need to depose many witnesses in the
search (or those with relevant knowiedgc Su 1970 Advisory Committee Note., ia/re note 6,
at 313
27 1 ’be parties may stipulate in wnting or the court may upon motion order that the
testimony at a depossuan be recorded by other than stenographic means” Fw ft Civ P
On the misc of what discretion he, in a district court to deny a motion (or an order
allowing nonitcoographic recording, eesip s ii is Sessions, 672 F 2d 564(5th Cit 1982), Ret-
terv UnitedSiatcaDist Ct,27 Fed ft Serv (Callaghan) 801 (SihCir i 9 ?9)(percunam),
and International Union v Nail Caucus of Labor Comma • 525 F 2d 323 (2d Cir 1975), wiLe
Colonial Times, Inc. v.Ca , 509 13S1 l7 (D.C. C.ir, 1913), ewal?, Annot, i6 A LR
Fed. 969 (i973)
though lawyers tend automatically to order a stenographer, the use
of a reliable tape recorder may suffice when the witness’ testimony is
not expected to be controversial or lengthy
Normally the witness will appear in person to testify but the par-
ties may stipulate in writing, or the court may order, that the deposi-
tion be taken by telephone 211 This procedure is also of recent origin,
and it is not yet clear to what extent it will be used It is understand-
able that an attorney will wish to depose important witnesses in per-
son Nevertheless, in some cases the savings in cost will outweigh the
advantage of having the deponent physically present
To prepare for the deposition, the interrogator should review the
pleadings, answers to interrogatories, documents (his own client’s
and those produced by the opponent or other witnesses), prior depo-
sition transcripts, and memoranda on the underlying facts He
should consult his client to discover additional areas of inquiry Ide-
ally, the interrogator should take a “hands on” approach and, to-
gether with his client, visit the intersection, inspect the punch press,
or walk through the site where the toxic fumes are said to have accu-
mulated Similarly, the witness and his counsel should consider do-
ing the same The attorney who makes this additional effort is
almost always better prepared as a result
The interrogator should also familiarize himself with the impor-
tant applicable case law, particularly the most recent decisions Af-
ter this preparation, the attorney should take time to set aside the file
and just think about the case
If the witness is not hostile and no ethical barrier prohibits it,
the interrogator may elect to talk to the witness in advance of the
deposition explaining the procedure, exploring the witness’ knowl-
edge of the matters in dispute, arranging a convenient time for the
deposition, arranging a convenient and unembarrassing time for
service of the subpoena, and reaching an agreement on the witness’
compensation Technically, the witness is entitled only to the statu-
tory witness fee,’° but the interrogator may agree to compensate him
28 “The parties may uipuiaie in wnting or the court may upon motion order that a
deposition be taken by telephone For purposes of (Ruie 30J and Rules 28(a), 37(a)(i),
37(b)(i) and 45(d), a deposition taken by telephone is taken in the disinct and at the place
whert the deponent is to answer quauions propounded to him” Pu) R Civ P 30(b)(7)
29 & Model Code of Profesxionaj Responsibility EC 7-i8, DR 7-i04 (i979), AN RiCM
B*a Founa -non, ANNOTATS.D CODI mi PaO LssiONAt. Rs , por4si ,iLrry 331-42 (i979)
30 Su 28 USC. § i82i (Supp I II 1979)

IVol 2 255 1982J
for expenses and lost wages
Finally, the interrogator should prepare a written list of the ques-
tions he intends to ask With this list, the attorney can ensure that he
raises all pertinent issues and, where the wording of a particular
question is critical, that he asks the question perfectly
IV Objectives
A Dwoi y or Athnau:ons?
The two principal, and often conflicting, objectives of depositions
are obtaining discovery and obtaining admissions The purposes of
discovery are, first, to squeeze the witness dry of all relevant infor-
mation, and second, to bind the witness by his own testimony to a
particular set of facts. To achieve these discovery purposes, the inter-
rogator must continually invite the deponent to talk For example,
the interrogator may ask, “Are there any other facts upon which you
base your claim (or defensej that .“ until the answer is “No”
To acquire admissions, the interrogator typically will frame his
questions narrowly and, should he obtain the admission, switch to
another subject to prevent retraction or dilution of the admission by
the witness Of course, by switching subjects, the interrogator neces-
sarily risks sacrificing important discovery
Obtaining discovery is thus essentially defensive since the interro-
gator wants to learn and to limit the information he must prepare to
meet at trial. Obtaining admissions is primarily offensive in that the
interrogator seeks to obtain ammunition for his own use at trial
This distinction will blur in many places.
The question may fairly be asked why seeking discovery and seek-
ing admissions are inconsistent with each other Why cannot the in-
terrogator ask the questions that tend to establish a helpful admission
and then ask additional questions on the same subject even though
he knows that they are likely to elicit answers tenchng to support the
deponent’s position? More concretely, if the interrogator might ask
ten questions on a particular subject, seven of which are likely to
elicit answers favorable to his dient’s position and three of which are
likely to elicit answers favorable to the deponent’s position, why not
ask all ten? Certainly, this approach has the benefit of allowing the
interrogator to learn before trial the deponent’s explanation of seem-
ingly harmful facts
To answer these questions, one must recall the various uses of
depositions at trial First, depositions are often used to impeach a
witness’ trial testimony If a witness testifies at trial, he may be cross-
examined concerning statements made at the deposition Rather
than giving the witness an opportunity to reconcile inconsistent por-
tions of his deposition and trial testimony, the cross-examining attor-
ney may read those portions to the witness and ask him to confirm
only that he so testified at his deposition Opposing counsel must
then ask questions on redirect examination to mitigate the harmful
aspects of such deposition testimony If, however, the witness gave
an exculpatory explanation at the deposition, he may reply that the
cross-examining attorney is reading only a portion of his deposition
or, on objection by the witness’ counsel, the court may require the
cross-examiner to read the additional deposition testimony on the
samc subject Even if the attorney is not compelled to read the
supplementary testimony, the jury will learn that it has heard only a
portion of the facts and will retain its objectivity until redirect
If the witness is a party, opposing counsel may use the transcript
in a second way Instead of cross-examining a party concerning his
deposition testimony, opposing counsel, as part of his own case, may
read portions of the deposition to the jury The deponent-party
cannot offer any exculpatory explanation for such deposition testi-
mony until opposing counsel has concluded his case, perhaps hours
or days later When the deponent finally takes the witness stand, his
delayed explanation may be unconvincing to the jury If the expla-
nation appears in the deposition itself, however, counsel for the wit-
ness can compel the lawyer introducing the harmful portion of the
deposition to the jury to read the explanatory portion as well”
We return to the example of the interrogator with ten possible
questions on a particular subject, seven of which are likely to elicit
admissions helpful to the interrogator and three of which are likely to
elicit answers supportive of the deponent’s position By stopping af-
32 Su Fu R Civ P 32(a) Su g anaI (r Kolczyrukj, L autwas as Eaid,,.c,, Lrrici-
flON, W,ntcr i983, 25
33 Fw R Civ P 32(a)(4), w also Fi.o R Evio 106
34 Fi o R Civ P 32(a)(2)
35 F D K Civ P 32 ( a)(4), see the FLD K Evio i06
Si See Model Code of Pro iona1 Keapooaabdity EC 7-28, DR 7-i09(C)(i).(2) (i979)

(Vol 2 255 1982)
ter seven questions, the attorney seeking admissions can create a por-
tuon of the deposition that may be used either to cross-examine the
witness at trial or to read directly to the jury without an exculpatory
explanation by the witness Suppose the interrogator has asked all
ten possible questions at deposition If at trial he reads only the first
seven questions and answers, he may appear dishonest to the jury
when the witness or opposing counsel brings to light the further ex-
planatory testimony on the same subject at the deposition Addition-
ally, the witness’ explanation may sound more credible to the jury if
he has made it previously. Even if the interrogator does not use the
deposition transcript, he risks the danger that the witness may an-
swer a question with the preface , “As I explained to you at my
deposition - “ The explanation given at deposition may then
take on the aura of a prior consistent statement, tending to add plau-
sibility to the witness’ trial testimony Conversely, the witness’ expla-
nation at trial of a harmful fact which was not previously given at
the deposition, even though not given because not asked for, may
appear to be a recent fabrication
After obtaining the admission and proceeding to other areas of
inquiry, the interrogator may occasionally chance returning to the
original subject to ask his remaining questions At trial, the interro-
gator may read the original admission into the record, or cross-ex-
amine the witness about it, and hope that neither the witness nor
opposing counsel will cite the later answers Such an approach is
Unfortunately, in actual practice there is no clear dividing line on
questions which are likely to evoke admissions In reality, lawyers
preparing for and taking depositions squirm intellectually as they at-
tempt to determine where to draw the line If the interrogator asks
too few questions and the witness is left with several escape hatches,
the “admission” may not be of much value If, on the other hand,
the deposing attorney presses too far, the admission may become di-
luted as the witness begins to explain away its harmful impact
The interrogator should deade what information he needs from
the witness before the deposition begins For example, when depos-
ing the plaintiff’s damage expert in an antitrust case, counsel for the
defendant may seek almost pure discovery, rather than admissions
Thus, he will ask the expert to explain everything he has done, to
explain each calculation (where he obtained the numbers, which
figures he multiplied or divided, and why), and to state what further
work, if any, he plans to complete on the case But the interrogator
will not seek a direct admission that the expert did not consider infla-
tion, a general decline in the industry at issue, or variable costs The
risks of seeking such admissions at the deposition are that the expert
will have prepared good answers by the time of trial or that he may
revise his approach to eliminate apparent flaws If counsel for the
defendant causes too much damage at the deposition, counsel for the
plaintiff may change experts
On the other hand, if the interrogator has the facts, he may pri-
marily seek admissions from the witness In a products liability case,
for example, counsel for the plaintiff may seek to compel the corpo-
rate defendant’s president to admit that he knew of certain literature
or studies casting doubt on the safety of his product, that he knew of
ways to modify the product to eliminate the hazard, that the cost of
such modification was negligible, and that such modification was
considered but rejected for some unworthy reason If counsel for the
plaintiff obtains one of these admissions, he has moved one step
closer to winning his case If not, he has not sacrificed much since
opposing counsel surely knew that such points would arise at some
time, and at least the interrogator will know what he must prepare to
prove at trial
Typically, however, the interrogator seeks both discovery and ad-
missions on most subjects In light of the inevitable tension between
these objectives, the interrogator should plan what he will settle for
on each subject to be covered As a housekeeping matter, he may
want to bracket in his outline those questions of which he is unsure
and wait until the deposition to decide whether to ask them
In deciding how far to go in examining a particular deponent, the
interrogator should consider whether he wants to settle the case or to
try it If he wants to settle, the attorney may drive his points home
during deposition questioning, thus signaling to his opponent the sig-
nificant risks involved in proceeding to trial On the other hand, if
the interrogator expects the case to be tried, he will question wit-
nesses without being as overt about the potential significance of their
B Other Objeawes
A deposition, of course, serves purposes other than obtaining dis-

IVol 2 255 1982)
covery or admissions One is to preserve favorable testimony A
lawyer will often decide not to schedule the deposition of a witness
favorable to his case, waiting instead to call that witness at trial In
such cases, an attorney may have no reason to take the witness’ depo-
sition and thereby expose him to cross-examination by opposing
counsel On the other hand, if the witness is elderly, infirm, no-
madic, or beyond the jurisdiction of the trial court, the lawyer should
seriously consider scheduling the witness’ deposition When deposing
such a witness, each attorney should take into account that the wit-
ness may not be available for the trial and that the deposition may
therefore serve as trial testimony” When the deposition is likely to
be used as the witness’ trial testimony, each lawyer may hesitate to
ask questions tending to elicit testimony harmful to his case By ask-
ing such questions, the attorney can better prepare to meet his oppo-
nent at trial. But if the lawyer elects not to ask such questions,
potentially harmful testimony may not surface at trial (the witness
may die, disappear, or, if he is beyond the subpoena power of the
trial court, refuse to appear) and the lawyer may not have to con-
front that testimony
The lawyer should seriously consider deposing the witness who is
not only favorable, but crucial to his casc—regardless of age, health,
or residence He should ask himself what explanation he will give to
his client if he fails to do so and the witness is then killed in an acci-
dent before trial.
Depositions may also be used to destroy a deponent’s effectiveness
as a trial witness. The interrogator may achieve this objective either
by demonstrating through his deposition examination that the wit-
ness’ testimony is not credible, or by successfully inviting the witness
to commit himself to a senes of propositions which can convincingly
be shown at trial to be false.
Another objective of the interrogator may be to eliminate entirely
the deponent as a po sible trial witness by asking him to confirm that
he has no knowledge about the key facts in dispute. Finally, a depo-
36 Sea FeD It Civ P 32(a)(3)
37 Sea a To some extent this risk is always preseni because any deponent may die
before inal or became otherwise unavailable Sea Noocker v Johna-Manviik Corp. No 366-
118. sup op as 43-44 (Pa C P Apnl 28, 1982) (rejecting “defendant’s aaiertson thai its con-
duct us the depossliona wax adversely affected by its assumption ihat the depositions were
intended to be taken (or discovery purposes, rather than Car use at irial”, noting thai “the
prospect thai a ‘discovery’ deposition may be used as mu in the event thai a deposed witness
becomes unavailable by thai time inheces in c y deposatain’
sition can provide the interrogator with testimonial support for a
planned motion for summary judgment
V. The Lawyer’s Manner
A deposition is a kind of meeting and, even at a meeting among
equals, one person, for whatever intangible reason, will usually take
control. Depositions are no exception, nor should they be The law-
yer who controls the deposition has an edge Consequently, a certain
amount of jockeying for position often occurs at a deposition, partic-
ularly at its start, to determine who will seize control If a lawyer
cannot dominate the deposition, he should at least prevent his oppo-
nent from doing so
Learning to take control of a meeting is probably a better subject
for a psychology journal than a legal one, but it is nonetheless appro-
priate to observe that a lawyer generally avoids losing control by
choosing his ground carefully and not retreating For example, the
interrogator should not demand that one of two witnesses to be de-
posed that morning be sequestered if he intends to abandon that de-
mand should his opponent refuse. Similarly, the witness’ lawyer
should not Instruct the witness not to answer if he plans to withdraw
the instruction, either directly or indirectly (by waffling), when the
interrogator recesses the deposition to apply for a court ruling The
witness knows who is in charge and will react accordingly
An attorney need not be obnoxious to assume control of a deposi-
tion. Although lawyers are sometimes successful in bullying their op-
ponents, an experienced attorney can readily deflate a pugnacious
opponent, causing the opponent to lose rather than gain control
An experienced litigator will sometimes attempt to intimidate a
younger opponent. For example, if the experienced attorney is coun-
sel for the deponent, he may disrupt the younger interrogator’s ques-
tioning by snorting derisively at his questions, arguing about their
relevance, interrupting the deposition to make telephone calls, or
threatening to walk out with the deponent if the deposition is not
conduded in thirty minutes The younger lawyer should not yield to
such antics but should stand his ground and proceed with his ques-
tioning as planned If he humes and abbreviates his questioning, the
quality of the deposition will suffer. It is highly improbable that
counsel for the witness will follow through on his threat to leave the
, Fan It Civ P 56(c)

IVol 2255 19821
deposition, if he should, the court will almost certainly order him to
If the witness is nervous at the start of the deposition, the Interro-
gator’s natural tendency is to attempt to put him at ease This may
not be wise If the witness is the opposing party or is otherwise hos-
tile, the interrogator may obtain more truthful and more helpful an-
swers if the witness remains nervous As the deposition progresses,
however, the witness will almost certainly grow more relaxed Some
lawyers succeed in keeping the witness off balance by alternating
their conduct, seeming, at some times, cordial and accommodating
and, at others, brusque and unpleasant It is difficult for the witness
to remain at case if he perceives the Interrogator as unpredictable
Finally, there is, of course, no steadfast rule In a given case, the
interrogator may decide that a friendly manner and conversational
questionmg are more likely to disarm the deponent and elicit helpful
testimony than a more contentious approach
Inevitably, the witness will learn something of the interrogator’s
manner through his questioning. Accordingly, the lawyer in charge
of the case may prefer that a younger associate take the depositions
In this way, the senior lawyer, as trial counsel, will arrive an un-
known quantity to the witness at trial
VI. Strategy and Tactics
When preparing for the deposition, the interrogator should give
careful thought to the order in which he will approach various sub.
jects He must determine whether to begin with the important issues
or to pesipone those questions until the witness starts to tire and is
further away in time from the cautions his own lawyer gave him
The question is often difficult and there is no single right answer
Probably, most lawyers prefer to gather background information
before turning to the decisive issues Although this approach is not
necessarily wrong, the Interrogator should at least consider the “go-
ing-for-the-jugular” approach In deposing an expert witness, for ex-
ample, some lawyers may spend the first two hours, or even two days,
on the expert’s qualifications An expert will usually feel relatively
comfortable while discussing his credentials and will become more so
as he establishes eye contact with the interrogator and grows accus-
tomed to the cadence of his voice and his mannerisms The same
expert, however, may be surprised and flustered if asked in rapid sue-
cession his name, whether he has been hired by the defendant as an
expert, whether he has formed any expert opinions, what they are,
and then, in greater detail, the bases for those opinions The expert’s
qualifications can be explored towards the end of the deposition
The expert may be somewhat unnerved by the simple fact that the
interrogator is not playing by the “rules” as the expert knows them
from his own experience
Similarly, when deposing a driver involved in a motor vehicle
accident case, the interrogator will normally question the deponent
about his background, set the scene (how wide were the streets,
which vehicle was in what lane, did anything obstruct the view, etc),
and will finally reach the details of the accident The deponent will
tend to relax since his own lawyer probably told him that the ques-
tioning would proceed in this way Occasionally, the interrogator
may want to start by asking, for example, the witness’ name and
whether he was involved in an accident on December 14, 1982
Then, without further preamble, the interrogator may ask how the
accident happened This approach will differ from what the depo-
nent’s lawyer told him to expect The result may be an answer harm-
ful to the deponent’s case, particularly if he tries to include all the
detailed information about speeds, distances, and times which he re-
cently reviewed with his own lawyer
On the other hand, the interrogator may decide to postpone the
significant questions for as long as possible For example, assume in a
personal injury suit that the liability issue is close but the damages
are clear and serious Since the plaintiff may be more interested in
his own injuries than in the precise dynamics of the accident, counsel
for the defendant may decide to question first about those injuries
and then, hours later, proceed to liability By that time, the plaintiff
may have only a dim recollection of his own lawyer’s warnings about
the liability pitfalls
If the case involves a sharp factual dispute about who said what
to whom over an extended course of dealing, the interrogator may
develop the facts by inquiring about them in chronological order
This approach eases the questioning for everybody, including the
witness Therefore, even if the interrogator’s approach is generally
chronological, hopscotching around from time to time may help to
develop inconsistencies in the testimony of an untruthful witnesa
For instance, after questioning the witness about his first four meet-
ings with the interrogator’s client, the interrogator may want to re-

[ Vol 2 255 1982]
turn to the second meeting to ask whether any discussion occurred
there of a particular subject
The interrogator should not become so mesmerized by his own
outline of questions that intriguing answers fail to register with him.
Having settled on the best order in which to cover his subjects, he
must repeatedly decide during the deposition whether to adhere to
his script or to set it aside and immediately follow up an interesting
answer which may, for example, pertain to the final subject on his
agenda. The interrogator must quickly and intuitively decide
whether the benefit of pursuing such an answer outweighs the advan-
tages of his original organization of topics Should the interrogator
hesitate, the witness may interpret the pause as a signal that his an-
swer in some way injured his case, and modify or withdraw his
If the interrogator will be deposing several similarly situated wit-
nesses, he should vary his approach Otherwise the deponent (who
may have attended the other depositions or read the transcripts) will
anticipate the approach and feel comfortable from the start At the
least, the interrogator’s first substantive question to the witness
should differ from his lead questions to other witnesses.
After determining the order in which to address the venous sub-
jects, the interrogator must decide on the order in which to pose spe-
cific questions and how to word them It makes a difference The
following discussion of approaches, while not exhaustive, may illus-
trate the point.
4 Gmmg th W,bzw Commutrd to Catam I oftartho u—Esj)erta//y W I
1 W , 9 and Pnza,c,
The interrogator may want the witness to commit himself to cer-
tain propositions on seemingly noncontroversial matters before turn-
ing to the central issues If the witness perceives such questions to be
unimportant, he may readily make significant concessions
For example, suppose that the underlying facts in a given case
reveal that there was correspondence between the parties, that at
some point the interrogator’s client sent a letter to the other party
stating that certain facts, favorable to the interrogator’s case, were
true, and that the other party made no written response to that let-
ter How does the interrogator obtain the maximum benefit from
these helpful facts? lithe interrogator studies the correspondence, he
may find that his client sent eleven letters prior to the crucial letter
and that the opposing party responded only to the fifth and the
eighth to correct some inaccuracy In deposing the other party, the
interrogator may take the letters in turn and ask that party to con-
firm that he received each letter, that he read it, that the letter con-
tained an accurate statement of the facts, that he did not respond to
it, and that he did not respond because the letter was accurate The
interrogator will further ask the witness to confirm that he responded
to the fifth and eighth letters and that he did so to correct their inac-
curacies After discussing perhaps the eighth or ninth letter, the in-
terrogator may ask the witness to confirm that his general policy or
practice was to respond in writing only to letters which were inaccu-
rate in some way The deposing attorney should not wait too long to
pose this question since the closer the interrogator comes to the date
of the key document, the greater the risk that the deponent will have
his guard up The interrogator has a greater chance to obtain the
admission on policy or practice if he proceeds in this painstaking way
than if he asks without preamble whether the deponent’s policy or
practice was to respond in writing only to inaccurate letters
The described scenario raises the problem of the conflicting
objectives of discovery and admissions Suppose the witness concedes
that his policy or practice was as the interrogator suggested The
interrogator must decide whether to stop that line of questioning
since he has secured a favorable admission or to continue and ask the
witness to confirm that, consistent with his policy or practice, he
failed to respond in writing to the key letter because it was fully accu-
rate lithe interrogator halts the questioning, he will have no inkling
of how the witness will answer at trial the critical question about the
key letter On the other hand, if the attorney continues and poses the
key question, the witness may feel compelled to make the desired
admission by the force of the answers he has just given, thus aiding
the interrogator in winning his case The witness may, however, re-
fuse to make the admission, and instead give a self-serving but credi-
ble explanation of his failure to respond to the key letter If that
happens, the interrogator will learn what he must face at trial, but
the witness’ explanation at trial may assume an extra patina of credi-
bility since it was also given at deposition
As an alternative to these approaches, the interrogator could fol-
low a middle course and ask the deponent only whether he received
the key letter, whether he responded to it, and nothing more Even

IVol 2 255 1982J
with this approach, however, he may risk losing the admission since
the witness may not cooperate by giving one-word answers without
adding an explanatory gloss
The technique of obtaining admissions of preliminary proposi-
tions may also be used with respect to notes made at meetings As-
sume the opposing party claims that the interrogator’s client made a
statement harmful to his own case at a meeting between the two par-
ties Assume further that the notes taken by the opponent’s represen-
tative at the meeting include no mention of the alleged statement
How can the interrogator best utilize that helpful fact in deposing
the note taker? One approach is to consider first the notes of other
meetings and to confirm that the deponent’s general policy or prac-
tice at those other meetings was to make notes of what was important
and to omit what was unimportant This proposition is so seemingly
obvious and noncontroversial that the deponent may readily agree
that he took notes on that basis Contrast the situation if the interro-
gator were to begin his questioning by asking the witness whether his
approach during the key meeting was to transcribe important state-
ments and to exdude those that were unimportant The deponent
might quickly perceive the implications of an affirmative answer and
hedge The witness might daim, for example, that he made notes
randomly without regard to the significance of a particular state-
ment Although this explanation may be somewhat implausible, the
interrogator will have gained nothing from the deposition In fact,
he will have lost ground by permitting the witness to give a pretrial
explanation of his conduct which, if it should surface at trial, may
lend credibility to the deponent’s trial testimony
8 Eutabhthmg a Pra’nuse Which May Tend lo Shafte the Mcxl Answer
Deponents are generally aware of what they have already said in
the deposition and want their testimony to be consistent and believa-
ble Consequently, there may be some advantage to asking a partic-
ular question before another For example, in a personal injury case
in which the plaintiff last saw a doctor six months before the deposi-
tion, does it make any difference in which order counsel for the de-
fendant asks the plaintiff these questions
(a) Do you still have pain from the injuries you claim to have
sustained in this accident’
(b) When were you last treated by a doctor for the injunes
you claim to have sustained in this accident’
Some accident defense lawyers argue that the second question should
be asked first If the plaintiff first answers that he was last treated by
a doctor six months ago, he may think that it will sound odd to say
that he still suffers from intense pain, and so may tend to give a more
temperate account of his injury On the other hand, if the plaintiff is
first asked to describe his pain and characterizes it as excruciating, he
may then rationalize his failure to seek further treatment by claiming
that the doctor advised him (or that he concluded himsell) that med-
ical treatment would be of no further help and that he would have to
live with the pain
Obviously, asking the questions in one order rather than the
other does not assure that the answers will be more favorable to the
interrogator Nevertheless, it should improve the odds slightly and a
successful litigator will constantly watch for small advantages
C Wording the Ques: on Aggresswe/y
Although some lawyers contend .bat the interrogator may not ask
leading questions or cross-examine the witness, as a practical matter,
the interrogator may generally phrase his questions as he wants By
wording the question aggressively, the interrogator can improve his
chances of obtaining favorable testimony
For example, suppose a plaintiff-distributor alleges that he was
wrongfully terminated by the defendant-manufacturer without ade-
quate notice The interrogator could pose his question in either of
the following ways
(a) As of May, 1982, did you expect to be terminated by
(b) In light of the history of your dealings with dcfendani in
1981 and 1982, including the unpleasant meetings in October,
1981, and February, 1982, which you have told us about, did it
come as a fbigj surprise to you when you received the letter of ter-
mination in May, 1982’
The interrogator using this approach should attempt to phrase the
question so that it tends to persuade the deponent to assent to the
proposition at issue Sometimes, the interrogator may coax the wit-
ness to accept a proposition by starting his question with, “Would it
39 Rule 3 O(c) permits ewnina,ion of a deponent “as pennii,ed a, the trial under the
Federal Rules of Evidence•• Tbcse rules also permit examination by leading queslioni of
“a hostile wiinc , an adverse party, or a witnees identified with an advent party” FU) R
Evio 6ii(c)

[ Vol 2 255 19821
be fair to say that ?“ or “Would you agree that “ Since most
people want to be fair and agreeable, it may be difficult for the depo-
neat to answer no to such a question
D Slating th Dc ’pon nl’s Paulson Baldly
Sometimes the witness will recoil from and reject one of his own
contentions if it is put to him starkly, particularly if an allegation of
intentional wrongdoing is at issue For example, if the plaintiff al-
leges fraud and breach of contract because of the defendant’s alleged
misrepresentations, the defendant’s attorney may directly confront
the plaintiff by asking
Do you claim that Mr Crawford lied to you when he said
[ whatever he allegedly saidj’
Some lawyers will object to use of the word “lied” on the ques-
tionable ground that it calls for a conclusion ° If so, the interrogator
may often eliminate the objection by rewording the question as
Do you daim that Mr Crawford lied to you when he said
[ whatever he allegedly sasdi in the sense that he knew that such
statement was false when he made it?
A deponent may stop short of answering that his opponent lied to
him even though he is willing to make the substantially identical,
though semantically more amorphous, charge that the other party
misrepresented the situation Even if the deponent insists that his
opponent lied to him, the interrogator has not lost ground since the
witness essentially had charged such deception before the question-
ing began.
Similarly, if the plaintiff daims that the defendant acted for the
purpose of inflicting emotional harm upon the plaintiff, the defend-
ant’s attorney may ask directly whether the plaintiff contends not
only that the defendant’s actions hurt him, but also that the defend-
ant acted as he did for that purpose The plaintiff may hesitate to
answer such a question affirmatively.
E Ftsssng the Who-Cans- Whal-the-Aruwer-Is Quesiwn
Some questions afford the interrogator a line of attack regardless
of the witness’ answer. The question will often begin with the
phrase, “Did it occur to you at that point that “ This approach
can be used effectively in cases ranging from complex fraud, to auto-
mobile collision, to products liability Suppose the plaintiff in a com-
plex fraud case alleges that the defendant took nine separate steps,
the last of which caused the plaintiff to lose money After ascertain-
ing the facts on each step, counsel for the defendant may ask the
Did it occur to you at that point that Mr Williams might be
attempting to defraud you’
If the plaintiff answers no, the interrogator may ask him to confirm
that the defendant’s actions up to that point fell within the range of
normal business conduct Should the plaintiff concede this, the facts
allegedly constituting the fraud are narrowed On the other hand, if
the plaintiff responds that it did occur to him that the defendant
might have been perpetrating a fraud, he must demonstrate that
thereafter he acted reasonably in light of his suspicions
The same approach may be used in connection with a right-angle
collision Either driver may be asked
Did it occur to you at that point that an accident was about to
If the driver replies no, the fact finder may conclude that, in light of
the circumstances at that point, the driver should have recognized
the risk of an accident and acted accordingly If the driver answers
affirmatively, then his subsequent actions will be judged in light of
the concededly recognized risk of an accident
Finally, the same technique may also be used in a products liabil-
ity case In questioning the defendant’s safety engineer, the plain-
tifFs attorney may ask
In light of the information available to you at that point, did
you give consideration to recommending a modifIcation in the de-
sign of [ the cntical feature of the product]’
If the deponent answers no, he will risk being attacked at trial be-
cause “that thought never even crossed your mind, did it” If the
engineer says yes, then he will be forced to explain why, after specific
consideration, he made no change
F Eriabluhrng the Obvious
The interrogator may ask some questions primarily to obtain a
good crisp colloquy with which to cross-examine the witness at trial
or to read to the jury The interrogator may gain greater control of
the witness at trial by covering certain subjects at the deposition For
M c ii suck objrciicsis tack mc i ii Sii Fw R Evm 70i, 704

IVol 2255 1982J
example, counsel for the plaintiff in a products liability case may ask
the defendant’s engineer
In designing the universal joint of the steering wheel did you
take safety considerations into account
Is that because you recognized that a defectively dc igncd uni-
versal joint might cause serious personal injuries or dcath
Did you take into consideration that a pedestrian such as plain-
tiff might be senously injured or killed if this universal joint were
defectively designed and it malfunctioned’
Particularly if the case is to be tried before a Jury, counsel will
want to spend time on those obvious points beneficial to his case
C Pulling Hmuir/f in the W:mw’ Shoes
In preparing for the deposition of an adverse party, the interroga-
tor should assume the role of the deponent and consider two ques-
tions. First, what possible actions by the deponent would be
inconsistent with his present claim? For example, in a dispute be-
tween a landlord and tenant as to whether the tenant gave timely
notice of his intention not to renew the lcasc, 4 i suppose the tenant
contends that he gave timely oral notice and that the landlord as-
sured him that written notice was unnecessary The possible actions
by the landlord subsequent to the alleged oral notice which would be
inconsistent with his position that no such notice was given might
include listing the premises with a real estate broker, printing
brochures to describe them or showing the premises to a prospective
tenant The interrogator should investigate such possibilities at the
Similarly, if the plaintiff claims that he entered into an oral con-
tract with the defendant and the defendant denies such an agree-
ment, the interrogator should ask whether the plaintiff arranged with
his own suppliers to obtain the materials needed for performance
Failure to initiate uuch arrangements would be inconsistent with the
plaintifi’s claim that a contract existed.
Second, what circumstances may the deponent have fa cd in
which it would have been in his interest to take a position inconsis-
tent with his litigation claim? For example, if the plaintiff avers that
the defendant sold him defective goods, the interrogator should in-
quire whether the plaintiff attempted to resell the goods If so, did he
describe them as defective? The interrogator should at least deter-
mine the identities of all prospective buyers with whom the plaintiff
dealt He may further inquire about the details of the deponent’s
conversations with these buyers On the other hand, he may decide
to avoid highlighting the point, and instead, to interview privately
the prospective buyers at a later time
H Ethaariing the Know/edge of the W:Inejs
The interrogator who seeks full discovery of facts should be care-
ful to exhaust the knowledge of the witness If asked who attended a
meeting, for instance, the witness may say that he, Mr Cunningham,
and Mr Hart did The interrogator should persist in asking whether
anyone else attended the meeting until the witness says no
In dealing with broader subjects, the interrogator must carefully
avoid becoming lost in the details of the deponent’s answers For
example, the interrogator may begin by asking the witness which
meetings he attended on a particular topic After the deponent gives
the approximate date of one such meeting, the interrogator may
question him at length about what occurred However, when the
interrogator completes such particularized questioning, he should re-
turn to the general subject and ask whether other meetings on that
topic were held. This pattern should be repeated until the witness
confirms that no other meetings were held The interrogator must
concentrate to be sure that he has exhausted all knowledge of the
witness about each meeting. who attended, what was discussed,
what options were considered, and what action was decided upon
VII. Mechanics and Problems (and More Tactics)
The expectation under the Federal Rules is that depositions ordi-
narily will proceed without court involvement. The Interrogator
may seek information reasonably calculated to lead to the discovery
of admissible The objections made by other counsel at
the deposition will be ruled upon by the court at, or immediately in
advance of, trial Usually, the witness will answer even those ques-
tions to which objections have been made, unless his counsel instructs
him not to answer, which is very much the exception
Depositions are usually conducted in an adversarial but coopera-
tive atmosphere, and thus it is rarely necessary to involve the court
4i Sii, ag, Ksthigian v Minn • 23111 App 3d 722, 320 N E.2d i73 (1974)
42 Fw K Qv P 26(b)(I)
43 Fw K Civ P 32( (3), Fw K Civ P 32(b)

IVol 2 255 1982J
Most litigators take seriously their duty of good faith in participating
in the discovery process The lawyer tempted to disrupt may be de-
terred by the prospects of reciprocal treatment from opposing coun-
sel and sanctions from the court” Still, problems will inevitably
occur from time to time.
This section catalogs in a chronological fashion much of what can
and does happen during depositions It begins with who sits where,
ends with the reading and correcting of the transcript, and discusses
in between many of the problems which may arise in questioning the
A Who &U Wits ,,
The interrogator and the witness will usually sit directly across
from each other toward one end of the table, with the reporter at the
end so that he will hear their voices clearly. The lawyer for the wit-
ness will normally sit next to the witness on the distant side from the
The interrogator generally will hold the deposition in his own
conference room and will make the initial decision where to seat the
participants A lawyer may prefer to position himself between the
witness and the door, leachng the witness to feel trapped and under
the interrogator’s control. Conversely, if the lawyer wants to put the
witness at ease, he may seat the witness closest to the door This
arrangement decreases the chance that the witness will walk by the
interrogator’s side of the table and observe his notes or the docu-
ments he plans to use. The interrogator may seat the witness so that
he faces the glare from the window, which can become annoying
over the course of the day.
The interrogator may stand momentarily to stretch while contin-
uing his questioning or may stand beside the witness when asking
about a photograph or document. However, counsel for the witness
should request that the interrogator be seated once the occasion for
standing has ended so that the interrogator is not hovering over the
witness Although the importance of such minor details should not
be exaggerated, neither should it be ignored
B. ThsOath
The interrogator ordinarily will begin the deposition by request-
ing that the reporter administer the oath to (or swear) the witness
Occasionally, the attorney will encounter a new reporter who is not
yet authorized to administer the oath One solution is to locate a
notary public to administer the oath Although that procedure is not
strictly in accordance with rule 30(c), unless an objection is made at
that point, the validity of the transcript as a deposition will not be
open to question” Even if such an objection were made and the
transcript ruled not to be a valid deposition, the transcript would still
be useful for cross-examination as a statement by the witness
Some deponents refuse to take the oath for religious or other rea-
sons The reporter should ask such persons to affirm that they will
tell the truth” Occasionally, the interrogator may question the wit-
ness on what the oath means to him and what he thinks will happen
to him should he fail to tell the truth While one might plausibly
argue the relevance of such questioning, it is generally provocative,
unproductive, and, if it probes into the deponent’s religious beliefs or
opinions, 9
C The Fyesence of Others
It may be wise to instruct the reporter to note the presence of
others at the start of the deposition, as well as when they subse-
quently leave and return Such information may prove valuable
For example, if a deponent claims at trial that he was nervous and
rattled at the deposition and thus gave inaccurate testimony, the in-
terrogator can show that the deposition environment was comforta-
ble by reminding the deponent that his spouse or business associate
was present to lend support Or, if the defendant’s attorney brings
his client to the plaintifFs deposition, counsel for the plaintiff may
later depose the defendant, remind him that he was present when the
plaintiff was deposed and made certain charges against the defend-
ant, and inquire what actions the defendant has taken to determine
the validity of those charges
The interrogator may request that persons other than the depo-
nent be sequestered (usually because the interrogator plans to depose
them later and does not want them to have the advantage of hearing
45 Su Fi.D R Civ P 30(c)
46 Su Fin R Civ P 32(d)(2). (3)(B)
47 Sa Fin R Evio 608(b)
48 Sa Fi R Civ P 43(d), us also Fio R Evun 603
49 Si, FiiD R Eviu 610
44 Su Fin It Qv P 37(s)

(Vol 2255 1982)
his questions and growing accustomed to his style) If sequestration
is important to the interrogator, he should raise it with opposing
counsel before the day of the deposition If the attorneys cannot
reach an agreement, the interrogator will then have time to obtain a
ruling from the court If he waits until the morning of the deposi-
tion, he may be unable to reach the court for a ruling
Although many lawyers honor the shibboleth that a party (as dis-
tinguished from a witness) has the right to be present at every stage
of the proceedrngs, induding depositions, there is good authority for
sequestering even a party in an appropriate case
If the interrogator’s dient is present and passes him a note con-
taining a suggested question, the attorney should look at the note but
continue with his planned questioning. Then, after several minutes
have passed, he may ask the question without referring to the note
There are two reasons for proceeding in this way. First, the witness is
likely to have his guard up for the question which immediately fol-
lows the interrogator’s reading of the note. Second, opposing counsel
will not obtain any insight into the thinking of the interrogator’s
D. “The usual Shpuhztnms”
At the start of the deposition the reporter will usually inquire
whether the attorneys agree to “the usual stipulations” Even if in-
clined to accept these stipulations, counsel should ask the reporter to
state them specifically since the formulation may vary from one re-
porter to another. If the lawyer does not agree to one or more of the
stipulations, he should be sure to check the first page of the transcript
when he receives it. Some stenographers are so accustomed to the
usual stipulations that they indude them even when an attorney spe-
cifically directs otherwise.
A fairly common formulation of the usual stipulations is as
Signing, certification, scaling, and filing are waived, all objec-
SO Sri Fs. R QvP 26(c)( 5)
Si Galcllav Ona ,sia,487F2d986,997&n 17 (2dCir i973)(”Theordcrlof,cqucaira.
until a appropriate to protect the deponcnt from cmbarrarimem or ndicule intended by chc
calling patty ), sri R 1A cju, ,. Ciriri’ yJii4f,r, M i 75 4Ucaa s 4Ur—p i Eas v. A ,bczto*
Litigation Rep, Oct 22, i982, at 5708 For a general diacuaaon of who may be prclenl
during a depomuion. R HAYDUCI & D Hs&a, Discxvsa Pa. crice § 322 (1982)
tions except as to the form of the question rre reserved until the
time of trial
The attorney should carefully consider whether to enter into these
/ Signing—The witness has the right to examine and to read
the transcript of his testimony, and to make changes of form or sub-
stance, with a statement of reasons for making them After making
any corrections, he should sign the transcript
To waive the requirement of signing and the corresponding right
to examine, read, and correct the transcript, all counsel must agree
and the deponent also must consent since the rights involved are
his The interrogator may decide to require a signature, particu-
larly if the deponent seems devious If the witness is not forced to
sign, he may claim at trial that the reporter erred in transcribing his
testimony and that his testimony was slightly, but materially,
Counsel for the witness may also prefer not to waive signing
Even if the witness is bright and articulate, he may make a mistake
or the reporter may make an error Even if the requirement of sign-
ing is waived, that would not prohibit the witness from following the
formal procedure of reading the transcript, making changes and then
signing Finally, rather than waive the requirement of signing at the
start of the deposition, counsel and the witness may prefer to decide
after they have seen the transcript
2 Certification and &aling—li is generally unnecessary to insist
upon certification by the reporter thai the witness was duly sworn by
him and that the deposition is a true record of the testimony given
Similarly, the requirement of sealing (that is, placing the deposition
in an envelope to be sealed and appropriately labeled) ° will usually
be waived unless counsel seeks to limit circulation of the information
in the deposition
52 Other poasible oipulationi include waiver of notice, waiver oloa,h, effect olw,,ness’
failure to ugn, and effect of relinal io aniwer Sri D DANN it, PArt OiN DisCOVkity ANti
rausT 620-23 (i98i)
53 FI D R Civ P 3 0(e)
54 Id
55 Sri I o R Civ P . 10(0(l)
56 said

IVol 2 255 1982J
3 Ft/mg—Although lawyers commonly waive filing of the tran-
script with the clerk of the court, 5 ’ the language of the rules seems to
require that depositions be filed unless the court orders otherwise “°
In any event, counsel should ensure that a set of transcripts is avail-
able for the Court when the case reaches trial Unless the court orders
that transcripts shall not be filed, 59 waiver of the filing requirement
by the parties would not seem to prevent any party from filing the
transcript Indeed, counsel may elect to file a transcript favorable to
his case if there is some possibility that the judge or his law clerk may
read the deposition for a preliminary view of the case
I Resenting Objedsons Erceftl as to Form—As a general matter, the
interrogator should not make this “usual” stipulation, doing so may
be dangerous Generally, counsel must object at deposition if the
ground for the objection is one that might be remedied ai that
time b0 Thus, both rule 32(d) (3) (A) and the usual stipulation would
require counsel to interpose an objection to the form of the question
to allow the interrogator to reword it The rule, however, goes fur-
ther than the usual stipulation and requires counsel to object at the
deposition to a question which lacks foundation, thus permitting the
interrogator to supply the foundation Si The usual stipulation does
not require such an objection because it is not an objection to form,
and, therefore, leaves the interrogator open to a surprise objection
should he attempt to read this portion of the deposition into the rec-
ord at trial The interrogator can avoid this embarrassing scenario
by refusing to make the usual stipulation The problem with such
refusal is that his opponent may be so accustomed to the usual stipu-
lation that he will not know which objections to make in its absence
57 S.’, Lindeman v Textron. i36 F Supp 157, i58 (SD NY 1955)
58 Sse Amendmenis to she Federal Kulcu of Civil Procedure, 85 i RD 52i, 525 (i980)
(“By she terma of lRuie 5(d)l and Ruic 30( (i) discovery maseriali mutt be promptly flied
“) 1980 amendments to the rules aliow patties to move for “an order of the court thai
discovery malertalu not be filed unless filing is requested by the court or is effected by parties
whowsslitou,ethematenabsnshcprocceding” M,s . ’s Ft.o R Civ P 5(d),30(f)(i)
59 . SianduigOderforAibesteeCaaes,ai8(ED Tea July 7, i982)(”Nodepos,tion ,
shall be filed in the District Clerks office except by order or the Court “), M D N C R
i9(f) (“Depoastiotu arc not to be filed unless on order of the Court or for use in she
proceeding”), SD lu. R i6(a) (“depostisons shall be served upon other counsel or
parties, bus shall not be filed with she Court’)
60 Sc.’ FED It Civ P 32(d)(3)(A)-(B)
61 M
Such uncertainly may lead him to object unnecessarily and disrupt
the tempo of the questioning
E The Interrogator’s Pre/:mma,y Instnsctsons to the Deponent
At the outset of the deposition, the interrogator will usually in-
struct the deponent as follows
(I) I am going to ask you some questions to find out what you
know about the facts giving rise to this lawsuit
(2) If you do not hear a question, say so and I will repeat it
(3) If you do not understand a question, say so and I will re-
phrase ii
(4) If you realize that an earlier answer that you gave was in-
accurate or incomplete, say that you want to correct or supplement
your earlier answer, and you will be allowed to do so
(5) If you want to stop to use the rest room, or to stretch your
legs, or to get a cup of coffee or water, or to collect your thoughts,
say so, and you will be permitted to do so
(6) II you find that you are tired or confused and want to take
a short break or even recess for the day, please say so
(7) If you do not know or do not remember the information
necessary to answer a question, say so
(8) II you answer the question, I will assume that you have
heard it and understood it and have given me your best
recollect son
(9) Do you understand the instructions that I have just given
Some lawyers also instruct the witness that he may indicate that he
wants to consult with his attorney and will be permitted to do so
This can lead to trouble If the deponent then repeatedly requests to
confer with his lawyer, the interrogator is hardly in a position to
Counsel for the witness may respond to the eighth instruction
above by noting that the witness may think he understands a ques-
tion when in fact he does not and thus, the mere fact that the witness
answers a question should not be taken as a guarantee that he under-
stood it If a controversy arises at trial about the deposition, the in-
terrogator may read these preliminary instructions to the witness and
jury, the above suggested comment may lend credibility to the wit-
ness who claims that he did not understand the question at the
The interrogator should consider omitting some or all of these

(Vol 2 255 1982]
instructions Counsel for the witness probably told him to expect
such instructions at the start of the deposition Fulfilling that proph-
ecy may help put the witness at ease—which may not be desirable
Even if such Instructions are not given, the deponent, particularly if
he is intelligent and sophisticated, will have difficulty wriggling out
of what he said at his deposition.
F Th, Need lo Vuiwiw W/iai the Transrnftl Will Look Like
Cestures, inflections, and grunts are important to human commu-
nication, but they do not appear on a deposition transcript The
lawyers, therefore, must learn to “see” the transcript as the testimony
is given. This exercise is similar to visualizing a letter as it is being
The Interrogator should finish each question before the witness
starts to answer Similarly, he should allow the witness to complete
his answer before asking the next question
The interrogator should not be satisfied with a nod or shake of
the head, but should insist that the witness answer with a yes or no
Ii should not be the reporter’s responsibility to determine whether a
movement of the head indicates assent or disagreement Further, the
deposition will not read as crisply to the jury if the transcript records
such nods and shakes of the head rather than actual yes or no an-
swers. Similarly, the interrogator should not accept “Uh-huh,” “Uh-
uh,” or any comparable response It is too easy for the witness to
daim later that the reporter got it wrong.
Sometimes answers that are clear when given in person will lose
their meaning on paper Suppose the interrogator asks the deponent
whether he took certain action and the witness answers, “What do
you think?” or “What was I supposed to do?” The witness may in-
tend his answer, and the interrogator may take it, as a strong affirma-
tive, but the transcript will appear equivocal
Another danger is that the witness may repeat part of a question
which will appear on the transcript as an answer For example, the
defendant’s attorney might ask the plaintiff, “Didn’t you tell Mr
Colleran, your superior, that the accident was all your fault?” The
witness may react with surprise and reply, “I told Colleran that”
The reporter, however, may omit the cntical question mark from the
transcript. In this situation, counsel for the plaintiff should interrupt
to note that the witness has answered with a rising inflection indicat-
ing only that he is repeating the gist of the question and reacting
with surprise
Often, using a negative in the qu tion can lead to an unclear
transcript For example, the transcript may read
Q You did not complain to Mr Scgal about that, is that correct’
A No
Although the witness probably meant that he did not complain, the
literal meaning of his response is just the opposite There are count-
less ways that the question and answer may not match up on paper,
as these few examples illustrate
Additionally, the interrogator should be alert to describe for the
record things which will not otherwise be reflected on the transcript
Thus, if the witness consults a document or someone else in the room,
the interrogator may note such consultation for the record by stating,
“Let the record show that “or by asking the witness, “Would
you please identify the document to which you referred in answering
my last question?” On the other hand, the interrogator may pur-
posely wait until the witness has used the same document several
times and then, for example, inquire “Mr Tate, you have referred
to a pocket calendar three times in the last fifteen minutes Could
you tell us what information is recorded there and for what purpose
you use it” The more times a witness refers to a document, the bet-
ter the interrogator’s chances of obtaining it through discovery If
the interrogator inquires about the document after the first reference
to it, the deponent may claim that it contains no useful information
and may never again advert to it In that event, the interrogator’s
chances of getting a look at the document are significantly reduced
C 1+ Wale Converça ,onr Beiween the Wiiness and His Counsel
The witness is free to speak with his lawyer during lunch and
other recesses at the deposition But is he free to consult privately
with his lawyer after the interrogator has asked a question and before
answering it’
Although there appears to be no reported decision on this issue,
severai courts have issued general pretrial orders prohibiting consul-
tation with counsel while a question is pending 62 Such consultation
62 /a RhodcI ,andA tO CaIC ,RIML No tat 7(DR 1 Mar IS, i 96 2)(prc -
Inal order No 2) (“Dunng ihc queac,unlng o(wiIncs ,C , while a quciolon ii pending, no coon-
act shall cooke with said witn s “), Jar, Mbcstos-Ret atcsj Litigation, No MDCP-82 I, at 7

IVol 2 255 1982J
destroys the spontaneity of the deponent’s testimony and detracts
from the effectivenss of the deposition as a truth-finding device Con-
sequently, even if unwilling to issue an outright prohibition, the
court can usually be persuaded to rule that first, such consultation
should be permitted only on the initiative of the witness, not the law-
yer, and second, it should not be permitted solely because the witness
does not understand the question If the witness does not understand
the question, he should say so and permit the interrogator to reframe
it lithe witness ultimately understands the question but still claims
to need the advice of his counsel, some courts will permit him to
consult privately. However, the interrogator should note for the rec-
ord that such consultation has occurred Additionally, the interroga-
tor may consider asking the witness whether, by reason of what the
lawyer said, his answer was chfferent from what it otherwise would
have been, whether what the lawyer said hdped him answer, or
whether his attorney pointed out any hazards in the original ques-
tion Such follow-up questions will often be met with an instruction
not to answer based on the attorney-client privilege Although the
answers to such questions, even if given, are not likely to be helpful,
simply asking them may cause sufficient discomfort to the witness
and his counsel that they will discontinue, or reduce the frequency of,
their conferences.
H Renewmg Irsstniawns to thg Wiliws and Inviting Corr a,ons
If the deposition will last several hours or days, the interrogator
may remind the witness penodically of the Instructions given at the
start of the deposition He should be sensitive to comments by the
witness which, although not so intended at the time, may later be
used as evidence that the witness was overly tired at the deposition
and so gave erroneous harmful testimony As he prepares to answer
a question, the witness will sometimes gratuitously remark, “Gee, this
is hard work” or “I didn’t realize that this would be so tiring” or “I’m
really confused now.” The interrogator should not let such com-
ments pass Instead, he should remind the witness that if he is too
tired to proceed, he should say so, that if he needs a break, he should
ask for it, and that the interrogator does not want him to give testi-
mony which he will later disclaim on the ground that he was too
tired or confused The attorney should then inquire whether the wit-
ness feels fit to continue and, if the answer is affirmative, instruct the
witness that he should inform the interrogator if at any point he
wants to take a short break or to recess for the day
Some Interrogators will ask the deponent every few hours
whether he wants to correct or supplement any of his earlier answers
This practice may later be useful in convincing the jury that the dep-
osition procedure was fair and that the witness should not be permit-
ted to renege on his deposition answers The danger of inviting such
corrections is that the witness, having been alerted at a lunch break
to harmful testimony given that morning, will accept the invitation
and modify his earlier testimony to take the sting out of it
I Recapitulating Conirad,cjo y and D& jo:nted Testimony
To be useful at trial, the deposition testimony must be reasonably
encapsulated The judge and jury may have difficulty following and
become impatient with counsel reading long passages extending over
many pages Consequently, the Interrogator should recapitulate or
summarize the deponent’s testimony, particularly if the witness has
given contradictory testimony over several pages (eg, first denying
that he attended a meeting and then recalling that he did, first
claiming to be unsure whether a certain topic was discussed and then
saying that it was, and so on) The interrogator may want to ask
So that we have it straight in one place, is it correct that you did
attend the meeting of November 19, 1982, in Mr Wellington’s of-
fice, that the meeting lasted about 45 minutes, that Mr Wellington
was present during the entire meeting, that Mr Simon joined ihe
meeting 15 minutes after it started and was then present until the
end, and that the subjects discussed while all three of you were
present at the meeting included A and B’
Opposing counsel will sometimes object to the interrogator’s ef-
forts to summarize prior testimony on the ground that the question is
repetitive, leading, or not a fair summary But if the recapitulation is
in fact a fair summary of the deposition testimony, the opposing at-
torney usually will allow the witness to answer
J The Witness Who Knows—or C/aims to Know—Too Lilt/s
(MD NC Feb 2. i982) (order coordinating procccd4ngt) (iinulat order). Ia r Aibenos-Re-
lated bugaiton, No CP-8 1-i,at 6 (E.DNQ Sept IS, i9Si) (6rit ponrial order) (simiiar
The Interrogator may discover that the witness is not knowledge-

(Vol 2 255 19821
able about many of the subjects of planned questions In this situa-
tion, the interrogator should obtain a clear statement of the limited
scope of the witness’ knowledge without disclosing his entire script of
questions (which could be used by his opponent to prepare more in-
formed witnesses for depositions) Thus, the interrogator may ask
only that the witness describe in general terms his knowledge of the
underlying facts, or he may press further and ask the witness to con-
firm that he knows about subject A, but not about subjects B
through K. Requesting such confirmation nails things down, but
also provides opposing counsel with a useful checklist of topics in
which the interrogator has an interest Even if the knowledge of the
witness is very limited, he may be able to identify other possible wit-
nesses The interrogator may ask the witness to identify those parties
who possess the knowledge to answer questions the witness could not
In outlining his questioning, the interrogator should consider the
possibility that a generally knowledgeable witness will claim not to
recall the information necessary to answer a question The interroga-
tor should decide whether such an answer would be helpful or harm-
ful to his case. For example, the interrogator may find helpful a
claim by the witness not to remember what was said at a meeting
between himself and the interrogator’s client Having so testified, the
witness is not in much of a position to deny at trial the version of the
meeting given by the interrogator’s client. Again, the interrogator
must decide whether to persist in nailing down this claimed lack of
knowledge He may ask “Do you have any recollection at all of
what was said?” Or go further “Do you recall if subject A was dis-
cussed at that meeting?” Or further yet. “Do you deny that subject
A was chscussed?” Or finally “Do you deny that Mr Hoyle said to
you at that meeting (whatever he said) or do you just not recalP” If
the interrogator seeks an answer to the effect that the witness does
not recall, he may want to end his question by specifically suggesting
that option to the witness in a slightly more emphatic tone of voice
Note that the last suggested question in the example above ends with
the words,” . or do you just not c ll ” Having heard that op-
tion last, the witness may find it the most attractive.
In questioning the witness about his recollection of such a meet-
ing, the interrogator may sometimes ask only the first suggested ques-
tion, and in other instances, he will push all the way This is a result-
onented exercise and the interrogator’s decision will be judged by the
answers he receives. If the interrogator decides that an answer claim-
ing lack of knowledge would damage his case, he should structure his
questioning to avoid that answer Once given, such an answer is not
likely to be withdrawn, no matter how effective the subsequent ques-
tioning Consider a personal injury case in which the defendant has
raised the defense of and carries the burden of proof on the statute of
limitations Assume that counsel for the defendant plans to depose
the plaintiff’s treating physician to show that, contrary to the plain-
tiff’s contention, the physician told the plaintiff during the period of
limitations that his rare hematologic disorders were probably due to
exposure to certain toxic fumes generated by the defendant The
doctor may be the only one who can testify that the plaintiff was so
advised, without such testimony, the statute of limitations defense
will be substantially weakened and possibly destroyed Anticipating
that the plaintiff’s physician may be inclined to say that he does not
recall whether he so advised the plaintiff, the defendant’s attorney
may ask preliminary questions designed to elicit answers, the intellec-
tual force of which may cause the doctor to discard his original incli-
nation to claim not to remember. Thus, before posing the key
question, the interrogator may ask
When you suspect the cause of a patient’s problem, do you gen-
erally advise the patient of your view so that he might take steps to
avoid the cause’
Was there any reason not to advise plaintiff of your view as to
the probable cause of his condition’
Did plaintiff ever complain to you or threaten to sue you for
withholding information from him’
The interrogator might also show the doctor his own records contain-
ing statements about the suspected cause of the problem If the doc-
tor answers such introductory questions as expected, he may then be
unwilling to make the implausible statement that although he sus-
pected the cause of the plaintiff’s maladies, he cannot recall whether
he informed the plaintiff of his suspicion. On the other hand, if the
doctor answers these preliminary questions in a noncommittal way,
he probably will maintain that he does not recall when asked the key
question At this point, the interrogator may remind the doctor that
to say that he does not remember when he does is a violation of the
oath On the other hand, such a reminder may only provoke the
witness and make him more defensive than forthcoming
A particularly difficult problem for the interrogator is the witness
who was deeply involved in the underlying facts some years ago but

IVol 2 255 19821
who daims that, because of the passage of time, he is unable to give
substantive answers to most questions without refreshing his recollec-
tion by reading many documents and talking to others who were in-
volved Such a witness may claim, for example, not to recall
preparing a memorandum sent out over his name and not to remem-
ber whether the memorandum accurately reflected his views at the
time, even though he will not go so far as to deny that he prepared
and sent it. Unlike the typical witness who says that he cannot re-
member, this witness has not ruled himself out as a possible trial wit-
ness. He has stated that reviewing many documents and talking to
others might refresh his recollection. The interrogator has no idea
what this witness will say at trial.
The interrogator is thus presented with two choices. First, he can
ask the witness to confirm that he would so testify with respect to
each of the major topios in the litigation The interrogator might
then recess the deposition and advise opposing counsel that he will
object to any more specific testimony by the witness at tnal unless
advised sufficiently in advance of trial so that he may resume the
Second, the interrogator can attempt to refresh the recollection of
the witness. He might begin with each of the more important docu-
ments in chronological order and ask the witness whether he recalls
senchng or receiving it, discussing its contents before it was sent or
after it was received, expressing agreement or disagreement with it,
and taking action as a result of the document He might also para-
phrase for the deponent the statements by other witnesses about the
key underlying events and ask whether that helps him to recall If
the witness’ recollection is refreshed by such questioning, the interro-
gator may obtain useful information because the witness presumably
has not discussed the underlying events with his own lawyer in much
detail If the witness’ recollection is not refreshed by the interroga-
tor’s review of the documents and other testimony, the jury may not
believe a daim that upon further review of the documents, it all
came back to him.
K The’ Wantu W o Says Too Much
Often the Interrogator will happily allow the deponent to talk
Given enough rope, the witness may hang himself On the other
hand, the interrogator who seeks admissions may be frustrated by a
verbose, argumentative witness Consider this exchange
Q Did you ever complain to the defendant that its pricing poli-
cies were unfair’
A Knowing the defendant’s unsavory reputation and the vindic-
tive temperament of its management, we decided that com-
plaining would only provoke it to take further action to crush
S ..
Q Did you attend the meeting of December 14, 1982’
A We were trying to deal with a cancer, that is, defendant’s ille-
gal business practices, and we met on thai day to examine the
limited options open to us
The interrogator cannot read such deposition segments to the jury
What should he do’ First, the interrogator should move to strike the
answer insofar as it is unresponsive to the question If the witness
should later become unavailable, the interrogator’s opponent may at-
tempt to read such testimony into the record at trial
How does the interrogator make the witness give direct factual
responses If the witness were to give argumentative testimony at
trial, the judge would undoubtedly reprimand him and the jury
would soon become impatient if he persisted But the interrogator
may be justifiably reluctant to raise this kind of problem with the
court at the discovery stage, particularly where the answer includes
the information requested Judges do not enjoy becoming embroiled
in the parties’ pretrial squabbling, especially when asked not Just to
rule on the propriety of a specific question, but to peruse a transcript
to determine whether the witness should be directed to give more
responsive answers
However, using the force of his own personality and manner, the
interrogator may gain control over the witness For example, he may
Please listen carefully to the next question You will see that it
can fairly be answered yes or no or that you don’t remember
Please answer it that way
Of course, counsel for the witness will not likely sit back and allow
the interrogator to instruct the witness He may object to such in-
structions, note that the question has been answered, and request
that the interrogator ask his next question
lithe witness remains quarrelsome, the interrogator may say
63 S Fw R Civ P 32(a)(3)

(Vol 2 255 1982J
Mr Bruton, I am asking you questions to learn certain facts
Please answer those questions directly Leave it to your lawyer to
ask whatever supplemental questions he believes should be put to
you and, at the appropnate time, to make whatever arguments
should be advanced Now, listen carefully to the next question,
and you will see that it can be answered fully by giving a date or by
saying that you do not know or remember Please answer it that
The interrogator should then sharpahoot the next several questions to
call for precise, limited information. If the witness persists in giving
rambling, argumentative answers, the Interrogator may make one
final plea.
I suggest that we take a break here I would ask counsel for the
witness to confer with him during the break to advise him of his
duty to answer questions directly without making speeches If the
witness continues to give the same kind of answers, I intend to seek
the aid of the court
Consistent with the notion that the interrogator should not take a
position and then retreat from it, the attorney should not make this
threat unless he plans to act on it should the witness remain obdu-
rate. If the witness still refuses to give directly responsive answers,
the interrogator may apply to the judge who, though annoyed, may
issue a general instruction that the parties should proceed in good
faith and that the witness should do his best to be responsive With
most witnesses, even such a tepid direction will be adequate to cor-
rect the problem.
L The Witnas Who Fsghu the Objrawe of the interrogator
Sometimes the deponent will try to guess the interrogator’s objec-
tive and give answers at odds with the objective. The interrogator
should respond by strategically structuring his questions and in-
flecting his voice to disguise his objective. The interrogator may even
be able to make the deponent think that his objective is the opposite
of what it really is. For example, suppose the plaintiff alleges that
the defendant engaged in predatory pricing in violation of the anti-
crust laws by setting its price below average variable cost in an at-
tempt to monopolize the market. Counsel for the defendant may
know from his own expert’s analysis of accounting records that the
defendant’s price could not be found to be below average variable
cost if it had been set fifteen percent higher. Suppose the defendant’s
counsel wants to establish that even if the defendant’s price was be-
low cost, such pricing had no impact upon the plaintiff If the de-
fendant’s counsel senses that the plaintiff is shaping his answers to
defeat the interrogator’s perceived objectives, he may word his ques-
tion this way
You would agree, would you not, that if defendant’s price were
fifteen percent higher dunng the years in question, your company
would have received a lot more business’
If the witness is fighting the apparent thrust of the question, he may
deny that a fifteen percent price increase would have resulted in
much additional business The interrogator may then ask
Are you trying to tell me that even if defendant’s price had been
fifteen percent higher, your company would not have received any
lithe deponent again fights the question by saying that he would
have received no additional business even with that increase, he may
have great difficulty establishing at trial that he suffered damages—
even if the defendant’s price was below cost In short, the deponent
who fights the interrogator instead of simply answering the questions
truthfully may find that he has crippled his own case
M The Lawyer Who &zys Too Math
Sometimes the witness’ counsel will disrupt the interrogator’s ex-
amination by interjecting comments after difficult questions before
the witness starts to answer Few comments are more infuriating to
the interrogator than “If you know” or “If you remember” Predict-
ably, such comments are almost invariably followed by an answer
that the witness does not know or remember
These comments are rarely justified although the witness’ counsel
will realize on occasion that the witness has slipped into the school
examination mode of answering questions, that is, guessing when he
does not know the answer in the hope that he will receive extra
points if he is right
The interrogator should not tolerate such remarks As in dealing
with the witness who talks too much, the interrogator may stop such
prompting by saying
As I told the witness at the start of the deposition, if he does not
know or remember the answer to a question, he should say so
That instruction applies to every question in this deposition I
would ask counsel not to interrupt this examination with such com-
ments in the future If that practice persiits, I assure you that I will
recess this deposition and apply to the court for relief

(Vol 2 255 l982J
In the face of this kind of threat, the witness’ counsel will usually
terminate or severely restrict his use of these comments since a judge
would be likely to frown upon them
More difficult problems may arise from comments in which the
witness’ counsel purports to be seeking clarification of the question
For example “Do you mean before October 13, 1982, or at any
time” or “Do you mean besides what he told you an hour ago when
he said “ Speaking objections, such as “Objection on the
ground that it is not clear whether the witness is being asked ,“
present the same problems Again, the interrogator may reprimand
opposing counsel and give another stern warning But opposing
counsel knows that the interrogator will hesitate to trouble the court
with this sort of objection, especially since the judge would probably
have to read a good portion of the deposition to determine whether
the interrogator has a legitimate grievance Nonetheless, at some
point, the interrogator will conclude that such remarks have become
so intrusive as to interfere with his right to examine the witness At
this point, in spite of his reluctance, he should apply to the court
N Th Wilnw Who Needs Time
Sometimes the deponent may say that he could answer a question
if given some time This is not uncommon when the answer involves
mathematical calculations made in connection with a damage claim
The interrogator should ask how much time the deponent would
need to make such calculations If the time is not too long, the inter-
rogator may give the deponent the time necessary to make his com-
putations. Likewise, the lawyer may be satisfied with a detailed
description by the witness of the exact procedure to follow in making
the calculations. The interrogator can fill in the blanks for himself
Counsel for the witness may instruct him not to make the detailed
calculations requested by the interrogator, he may fairly contend
that the witness should not be required to perform such work in the
pressurized environment of the deposition, and state that the infor-
mation will be provided later. Otherwise the witness may make a
mistake in his calculations which will come back to haunt him The
interrogator is not likely to press the point by seeking a ruling from
the court, particularly if opposing counsel has promised to provide
the information later Moreover, the court is not likely to require
that such calculations be made immediately at the deposition
O Going Of the Record
As a matter of practice, if any lawyer at the deposition asks to go
off the record, the reporter will stop recording The transcript should
show that an off-the-record colloquy occurred at that point 11, how-
ever, another lawyer says that he wants to stay on the record, the
reporter will continue to record the proceedings Tactically, the at-
torney asking to go off the record should inquire whether there is any
objection If no one objects, opposing counsel cannot complain later
that the lawyer went off the record to disrupt the questioning of the
witness on a critical point
The reporter should not honor a request by the witness to go off
the record unless an attorney endorses that request and no one ob-
jects Sometimes the witness will make such a request and be embar-
rassed to discover later that the reporter has recorded his
comments 65
Counsel for the witness should explain to him that nothing is re-
ally off the record Even if everyone agrees to go off the record, one
of the lawyers may later ask the witness to confirm on the record
whatever he said off the record
P Starling and Ending Times and Breaks
Typically, the deposition will start at 1000 a m and run to 400
or 500 p m with an hour for lunch and a break or two of five to ten
minutes each session However, the interrogator may be wise to des-
ignate a 900 or 9 30 a m starting time The lawyer for the witness
may not object when he receives the notice but may run short of
preparation time if his witness arrives late on the morning of the
There is usually not much advantage to working without breaks
or lunch The lawyer for the witness should be particularly cautious
about agreeing to do so since the deponent may tire and make mis-
takes Even if the witness insists that he feels fine, his attorney should
64 Su R HAYDOCK & D Hi.a ,si i ,’a note 5i. 335
65 One lawyer telis with relish the story of a witness who, dunng a iulI in the question-
ing, cold the reporter to go off the record and then said to him, “Ate you getting down all of
this (eapiesivej” The reporter dutifully recorded the comment, and at tnai the wutneas was
asked to read aloud his Iouimouthed characterization of his own testimony

IVol 2255
ultimately make his own decision on such matters The same caveat
applies to continuing the deposition much past 5 00 p m Tired wit-
nesses make mistakes. Counsel for the witness should oppose working
past that time unless the other lawyers make a commitment, or at
least a strong affirmative statement, that they expect to finish by 7 00
or 800 p m
Q Cowuir/’s R aa:oiu o Awwir.c—6 ,od or Bad
Normally the interrogator will not reveal to the opposing party
that he believes the witness has just given a helpful admission If he
does react, the witness may modify his answer or his lawyer may try
to repair the damage by asking the witness whether he understood
the question Consequently, the interrogator should not pause, grin,
pass a note to a colleague or his dient, announce that it is time to
take a break, or ask the reporter to read back the answer He may
switch to a different subject to reduce the risk that the deponent will
withdraw or modify his answer, but he should do so naturally and
continue to question at the same pace and with the same tone of
voice. If he is taking notes while questioning the witness, the interro-
gator should doso at an even pace so that he does not inadvertently
signal to his opponent those answers he considers important
Similarly, counsel for the witness should not concede to the inter-
rogator that a point has been scored against him He should not
groan, grimace, tense up, or change his position on settlement at the
next break. He may consider interrupting to inquire whether the
deponent understood that the interrogator was asking, for instance,
what color the light was for him, not for the other driver The dan-
ger in interrupting is that the witness may reaffirm his harmful testi-
mony, making it even more difficult to explain at trial. Additionally,
the interrogator will probably object strenuously to such an interrup-
tion and may even complain to the court Notwithstanding these
risks, counsel for the witness may decide that the interruption is nec-
essary to get the testimony straight.
Perhaps the most difficult lime for the witness’ counsel is when he
realizes that the interrogator is dose to hitting paydirt He should
avoid defensive antics (moving to the front of his chair, objecting on
flimsy bases, quarreling with the question, and the like), which the
interrogator will interpret as meaning that he is on to something A
stifled yawn or a humorous aside is more likely to lead the interroga-
tor off the track Occasionally, counsel for the witness may try to put
down a false scent by seeming concerned and protective in response
to questions that he knows will be unproductive
R DocumenLr and Drawings
As with the rest of his questioning, the interrogator using a docu-
ment should know his objectives In determining these objectives,
the interrogator must consider whether the court’s pretrial proce-
dures require identification and exchange of trial exhibits ° If the
court so requires, the interrogator cannot expect to surprise the wit-
ness at trial, even with a document not marked as an exhibit at
If the interrogator intends to show the document to the witness,
the stenographer should mark it as an exhibit just before the lawyer
hands the document to the witness 6 ’ The interrogator can save time
by marking the exhibit in advance of the deposition and then in-
structing the stenographer to add his initials at the deposition
Where numerous documents are expected to be marked at deposi-
tions, the attorney should consider how best to number them
Rather than using initials (“Exhibit P1” or “D3”) or the name of the
deponent (“Exhibit Kendall 5”), the interrogator may start with
“Exhibit I” at his first deposition and number the exhibits consecu-
tively through all the depositions (so that if Exhibit 8 is the last
number of the first witness’ deposition, Exhibit 9 will be the first
number of the next one) This approach eliminates confusion since
only one exhibit will bear, for example, the number 8. In preparing
his pretrial memorandum, the interrogator can give Exhibits 1
through 463, as marked at depositions, the same numbers for trial If
there are 100 exhibits that he will not use, he can just drop those
numbers If there are additional documents to be marked for trial,
he can start at Exhibit 464 Meanwhile, opposing counsel may use
the same system by starting at Exhibit 1001 or 2001
An important advantage of this approach is that if the lawyer
reads into the record at trial the witness’ deposition testimony about
what has been marked Exhibit 296 for trial, he will not encounter the
66 . Pu, R Civ P 16 Some dntncij rcquwe iuch idanaficauon and exchange by
local rWc Eg, ED PA R 2i(c)(3),(d)(I)(a)
67 Si, Fw R Civ P 30(0(i)

IVol 2255 1982)
problem of repeatedly explaining that the document was marked Ex-
hibit 221 at deposition
Using the name of the witness in marking exhibits may be confus-
ing Suppose a key question in the case is whether Mr Greenberg
saw a certain document marked “Exhibit Greenberg 3” Even if Mr
Greenberg denies that he ever saw the document, the jury may mis-
takenly conclude that since it is marked “Exhibit Greenberg 3,” Mr
Greenberg must have had something to do with it
In cases with multiple defendants, the parties may use a system of
labeling the exhibit with the name of the party marking it (eg,
“Baxter Exhibit 3”) This system may also confuse the jury since it
places a particular defendant’s name on a document with which that
party may have no connection. In addition, counsel for a particular
defendant may hesitate to mark exhibits in this manner for fear that
putting his diem’s name on many documents may give the name
greater prominence before the Jury.
Although the interrogator may generally choose his own system
of marking exhibits, opposing counsel should be alert to object to
efforts to connect, by the numbering system, documents which are
not obviously related to one another. For example, in a suit alleging
wrongful termination of employment, counsel for the employee may
mark as Exhibit 7A an internal memorandum from the defendant’s
records reporting that the employee will be absent from work for
three weeks for jury duty and as Exhibit 7B, rather than Exhibit 8,
the employer’s letter of termination to the employee, thereby sug-
gesting that Exhibit 7B was sent as a result of the information con-
tained in Exhibit 7A.
The interrogator should have available copies of each exhibit for
all counsel and the witness. The deposition will move much faster if
those copies have been made in advance of the deposition
To eliminate any potential proof problems at trial, the interroga-
tor will generally asit the deponent to authenticate the exhibit by
stating that it is what it purports to be (eg, a letter to Mr Kahn)
and that it was mailed or sent on or about the date it bears 69 As to
some documents, the interrogator may seek nothing more than
lithe interrogator must establish that the document was sent and
received, he might show the exhibit to the witness before questioning
him about it Suppose ihat the interrogator’s client has a file copy of
a letter sent by one of his employees (since deceased) to the deponent,
that it would be helpful to the interrogator’s case to show that the
letter was in fact received by the deponent, and that the letter was
not included in the opposing party’s document production If, before
showing the copy of the letter to the deponent, the interrogator asks
whether any such letter was received, the deponent may say no,
either because that is his recollection or because he is dishonest and
believes that the interrogator cannot prove that the letter was sent
I-fe may stand by this answer even when shown the file copy of the
letter if he does, the interrogator may be unable to prove at trial
that the document was received On the other hand, if the interro-
gator first shows the document to the witness and then asks whether
he received it, the witness will be more likely to answer affirmatively,
either because he recalls the letter, because he thinks that he must
have received it, or because he thinks that a lie would be
If the interrogator’s objective is discovery, documents are fertile
sources for questions lithe document was sent out over the name of
the deponent, the interrogator may ask who actually drafted it,
from whom the information contained therein was obtained, how
many drafts were prepared, where those drafts are now, who re-
viewed the document before it was sent out, tO whom copies were
sent, whether anyone who received a copy expressed agreement or
disagreement with its Contents, and what reply, oral or written, was
made to the document lithe deponent received the document, the
interrogator may ask what response he made to the document or, if
none, why not, whether the deponent drafted a response (even if not
sent), to whom he showed the documeni, who was consulted concern-
ing its contents, and what action, if any, the deponent took in re-
sponse to the information set forth in the document
Often the interrogator will question the witness about the infor-
mation in a document without showing the document to him or even
indicating that he has a document The attorney may include some
of the exact words of the document in his question For example, if
the deponent prepared an internal memorandum dated January 22,
1982, the interrogator might ask, “As ofJanuary, 1982, wasn’t it true
that [ add words of memorandum]?” The advantage of using the ex-
68 Eaiabiuhmcnt of iuch a nncction wouid iupporm a cauje of action for wrongfui
IcrinInanos Sat Neca v Hocki, 272 2i0, 536 P2d 512 (1975), keumhcr v Fowier &
Wiihamj, mc, 255 Pa. Super 28, 386 A2d 119 (1978)
69 Fao K Evro 9Oi )(i)

IVol 2255
act words of the deponent’s memorandum in the question is that
should the deponent deny that those were the facts in January, 1982,
he cannot later reconcile the apparent contradiction on the basis of
some small but supposedly significant difference between the word-
ing of the memorandum and that of the question The interrogator
may use the same technique by taking language from pleadings, re-
sponses to requests for admissions, answers to interrogatories filed on
behalf of the deponent, and judicial decisions
Where the deponent denies that the facts in January, 1982, were
as suggested by the interrogator, how should the attorney use the
document? The answer depends on his objective If he seeks admis-
sions, the interrogator may mark the document as an exhibit, con-
front the witness, and ask him to confirm that it says what it says and
that the deponent accurately stated the facts when he prepared it If
this same scenario is repeated, the deponent may become gun-shy
and hesitate to deny further requested admissions The Interrogator
may push further and seek admissions on matters not confirmed in
the documents For example, if he has another memorandum dated
October 13, 1982, prepared by the deponent, the attorney may, with-
out marking the document as an exhibit or presenting it to the wit-
ness, ask, “As of October, 1982, wasn’t it true that “ The
interrogator may conclude this question with various facts stated in
the memorandum He may then complete the question with a fact
he believes to be true, even though not specifically stated in that
memorandum In response, the deponent may confirm that the fact
is true, fearing that the Interrogator has a document authored by the
deponent which contains the specific information at issue
On the other hand, if the interrogator’s objective is to destroy the
credibility of the deponent, he will probably not confront the witness
with documents contradicting his testimony as the deposition pro-
ceeds Indeed, confronting the witness with each contradiction as it
occurs may prompt him to give more truthful answers—not a desira-
ble development if the interrogator wants to attack the deponent’s
credibility at trial
After completing his basic examination of such a witness, the in-
terrogator may be tempted to confront the witness at the deposition
with the various documents contradicting his story, particularly
where the court’s procedures require a pretrial exchange of trial ex-
hibits The disadvantage of doing so is that the witness is provided
with a practice round at harmonizing the contradictions The inter-
rogator may accept this disadvantage if he senses that he is more
likely to obtain helpful testimony at the deposition than if he
postpones his questions until trial Even if the witness is unaware of
the contradictions, the interrogator must assume that opposing coun-
sel will alert the witness before trial The interrogator must rely
more on intuition than logic in making this judgment
Sometimes the interrogator will ask the witness to make a draw-
ing or diagram Often opposing counsel will not object to such a
request The witness may testify more clearly and quickly with such
a drawing available for reference If, however, counsel for the wit-
ness is doubtful about the witness’ ability to make a reasonably accu-
rate drawing, he should instruct the deponent not to comply with the
interrogator’s request A significant error or omission in the drawing
may return to haunt the deponent In some instances, the interroga-
tor will have available a prepared drawing If the witness can con-
firm that the drawing is accurate according to his recollection, the
interrogator should be permitted to use it and to ask the witness to
mark the drawing (eg, showing where he fell)
Finally, the deponent will sometimes mention a document, and
the interrogator will request its production Often counsel for the
witness will answer that he will consider the request and the matter
ends there because the document is never produced and the interro-
gator forgets that he requested it To ensure that he obtains the doc-
ument, the interrogator should make a note to confirm his oral
request with a formal written one
S Objea:onr
As noted above, counsel must object at the deposition if the
ground for the objection is one that might be removed if made at
that time 70 Otherwise, counsel may not interpose the objection at
trial if another party seeks to use the transcript 7i When in doubt,
prudent counsel should make the objection On the other hand,
counsel gains little by making an objection at the deposition which
he may save until trial (eg, an objection on grounds of relevance),
and may only prolong the deposition
Should the lawyer making the objection state his grounds’ In
light of the underlying rationale of rule 32(d)(3)(A), as well as the
70 & Fw R Civ P 32(d)(3), a aiw ,icpa icxi accompanying noic 60
71 .I Fw R CivP 2(d)(3)

[ Vol 2 255 1982J
general preference for requiring that grounds be stated, 12 he would
be wise to do so at least in a general way (eg, “Objection, form”) If
the interrogator requests a statement of the grounds, it should be
given if the objection may be cured at that time by the interrogator
If the objection cannot be cured, the attorney need not state the
grounds Again, in this situation objecting at the deposition is unnec-
essary in the first place.
Even after hearing the objection and the grounds, the interroga-
tor may remain sat isfied with the question and decline to rephrase it
or take other corrective action. He must balance the risk of not being
able to use that question and answer at trial against the danger that
rewording the question will lead to a less useful answer Addition-
ally, the pace of his questioning may be badly disrupted if he at-
tempts to eliminate every picayune objection
The deponent’s lawyer should avoid the temptation to object too
often It is true that frequent objections may distract the interroga-
tor and adversely affect the quality of his questioning, but such ob-
jections may have an even worse impact on the deponent Every
objection breaks the concentration of the deponent whose focus is
properly on the question Too many objections may undermine the
witness’ confidence as he begins to fear that the questions must con-
tain hidden traps which he is missing Such objections often lead to
bickenng among counsel which may unnerve the witness further
Thus, even if a question is technically objectionable in some small
way, counsel for the deponent may decide to remain silent, or to
make his objection unobtrusively, and allow the deponent to answer.
The deponent will gain confidence as he deals with such questions
A deponent who has testified many times may be given very free
rein If the interrogator concludes that the deponent will be an effec-
tive witness at trial, this conclusion will affect his view of the settle-
ment value of the case
Finally, the deponent may occasionally answer before his lawyer
has a chance to interpose an objection. In that event, the attorney
should state his objection, move to strike the answer, and state for the
record that the deponent answered so quickly that a more timely
objection was not possible.
72 . v Fso R EviD i03(a)
T /nsingcl,ons Not to Answer
There is often a good deal of gamesmanship in giving and testing
an instruction not to answer, particularly in the first few depositions
of a case in which many depositions will be taken If the instruction
is raised with the court,” the prevailing party gains an edge If the
court orders the deponent to answer, counsel for the deponent may
be reluctant to give another such instruction He will not want to
give the court an early impression that he is attempting to obstruct
discovery On the other hand, if the court sustains the instruction,
the interrogator may hesitate to press subsequent instructions with
the court He will not want the court to think that he does not know
the proper scope of discovery or how to ask a question
As a prerequisite to seeking a ruling from the court, the interroga-
tor should have a clearly worded instruction not to answer on the
record The witness will follow such an instruction from his own at-
torney but not from other counsel ‘ Often counsel for the witness
will avoid giving an instruction not to answer Instead, he may ask
for clarification or narrowing of the question Alternatively, he may
make a speaking objection, following which the witness may say
nothing If the interrogator proceeds to his next question, the tran-
script may appear as if he abandoned the original question I-fe
should ask opposing counsel whether he is instructing the witness not
to answer and make certain that the response is clear on the record
Opposing counsel may occasionally sidestep the interrogator’s ques-
tion to him and say that he is instructing the witness not to answer
the question “in that form,” while adding that he would allow the
witness to answer a proper question The interrogator must then de-
cide whether to rephrase the question to eliminate opposing counsel’s
objection and accompanying instruction not to answer Although
the interrogator may decide that the question is proper in its original
form and refuse to reword it, more often, he will reframe the ques-
tion Sometimes, regardless of his phrasing of the question, the inter-
rogator will be met with an objection “as to form” and an instruction
not to answer He may try the question several ways so that the
record will show that, in spite of opposing counsel’s characterization,
73 Su F D R Civ P 3 7 (a)(2)
74 lIthe witnew wa, lormerly employed by one oF the pan,a and concinuca to be
Inendly with that party, he wiii ,ometima agree to be reprcicnted by chat pany’i lawyer at
the depowtaoo. and will thus Follow ho ,nslruccions

(Vol 2 255 1982J
the objection is really to the substance of the question At this point,
some interrogators will ask the witness to confirm for the record that
he will follow his lawyer’s instruction not to answer The witness
may be unnerved by suddenly being drawn into a dispute among
When the interrogator meets with an instruction not to answer,
he should make an adequate record before seeking relief from the
court In many instances, opposing counsel will allow the witness to
answer enough of the follow-up questions so that the interrogator
will not seek a ruling on the original Instruction Consider, for exam-
ple, a case in which the plaintiff brings suit for damage to a cello in
an accident allegedly caused by the defendant’s negligence Assume
that the plaintiff sold the cello in its damaged condition a year later
and that counsel for the defendant asks the plaintiff at his deposition
the price of that sale The plaintiff’s attorney may instruct his client
not to answer on the ground that since the plaintiff’s damages were
fixed at the moment of the accident, the subsequent sale price is not
admissible,’ 5 nor is that information reasonably calculated to lead to
discovery of admissible evidence.’ 6 If the interrogator drops the sub-
ject, he has no assurance that the court will order the deponent to
answer the question At the least, the interrogator should request the
name and address of the buyer He may decide to stop there, hoping
to obtain more information from the buyer If, however, the buyer is
likely to be an unfriendly witness, the interrogator may continue his
questioning and ask the deponent whether he brought the damage to
the buyer’s attention, how he described it, and what he said, if any-
thing, about its effect on the cello’s value The interrogator is surely
entitled to answers to these questions, and the court will so order if
necessary. lithe witness is permitted to answer, the interrogator may
decide that he has sufficient information and that he need not seek a
ruling on the original question about the sale price
In many instances, rewording the question will eliminate the in-
struction not to answer For example, if an insurance carrier dis-
claims coverage on the ground that the insured made
misrepresentations in applying for the policy, the insured’s counsel
may ask the underwriter at the deposition whether he claims that the
alleged misrepresentations were material Although the chances of a
75 See ge a1 J Wisuosa, si 1 uw note 2, § 437
76 F .o K Civ P 26 )(i)
favorable answer are slim, the interrogator may ask the question if he
senses any possibility of a favorable response Even if the deponent
says that the misrepresentations were material, the interrogator has
not lost ground since that was obviously the deponent’s position go-
ing into the deposition Counsel for the deponent may instruct him
not to answer such a question on the dubious ground that it “calls for
a legal conclusion” The interrogator may circumvent this instruc-
tion by explaining
I am not asking you to give your view of the proper legal con-
clusion lam asking you only to give facts As a matter of fact, was
this information material to you in deciding whether to cover this
nsk in the sense that it played a part in your decision’
A question which asks the witness what he would have done ,f
certain information had been reported to him will often be met with
an instruction not to answer on the ground that the question is “hy-
pothetical and calls upon the witness to speculate” Some hypotheti-
cal questions are undoubtedly proper, and, if petitioned, the court
will order the deponent to answer,” however, the interrogator may
avoid or eliminate such an instruction by carefully structuring his
questioning For example, the interrogator should not use the word
“if” in his question A question which begins “If you had known
tends to provoke a Pavlovian instruction not to answer In-
stead, the interrogator might ask, “Had you known that information
in July, 1982, would you “ This small difference in wording
may avoid an instruction not to answer
If the instruction is given, the interrogator should ask follow-up
questions which persuasively demonstrate that he is entitled to dis-
cover the information sought For example, he may ask
Without saying whether such information would have affected
your dectsion, please answer this question Would you have taken
such information into account in reaching your decision’
77 Although ii has been said that only eaperts may answer “hyposheticai” questions,
Teen-Ed, Inc v Kimball Intl. Inc • 620 F 2d 399, 404 (3d Cir i980), nonespens are entitled
(and may, therefore, be compelled) to give opinion answers in response to questions in the
vein “Whai would have happened if X had been different” Thus, an accountant. as a
nonezpcrt, may give his opin,on as to what profits would have been earned tI a contract had
not been breached, id • and an automobile dnver may give his opinion as to what would have
happened had he pursued a different course of action pnor to an accident, Fullerton v Sauer,
337 F 2d 474, 478-79 (8th Cir 1964) This is the tense in which the term “hypothetical” is
used here For citations to older state cases on this issue, sec 3 F BUSCH, L w AND TAd ICS
t!4 Juas T iu s § 338, at 285 n 21(1960)

IVol 2 255 19821
If the deponent answers this question affirmatively, the interrogator
may ask
Are you able to say whether your decision would have been the
same or different had you known that information
With an affirmative answer to this question, the deponent’s attorney
will probably permit his client to explain how his decision would
have been affected. If not, with that foundation, the court probably
will order the witness to answer the question If the deponent claims
that he would not have considered such information, the interrogator
may ask him to explain why such information would have been un-
important to his decision Or, if the deponent admits that he would
have considered such information, but cannot say whether his deci-
sion would have been different, the interrogator may follow up by
asking the deponent to list: first, the factors that would have pointed
to the decision reached, and second, the factors that would have led
to a different decision. The interrogator may also ask the deponent
to list the options available to him when making his decision. With
answers to these questions, the interrogator probably will not need a
ruling on the original instruction not to answer
As an alternative to asking individual follow-up questions, the in-
terrogator may ask counsel for the witness to confirm that he would
object to all questions on that subject Such an invitation contains
dangers for both parties. If the interrogator intends to seek a ruling
from the court, he will create a more compelling record if he asks his
questions (at least generally) and receives a series of instructions not
to answer. If, for example, counsel for the witness instructs him not
to answer a question pertaining to a certain meeting, the interrogator
can ask in just a few minutes who attended, how long the meeting
lasted, what subjects were discussed, if subject A was discussed, if
anyone took notes, what action was decided upon, and how things
were left at the end of the meeting Counsel for the witness, too, may
hesitate to admit that he would instruct the witness not to answer all
questions on a certain subject To avoid this apparently arbitrary
stance, the witness’ attorney should state that he would have to hear
the questions and decide individually. If he then allows some ques-
tions to be answered in whole or in part, he may appear to the court
to be reasonably cooperative Additionally, he will deprive the inter-
rogator of a short transcript of twenty clear instructions not to an-
swer which the court might quickly review and rule upon.
If opposing counsel gives an instruction not to answer a certain
question, the interrogator may ask the witness whether he possesses
the information necessary to answer that question lithe witness says
no, the interrogator may decide that it is pointless to seek a ruling on
the instruction If, however, the witness admits knowledge of the in-
formation sought, the court will be inclined to rule that he must re-
veal it to the interrogator
The instruction not to answer may be obviated in some cases by
the offer of a protective order Where it is not feasible to recite ex-
temporaneously the precise terms of such an order, the interrogator
may circumvent the problem by agreeing to keep the answers confi-
dential (perhaps not even revealing them to his own client) until the
parties can concur on the wording of the order or, if no agreement is
reached, until the court enters its own order Counsel should instruct
the reporter to type as a separate transcript the portion of the deposi-
tion in which confidential information is revealed.
If counsel for the witness objects to a question on the ground that
it invades some privilege, he will usually have no choice but to give
an instruction not to answer and leave it to the interrogator to seek a
ruling Counsel may permit the witness to answer the question with
the express understanding that an answer to a single question does
not constitute a general waiver of the privilege. Moreover, the inter-
rogator should be aware that, through his questioning, he himself
may waive his client’s privilege For example, if the plaintiff alleges
that he was defrauded in a certain real estate transaction, the plain-
tifFs litigation counsel may depose the plaintifFs real estate counsel
(whose interest at this point may be adverse to that of the plaintitl)
If the interrogator asks about conversations with the plaintiff, the
court will likely rule that the plaintiff has waived the attorney-client
pnvilege as to real estate counsel
Counsel for the deponent should remember that he will be bound
at trial by the instructions given at the deposition Thus, upon objec-
tion by opposing counsel, he will not be permitted to elicit from his
own witness at trial any information that he instructed the witness
not to reveal at his deposition.
78 Ses A H Robins Co v Fadciy. 299 F 2d 357, 560-61 (5th Csr 1962), C WRIGHT &
A Miu..i.R.sapa nose 3, § 2016, 11 i30-3i,cf, eg. Nick block, Inc v Rcsearch-Cosircii. Inc.
74 FR D I SO, ISO-Si (WI) Pa 1977) (iccountant-clicot privilege may not be asserted to
prevent deposition of accountants hued as trial wttn ses)
79 S e , J Moosi & J Lucas, ja a note 3,12660121,1126-229(0 .236 C WRIGHT &
A Uuw, ,s noteS, § 2016, at 127-29

IVol 2 255 19821
U Obtaining Rulings on /nstnicAo,u Not to Answer
The interrogator seeking an order from the court directing the
witness to answer must decide
(I) whether to apply to the coun in which the action is pend-
ing or to the court in the district where the deposition is being
(2) whether to seek immediate relief (by placing a telephone
call to the court) or to file a written motion later, and
(3) whether to continue with the deposition if an immediate
ruling cannot be obtained or recess the deposition pending such
/ Where to Apply— If the deponent is not a party, the interrogator
must apply to the court in the district where the deposition is being
taken°° If the deponent is a party, the interrogator may apply either
to the court in the district where the action is pending or to the court
in the district in which the deposition is being taken Si Typically, the
interrogator will seek a ruling from the court where the action is
pending if that court has an individual calendar program assigning
the case to a particular judge If the judge is already familiar with
the case, he should rule more quickly and surely than one selected at
random in another district. The judge may consider the case his own
and prefer to maintain control of discovery If the case has not been
assigned to a judge, the interrogator will usually apply to the court
whose internal procedures wilt yield the most speedy ruling
2. Jtivn to 4pp y—In a case involving a complex factual dispute,
the interrogator will often decide to submit a written motion to the
court In some jurisdictions, however, it is possible to obtain a ruling
by telephoning either the chambers of the judge to whom the case is
assigned or the court clerk who will assign the case to a judge This
procedure is expeditious and inexpensive. The interrogator should
be prepared to give the judge. his name, the caption of the case, his
dient’s name, the names of opposing counsel and their clients, the
nature of the case, the name of the deponent, the question or subject
as to which the instruction not to answer has been given, the basis for
the instruction, and a brief argument in favor of the propriety of the
question. Counsel for the deponent will then make a short argument
in support of the instruction. Following any brief supplemental com-
ments, the court will rule. This approach is particularly advanta-
80 Fso R Civ P 37(s)(i)
8i I d
geous to both parties when the deponent lives elsewhere Counsel for
the deponent can avoid the expense and inconvenience of an addi-
tional trip should the instruction be overruled, and the interrogator
may feel that the court would be reluctant to order the question an-
swered if such an order would require the witness to make another
trip Additionally, the ruling is very likely to be sound since trial
judges regularly make on-the-spot rulings on objections to questions
The principal disadvantage to this approach is that, if abused, it may
become an imposition upon the court However, litigators realize
that the judge who is frosty the first time may be chilling the next
3 Whether to Recess— Generally, the interrogator will continue
to question the witness while awaiting (whether for hours or weeks) a
ruling on the instruction However, the interrogator should exercise
his right to recess the deposition 82 if first, the information sought by
the question at issue is critical to further examination of the witness,
or second, the instruction is one which is likely to recur at numerous
points In either of these circumstances, the interrogator will gain
little by continuing with his examination and may, by persisung, re-
veal much of his script to opposing counsel
V Questioning One’s Own Witness
After the initial interrogator has completed his examination,
other counsel (usually in the order in which their clients appear in
the caption) may question the witness 8 When they have concluded
their questioning, counsel for the witness must decide whether to ask
his own questions Most frequently, counsel for the witness will elect
not to question the deponent The rationale for choosing that course
is sound First, counsel for the witness may expect the witness to be
available to testify at trial and to clarify his deposition testimony at
that time Second, the witness may give harmful answers to his own
lawyer’s questions Third, the greatest danger is that such question-
ing will lead to another round of questioning by opposing counsel,
the witness who was unscathed after his own attorney’s questioning
may be bloodied by opposing counsel’s subsequent examination
Nonetheless, counsel for the witness will decide in certain in-
stances to ask questions at the deposition He should consider the
following factors
82 Su FLo R Civ P 3 7 (a)(2)
83 Fi o R Civ P 30(c)

IVol 2 255 19821
(a) the possibility that the witness will be unavailable at trial,
(b) the extent to which the witness has been damaged by op-
posing counsel’s questioning,
(c) the danger that needed darifications may sound disingen-
uous if initially made at trial, and
(d) the attorney’s sense of his witness’ ability to defend the
clarifications made in answering his own lawyer’s questions if then
subjected to further questioning by other counsel
In evaluating the second factor, if opposing counsel has badly dam-
aged the witness (perhaps giving rise to the spectre of summary judg-
ment), the witness’ attorney may risk an attempt to rehabilitate the
witness through his own questioning However, the witness may con-
tinue to testify poorly and make a bad situation worse. This decision
is based more on intuition than reason.
W Rersuw g ct’ Costh thq
At the close of the testimony, the interrogator may attempt to
keep the deposition open by remarking that he has “no more ques-
tions for now,” by declaring the deposition “recessed,” or by adding
that he may need to recall the deponent after the opposition has
complied with an open discovery request frg, by producing docu-
ments). In many instances, counsel for the witness will state for the
record his objection to leaving the deposition open. When such an
objection is made, the witness’ attorney may persuade the court that
he should not have to produce the witness for another deposition
session. 88
X VsdgWa Omg
Counsel should consider videotaping the depositionan if the testi-
mony of the witness is important to his case, there is a substantial risk
that the witness will be unavailable at trial, and the demeanor of the
witness will enhance his testimony in a material way. For example,
counsel for a very sickly plaintiff may videotape his client’s deposi-
84 La FaD ft Qv P 26(c)
85 La FaD. ft Qv P 30(b)(4) S,v a4 p ft HAYDOCa & D Fisas. i nose Si,
I 3 32- 3
Nose ilist s Uniform Audio-visual Deposition Act was appeoved by the National Confer-
mice of Coaimiusoaaa on Uniform State Laws in 1978, but this set apparently has not born
adepecd in any jurisdiction La 12 U LA ii (Supp 1982)
Fos- practical suggestions c ii how to conduct s videotape deposition, Balabanian, M v-
Tedasi Vies 1h ftmmns 3 4 v, LITIGATiON, Fall 1980, 25. as 26-27
tion If the plaintiff should then die before trial, the jury can still
view him as a person If the case presents a sharp credibility dispute,
the plaintifFs personal characteristics, as depicted on the videotape,
may help to persuade the jury to accept his version of the facts Op-
posing counsel should be alen to object if the plaintiff, or any other
witness, behaves unnaturally or in a manner calculated to elicit sym-
pathy se On the other hand, not every plaintiff is attractive and be-
lievable, and, in a given case, counsel for the plaintiff may be better
off with only the dry transcript of his client’s testimony
If counsel deposcs his own expert prior to trial, he will usually
videotape the deposition If a dispute among the experts arises at
trial, the videotape will usually impress the jury more than a tran-
script which will appear even drier than usual due to its technical
content Even if the experts do not disagree at trial (ag, assume that
the defendant agrees that the plaintiff sustained the damages
claimed), the videotape of the expert’s testimony should impress the
jury more than a mere reading of the transcript
It is important that the lawyer scheduling the deposition give no-
tice to other counsel that he plans to videotape it ‘ A deposition is
usually videotaped with the understanding that it will be used as the
witness’ trial testimony, subject to rulings on objections made by the
trial court In some jurisdictions the videotape deposition of an ex-
pert witness may be used at trial even if the witness is available to
testify 88 Obviously, opposing counsel’s questioning will differ signifi-
cantly when he is not merely attending a regular discovery deposi-
tion, but cross-examining the witness for use at trial
A lawyer served with notice of a videotape deposition which will
probably be shown at trial as the testimony of the witness may seek
to take a regular “discovery” deposition in advance. 88 Thus, the at-
86 One court has ordered “Dunag the videotape deposition, the deponent ihail in nó
way act unnaturally in answcnng questions or give an appearance in such a fashion which
dicits sympathy” lit i-v Aabessos-Rdaied Litigation, No MDCP.82-i,ai 9 (M D N C. Feb 2,
i982) (order coordinating proceedings)
87 Under the federal rules no special notice is required because the parties have e,ther
agreed to videotape the deposition or the court has ordered it La Fir.D ft Civ P 3o(b)(4)
Somejunsd ictionsrequirespecla ludv ,incenot,cevg P* ft Civ P 4 Oi 7 l(b).as sec.
tion 3 of the Uniform Audio-visual Deposition Act, 12 U LA 12 (Supp 1982)
88 Eg, PA It Civ P 40i7 I(g)
89 For examples of orders granting the nght io take such “discovery” depositions ice Is
is Asbesna-kelaced Litigation, No MDCP-82-i, at 8 (M D NC Feb 2, 1982) (order coordi-
nating proceedingi), is iv Mbesios-ReIa,ed Litigation, No CP.8i-i, at 6-7 (ED N C Sept

IVol 2 255 1982J
torney will be in the same position to cross-examine the witness at the
videotape deposition as he normally would be at trial
Several technical arrangements require attention prior to the
deposition The lawyer scheduling the videotape deposition may
elect to film it in color rather than in black and white The color
tape will be more attractive visually but is also more expensive The
tape operator may have helpful suggestions about dress and staging
for color tapes. The tape operator will decide what microphones
(boom, table, or lapel) are necessary. The tape operator should be
instructed to alert counsel if a problem arises with sound Finally,
the deposition should be timed to the second by a digital clock which
should show inconspicuously on the tape 9°
Counsel should reach a dear understanding on several points at
the stan of the deposition. First, how are the expenses to be appor-
tioned? Normally, the lawyer scheduling the deposition pays for the
originals of the videotape and the stenographic transcript, and coun-
sel ordering copies pay for those 9 ’ Second, counsel should under-
stand the practice of the videotape operator (that is, where he will be
focusing when) and should act at all times as if the jury were in the
room 9° Third, the attorneys should agree on the site where the com-
pleted tapes will be stored and preserved 9°
Counsel should consider the physical setting in which the video-
iS, l98i) (fist pretnalorder).krv AabeszosCues,at S (SC Cir Ct 1982) (order) (i(witniss
critically ill)
90 PA R Civ P 4017 1(d) (required), Unit Audio-visual Deposition Act § 4(6), i2
ULA i2(Supp 1982)
91 .f MrvR1iodelilandAsbes&osCascs.RIMLNo l,at9(DRI Mar iS, i982)
(pretrial order No 2),lar, Asbestos-Related Litigation. No MDCP-82-l,at 10-li (MD NC
Feb 2, i982) (order coordinating proceedinp),/ars Asbestos-Related Litigation, No CP-8i-
I, at 7 (EDNC Sept IS, i98i) (first pretrial order)
92 One pretrial order provides, “At the beginning of the examination by any counsel,
counsel iliaD sdesittfy himself or herself by name within the cameras field of vision The
camera wili thereafter focus exclusively on the deponent at all times dunng the deposition,
except for identification of cx$ubits, and will not mom m or out on a witness or any other
person ii the deposition The camera shall not ‘pan’ other than to include exhibits, and the
held of view should, to the extent possible, consist of a plain background” is re Asbestos-
Related Litigation, No, MDCP-82-l, at 9 (MD N C Feb 2, 1982) (order coordinating pro-
ceedings) For a similar order, see it, ‘a Asbestos-Related Littgation, No CP-81-l, at 7
(ED N C Sept IS, i9Oi) (first pretrial order)
93 “Unless otherwise uipulated by the pasties, the original audio-visual recording of a
deposition, any copy edited pursuant to an order of the court, and exhibtu must be filed
forthwith with the clerk a(the osurs” Unit Audio-visual Deposition Act § 4(9), i2 U LA i2
(Supp 1982)
The original tape may also be kept by a court reporter who transcribes the deposition
, is ,, Aabeseos-Relaied Litigation. No. MDCP-82- I, at 10 (M D N C Feb 2, 1982) (order
tape deposition will be taken For example, counsel may object to
the opposing party deposing its expert witness in his office with his
various academic degrees hanging on the wall behind him
In some jurisdictions a stenographer is required to be present at a
videotape deposition, in others no such requirement exists There
are advantages to engaging a stenographer even though one is not
required Often counsel will agree that a lawyer desiring to make an
objection will state only that he wants to go off the record The
videotape wtll be stopped, but the stenographic record will continue
Thus, the videotape will be free of any objections and arguments by
counsel, the tape may then be played before the jury without the
necessity of editing objections and arguments If the court overrules
the objectton, the tape can be shown without interruption or editing,
even if the court sustains the objection, the interruption (to delete the
question and answer) will be much shorter if the arguments of coun-
sel are not included on the videotape Additionally, if counsel later
wants to check exactly how the witness responded to a particular
question, it is much easier to read the transcript than to run the
videotape Moreover, with the transcript in hand, the judge can
more easily rule on objections before playing the tape for the jury
Finally, the stenographic record will provide a useful description of
changes or interruptions on the videotape, as well as descriptions of
mechanical and technical problems 9°
Although jurors may be quite interested in the first few minutes
of the first tape, they may quickly lose interest 9° Videotape deposi-
tions tend to be boring, perhaps because recorded rather than live
Thus, it is particularly important to get to the point quickly The
coordinating proceedings) (so ordering), Mrs Asbestos-Related Litigation, No CP-81-l, at 7
(ED N C Sept iS, l98l) (first prctnal order) (tame)
94 “A party may arrange to have a stenographic transcription made at his own ex-
pense” Fs.o K Ctv P 30(b)(4)
95 “It shall be the duty of ihe person who records the deposition stenographically to
accurately record during the course of the deposition as to when a cape is changed, when
examination by each of the various counsel commences and ends, and whenever there is an
interruption of the continuous tape exposure for the purposes of off-the-record discussions,
mechanical failure of the machine, or other similar technical probienu Before the video
recorder is turned off fir any reason, the video operator shall allow all parties to briefly state
their positions, agreement, or disagreement with that action for the record “is ri Asbestos-
Related Litigation, No MDCP.82.l, at 10 (MD NC Feb 2, 1982) (order coordinalmg
96 Sea 4Uwseys isisrseaw Jute s R,garths. , 1/ Ms / b c . Mwus ’p , Vs,dsd, Asbestos Litigation
Rep , Aug 27, i982, at 5409 (“Jurors were unanimous in their crsttcucn of videotaped depots-

(Vol 2 255 19821
interrogator should proceed at a crisp pace, a pause at a videotape
deposition may seem much longer than one at trial since the jury will
see only the inexpressive face of the witness for several seconds as he
waits for the next question
At the start of the videotape, the operator should state his name,
the caption of the case, the name of the deponent, the date, the time,
the place, and any stipulations Then, each lawyer should identify
himself by giving his name and the name of the party he represents 91
Counsel taking the deposition should ensure that the administration
of the oath is recorded on the videotape so that the jury will be sure
to see it At the stan of his questioning, each attorney should again
state his name so that even if the videotape operator does not focus
on him, the jury will know who is interrogating the witness on The
operator should announce on the audio recording portion the end of
one tape and the start of the next
At the conclusion of the questioning, the lawyers should remain
silent until certain that the videotape equipment is off Otherwise,
the jury may hear a chorus of sighs and the start of banter among the
attorneys Such conduct may detract from the force of the
Editing, which is troublesome and often expensive, may be ac-
complished in several ways First, the operator can black out the
audio portion only. This method works well for short deletions and is
not expensive. However, the jury will grow bored and inattentive if
forced to watch several minutes of the tape without sound A second
editing method is to block out both the audio and video portions and
move at fast-forward through the deleted segment This method
works well unless the operator resumes the tape at the wrong point
The best, but most expensive, method is to create a second tape with
all objectionable material deleted 100
97 Sos Unit Audio-visual Deposition Act § 4(I).(2), i2 U LA 12 (Supp 1982)
98 The usufison act would require thu I d § 4(3), w the Ia so Asbettos-Rciatcd Litiga-
tion, No MDCP.82.i, as 9 (M D N C. Feb 2. 1982) (order coordinating proceedings) (order.
tfl same)
99 S,slarsAjbcsto.-RelatcdLiiigation,No MDCP-82-i,at9(MDNC Feb 2,1982)
(order coordinating proceedings) (ordering such identification), ía so Asbestos-Related Litiga-
tion, No CP-8i-i, as 7 (ED N C. Sep. IS, 198i) (first pretrial order) (same)
iO .Se Note, P* R Civ P 4017 I, R IL vcsocsc & D Hx.aa,si e,a note Si, § 333, at
171-72 Section 4(a) of the Unikrm Audio-visual Deposition Act provides “It the court .uues
an editing order the original audio-visual recording must not be altered” 12 U LA i2
(Supp 1982), sos a /s. ía so Ajbcsios -Rclaied Litigation, No MDCP-82-i, at ii (M D NC
Fcb 2, i982) (order coordinating proceedings) (ordering same)
F Summarizing the Testimony
immediately upon conclusion of the deposition (or at the end of
the day if the deposition is to be continued), each lawyer should dic-
tate a memorandum to his file summarizing the testimony given
The longer such dictation is delayed, the more the product will
Before starting his dictation, the lawyer should decide what pur-
pose the summary is to serve In some cases, this memorandum will
serve as the attorney’s summary of the deposition for all purposes
prior to trial in other cases, particularly in complicated litigation, a
legal assistant will prepare a detailed summary of the deposition as
soon as the transcript is received Both the lawyer’s time and the
client’s money are wasted by dictating a summary which will shortly
be superseded In that situation, the lawyer may dictate a memoran-
dum describing only the highlights of the deposition Such a “high-
lights” memorandum might include.
(a) the pnncipal points that the witness would make ii called
as a witness at trial by the opposition,
(b) the principal points that the Interrogator would make with
the witness were he to cross-examine him in court tomorrow, and
(c) what further Investigation or discovery should be insti-
tuted in light of this deposition testimony
One of the principal problems facing a lawyer preparing to try a
large case is too much information A highlights memorandum al-
lows the trial lawyer to get a quick hold on the most important points
that he will seek to make in questioning the witness With that
framework in mind, the trial lawyer can then tackle more detailed
materials which may suggest additional lines of inquiry ‘°‘
Generally, the lawyer will forward a copy of his memorandum
summarizing the deposition testimony to the client He should care-
fully consider whether to send such summaries to a person who may
testify at deposition or trial since opposing counsel may ask that per-
son what materials he has reviewed in connection with the litigation,
there is the danger that opposing counsel may then seek discovery of
such summaries Finally, the highlights memorandum may provide
a more meaningful and useful report to the client than a summary
including every detail
ioi In thu context, note that some court reporters are capable otretneving “key words”
in the transcript by computer, thus providing the Interrogator with a guide to passages he
thinks may be Important

IVol 2 255 19821
Z Readmg and Conreamg the Transcnpl
Immediately upon receiving the transcript, counsel who attended
the deposition should read it. Occasionally, reporters make mistakes
In transcribing, the reporter may skip a fold of his paper and inad-
vertently omit testimony from the transcript Also, the reporter may
be interrupted when he is completing the transcription and may ne-
glect to include the final question and answer in the transcript
Counsel is more likely to detect and correct such errors if the tran-
script is read upon receipt
Counsel for the deponent should confer with him to decide what
corrections should be made to the transcript. The deponent has the
right to make changes in the transcript, including changes of sub-
stance.’° 2 For example, he may say that he erred at the deposition by
testifying that the light was red, and that it was really green The
deponent must give his reason for making the change, but this justifI-
cation may be that he simply misstated a fact or that his memory has
improved. If the deponent makes a fundamental change in his testi-
mony, the interrogator may ask to resume the deposition to question
him concerning the change. The deponent may decide not to correct
minor typographical errors that do not affect meaning If at trial he
claims that he misstated one of his deposition answers, opposing
counsel may bnng out that the deponent not only made the state-
ment, but failed to amend it even though he read the transcript and
corrected several minute errors
If the deponent does not sign the transcript within thirty days,
the reporter may then file the unsigned transcript ‘° If the interro-
gator wants the transcript signed to eliminate the risk that the depo-
nent will daim at tnal that the transcript is erroneous, the only
remedy specified in the Federal Rules is a motion to suppress the
deposition or some part thereof.iO This remedy fails to satisfy the
needs of the lawyer who wants to ensure his use of the deposition at
trial without surprise.
VIII Preparing the Witness to Testify
Although this Article has focused primarily upon the interroga-
tor, the most challenging assignment is that of opposing counsel in
preparing the witness to testify Counsel for the witness must antici-
pate every subject of consequence on which the interrogator may
question, the various ways in which the questioning is likely to be
structured, and the phrasing of the individual questions He must
then decide, based on the knowledge, intelligence, personality, and
temperament of the witness, how to prepare for such questioning
Counsel for the deponent should meet with him sufficiently in
advance of the deposition so that there is adequate time to prepare
The time needed will vary depending upon the nature of the case In
an antitrust case, the meeting may be scheduled a month in advance
of the deposition In less complicated litigation, it may be held one
to ten days before the deposition A few days advance preparation
will usually help the deponent to relax If the deposition follows the
initial preparation session too closely, the witness may arrive in an
apprehensive condition and remain in that state
Sometimes, the witness will realize at the preparation session that
he is not completely certain about a panicular fact The interim be-
tween that session and the deposition may afford him additional time
to assure himself that his recollection is correct He is then likely to
testify with greater confidence The lawyer should meet again with
the witness on the day of the deposition to review the highlights of
the preparation session
The interests of the lawyer and the witness will often differ at the
start of the preparation session The attorney will want to determine
quickly the extent of the witness’ knowledge On the other hand, the
witness will want to know what a deposition is and what to expect
The lawyer should deal first with concerns of the witness If the wit-
ness is worried about the procedure, he may have difficulty concen-
trating on the facts His attorney should explain generally the nature
of the lawsuit (the gist of the plaintifFs claim and the principal de-
fenses), what a deposition is (an opportunity for opposing counsel to
take the witness’ testimony in advance of trial), and the reason why
depositions are taken (to allow each party to learn more about the
other’s case to improve the chances of settlement or, if the case is
tned, of a just result) The lawyer should inform the witness where
the deposition will be taken, who may be present (at a minimum, the
interrogator, the stenographer, and perhaps the opposing party), and
that the witness will be under oath He should also describe for the
witness the atmosphere of a deposition Before turning to the sub-
102 Fs R Civ P 30(e),s H*vooca& D HK&5,iii ia , oie SI, § 384-S
its Fw R Civ P 30(e)
i04 . a , Pw K Civ P 32(d)(4)

IVol 2 255 1982J
stantive knowledge of the witness, the attorney should ask whether
the witness has any questions about the deposition
The lawyer can then begin his preparation of the witness He
will learn what facts the witness knows and then put him “on the
stand” and ask questions which he anticipates from the interrogator
At some point, the lawyer should instruct the witness on his con-
duct during the deposition.’ 05 The witness should be advised to lis-
ten to the question, to be sure that he hears the question, to be
certain that he understands the question, to answer the question, to
stick to his answer, and, most important, to tell the truth “
The lawyer should ensure that the witness understands that the
deposition has been scheduled by the opposing party and is not the
proper time for the witness to prove his case. It may be useful to
explain to the witness that he will be in a position comparable to that
of a soccer goalie attempting to prevent his opponent from scoring
If he decides to run down the held and score by making self-serving
speeches, he increases the danger of being scored upon himself
During preparation for a deposition, the deponent will appreciate
direct advice from his attorney. The lawyer, for example, may
Look, Mr Haley, I’m not much use toy unless I talk straight
to you You’re a good salesman and I can see why You have an
engaging manner and customers must enjoy spending time with
you But we are not trymg to sell a computer here For your own
good, let me tell you that your answers are much too long Answer
the question and then keep quiet
If the lawyer senses that the witness is not being truthful, he
should press him further The attorney might comment, for exam-
ple, “Mr Spiegel, that doesn’t make an ounce of sense to me It
won’t to the other lawyers or the jury either” The truth is rarely as
damaging as some tale concocted by the witness
Even after the deposition has begun, counsel may remind the wit-
ness of these instructions For example, if the witness gives a ram-
10 5 Some attorneys r sh the deponent with a lesser or preparation sheet ousitning
basic points or deposition procedure and how the deponent should behave Examples are
ruwid in D I1 rnssa, ,sc a nose 52, as 6i4, and A Mouiu, ss a note 6, § 1220
106 A sample script of preparaloly remarks is appended to thu article The script is a
shortened kern or “Segais Ste Rules,” so named since they are the product of Irving R Segal,
Eaqwre, whom I must thank kr their use here, as well as (or their proven ujefulneas in
bling answer, his counsel may point out, “Mr Callaghan, you were
asked only for a date Answer that question Do not make speeches”
If several witnesses are to be deposed during a short period of
time, counsel should take careful notes so that later witnesses may be
advised in their preparation sessions of relevant prior testimony As
he takes notes, counsel may indicate in the margin the initials of per-
sons to be deposed subsequently Later, by skimming these margin
notations, counsel can inform a later deponent of the words and ac-
tions attributed to him by those deposed earlier
The deponent may remark at the preparation session that he does
not recall whether he attended a certain meeting or, if he did, state-
ments made there Usually, the lawyer preparing the deponent will
press the witness to refresh his recollection He may show him min-
utes of the meeting or correspondence generated soon after the meet-
ing referring to it, he may even tell the witness what others have said
about that meeting In some cases, however, the lawyer may be
pleased that the witness does not recall the meeting The witness
who does not remember a meeting cannot give harmful testimony
about comments made there How far should the lawyer go in trying
to revive the witness’ recollection’ Normally, he will show him the
minutes of the meeting and any contemporaneous correspondence or
internal memoranda generated or received by the witness Whether
the lawyer should inform the witness what others have said and show
him documents that the witness neither generated nor received is an-
other question to which there is generally no “right” answer
The lawyer has no duty to refresh the recollection of the witness
However, if he does not make such an attempt, he runs the risk that
the interrogator will press the witness and will succeed Counsel for
the witness will then face the serious disadvantage of having had no
opportunity to probe the witness’ recollection and to alert him to the
interrogator’s potential questions on this subject On the other hand,
if at the preparation session the lawyer attempts to refresh the wit-
ness’ recollection, he may succeed, particularly if the witness has time
before the deposition to speak with others attending the meeting and
to mull things over In the absence of such thorough preparation, the
witness’ memory might not have been refreshed, even by the interro-
gator’s thorough questioning
The witness may be asked by the interrogator which documents
were shown to or reviewed by him in preparation for the deposition

(Vol 2 255 1982]
Consequently, if feasible, the lawyer preparing the witness may elect
to question him concerning information contained in documents
without actually presenting the documents to him This procedure
may be particularly worthwhile if the interrogator has not yet served
request for production of documents Alternatively, the lawyer
may require the witness to review many documents so that even if
the witness can describe them by general category, the interrogator
will not learn much from the answer
The attorney should advise the witness that he may be shown and
questioned about specific documents at the deposition When shown
a document (even one with which he is quite familiar) at the deposi-
tion, the witness should force himself to slow down and look at the
date, the author, the addressee, and those to whom copies were sent
He should then read the document silently The deponent should
follow the same routme and spend the same amount of time with
each document so that the interrogator cannot discern which docu-
ments the witness reviewed to prepare for the deposition He should
be cautioned that he may be asked, “What did you mean when you
said. . in this letter?” This kind of question can be quite danger-
ous, if the witness meant something other than what he said, why did
he not say what he really meant? The witness can avoid that snare
by answering truthfully that he meant what he said The attorney
should caution the witness that if he does not remember a document,
even one which he appears to have written, he should state that he
does not remember it and nothing more The witness should avoid
the temptation to speculate about his reasons for writing the docu-
ment and its meaning.
The attorney should alert his witness that if he has read the depo-
sinons of other witnesses, he may be asked whether he noted any
inaccuracies in those transcripts Some lawyers will object to the
question as overly broad and instruct the witness not to answer But
counsel for the witness may want to avoid giving such an instruction
and, even if such an instruction is given, it may be overruled Often
the witness can answer the question by truthfully stating that he did
not read every page and line of the deposition and did not read the
transcript for the purpose of appraising its accuracy
The lawyer should “frisk” the witness before escorting him to the
deposition If he has in his briefcase and pockets items that have not
been requested by the opposing party (rg, a pocket calendar), it may
be best not t&take them into the deposition If he walks into the
room with a briefcase, the interrogator may ask whether it contains
anything pertaining to the dispute between the parties
The lawyer must determine the limitations of the witness he is
preparing He may decide that the witness does not have the capac-
ity to be thoroughly prepared on all subjects The result of attempt-
ing to prepare him on all subjects may be that he will testify well on
none Consequently, the attorney may decide to cover only the most
important subjects and prepare the witness to defend his ground on
those topics, recognizing that the interrogator may score in other ar-
eas Suppose, for example, the plaintiff was injured when the car he
was driving was involved in a right-angle collision He may be com-
pletely honest and have a valid claim, but may also be easily con-
fused by detailed questioning on speeds, distances, and times His
lawyer may focus his preparation almost exclusively on the crucial
points (that the plaintiff had the green light, was within the speed
limit, looked both ways as he entered the intersection, and that the
other vehicle appeared to be slowing up) and cover the other details
of the accident in a more cursory manner Counsel for the plaintiff
may rightly conclude that if the plaintiff appears honest on the main
points, he will win If drilled on less important details, he may be
unable to absorb them all, resulting in poor answers on all issues
IX Conclusion
To take a deposition well requires skill and thorough preparation
While there is no substitute for first-hand experience, consideration
of the matters discussed here may serve to sharpen skills and improve

Hon. Kent Sinclak k
LX 1ted Siates
tkthed Stales DfstrIcl ixt
Southern Dbtdci cfl’ w k
X I — 2

Federal Rules of E’ dence.
Arc Glance
101 i i.s u. s. Ooitl pr * bibs • - kmss aid U .s. ‘ 4 J’ as .
i as Insas wid a S ’ioi 01 e o . or
103 REVERSAL. posalbl. or yt a ot cbon or * m s (w I ds enor)
104 JUDGE dd adrr w I1 I5L I. hid .6 1w a :y 1 0 kit I 1ai .
105 Evidan may be mosirsd be L ITED PURPOSE.
1051 FAIRNESS mqi*.s. t on 01a on *ç. the r 5 i paty may be REOUIREDto o r AT THAT TIME u,L.s. 1 PARTS thsrea
201 JUDICIAL P 11CE(a) F (b) tIsWfltot 1 c atVis C istor atil. otmady determinabon from sour wt oia a iracy
I O Y b it OflSd (C) MAY be fl* .d . (d) NoOcs I MANDATORY 1 neQessery b round er5 ed ; (a) Opponent
n cs 01 i4d be besid, (I) Hobo . I teMin AT ANY STAGE, ( ) N d I CONCLUSIVE only Ii CM a ons.
301 PRESI ,*IPTIONS ipIy orilyto the burden 019*9 bwaid and do r sNft lie burden of proof.
pIy1 STATE LAW aiçphss the nds of dCM.jñ 111* on .
401 RELE’.NTsi4dsno.: m as a olooraiqusncs to lie s morn or las probabla .
4 mIv 1 s ’w4 I Iie ànLulM .
103 RsNval e ence may tie r ided If OUTWEIGHED by pre u cs, deIay xrduelon, or repetition .
404 CI4ARACTER I r t s slbI to prove an &a*u kit offered by an w iesd (vIa a 61iess) .
405 Chwa r I pIov,d by REPUTATION OR OPINION. edbc ACTS only on avss or .ban Ii laue.
406 HABIT (roraie). ietiechor orn robo etsd . I v ’lsi k top, xm& .
407 & wjiIent REPAIRS i ki Tiest4 , on hab ty (a owed re csmeah , cor*

409 Paymsr af rv cat 5A 4o.S$ I r TihIt la to prove kab ty
410 Ours at pIes and ties’ w drawid are not adrnlsM Ie.
411 INSURANCE I tiesi* on kabity (slowed re ownersh , wr 4, ar orbias)
5C1 FRMLEGES as dedded by Isder& oomon Iaw, trIess itate law governs the i Ot on.
601 A YAe eu I COMPETENT unless the R .s diaqualfy. dedd.d by atala I. V I governs mei1
502 Personal knowledge r.qtIred of at withasses ( percep(io , raced, and ily to
603 Oath or A rrnabon s required ot evay wlthess
604 I ecpre em n a be quatlled as e per1 and wait uridsr oeOi.
605 The k.adge may not sarw as a . 4msss
606 A kxor may r la ty; ver s we Il ’ipe iabIs only mgw ig u saia I*is. .
007 Any wliess ’ or. ty may be IMPEACHED y any perly (e.g., b bias, prU lmar ) .
606 CREDIBILITY I it d by cçe on or _____ or 0t1 kie _ other Sian u6iiu ( ie 609), unless on oros-ezairvnation
lie oo’jt penn ii
609 t çerdoned .&* CONVICTIONS am us 1e to I ç.acIi I Involved iI eet on btonles aid the probative value outweighs prejudice
If lass Sian 10 YEARS OLD (or older If, icon ncbc and heerlig, Sis Court kids I lak to pamll their use).
610 Rslgioia b.hels may r be uesdb ITip eadi
811 (a) The Court centrols esarr’ination fg D1 , twold delay, arid Ol6c wkisu; (b) SCOPE OF CROSS I mited to unless the Court
pafiTlila mow: (c) LEADING I Mowed on reot N ri.,muar on cross. arid w Ith witnesses who are hoitile or adverse (identified with a psrty)
612 iWigs saed to REFRESH e4eieu DURING or BEFORE testimony nwit be produ d to the adversary
613(a) PRIOR STATEMENTS need not be kit dt.dos.d to wItness ii Inipeactimeni, (b) EXTRINSIC proof of prior statements Is permitted only If
the witness I kit gIven an oppoitrilty to e, 4am.
614 The Court may cat arid question wibeeses; 0b eCtkwl3 may be made out at the M Is prssanoe
515 EXCLUSION of witnesses ahal be ordered on request escept par ss. representabvss, or persons whose presence is ess.nhiaJ
701 LAY OPSIJON I a nleaL’ . U ratlonaly based on perceptions aid h. .d to tie PIer of lot.
7 t P* i I Monad If I 01 t (Wtiess must fy. ie with reaeon c*tSInty. )
703 1’ OPW4ION maybe based on n . dsbe fad or any ly caly rated on lithe MId.
lie ULTIMATE ISSUE I iilu le U ciCierwbe piup& .
70$ C1$ 1I .YING at oon need not be pmaentud on disc* v*ier may k *.
601 EARS (b a itat.merb . c Ow than ens rr s by lie ds cw1 id ftig *tiebW or beaPç. i 1 bi ,#Ji.nca to prove
n ar
iiei ó k dia1s frCTSOOIf I WtTaIOED as ititerr aiwid. vm *ig tie l 3.
PRIOR STATEMENTS 01 (‘is WklNt lien (tdS 1 Wid t Oa$ T*ied. a, NOT HEAR&
ADMISSIONS ate f oo i * isor 4WENTS(V mad dia*ç arid rsls&g to lie sr(s wipbymsr4). end adrrd
632 Iiears 3 , I abssnt an “Su Øan or at d 01Coi .
At 1bg Flawi
x i — 3

EX EPT1ONS b the Hessay , y Vs fl.-.ui1 imim*I&.
I1 Susie kiI4 ruaki.r ( ..g., oo& . r. i )
ed t. rwio . , by yoila , ‘i g b Vs end bib. e nard s
Mor*& S s or PtiyUcal ConJbon (. . My Imee hugti I isi4 do a0)
- pir b Ysde.ei b In d (ciy P s psilrsift .gnosls or athient ) ____
PIIJ.c*1’b a sdsd. (W Vsw i Vs O1 S. ti iUd turn whSn fresh k ,v* d. n.or y ti e ithau ed
- ____ Vs inuren ri may be r Vs m rd * may not become an . 4Lt} ___
o,de (end s mgi1 $y ka ): iw y by Ien c i ir atfisd uuis. showP g a s iar pa ce keep
se c i i Vu01 tus eduL& wee s s k ’s Vs o.*y seins c1 Vs sr srprlee (end reua ss thsre ). may
(7) P ioe01 E.*y tu ak’se Raw.de — ilur r U ieg 4edy kept )
0 ) or poi1s ( ledutal or W Ir y otiM( edOR’ . eUs).
01 ( e.g. . betus, mssd s3
(1O AL. .seoeci Pi R&ZI5 Ett ___
(11) c i i Ae Ioim Orgwu r (*nbinwhl need r be an &er thereof. )
• (‘12) C*ø — . • .
• (13) r Rk 4kg, si. L.1,m.2 .e) .
(14) snw fl..Ll. ug Pv iusu1y
115) Sta iner*s k’s s 903(14) ___ ______
(IS) St mii l ’ s Ar ei1 DoAznorb imsr* nsa be
(17) Miwl pw Cwr.ui .i al U (01 t ee riled icon by p c or pi uksnaIs) ____
(IS) Lesi ’ ssd b (riled on ‘ s .otor oiled tue’s e4*ts attenbon on cioss) If shown byl.at j or jiFfr ’ n ce tub. RELIABLE
AUTHORIT”( may be tied Wile the moord m.y not biocwn ai s’sd bl1 .
(19) Reputa on ii Fw’sly II. iy
(20) Ripi.Mbon is Boix arIes or i1cal Matbes .
(21) Charaoter Riputabon
(22) . dpn.nb of Coni ic on
(23) ksdgm.n is Boundaries or F y Flstory
s’s r al I sot. (B) I more pr babvs the’s cVsr l f4ei s. (C) k serves iiloe to i ’ slt AND Pus edversaiy s wwned before tha i
4 EXCEPTIONS only app ab4 . when DECLARANT is UNAVAILABLE (Ls., by p* ftege. refuses despite order. shows of
memory cannot attend due to death or mness. or is serd despite en to ei ena)
(1) F mor s*imony (where predecessor l ’ s l1Iô vat tied opportt%*y erd mobvs to cioss)
DymQ Dedarations. If beleved death Wwnlr ’ seri (used only Wi hcwn 4e end d v i caSes).
) Statements Agar’sst frduest (p.cun ary, penal, or proprtatary )
f4LStatenwsts v s Per.w ’ saI or Fwiy History
n& fact. (B) us more probative then other v ence, (C) it serves justi to edrnlt. AND Vs edversey wee warned before thai
- P WITHIN HEARSAY is barred unless covered by en axcephon
iikty c i the hearsay declarant may be attadied. then eiçpoited
)I AUTHENTICATION reqisres a showing thai the matter Wi cp.iesbon a what its proponent dam
(1) Domestic pituhc do smsnte under seal.
Certfied copies of unsealed domestic public doc snents.
(3) Fore9 ’ s pubIc doaii’serda eq ’ sed w c*rUtIed to the levat of the U.S. coned.
(4) Ce.114.d o ea of pubIc r s .
3) Oi def pi â ilorus.
0) N. spsps end pedocfr .
(7) )ed. Wiec 4* s (te $. W iis) . ____
0)D Snw w5 acimousisdgmst*
(9) Cou v ai p w , __
(10) Matters dedared fWis4JT Nely e ’ ssnbc by Congrees
) 3 S$GNER rued not tesilty unless stats l&w on vildey of Pus type 01 wdb’sQ so mQih is
)0 Ong ais ,de ooixWperts p&’sb from ns ; çicetss we kier OpII ’S
O2 OrIgWial wru ig. re r , or phoSo h irust be used TO PROVE ITS CONTENTS. except
C33 DUPLICATES are a uissble unless (1)a GENUINE QUESTION of .uVsrubc1ty exists, or (2) use of the duplicate would be U 1JFAIR
304 Evldenca of Vu CONTENTS 01 en odglnal is peimlfled ft (1) Pie onglnal is lest without bad faith. (2) the ongin& is unobtainable, (3) an
opponent u i r . pro Jos the origInal, or (4) Vs wilIng . recording. ci ptiologreph relates only to coiater& matters
005 PubIc • ids ns be proved by a copy unless unobtainable despite due degence
005 SUMMARIES c vdi.T*’soue records we peimitted be convenIence. onginals must be reasonably available for revew
C37 Cont 01is k may always be proved bya peitys .2rn or wiuiten admusa us _______
308Dm 9 1w Ø - 4 (a) If the 1glr4 I. _ . h.d . (b) wheVsir en lean original, and (C) v hsther evIdence of cci4bflts £S*&C S

21 al — anat .
31 lu f.e’- be Vs sewed stat
44 W Pu t— r.w 1uI Vs ed ( d.e .ftS I by il ‘se w
i ’ s. bsdileii bets ? 1è (is I stat I apes teb.? , wuS fWIat d te Vs 1 been icon?).
Pu ei i ‘ca.(w ’ s seme ooiate one ses Pus op wu i lep4in usi *11 P S
I Mu.nAugirsP’.weh’san I C
P Maw. Pus ed meitad Wi 1ce ( it ’— — y 5511 led i ).
$0 ‘ceormidthewh totuSk’Ierd
IqR ’ s vat Pie s end
X I — 4

Rule 52(a) requires that in all non-jury actions
the Court shall state specifically its findings of fact and
its conclusiOnS of law. In r ost cases, courts will rec!ueSt
the parties to submit proper findings of fact anc9 conclusions
of law, containing references to the transcript of the
hearinc or trial testimony. A sar ple of such proposed findings
frori the West Penn Power case .follows.

Rule 26(b) 131:
protecting Work Pro duct
by Thomas McGanney and Selvyn Seidel
Protecting work product can generate vexing problems.
Often an attorney must choose between the best way to
preserve information and the best way to preserve con-
fidentiality of his work product.
Consider these examples:
• An attorney for a client Involved in litigation inter-
views a third-party witness and wishes to record the inter-
view. The choices Include: (a) a factual summary of the
conversation; (b) a summary that includes the attorney’s
Impressions of the witness and analysis of how the wit-
ness’s testimony fits into the entire litigation strategy;
(c) an attempted verbatim recital in question and answer
form; (d) a shorthand transcription of a free-form recita-
tion by the witness in response to the attorney’s request
to “tell me what happened”; (e) a tape-recorded inter-
view. Can all of these documents be equally protected as
work product?
What if the lawyer provides the witness with a copy of
the document (in any of the versions above) to review?
Does it make a difference If the witness makes changes?
What If he keeps a copy? What if he signs the copy or
swears to It before a notary?
What If litigation has not been started, but only threat-
ened? Or what If the Interview Is conducted only because
the client’s general counsel is very cautious, but no one has
yet written a threatening letter?
Assume that the witness is deposed a year later and Is
shown a copy of his previous Interview report (in any of
the versions above) before testifying. What If he testifies
at trial?
• The same attorney wishes to interview several poten-
tial expert witnesses and select the best one or two for
trial. In order to get their views, he will interview them
and provide them with relevant materials, in both re-
spects disclosing his own views of the case. Can he pro-
tect against disclosure of these discussions or documents
Mr. McGawy is a member of the New York City firm of White &
Case. Mr. Seidel is a member Qf lie New York City firm of Hale.
Russell. Gray. Seaman & Dirkets and an a44junCt Professor at New
York Uni rsiiy Scbool of Law.
to the other side? If he works closely with the expert nd
together they produce a computer printout to be used at
trial, can he protect it and related materials during the
pretrial discovery phase of the litigation?
These questions and problems are illustrative. In some
Instances, the applicable principles are well defined; but
in others, the answers vary from court to court and de-
pend greatly on the particular circumstances involved.
Practical Principles
There are significant distinctions between the attor-
ney-client privilege and work product protection. The
former focuses primarily on the client and the right to
confidential advice. The latter protects the lawyer’s—
principally the trial lawyer’s—activities In preparing for
trial. Unlike the attorney-client privilege, which is abso-
lute once established, work product Is a practical doc-
trine that will yield to a showing of necessity by the
other side. In other respects, work product protection is
broader than the attorney-client privilege. Work product
can protect communications with persons other than the
client and is not so easily waived.
Federal Civil Procedure Rule 26(bX3) codifies the
work product doctrine first announced in Hickman v.
Taylor, 329 U.S. 495 (1947). See also Federal Criminal
Procedure Rule 16. By Its terms, Rule 26(bX3) is sweep-
ing; It protects any “document” or “thing,” regardless of
content and whether relating to fact or opinion, prepared
by anyone at any time In anticipation of or preparation
for litigation or trial. In Upjohn Co. v. United States,
101 S.Ct. 677 (1981), Supreme Court held that work
product can be protected from an IRS summons, as well
as typical federal court litigation.
When does the work product protection come into
play? No lawsuit needs to have been filed to meet the “in
anticipatio i of litigation” requirement of Rule 26(bX3).
See Burlington Industries v. Exxon Corp., 65 F.R.D. 26,
42 (D. Md. 1974). Beyond that, the question is one for
case-by-case determination, based on the degree of prob-
ability of litigation and the specificity of the asserted
clpim . In Upjohn the Court did not address this issue

specifically. But it upheld application of the work prod-
uct doctrine even though no proceedings had been threat-
ened. This decision provides a broader scope to the pro-
tection than any previous case. Whatever protection ap-
plies continues until the litigation is concluded.
After the litigation has ended, the protection may or
may not end. The most recent decisions favor extending
the protection to a later unrelated litigation. Duplan
Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d
480, 484 (4th Cir. 1973).
What is protected? The rule by its terms safeguards
only “documents” or “things.” It does not protect oral
communications, although some courts have. Facts con-
tamed In protected documents are not protected, only
the documents themselves. Depositions, interrogatorles,
and requests for admissions can all be used to secure
information to the extent It Is discoverable and can be
revealed without prejudicing protected material.
For example, a nonparty witness whose recollection of
an occurrence has been recorded In an interview memo.
randum of one party, may be examined by the other
party as to facts the witness knows, including facts In
the memorandum, although the memorandum itself Is
beyond the reach of the examining party.
Rule 26(b) sets up a two-level standard of protection.
The rule permits disclosure of documents and tangible
things constituting “ordinaty” four word] work prod-
uct—not including attorneys’ “mental impressions”
about the case—àpon a showing of substantial need and
inability to obtain the equivalent without undue hard-
ship. But the rule goes on to provide that:
In ordering discovery of such materials (i.e.. “ordi.
nary” work product] when the required showing has
been made, the cOurt shall protect against disclo-
sure of the mental impressions, conclusions, opin-
ions or legal theories of an attorney or other r pre-
sentathe of a party concerning the litigation.
One of the central unresolved Issues regarding work
product Is whether this special protection for “mental
Impressions” is absolute. in Upjohn, the Supreme Court
declined to pass explicitly on this Issue. It did, however,
reverse a determination ordering disclosure of docu.
ments containing mental impressions, holding that the
lower court had applied too lenient a standard of need.
101 S. Ct. at 689.
There Is a need to distinguish Initially between mental
impressions and factual reporting. See Duplan Corp. v.
DeeringMilhiken , Inc., 397 F. Supp. 1146, 1199 (D.S.C.
1974). Moreover, while the rule speaks of the mental im-
pressions “of an attorney or other representative of a
party concerning a litigation” without distinction, the
courts have shown particular solicitude for the thoughts
of trial counsel.
In the two cases In which courts have gone the farthest
in ordering production of mental impressions, Xerox
Corp. v. IBM Corp., 64 F.R.D. 367 (S.D.N.Y. 1974) and
United States v. Brown, 478 F.2d 1038 (7th Civ. 1973),
the notes and memoranda ordered produced were not
trial counsel’s. In Xerox, the notes were interview notes
of In-house counsel taken before litigation commenced.
In Brown, Involving enforcement of an IRS summons,
outside counsel appears to have prepared the memo prior
to commencement of the IRS investigation. The memo in
Brown embodied “notes and legal judgments” prepared
by an attorney acting as counselor, not as litigator.
In both of these cases, the requesting party demon-
strated that it was not able to obtain admissible evidence
in its opponent’s files by any other means. In Xerox, the
court ordered the production of the Interview notes of the
defendant’s employees who could not recall crucial Infor-
mation at their depositions. Unlike Hickman, these were
not notes of Interviews with third parties, but with em-
ployees of the defendant. The court indicated that It
would review the documents and excise, If feasible, the
attorney’s mental impressions; but:
If such a distillation becomes Impossible, however,
then the entire contents of the document must be
produced. This is especially true where one party
has control over the Information sought. A party
should not be allowed to conceal critical, non-priv-
ileged, discoverable information, which Is uniquely
within the knowledge of the party and which is not
obtainable from any other source, simply by tin-
parting the Information to Its attorney and then at-
tempting to hide behind the work product doctiThe
after the party fails to remember the Information.
64 F.R.D. at 381-82.
This result conflicts with the Advisory Committee
comments to Rule 26(bX3) and with the statements of
other courts, both apparently approved by the Supreme
Court In Upjohn, that the prohibition against disclosure
of mental Impressions Is absolute or close to it. See, e.g.,
Duplan Corp. v. Moulinage et Retorderie de Chavanox,
509 F.2d 730 (4thCir. 1974), cart. denied, 420 U.S. 997
(1975); in re Murphy, 560 F.2d 326,336(8th Cir. 1977).
Courts have gone beyond the limitations of the rule to
“documents and tangible things” in protecting trial at-
torneys’ thought processes. Thus, courts have held that a
lawyer should not be called to testify to oral communica-
tions with witnesses concerning trial preparation. E.g.,
In re Grand Jury Proceedings, 473 F.2d 840 (8th Cir.
1973); In re Terkeltoub, 256 F. Supp. 683 (S.D.N.Y.
1966); In re Rosenbaum, 401 F. Supp. 807 (S.D.N.Y.
Use at Trial
The language of Rule 26(bX3) does not distinguish
between pretrial or trial protection. Work product pro-
tection at trial has not been litigated extensively.
However, documents protected during discovery may be
subject to production If they become evidentiary at trial
under the Fe4eral Rules of Evidence, such as Rule 612
(refreshing a withess’s recollection) or by waiver.
In United States v. Nobles, 422 U.S. 225 (1975), the
Court held that an investigator’s notes of conversations
with witnesses constituted work product, and that disclo-
sure of an attorney’s work product “at trial, as surely as
disclosure during pretrial discovery, could disrupt the
orderly development and presentation of his case.” How-
ever, the work product protection was held to be waived
when the Investigator took the stand to testify to his con-
What constitutes a waiver with respect to work-
product materials depends, of course, upon the cir-

cumstances. Counsel necessarily makes use
throughout trial of the notes, documents and other
Internal materials prepared to present adequately
his client’s case, and often relies on them In cx-
aTnining witnesses. When so used, there normally
Is no waiver. But where, as here, counsel attempts
to make a testimonial use of these materials, the
normal rules of evidence come Into play with
respect to cross-examination and production of
documents. IL at 239, n.14.
Justice White, in a concurring opinion, suggested that
at trial the court bad the power to order the production
of evidentlary material, Including material useful for
impeachment, whether or not work product. He did,
however, suggest an exception for the classic Hickman-
type document, the memorandum of the trial attorney
recording the oral statements of a witness. Disclosure of
those documents would tend to make the attorney a
Insofar as disclosure of work product documents would
“tend to disrupt the orderly development and presenta-
tion” of the case or make the lawyer a witness at trial, the
policy of nondisclosure embodied in Hickman v. Taylor
applies equally to the trial context. However, Federal
Rules of Evidence 612, 613 and 705 permit the court to
order production of work product material used by coun-
sel to refresh the memory of a witness; or to examine a
recalcitrant or forgetful witness; or which forms the basis
for expert opinion.
The extent to which work product must be turned over
at trial is thus, to a large extent, in counsel’s hands. Trial
counsel will have to decide in each case whether the use
of work-product material carries a risk of waiver and, If
so, whether the benefits outweigh the risks.
Certain practices can preserve the work product protec-
tion. The greater the involvement of trial counsel in the
factual investigation, as distinguished from in-house or
other nontrial counsel, or of a nonlawyer, the more likely
the protection. It is easier to convince a court that legal
theories are reflected in a document If in fact that docu-
ment is written by an attorney, in contrast to a legal assis-
tant or an employee of a party.
When trial counsel is not responsible for an analysis
or study, at the least, he should record the fact that he
asked for the work and that he is its Intended recipient.
The finished analysis should be addressed to trial counsel
and should recitethat it hasbeen doneinresponseto
counsel’s request, and under counsePs supervision. An
employee’s analysis, requested by trial counsel, should
not be headed “memo to the file” but should be directed
to trial counsel. Similarly, In dealing with an expert wit-
ness, outside counsel should record by letter or memo to
the file that he contacted the expert and make clear that
it Is done “in anticipation of litigation.”
The best place to file analyses and reports, as well as
communications with experts, is with counsel, not with
the party, and certainly not in the party’s general files.
Documents, such as factual analyses, should recite
that they were done in anticipation of litigation or of
trial. If a lawsuit has not yet been commenced but only
threatened, the document should describe the particular
facts that gave rise to the anticipation, and to the specific
claims made.
The problem of whether a particular investigation has
been done In anticipation of litigation, in contrast to that
undertaken In the ordinary course of business, can arise
both with respect to work done by outside and by In-
house counsel. See Divers jfied Industries, Inc. v. Mere-
dith, 572 F.2d 596(8th Cu. 1977). But it has arisen more
frequently when done by house counsel. See Newell v.
Capital Transit Co., 7 F.R.D. 732 (D.D.C. 1948); Gal-
ambus v. Consolidated Freightways Corp., 64 F.R.D.
468 (N.D. md. 1974). If the threat of litigation is strong
enough to prompt the hiring of outside counsel, it Is
usually strong enough for the court to find that the work
counsel did was done “in anticipation of litigation.”
Mental Impressions
Any formal memorandum of a witness interview should
Include a description of the circumstances of its prepara-
tion, the manner in which itwas prepared, and the na-
ture of the lawyer’s participation. The memorandum
should reflect the lawyer’s mental Impressions and com-
ment on his strategy. That record Is Important in litigat-
ing a discovery motion, which, in a complex case, might
well be heard years after the document was prepared.
The memorandum provides a readily-available basis for
advising the court of how and why the document was pre-
pared. It also can be very helpful to have such a state-
ment In the document itself If it is submitted for review
in èamera. It is helpful to label the memorandum “At-
torney’s Work Product,” although the label Itself Is not
determinative. The label can prcvcnt Inadvertent pro-
The nature of the reporting In the memorandum is sig-
nificant. The more purely factual the memorandum, the
less showing the opponent has to snake to compel disclo-
sure. See Harper & Row Publishers, Inc. v. Decker, 423
F.2d 487, 492 (7th Cir. 1970), affd mem. by an equally
divided court. 400 U.S. 348(1971). On the other hand, if
the court believes that a party deliberately has filled a
memorandum with unnecessary comments about legal
strategy as a ploy to avoid production, It may order dis-
closure of the entire document. See Xerox v. IBM, supra.
The work product protection permits an attorney to
keep or discard notcs of his Investigations in accordance
with normal work habits. Thus, if notes of interviews are
used to prepare a formal file memo, there is ordinarily
nothing wrong with destroying the raw notes and it Is
usually better practice to do so. However, the question
becomes much more difficult when the notes are those of
employees of the party who conducted a factual investi-
gation under the attorney’s direction. This Is another
reason for the attorney to conduct the investigation.
While a tape recording or stenographic record Is a
more accurate record of a witness interview, It cannot
be as easily protected as work product as the lawyer’s
memorandum describing the Interview. See Wild v.
Payson, 7 F.R.D. 495 (S.D.N.Y. 1946). In Upjohn,
the Court pointed out that the docummts there went
“beyond recording responses to Interviews.” The closer
a memorandum is to a stenographic record of the Inter-
view, without the legal impressions of the lawyer, the
more difficult it will be to protect.
1f after taking notes of an interview, the attorney

either asks the witness to initial the handwritten notes,
r after they are typed up, to acknowledge them, their pro-
ct1on as work product is impaired. First, a signed state-
nent or affidavit by a third-party witness Is obtainable by
him from the questioning party under Rule 26(bX3), and
once obtained, would be available to be turned over to
the adversary party if the witness chooses. Second, such a
statement would generally be In the form of a factual
narrative (without the attorney’s comments and Impres-
sbus), and thus less lIkely to enjoy Immunity from pro-
duction.SeeScourtesv.Fred W.AlbrechtGroce yCo,.,
IS F.R.D. 55, 58 (N.D. OhIo, 1953). In Goldberg v.
United States, 425 U.S. 94(1976), the Court ordered
production of Initialed notes as cousthuting the “State-
ment” of the witness, and thus producible under the
Jencks Act. The Court also stated that If the Initialed
notes contained trial strategy or similar material, that
could be excised.
Interviews of the opposing party prior to litigation but
In anticipation of It follow the same general rules. Rule
26(bX3) provides that a statement, Including verbatim
transcripts, taken of the opposite party must be provided
to It. But courts will order production of unadopted In-
terview notes and similar material only upon a showing
of necessity. Sharon Steel Corp. p. Trawler, Indemnity
Co., 26 F.R.D. 113 (N.D. Ohio 1960).
Work product protection, unlike the attorney-client
privilege, is not lost automatically by disclosure to some-
one who Is not the client. Attorneys representing clients
with common interests can exchange work product mate-
rials. Duplan Corp. v. Deering Milhiken, Inc., 397 F.
Supp. 1146, 1172 (D.S.C. 1974).
What a third-party witness recalls of an attorney’s dis-
cussion with him is not “privileged.” The witness, If he
chooses, can relate the entire conversation including trial
strategy and mental impressions to the adverse party or
its counsel. However, if the witness does not make such
disclosure voluntarily, the adverse party should not be
able to obtain it through deposition questioning. Ford v.
Philips Electronics Instrwments Co., 82 F.R.D. 359
(ED. Pa. 1979).
Poulbie Pitfalic
Depositions present other possible pitfalls. If an attor-
ney refreshes a witness’s recollection before the deposi.
don by showing him a memo of the attorney’s prior Inter-
view, that memo might be ordered to be produced under
Federal Ride of Evidence 612, “if the court in Its discre-
tion determines it Is necessary In the Interests of justice.”
If a witness Is examined at the deposition regarding his
prior statement to his attorney—”whether written or
not”—the court may order a written statement produced
to opposing counsel under Federal Rule of Evidence
- Materials provided to experts create their own work
product problems. Given the limits on expert discovery,
these problems can be avoided In some cases. An expert
who Is riot expected to be called as a witness is subject to
discovery only upon a showing of exceptional cir-
cumstances. Rule 26(bX4XB). See Level, Discovery of
Experts Under the FederaiRules, 3 Lmo o, No. I at 1
(Fall 1976). Absent a motion, the proposed trial testi-
mony of other expert witnesses can be obtained solely
through interrogatories. Rule 26(bX4XA). The necessary
showing to obtain depositions from experts differs
among districts.
Even in a district where pretrial discovery of experts Is
normally limited to Interrogatories, a transmittal letter to
the expert should indicate that the material Is being sent
for purposes of litigation and that It reflects the attor-
ney’s thoughts about the case. If the attorney decides not
to retain the expert after transmitting work product
material, the material should be collected. If not, the
attorney way find the material disclosed, If the adversary
Interviews the potential expert.
In complicated cases in all districts (and even In rou-
tine cases in some districts), pretrial discovery of experts
beyond Interrogatories Is permitted. See, e.g.. Berkey
Photo Inc. v. Eastman Kodak Co., 74 F.R.D. 613, 617
(S.D.N.Y. 1977). In such cases, Federal Rules of Evi-
dence 612 (refreshing recollection) and 705 (which pro-
If you refresh a
witness’s recollection
with work product, that
may make it producible.
vides that an expert may be required to disclose the facts
or data underlying his opinion upon cross-examination),
may lead to pretrial disclosure of work product given to
experts .
In one case, a magistrate Invoked Rule 612 to require
pretrial disclosure of an expert’s report shown to a fact
witness before his deposition. Consolidated Edison Co. v.
Westinghouse Electric Corp., No.78 Civ. 1974 (S.D.N.Y.,
filed July 28, 1980). The court pointed out the “Inherent
tension” between Rule 612 and Federal Rule of Civil Pro-
cedure 26(bX3) and (4), and, in a case not Involving
attorneys’ mental impressions, resolved the conflict In
favor of disclosure.
Material prepared I y the expert—
Including computer printouts and complex data—raises
additional Issues. If the attorney’s Involvement In pro-
viding data and consulting with the expert is substantial,
a work product protection is possible.
However, If it appears that the computer-generated re-
sult is to be Introduced at trial, the work product claims
are overridden by the necessity of the opponent to test the
validity of the proffered materiel before trial. See Pearl
Brewing Co. v . Joseph Schlitz Brewing Co., 415 F. Supp.
1122, 1138-39 (S.D. Tex. 1976); United States v. Lie-
bert, 519 F.2d 542 (3d CIr.), cest denied, 423 U.S. 985
(1975). These cases ultimately rest on considerations of
convenience to the court In shortening the trial and of
fairness based on the fact that work product protection
will eventually be waived by use of the document at trial.
As confirmed recently and authoritatively in Upjohn,
the work product doctrine plays a critical role In litiga-
tion. The protection available Is substantial Indeed and
can be maintained, so long as lawyers use careful pro-
cedures and safeguards.

Expert Witness Cross-Examination — Checklist
1. Illustrate a gap or deficiency in the qualifications of the expert.
2. Determine the expert’s capacity to understand the subject under exarni-
3. Inquire of the expert how many times he has appeared as a paid State’s
4. Determine how much the expert has been paid for his appearance.
5. Inquire as to how much time the expert has spent in examining, treating
or observing, as the case may be.
6. Where it is known that either no comparisons or only a few have been
made, inquire of the expert whether his opinion was checked or cor-
roborated with those of any other experts in the field.
7. Inquire of the expert the reasons for his opinion and the method(s) by
which he reached such an opinion; interrogate on the details of the
8. Pose hypothetical facts varied from the actual case to test the expert’s
knowledge of fairness.
9. It Is a valid subject of inquiry to determine if the expert has made
errors of opinion in similar cases.
10. Counsel should point out, where possible, variations between objective
testimony or findings and subjective testimony or findings.

Marking and Admission of Exhibits — Checklist
1. Your Honor, at this time I would request that the clerk mark this as
Defendant’s Exhibit no. ____ for purposes of identification.
2. [ Hand Item to clerk for marking].
3. Mr. Witness, I now hand you ______________, which has been marked for
purposes of identification as Defendant’s Exhibit no. ____ and ask you
If you recognize it? [ Testimonial Sponsor]
4. How can you Identify It Mr. Witness?
5. Would you please describe the _______________ for the record?
6. (Establish relevancy of exhibit through witnesses].
7. Your Honor, at this time I move to admit Defendant’s Exhibit no. ____
for Identification Into evidence as Defendant’s Exhibit no. ____
8. [ Offer for Inspection by prosecution].
9. [ Offer to bench].
10. Your Honor, at this time I would request that Defendant’s Exhibit no.
____ be displayed to each merr er of the jury.
11. Do not proceed with any questioning in the case until every juror has
had opportunity to view exhibit

Types of Objections — Checklist
A. In General
Always attempt to object before a witness has answered a dubious ques-
tion. Request grounds for objection from the prosecutor. An offer of
proof should be made where the prosecutor’s objection is sustained.
Avoid ambiguities by refraining from the use of pronouns without further
B. Form of the Question
1. Question is leading , In that the question Itself contains the answer
which the questioner seeks or suggests the desired answer.
2. Question is argumentative . Counsel should not argue with witness
simply because the answer given is not to counsel’s liking.
3. Question is confusing . The facts of the case must be submitted In
a clear, concise manner.
4. Question Is unintelligible . Counsel is confused as to the facts of
the case.
C. Subject Matter of Question
1. Question assumes a fact not In evidence .
2. Question has been asked and answered . Counsel has already elicited
the answer to this question from the witness (repetitive).
3. Question is beyond the scope of matters covered on direct examination.
The function of cross-examination is to narrow field of inquiry, not
to expand it.
4. There are insufficient facts upon which the (expert] witness can for-
mulate au opinion as to counsel’s hypothetical question. The facts
supplied are defective In the following manner: (elaborate deficiency].
D. Substance of Evidence Sought
1. Question calls for inadmissible hearsay .
2. Question is irrelevant , In that It calls for evidence which has no
probative value to the facts of the case.
3. Question is irrunaterial , in that it does not concern any area of dis-
pute In the case.

4. Question calls for a conclusion on the part of the witness.
5. Witness Is incompetent to answer , since the testimony would relate
to privileged coniuunication.
6. Witness is not qualified to answer , since the question asks for that
which Is beyond the witness’ expertise/knowledge.
E. - Failure to Lay Proper Foundation — Exhibits or Testimony
1. Photographs. i Lb.—
2. Documents [ best evidence rule].
3. Demonstrative evidence (maps, charts, diagrams, etc.]. ‘y- ,y-
4. Physical evidence [ actual items].
5. Opinion evidence — has the expert been sufficiently qualified?

Introducing Business Records — Checklist
A. When the Maker of the Record is Available
- 1. Please state your name, address, etc.
2. What is your occupation?
3. By whom are you employed?
4. How long have you been so employed?
5. What do your duties include?
6. Are you the custodian then of _______ records?
7. In response to a subpoena duces tecum , have you brought with you today
certain of those records covering the period from _____ to ________?
8. Would you produce them please?
9. [ Hand to the clerk for marking for identification].
10. I now show you what has been marked for purposes of identification as
Defendant’s Exhibit no. . Are these the _________ records you
produced in response to ThI subpoena?
11. Are you personally responsible for entering _______ records for your
12. What books of account/ledgers/log books do you use?
13. Could you please describe the method used In making entries of
14. Was it In the regular course of the business to make those entries --
that is, for what purpose are such ____________ records used?
15. Were the entries, in Defendant’s Exhibit no. — for identification,
made by you?
16. Were these entries, in Defendant’s Exhibit no. — for identification,
made in the regular course of business at or shortly after the occur-
rence/act/offense here under examination?
17. On what approximate date were the entries, in Defendant’s Exhibit no._
for Identification, recorded in the ________ record?

18. And are such entries, in Defendant’s Exhibit no. for identifica-
tion, true, accurate and correct? —
19. Your Honor, at this time the defendant would move that the item marked
for identification as Defendant’s Exhibit no. be admitted into
evidence. —
20. (Proffer to opposing counsel].
21. [ Proffer to Judge, permission to let jury inspect].
22. [ Circulate among members of jury].
B. Where the Supervisor Must Lay the Foundation
1. Please state your name, address, etc.
2. What is your occupation?
3. By whom are you employed?
4. In what capacity?
5. How long have you been so employed?
6. Are you familiar with the procedure by which your employer keeps ________
records and for what purpose?
7. In response to a subpoena duces tecum have you brought with you today
certain of those records covering the period from ______ to ____________?
8. Would you produce them please?
9. [ Hand to the clerk for marking for Identification].
10. Describe please the procedure by which such ______ transactions, as
Defendant’s Exhibit no. for identification, are recorded.
11. What methods of supervision, checking or cross-checking are performed,
If any, to Insure the accuracy of such ______ records as Defendant’s
Exhibit no. for identification?
12. I now show you this _________ record, marked for identification as
Defendant’s Exhibit no. , and ask you if you recognize it.
13. Was this _________ record, marked for identification as Defendant’s
Exhibit no. —, prepared in the ordinary course of business, pursuant
to the system which you have just described?

14. And was this ________ record, for identification as Defendant’s
Exhibit no. , prepared at or close to the time of the Occurrence!
act/offense er examination?
15. Is the ________ record, for identification as Defendant’s Exhibit no.
, true, accurate and correct?
16. Your Honor, at this time the defendant moves that the item marked for
Identification as Defendant’s Exhibit no. be admitted into evi-
dence. —
17. (Proffer to opposing counsel).
18. [ Proffer to Judge, permission to let jury Inspect].
19. (Circulate among members of the jury].

Method of Witness Qualification on
Past Recollection Recorded — Checklist
A. Exhausting Present Recollection
1. Did you have occasion to observe the event in question on or about
the dayof _________, 19 7
2. How do you re ca1l that?
3. Do you have any independent recollection of the event/occurrence
of that day?
4. I hand to you what has been marked for identification as Defendant’s
Exhibit no. . Will you please read the contents of this (document/
memorandum] yoursel f.
5. Does this cover the period In question which has just been previously
6. Now, having examined Defe”dant’s Exhibit no. marked as such for
identification, does this’ refresh your 1ndep ent recollection as
to the [ event/occurrence]?
B. Time of Making the Document
1. Do you know who prepared (typed/wrote] this document?
2. At what time was this prepared?
3. And just how long after the [ event/occurrence] In question was the
document prepared?
4. Then the [ event/occurrence] was still fresh In your mind at the time
this document was prepared, is that correct?
C. Where the Wjtness Wrote and Prepared the Document
1. How Is it that you can Identify what has been marked as Defendant’s
Exhibit no. for identification as having been [ wrltten/ prepared]
by you?
2. Would you please tell us what was the occasion for preparing this
3. To your own knowledge, is this document a correct record of the facts
as you knew them at the time of the (event/occurrence] under examina-

D. Where Someone Else Prepared the Document
1. I would show you what has been marked for purposes of Identification
as Defendant’s Exhibit no. — and ask you if you can identify such
exhibit and if so how can you Identify such exhibit.
2. At what time did you first see this document?
3. Did you have occasion to read the document through at that time for
accuracy or correctness?
4. How long after the (event/occurrence] In question was this done?
5. At the time of this reading, did you still have a clear recollection of
the [ event/ocCurreflCejthat Is now In question?
6. To the best of your knowledge, can you now state that what has been
marked for Identification as Defendant’s Exhibit no._ was a true.
accurate and correct representation of the (event/occurreflCe]Of the
_dayof _______,l9 ?
E. Verifying the Authenticity of the Document
1. Can you determine whether the item which has been marked as Defendant’s
Exhibit no. for identification has been changed or altered in
any way sinciTyou read it/it was prepared]? Can you identify the
(sIgnature/initials/Other identifying marks]? Is the (document/
memorandum] which you have identified as the Item marked as Defendant’s
Exhibit no. for identification, as true, accurate and correct now
as it was onlKe date that It was made?
2. At the tine that this item, which has been marked for identification
as Defendant’s Exhibit no. , was made, was your memory better
than it is now?
F. Admission of the Document
1. Your Honor, at this time I would move that the item marked for Identi-
fication as Defendant’s Exhibit no. — be read by the witness and
entered into evidence. TTiiT
2. (Proffer to opposing counsel for his scrutiny].
3. [ Then have the witness read the contents of the document of past recol-
lection recorded to the jury].
4. [ Proffer to the Judge, permission for members of jury to inspect].
5. Circulate document among jurors if necessary

Inconsistent Statement, Prior Oral Statement — Checklist
1. Mr. Witness, you stated on direct examination today that —
did you not?
2. Have you ever given a different account of that ___________________ to
anyone after the occurrence of the event here under examination?
3. Mr. Witness, have you had occasion to discuss this case with one ________
4. And did this discussion occur on or about the day of _____________
19, at — In the City of ___________, State of __________
5. Mr. Witness, were ______ ______ and also present and
heard this diScussion?
6. Mr. Witness, is it not true that you discussed with the following person(s)
the events to which you testified today, that is, with ______ ___________
and ______ ________?
7. Did you attempt to hide or falsify anything during that Conversation?
8. Did you lie to Mr. __________
9. Was Mr. ______ discourteous to you?
10. Did Mr. ______ In any way coerce or threaten you in regard to your discus-
11. And you did attempt to be as accurate as possible In your conversation
with Mr. _______, did you not?
12. Therefore, on the day of _______, 19, you did say to Mr.
that __________________, did you not?
(A statement/confession inadmissible against a defendant in the prosecu-
tion’s case in chief because of lack of the procedural safeguards re-
quired by Miranda may, if its trustworthiness satisfies legal standards,
be used for Impeachment purposes to attack the credibility of a defendant
who takes the stand at trial. See, Oregon V. Hass (1975), 420 U.S. 718;
Harris v. New York (1971), 401 U.S. 222; Stevens v. State (Sept. 24, 1976),
md. , Cauje No. 1275 5 366; Sankey v. State (1973), md. App.
, 301 Ni.2d 235.J

Inconsistent Statement, Prior Testimony Checklist
1. Mr. Witness, you stated on direct examination here today that __________
did you not?
2. Mr. Witness, do you recall testifying on or about the — day of _______
19_, in the ________ Court of __________ County, State of __________
3. And, at that time, the occasion for your testimony was In relation to
___________________, was It not?
4. Mr. Witness, were you given an oath prior to your testimony In that case
to tell the truth?
5. And, Mr. Witness, have you sworn to tell the truth in this courtroom today?
6. Now, before the Judge and jury/Grand Jury of _______ County in this
earlier case, were you asked the following question?
(read the question)
7. And did you give the following answer to that question?
(read the answer)
8. Then, Mr. Witness, you were asked that question and did you give that
answer at a prior proceeding?
[ The witness should be pressed for a yes or no answer. Where the answer
Is yes, the witness is Impeached. Where the witness denies or “does not
remeifteru, counsel will have to call the court reporter on rebut 1. The
reporter will testify from original notes or transcrip

Inconsistent Statement, Written Report — Checklist
A. Written Report Containing Contradiction
1. Now, Mr. Witness, you stated on direct examination that ____________
did you not?
2.—Did you ever give a different version of that occurrence to anyone?
3. Mr. Witness, you did talk to ‘ after the incident,
did you not?
4. And that was on the — day of _________, 19_?
5. And _______ _______ and ______ ________ were present at that discussion,
were they not?
6. Did they not record what you stated on that day?
7. And you read what they wrote and signed It, did you not?
(Where the statement is unsigned, counsel must get a coniuiitment from
the witness that he adopted the report; I.e., whether the statement
was meant at the time to be an accurate account of the events described
therein. Did the witness read the statement, was it read to him, did
the witness remain silent after reading the statement?)
8. Was that report accurate?
9. And was it a reliable statement of what you observed or heard concerning
the case?
10. Would it be fair to say that It was made with facts fresher in your
mind than they are today?
[ Your Honor, at this time the defendant would request that this document
be marked as Defendant’s Exhibit no. for identification.]
11. I show youDefendant’s Exhibit no. — for identification and ask you
If this is your signature?
12. Then that Is the document which you read and signed on the — day of
__________, l9_, Is It not?
13. Now, directing your attention to _______ of the document, you stated at
that time that ___________, did you not?

14. That is contrary —— directly contrary —— to your testimony of today
regarding that event, is It not?
15. Are you now asserting that your recollection of those events is better
now than It was _____ days after the occurrence of _____________
16. Then your testimony on direct examination was not entirely accurate,
was it Mr. Witness?
17 Before I go further, Mr. Witness, are there any other inaccuracies in
the testimony you gave today?
B. Written Report Containing Additional Piece of Damaging Information
1. Repeat questions and procedure contained under Part A, 1-13 above.
Then proceed as follows:
2. Now, Mr. Witness, when you made that statement/report, which you have
in front of you, you were not trying to conceal any information, were
3. You were attempting to be as accurate as you could, is that correct?
4. You certainly attempted to Include in the statement/report the facts
you considered Important in this case, did you not?
5. You knew or were aware of the purpose for such a statement, were you
6. Did you know that when you made this statement/report that it would
be used and relied upon by other people who were not present on the
— day of __________, 19_, the date of the occurrence here under
7. And did you not also know that such people would learn about what has
happened from what you said in the statement/report?
8. Were you not also aware, Mr. Witness, that you would probably be asked
to testify In this case?
9. And that the trial would be a considerable period of time after the
date and time of the occurrence of the ______________?
10. And you knew that you could utilize this statement/report to refresh
your recollection before testifying today, did you not?
11. In fact, you did read this statement/report prior to testifying today,
did you not?
12. This would certainly be a good reason for including In the statement!
report as much of what actually occurred at the time In question as
possible, would It not?

13. Mr. Witness, I show you what has been marked for purposes of identifi-
cation as Defendant’s Exhibit no. and ask you whether there Is
contained anywhere in that statemei 7report that [ omitted fact]?
14. Mr. Witness, did you think at the time that if the [ fact omitted] had
occurred that it was important?
15. Did you mention this [ fact omitted] in any other statement/report!
16. Then we hear about this matter for the first time today, is that
Where the witness is a police officer, the following line of
questioning may be pursued.
17. Does your training include how to write reports?
18. Are you not taught to include all the important facts regarding an
occurrence such as the one under discussion today?
19. Thus, if something of evidentiary significance actually occurs, you
do not normally fail to include it in your statement/report?
20. That only happened in this case then, Officer ________? I see.

Direct Examination of Character Witness for Defendant
A. Defense counsel may properly be limited on his direct examination to the
following inquiries:
1. Mr. Witness, do you know or have heard of Mr. ________, the defendant?
2. How long have you known Mr. _________, the defendant?
3. Under what circumstances have you known Mr. _________, the defendant?
4. Do you also know other people who know of the defendant, Mr. _________?
5. Have you had occasion to discuss the defendant’s reputation for
_____________ at any time prior to _____________, 19 ?
6. And what Is that reputation of Mr. __________, defendant?

Ordinary Conversations
Mr. Jones, were you present at a conversation in which Mr. X,
the defendant, participated?
• How long have you known Mr. X? -
- Where and when did this conversation take place?
Who was present?
Was anything said by Mr. X in your presence concerning a debt
to plaintiff?
What was that conversation?
Telephone Comunications
(Speakers do not know each other)
Testimony by originator of call
1. The witness called a telephone number listed in the telephone directory.
2. He asked for a particular person either by name, title or description.
3. He was connected with a person who represented himself to be the
individual requested.
4. That person discussed business matters connected with the business of
the firm that was called.
The foundation by subsequent identification may be laid as follows:
Did you make a telephone call to the place of business of Mr. X?
When was that telephone call made?
What number did you call?
Did you at that time have a telephone conversation with someone?
Subsequently thereto, did you speak with Mr. X in person and
thereafter by telephone on various occasions?
When, where and over how long a period of time did these subsequent
conversations take place?
Did you become familiar with Mr. X’s voice?
Can you now state whether you recognized the voice of the person
with whom you originally spoke?
Whose voice was it?
Pleasc tell the court andjt’ry whit yo i said to Mr. X and what he said to you?

Other Documents
(where the name of the originator is anonymous or typewritten)
1. The writing was received by mail in due course and indicates by its
contents that it is an answer to a prior letter sent by the addressee
to the alleged originator of the letter in question.
2. The writing was subsequently acknowledged either in writing or
orally by the author or originator.
3. Proof by an expert on disputed documents as to the origin of the
writing and the identity of its author.
1. Testimony that the sender was observed to compose the message
and seen to deliver it to the agents of the telegraph company
for transmission.
2. Evidence by an employee of the telegraph company that the
sender delivered the message for transmission.
3. Production of the original handwritten message, with proof
of the fact that the handwriting is that of the sender.
4. Subsequent letter or conversations of the sender relating to
the telegraphic coninunication or its contents.
5. Proof that the telegram was received in due course and indicates by
its contents that it is in reply to a comunication previously forwarded
by the recipient of the telegram to the purported originator thereof.
Foundation Not Required
- Although most documentary evidence requires a foundation of idenificatipn
before it may be introduced, there are certain types of evidence which need not
be identified or authenticated. These include doctnentsof an official nature
bearing an official signature or seal and certified copies of documents of
public record. Jurisdictions differ as to this relaxation of the foundational
rule. The careful lawyer will therefore check the practice in his own state
andunder the Federal Rules of Evidence.
Weather Report
Both federal and state rules permit introduction of weather reports
made under the direction of the United States Weather Bureau, when properly
certified. No witness need identify or vouch for the report. Such weather
reports are prima facie evidence of the facts therein contained. If not
contradicted by the testimony of actual witnesses, the specific information
contained in the reports is conclusive. If contradicted by such testimony,
a question of fact arises as to the actual weather condition at the time
and place.

Motor Vehicle Reports
So too, in states in which motor vehicle reports are not confidential,
a certified copy of the original report on record may be read in evidence
without identification by a witness.
An important consideration in the use of motor vehicle reports
containing admissions against the interest of the driver involves the rules
of agency. An employee-driver is not the agent of the employer for the
purpose of making admissions. Accordingly, such a report would not be
admissible as an admission against the Interest of the employer-defendant.
Copies of Documents
Do you know Mr. X?
Under what circumstances and for how long a time have you known him?
Did you on or about the 1st day of July, 1955, write him a letter?
Did you thereafter enclose the same in an envelope securely sealed,
containing the required amount of postage theron, and addressed to Mr. X
at 126 Lafayette Avenue, New Orlean, Louisiana?
Did you thereafter, on or about that date, deposit the envelope
in the mail box facilities maintained by the U.S. Post Office at 100
Broadway, New York City, for the deposit of mail?
Did this envelope bear your return address?
Was this letter ever returned to you?
I now call upon the defendant [ or plaintiff] to produce an original
letter bearing date of July 1, 1955, addressed to Mr. X and signed b, the
[ the witness], pursuant to a notice to produce served upon defendant br plaintiff].
[ The letter is not produced].
Does counsel concede service of the notice to produce? [ Concession
At the time you wrote Mr. X the letter referred to, did you make
an- exact copy?
How was that copy prepared?

Assuming relevancy and materiality, the foundation requirement can
generally be satisfied by an affirmative answer to a question in the following
JII) 4 U’ L s t JA’i .% Sbt4 s aTWA
I show you 4 t4ii- phetogr ph and ask you whether it is a fair and
accurate representation of [ the subject of the inquiry] as it existed on the
day in question.
Any witness who can establish his familiarity with the subject matter
represented in the photograph is competent to testify to the accuracy of
the photograph. There is no need to produce the photographer unless the accuracy
of the photograph is challenged by expert testimny.
Q: What is your occupation or profession?
A: Mechanical engineer
Q: How long have you been such?
Q: What institutions were you graduated from?
Q: What experience have you had in your profession since your graduation?
Q: What associations do you have with engineering societies?
Q: Are you familiar with X manufactured by the X company?
Q: Did you, at the request of the plaintiff herein, make an examination of X
known as type — [ instrumentality in question) manufactured by X company?
Q: What is its size and weight?
Q: Thereafter, did you prepare a model of this crane?
Q: To what scale was this model prepared?
Q: Is the model in all respects, except that of size, identical with the -
A: It is.

Preliminary Statement
The Preamble of the Civil Penalty Policy (the ‘Policy”),
announced on April Li, 1978 by Marvin Durning, Assistant
Administrator for Enforcement, states the basic function of
the Policy:
‘The Clean Air and Water Acts authorize
civil penalties up to stated maximums.
This policy enunciates general principles for
determining appropriate penalties that the
government will seek in individual cases. It
is based primarily on four considerations.
The policy recognizes appropriate mitigating
circumstances or factors. Each of these
penalty considerations and each of the
mitigating factors is well founded in law and
is consistent with statutory requirements.”
Section IV of the Policy states its intended appli-
‘This civil penalty policy is intended
to be used by federal and state enforcement
officials and, in appropriate cases, by
local officials (e.g., local air pollution
control agencies operating under authority
of state air pollution laws).”
IV — 1

The Contract authorizing and providing for this
training program directs the Environmental Law Institute 1/
to analyze and comment upon, and advise the Office of Enforce-
ment with respect to, the procedural and tactical problems
and issues in the civil enforcement actions brought to
effectuate the Policy. -
This Memorandum deals with the questions and problems
which may be peculiar or special to civil actions brought
under the Policy and which arise out of its basic purpose.
It is not our task here, however, to deal with the full
range of legal questions conunon to most civil penalty liti-
gation, such as the question oU-the constitutionality of
treating the penalties as “civil t ’ rather than criminal. 2/
In large measure, the basic purpose of the Policy is
to provide a standard basis for calculating effective and
fair penalties in Air and Water Act cases. The very standardi-
zation, and with that standardization, the fairness sought
to be achieved by the Policy, inevitably will tend to change
the process by which courts determine an appropriate amount
to be charged as a penalty in a particular case. From a
purely judgmental process involving the trial judge alone
and taking place after trial, the process will be at least
partially changed to a fact finding one and made part of
the trial 3/ or substitute for trial.
IV — 2

The particular Policy questionS and problems with which
this Memorandufl’ deals are the following, and are discussed
hereiiLfter in that order:
I. The Policy’s Promulgation And The Kind Of
Agency Action it Represents;
II. The Consistency Of The Policy With The
Statutory Civil Penalty provisions;
III. The Nature Of The Issues — Law, Fact Or
Mixed Law And Fact — Involved In The Determination Of
Whether The Policy Is Applied;
IV. The Nature And Sources Of The Facts Involved
In Each Policy Factor, And How Proof Of Such Facts May Be
V. The Manner In which The Penalty Issues Of
Fact Or Of Mixed Law And Fact Are To Be Tried.
I. The Policy’s Promulgation And The Kind Of Agency Action
it Represents.
The promulgation of the Policy is neither rule making
nor ajudicatiOfl under the Administrative Procedure Act. 4/
The Court in a penalty case will not be required to adopt
and apply the Policy merely on a showing that it is not
arbitrary or capricious. Thus, the Policy may be reviewed
by a court in an action in which the Agency Beeks to apply
it for...its consistenCY with the statutes and for its reason-
ability. Quite clearly, the court’s discretion in the deter-
IV — 3

mination of the amount of the penalties within the maximum
amounts fixed by the statutes cannot be abridged by the
In urging the acceptance of the Policy, however, it
should be pointed out that the promulgation of the Policy is
the “product of administrative experience, appreciation of
the complexities of the problem, [ and] realization of the
statutory policies...’ t 5/ The Policy is entitled to the
deference accorded to the expertise of the administrative
agency charged with execution of the statutes being inter-
preted and applied. 6/
The leading example in the environmental law field
according deference to agency guidelines is the weight and
consideration courts general gave to the CEQ Guidelines as
to NEPA issues in the years following 1970 and before the
Guidelines were replaced by the regulations now in effect.
II. The Consistency Of The Policy With The Statutory Civil
Penalty Provisions.
A. The Clean Air Act
Section 113(b) of the Clean Air Act provides that:
“In determining the amount of any civil
penalty to be assessed under this sub-
section, the court shall take into con-
sideration (in addition to other factors)
the size of the business, the economic
impact of the penalty on the business, and
the seriousness of the violation.”
Iv — 4

The ‘four considerations” 2J on which the Policy is
‘based primarilY” !/ are 1) the harm done to public health
or the environment; 2) the economic benefit gained by the
violator; 3) the degree of recalcitrance of the violator;
and 4) any unusual or extraordiflaTY enforcement costs thrust
upon the public. The considerations do not match in haec
verba the Clean Air Act considerations. They are, however,
fully consistent with the Act’s factors and the Act specif i-
cally provides for “the court (to) take into consideration”
“other [ additional] factors’. 9/
Considering the statutory criteria in reverse order,
one should note that the Penalty Policy also was carefully
drawn up to focus attention upon the seriousness of the
violation. Indeed, the Policy’s economic benefit component
reflects the extent to which the defendant puts law—abiding
competitOr at a competitive disadvantage. Other measures
of the Beriousness of the violation are the defendant’s bad
faith, the environmental harm caused by its non-compliance
and the extraordinary enforcement costs its lack of cooperation
has caused the public to bear. The Policy reflects these
factors with as much precision as available data and measure-
ment techniques allow.
The Policy considers also another one of the Act’s
criteria: the economic impact of the requested penalty.
That component is designed to be the minimum penalty that

will atone for the wrongful economic gain resulting from the
defendant’s prolonged refusal to comply with the law. The
economic impact realized by a defendant is in essence the
impact it would have felt had it made the pollution control
investments necessary to comply with the Act in timely
The additional components of the, penalty do not result
in an unduly severe economic impact on a defendant. It is a
requirement of the Policy that it reduce or defer the
penalty amount calculated on the basis of the four criteria
discussed above where it is demonstrated that the economic
impact of ixmnediate full ayrnent would be extreme.
The calculation of the penalty in accordance with the
Policy also requires consideration of the size of a defendant’s
business. The “size of the business” is frequently reflected
in the economic benefit of delayed compliance, since less
expensive control equipment is usually required for smaller
businesses and the benefit of delaying installation of such
equipment is correspondingly less.
The Policy also includes a mitigation factor to be used
to postpone or forgive all or some of a penalty to avoid
serious economic hardship. In making this determination,
the size of the penalty in relation to the size of the
business is relevant.

B. The Clean Water Act
The Clean Water Act civil penalty provisiotr ontainS no
specification of factors to be considered by a court in
assessing a penalty. This distinction from the Air Act may
either weaken or strengthen the argument for the validity of
the Policy and the several factors se.t forth in it.
On the one hand, it can be argued that the absence of
statutory criteria means that Congress wanted courts to be
unfettered by any restrictions. On the other hand, it can be
argued that Congress wanted the courts to be more free than
it is in fixing penalties under the Air Act, more free: 1)
to “take into consideration” the factors set out in the
Clean Air Act provision, 2) to consider “other factors”, and
3) to give such weight to any or all of the factors that it,
in the exercise of its discretion, chooses to give.
To the extent that the court in a Water Act case gives
deference to the Agency interpretations of the Act embodied
in the Policy, as the “product of administrative experience,
appreciation of the complexities of the problem, rand)
realization of the statutory policies,..” 11/ the Policy
should be regarded with as much or more deference than in a
Clean Air Act case. The absence of any specific factors may
be said to vest more in the expertise and fairness of the
IV — 7

III. The Nature Of The Issues - Law, Fact Or Mixed Law
And Fact - Involved In The Determination Of Whether
The Policy Is Applied.
Thus far the discussion of the treatment of the Policy
in an Air or Water Act enforcement action has been concerned
with the substantive issues of the construction and inter-
pretation of the civil penalty sections. The procedural
questions are equally important. A basic problem is that of
whether the issues before the court in its acceptance or
rejection of the Policy are issues of law or of fact or of
mixed law and fact. The nature of the issues determines, of
course, by what means, legal argument or factual proof or
both, the case should be made for acceptance and application
of the Policy.
The question cannot be answered definitively. Nor will
courts, in all probability be uniform. The litigating
attorney(s) must, accordingly, be ready both to argue for
the Policy as a matter of law, and if that argument does not
prevail and the court does not rule as a matter of law that
it will not apply the Policy, to prove it as a matter of
fact. The proof must, of course, be the kind of proof
admissible under the Federal Rules of Evidence. Moreover,
to the extent that the issues are factual and factual proof
is to be received, the facts involved in such proof are
IV - 8

facts ‘relevant to the subject matter of the action”, and
are i atterS ‘calculated to lead to the discovery of ad-
missible evidence’. They are thus within the permissible
scope of discoverY under Rule 26(b) Fed.R.Civ.P.
it would seem to the author that the proof of the
propriety of the Policy, to the extent that factual proof is
to be adduced, must be primarily by expert testimony. The
relationship, in an air case, of ‘the sum appropriate to
remove the economic benefit gained or to be gained from
delayed compliance’ (the Policy factor), to “the size of the
business” and to the ‘seriousness of the violation” (statu-
tory factors), is a matter upon which a qualified expert may
testify. This particularlY is the case in the light of Rule
704 of the Fed. R. Evid., providing that:
“Testimony in the form of an opinion
or inference otherwise admissible is not
objectionable because it embraces an
ultimate issue to be decided by the
trier of fact.’
The ‘ultimate issue’ would be that of the appropriate-
ness of the Policy under the statutory language. Expert
testimony in a water case is equally appropriate. Whatever
the factors which the Court deems to be appropriate under
the Water Act provision (with no specific factors in the
language of the section itself), based upon the Court’s
application of general civil penalty case law or its reading
of the section’s legislative history, expert testimony would
seem appropriate.

Taking one of the most general principles from the case
law illustrates the point. It is an established principle
of penalty law that to deter future violations by defendant
and others the civil penalty should be set at an amount high
enough to insure that the violator in no way profits from
its non—compliance. 12/ That is, in essence, the Policy
factor of removal of the economic benefit, and it can be so
argued as a matter of law and proven as a matter of fact by
expert testimony. The propriety of each of the other
factors of the Policy can be similarly grounded in general
civil penalty law.
If it is correct that expert testimony is appropriate
f or securing the Court’s adoption of the Policy, it is clear
that a group of experts, essentially economists, shoulc’ be
available to testify concerning each aspect of the Policy,
the manner in which it has been formulated, and the soundness
of each of the factors set forth in it, including the
mitigating factors. The direct testimony of each such
expert witness with respect to the appropriateness of the
Policy can be essentially the same in each action and it can
be prepared beforehand and made available to each regional
EPA office. It can be modified by the enforcement attorney
or Justice Department attorney handling a particular case to
I v — 10

reflect individual needs and styles. The testimony by the
saute expert with respect to the application of the Policy to
the particular defendant, treated below, will of course be
different in each case.
Whether the expert testimony in support of adoption of
the Policy will be adduced by deposition, on trial, by
affidavit submitted on motion (e.g. motion for partial
summary judgment), or otherwise, will depend upon the court’s
determination of whether all issues of fact are to be tried
at once and what kind of fact finding process it uses.
These matters are discussed below.
Should the pleadings deal at all with the Policy? As
far as the author has been able to determine from its
examination of complaints, and by inquiry of attorneys
engaged in the various civil penalty actions, the penalty
aspect of the action is generally referred to only in the
prayer for relief. In the typical complaint there is first
set forth a demand for injunctive relief or for judgment
directing installation of equipment necessary to halt
violations. There follows a demand for civil penalties in
the maximum amount. The following prayer, in a water case,
is characteristic:
• WHEREFORE, plaintiff, United States of Mterica
prays for judgment herein as follows: -

1. A decree requiring defendant to take
immediate steps to install and properly operate
pollution control facilities capable of meeting
all applicable NPDES permit litigations as ex-
peditiously as practicable; and
2. A judgment requiring the payment of civil
penalties by the defendant to be assessed in
amounts up to $10,000 per violation per day for
non—compliance with applicable permit conditions
from 1976 to the present; and
3. Granting such other and further relief as
the Court may deem just and proper.
In some complaints these is an allegation that the
defendant’s delayed compliance has earned or saved for the
defendant substantial aznount in capital, operation and
maintenance costs.
The author suggests that consideration be given to
pleading more of the Policy related facts in the complaint.
Simplicity and brevity in pleadings are, of course, directed
by Rule 8(a) Fed.R.Civ.P. Each claim for relief is to set
‘forth “a short and plain statement of the claim showing that
the pleader is entitled to relief.” The pleading of the
Policy matters can, however, be brief. It would inform the
Court from the very first that,by virtue of the Policy, the
Agency does seek to have the penalty amount determined in a
more methodical fashion than the traditional purely judqmental
process, and that the Agency seeks to substitute objective
facts and figures and sound formulae, the propriety of which
will be established by expert testimony, for the more tra-
ditional process of other civil penalty actions.
IV — 12

Because courts look first and most frequently at
pleadings for impressions and an understanding of what cases
are about, placing the Policy before the court from the very
first can help in educating it at an earlier point. Nor, in
the judgment of the author, does pleading the elements of
the policy offend the rule of pleading quoted above. The
claim for relief includes the penalty 13/ In many actions
the penalty amount will be the only or the primary matter
litigated. A brief statement of the means by which the
penalty is to be calculated is part of “a short and plain
statement of the claim...”
Pleading the Policy, of course, may affect the scope
and depth, and also the timing, of discovery. Although
discovery as to the amount of damages is clearly proper, 14/
allegations in the pleading concerning the elements of
damages may affect the timing and pace of such discovery.
The elements are part of the subject matter of the action,
and details of each element are, if not admissible evidence,
clearly calculated to lead to the ultimate discovery of
admissible evidence. Thus, pleading ultimate facts relating
to the Policy should expedite discovery 15/ of evidentiary
facts relating to the Policy.
If discovery as to the penalty is expedited by pleading
its elements, the critical question is that of who benefits,
pli intiff or defendant? The answer can vary from case to
IV — 13

case. No case is typical. In the judgment of the author,
the Agency would benefit in most of the cases far more
than the defendant.
It is true that in the taking of depositions the de-
fendant is granted a thirty day priority by Rule 30(a)
Fed.R.Civ.P., the plaintiff requiring leave of court “to
take a deposition prior to the expiration of thirty days
after service of the suimnons and complaint upon any de-
fendant .... If the pleading of the elements of the Policy
encourages or moves the defendants to take depositions
earlier with respect to the elements of the Policy, it may
be feared that the effect of such pleading would in many
cases be a disadvantage to the Agency.
In all probability, however, much of the discovery by
the Agency of the defendants with respect to penalty matters
will be by production of docuii ents and by written interroga-
tories. Indeed, until information is secured by such interrogatorie
or production of documents, depositions upon oral examination
may be wasteful. Plaintiff’s discovery by production of
documents and by interrogatories is permitted from the
moment a particular defendant is served with the summons and
complaint. Thus, interrogatories directed toward securing
the information appropriate to the penalty, determination or
production of appropriate documents - e.g., documents which
may demonstrate a pattern of stonewalling by
iv — 14

the defendants —— may coence the instant that the defendant
is served. 1.6/ In short, if actions are prosecuted with
vigor, and the staffing of attorneys with reasonable litigation
experience and training is adequate, measures which expedite
discovery into the Penalty Policy.matters should aid in
expediting the progress of the action to judgment or favorable
To suimnarize the foregoing discussion of the nature of
the issues and the process involved in securing court
acr PptanCe of the Policy:
A. The issues will probably generally be treated as
issues involving both law and fact;
B. To the extent the issues involve fact, the Agency’s
proof will probably be by expert testimony;
c. Qualified experts and prepared expert testimony
wi th respect to the Policy should be available in each
regional office; and
D. Consideration should be given -to pleading elements
of the Policy in complaints in order to strengthen the
arguments for court acceptance of the Policy and to expedite
discovery with respect to penalty matters.
ly. The Nature And Sources Of The Facts Involved In
Each Policy Factor, And How Proof Of Such Facts May
be Adduced.
The end product of application of the Policy to any
particular defendant is an amount proposed for the penalty.
I V - 15

The task of the Agency’s litigator is to secure the court’s
determination that the amount is correct. The amount is the
sum of amounts ascribed to each of the “Factors Comprising
Penalty” (“Penalty Factors”) minus the sum of the amounts
ascribed to the two “Mitigating Factors”.
A. The Economic Benefit Factor
Of the four Penalty Factors the most important is the
second factor:
“the sum appropriate to remove the
economic benefit gained or to be gained
from delayed compliance” (the “Economic
Benefit Factor” or “EBF”).
The discussion which follows concerns first the EconorPic
Benefit Factor, its elements and the nature and sources of
information combining each element. Those’elements are
stated and explained in several documents issued by the
Office of Enforcement and prepared by or with the assistance
of consultants to implement the Policy, including:
1. The “Civil Penalty Policy Technical Support Docu-
ment” (the “Support Document”) issued in September 1978;
2. “Instructions For Calculating Civil Penalties Due
To Delayed Compliance” (the “Instructions”), issued in March
1979; attached to the Instruction is a description of the
“Parameters in Economic Savings Calculation” (the “Para-
Proof of the amount of the EBF involves:
IV — 16

1. Proof of the correctness of the amounts of each of
the elements used in the calculation of the Economic Benefit
Factor Amount (the “EBFA”); and
2. Proof of the correctness of the formulae and of the
calculations under the formulae used and made in computing
the EBFA. (The formulae and their use are described in the
Support Document).
Discussion of both the information involved in the EBFA
and of the proof of it in evidence can be presented most
clearly by reference to the several Parameters.
The sources of the information and data respecting the
several parameters involved in the calculation of the EBFA are
set out and explained in the Instructions and Parameters.
Reference is hereby made to the Instructions, and the state-
ments therein of the “sources” of information with respect to
e3ch of the several items of information.
1. As to the “capital investment cost”, the
instructions list the following as “sources”:
i. Quotations from various publications
such as the Mcllvarie Manual
ii. Quotes from vendors
iii. Engineering estimates
iv. Headquarters (Enforcement Office)
Although the foregoing represent reliable sources they
also present difficult evidentiary problems. Thus, quotations
I V — 17

from the publications mentioned might not be admissible as
they would appear to constitute hearsay. On the other hand,
the first three sources could easily be utilized as a basis
for an expert’s opinion if the expert could first qualify
them as facts or data “reasonably relied upon” by experts
in the field within the meaning of Rule 703, Fed.R.Evid.
Other means of placing this data in evidence would be to
qualify some of the sources as business entries within the
meaning of Rule 803(6) Fed.R.Evid. or public records and
reports within the meaning of Rule 803(8). In certain -
instances the vendors may have to be called to the witness
stand to testify to the price at which they would sell to a
willing buyer.
2. The sources of operating and maintenance
expense are the same as those for “capital investment costs”.
3. The sources for determination of the useful
life of the equipment are:
i. The Company
ii. I.R.S. Revenue Procedure #77-10.
The ‘ .R.S. Revenue Procedurdvrnay be cited to determine
the limits of the useful life, but not to define it with
precision. The better source is “the Company”, meaning what
it actually determines or states to be the useful life, to
be secured by the testimony of the Company, on deposition or
trial, or by answers to interrogatories or admissions.
IV — 18

4. What has been set forth above with respect to
the “useful life” applies to the “tax life”, the two,
according to the Instructions being the same.
5. As to the “inflation rate”, the Instructions
refer to chemical engineers annual index and the “equipment
specific annual index”. Neither of these is admissible but
may be referred to in or by proper expert testimony as a
basis or bases for the expert’s opinion.
6. The Instructions set forth nine different
items of “Financial Data Related to the Vendor”, under each
of which is listed one or more of the following sources:
1. Financial statement from Moody’s
2. Annual Reports filed with S.E.C.
3. Violating firm
4. 3 — 5 year average from Moody’s
5. F.T.C.’s Quaterly Financial Report
6. E.P.A. Headquarters (Enforcement Office)
7. r arginal Federal/State Tax Rate Table
8. I.R.S. Code, Chapter 1, Subpart B
9. Rules for Computing Credit for Investment
in Certain Depreciable Property
10. Company-specific debt obligations from
Moody’s or similar financial sources
11. Interest for “A” rated corporate bonds
as given in Moody’s
12. Moody’s Bond Record .

“Financial statements from Moody’s” are in the same
category as quotations from other published journals. As
such, they are inadmissible but may be referred to in expert
testimony. The statements in Moody’s, however, to the extent
that they are statements issued by the Company, may be ad-
missions made by the Company, put in evidence by using copies
of such Company statements. -
“Annual Reports filed with S.E.C.” probably con-
stitute admissions by the Company under Rule 801(d) (2) Fed.
R. Evid.
To the extent that information from the “Violating
Firm” is secured on depositions or in interrogatories or
Rule 36 Admissions, it is probably admissible under
Rule 801(d) (2) Fed.R.Evid. So too are the Company’s “Annual
Reports” which may also be filed with the S.E.C. or stock
Further analysis of some of the sources of information
respecting the EBFA appears in reports submitted to the
Enforcement Office by the author pursuant to the Training
Program Contract. Portions of those reports may be reproduced
by the Enforcement Office and made available to all of the
attorneys attending the training sessions.
IV— 20

B. The Harm or Risk to Health or EnvironiTlent Factcr
This is so broad and complex a field and it is so
difficult to attach economic measures to the intangible
values and issues of health and environment that it is
impossible here in an abstract way to outline completely the
factual issues that must be addressed. Several general
points however, can be made.
First, the threshold question is whether the governIre.
can demor.strate the existence of environmental damage. This
may require ambient and discharge monitoring data and
scientific information on the impact or affected populatic .
and ecological systems. Expert witnesses will play key
roles. The admissibilitY of these various items and the
tactical points relating to the use of experts will natura.1.’
be dependent upon the evidentiarY and other consideratior.!
discussed elsewhere in the materials.
The second question is what economic measure cari be t
or the damage. The judge may riot require precise quar.tif:-
cation, asking for no more than evidence that the damagE :s
of a magnitude that, on the basis of subjective C nside 3
tions, seems to justify a penalty of the size sought.
Resource economists have identified a variety of
approaches for valuing environmental resources arid risks c
health, although this field is complex and developing

rapidly. One method of quantifying environmental damage,
for instance, is by eterminiflg the cost of environmental
restoration or replacement. As an example, the cost of
replacing fish lost due to water pollution can be determined
by either market value of the fish or the cost of raising
them at the hatchery. A second method, used in connection
damage to recreational resources, is to determine the
recreational value of the particular resource. Various r,u lic
agencies have calculated such values. This method involves
determining which recreational uses will be taker. into
account, valuing them and calculating the rnxnber of visitor
days attributable to each use. A third method attempts t
assess ecological damage. This method is difficult to
present since it requires a great deal of information reaard:.g
the balance and relationships of particular eco-sySte S.
The Agency must therefore use an expert knowledgeable er.o c
to withstand a challenge that his assessment of the existe :e
and valuation of the injury is speculative. QuantifiCatiC
becomes easier if it can be shown that the eco—syster sus-a: !
comi ercially valuable activities.
Psychic and aesthetic values can be valued as wei..
Psychic values i.e., the feeling of loss resulting fror
environmental destruc.tiOfl can be assigned based upor. mcr.e:
or aid given by citizens to help in repairing the enviro:.-
mental damage, e.g. , to save birds from an oil spill.
may be possible to find analagOus cases of harm where SUC i
figures have been calculated.
IV — 22

Aesthetic loss, the value which can be attached to the
en oyment of knowing a resolurce exists and can be en)oye ,
can be measured, by what the public collectively (e.g., via
coastline legislation or bond issues) or individually (e.g.,
by various surveys or polls) is willing to pay to preserve
certain natural resources.
C. The Recalcitrance Factor
This factor will be applied if the delay in corr lia .ce
was due to the recalcitrance, defiance or indif - ence of t .e
violator. Therefore, information concerning the reasor.s fo
delay must be obtained.
This information may be obtained through discovery, by
requesting documents which discuss the decisions on whether
and when to install the control device. The pertinent
documents might include minutes o Board of Directors ar .
corporate committee meetings, memoranda between source
personnel, and a variety of other records of source de: s::-.
making. Thus EPA should be prepa-ed for the fact tha:
ir.f rrnat .or. necessary to show recalcitrance may have tc h€
gleaned from voluminous records requiring length ’, pair.-
staking analysis. Some of this same information ma’ be
obtained by deposing members of the source’s Board of
Directors and top management, who may be the most knowledce-
able or informed about the violator’s decision, or by
I v — 23

deposing the source’s lower level personnel. who may becat se
of their more limited perspective be more likely to reveal
helpful bits of factual evidence.
D. The Unusual Enforcement Costs Factor
This factor depends upon matters directly within the
knowledge of the Agency and its attorneys ar.d should not
present unusually difficult evidentiary issues. Much of the
factual support or this factor may indeed be presented ir.
affidavits or may be stipulated to, with the understanding
that the parties may then have the opportunity to arcue the
legal issues and the fact’s sigr4aficance.
E. The Mitigation Factors
The Penalty Policy allows mitigation of penalties whe
non-compliance is due to factors completely beyond the
defendant’s control. The information needed to assess
mitigation claims will include evidence on the reasons fc r
delay in compliance (this will be much of the sar’e ir.fcr-
tion as is needed to determine whether there was recalcit a: :e’
as well as information on many events that are poten:aa
of an exculpatory nature, such as clairs that the necessa
control equipment was unavailable or that the dela’ . i
fault of the government. Claims concerning governmental
delay could, of course, be a real problem 1 in that they
could lead to broad discovery requests concerning EPA’S
actions, which could tie up EPA staff in lengthy depositiC: .
and document discovery.
IV — 24

V. The Manner In Which The Penalty Issues Of Fact Or Of
Mixed Law And Fact Are To Be Tried.
The court process with respect to the determination of
the validity of the Policy, whether it should be applied,
has been discussed above, in Part III. In this part the
discussion concerns the process for determination of the other
issues of fact or of mixed law and fact involved in ad udgir.g
the amount of the Penalty. Whatever factors the Court
considers, the Policy factors or others, the trial or other
process may be adapted to the special technical nature of
those issues and of the evidence adduced.
In analyzing the process for determination of the
amount of the penalty, the first question is really that of
whether it must be an evidentiary process at all. The
answer is not clear from general civil penalty law.
of that question poses a curious irony. If the deterrrina::c.
of the term or amount of a criminal penalty , iznprisonlner.t or
fine or both, does not require a trial type evidentiary
hearing it would seem arguable, a fortiori , that su:h a
hearing is not required for the fixing of a civil per 4 a .
And it is clear that the fixing of the criminal pena .ty
ge nerally does not require an evidentiary hearing.
Such a criminal proceeding is essentially the fixing b’
tt e court of the penalty on the basis of the PresentenCe
Investigation 0 and “Presentence Report”. made and submitted
to the court by the Probation Department. Rule 32(c)
Fed.R.CriTn.P. The PresentenCe Report 5 shown to counsel
for the defendant if he requests the opportunity to do so:
IV — 25

‘.. .the court shall afford the
defendant or his counsel an oppor-
tunity to coirui ent thereon and, at
the discretion of the court, to
introduce testimony or other
information relating to any alleged
factual inaccuracy contained in the
presentenCe report.”
The U.S. Attorney may, of course, adduce testiTnc r.y to
counter the testimony adduced by defendant’s cour.sel.
The ta)cing of testimony on the penalty in cri inai
cases is rare. Ir. almost all such cases, the ser te :.ce,
imcriso:.r’er.t or fine or both, is imposed w thc’ t ar::
Fror this rule and practice it car. be argued that therE-
should be no reauirer er.t, or very rarely a require er .t.
the determinatior. of a civil per.al y ir.vc lve ar. evide .t:ar:
t e hearir.C. it is ur.r.ecessary in this Me,icrar.dur, hcwe r,
to atter t to answer the question of to what extent a:.
evide:.tiary hearing is required to fix the amount cf the
civil penalty. Since the Agency’s interest is in the
application of the Policy, its attorneys should oenea
s ppcr:ir.g sorie evidentiary hearir4g as aca:nst the -e
udgmer.tal process of a criminal case. 1?
ssurir.g that some evider.tiary hearir.g is rere
the cc rt ir order to determine the actual ariour.t cf t €
penalty, a nuriber of questions of procedure and tactics
arise, including the following:
1. How likely is separation of trial of the
penalty issues from trial of the compliance issues, and is
such separation advantageous to the Agency?
iv — 26

2. How likely is separation of discovery alcr g
the same lines, that is. postponement of discovery as to
penalty matters until adjudication of, or agreement as to.,
liability for non-compliance, and is such separation ad-
vantageous to the Agency?
3. What are the alternatives which the courts
have as to the means of hearing and ad)udging the penalty
iss ues?
4. How likely is the use by the courts of each of
the alternative means for hearing and adjudging the per.ai y
issues, and what are the advantages and disadvantages cf
each for the Agency?
These ques:iC ’flS are considered below in the or e:
s ted.
1. Separatior. of Trial
Separation of trial is governed by Rule 42(b),
“(b) SEPARATE TRIALS. The court, in fur-
therance of convenience or to avoid prej-
dice, or when separate trials will be cor.-
ducive to expedition and economy, may order a
separate trial of any claim, cross—clailT,
counterclaim or third-party claim, or of ar:
separate issue or of any number of claiTrs.
cross—claims, counterclaims, third-party
claims, or issues...”
The matter of separate trials rests in the discret C:.
of the trial judge. There is authority for the separate
trial of issues of liability and issues of damages. 18
iv — 27

In U.S . v. Reserve liming Cci., 19/ it was ordered that
allegations dealing with urger t matters of public heait . b
tried trial before the issues of potential harm to th
Separatmor. of trial may be ordered at various ti eE a:
by various mear.s. It may be ordered considerably ir. a±:a :.
of trial or on the eve or ever, at the be innir ,o of tria. .
The order for separation of trial of dmfferer.t iss’ies c a
separate order, rna or may not provide also for stp.e -
of discovers wmt respect to the iSSUeS tO be tried at t-.e
later trial. The order may provide otherwise for scr e de
ir. the later phase of the trial after corpietmcr. of th
earlier phase. - -
Ir. the opinmor of th author: (1) applicat:c cf
textbook separation-cf—trial prmr.cmples should genera._:
result ir. the der .ial in er.force ent actior.s of se:ara:m:
trial of the co plmance and penalty issues ur.less the
separate trials are back to back; and (2) it should
be in the interest of the Agency to avoid separa:ac . of
trmal unless one ir nedmatelv follows the other.
There are two basic reasor.s for beimevmr,c t tc :•e
generally ir. the ir.terest of the Ager.c to avcm se;arat::
with ar. apprecia le lr.tervai betwee:. the twc The f:r
sii ply the avoidar :e of delay. Such separatiox of tr:-
alnost always slows the progress of the action.
IV — 28

The second reason for avoidance of such separation of
trial is the avoidance of any ustification for or encouragerer.
of separation of discovery, wi ich in the opinion of the Ir.stit e
should, in most cases, be avoided.
2. Separation of Discovery
Separation of discovery proceedings, like separatior c.f
trial, lies in the sound discretion of the trial courts. Ir
a large number of cases, rulings have beers made on the
postponement of discovery as to damages until after a fir. i-
of liability. 20/ Postponement of discovery as to damages is
frequent in patent, copyright and trademark infringement
actions. 21/ for example.
How likely is separation of discovery in enforcemer.t
actions, if either party seeks it? The discretionary na: -e
of the trial court’s ruling renders any answer only an
guess. The Institute’s guess is that it should be deniez r.
most cases, in part because of the overlapping of the co i a .:e-
issue-related and penalty—issue—related facts and documer :s.
What should be the general policy of the Ager 4 cy’s a rr. ys
is, in the opinion of the Institute, much more readily ar.swera e.
The Agency should generally oppose any effort by a defenda
or suggestion by the court itself that discovery be sepa ate±.
The advantages to the Agency of early discovery intc
the per alty aspects of the action have been discussed under
Part III of this M norandum. The ability and readiness of
Agency attorneys to pursue such early discovery is assuTne ;
IV — 29

ability means of course , a ong other things, availability of
the necessary resources of legal and other manpower.
Such early discovery into penalty matters may, of
course, be trying. There is now being litigated the matter
of the extent to which a defendant may probe into the
papers, meetings and deliberations of the Penalty Policy
Panel. The sheer breadth of interrogatories addressed to
Penalty Policy issues may appear to be end perhaps actual1
be staggering. In the opinion of the lr.stitute, however,
although in particular cases the defendants’ res ,urces,
primarily the money to pay the costs of platoor.s of a tcr-.e
fror the most expensive and prestigious la firms, ma ’ see—
overpowerinc, the Agency generally has more to gain thar. tc
lose in discovery into the Penalty Policy issues as earl: i:.
the action and as inter.sively as possible. Properly dra-
notices to produce arid/or written iriterrogatories, serves
perhaps simultaneously with the commencemer.t of ar. enfor:e-
merit action, should make clear to defendants and to the
Court the public’s interest in preventing and per.alizir.c
delayed corn:liance. A defendant’s recalcitrance arid effcrr
at avoiding or postponing compliance, may be excs d.
the disclosure of facts brought out by compete - .t ar d :c:-:_
discovery; claims of cripplinc costs threater.ir
or other excuses for non-compliance, ofter. turn out tc
avoidance of costs or simply corporate inertia. The exp .r
of defendants’ stonewalling may go far toward favorable
resolution of all issues.
IV — 30

3. The Mean! of Trial of the Penalty Issues
The litigation of the penalty issues, e.g., the several
factors involved in the Policy, is highly technical. Ii-.
other types of cases in which the issues and factors are
highly technical and in which most of the proof is documentary
and involves differing conclusions of fact,rather thar. differe .t
perceptions of evidentiary fact, the courts have employed a
variety of techniques to avoid the time wasting process of
court trial by live testimony. Those techniques include:
1. The substitution of deposition testimony and
interrogatories for trial testimony;
2. The determination of issues, as far as poss tie,
by summary judgment or partial summary judg ent;
3. The thorough airing of issues in pre—trial
hearings and conferences; -
4. The reguireTl%erlt that evidence and argument be
set out first in detailed trial memoranda and other writte:
submissions and that evidentiary hearings with live test.rc y
be eliminated or reduced to a minimum.
5. The reference of particular issues or matterE
or of the whole penalty matter to masters.
In the opinion of the author, the courts are likeiy
to do the same with respect to penalty issues and Agency
attorneys should encourage use of such techniques, for several
rea soflB:
1. Trial time is limited and the actions may
proceed to judgment more expeditOuslY.
2. The testimonY and documentary proof can be
marshalled more clearly arid effectively.
I V — 31

3. The need for an attorney or attorneys w t!
intensive experience in examination and cross-exar- r.a. . c/
witnesses on trials is reduced.
4. The convenience of witnesses, particular; -.’
experts, can be better served and travel and other expe.s .:
5. The court’s administrative burdens are ease:.
6. The expertise of Agency attorneys, who are
presu ablv more expert in the substar.ti ’e and te:hnical
aspects of the cases than Justice Department tcrne ’ s,
be better utilized.
Less prejudice results fro- turr.cver cf
perscr.nel . ith:r. the Ager.c, a frecuent probler ii-. most
goverr.mer.tal agency litigazic r..
S. The pre ration of expert testirncr,v is less
On the other han use of these technicues, arc s :
references to masters, may tend to stall the case in o:er.”
protracted or bureaucraticaHy conducted rc:eed:ncs.
de:err ar .inc factors wall, of course, usually be : ‘ .e
of the case and, re impcrtant ; ’ , the v ews and w:r .:: -
styles of the jud es and other personal taes
Whatever the particular practices of tne C ’cur: are,
discovery with respect tc the per.alt” issues shc ld ir:;...:
interrogatories under Rule 26(b) (4), addressed to the pe s
issues and applications to take the testirnor 1 ’ of defer.da-
experts on penalty issues. Consideration should be give’
I V 32

to attempting to stipulate, as a matter of course, for the
taking by each party of the depositions of the adverse
party’s experts on matters relating to the penalty issues..
Also at an early point in the action the court should be
asked to consider and indicate its views or make ruling up
the manner in which the penalty issues are to be heard.
Consideration should also be given to applying for or seek: c
agreement for the appointment of a master, pursuant to Rule
5 , Fed.R.Civ.P.
There is perhaps some conflict between the recor er.d - .c:.
that separation of trial generally be resisted (in part because
the prevention of separation of discovery is deemed so impcr a )
and the recor u endation that serious consideration be given tc use
of one or more substitutes for the full live—testirnor.y tr .a. cf
penalty issues. If the means of determination of the Pena:
issues is to be in any respect different from the means cf e-
termination of the compliance issues there must be sone se: i--
tion. The ar.swer, the author believes, is in avoid:nc an”
substantial interval of time between the trial of the : se:s
of issues. The hearing on and argurner.t of the penalty iss..e
should proceed ixrm ediately after the determination that tnere 1 as
been non-compliance. The procedure may, of course, be se c .
in the pretrial order.
IV — 33

The foregoing analysis of some of the principal proce r 1
and tactical problems in the enforcement actionS to which thiE
training program is addressed constitutes part of the materia€
for Phase 2 materials of the program. The author aaawnes
that this }1emorandUiT will be read closely by all of the a torr.eyE
attending the program, ar d hopes that there will be a th c .
discussion of the matters considered, which may, of coarse,
include different views based upon other analyses and upc :
the actual experience of a number of attorneys actively
engaged in the actions.
I v — 34

i. This memorandum was written by David Sive, a member of
the firm Winer, Neuburger & Sive, 425 Park Avenue, New
York, New York (referred to as “author”). It Was prepared
with the assistance of the Environmental Law Institute.
2. See Kennedy v. Mendoza — Martinez , 372 U.S. 1 4, 168-6
(1963), in which the Supreme Court enunciated several
.factors to be considered in determining whether a penalty
provision is civil or criminal: “Whether the sanct1c r.
involves an affirmative disability or restraint, whetner
it has historically been regarded as a punishment, whet.
it comes into play only on a finding of scier,ter , whe: .e-
its operation will, promote the traditional airs of
punishment — retribution and deterrence, whether the
behavior to which it applies is already a crime, whether
an alternative purpose to which it may rationally be
connected is assignable for it, and whether it appear!
excessive in relation to the alternative purpose ass n :. . .“
3. The trial in civil enforcement actions may, of course, r
separated into trial of the violation and compliance
issues, and if such violations are found, later tria
the penalty issues. Such separation of trial as we:: a
separation of discovery proceedings is discussed a. a
later point in this Men orandum.
4. 5 U.S.C. 5S551—559 and 701—706.
5. SEC v. Chenery Corp., 332 U.S. 194, 209 (1947).
6. Id.
7. Policy Preamble.
S. Policy Preamble.
9. SS 113(b).
10. SS 309(d)
11. SEC v. Chenery Corp., s’upra , fn. 5.
12. United States v. ITT Continental Baking Co., 420 U.S.
upra , at 231, 23rEUn.ited States V. Pap craft Corp..
540 F.2d 131, 141 (C.A. 3 1976); United States
Swingline , Inc., supra , 371 F.Supp. 42.
IV — 35

13. In one technical ser se, if the penalty is mc.tic n ’ .
only in the prayer for relief, ñt is not part of t1. ’
clair for relief for purposes of deterrar.ing a mcti :
under Rule 12(b) Fed.R.Civ.P. to disr:ss or. the gr ..: -.
that no clairr for relief is stated.
14. See, Sinclair Refining Co. v. 3en ins Petroleum Frc ce!
Co. , 289 U.S. 689, 1933.
1 . The assuTnptior. is that if issues are s’ ecifacal
courts wi 1 be less 1 kely to delay di c :er” an o
issues, by protectivE orders or otherwise.
. ua€ 33 red.R.cav. P.
i . Un ted States v. 3. . i1iia s Co., Inc., 4 5 F.2d 4i . ,
436 (2d Cir. 1974). In Willaar it s held that the-i
s - ou1d generally be sore evider.tiar ’ hearing with res:e-
to the a c.ur t of the penalty.
16. 5 3. Moore, Federal Practice, I42.03 (1979).
380 Fed.Sup.1l CD. Minn. 1974), Reversed in part or. ot er
grounds, Sub.nor. Reserve Mmmc Co. v. EPA . 514 F.2d
8th Cir. 19 5.
2C. See 4 3. Moore, Federal Practice, 126.5615),
•2E..70 2), 1979.
2i. 4 :. Moore, Federal Practice, 126.5615) , 19 .

A. Minutes of Depositions
Rule 32 Fed. R. Civ. P. governs the use of depositions
‘ [ a)t the trial or upon the hearing of a motion or an interlocu-
tory proceeding . . . including the hearing of a preliminary
injunction motion. The rule is discussed in Ch. VI of the Phase 1
To place in evidence any portion of the minutes of a depo-
sition, the procedure is the sar e whether the deposition has een
taken upon oral examination or written ir.terrogatories. In the
absence of a more suxr ary procedure directed by the court, or
agreed to by the parties and permitted by the Court, the minutes
must be read, question by question and answer by. answer, with .he
opportunity for the making of objections to admissibility ur.de:
the rules of evidence and for the court to rule on such objectior.E
The attorney placing the minutes in evidence will identif:
the deposition by furnishing the name of the person deposed and thE
date and place of the examination, indicating the page nurr.bers fror
which the readings are to be taken. It is best to furnish beforeha. i
to both the court and other attorneys identification of the page anc
line numbers froir which the readings will be made. The Court should
b furnished with a copy of the deposition for it to follow.
The most effective way to proceed with the reading is for
the attorney who is examining the witness to ask the questions and
for an associate to sit on the witness stand and answer them. There
v- i

can be a certain amount of expressiveness by both the questioner
arid the answerer to make the presentation credible and interesting.
In the pages which follow there are set forth extracts
from the minutes of a recent trial consisting of readings of por-
tions of the minutes of a deposition on oral examination and
related colloquy of the attorneys arid instructions and rulings
of the court. The trial was before a jury and it was necessary
for the judge presiding to explain the nature of the deposition
and reading process to the jury.

— plaintiff — redirect 291
Next witness.
MR. SIVE: The next witness, your Honor,
is not a live witness but reading fror de oSi-
tions. I think for the purpose of doing that,
with the Court’s pern ission, I will ask Mr.
Jones to sit at the witness stand, and I will
pose the questions and he will read the answers.
I think we have furnished or will furnish
to your Honor a copy of the deposition fror which
we are reading. We will indicate the page and
THt COURT: All right, you may do so.
Whose exarianation before trial is this?
MR. SIVE: It will be Mr.
Direct examination by Mr. Sive. Page 3,
Line 6.
Does your Honor want to explain this at

- EBT 292
all or is it sufficient just to go right into
the reading?
THE COURT: This is no different than
the examination of Mr. before trial in
the sense that the rulings of the Court and
of the Civil Practice Act, of the C.P.L.,
rather, provide for the taking of depositions
of the various people before tr .a1, and this
is done pursuant to that the witness is sworn
and the testimony has the same effect as if
given in the courtroom.
Go ahead, sir.
MR. SIVC: Commencing at Page 3, Line 6.
The examination by David Sive,
“Quest ion:”
And the ans ’ers are by Mr.
which Mr. Jones will read.
“Question: Sir, you have given to me
two pages which reflect the income and expenses
for the fiscal years ended December 1, 1973 and
December 1, 1974, and those as far as you know
are the r ost accurate figures that there are,
and those are the figures which are reflected

— for plaintiff — EBT 293
in the tax returns and other financial docur ents,
is that right?
“Answer: Yes.”
TI f f COURT: Keep your voice up, sir.
“Question: What are your present duties,
sir, with
“Answer: I run
“( uestion: }!ow long have you been doing
“Answer: Since I joined the cowpany.
“Question: When did you join the company?
“Answer: Approximately the first week
of December.
Another excerpt from the same trial demonstrates
the technique further:

c — 3 p 9 ntiff - cross 222
Q That is why I asked for a yes-or-no. You do
have a recollection of himtelling you, one way or the
other, at that meeting that he was going to decide what
you were going to do, telling you that?
.Again , he didn’t —— I don’t think —— I can’t recol—
lect exactly how he told me that he was going to tell me
what to do in so many words, the way you are asking me.
Q In ary form of words.
A Yes, I said, in about four different ways.
Q What I am trying to get at. Mr. C • is
what was the conversation between you and Mr. M
and Mr. F • what they actually said to you -- i wasn’t
there -- and what it was that you perceived or felt, or
thought was going to happen. I want to make this

C — p.Laintiff — cross
direction, that is the only point of tnis line of ques-
tion. Do you recall what they said to you or not?
MR. SIVE: Objection.
T} COURT: Sustained. It has been ansvered
Beveral times.
Go on. please.
Q Can you tell me. then, sir, why, in October
1975, when you recounted this conversation, it nowhere
says N told me that he was going to tell me what
to do?
MR. SIVE: Objection.
T1 COURT: Overruled.
I explained that. I don’t remember saying the con-
versation was that, as I recollect on the deposition,
that £ ‘i said there would be plenty of work for me
to do and that it would be done under his supervision.
or something to this effect. This I remember.
Q Just to put it to you fairly, so you have it
in front of you, what you said at the end of an answer
at Page 168: “M assured me that there would be
plenty for me to do, and he also made it very clear that
he was going to be the boss of the operation, made it
very clear.”

_ 3 Pq lfl lff - cross 224
You were then asked the question “What did he say?’
You answered, “Exactly what did he say?
Q Yes, as best you recall.
“A He said that we were going to agree, and
we were going to grow, and we were going to be a big
company, and there would be room for both of us in
the operation.”
You were then asked -- and I read this before --
“Have you told us the full conversation?” And you dis-
cussed the mint ,about liz. F asking you to introduce
Marrnareck, and you said you didn’t want to do that. Then
- on Page 169:
“Was anything said at that meeting about what
your duties would be if you remained?
“A No. not at that meeting.”
Did you have that testimony in mind?
A it is so, yes.
Q Now, I’m trying to establish, whatever way it
is, and it hard in this case, as to whatever was said to
you by these people that you recall and what your impres-
sion or findings were, whatever, to bring that impression
to you. Now, in this context, can you tell me why you
didn’t recall, in 1974, that he said that to you —- now,

C — plaintiff — cross 225
let me make it clear, before you take it away —— why you
said that he said to you, I’m going to tell you what
to do?
MR. SIVE: Objection.
THE COURT: It will be sustained.
The purpose of permitting an examiner to ask
about testimony previously given by a witness is to
determine whether there was any cenflict between his
earlier testimony and his testimony on the stand, and
that is a part of the ultimate function you serve
in the case, to determine whether or not there is any
inconsistency, or whether the memory is inconsistent,
or whether there was an explanation given or not.
or within that kind of thing. Your function will be
to weigh the testimony you have heard, both as
recited from his earlier deposition and now, to
determine whether there was any inconsistency.
All right, go ahead. Anything else?
MR. G. .: Yes.
o I take you now to the second meeting with
., which was the third of the three —— I’m
sorry. I would like to take you back to the meeting we
just talked about. There was some other testimony.
V -6

c — p aintiff — cross 226
Do you recall being asked,with respect to the meeting
between you, Mr. M • and Mr. F .. the following
questions and making the following answers:
“Q Did either one or both or them, referring to
Mr. F and Mr. M • tel]. you that it was
intended what he, N , would do when he came
into the business specifically?
“A No. not at that meeting . nor that I recol-
lect, anyhow nos. I’d like to —-S
Do you recall giving that testimony, sir, in ].974?
A I guess I must have if it is there. i certainly
don’t deny it. Yes.
Q Now, the next meeting was with iii. M
and you alone in the next week?
A Right.
Q And you explained that yesterday to Mr. Sive,
did you not, on the stand? Do you recall testimony yester-
day about that meeting?
MR. SIVE: You are asking him if he recalls
what he said? You mean each word? And can you ask
him if he recollects what it was that was discussed?
That was part of my direct t. stimony.
Q I would like to direct your attention to the
V 7

C — p aintiff — cross 227
testimony you gave as part of direct examination.
MR. SIVE: Excuse me. Just a moment. Don’t
you direct the witness’s testimony to them.
T} COURT: Oh, please, Counsel. Of course he
can. All he is asking him is to think back.
Go ahead.
0 Would you think back to that?
A Yes.
Q Do you recall saying yesterday that I•ir. H-
came into your office at L & H and said —— I am
quoting you, and the jury will remember whether or not
I am —- that he would be coming in to take over the cor-
any very shortly? Do you remember saying that yesterday?
A Yes.
Q Do you remember saying that M told you
at that time he would like you to stay?
A Yes.
Q And do you remember testifying that he was
going to strip you of the domestic responsibility and
leaving you to handle import under his direction?
A Yes.
Q Did you say all those things?
A Now, at the meeting, again. I cannot answer yes or

c — p aintiff — cross 228
no. I cannot remember the exact words that were used at
that meeting. It was a long time ago.
0 I understand that.
Also, I was under tremendous emotionzl stress because
of whatwas happening to me. I rem ernber very clearly 1
however 1 that Mr. M did come to the office, that
he did tell me that he was going to come up and take over
the company.
Q Take over the company?
A Yes. He was going to come in and run the company.
He had already in his own mind determined that I was not
going to handle the domestic side of the business, that
I would only do the import side of the business, that i
would be under his direction sr ecifically.
Q nd what did you say to him?
A I don’t think I made any intelligible response. He
asked me what I was going to do, and 1 said I hadn’t made
up my mind what I am going to do.
-- Q Do you recall him saying, I am coming in next
week to take over the business?
A Something to that effect —— I will come in. He will
take over the business, he will run the business end,
Borne control of the operation, something to that effect.

C — pJ.a3.ntlff — cross 229
Q And he didn’t actually mentio:i —- just to clear
it up -- did he say he was going to strip you of the
domestic operation? Were those the words he used?
A I don’t recall that he used those exact words,
“strip inc.” No, I do not recall that. He may have
said it. It may have been that authority would no longer
be mine.
MR. SIVE: Your Hon r, may I make a legal point?
Mr. G read in evidence an answer by Mr. C
from the deposition, including an answer where
Mr. C - said on the deposition he made it clear,
having read that into evidence and made that evi-
dence, I think he may not now object to the same
kind of testimony for his examination.
MR. G. : Your Honor.may I respond to
that, please?
Tl E COURT: Yes.
MR. G : I read him the statement on
page 169 of the deposition which was at the tag end
of a longer answer and which Mr. C - did, in fact,
say, and he also made it very clear that he was going
to be the boss of the operation.
The question was read in, your Honor, for the
V — 10

C — plaintiff — cross 230
purpose of giving form to the following question 9
which was, “What did he say?’ To which the answer
was, “Exactly what did he say?
What is the best you recall?”
And the answer to that, your Honor, on which I assume
it is inference that he made, it is clear that he
was go1 ” to run the company, was based. But
that was the question and answer. “tie said we were
going to grow and we were going to be a big cor pany
and-there would be roornfor both of us in the
That is what I am trying to get straight, be-
tween what Mr. C. perception. or fears, or
knowledge of the situation, and what he was told.
think the jury has to know what he was told.
T} COURT: Well, it does not have to be told
the precise language. If the me nory of the mar. is
at fault one way or the other, as with all people.
and one is not necessarily required to recall precise
language if he can recall the substance of it, and
it will simply be for the jury to evaluate the credi-
bility of the witness in making this presentation;
in other words, is he telling the truth or is he not

-)p nintiff — cross 231
telling the truth when he is referring to the sub-
stance of the conversation as he can best recall it.
Whether or not he can recall precisely will be for
you to determine as to the extent that this may affect
his testimony at the present time. And it is all a
process of evaluating the credibility of the witness.
MR. G : Your Honor, my only point was
that the testimony —— of course he can testify as to
subs tance.
T W COURT: Of ce . rse he can, Mr. G
MR. G. : But I find it interesting that
he can’t recall it then, but he recalls it vividly now...
THE COURT: Well, that’s a rn*tter for the jury —-
to evaluate.
MR. G : 03ay.
Q Now, returning to the meeting between you and
Mr. N which we just talked about, I direct your
attention to the way you testified about that meeting in
.1974. 1970.
Do you recall being asked the following question and
giving the following answer at Line 20:
“Was there ——“
V — 12

c — plaintiff — cross 232
THE COURT: Question.
Q (Reading):
eQ Was there any subsequent meeting between
you and Mr. F or Mr. N or Mr. P
S1J There was a subsequent meeting between
Mr. M and myself the following week, the week
of the 3rd. Deeern er 3rd.”
MR. SIVE: December 3rd was a Monday?
T} WI ESS: Yes. That week.
Q (Reading): -
“A (continuing) Mr. N came to L &
H --“
MR. G : I’m sorry, your Honor. Can we
have a side bar conference for a second?
(Discussion at the bench.)
Q (Reading):
“A Mr. N came to the L & H
office. I had a meeting with him at my office at
L & H . At that meeting he told me that the
way he envisioned the operation, I would handle the
import 9ection of the company and he would handle
the domestic operation as he conceived it. He also

C — p1a in iff — cross 233
made it clear that it would be under his general
“Q When you say ‘made it clear.’ what did he
say, as best you recall?
‘ Me asked me what I was going to do, what
my plans were, whether I was going to stay or leave.
.7%nd he said he wanted me to stay and work under these
conditions outlined, and if I was going to stay and
collect the monies that might due me and not really
work, he was going to make my life raiserable.
“Q What did you say in response to this, if
‘ Nothing. I was noncommittal, and I said,
I don’t know what I am going to do.”
Now, can you tell us why, or what date in 1978, yot
were able to remember vividly that Mr. M came in
and said, in substance, he is going to come and take over
the company next week, and you didn’t recall that, in
substance, in 1974?
MR. SIVE: Your Honor, I object. The question
contains Mr. G derstanding or his argu-
mentative conclusion as to what, in substance, was
said yesterday and early this morning posed against
V — 14

C — plaintiff — cross 234
his conclusion as to what, in substance, was said
at the time of the deposition. I would submit that
it is improper.
THE COURT; I will allow the question. I will
s imply say to the jury that of course it is not the
conclusion of either counsel as to whether something
is consistent or inconsistent;.,it will be your con—
elusion as you analyze the testimony to determine
whether-there is any conflicting testimony said at
the other time and whether the witn ss i saying it
Go ahead, you may answer. Overruled.
A Could you please repeat the question?
o I will rephrase it.
Can you tell us today how it was in 1974 you did not
or were not able to recall Mr. M saying to you at
that meeting in 1973 ——
Excuse me. What meeting?
o My question is how you were able to recall
yesterday and today that Mr. M said at that meet-
ing that he. 14 , would come in to take over the
company and that he was going to strip you of the domestic
side, and you didn’t apparently —— didn’t recall the
V — 15

c — p a Ptiff - cross 235
testimony -- didn’t recall your saying that in 1974?
A I don’t understand.
MR. SIVE: Your Honor. I object.
THE COURT: Same ruling. Answer, please.
A (Continuing) I don’t see where there was any testimony
the way you read it back that I said. I don’t remember
and I couldn’t answer the queztiQn.
0 I will put the testimony before you.
A Please.
Q (Reading):
“Q When you say ‘made it clear,’ what did
he say, as best you recall?
“A He asked me what I was going to do —-‘
THE WITNESS: May I interrupt you?
Q I want to put this to you —-
A No, I would say i can’t answer the question the way
you read it back to me. I would say apparently —- I
can’t answer the question. I don’t know. That’s the way
it was mentioned to me. It looks like it’s an oversight
on my part. Or maybe I didn’t answer the question. I
certainly could have answered the question if Counsel
said -— I don’t know. I could have answered it ——
Q You didn’t understand the following question.
V — 16

C. — plaintiff — cross 236
A Subsequently I didn’t understand.
Q I’m sorry.
A You see, it just appears to proceed from the reading
of the testimony I did only answer the question as it was
posed to me, and why I don’t, i really don’t’know. If
Counsel had asked me or told me I hadn’t answered the
question, it could have been answered.t
Q Then you sent your resignation letter —-
MR. SIVE: Excuse me, your Honor. This is a
conclusion and a name given to a letter which speaks
for itself. It is objectionable.
- MR. -G. - — -—I’-wi-thdraw--the question, then.
Q Then you sent this which is marked Plaintiff’s
Exhibit 6 in evidence to Mr. F , did you not?
A Well, it wasn’t then, it wasn’t immediately following
it. I did send that letter to Mr. F , yes, I did.
Q The meeting was during the week of December 3rd?
A That is correct. I remember that was the letter
dated December 5th.
T} COURT: An exhibit now in evidence?
MR. G .: Plaintiff’s Exhibit 6 in evidence.
T1 COURT: Go ahead.
Q Then you addressed that letter to the board
V — 17

B. Interrogatories and Answers thereto under
Rule 33 Fed. R. Civ. P.
In the absence of a different treatment in a pre-
trial or other order of the court, the process is essentially
the same as for the placing into evidence of minutes of
depositions. The questions and answers should be read with
opportunity for objection and ruling by the court upon the
adrrissib .lity in evidence of each question and answer.
In cases without a jury, and particularly in cases
in which the facts may be complex and much of the proof in
documents, the court may require or encourage some procedure
which saves the time of reading in open court of each question
and each answer. Such other procedure may be in a pre-trial
order. A procedure frequently employed is to mark the
interrogatories and answers as an exhibit with some memoranth r
setting forth any rulings as to the admissibility into evidence
of any particular questions and answers.

C. Admissions under Rule 36 Fed, R. Civ , P.
The rules of evidence apply to introduction into
evidence of admissions under Rule 36, as well as to minutes
of depositions and to interrogatories and answers thereto
under Rule 33. Because the rules of evidence apply, the
best procedure for placing Rule 36 admissions in evidence
is to have the admissions •read into evidence in the same .
manner as depositions. Frequently, the Rule 3. admissions
will be set forth in a pre-tria]. order and render this
process unnecessary. -
The court may also suggest at the trial, or the
parties stipulate, that the admissions be made part of the
trial record, subject to any argument and ruling by the
court upon the admissibility in evidence of any particular
matters. The request for admissions and admissions may
also be marked as an exhibit, in the same manner as interroga-
tories and answers thereto.
The process may also consist of a simple statement
as follows:
Mr. P. (Attorney for Plaintiff):
Your Honor, the defendant in this case
has admitted the following in and by
responses to requests for admissions
under Rule 36:
(Read admissions, in such a manner that
objection to the admissibility in
evidence of each Rule 36 admission may
be made and the court may rule upon each
v- 19

By Daniel Riesel
(a) Introduction :
Perhaps nothing betrays the inexperience of a trial
attorney as much as the awkward handling of documents and
exhibits. Moreover, the awkward a 7 d slow handling of ex?.ita s
ofte:. inspires adversaries to fire off volleys of frivolous
objections which in the heat of trial often hit their mark
and thus cause the exclusion of an exhibit. The use of
prernarked exhibits and a demonstrated ease in handling ther
will speed the trial and add to the general presentation of
the proponent’s case.
Where exhibits are not prernarked and adr ssior. .s
contested, the drill is:
(1) Request clerk to mark exhibit for
(ii) Show exhil it to adversary and court:
(iii) Show witness exhibit and ask
questions for foundation;
(iv) Offer exhibit: e.g., (“I offer
Exhibit 8”...);
(v) Opponent submits witness to
voidire where appropriate;
(b) Premarked Exhibits :
Most trial courts will require, if not permit, all
exhibits to be marked for identification prior to the cor mence-

inent of trial. The practice varies from district to district
but a not unusual procedure is for plaintiff’s exhibits to be
markec in a chronological series and for defendant’s exhibits
to be marked in an alphabetical series. The variation on
this is when the Governmental plaintiff labels its exhibits
“Government’s Exhibit i,’, •..)
Premarking of exhibits isdiscussed in the section
dealing with pretrial orders. A pretrial order should
cor 4 tair. a list of exhibits intended to be offered by either side.
Certain courts reguire the parties to identify exhibits to
which there is noobject .On asto their authenticity. The
parties should attempt to work out stipulations as to which
exhibits there are no objections to, or to which exhibits
there are no objectionS to authenticity. In the latter case, th
parties may stipulate to authenticity but argue as to relevancy
and materiality.
(C) Documents Not Placed In Evidence :
The normal procedure is that once a document is received
in evidence it may be read or given to the trier of facts. Or.
* The usual manner is to label exhibits for identification
as follows:
“Plaintiff’s Exhibit ‘l” for Id.”
The court clerk will usually have a supply of exhibit
labels available.

the other hand, certain documents will only be marked for
identification (thus making them part of the record) but not
placed in evidence. These documents consist of documer.ts
marked for identification and offered in evidence but
rejected by the trial court, and documents used to refresh
recollection.. The Federal Rules of Evidence do not cor.taar.
a specific provision permitting the use of a written state er.t
to refresh the witnesses’ recollection. However, Rule £12,
Fed.R.EVid. “Writing Used To Refresh Memory” specifically
provides for procedures when such a writing is used and
implicit in Rule 612, is the codification of the practice
that when a witnesses’ memory fails he may use a document tO
refresh his recollection.
In this respect, any documer.t can be used to etresr a
witr 4 esses’ recollection. That document need not be a do: nent
offered by the witness. Thus, when a witness indicates that
his memory has failed, the following procedure may be used:
Q. Do you recall how many samples were taken?
A. No, I do not.
Examiner: Please mark this sheet of paper dated
December 12, 1979 as Government’s
Exhibit “1” for identification.
(Document marked by court clerk and copies of the
marked exhibit are handed to adversary and where
custom provides to the court).
V 13

Q. Professor, after reading exhibit “2’, is your
recollection refreshed?
A. Yes, it is.
Q. How many samples did you take on the date that
you previously referred to?
A. Thirty-two.
Rule 612 Fed.R.Evid. essentially provides-protection
for the opponent of the refreshed testimony. Thus, Rule ,6l2
specifically provides:
“Except as otherwise provided in criminal
proceedings by section 3500 of title 18,
United States Code, if a witness uses a
writing to refresh his rnemory for the purpose
of testifying, either ——
(1) while testifying, or
(2) before testifying, if the court in its
discretion determines it is necessary in the
interests of justice, an adverse party is
entitled to have the writing produced at the
hearing, to inspect it, to cross—examine the
witness thereon, and to introduce in evidence
those portions which relate to the testirnor.y
of the witness. If it is claimed that the
writing contains matters not related to the
subject matter of the testimony, the court
shall examine the writing in cariera, excise
any portions not so related, and order
delivery of the remainder to the party entitled
thereto. Any portion withheld over objections
shall be preserved and made available to the
appellate court in the event of an appeal.
If a writing is not produced or delivered
pursuant to order under this rule, the court
shall make any order justice requires, except
that in criminal cases when the prosecution
elects not to comply, the order shall be one
striking the testimony or, if the court in
rhis] its discretion determines that the
interests of justice so require, declaring a

Accordingly, the use of a document to orepare the
witness to testify, or during the actual trial, to refresh
his recollection may actually be used against the proponent
of the testimony. Thus, where the document contains damaging
statements and is used to refresh recollections of witnesses,
it may be used on cross-examinatiOn and even introduced in
evidence by the opponent of the testimony
(d) Recollection Recorded :
Rule 803 Fed.R.Evid. specifically provides that
recorded recollection is not excluded by the hearsay rule
even though the declarant is available as a witness. Thus,
Rule 803(5) states:
“(5) Recorded Recollection. - A memorandum
or matter about which a
witness once had knowledge but now has in-
sufficient recollection tO enable him to
testify fully and accurately, shown to have
been made or adopted by the witness when the
matter was fresh in his memory and to reflect
that knowledge correctly. If admitted the
memorandum or record may be read into evidence
but may not itself be received as an exhibit
unless offered by an adverse party.”
An interesting aspect of recorded recollectiOr., is
that the rule specifically provides that “if admitted [ ir.tc
evidence) the memorandum or record may be read into evidence
but may not itself be received as an exhibit unless offered
by an adverse party.” A similar provision is made for the
use of learned treatises. See Rule 803(18) Fed.R.Evid.

The use of a writing for the purposes of eliciting data
through the device of “past recollection recorded” requires
a more elaborate foundation than using the writing to e1ic t
testimony under the rubric of “recollection refreshed”.
The following is an example of such a foundation:
Assume the government has called an engineer
who has inspected an industrial plant but has no
actual recollection of what he saw at the plant.
Q. I direct your attention to 7une 11, 1978 and I
ask if you had occasion to visit the Adamant
Steel plant?
A. Yes,I did.
Q. What was your purpose in visiting that plant?
A. It was my purpose to conduct a routine inspection
of the plant’s wastewater treatment facilities and
to take certain samples.
0. Do you recall what you actually did wher. you
visited the plant a year ago?
A. Yes, I carried out my inspection.
Q. Do you recall what you ascertained if anything
during the course of your inspection?
A. No, I cannot recall.
0. Did you have any way of telling what you actually
did when you visited the plant?
A. Yes, I completed a report immediately after I
visited the plant.

Q. Have you reviewed that report?
A. Yes, I reviewed it with you several weeks ago
and I reviewed it just before coming on the star. .
Q. After reviewing that report, did you have an
independent recollection of the specifics of your
A. No, only what I read in the report.
Q. After looking at the report, is your recollection
A. No, it is not.
Q. Would you tell us if there are any established pro-
cedures for making out a report such as you have
just described.
A. Yes, there is.
Q. Please describe these procedures.
A. Field notes are made at the time we complete ea -.
part of our inspection. Immediately after retu:r.:r.g
to our office we use those notes to corrpile a -cre
detailed report.
Q. I show you an exhibit which we have marked as aoverr.-
ment’s Exhibit “5” for identification and I ask you
whether you have ever seen this document before.
A. Yes, I have.
Q. Would you please tell us what they are.
A. This is the report that I made at the time I returned
from the Adamant Steel Plant.
Q. How are you able to identify this document?
A. I recognize the style of writing and my initials

appear on the second and last page of the report.
Q. At what point after the completion of your inspectiOn
did you draft this report?
A. I finished the inspection at 5:00 on ThursdaY and I
drafted the report on the following morning.
Q. At the time that you made this report was the inforr a
tion fresh and clear in your mind?
A. Yes, it was.
Q. And did you accurately r ecord the events and data
that you obtained at the plant on this report?
A. Yes, I did.
Q. - Is this report in the same condition no as it was
when you submitted it to the EPA?
A. Yes, it is.
Exairiner Your Honor, I offer government’s exhibit 5”
for identification. i believe we estab1 .shE
an adequate foundation under Rule 803(5) and I
ask your perinissiCn if I may read it ir.tc
(e) IntroduCtiofl Of Records :
The provisions of Federal Rules of Evidence dealing
- with records are: 803(6), business entries; 803(8); 1005,
public recordS; 803(9), vital statistics. Perhaps the most
commonly used of which are business entries or “records of
v’- 8

regularly conducted activities” categorized as an excep ior
to the hearsay rule. See Rule 803(6) Fed.R.Evid.
Assuming the document’s materiality and relevancy, the
offerer of these documents must develop a foundation derror.—
strating that the documents fall within the particular rule
and, in addition, that the documents are authentic.
(i) Records of regularly conducted activity (business
Rule 803(6) Fed.R.Evid. prOVide5:
“Records of regularly conducted activity. A
- mernorandusn, report, record, or data compilations
in any form, of acts, events, conditions,
opinions or diagnoses, made at or near the
time by, or from information transmitted by,
a person with knowledge, if kept in the
course of a regularly conducted business
activity, and if it was the regular practice
of that business activity to make the inemoranth r,
report, record, or data compilation, all as
shown by the testimony of the custodian or
other qualified witness, unless the source of
information or the method or circumstances of
preparation indicate lack of trustworthiness.
The term “business” as used in this para rap
includes business, institution, assoclatiOr.,
profession, occupation, and calling of every
kind, whether or not conducted for profit.”
Authentication as well as the other aspects of the founda—
tion can generally be developed by the custodian of the records.
The witness should be prepared to indicate that the records
n arked for identification are really the records in question;
that is, he should be able to authenticate the records. This
can be relatively easy when the custodian of the records is

called to the stand.*
An example of laying the proper foundation is as follows:
Q. Are you employed by the United States?
A. Yes, I am.
Q. In what capacity are you employed?
A. I am an engineering assistant with the U.S.
Environmental Agency,- Region II, with offices
at 26 Federal Plaza in Manhattan.
Q. How long have you been so employed?
A. Approximately four years.
Q. In your áapaoity’aS an assistant engineer,
are you familiar with the records kept with
respect to carbon monoxide monitoring in the
ity o ! Y r)T oiith of 60th Street?
A. Yes, I am.
Q. I show you these three sheets of paper which
we have marked as Governlflerat’S Exhibit “5”,
and I ask you to identify them if you car ?
A. These sheets are the records kept by Regior.
II with respect to its monitoring of carbor.
monoxide at the intersection of Center and
Chamber Streets.
. Rule 1002 requires the original of “a writing, recording
of photograph” unless the rules or statutes provide otherwise.
See Rule 1003, Fed.R.Evid., dealing with the admissibility of
duplicates and Rule 1004, the exception to the so-called
best evidence rule.
VI —lO

Q. Who is responsible for keeping these records?
A. I am the custodian and I am responsible.
0. Are these records maintained in the regular
course of Region II’s business?
A. They are.
Q. Are the entries therein made in the regular
‘cours&of Region II’s.businesS?
A. They are.
Q. Are the entries contained in these records
regularly made at the tin e of their purported
occux rence, or shortly after the time of the
A. Yes they are.
Examiner: I offer in evidence Government’s
Exhibit “5” marked for identificatior..
(ii) Public records .
Rule 803(8) deals with public records and re cr:s
ar.d Rule 803(9) relates to the records of vital statis i:s.
“Public records and reports. Records
reports, statements, or data compilations,
in any form, of public offices or agencies,
setting forth (A) the activities of the office
or agency, or (B) matters observed pursuant
to duty imposed by law as to which matters
there was a duty to report. excluding, however,
in criminal cases matters observed by police
officers and other law cr.forceirient personnel
or (C) in civil actions and proceedings and
against the Government in criminal cases, factual
findings resulting from an investigation made
VI — 11

pursuant to authority granted by law, ur.less
the sources of information or other circumstances
indicate lack of trustworthiness.”
“Records of vital statistics. Records or
data compilations, in any form, of births, fetal
deaths, deaths, or marriages, if the report there-
of was made to a public office pursuant to require-
ments of law.”
Public records wij]., of course, have an important role
in many of the cases brought by the Government. The adva .tace
to using public records is thei ease of authentication. Th
requ re!Tent of authentication of public records and reports is
set out in Rule 901 (b) (7)
‘ RequireTnent of Auther:ticatior.Cr Identification.
(a) General provision. — The requirerner.t of
authentication or identification as a condition
precedent to adnissibility is satisfied by evi-
dence sufficient to support a finding that the
matter in question is what its proponent cláir .”
* * *
(7) Public records or reports.— Evidence that
a writing authorized by law to be recorded or
filed and in fact recorded or filed in a publi:
office, or a purported public record, report,
statement, or data compilation, in any forr , is
from the public office where items of this r.at re
are kept.
(8) Ancient documents or data compilatior.. -
Evidence that a document or data compilation, in
any form, (A) is in such condition as to create no
suspicion concerning its authenticity, (B) was in.
a place where it, if authentic, would likely be,
and (C) has been in existence 20 years or more
at the time it is offered.”
VI — 12

Public Documents Can Be “5e f_AuthentiCatiflg”,
See Rule 902:
“Extrinsic evidence of authenticity as a condition
precedent to admissibility is not required with
respect to the following:
(1) Domestic public documents under seal. - A
document bearing a seal purporting to be that of
the United States, or of any State, district,
Commonwealth, territory, or insular possession
thereof, or the Panama Canal Zone, or the Trust
Territory of the Pacific Islands, or of a politi-
cal subdivision, department, officer, or ager.cy
thereof, arid a signature purporting to be an
attestation or execution.
(2) Domestic’publiC documents not ur.der seal. —
A document purporting to bear the signature in his
official capacity of an officer or employee of any
entity included in paragraph (1) hereof, having no
seal, of a public officer having a seal and having
official duties in the district or political sub-
division of the officer or employee certifies under
seal that the signer has the official capacity ar-.d
that the signature is genuine....
(4) Certified copies of public records. - A
copy of an official record or report or entry
therein, or of a document authorized by law to be
recorded or filed and actually recorded or filed
in a public office, including data compilations
in any form, certified as correct by the custodian
or other person authorized to make the certification,
by certificate complying with paragraph (1) , (2) , or
(3) of this rule or complying with any Act of
Congress or rule prescribed by the Supreme Court
pursuant to statutory authority.
(5) Official publications. — Books, pa rphlets,
or other publications purporting to be issued by
public authority.
(6) Newspapers and periodicals. — Printed
materials purportint to be newspapers or periodicals.
(7) Trade inscriptions and the like. - In-
scriptions, signs, tags, or labels purporting to
have been affixed in the course of business and
indicating ownership, control, or origin....”
Rule 902, Fed.R.Evid. See also Rule 44 Fed.R.C1V.P.
A form of authenticatio Ts annexed hereto.
Vi — 13

(f) PhotzgraPhs, Maps, Diagrams and Models .
If a picture is worth 1,000 words, a photograph or
diagram must be worth 1,000 pages of transcript. Dernonstra-
tive evidence such as pictures or diagrams or models ofte .
make complex testimony more comprehensible to lay triers of
Photographs are covered in Rule- 802, Fed.R.EVid. There
is no requirement that the photographers lay the foundatior.
for the introduction of a photograph. However, the witneEs
must test .fy that the photograph is a fair and accurate repre-
sentative 6wha i r suma ) d i t ’s. A6cc dingly, a
foundation Tnay be developed as ‘follows:
Q. Have you inspected the outfall at the
Adarnant Steel Works?
A. Yes, I have.
Q. Would you describe the vantage point that
you had in observing that outfall?
A. I examined it from various different points
and was close enough to sketch it. I also
took water samples from it.
Q. I show you this photograph marked as Exhibit
“6” for identification and ask you whether this
is a fair and accurate representation of the
outfall at the Adamant Steel Works as it
existed on September 7th?
A. Yes, it is.
VI — 14

Q. When was the last time you took samples
from the Adamant Steel Works’ outfall?
A. On September 7, 1978.
Similar foundations can be used to authenticate sketches
in similar types of exhibits. However, where the photograph
or sketch is introduced to prove something more than a fair
representation of the subject the actual photographer or
draftsmar. should be called to the stand to testify as to
the method of making the exhibit and the conditions under
which it was made. Here the foundation should not only deal
with authenticity; that is, that the documents as to the
subject matter it seeks to depict, but sufficient technical
testimony must be adduced to show that the exhibit is dra
to scale, etc.
The series of foundation questions should include
questions eliciting the technical competence of the persor.
who produced the photograph or diagram. Thus, the four .da-
tior. for an engineering diagram might include the follow r,ç
Q. In your capacity as a government employee,
do you utilize any technical training?
A. Yes, I am a mechanical engineer.
Q. Would you tell us of your educational
and professional background?
VI — 15

. I am a 1961 graduate of Union College
having received a Bachelor of Science
degree in mechanical engineering and have
been employed as a mechanical engineer ever
since then.
Q. In the course of your duties as a mechanical
engineer, have you had an opportunity to
develop diagrams of industrial plants?
A. Yes, I have..
Q. I show you Exhibit “5” for identification and
-I ask. you if you can identify it.
A. Yes, I can. This is a diagram of the
Consolidated Engineering Company’s electrical
- generating plant at Storm King, New York.
Q. ?ho produced this diagram?
A. I made this diagram from my field
measurements at Storm King.
Q. Is there a scale to this diagram?
A. Yes, one inch equals forty feet.
0. Are the distances and directions or the
diagram true and correct? -
A. Yes, they are.
Q. Would you tell us what the square marked
“x” represents?
VI — 16

A. Yes, I was told to work out an area and
situate it on the diagram wherein a wet
scrubber of those dimensions could be
Models are another useful device in getting the facts
across. They may be admitted in evidence or used as ax- i aid
to testimony. Careful attention should be given to part of
the foundation that deals.with the credentials of the mo el
maker and the scale that he used. Thus, a series of questions
similar to that relating to the diagram could be used:
Q. Are you familiar with pollution control
devices known as wet scrubbers manufactured
by the Ajax Company?
Q. What is a scrubber of this type ordinarily —-
used for?
A. It is used to remove certain pollutants
from coal fired electrical generating plants.
Q. Did you at any time examine such a facility?
A. Yes, I did, at the behest of the director
of Region II.
Q. Would you please describe that facility?
A. [ here witness gives description of facility).
v i — 17

Q. Now were you asked to prepare a model
of that facility?
A. Yes, I was.
Q. To what scale did you prepare this model?
A. I prepared a model wherein one inch equaled
one hundred feet.
Q. I dir ct your attentipn to Exhibit “6” for
identification and I ask you is this the
model you prepared?
A. Yes.
-Q. ‘ Would you .describe the procedUreS you followed
in preparing this model?
(Here witness tells how he made the model to
the size of the actual machinery he observed)
Q. Would you tell us the comparison between th:E
model Exhibit “5” for identification, and the
machinery you had previously described?
A. it is identitical in outward construCtiO r.
every respect except size which is reduced by
the scale I previouslY told you about.
(f) Summaries :
One of the most useful devices employed by trial
attorneys is the summary. The witness is equipped with a reDort,
chart or diagram summarizing the testimony that has been pre-
viously adduced in court. The use of such a witness is dis-
VI — 18

cretionary with the trial court and most courts will require
the exhibit to be turned over to opposing counsel in advance
of its presentation to the trier of fact.
Rule 1006, Fed.R.Evid., deals with “summaries” of a
different nature. The sui nary contemplated by Rule iooe, is
an exhibit which will be placed in evidence and which summarizes
voluminous materials not previously placed in evidence because
of the inconvenience of doing so. Thus, Rule 1006 provides:
“Rule 1006. Summaries.
The contents of voluminous writings, re-
cordings, or photographs which cannot conveniently
be examined in court may be presented in the forr
of a chart, suir nary, or calculation. ‘The originals
or duplicates, shall be made available for exainina-
tion or copying, or both, by other parties at
reasonable time and place. The court may order
that they be produced in court.”
The Advisory Committee’s notes on Rule 1006 briefly
observes that the rule recognizes the common practice but pro-
vides safeguards against abuses, apparently referring to the
requirement that “ [ t)he originals or duplicates, shall be
made available for examination or copying ...“ There is no
reason to believe that Rule 1006 is a device for introducing
otherwise nonadmissible evidence.
Accordingly, the underlying documents, etc., would have
to be admissible in their own right.
VI — 19

Defendant )
United States of America )
State of Washington ) •ss
Cour.ty of King ).
Region X
1200 Sixth Avenue
Seattle, Washington
Civil Action Against ) EPA NO.
I, the undersigned employee of the Ur.ited States Er.viror.-
mental Protection Agency, Region X, SeattleiWaShifl9tOfl, hereby
l 1 first be:ng duly sworn, do depose, swear and certify in accordance,
Federal Rules of Evidence numbers 902(4), and/or 902(5),
and/or 902 (2) (whichever one or more of such rules may be appli-
cable) as follows:
1. I am authorized in the course of my official duties as
1 an EPA employee to make this certificatior. and ar an authorized
.official custodian of the originals of the copied documentS here
2. The attached documents in original form are authorized to
Ibe filed with EPA, Region X by law or regulation.
3. The attached documents (purportedly signed by various
individuals) are, exclusive of any inarginalia or annotations
laced thereon by EPA employees, true and correct copies of the
riginals, which said originals were issued, composed or received
vI 20

in the usual course of the regularly conducted official activity
of EPA, and which said originals are l eved ger.uine and authori-
zed by the respective originators.
DATE: _______________________
Certifying Official: _______________
Subscribed and sworn to efore me this day of __________
Ozary Public in and for the S:a:e
of Uashinctofl resid rLc in Seattle
I VI — 2:

WinningS a Summary Judgment
by Paul Mark Sandier and John P. Corderman
Summary judgments are creeping nto favor. They once
amounted only to a provision of the rules that allowed parties
to dispose of the rare case in which one or two clear Issues
of law stood out. More and more, courts are coming to rely
on them as devices to strip away the verbiage and get down
to the real problem presented by the case.
Their principal use will always be for the small case, one
in which one or two controlling issues of law appear — suits
on notes, commercial debts, or simple contracts. But many
judges have even used the summary-judgment technique to
rye big cases into smaller ones — from antitrust to oil and
One way to do this is to examine a complicated set of facts
and decide that none of the material ones are controverted.
lb persuade a court to do this, you must draw the main points
out of the maze of details so that the court can understand
that there is no real argument about the controlling facts.
Another way to carve up a case is to persuade the court
to grant partial summary judgment on one or two vital points.
That may leave you with a much smaller case to try to a jury,
and It may even provoke a settlement by taking much of the
juice out of the opposition’s potential recovery.
If neither of these methods work, you may also succeed
in boiling down the case by urging the court to declare a long
list of facts uncontroverted, so you can dispense with proof.
That may reduce the long case to a short one, if nothing else.
If you take this to mean you should parse every new case
with an eye to summary judgment, you are right. Even if
you fail, you can still go to trial on the merits. Assuming you
have done a thorough and professional job, the trial judge
will not take your losing motion amiss. He may even be
grateful to you for explaining the case to him in advance of
trial. That may help you later on the merits.
Paradoxically, the worst result of a summary-judgment
motion may well be thatyou win it — and then lose on appeal.
lb avoid that, you will need to think through your case
carefully to be certain that you really qualify for a summary
Paul Mark Sandier i a partner in the firm of Frriihtai Sandier in
, .jlnmore. Jo / tn P. Corderman s an cia1e Judge c/Me circuit court
of Washington County. Maryland.
judgment, so the appellate court does not hurl the case back
years later for trial.
Motions for summary judgment are particularly effective
in seven types of disputes:
I. Where you have a small, simple case.
2. Where you can dispose of collateral issues before trial.
Those are issues such as limitations, jurisdiction, or standing.
3. Where the other side’s case has no merit.
4. Where a partial summary judgment can simplify the
5. Where both sides agree on the facts but disagree about
the law.
6. Where you have a reasonable chance to win, you can
file the motion cheaply, and the result of the motion will
improve the chances of success at trial.
7. Where you are sure you can win and not be reversed.
There are some cases that cry out for summary judgment.
Many times a lawsuit can be filed together with a motion
tor summary judgment. This aggressive overture forces the
opponent to respond promptly and disclose aspects of his
case that might have been withheld until much later. Use
summary judgment early when suing on promissory notes,
deeds of trust, or contracts.
On the other hand, cases that turn on state of mind, intent,
or credibility will prove almost impossible to try by summary
Small cases invite the cowl to rule by summary disposition,
although the facts may preclude it. But even a complex case
can be resolved by summary judgment.
Before filing a motion or response, consider the risks.
Ascertain what standard the court will use to decide the
motion. Learn about the judge with whom the motion is filed.
Knowing the judge’s philosophy, knowing the standard of
the jurisdictioi, and knowing how that judge applies the
standard can help you determine whether to file a motion
and how to support it. Consider, for example, whether your
trial judge will be willing to risk being reversed on appeal.
Beyond these considerations, personality and judicial
philosophy apply in much the same way they relate to other
strategic decisions.
You must understand not only your client’s position in the

case but also your opponent’s. First decide whether the
material facts will be in dispute. Then consider whether
discovery will be ,r ded to develop the basis for summary
judgment. If so, reflect on the nature of the discovery. Can
it be accomplished with interrogatones’ Should you conduct
depositions? Decide whether the Case is the kind in which
summary judgment seems unlikely. For example, does the
case involve state of mind, intent, motive, or credibility?
These issues would make swnrnary judgment difficult if not
impossible. Is there a way to remove them?
Coflsider that the trial judge may mentally align himself
with the opponent’s case. This.state of mind comes about
because of the burden of proof that the proponent of the
motion must fulfill, which is to show no fact issues in the
case. But it also comes about because the judge deprives your
adversary of a full-scale triaL The court may give every
benefit to the opponent’s side. That may cause the judge tà
align himself unconsciouSly with the opponeflt. Once that
occurs, you may lose your motion for directed verdict dur-
ing trial, or you may lose other pretrial rulings.
Consider the.timing. A motion filed on the eve of trial may
receive different treatment than, a motion filed earlier. Con-
sides how much you will educate the opposing party. You
may file the motion, educate the other side, and still lose.
On the other hand, a motion can sometimes test arguments
or positions and allow time for you to rearrange matters
before trial.
Consider the likelihood of reversal. There is no way to
assure that the court of appeals will affirm a summary
judgment. Many appellate courts have been hostile to them.
Thke care in preparing the materials thatsupport the motion
for summary judgment. This is your chance to write an
appellate record that you can control.
Of course, in’cases on stipulated facts, your motion will
not be reversed because of the summary judgment evidence.
‘You are still building a record. Use careful judgment to deter-
mine how fully to develop supporting material. Bear in mind
that,’ on appeal, the court cm substitute its judgment entirely
for the trial court’s. The paper record needs to read
Remember that under most states’ rules, if you file the
motion and lose, the court Can establish facts to salvage
something from the motion. These facts will bind you during
Keep in mind that summary judgment means just what
it says. summary. It is a shortcut to dispute resolution. ft
Is a means of taking a case down to a handful of legal issues.’
It is a method to rerñove a case’ from the trial calendar that
needs no trial. TherefOre, a judge s nOt ‘going to treat the
motion seriously if you seek a large block of time to argue
it,or if you file complicated papers to support it. If a case
is ripe for summary judgment, it should not take long to
convince a judge of the fact.
Always have summary judgment in mind when you start
to prepare the pleadings. Are the material facts in the case
really going to be in dispute? Can you separate the material
facts from the immaterial facts? If not, why expect a judge
to do it.
As discovery proceeds, draft the interrogatories and
prepare for depositions to isolate the material facts. Attempt
to get ‘the ether side to acknowledge them. Consider using
a request for admissions. These requests may not result in
the other side’s admitting the material facts. But if you can
account for them, follow (in the appropriate case) with a
motion for umrnary judgment that relies on the answers to
lntCrrotones, the depositions, and the admissions of fact.
Support all of that discovery with affidavits from compe-
tent witnesses to tack down any material facts not in dispute.
Such a procedure will significantly narrow the litigation.
As a result,, it will narrow the scope of the case that a trial
judge must consider on motion for summary judgment.
If you treat the motion in a serious and professional
manner, it will likely be received by a trial judge in the same
vein. But If you treat the motion like a kitchen sink, and just
throw it in for good measure, you will not get a satisfactory
result.The court will give the motion little or no considera-
tion if the court believes that you are not serious and are only
paperng both’ the file and your opponent.
‘Do not file a lengthy memorandum on the day the motion
Is argued. If you want the judge to read the memorandum,
file it early. Most judges will try to read the file or have it
read before they hear the motion. Many, however, have
fleither time nor inclination to read a lengthy memorandum
of law after argument.
Finally, do not file the motion close to the trial date. File
the motion in enough time to permit the court to consider
ft in an orderly fashion. Motions filed at a late date cry out
for denial.
Summary judgments flow from rules of procedure. F .
R. Civ. P.56 and similar state rules provide that parties may
file for summary judgment either with supporting affidavits
or withOut them. The motion will be granted “forthwith” if
‘the pleading , depositions, answers to interrogatories, and
admissions on file, together with supporting material show:
first, no genuine issue as to any material facts and second,
that the movant is entitled ‘to judgment as a matter of law.
Rule 56 provides that Summary judgment may be rendered

on the issue of liability alone, even though there is a genuine
issue about the amount of damages.
Iut there is another variable, not fully app ciated by many
l lawyers. After the motion is filed, and if judgment is
granted, the court can determine what material facts ex-
isi without substantial controversy. The court can deem these
facts established at trial. The court can then direct further
proceedings in the case as may be appropriate.
How are these facts established? Either by discovery or
by affidavit. You must pay careful attention to the form of
the affidavit. Affidavits both in support and in opposition
to summary judgment motions must be made on persOnal
knowledge. The affidavits must contain facts admissible in
evidence. They must also affirmatively show that the witness
is competent to testify about the matters included in the
affidavit. Affidavits may be supplemented or opposed by
depositions, answers to interrogatories, admissions of fact,
or even further affidavits. But the lawyer who moves for sum-
mary judgment should take care not to supplement his papers
with too many responses to the other side’s facts.
Here is where summary judgment turns into a powerful
weapon. When the motion has been filed with supporting
documents, the adverse party may not stand on the pleadings
He must respond by affidavit or as otherwise provided in
the rules. He must set forth specific facts. If he files nothing,
he runs a terrible risk of losing. Most rules provide that when
a proper response was not filed, the court may go ahead and
grant sununary judgment. Texas even provides that issues”
that the other side failed to raise — not just facts — will not
be considered as grounds for reversal. TEX. R. Civ. P.
lie Opposing Evidence
What happens if you cannot present the necessary facts
by affidavit to support your opposition? You had better move
promptly for a postponement. If the facts are within the
control of the moving party, seek a protective order. Ask for
a continuance to permit you time for discovery or to obtain
affidavits. Whatever you do, do not show up in the court-
room without the opposing facts properly filed in some form
or excused. Summary judgment is a trial, and you will lose
if you go to trial without evidence.
The real purpose of a motion for summary judgment is
to determine before trial whether the evidence warrants a full-
blown hearing. That is why, if a “genuine issue” about any
“material fact” exists, the court denies summary judgment.
Nothing mysterious about it. As you might suspect, cases
interpreting the rules define “genuine issue” and “material
fact” in different ways. A genuine issue exists when a factual
issue is “legitimate.” That is another way of saying that the
judge can weigh the summary judgment evidence to see if
an issue has been trumped up just for the hearing. A material
fact is one necessary to support a judgment.
The trial judge will view the evidence - and inferences from
the evidence — in the light most favorable to the opposing
party. You understand that axiom: it comes from the theory
that courts considering summary-judgment motions do not
“‘tually decide issues of fact. That means the court must give
other side the benefit of every doubt. All the same, if the
nut determines that no issue of material fact exists, the court
- n still deny the motion.
In the first place, the court can decide that it wants a jury
to draw inferences from the undisputed facts. For example,
there is the “perfectly dear” standard:
The Fourth Circuit prescribed a ‘my strict standard which
must be met before summary judgment may be granted.
‘Not only can there be no dispute as to the evidentiary
facts, but there cannot be any disagreement as to the in-
ferences or conclusions which might be drawn from those
facts.’ Smith v B & 0 Railroad Co. 473 F. Supp. 572,
578 (D.Md. 1979).
(Sjummary judgment under Rule 56 should be granted
only when it is perfectly clear that no issue of fact is
involved and inquiry into facts is not desirable to clarify
the application of the law. This is true even where there
isnodisputeastotheevidentiary facts butonlyastothe
conclusions or inferences drawn therefrom, and the ‘par-
ty opposing a motion for summary judgment is entitled
to all favorable inferences which can be drawn from the
evidence.’ Bachelor v. Legg & Co., 52 F.R.D. 545, 547
(1971) (quotingPhoenLrSavings& Loan v. Aetna Cas’Ial-
ty & Surety Co., 381 F.2d 245,249(4th dr. 1967) (em-
phasis supplied)).
Then there is the “reasonable doubt” standard. “(Shim-
mazy judgment may not be granted where there is the slightest
doubt as to the facts.” Tomalewski v. Stale Farm Life Ins.
Co., 494 F.2d 882,884(3rd Cir. 1974). But beyond the facts,
the most liberal standard provides that the opponent of the
motion is to be given the benefit of only “reasonable doubts
and inferences.” In Wright v. Newman, 539 F. Supp. 1331,
1337 (W.D.Ark. 1982), the court stated:
The modern formulation is that the party opposing a
summary judgment motion is to be given the benefit of
all reasonable doubts and inferences in determining
whether a genuine issue exists that justifies proceeding to
This standard increases the likelihood that the motion will
be granted. This all goes back to whether the opponent seems
to raise a legitimate issue.
The variety of standards explains why you must carefully
consider the standards your court will apply on summary
judgment. It also explains why your papers must be carefully
drawn. Your supporting papers will include affidavits,
interrogatories, admissions, depositions, and documenl.s.
Other modes of support can include pleadings, judicial notice,
or oral testimony.
You will almost certainly file affidavits, no matter what
else you use. Some jurisdictions refuse to consider pleadings
on summary judgment. Some also refuse to allow testimony,
although the Federal Rules permit it. Remember that
affidavits must establish facts that are admissible in evidence.
An affidavit must establish that the affiant is testifying on
personal knowledge. It must also show that the affiant is
competent. It is surprising how many lawyers submit
affidavits in support of motions for summary judgment that
are not based on personal knowledge. For example:
I do solemnly affirm under the penalty of perjury that
the contents of the foregoing are true to the best of my
knowledge, information, and belief.
But “knowledge, information, and belief” is not personal
knowledge. This form of affidavit is unacceptable. Affidavits
(Please turn to page 52)

that is, whether it is appropriate
for a court, as opposed to other
institutions, to be doing a par-
ticular thing.
Judge Neely analyzes the strengths
and weaknesses of the legislature, the
bureaucracy, the executive branch, and
the political machine, and the relation-
ship of the courts to these institutions.
It is a pragmatic analysis — a civics
lesson for those who are ready for the
realities of politics and self-interest. A
flavor of the author’s insight into our
political institutions may be gleaned
from his analysis of the legislature. The
legislative process is examined, the role
of the committee chairmen is explained,
and the procedure of “killing” rather
than “defeating” legislation is exposed,
in the perspective of the legislator’s con-
cern for reelection and the effect that
enactment of any legislation may have
on that goal. In effect, the legislature
is designed to do nothing, to permit the
legislators to vote in favor of legislation
rather that against legislation.
The author also analyzes the judicial
system and compares it to the other in-
stitutions. The author concludes that
the courts are the best equipped of these
institutions to fill the void between the
myth and the operational systems.
However, although Judge Neely is a
proponent of judicial activism, he does
preach restraint where these decisions
rightfully belong to others — and sets
some guidelines for evaluating the
legitimacy of a court’s entry into a par-
ticular policymaking area.
Judge Neely believes the courts per-
form political functions as well as other
political institutions do. But lest you
think Judge Neely has a biased, elitist
view of our courts, he does not endorse
the current way courts conduct routine
When it comes to private lawsuits
and criminal prosecutions, courts
do not work. While it is true that
their quality improves somewhat
in the higher-level state and
federal courts, the courts which
most people see are local
magistrate, justice of the peace,
or district courts (depending on
at that level justice is often for
sale, incompetently administered,
or so late as to be useless. The civil
and criminal courts of this coun-
try are successful primarily
because of the cases they do not
decide rather than the cases which
they th, decide; it is voluntary
compliance with the criminal and
civil law based on the threat of
court proceedings, along with
voluntary settlements (plea
bargains in the criminal courts)
when violations occur, which
make the court system effective.
Once anyone actually sets foot in
a court, any court, he is a loser —
even if he comes out of the litiga-
tion a technical winner.
All lawyers who participate in litiga-
tion or the legislative process ought to
read this book. So should anyone who
has an interest in how our democracy
really works.
(Continued from page 17)
based upon personal knowledge must
include this type of language:
I do solemnly affirm under the
penalties of perjury and upon
personal knowledge that the con-
tents of the foregoing are true.
In jurisdictions that do not permit oath
by affirmation, the witness will have to
take an oath before a notary public.
One technique is to develop the af-
fidavit in the form in which the witness
would testify in court — in other words,
by writing out the witness’s testimony.
Your opponent may attack your
witness’s affidavit on the ground that it
includes hearsay or opinion evidence.
You will need to have the rules of
evidence close at hand when drafting.
Affidavits containing admissible hear-
say may be acceptable. Affidavits con-
taining opinions, which in and of
themselves suggest opposing points of
view, are not (with a few exceptions).
Likewise, affidavits containing condu-
sions are usually unacceptable.
The typical summary judgment rule
provides that the opposing party must
file a response to a motion. Most
responses consist of an affidavit. But if
you are opposing the motion, you
should first address the propriety of the
moving party’s affidavit. A motion to
strike the affidavits or portions of them
can be an effective counter in summary..
judgment practice. File a motion to
strike on the basis that the affidavit is
not based on personal knowledge, con-
tains inadmissible hearsay, contains
opinion evidence, contains conclusions,
or consists of facts that would otherwise
be inadmissible at trial.
A motion to strike can serve as more
than a tactical ploy. Show how it
removes the evidence on which a judg-
ment can be based.
Responding to affidavits with
counter-affidavits can effectively place
material facts in dispute. A particular-
ly effective method of defeating a sum-
mary judgment motion will be to raise
an issue of credibility by counter-
affidavit. An issue of credibility ought
to defeat a motion.
Remember that affidavits present ex
parte facts to the court. The witness
presents facts without any cross-
examination and also without the op-
portunity of the court or opposing
counsel to observe the witness’s de-
meanor. That is why affidavits,
although sufficient to support a motion,
can easily be attacked and countered.
You may want to build up more per-
suasive support if you are filing the
Interrogatories elicit facts from the
opposing party, while affidavits are
usually made by your supporters.
Moreover, interrogatories can comple-
ment affidavits. Interrogatories avoid
the opportunity for a contradicting ex-
amination of a witness or a challenge
to credibility.
Deposition testimony can also sup-
port a motion for summary judgment.
Deposition testimony does present the
opportunity for cross-examination to
create a conflict within the evidence. All
the same, deposition testimony is
perhaps more persuasive in support of
a motion than are answers to inter-
rogatories. A court may be satisfied that
the cross-examination at a deposition
could have brought out contradictory
facts or inferences.
If the motion was based on inter-
rogatories or depositions, the adversary
can still respond by affidavit. In fact,
an affidavit that creates a genuine
dispute by contradicting a deposition

would defeat a motion for summary
Use depositions when affidavits and
interrogatories cannot ferret out the
facts. For example, in a dispute involv-
ing common-law fraud, the defendant
raises the issue of limitations. If the so-
called discovery rule applies (the cause
of action arises when the plaintiff knew
or should have known that the wrong
occurred), interrogatories could not ef-
fectively bring out the facts. During
depositions, the defendant discloses
correspondence in which the plaintiff
complained that the roof was leaking,
telephone messages in which the plain-
tiff discussed bills about correcting
various defects, and meetings in which
the plaintiff suggested suspicious con-
duct by the builder. The documents
could then be woven, with testimony,
into a motion for summary judgment.
For example, you claim that as a mat-
ter of law, a reasonably prudent person
would have been on notice that the
builder had intentionally used defective
material, which began the running of
The rules of the court in which you
file your motion will tell you how to
urepare the papers, but a few sugges-
ions may help you win. First, make the
notion itself as short as possible — two
or three pages, at the most — with the
formal language appropriate in mo-
tions. Include in your motion a state-
ment of propositions that outline your
case. What you want to produce is a
series of logical assertions that march
the trial judge through your case and
nvet his attention on the legal questions.
Remember, a trial judge will not be
accustomed to extended legal argument
the way an appellate court is, so you
need to move him out of the realm of
fact, in which he usually holds sway,
and onto your ground.
Second, prepare a supporting
memorandum in the form of an ap-
pellate brief. Do not just hand him two
or three cases or a typewritten document
or two with your trial authorities laid
out on it. Give him a full-fledged legal
argument, questions presented, facts,
procedural history, and argument. A
long brief will be nobetter herethan in
an appellate court, but you seek to leave
the impression that the case has already
assed into the region of pure
Third, put all the evidence together
in the form of a bound exhibit, if you
can. That will also be helpful as an ad-
junct to the appellate record.
Get this all to the judge a week or
(better) two weeks before motion day.
Let him have at least one weekend to
catch up. Chances are he will have read
and understood your argument by the
time you stand up to talk, which will
carry you a long way toward convinc-
ing him.
The same tactic will work well if you
have to oppose a motion. lI’y not to
scatter papers all over the motion. Pick
out the main weaknesses in the argu-
ment on the facts and hand the evidence
that contradicts your adversary to the
judge in bound form. Then point out
his errors with a short reply brief.
Remember that you have two issues in
opposition: the first is whether there air
any fact issues, but the second is
whether your adversary deserves to win
as a matter of law. Reply to his legal
argument with a strong brief that ex-
poses his errors and you will lend weight
to your argument that the jury ought to
hear the evidence.
A final point bears thought. You may
wish to bring on the whole case by fil-
ing a cross-motion for summary
judgment. While many courts will hold
that cross motions dispense with any
fact issues, it is possible that you will
have a good motion for summary judg-
ment and there can still remain a fact
issue in your opponent’s case.
But even if there are no fact issues,
make sure your document of opposition
places you in position to seek full relief
from an appellate court even if you lost
in the trial court. lbxas now requires
you to have raised all issues in writing
before the trial court or you waive them
on appeal. But you should also give
careful attention to the idea of filing a
cross-motion every time your adversary
moves for summary judgment.
There are a few unusual points to
keep in mind on appeal. Most impor-
tant, the appellate court will find itself
free to disagree with the trial court en-
tirely (a power it does not have in most
cases) and turn the summary judgment
upside down. There will be no presump-
tions that accompany a jury verdict or
çven a bench trial when you appeal a
question of pure law. That offers yet
another reason to file a cross motion if
you are defending the motion.
On the other hand, many appellate
courts carry a lingering prejudice
against summary judgments. The
judges of your court may specialize in
finding triable issues, and if you find
yourself defending a weak case on the
law, you may wish to throw yourself on
the appellate court as a defender of the
jury system.
This all leads to one last tactical con-
sideration. The courts will all impose
strict requirements on summary
judgments because they do sidestep the
jury system. If you move for summary
judgment and fail, you have rarely lost
much. The worst you will do is take up
some of the judge’s time and show your
best case to your adversary.
Winning may be the greatest danger.
Then you commit yourself to a year or
more of delay while the case makes its
way through an intermediate court and
a court of last resort. But if the appellate
judges find a fact issue lurking in your
evidence, they may send you back to jail
without passing Go and without collect-
ing $200.
You need to decide whether your case
can stand any delay before you move
for summary judgment. But then, jury
verdicts can find themselves reversed,
(Continued from page 60)
horns long or short; whether the field
I graze her in be round or square;
whether she was milked at home or
abroad; what diseases she is subject to,
and the like; after which they consult
precedents, adjourn the cause from time
to time, and in ten, twenty, or thirty
years, come to an issue.
It is likewise to be observed, that this
society hath a peculiar cant and jargon
of their own, that no other mortal can
understand, and wherein all their laws
are written, which they take special care
to multiply; whereby they have wholly
confounded the very essence of truth
and falsehood, of right and wrong; so
that it will take thirty years to decide
whether the field left me by my
ancestors for six generations belongs to
me, or to a stranger three hundred miles

Rule 36:
In Praise of Requests toAdinit
by Edna Selan Epstein
Litigators file Interrogatorles In most substantial lawsuits.
Few routinely file requests to admit. Yet answers to inter-
rogatories are rarely as useful as the responses that must be
made to well-framed requests to admit.
Requests are not useful tools for discovering the
unknown. They are best used to establish the undisputed,
relieving the parties of the need to prove such matters and
shortening the trial. Formulating the request helps struc-
tore the case because the attorney must think through the
basic elements and how he will prove them. The request to
admit can also be used as the basis for a summary judg-
ment motion. Here are ten reasons why a litigator should
consider using requests to admit.
First, the request to admit can cover almost any Issue,
simple or complex. Anything discoverable pursuant to
Rule 26(b) of the Federal Rules of Civil Procedure can be
the subject of a request to admit under Rule 36. The re-
quests can go beyond the “facts” of a case. They can relate
“to statements or opinions of fact or of the application of
the law to fact, including the genuineness of any docu-
ments described in the request.”
Requests to admit can reach those legal theories that are
at the heart of a dispute. Although you cannot ask an ad-
mission to an abstract proposition of law, if your request
applies the law to the facts of your case it is permissible.
Only privileged matters that arc Immune from discovery
under Rule 26(b) are improper subjects for requests toad-
Second, the recipient of the request to admit cannot
avoid answering because he personally does not know the
answer If the needed information Is reasonably within his
possession. Undçr Rule 36, the answering party can only
avoid the admission if he “has made reasonable Inquiry
and. - .the Information known or readi y obtainable by
him is Insufficient to enable him to admit or deny” (em-
phasis added).
For example, the answering party need not prepare an
The author ii with Ssdley & Austin in Chicago and is a Iectur as the
Untversity of Chicago Law School.
elaborate computer program to answer a request. But If
the facts sought to be established are available in an ex-
isting form, such as a computer tape, the information is
“readily available.” And the answering party cannot ob-
ject that the request asks about a matter within the
knowledge of the proponent of the request or a matter of
public knowledge. The request is not a device to discover
Information, but to eliminate Issues otherwise to be proven
at trial.
Successive Sets
Third, while many jurisdictions stringently limit the
number of interrogatories a party can pose without leave of
court, no similar limitation exists for requests to admit.
Indeed, in one patent case the court approved 704 separate
requests to admit that took 114 legal sized pages. Photon,
Inc. v. Harris Intertype, Inc., 28 F.R.D. 327 (D. Mass.
The rules recognize the value of requests to admit by not
limiting their number. A party can serve multiple requests
to admit as he learns more about his case and the facts.
Cóurts do not treat successive sets of requests to admit as
burdensome or oppressive in complex litigation. United
States v. Watchmakers of Switzerland Information
Center, Inc., 2 Fed. R. Serv. 2d 605 (S.D.N.Y. 1959).
Fourth, a court and the parties can readily determine
proper requests to admit. Rule 36 states that “ [ e)ach mat-
ter of which an admission Is requested shall be separately
set forth.” Requests to admit should be simple and direct
statements of single propositions. Most judges can deter-
mine at a glance whether requests to admit are well-
formulated and focus on the facts in dispute. While well-
drafted requests to admit are likely to withstand objec
tions, poorly drafted requests that are verbose, lengthy
md compound will be struck. Baldwin v. Hartford Acci-
dent & Idemnity Co., 15 F.R1). 84 (D. Neb. 1953).
F(fth, requests to admit can be served upon the plaintiff
at any time after the commencement of the lawsuit and
upon anyotherpartywithorafterth ofthesh1m
mons and complaint upon that party. Nothing expedites

discovery and brings the litigation to a head faster than flu-
Ing requests to admit at the beginning of a lawsuit. You
knows are not In dispute. ‘The recipient of the request must
answerorobjectwlthin3Odays,orw lthin45daysifthere-
quests ire serVed with the complaint. The court may
lengthen or shorten the time allowed for answer.
$ixth, delaying answers to requests to admit without
courtapproval Is useless. The matter requested Is deemed
admitted If the recipient remains silent or does not deny
the requested mAtter within the time allotted by the rule If
more time is needed, the recipient must ask the court for It.
Seventh, sweeping denials or evasive answers are Inef-
fective If the proponent of the request presses the matter.
Rule 36 provides:
A denial shall fairly meet the substance of the re-
quested admission, and when good faith requiresthat
a pa*ty qualify his answer or deny only a part of the
matter of which an admission Is requested, he shall
You can make evasion more difficult if you append an In-
terrogatory to the request: ‘If you deny the request, set
forth each fact upon which you baseyour denial.” Answer-
ing the interrogatory may be more burdensome than ad.
mlttlng the request. This technique eliminates frivolous
Eighth, although requests to admit are not self
enforcing, Rule 36 provides for court enforcement if the
recipient of the request seeks to avoid aiiswerlng by forbid-
den means. The proponent of the request may ask the
court to i üIe on the sufficiency of an objection. If the
reasons for not admitting the request are frivolous or In-
adequate, the court has several optIons: (1) the answers
can be struck or taken to be adnilsslont; (2) new answers
can be ordered; (3) the answers can be taken as denials,
permitting Rule 37(c) sanctIons If the proponent is put to
the burden of proving the matter requested to be admit-
ted. Bertha Building Corp. v. National Theatres Corp.,
15 F.R.D. 339 (E.D.N.Y. 1954).
Evasive Answers
Ifldeed, courts have treated evasive answers or
equivocal respOnses as admissions that will support mo-
tions for summary judgment and dismissals of the sUit.
United States v. Jefferson Trust & Savings Bank, 31
F.R.D. 137 (S.D. 111.1962). Courts have also said that no
good reason Cxlsts to tolerate “straddling statements,”
such as a refusal to admit or deny, In response to requests
to admit. Princess Pat, Ltd. v. National Carloading
Corp.. 223 F.2d 916(7th Cit. 1955).
Ninth, an admissiOn conclusively establishes for the en-
tire action the factual or legal proposition it sets out. It can
be used In te pending litigation either In a motion for par-
tial or full sun mary judgiñent or at a trial of the matt’ r.
Asanezample,lflonecasean lnsurancecompanypa lde
bank on a claim that a bank officer made an Illegal Invest-
ment, although the coverage under the Insurance policy
was not clear. The Insurance company felt confident that It
could recoup Its payment from.the bank’s accountants and
brought athird-party claim against the accountants. After
the Insurance company spun elaborate but tenuous
theories of liability and deposed 29 wItnesses, the accoun-
tants served almost 200 requests to admit covering every
factual aspect of the case. The accountants used the
answers to these requests as the basis for a successful mo-
tion for summary judgment that was sustained upon ap-
peal. Rock River Savings and Loan Association v.
American States Insurance Company, 594 F.2d 633(7th
Cir. 1979).
Tenth, substantial sanctions are available against the
party denying the request if the genuineness of the docu-
ment or the truth of the matter is proved at trial. In that
situation, Rule 37(c) of the Federal Rules of Civil Pro-
cedure provides that the court shall order the party mak-
ing the denial to bear the reasonable expenses, including
reasonable attorneys’ fees, Incurred in proving the denied
matter. Take the party who denies a simple fact that is
costly to prove, such as that delivery was made in many
states. The costs of bringing witnesses from those states
would be recoupable under Rule 37(c). No similar sanc-
tion exists fora recalcitrant failure to stipulate on the same
Improper denials lay the groundwork for shifting the
cOsts of proof. To avoid awarding expenses, the court must
expressly find that one of four excuses applied: (1) the
court must previously have found the request to admit to
have been objectionable under Rule 36(a); (2) the adnils-
sion must hare been of no substantial importance; (3)the
party failing to admit must have had reasonable grounds
to believe that he might prevail on the matter; or(4) some
other good reason must have existed for the failure to ad-
mit, such as a good faith lack of knowledge or that there-
quested matter was genuinely contested. -
Requests to admit are one of the most effective tools for
cutting litigation costs and narrowing the matters to be
tried. But, they are used Infrequently.
At a time when lawyers are criticized for the costly
discOvery they generate, the request to admit should be
used more often.

By: John R. Martze].].
A trial partakes of the essential elements of the drama. A
play is a compressed recreation of past fictional events. A trial
is a compressed recreation of past actual events. While the princi-
pal aim of the trial is the search for truth, the adversary system
provides that the attorney’s role in the play is to present his case
in a persuasive as well as accurate manner. Central to the dramatic
aspect of the trial is the imposition of the advocate’s personality
on the trial for good or for ill.
The opening statement is functionally intended to permit the
advocate to provide an outline for the fact-finder of what he intends
to prove. Thus, the jury gets to see the “big picture” and the flow
of evidence has meaning and relevance from the beginning. it is also
the first opportunity for the attorney to impose his Personality on
the actual trial of the case.
The opening statement is one of the few parts of a trial in
which we have empirical evidence of the impact of advocacy on the
trial process. The University of Chicago Jury Study disclosed that
a large majority of jurors reached some disposition toward one side
at the close of opening statement. At the close of all the evidence
only a small percentage reached a conclusion different from their
disposition at the close of the opening statements. The data strong-
ly indicates, therefore, that at the end of your opening statement
you have done something substantial, for good or for ill, to your
case. Hence, there are compelling reasons to do the opening state-
ment correctly.
There are four basic legal rules which apply to opening state-
1. The purpose of the opening statement is to indicate to
the fact-finder what you intend to prove.
2. You may not argue your case in opening statement. That
is reserved for closing argument.
3. You may not state the law in your opening statement.
That is reserved for the Court.
4. With respect to criminal cases, the prosecution
must set forth in its opening statement, in

default of which there can be a directed verdict
of acquittal, the facts and theory which will
support a conviction.
Like all rules, these have exceptions. First of all, it is simplis-
tic to say that all you do in your Opening Statement is tell the jury
what you intend to prove. Secondly, one man’s argument is another
man’s explanation of what you are going to prove and it is the skill-
ful interwining of explication of your case which can have the same
persuasive affect as argument, and indeed greater persuasive affect,
than what we openly know as argument because the jury comes to your
conclusion without feeling that they have been persuaded simply by
your rhetoric. Thirdly, you may indeed state the law insofar as it
is necessary to explain the theory of your case. For example, if
you have an unseaworthiness case, you are permitted to tell the jury
that unseaworthiness is a doctrine which does not mean just the
ship won’t sink, it means that in every particular, the hull, the
deck, all the appurtenances and the crew, that it must be reasonably
fit for its intended purpose. And if it doesn’t live up to its
intended purpose, the shipowner is responsible regardless of whether
he knew about it or whether or not there was a matter of fault. You
are entitled to tell the jury that so that you. car’ explain the mean-
ing of the facts. So it is permissible to a limited extent, to tell
the jury what the law is if necessary to explain your theory of the
case. Lastly, the prosecution is generally permitted to get away
with a very minimal statement of the facts and theory of the case,
although I have seen cases in federal court in which at the close of
the prosecutor’s Opening Statement the court said, “Counsel, that’s
not enough,” and make him stand up and say some more about his case
so that he could get beyond the bare minimum requirements.
The conception of an Opening Statement begins with the question:
What is my case ABOUT? In the Socratic method of teaching in law
school at the end of dealing with an individual case, the Professor
would finally say, “Now, what’s this case about?” or “Why did they
put this case in the case book?” What the case is about is the
little shorthand way that one thinks about the case. It is the
kernel of your case. If your case involves an aircraft crash, you
well know that there are a myriad of things involved in that case
from the custody of the individual broken parts to the aerodynamics
of the plane at the time that it malfunctioned, to the individual
broken parts, whether its impact damage or inf light damage. But at
bottom, there is the individual tiny little thing that the case is
about. This particular strut failed, for example. The pilot did
not have the CG within the limits, for example. That is what the
case is ABOUT .
It is the “law clerk” formulation of the case. If during a
trial you ask the judge’s law clerk what the case is about, the
answer given is what the case is ABOUT for purposes of the Opening
Statement because the law clerk’s intense focus on the case at that
time centers in some way, on who is winning the case. If you have an
unseaworthiness case concerning a bad weld on a barge and, after your

Opening Statement, the law clerk thinks of this as the “leaky barge
case” you have achieved the purpose of your Opening Statement.
The Opening Statement must also consider what the case is
not ABOUT . These are elements that your opponent is likely to rely
on such as weaknesses in your case which are actually insignificant
and weaknesses in your case which are highly damaging, but actually
irrelevant. One must spend the time necessary to achieve the
artist’s “distance” to properly conceive the Opening Statement.
Writing out an Opening Statement and reading it to the jury
serves the same purpose in a trial as passing out scripts of a play
to the audience and letting them read it at their leisure. At the
same time, it is critically necessary to know exactly what you in-
tend to say in Opening Statement about certain crucial matters and
to have the phraseology of certain sticky points prepared in advance.
The unprepared Opening Statement is a loose cannon crashing
about a heaving deck. If not prepared you can drop some careless
phrase your opponent may seize upon to make the cornerstone of his
case out of your mouth. This is, after all, a matter of words and
they must be carefully dealt with.
The physical context is important. Before a trial go into
the courtroom, sit at the counsel table, sit in the jury box, stand
behind the podium, put your hands on the wood, count the feet from
the witness chair to the jury box. Develop, as an actor does, the
sense of “place” on the stage. A good actor never plays a strange
theatre without walking around the stage measuring distance from
mark to mark, establishing his sense of place.
One principle may not work for all. It is based on the fact
that all Americans share a common experience—they went to school.
Schools are all basically run the same way—the teacher at the head
of the class, the class seated in rows before him. Americans are
familiar with being taught in that manner and there is some starvic-
tic response to the pedogogical mode rather than the more historic
pacing before the jury.
Sir Francis Bacon said that law is a “babletive art.” It is
vocal. It is words. The presentation of your case in words, the
capsulized recreation of past events, must begin when you are re-
tained in the case. The mental sorting and sifting of the presenta-
tion of a case must be ongoing—when interviewing the client, when
taking a shower, whereever creative thinking is done. Not for noth-
ing do we call the law a jealous mistress.
Eventually, the actual preparation of the formal Opening
Statement must begin. This is reasonably close to trial. It is at
that time that one focuses on what the case is ABOUT . If, by the
way, this is the first time the attorney has adver,ted to that ques-
tion, he is in serious trouble.

The task begins with paper and pen in hand. A structured out-
line of an Opening Statement is essential to discipline the mind to
focus on what the case is about, to make a rational structure of the
drama, to make sure of crucial phraseology and to insure that all
points are covered.
The first step is to see if you can say what the case is
ABOUT in one simple declarative sentence. Work at it; amend it;
reconceive it. The case may involve a highly complicated technical
operation on a drilling platform which somehow mysteriously caused a
fire which burned your client. The proof may involve elaborate
piping diagrams and flow mechanics to fix responsibility for the
fire. There may be three weeks of testimony to flow. However, what
the case is about is: “On June 8, 1980, there was a large fire on
the X’s Company oil production platform in the Gulf of Mexico. My
client was working on that platform at the time and he was badly
burned.” That may be the first words of your Opening Statement. It
says it all. It is pregnant with responsibility on others who
caused your client’s burns. It is, after all, what the case is
The next step is to take the likely jury instructions and use
them as an outline. At bottom, a trial is nothing more than match-
ing testimony and evidence with legal standards. In a standard auto
damage case, you must prove that the other driver was negligent,
that his negligence caused an accident which did injury to your
client. Coincidentally, you will tactically undertake to show that
your client was acting prudently.
Thus, you tell the jury that you are there to fill in the
blanks set up by the formula of the law. In the simple, straight-
forward negligence case a perfectly adequate outline is a step-by-
step reference to the elements of the law in the jury charge and a
brief explanation of how you intend to prove such element.
At this stage you should have two things 1) the conceptual
statement of what the case is about, and 2) the basic legal outline
of your burden of proof. How do you fill it in?
Among the most crucial decisions to make in the Opening State-
ment is what to tell the jury about individual witnesses. The usual
formulation is to say, “I believe that after you have heard the evi-
dence you will conclude such and 50 • L However, there are instances
in which reference to a particular witness may be valuable or com-
If there is a liability witness that has already testified to
the key issue in the case, it is worthwhile to mention him to the
jury so they can be looking for him. For example, if there is an
independent witness to an intersectional collision who has already
testified in deposition that he was looking directly at the light
controlling your client’s lane of traffic and says it was green, it
is valuable to mention that witness by name and refer to the fact
that he has already testified to such and such under oath, and will
do so again before the jury. -

If you must ultimately confront a very damaging witness, you
may be compelled to mention that witness in Opening Statement in
order to defuse your opponent’s Opening Statement and to prepare the
jury for impeachment or rebuttal. While it is covered in detail
hereafter, it is worth mentioning here that people like the familiar.
When jurors hear and see things in the presentation of the evidence
about which they were told in Opening Statement, they reach posi-
tively to it.” “Ah ha! I remember the lawyer saying we could expect
to hear this fellow say this.” This observation can work to your
advantage with hostile and damaging opposing witnesses.
You can tell the jury that they may hear a witness for the
opposition named John Jones who will say that your client was
speeding. However, ask them to reserve judgment on that witness
until they have heard the whole story about that witness and then
hint at the possible areas of impeachment such as interest, ability
to observe, etc. In this fashion, the impact of the opposing wit-
ness is diluted in the mind of the jury at the opening of the case
and they are anticipating your cross-examination when it begins.
The lesson is that you should not be afraid of mentioning weaknesses
in your case in Opening Statemer.t. To the contrary, they should be
met head on and deflated as much as possible before your opponent
has the chance to parade them before the jury.
Central to this task is the proper choice of words. Your
characterization of the damaging evidence can vitally effect its
impact. For example, in a criminal case against a public official,
there may be testimony of activities by that official which are
subject to criticism by the jury, but which are not criminal al-
though relevant to the case. Perhaps a characteristic in the
Opening Statement of such activities as “uncivic, but not criminal”
sets the tone for the jury and puts the coming evidence in perspec-
This endeavor of proper characterization is one of the most
difficult, time consuming, but rewarding aspects of the Opening
Statement. It applies to the offense as well as the defense. Nan’s
mind is often captured by busy words. Consider “Right to Work” and
“No Fault.” This is why the Opening Statement is a developmental
process which requires considerable thought and actual work with
paper and pencil.
The trial process does not allow the attorney to turn to the
jury and say, “Now this next witness is going to be very important
on the question of the defendant’s negligence.” In addition, there
is no way to determine the state of the jury’s attention at any
given point in the trial. It ebbs and flows, juror by juror. One
piece of evidence or line of testimony seems pretty much like another.
Much thouqht and effort has qone into finding a method of riveting
the attention of the jury on a particular piece of evidence.
Various dramatic effects have been tried with varying results de-
pending on the thespic talents of the attorney—the meaninqful look
at the iurv after a crucial auestion, the sonorous and measured
question, the preqnant pause. The Opening Statement offers an ex-
cellent option.

You may tell the lury that they will be hearing such testi-
mony and see much documentary evidence of varying degrees of import-
ance.- However, there will be ceratin areas of evidence that are of
particular interest to your case. So you ask the jury to be parti-
cularly attentive when certain matters arise. For example, when the
foreman Bill Buck testifies he will tell you about the methods the
company used to insure that the fuel system was gas free before
welding began. He will indicate that the method was wholly inade-
quate. Ask the jury to hang a red flag in their mind on the name
Bill Buck. Then write his name on the blackboard so that the jury
has a visual as well as mental cue. Ask the jury to hang a red flag
on Bill Buck’s testimony and ask themselves a question, for example,
who was really responsible for making the system gas free. Do not
answer the question in Opening Statement.
By selecting the crucial evidentiary passages in a trial and
highlighting them for the jury in Opening Statement, two psycholo-
gical goals are achieved. The jury is in unfamiliar surroundings
in the courtroom. They will respond to the familiar when they hear
testimony that harkens back to what they heard and were asked to
remember on the first occasion when the attorney .came in contact
with them. Americans in this century were raised on the mystery-
solving genre of American literature and theatre. Americans like
nothing better than unraveling a mystery. Much of popular American
“fact finding” is clothed in the form of mystery solving. This
American character trait is not lost when one enters a jury box.
If, then, the fact—finding process of a trial is couched in mystery—
solving terms which are resolved by the attorney in leading the jury
through the evidence, the jury is confronted with an interesting
thought-provoking experience for which they will be grateful.
It is the Opening Statement which permits the presentation of
a trial in this manner. No other opportunity is presented. The
red flag highlighting the question posing approach is a simple
device for creating a persuasive framework within the jury goes
about its task. It is, of course, obvious that such a technique
requires forethought and actual manual drafting of an Opening
Statement in outline form. The outline form must be emphasized.
One can only rarely impose one’s personality on a group by reading
legal prose. No successful and effective reader of Opening State-
ments readily comes to mind. Once the thoughts and structure are
organized the spontaneity of speech is the only medium for impos-
ing your personality. Particularly in the early years of practice,
giving an opening statement to some captive audience is very
valuable. The videotape provides great opportunity to the attorney
for a scientific critique of the impact of an Opening Statement.
It requires discipline to give an effective Opening Statement.
You must learn to turn your mind to the task during the course of
case development. Tjme must be set aside to formally structure the
Opening Statement, winnow out the dangerous phrases and develop
favorable characterizations. In short, the Opening Statements do
not spring like venue from the head of Zeus. It is a technical,
legal, thought-provoking process with well-established structure
that can be repeated again and again. It is in fact the traditional
stuff of lawyering.

A closing argument should not be a haphazard
stew—..chojce morsels floating amid leftovers and
afterthough.....off j. j tentatively and fearfully
as If the cook were desperately trying to recaP
what happenej to that loud buzzing fly. Why the
lack of focus and structure? Why the lack of
conviction? Insecurity and laziness.
Part of the Insecurity stems from the failure
to realize who Is on trial. Yo aren’t. After a
lifetime of being evaluated at every turn, one Is
likely to conclude that “they” Invented closing
arguments simply as another trap In “their” re
lentless efforts to make a fool of you. Not so. In
arguing, recall the overriding issue_it is not how
you come off but, rather, whether an Innocent
man goes to prison, a guilty man goes free.
Another cause of Insecurity is lack of prepara-
tion—laziness. Arguments appear tentative be-
cause the advocate has not really focused on them
so as to understand their true cogency. The argu-
ment which “sounds good” during rehearsal sud-
denly weakens as It is given to the jury, holes ap-
pear and general relevancy fades. The advocate
begins to meander and backtrack.
Force yourself to think through the arguments.
To use a previous example, the racial prejudice
of the eyewftne has “something” to do with the
[ 37]
questions so that the jury will
of your background.” “Let us
to the night of the
around. flemem-
ill be talking to you.
softly, move far-
an occasional
didn’t know the
that you remember the
two years?” That is, don’t
‘with the witness.

worth of his Identification. But, precisely what?
Does it mean that the identification is mistaken
or that it is perjured? And, how does the fact
of racial prejudice fit with other facts surround-
ing the identification’ And, how does the issue
of the Identification fit Into your overall theory of
the case? What is suggested Is that you become
quite explicit both with yourself and with the
jury: ask yourself exactly why an argument is
cogent and then tell the jury why it Is so.
Turning now to the specific advice.
I. Be Explicit, Not implicit
“Ladies and Gentlemen of the Jury, can
we believe Gilmore when he says he saw
the lion lie down with the lamb? I think
not. Gilmore is President of Free the Lions
Why Is it that we are generally implicit in our
argument? Partly because we do not wish to
state the obvious, and partly because we lack the
mental discipline to ask “What is It that Is so ob-
vious, anyhow?” Recalling that what is obvious
to you may not be to the next person and that
upon analysis, the “obvious” often Isn’t, you
should generally be explicit:
Ladies and Gentlemen of the Jury,
part of your job is to determine
whether or not to l lieve Gil-
more’s story.
One way we test a story to see if
it is believable is to see if it
makes sense from what we know
of the world, if it conforms to
how the world operates.
For example, if someone tells you
in July that they had just re-
turned from Tucsen and that it
was snowing there, you would
naturally tend not t believe that
in this case. Gilmore testified that
the lion laid down with the lamb.
[ Counsel could stop here or
make the tie-ups explicit, to
In this world, it is our experience
that lions eat. lambs, not lie with
them. -
Therefore, Ladies and Gentlemen
of the Jury, you should not be-
lieve Gilmore.
And, in addition, Ladies and Gen-
tlemen, we judge the truth of a
story not only by whether or not
it makes sense. We also judge
the story by who tells it to uc.
The story may make sense, but it
still may be false. Does the stor-
teller have a motive to lie to us?
If he does, then we tend to lose
faith in what he tells us.
as to
Facts of
E 1 ’licit as to
factual con.
as to
as to
[ $8]
[ $9]

For example, do you believe the
used car salesman when he nays
the car was owned by an old maid
school teacher?
Now, in this case, Gilmore testi-
fied he is the President of Free
the Lions Committee and as such
wants lions to walk free.
Gilmore has an interest in us be-
lieving that he actually saw a lion
lie down with a lamb.
Therefore, Ladies and Gentlemen.
you should not believe Gilmore.
Gilmore should be eaten!
This example illustrates two key devices for ef-
fective closing argument. First, be explicit.
Second, analyze a story’s credibility from two
viewpoints. Does it make sense from what we
know of the world? Is the story-teller someone
we can believe? Both of these Insights are those
of Professor Binder.
IL Organize and Structure the Argument
Being explicit In closing argument requires that
It be structured rather than simply a series of
“good points”. It Is not enough to be explicit as
to lower level conclusions—racial bias of the eye-
witness means that he sees all minority group
members as the same means, when coupled with
other factors concernihg the identIfIcation, that
his Identification of the defendant cannot be be-
[ 40)
lieved. One should explicitly tie these conclu-
sions to the ultimate theory of your case: “The
fact that you cannot believe the eyewitness means
you cannot convict the defendant.”
The easiest and perhaps clearest organization is
“their side—our side”. Hence the Roman nu•
I. Why our side Is believable.
II. Why their side Is unbelievable.
Next come the capital letters and some fillers:
II. Why their side is unbelievable—they must
prove the defendant guilty and they have
only three pieces of evidence.
A. The eyewitness.
B. The money found on the defendant.
C. The gun.
Then, of course, come the arabic numerals:
A. The eyewitness: he cannot be believed
1. He is racially biased—his wife
testified to that.
2. He was 40 feet away from the
robber—he admitted that himself.
3. The lighting was dim—the clerk
of the store testIfied to that.
Note that you marshall evidence, not simply recite
It. Do not simply review what the first witness
said and then what the second said. Rather, state
your concluslon—”L ,adles and Gentlemen, the evi-
U. iS TiW$ $ -4 [ 41)
Facts of
as to
Explicit as to
ultimate con-
clusion, plus
poetic licen8e

dence will show that the eyewitness cannot be be-
lieved”—and, then combine all of the evidence
supporting that conclusion—part of the wife’s
testimony, part of the eyewitness’s, part of the
There are many possible organizing principles.
Once you have chosen one, fit each of your “good
points” Into its rightful place. By intuition, you
know what Is a “good point” but you should force
yourself to ask “Just why does this point help my
case?” Again, the need to be explicit.
In planning your argument you will face many
choice points. Should you begin with your strong-
est argument or should you end with It? Should
you include weak arguments or only those you
think are strong? I do not think there are sure
fire rules in this area; what makes an argument
convincing Is somewhat intangible and subjective.
Remember this Is basically an art. I would sug-
gest the method philosophers often use when logic
falls, that Is, self-exploration. In what form
would you, as a juror, find the argument most
And, once you have spent the time and effort
organizing your argument, do not hide the struc-
ture from the jury or judge. Give an overview:
Ladies and Gentlemen, we will first look at
the State’s case and then that of the defend-
ant, Mr. Hall. The State’s case rests on
three pieces of evidence: the eyewitness iden-
tificatlon, the money found on Mr. Hall and
the gun. I will examine each piece of evi-
dence and, upon Inspection, each will prove
untrustworthy. The testimony of the eye-
witness does not prove Mr. Hall guilty nor
does the money or gun. The State has not
proved Mr. Hall guilty. The reason the State
has failed is because he Is Innocent. We will
look at Mr. Hall’s case. It rests on the fol-
lowing evidence
During the argument, continue to tie up the spa.
cifia to your general theory:
“Hence, the eyewitness cannot be believed.
He is racially biased, he was 40 feet away
from the robber and the lighting was dim.
The State cannot prove Mr. Hall’s guilt by
this witness. The State has only two other
pieces of evidence linking him to the crime.
Let’s look at them.”
Finally, you should generally summarize your
argument. This will again review for the jury
how all the various bits of evidence fit into your
grand structure.
HI. Argue
Too many closing arguments are overly de-
fensive—they focus almost entirely explaining
away points made by the other side. Remember
that you must convince the jury that your side
should win, not just that your opponent should
lose. This is not done, however, by simply ignor-
ing the other side. At some point, you should
join issue. This means that you should argue.
[ 43J

On one level this means meeting the opponent’s
canned arguments. in attacking an eyewitness
Identification, for example, one routinely argues:
“How many times have you, Ladies and Gentle-
men, noticed someone who you first thought was
an old friend only to later recognize that he was
not?” What Is the response to this? “You would
not make a mistake if your friend stood in front
of you for two minutes with a loaded gun.” Argue
the specific facts of your case, not generalities.
On a more profound level, the failure to argue
stems from a failure to think through your op.
ponent’s theory of the case. Do not doggedly
deny it but rather think “O.K., let’s assume that
it’s correct. if It’s correct, what else would also be
Recall the case of Hansel and GreLel. The step-
mother’s defense Is that they made the whole
thing up In order to get rid of her because she had
prohibited them from playing with Jack and Jill.
Most beginners would respond to this defense by
arguing, first, the children do not have a strong
motive to lie and, second, they aren’t lying. But
note the fruitful areas of Inquiry and argument
opened by assuming the thrust of the defense:
“Assuming that Hansel and Gretel have an
overriding desire to continue to see Jack and
Jill, is getting rid of the stepmother the meth-
od they would adopt? If getting rid of the
stepmother was at they decided upon,
would they have thought of filing a false re-
report with authorities? Would they have
made up the story they did or some other?
And why would they include the bit about the
chicken bone?”
Put yourself in the position of the key actor and
play out the scenario as your opponent would have
it. “1 live In the Black Forest with my father,
the good woodsman, and my evil stepmother. She
will not let me see my best friends. What do I
do?” Another example: “1 am the plaintiff and it
Is true, as th defendant claims, that I saw the red
light and didn’t stop. If this Is what happened,
‘hat else would have happened and did It, in
IV. If You Argue She Law, Tie It to the Facts
Let’s focus on arguing “reasonable doubt.”
Should you argue It? Some defense counsels say
“No”, believing that It Is too great a concession—
your position should be that the defendant is in-
nocent rather than not all-that-clearly guilty.
Part of this objection can be met by dividing your
argument as previously indicated. As to the
State’s case, you argue reasonable doubt, as to
your own case, innocence.
Assuming you decide to argue reasonable doubt,
it Is not enough to simply state the law: “Ladies
and Gentlemen, the Judge will instruct you that
you must find the defendant guilty beyond reason-
able doubt.” Why the law requires this quantum
of proof In criminal cases is not self-evident. Ex-
plain the reasoning. Commit the Jury to the
standard rather than simply telling It to them.

“Ladies and Gentlemen, If someone came to
you and accused a loved one of a crime, you
would not believe it without more. You
would demand proof. What kind of proof?
Not just proof that maybe your relative is
guilty or even that he Is probably guilty. Be-
fore you would label youu relative criminal
you would demand such proof which would
remove all reasonable doubt froni your mind.
And, the law requires the same kind of proof
before you can convict Mr. Hall. Why? (Go
on to explain).”
Once you have set the stage for your reasonable
doubt argument, argue it by relating it to the
facts. Most arguments look like this:
—Proof beyond reasonable doubt required.
—Therefore, the State has failed to prove
guilt beyond a reasonable doubt.
Arguments should look like this:
—Proof beyond reasonable doubt required.
—Blab—-and this creates one doubt.
—Blah——and this creates another doubt.
—Blah---and this deates another doubt.
CK 3
V. Is the Other Side Lying or Mistaken?
Beginners have a difficult time In dealing witti
the opposition witness whose testimony flatly con-
tradicts their theory of the case. Some are rather
flip with “The evidence clearly shows Mr. Witness
was lying to you.” This Is a very serious allega-
tion and one which the jury will not accept readily.
Far more palatable to argue “I am sure Mr. Wit.
ness believes what he told you. However, the evi-
dence shows that he is mistaken.”
In some cases, however, there simply Is no
room for mistakes—either Mr. Witness Is lying or
your witness Is. If so, don’t beat around the bush;
If you want the jury to find that the witness has
lied, be bold enough to say so:
“Now I know It’s very difficult to believe that
someone would come down here, take an oath,
and lie to you. Our compassion and human-
ity forces us to resist that conclusion as long
as possible. But we cannot resist forever.
This Is a serious trial, with Important rights
at stake. Looking at the evidence, there Is
no other concJusIon— Ir. Witness was lying
when he said
Occasionally, tact may dictate a more Implicit ap-
Ladies and Gentlemen, the defendant’s only
alibi witness Is Mr. Witness. In assessing his
story, remember this. Mr. Witness is the
defendant’s father.
[ 46]
[ 47]

And, obviously, whether you argue mistake or lie,
hopefully you have given yourself ammunition to
support the conclusion. More of this in the Chap.
ter on Cross.
VI. Some Specific Techniques
.4. Don’t read your argunicut
By reading your closing argument you lose
spontaneity and flexibility. By talking directly to
the jury you will sense which of your points are
unclear, which are hitting home and which are
being rejected. Having freed yourself of a script,
you can respond to these reactions.
Instead of taking a script of your argument to
the podium, take an outline. This, of course, is
what you prepared in organizing the argument—
complete with Roman Numerals, Capital Letters,
and Arabic Numerals.
B. Try not to misstate evidence
The old saw is to prepare your closing argu-
ment before trial. This is good advice but don’t
forget the trial. Often you will be unable to prove
what you thought you could. Don’t go ahead and
argue it anyway.
One way to keep truck is to have your closing
outline with you during trial. For example:
A. Eyewitness: car not be believed.
1. He Is racially biased—his wife testified
to that.
Ch. 3
2. He was 40 feet away—his own testimony.
3. The lighting was “dim”—testimony of
the clerk.
Now, as the trial progresses, simply check off the
evidence as It comes. This should be easy, you
will only have a hundred thousand other things to
worry about. A trial note book, discussed In chap-
ter 8, will help.
C. Memorize your opening and closing
The danger Is that YOU will get up there and
freeze-_after several paInful minutes of silence
you will begin. But you will then run amucc
and not know how to stop. Hence, the advice:
memorize your first few lines and your strong
finish: “Well, Ladies and Gentlemen, I can’t think
of anything else. I sure hope you can.”
[ 48)

JAN 21. 98T
From: Regional Administrator
The attached Regional Order contains some important changes
regarding EPA procedures for responding to Freedom of Infor-
mation Act (FOIA) requests. Primarily, each Division and
Office (Action Office) will be responsible for compiling and
responding to such requests. FOIA Coordinators and Alternate
Coordinators are being established within each Action Office
to facilitate the expeditious handling of FOIA requests.
The FOX Off iàer will overview the process by maintaining FOIA
records, and will forward a copy of each request to the appro—
priate Action Office FOl Coordinator. The Action Offices will
gather the requested information and, as required, review the.
records for withholding with a designated attorney from the
Office of Regional Counsel (ORC).
EPA’S regulations for administering the FOIA have been augmen-
ted by a recently published FOIA Manual. The FOIA Manual and
this revised Regional Order jointly provide guidance on policy,
procedures, and responsiblity for administering Region IV’ S
FOIA program.
Region IV has seen a steady growth in the number of FOl requests.
All indications are that the FOIA program will continue to
increase — in both the number of requests and volume of records
requested. It is imperative, therefore, that those employees
responsible for maintaining EPA records be well informed regard-
ing the release or withholding requirements under the FOIA.
Walton Jones, the FOX Officer, has scheduled a two—day training
course for Region IV personnel on January 27—28, 1987 (See the
attached Schedule). I urge Action Offices to have their FOIA
Coordinators, Alternate Coordinators, and other personnel
involved with the FOIA process attend the training. The FOIA
Office will continue to be a resource for the FOIA Coordinators
who have questions or need assistance.
Jack E. Ravan

Atlanta Hilton Hotel
255 Courtland Stret NE
Atlanta, Georgia 30043
John Adams Room (3rd Floor)
Phone (404) 659—2000
Tuesday, January 27, 1987
Welcome and Introductions — Walton Jones
Region IV FOIA Policy — Lee DeHihns
FOIA Requirements — Lee DeHihns & Wayne Lee
FOIA Process — Walton Jones & Jerri Green
Exemption 6, 7C & Privacy Act — Rose Arnold
Workshop on 6 & 7 — Tom Darner, Rose Arnold
Jane Roemer, Wayne Lee
Fees, Waivers & Billing — Jerri Green & Richard Laska
Workshop on Procedures & Fees — Jerri Green, Richard
Laska, Walton Jones
Wednesday, January 28
8:30 a.m.
9:15 a.m.
10:00 a.m.
10:15 p.m.
11:00 p.m.
11:45 p.m.
1:00 p.m.
1:45 p.m.
2:30 p.m.
2:45 p.m.
For more infoimatiot call Walton Jones at (404) 347—3004
8:30 a.m.
9:00 a.m.
9:10 a.m.
9:30 a.m.
10:30 a.m.
10:45 a.m.
11:45 a.in.
1:00 p.m.
1:45 p.m.
4:15 p.m. Close
4 — Jane Roemer
— Tom Darner, Jane Roemer, Wayne Lee
5 — Tom Darner
— Tom Darner, Jane
7 and Subsection C
— Tom Darner, Jane
Roeiner, Wayne Lee
— Tom Darner & Wayne Lee
Roemer, Wayne Lee
3:15 p.m.
Open Forum — Questions and Answers
Jerri Green, Walton Jones, Tom Darner,
Jane Roemer, Wayne Lee, Richard Laska

A. EPA’S guidance on policy and procedures for implementing
FOIA/Public Information Regulations (Title 40 CFR, Chapter
1, Part 2) are found in the Freedom of Information Manual
— 1550 . References made in this Regional Order refer to the
P01 Manual unless otherwise specified.
B. The Freedom of Information Act (FOIA) is found at 5 USC S552.
C. EPA regulations concerning implementation of the FOIA are
found in Title 40, CFR, Chapter 1, Part 2.
Requests made to EPA for information which fall under the Freedom
of Information Act (FOIA) shall be processed through the FOl Office.
The responsibilities for responding to FOIA requests are placed
with the EPA Offices having custody of the requested records
(Action Offices). The Action Office shall compile the materials
and coordinate with Office of Regional Counsel (ORC), as required,
to ensure exempt records are not released. Action Office FOIA
Coordinators shall assist in preparing the response, and co-
ordinate with the FOI Officer regarding FOIA procedures.
This Regional Order, in conjunction with the P01 Manual, es-
tablishes policy, responsibility and procedures for implement-
ing EPA’S Freedom of Information Act (FOIA)/PubliC Information
Regulations (Title 40 CFR, Chapter 1, Part 2).
It is the Agency’s policy to make the fullest possible disclosure
of information without unjustifiable expense or unnecessary delay
to any requester.
A. Definitions .
1. What is an FOIA request ? A FOIA request is a written re-
quest for records held or believed to be held by EPA. The request
need not specifically refer to the Freedom of Information Act .

NOTE: Requests for records prepared by EPA for routine
distribution such as pamphlets, speeches, press releases,
educational materials, and other public information, should
be handled by the appropriate office without following the
detailed procedures of this Regional Order. Fees for com-
piling this type of general information cannot be assessed
under the FOIA.
2. What is an agency record ? Records may include any
existing document, memorandum, report, photograph, sound or
magnetic recording, computer tape, drawing, or something similar
on which information has been preserved. The term includes draft
documents and may include handwritten notes (except personal notes,
see FOl Manual Chapter 3, section l.g).
3. Who can make a FOIA request ? Requesters under FOIA can
include any individual (including non—U.S. citizens), corporation
or association, public interest group, and local, State or foreign
government. Requests from Federal agencies, the General Account-
ing Of f ice, or the Congress (i.e., the Speaker of the House, the
President of the Senate, or the Chair of a committee or subcom-
mittee) are not FOIA requests. (See Chapter 3.)
B. Options for handling FOIA requests .
Generally, an office has four options in handling an FOIA request
for existing, located records. These options may be applied singly
or in combination for a given request, as follows:
1. Releasing documents . All EPA records will be made available
to the requester upon receipt of a request (see FOl Manual Chapter 5)
unless they fall under one of the nine exemption categories provided
under the FOIA.
2. withholding documents . An office may withhold records if they
fall under one of the nine exemptions of the FOIA. (See Chapter 7).
3. Partial withholding of documents . If documents contain both
exempt and non—exempt information, the non—exempt information must be
disclosed if the exempt material is reasonably segregable” and
necessary deletions can be made without making the document unintelli-
gible (See FOX Manual Chapter 6, Section 6).

4. Discretionary release . An office may release requested records
that fall under Exemptions 2, 5, and 7 of the FOIA (e.g. internal
agency rules, inter— and intra—agency memos, and law enforcement
records). As a matter of policy, the Agency encourages disclosure of
these records if no important Agency purpose (i.e., release would
not cause significant harm to the Agency) iS served by withholding
(See FOl Manual Chapter 9).
A. Initial Determination .
Ordinarily, there is a 10—workday limit in which to make an initial
determination on whether to release or withhold records requested
under the FOIA, with the first day being the date when the Agency or
Regional FOl Office receives the request. Excluded from that period
is any time taken by the requester to provide EPA with additional
information to be able to identify the records or time required to
secure prepayment of fees or assurance of payment.
•B. Appeals .
Any person whose request is denied in whole or in part has a right
to appeal the determination. This appeal should be mailed to the
Agency FOl Office no later than 30 calendar days after the day the
requester receives the Agency’s denial. The Office of General Counsel
(OGC) then has 20 workdays to review the appeal and to determine
whether the records were properly withheld.
C. Extensions .
An extension of up to 10 workdays total may be taken on the due date
for the initial determination or appeal determination. For the
initial determination, an extension may be taken only if the search
involves extensive records, physically distant records, or consulta-
tion with another agency or another office within the Agency. Total
extension time taken on initial determinations and appeal determina-
tions may not exceed 10 workdays.
For example, if an extension of three days is taken for issuing the
initial determination, an extension taken during the appeal period
can only be for seven days or less. If an initial determination
cannot be issued within 10 workdays, the Action Office should provide
written notice to the requester concerning the status of the request
by the tenth day. The written notice should inform the requester
that an extension is being taken, cite the reasons for the extension,
and give the estimated date by which the Agency reply will be made.
-, —3—

A. Regional Freedom of Information Officer .
The Region IV P01 Officer responsiblities include the following:
coordinate and oversee the Regional FOI program; develop and
review Regional FOl procedures and policies; receive and log all
FOIA requests in the P01 Logbook; route requests to the appropriate
Action Offices and ORC; track responsiveness to requests; monitor
Regional FOIA activities; provide advice to Regional personnel in-
volved with responding to FOIA requests; prepare reports on FOIA
activities; coordinate written responses when two or more program
officers are involved and when issuing a letter of denial; monitor
quality, timeliness, and consistency of responses; maintain the
Regional FOIA official files; and provide training and current
information to Regional personnel involved with the FOIA.
B. Office of Regional Counsel (ORC )
The Region IV Office of Regional Counsel (ORC) responsibilities in-
clude the following: provide legal advice to Regional personnel on
FOIA questions (especially concerning records considered for with-
holding under the FOIA); issue final determinations on claims of
Confidential Business Information (CBI) in cases where authority has
been delegated to them; provide legal counsel on FOIA litigation;
and maintain a current list of all businesses, individuals, or other
entities against which EPA Region IV has pending enforcement actions.
ORC shall provide such lists to Action Offices for making initial
determinations regarding the release of requested materials. The
P01 Officer will be available for consultation in making these
C. Action Offices .
Action Offices (Division Directors, Office Directors, and their
staffs) are responsible for providing information in response to
FOIA requests from records they maintain. Each Action Office shall
designate an P01 Coordinator and an Alternate P01 Coordinator to
oversee the response to FOIA requests.
Action Office responsibilities include the following:
receive routed P01 requests through the FOl Coordinator; analyze
FOIA requests for completeness; contact requester to obtain a
clarification when the request is vague, extremely broad, or asks
for voluminous records; arrange for a time extension when necessary;

locate records; compile the required information (make copies or
arrange for reproduction); purge exempt portions of records of le-
gally withheld information; arrange for payment of fees when requir-
ed (i.e. prepare the Bill of Collection form); forward three copies
of the Bill of Collection to the Financial Management Office;
accommodate visitors who request to review records at the EPA office;
assist in preparing written responses; coordinate with the FOl
Officer when preparing a letter of denial of records and when two
or more Action Offices respond to the same request; consult with
ORC before making a determination on any request involving litigation
or enforcement records; assist in preparing an itemized list of
withheld records as required; and forward two copies of each letter
of response and one copy of the bill (if appropriate) to the FOl
Action Offices shall coordinate with ORC and the FOl Officer when
necessary to determine what records may not be disclosed (pursuant
to a lawful exemption) or to discuss general procedures. They shall
receive assurance of payment of fees from the requester in accordance
with applicable regulations and Region IV policy. (See FOl Manual
Chapters 3 and 4.)
D. FOIA Coordinators .
The FOIA Coordinators responsibilities include the following:
receive the FOIA requests from the FOIA Officer; assign requests to
persons within the organization best qualified to compile the re-
quested information; coordinate the compilation and/or withholding
of requested records; prepare and maintain a list of any withheld
information from requested EPA records; arrange for a location and
provide records (after exempt records have been purged) for visitors
who have previously requested through the FOl Office to review
records at the EPA office-; provide each visitor with access to EPA
copy machines as required; prepare response letters for appropriate
signature or sign where authority to do so has been delegated to
them; ensure that requested information is compiled and forwarded
to the requester; coordinate with the P01 Officer when required;
and ensure FOIA responses are made within the alloted time.
E. Financial Management Office
The Financial Management Office will ensure all Bills for Collection
related to FOIA requests are recorded promptly. They will prepare
follow—up billing for all uncollected FOIA requests, reconcile FOIA
receivables against information provided by the FOIA Office, and
collect fees related to FOIA requests.

The procedures to be followed are those prescribed by the Preedom of
Information Manual, this Regional Order, the applicable regulations
(40 CFR Part 2), and Region IV policy. Always contact the P01 Office
when there is doubt as to how to proceed with a request for informa-
tion. The following is an outline of basic procedures:
A. Receipt of Requests .
1. Written Requests . Written requests for information (excluding
published documents or readily available records) shall be forwarded
to the FOl Office including FOIA requests sent by HO FOIA Office.
The request shall be appropriately marked with a unique Request
Identification Number (RIN) and due date, and logged into the official
P01 log book. Any persons or Offices receiving P01 requests shall
immediately forward such requests through the Division or Office P01
Coordinator to the FOl Office. However, the Environmental Services
Division, because of the Division’s geographical distance from the
primary EPA Region IV office, shall telephone the P01 Officer im-
mediately to secure the appropriate RIN number.
2. Requests by Visitors . Whenever an individual visits EPA
Region IV to secure information of a general nature, regional per-
sonnel and/or the security guard shall direct the visitor to the
appropriate person, who shall supply the requested information if
it is readily available and releasable. If the visitor is seeking
information under the FOIA, they shall be directed to the FOIA
Office, and the P01 Officer shall proceed as follows.
(a) If the visitor has previously requested through the P01
Office to review records, they shall be directed to the appropriate
Action Office and FOl Coordinator.
(b) If the request is an FOIA request, obtain a written request
from the visitor and process the request accordingly. The requester
shall be notified of the procedures for responding to an FOIA request
and informed of arrangements being made for their transmission, and
payment of fees, if appropriate.
3. Requests by Telephone . If a requester makes an oral request,
it is not an FOIA request. The procedures to be followed are con-
tained in Chapter 3 of the P01 Manual, and are summarized as follows.

(a) If the requested record (such as a document, pamphlet, or
EPA publication) is readily available and releasable, it does not
require handling under the FOIA. The requester should be provided
the requested information, subject to the payment requirements of
the FOl Manual and this Order, and a copy of the response forwarded
to the P01 Officer; or
(b) If there is any doubt to whether the request would be
subject to the FOIA, or if the request will require extensive search
time or involves records that may be exempt from disclosure, inform
the requester that a written request must be submitted and processed
according to procedures governing a written request. -
4. Requests for Information by Members of the Press . Requests
from members of the Press (telephone calls, personal visits, or
written requests) shall be referred to the Public Affairs Branch and
the Public Affairs Branch staff will coordinate the request with the
FOl Office to determine if it is to be handled as an P01 request.
5. Requests for Information by Members of Congress . Refer
all requests from Members of Congress to the Office of Congressional
Affairs (OCA). The OCA shall determine if.such requests fall under
the FOIA, and will coordinate the requests with the FOl Officer.
B. Logging, Routing, and File Maintenance .
1. Initial Handling of Requests .
(a) Log the Request . The P01 Officer shall enter each request
in the FOXA Request Log with the following information:
date received, a unique Request Identification Number
(RIN), and a due date for response.
(b) Acknowledge the Request . The FOl Officer will acknowledge
receipt by informing the requestor of the date the request
was received and the RIN number.
Cc) Route the Request . The P01 Office shall be responsible
for routing the requests to the appropriate Action Offices,
and when appropriate, shall route a copy of the requests
to the ORC. The Action Office shall route the request to
personnel within their office to respond, but should never
re—route FOIA requests directly to another Action Office.
Action Offices receiving FOIA requests that have been
routed incorrectly shall return it to the FOl Office.

(d) Multiple Response Offices . If more than one office will
provide material for the reply, the FOl Officer shall
coordinate the response and either (1) designate a Lead
Action Office , or (2) instruct each office to prepare
separate replies. The designated Lead Action Office shall
be responsible for receiving copies of requested records
from the other Action Offices, compiling all requested
information and assessing fees, and processing the P01
request. Each Action Office shall provide copies of the
requested records to the Lead Action Office prior to the
time period required under FOIA.
C. Responses .
A response to a request for information must be prepared within-ten
(10) working days. When the responsible Action Office determines
that a request cannot be satisfied within ten (10) working days,
they shall notify the requester of the delay by letter ( and tele-
phone, if practicable) and give an estimated date of completion up
to ten working days in accordance with the POT Manual.
Requests that are extremely broad or ask for voluminous records
can best be managed by having the Action Office personnel most
familiar with the records telephone the requester (after the
appropriate consultation with ORC) to narrow the scope of the
request, or to invite the requester to visit the EPA office to
review the records personally.
When a letter of denial for records is to be issued, the Action
Offices shall receive concurrence from the FOl Officer and ORC
before sending the denial letter forward for signature. The P01
Officer and ORC shall, upon request, consult and advise regional
personnel regarding the requirements and constraints of the Act.
When a denial letter is issued and the requester appeals the
denial, the Office of Regional Counsel will serve as the primary
Region IV contact with the Office of General Counsel with respect
to such appeals. -
The following procedures shall apply:
1. The responsible Action Offices (Division or Offices) shall
locate the records as promptly as possible, or determine that:
(a) the records do not exist;
(b) the records are located in another EPA office; or
(c) the records are held by another federal agency.

2. The Action Office shall initially determine whether it is
appropriate to release the requested information and shall, in
appropriate cases, consult with the Office of Regional Counsel.
If it is determined that release can be made, the material will
be prepared for release by the appropriate authorized official
and two copies of the response forwarded to the POX Officer.
3. Subject to the consultation and clearance procedures
outlined in the Responsibilities section above, the responsible
Action Office shall issue an initial determination or transmit
the requested materials within ten (10) days of receipt and shall
otherwise comply in all respects with the requirements of EPA
Order 1550.2 the P01 Manual, and 40 CFR, Part 2.
4. If the Action Office determines initially that (after con-
sultation with the Office of Regional Counsel) denial of all or part
of a request is appropriate, they shall immediately notify the FOl
Officer of the decision to withhold the information. The FOX Officer
shall coordinate an appropriate response with the Action Office which
informs the requester of the initial denial. Thus, the requester
shall either be notified of EPA’s decision to deny the request, or
the information shall be released within the prescribed time limit.
Policies and procedures for fees are found in Chapter 4 of the FOIA
Manual. Consult the FOIA Manual for procedures to be followed with
respect to fee waivers, payments and fees for search time and repro-
duction costs associated with FOIA requests. Further guidance for
fees and charges are provided in 40 CFR Section 22.120.
All instructions for making payment to EPA Region IV for compiling
FOIA records shall reference the following address for payment.
U. S. EPA — Region IV
P. 0. Box 100142
Atlanta, GA 30384
The Action Office providing copies of requested records shall deter-
mine what fees, if any, are to be charged to a requester. When more
than one Action Office provides records, the Lead Action Office desig-
nated by the FOIA Office shall determine the overall fees charged.
Agency employees will be held accountable for their decisions with
respect to the release or withholding of information, the waiver of
fees, the appeals process, and any actions they take relative to
administering the FOIA Regional Order.

A. Authority to Release Information, Waive Fees, or Grant Extensions .
The authority to make initial determinations regarding (1) the release
of records, (2) a waiver of fees, or (3) an extension of due dates
for response is delegated to the following:
— Deputy Regional Administrator
— Division Directors
— Regional Counsel
— Chief, Office of Congressional & External Affairs
— Freedom of Information Officer - -
Any redelegat ion of authority must be written and copies of. the
official redelegation must be kept on file at the Regional FOl
Office and with the FOl Coordinator.
B. Authority to Withhold Information .
The authority to make initial determinations to withhold records
(issue a denial letter) is delegated to the following:
— Deputy Regional Administrator
— Assistant Regional Administrator for Policy and Management
In their absence, this authority is delegated to the following:
— Division Directors
— Regional Counsel
Jack E. Ràvan
Regional Administrator

U.S. Department of Justice
Office of Legal Policy
Office of Information and Prh’ac
bWhuigtoit. D.C 20530
October 27, 1986
TO: All Principal FOIA Legal and Administrative Contacts
FROM: chard L. Buff
.Daniel J. Metcalfe
Office of Information and Privacy
SUBJECT: FOZA Reform Legislation
Today the President signed into law the Anti—Drug Abuse Act
of 1986, an omnibus piece of legislation which includes, as
sections 1801-04 of the law, the Freedozv of Information Reform
Act of 1986. This legislation expands the law enforcement
protections of the FOIA and also modifies the Act’s fee and fee
waiver provisions.
Pursuant to section 1804(b) (1) of the law, the new fee and
fee waiver provisions will not become effective for 180 days, so
as to permit the Office of Management and Budget and your agency,
in turn, to issue new guidelines and regulations governing them.
All of the law’s new law enforcement provisions, however,
are effective immediately as of this date. Pursuant to section
1804(a) of the law, these hew protections are applicable to all
FOIA requests currently pending, and even to all FOIA litigation
now pending at any stage in court.
If your agency has any law enforcement records, you need to
iimnediately familiarize your staff with these law enforcement
amendments-—consisting of extensive revisions to Exemption 7 and
the establishment in new subsection (c) of the Act of three
special exclusions for specified law enforcement records—’and to
ensure that they are applied wherever appropriate henceforth.
To facilitate your staff’s familiarization with the new law,
we are enclosing a copy of the FOIA in a form which shows bow it
has been amended. The repealed language has been overatruck; the
new language has been underscored. Please remember that only the
law enforcement provisions are effective ii ediately.
The Department will soon issue guidance on the irtplementa
tion of these provisions. In the meantime, if you have any
auestior.s please call our FOIA Counselor servicq at 724-7400.

Federal Register when incorporated by reference therein with the
approval of the Director of the Federal Register.
(2) Each agency, in accordance with published rules, shall make
available for public inspection and copying-—
(A) final opinions, including concurring and dissenting
opinions, as well as orders, made in the adjudication of
(B) those statements of policy and interpretations which
have been adopted by the agency and are not published in the
Federal Register; and
(C) administrative staff manuals and instructions to staff
that affect a member of the public; unless the materials are
promptly published and copies offered for sale. To the
extent required to prevent a clearly unwarranted invasion of
personal privacy, an agency may delete identifying details
when it makes available or publishes an opinion, statement of
policy, interpretation, or staff manual or instruction.
However, in each case the justification for the deletion
shall be explained fully in writing. Each agency shall also
maintain and make available for public inspection and copying
current indexes providing identifying information for the
public as to any matter issued, adopted, or promulgated after
July 4, 1967, and required by this paragraph to be made
available or published. Each agency shall promptly publish,
quarterly or more frequently, and distribute (by sale or
otherwise) copies of each index or supplements thereto unless
it determines by order published in the Federal Register that
the publication would be unnecessary and impracticable, in
which case the agency shall nonetheless provide copies of
such index on request at a cost not to exceed the direct cost
of duplication. A final order, opinion, statement of policy,
interpretation, or staff manual or instruction that affects a
member of the public may be relied on, used, or cited as -
precedent by an agency against a party other than an agency
only if—-
(i) it has been indexed and either made available or
published as provided by this paragraph; or
(ii) the party has actual and timely notice of the terms
(3) Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency, upon any
request for records which (A) reasonably describes such records
and (B) is made in accordance with published rules stating the
time, place, fees (if arLy), and procedures to be followed, shall
mike the records promptly available to any person.

5 U.S.C. 5552
As Amended By *
‘The Freedom of Information Reform Act of 1986
5552. Public information; agency rules, opinions, orders, records, and
(a) Each agency shall make available to the public information as
(1) Each agency shall separately state and currently publish in
the Federal Register for the gui ance of the public——
(A) descriptions of its central and field organization and
the established places at which, the employees (and in the
case of a uniformed service, the members) from whom, and the
methods whereby, the public may obtain information, make
auhmittals or requests, or obtain decisions;
(B) statements of the general course and method by which its
functions are channeled and determined, including the nature
and requirements of all formal and informal procedures
(C) rules of procedure, descriptions of forms available or
the places at which forms may be obtained, and instructions
as to the scope and contents of all papers, reports, or
(D) substantive rules of general applicability adopted as
authorized by law, and statements of general policy or
interpretations of general applicability formulated and
adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice
of the terms thereof, a person may not in any manner be required
to resort to, or be adversely affected by, a matter required to
be published in the Federal Register and not so published. For
the purpose of this paragraph, matter reasonably available to
the class of persons affected thereby is deemed published in the
* The provisions specifying the effective dates of these amend-
nents are set out t the enã of the text of the Act.

(4) (A) ( i ) In order to carry out the provisions of this section,
each agency shall promulgate regulations, pursuant to notice and
receipt of public comment, specifying a-ui 4ferm the schedule of
fees applicable to a —ee ageaeyT the
processing of requests under this section and establishing
procedures and guidelines for determining when such fees should
be waived or reduced. Such schedule shall conform to the
guidelines which shall be promulgated, pursuant to notice and
receipt of public comment, by the Director of the Office of
Management and Budget and which shall provide for a uniform
schedule of fees for all agencies. 9 eh—f eta—she —be —i m4te4
-for-dee e t—eeareh -aa P 4ea—
t4 e t-and-preY e _for_reee,e,y_ef _efl Ytheê reet00et0 h

bene f4tg _heqe era P b e?
( ii) Such agency regulations shall provide that——
( 1) fees shall be limited to reasonable standard
barges for document search, duplication, and review,
when records are requested for coercial use;
( II) fees shall be limited to reasonable standard
charges for document duplication when records are not
sought for commercial use and the reguest is made by an
educational or noncommercial scientific inBtitUtiofl,
hose purpose is scholarly or scientific research; or a
iepresentative of the news media; and
( III) for any reguest not described in (I) or (II),
fees shall be limited to reasonable standard charges
- for document search and duplication.
( iii) Documents shall be furnished without any charge or
it a charge reduced below the fees established under
lause (ii) if disclosure of the information is in the
public interest because it is likely to contribute sjg
nificantly to public understanding of the operations or
ic -tivities of the government and is not primarily in the
ommercial interest of the requester.
( iv) Tee schedules shall provide for the recovery of only
he direct costs of search, duplication, or review.
Review costs shall include only the direct costs i curred
during the initial examination of a document for the
iirposes of determining whether the documents must be
disclosed under this section and for the purposes
withholding any portions exemPt from disclosure this
section. Review costs may not _ include any co 5 ts4l Curred
In resolvi! Iisues U1aW or policy at may be ralied T!

the course of processing a request under this section. No
fee may be charged by any agency under this section-—
( I) if the costs of routine collection and proce.sjn
of the fee are likely to equal or exceed the amount o
the fee; or
( II) for any request described in clause (ii) (II)
or ( III) of this subparagraph for the first two hours
of search time or for the first one hundred pages of
duplication . - -
( v) No agency may require advance payment of any fee
unless the requester has previously failed to pay fees in
a timely fashions or the agency has determined that the
fee vii]. exceed $250 . -
( vi) Nothing in this subparagraph shall supersede fees
chargeable under a statute specifically providing for
setting the level of fees for particular types of records.
( vii) In any action by a requester regarding the waiver
of fees under this section, the court shall determine the
matter de novo, provided that the court’s review of the
natter shall be limited to the record before the agency .
(B) On complaint, the district court of the United States in
the district in which the complainant resides, or has his
principal place of business, or in which the agency records
are situated, or in the DiBtrict of Columbia, has jurisdic-
tion to enjoin the agency from withholding agency records
and to order the production of any agency records improperly
withheld from the complainant. In such a case the court
shall determine the matter de novo, and may examine the con-
tents of such agency records in camera to determine whether
such records or any part thereof shall be withheld under any
of the exemptions set forth in subsection (b) of this sec-
tion, and the burden is on the agency to sustain its action.
(C) Notwithstanding any other provision of law, the defen-
dant shall serve an answer or otherwise plead to any c t-
plaint made under this subsection within thirty days after
service upon the defendant of the pleading in which such
complaint is made, unless the court otherwise directs for
good cause shown.
(D) (Exceptas to cases the court considers of greater
importance, proceedings before the district court, as author-
ized by this subsection, and appeals therefrom, take prece-
dence on the docket over all cases and shall be assigned for
hearing and-trial or for argument at the earliest practicable
dst e and expedited in every Va ”. ] Repealed. Pub. L. 98-620,
Title IV, S402(2), Nov. 8, 1964, 90 Stat. 3335, 3357.

(E) The court may assess against the United States reason-
- - able attorney fees and other litigation costs reasonably
incurred in any case under this section in which the cone—
plainant has substantially prevailed.
(F) Whenever the court orders the production of any agency
records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other
litigation costB, and the court additionally issues a written
finding that the circumstances surrounding the withholding
raise questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the Special
Counsel shall promptly initiate a proceeding to determine
whether disciplinary action is warranted against the officer
or employee who was primarily responsible for the withhold-
ing. The Special Counsel, after investigation and considera-
tion of the evidence submitted, shall submit his findings and
recommendations to the administrative authority of the agency
concerned and shall send copies of the findings and recommen-
dations to the officer or employee or his representative.
The administrative authority shall take the corrective action
that the Specisi Counsel recommends.
(G) In the event of noncompliance with the order of the
court, the district court may punish for contempt the respon-
sible employee, and in the case of a uniformed service, the
responsible member.
(5) Each agency having more than one member shall maintain
and make available for public inspection a record of the final
votes of each member in every agency proceeding.
(6) (A) Each agency, upon any request for records made under
paragraph (1), (2), or (3) of this subsection, shall——
(i) determine within ten days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt of
any such request whether to comply with such request and
shall immediately notify the person making such request of
such determination and the reasons therefor, and of the
right of such person to appeal to the head of the agency
any adverse determination: and
(ii) make a determination with respect to any appeal
within twenty days (excepting Saturdays, Sundaye, and
legal public holidays) after the receipt of such appeal.
If on appeal the denial of the request for records is in
whole or in part upheld, the agency shall notify the
person making such request of the provisions for judicial
review of that determination under paragraph (4) of this

(B) In unusual circumstances as specified in this subpara-
graph, the time limits prescribed in either clause (i) or
clause (ii) of subparagraph (A) may be extended by written
notice to the person making such request setting forth the
reasons for such extension and the date on which a determina-
tion is expected to be dispatched. No such notice shall
specify a date that would result in an extension for more
than ten working days. As used in this subparagraph, un-
usual circumstances means, but only to the extent reasonably
necessary to the proper processing of the particular
(i) the need to search for and collect the requested
records from field facilities or other establishments that
are separate from the office processing the request;
(ii) the need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct
records which are demanded in a single request; or
(iii) the need for consultation, which shall be conducted
with all practicable speed, with another agency having a
substantial interest in the determination of the request
or among two or more components of the agency having
substantial subject—matter interest therein.
(C) Any person making a request to any agency for records
under paragraph (1), (2), or (3) of this subsection shall be
deemed to have exhausted his adlniniBtrative remedies with
respect to such request if the agency fails to comply with
the applicable time limit provisions of this paragraph. If
the Government can show exceptional circumstances exist and
that the agency is exercising due diligence in responding to
the request, the court may retain 3urisdiction and allow the
agenc y additional time to complete its review of the records.
Upon any determination by an agency to comply with a request
for records, the records shall be made promptly available to
such person making such request. Any notification of denial
of any request for records under this subsection shall set
forth the names and titles or positions of each person
responsible for the denial of such request.
(b) This sectLon does not apply to matters that are——
(1) (A) spec cally authori2ed under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classi-
fied pursuant toS such Executive order;
(2) related solely to the internal personnel rules and prac-
tices of an agency;

(3) specifically exempted from disclosure by statute (other
than section 552b of this title), provided that such statute (A)
requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establish-
es particular criteria for withholding or refers to particular
types of matters to be withheld:
(4) trade secrets and coercial or financial information
obtained from a person and privileged or confidential:
(5) inter—agency or intra—agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency:
(6) personnel and medical files and similar files the disclos-
ure of which would conRtitute a clearly unwarranted invasion of
personal privacy:
(7) veet4qatery records or information compiled for law
enforcement purposes, but only to the extent that the production
of such law enforcement records or information we (A) could
rea onably be expected to interfere with enforcement proc 3
ings, (B) would deprive a person of a right to a fair trial or
an impartial adjudicatior., (C) could reasonably be expected to
constitute an unwarranted invasion of personal privacy, CD)
could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency
or authority or any private institution which furnished informa-
tion or. a confidential basis 1 and, in the case of a record or
information compiled by a criminal law enforcement authority in
the course of a criminal investigation, or by an agency conduct-
ing a lawful national security intelligence investigation,
eef4dent4e information furnished enIy by the a confidential
source, CE) would disclose 4 vest4gat ve techniques and proce-
dures for la 1orcernent investigations or prosecutions 1 or
would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law , or (F) could reasonably be ex —
p _ o endanger the life or physical safety of aw—enferee —
aent-pereernte any individuals
(8) contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of
an agency responsible for the regulation or supervision of
financial institutions: or
(9) geological and geophysical information and data, jncl4ding
maps, concerning wells.

Any reasonably eegregable portion of a record shall be provided
to any person requesting such record after deletion of the portions
which are exempt under this subsection.
( C) (1) Whenever a request is made which involves access to records
described in subsection (b) (7) (A) and——
( A) the investigation or proceeding involves a possible
violation of criminal law; and
- ( ) there is reason to believe that (i) the subject of the
investigation or proceeding is not aware of its pendency, and
- ( ii) disclosure of the existence of the records could reason-
ably be expected to interfere with enforcement proceedings,
the agency may, during only such time as that circumstance
continues, treat the records as not subject to the requirements
of this section.
( 2) Whenever informant records maintained by a criminal law
enforcement agency under an informant’s name or personal identi-
tier are requested by a third party according to the informant’s
name or personal identifier, the agency may treat the records as
not subject to the requirements of this section unless the
informant’s status as an informant has been officially confirmed.
( 3) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to
foreign intelligence or counterintelligence, or international
terrorism, and the existence of the records is classified
- information as provided in subsection (b) (1), the Bureau may, as
.ong as the existence of the records rema ns classified informa-
tion, treat the records as not subject to the requirements of
this section . -
4e3(6) This section does not authorize withholding of information
or limit the availability of records to the public, except as
specifically stated in this section. This section is not authority
to withhold information from Congress.
4d9(e) On or before March 1 of each calendar year, each agency
shall submit a report covering the preceding calendar year to the
Speaker of the House of Representatives and President of the Senate
for referral to the appropriate coittees of the Congress. The
report shall include-—
(1) the number of determinations made by such agency not to
comply with requests for records made to such agency under
subsection (a) and the reasons for each such determination;
(2) the number of appeals made by persons under subsection
(a)(6), the result of such appeals, and the reason jor the
action upon each appeal that results in a denial of informatiun;

(3) the ma,es and titles or positions of each person respon—
silile for the denial of records requested under this section,
-. -and the number of instances of participation for each,
(4) the results of each proceeding conducted pursuant to
subsection (a) (4) (F), including a report of the disciplinary
action taken against the officer or emplcy.e who was prizarily
responsible for improperly withholding records or an explanation
of wh.y disciplinary action was not takan
(5) copy of .very rule made by such agency regarding this
• section: -
• (6) a copy of the fee schedule and the total amount of fees
collected by the agency for making records available under this
section, and
(7) such other information as indicates efforts to administer
fully this section.
The Attorney General sha3 1 submit an annual report on or before
)larch 1 of each calendar year which shall include for the prior
calendat year a listing of the number of cases arising under this
section, the exemption involved in each case, the disposition of
such case, and the cost, fees, and penalties assessed under sub-
sections (a) (4) (E), (F), and (G) • Such report shall also include
a description of the efforts undertaken by the Department of
Justice to encourage agency compliance with this section.
4e)(f) For purposes of this section, the term wagencyR as defined
in section 551(1) of this title includes any Executive department,
military department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or
any independent regulatory agency.
C * * 5*
Section 1804. Effective Dates [ Will not be codified].
(a) The amendments made by section 1802 (the modification of
Exemption 7 and the addition of the new subsection (C)] shall be
effective on the date of enactment of this Act (October 27, 19863,
and shall apply with respect to -any requests for records, whether
or not the request was made prior to such date, and shall apply to
any civil action pending on such date.
(b) (1) The amendments made by section 1803 (the new fee and fee
waiver provisions) shall be effective 180 days after the date of
the enactment of this Act, except that regulations to implement
such amendments shall be pr ’znulgated by such lROth da ’.

(2) The amendments made by section 1803 shall apply vith
respect to any requests for records, whether or not the r.qu..t
was made prior to such date, and shall apply to any civil action
pending on such date, except that review charge. applicable to
records requested for ccrimercial use shall not be applied by an
agency to requests made before the effective date specified in
paragraph (1) of this subsection or before the agency has
finally issued it regulations. -

IT 1986
SUBJECTS Freedom of Information Reform Act of 1986
FROM: Jeralene B. Green ,tL’ 4 -”
Agency Freedom of Information Officer (A—1Ol)
Thomas A. Darner
Assistant General Counsel
Contracts and Information Law Branch (LE—132G)
TO: Regional FOX Officers
HO Program FOX Coordinators
On October 27, 1986, the Freedom of Information Reform Act
of 1986 was signed into law. The law affects the fee and fee
waiver provisions of the Freedom of Information Act (FOIA) and
expands the law enforcement protections of the Act.
The changes in the fee and fee waiver provisions will not
become effective for 180 days from enactment (April 23, 1986).
The Office of Management and Budget and EPA will issue guidelines
and regulations regarding these changes within the 180 days.
Changes to the Agency’s FOIA Manual are being drafted.
The amendments relating to law enforcement records are
effective immediately and must be considered in processing all
FOXA requests, appeals and litigation pending from the date of
enactment, October 27, 1986.
The Department of Justice has issued a memorandum with a
copy of the amended FOIA. A copy of this memorandum is attached.
Also attached is interim EPA guidance on the new law enforcement
provisions. Please distribute this memorandum to those elements
of your organization with FOIA or law enforcement responsibilities.
If you or your staff have any questions concerning these
changes in the FOIA, please contact the Contracts and Information
Law Branch of the Office of General Counsel or this office. When
the new FOIA regulations are issued, briefings on the new changes
should be given.
cc: Regional FOIA Attorneys

1986 AMENDMENTS TO FOIA EXEMPTION 7 - 5 Usc 1552(b)(7)
Threshold of Exemption 7
The general coverage of Exemption 7 is no longer investiga-
tory records but records or information compiled for law enforce-
ment purposes. As long as some law enforcement authority exists
and the record is compiled for a general law enforcement purpose,
the record meets the threshold test for Exemption 7. The record
need no longer reflect or result from specifically focused inquir-
ies by the Agency.
Withholding Authority - Generally
The new language in Subsections 7(A), (C), (D), (E) and
(F) changes the withholding standard from “would” to “could
reasonably be expected to”.
Applicable records may be withheld if production of the
documents could reasonably be expected to:
(A) interfere with enforcement proceedings
(C) constitute an unwarranted invasion of per-
sonal privacy
(D) disclose the identity of a confidentiil
(E) disclose prosecutorial or investigatory
techniques, procedures or guidelines and
risk circumvention of law
(F) endanger the life or physical safety of
any individual
ThiB change reduces the burden on an agency by eliminating
the need to show that release of the records would actually result
in the anticipated harm.
Withholding Authority - Confidential Sources
Subsection 7(D) expands the category of confidential sources
to include a state, local or foreign agency or any private insti-
tution. It also authorizes withholding of information supplied
in a criminal investigation by a confidential source even if
the source was not the only source for the information.

Withholding Authority - Techniques, Procedures, Guidelines
Subsection 7(E) now adds both prosecution and law enforce-
ment investigation guidelines as exempt from disclosure if the
release could reasonably be expected to risk circumvention of
the Law.
Withhold ing Authority - Endangerment of life or safety
Subsection 7(F) no longer limits its protection to law
enforcement personnel, but now extends its protection to any
New Subsection (c )
This newly numbered subsection now allows an agency to
refuse to confirm or deny the existence of records when:
(1) release could reasonably be expected to inter-
fere with an enforcement procedure and
(A) the investigation or procedure involves a
possible violation of criminal law ar
- (B) there is reason to believe that the subject
of the investigation is unaware of its
(2) informant records are maintained under the
informant’s name or personal identifier (in
connection with criminal law enforcement matters)
and the records are requested according to the
informant’s name or personal identifier, unless
the informant’s status has been officially
The Agency’s response in these two circumstances should
not mention the records, but should indicate that no Agency
records exist. This new subsection (c) will be of particular
interest to those elements of the Agency dealing with criminal
law matters, i.e., the Office of Enforcement and Compliance
Monitoring, the Regional Counsel Offices, and the Office of
the Inspector General.

(3) the names and titles or positions of each person respon-
sible for the denial of records requested under this section,
and the nim ber of instances of participation for each;
(4) the results of each proceeding conducted pursuant to
subsection (a) (4) (F), including a report of the disciplinary
action taken against the officer or employee who was primarily
responsible for improperly withholding records or an explanation
of why disciplinary action was not taken;
(5) •a copy of every rule made by such agency regarding this
section; -
(6) a copy of the fee schedule and the total amount of fees
collected by the agency for making records available under this
- section; and
(7) such other information as indicates efforts to administer
fully this section.
The Attorney Genera sha3l submit an annual report on or before
March 1 of each calendar year which shall include for the prior
calendar year a listing of the number of cases arising under this
section, the exemption involved in each case, the disposition of
such case, and the cost, fees, and penalties assessed under sub-
sections (a) (4) (E), (F), and (G) • Such report shall also include
a description of the efforts undertaken by the Department of
Justice to encourage agency compliance with this section.
4ef(f) For purposes of this section, the term uagencyu as defined
in section 551(1) of this title includes any Executive department,
military department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or
any independent regulatory agency.
* a a * *
Section 1804. Effective Dates [ Will not be codified].
(a) The amendments made by section 1802 (the modification of
Exemption 7 and the addition of the new subsection (C)] shall be
effective on the date of enactment of this Act (October 27, 1986],
and shall apply with respect to any requests for records, whether
or not the request was made prior to such date, and shall apply to
any civil action pending on such date.
(b) (1) The amendments made by section 1803 (the new fee and fee
waiver provisions] shall be effective 180 days after the date of
the enactment of this Act, except that regulations tc implement
such amendments shall be promulgated by such 180th day.

•tP S1 q
4( p Ø ’
DATE: September 23, 1986
SIJBJ: Missed I ad1ines
FFCM: Th as B. Yost
Administrative Law Judge
tO: Regional Counsel
Regions I, II, III, IV, V, VI, VII, VIII, IX and X
My practice, shared by w colleagues, is that upon assigrment of
a case, I send out a prehearing letter which, after al1c iing the parties
several weeks to settle the case requires that prehearing exchanges be
In many cases, EPA counsel advises that the parties are continuing
to negotiate a settlement and that n re time is needed to explore this
prospect. In those instances, I will order that a ronthly report be
filed on a day certain until the metter is settled or negotiations have
broken dcMn.*
For sane reason, counsel do not appear to take these i nthly
reports seriously. Since January of this year, I have been forced to
issue 36 notices of intent to di rtiss for failure of EPA counsel to
file either the required reports or the prehearing doctments as required
*At this juncture, it should be noted that, in sane cases, EPA counse1
irerely advises the Court that settlement negotiations are continuing
and nothing mDre. They do not seem to realize that, absent a notion
for relief, the prehearing responses still nust be filed on the d4te
specified in my original prehearing letter even though settlerent
discussions are ongoing.

i usually do not send out such a notice until the report is a ek
late. Additionally, my secretary, during the same period has been
required to personally telephone delinquent attorneys on at leastl
Up until n , I have been very liberal in accepting whatever excuse
EPA counsel provides and not dismiss the case. In all but a few cases,
the excuse has been pure negligence and oversight. I think you will
agree that the large number of these failures is a matter of concern
and reflects poorly on the attitude of P gency counsel. I had hoped
that by sending cut the above-n2ntioned notices counsel would be alerted
to t) e isrportanCe which the Court attaches to these reports.
Accordingly, this is to advise you that effective inu diately I
will dismiss, with prejudices those cases wherein EPA counsel is i ore
than four days late in filing any doctm nt required by the Court’s
order, absent ccii pelliflQ reasons to the contrary. Please bring this
matter to the attention of your staff attorneys.
ThcXnaS B. Y t
cc: Hon. Gerald Harwood

DATE: JUL 1 1987
SUBJECT: Unauthorized Purchases
FROM: James H. Sargent
Regional Counsel
TO: ORC Attorneys
Recently we have had several Procurement Request Orders returned
to ORC tor ratitication because they were submitted after the
order was placed. Please be advised that there are only four
Contracting Officers in the EPA Regional Office. Only these
people are authorized to place orders for anything which
obligates the U.S. Government for payment. Any orders for
books, transcripts, court reporting services, etc., by anyone
other than the approved Contracting Officer is clearly an
“Unauthorized purchase for which EPA is not liable.” Ratifications
can on1 be approved in Headquarters. This authority has not been
delegated to the Region.
Realizing this, and understanding the necessity for you to
request a copy of a transcript often ordered by Opposing
counsel, we have come up with some options you may choose in
order to protect yourselves.
1) If you anticipate the need for a copy of the transcript
ot a deposition, prepare the PR in advance (as far in
advance as possible) leaving the Vendor ” blank.
Eátimate the amount (usually between $350.00 and $500.00).
As soon as you find out the vendor, give the Contracting
Officer the name and address. (Approval in advance is
the key).
2) If prior approval has not been received, while at
the Deposition, call one of the Contracting Officers:
Caro].e Wallace 347—2140
Annette Raybon “
Bob Stewart U
Ethel Murdix N
Or you can call Marilyn and she will handle it with one of
them and get back with you at the deposition.

If the Contractir Otticer gives you a verbal OK over the
phone, then have your secretary prepare the PR right away
and begin the processir procedures. John Gardner is
considering giving us the home phone numbers of these
people for emergency, after—hour situations.
3) Do Not order anything, get the court reporter’s card and
wa1t nti1 you come back to have the PR prepared and
request that the Contracting Officer order the transcript
for you at that time.

Frtd y
i ust 9, 1985
Part V
Protection : Agency
‘Public lnformatlon; TestImony by
Employees and Production of Document
In Civil Legal Proceedings; Final Rule

2386 Federal’ Register / Vol. 50. No. 154 / Friday. August 9. 1985 / Rules and Regulations
ENVIRONMENTAL PROTECTION recognized the authority of Federal , . . ,-r gulation applies only where EPA j,
AGENCY 1 :.7agences to h it co ’ 3Uc rec e3te r s , ‘.aed to provide
‘ ‘p
subpoenas See Un,1 d State3 e rel. ,. ,,, testimony or proauce documents or
40 CFR Part 2 - 7’ouhy 4.’. Rogen, 340 U S 462 (195i). -‘.,,:where employees are requested or
I Moreover, subpoenas by State courts or “subpoenaed to provide testimony or
IFRL—2e6 0 -3j legislative committees which attempt to produce documents as an official action
Public Inforrnatjon Testimony by assert jurisdiction over Federal agencies .or because of their EPA affiliation. Such
are inconsistent with the supremacy request, and subpoenas are essentially
Employees and Production of clause of the U.S. Constitution, and a directed at the Agency.
Documents In Civil Legal Proceedings Federal regulation prohibiting .:—t’ Freedom of Information Act
AGENCY: Environmental Protection ‘ compliance with such subpoenas requIres agencies to provide nonexempt
Agency. . reinforces thi. principle. See McCulloch documents on written request, arid a
AcTION: Final rule. v. Mary/and, 17 U.S. (4 Wheat.) 316 bpoena duces tecurn amounts to a
$UMMa y This rul revises , (1819); U.S. v. McLeod. 385 F.2d 734 (5th. wrItten request for documents.
art CIr. 1967); Giza v. Secretory of HEW. , Accordingly. documents will be
2. Public Information, to add a new e a F. 2d 748 (1st Cir., 1980): Municipal .jrovided in response to a subpoena
Subpart C, Testimony by Employees and Court v. Ci vilest /. 172 Cal. Rptr. 83 it 88 ’ du tecur, as authorized or required
Production of Documents in Civil Legal 116 Cal. App., 3d 105 (1981), this Part, unless the General Counsel
Proceedings Where the United States Is Accordingly, this regulation prohibit, or hi. designee (or, where appropnate,
not a Party. It generally provides that EPA employees from complyii g with :;- the Inspector General) has granted
EPA employees may not officially requests for production of document., or “approval to respond in accordance with
appear as witnesse, or produce subpoenas from Federal and State : .,,,,,,,,.the terms of the subpoena
doc9ments in Federal. State or local . courts and State or local legislative. . Finally. EPA is sometimes asked to
proc eding , either voluntarily or in committees or admini,jrati a encfes.._ copies of official
response to subpoenas, without the without the approval of the General - documents for purposes of admissibility
consent of the General Counsel or his Counsel or his designee. (The Inspector - under 28 U.S.C. 1733 and Rule 44 of the
designee. The intended effect of this General makes the necessary
• regulation Is to ensure that EPA ‘ - determination, regarding request, and , Federal Rule, of Civil Procedure. Since
‘ :officlal actions and policie, can best be
employees’ time is spent on EPA subpoenas involving employee, in the ved by EPA record,, and since this
• business and to avoid the appearance Office of Inspector General.)
that EPA is taking side, in private We recognize that there are ,Ituatjon , regulation provides that it is generally
litigation, Accordingly, employees may. where EPA should cooperate with - : .-,,Ioappropnate for employee, to appear
witnesses to discuss the background
not appear as witnesse, in their official Federal. State or local authoritie, as ‘ ‘ ‘of EPA policies and actions in private
capacities unless the appearance is part of the Agency’s joint responsibility litigation, this regulation provides th t
approved as being clearly in the for developing and enforcing
Interests of EPA. This regulation does - .zivironmental standards and other copies of documents will be
not apply to Congre ,sjooa l testimony. 4 policies. This regulation does not
authenticated on request.
‘F C ivC DA1’L This regulation Is . I preclude suck activities, and numerous .. Executive Order 12291
tflcctiv August 9.1985. • EPA officials are empowered to
FOR FURTI4E R (NFOR y CONTACT: . suthorjz such testimony. The regulation - Under Executive Order 12291. EPA is
Dorinell L Naritkes. (202) 382—4530.
— ‘ also does not apply to Congressional ._,,J e uired to judge whether a regulation is
Proceedings. — - “major” and therefore subject to the
ADDRESS: Office of General Counsel ‘ :“ While the regulation applies to . ‘ regulatory impact analysis requirements
(LE—132c). Environmental Protection “ lnformalj r which employees acquire j 1 ’ of the Order. Major rules are those
Agency, 401 MStreet SW.. Washington, ... the course of performing official duties. ,. which impose a cost on the economy of
D.C. 20460. - ‘ ‘ -to production of documents in Agency $i00 million a year or more or have
JPPLL 51ENTARY iNFOMMA’flop EPA ‘ “ “files and to testimony concerning such certain other economic impacts. We
employees are frequently requested or : docurneig, it is recognized that there are ‘ ‘bave determined that this regulation is
.subpoenaed tq provide testimony or siWations where EPA employees may •‘flot “major.” Consequently, the
produce document, in litigation to which properly serve as expert witnesses on ‘ hgulatlon is not subject to Executive
L.the United States is not a party. EPA half of private parties in matters In ““Order 12291.
employees are presently required to , which they have general expertIse.,Suc _Eis , tel Impact Statement
respond lo valid subpoenas, thereby. . situation, are treated as outside
. Preventing them from performing these employment under 40 CFR Part 3. Z- ,.Z-—’m 5 regulation does not affect the
dutie, and creating the appear,n that Subpart S. and employees are required” e v1ronment. M Environmental Impact
‘ the Agency is taking sides in private . to obtain the written approval of their 4 ’Statement Is not required under Die
litigation. This regulation is Intended to Deputy Ethics Officials and to perform National Environmental Policy Act of
address this problem by prohibiting both such activities while in an annual leave ._ 1969.
‘‘Voluntary appearances and compliance status. In such cases, employees are Paperwor Red fl 0 Act
‘with subpoenas except where clearly in Tequired to state for the record that they
the Interests of the Agency. are appearing as private Individuals and ‘‘ This regulation is not subject to the
Subpoenas to testily Concerning •that their testimony does riOt necessaaly Psperwozk Reduction Act because it
Information which employee, have represent the official views of EPA. • ‘ deals solely with internal rules
acquired in Ihe course of performing We also recognize that employees .goveming Agency personnel.
official duties, or to produce documents, may, consistent with EPA regulation,, Final Rul.
are essentia lly legal actions against the appear as private citizen, In
United States as to which there has proceedings in which EPA poIicl s sn Since this regulation establishes
been no Congressional waiver of programs are at issue. This regulat,off, ‘ Internal policy for EPA employees, the
sovereign immunity. The courts have does not restrict such activities. The Administrative Procedure Act does not
• • I

Federal Register / Vol. 50. No. 154 Friday. August 9. 1985 I Rules and Regulat :ons
require that this regulation be published
as a p cposed nile for notice and — . -
comment. However, we welcome and
encourage public comment. Comments
should be directed to Donnell L
Nantke,. Office of General Counsel (LE—
132C), Environmental Protection
Agency, 401 M Street SW., Washington.
D.C.2046o. ..
ListolSubjectsjn40CFR part2
Administrative practice and
procedure. Confidential business
Information, Freedom of information.
Dated August 5. 1985. -. . - . .
Lee M. Thomas.
Adm,n,st rater.
For the reasons set Out In the
preamble. Part 2. Chapter 1 of Title 40.
Code of Federal Regulations, is
amended as set forth below.
40 CFR Part 2 is amended by adding
Subpart C to read as follows:
• • S • S
Subpart C—Testimony by Employees and
Production of Documents in Civil Legal
Proceedings Whets the United States Is
Nets Party
2.401 Scope and purpose.
2.402 Policy on presentation of teshmony
and production of document..
2.403 Procedures when voluntary testimony
Is requested. -
2.404 Proceduies when an employee ii
2.405 Subpoenas duces tecum.
2.406 Requests for authenticated copies of
EPA documents.
# uthonty $ I.ES.C. 301. Reorganiintlon
Plan No. 3 of 1970. 5 U SC. App.: 33 1J.S.C.
361(a ): 42 U.S C. 300j-0 42 U.S.C. OSila. 42
U.S.C. 7601(a).
Subpart C—Testimony by Em loyees
and Production of Documents In Clvii
Legal Proceedings Where the United
StatesisNotaParty .
2.401 Scop. and purpose.
This subpart sets forth procedures to.
be followed when an EPA employee Is
requested or subpoenaed to provide
testimony concerning information
acquired in the course of performing
official duties or because of the
employee’s official statul. (In such
cases. employees must s Idle for the
record that their testimony does not
necessarily represent the official
position of EPA. IT they are balled to
state the official position of EPA. they
should ascertain that positi6n before
appearing ) These procedures also appiy
to subpoepas duces lecum ‘for any
document in the po scssion of EPA and
to requests for certification of copies of
dc, n ts.
(a) These procedures apply to:
(1) State court proceedings (including
grand jury proceedings):
(2) Federal civil proceedings, except
where the United States. EPA or another
Federal agency Is a party; and
(3) State and local legislative and
administrative proceedings. .
(b) These procedures do not apply:
(1) To matters which are not related to
(2) To Congressional requests or
subpoenas for testimony or documents:
(3) Where employees provide expert
witness services as approved outside
activities in accordance with 40 CFR
Part 3, Subpart E (In such cases.
employees must state for the record that
the testimony represents their own
views and does not necessarily
represent the official position of EPA):
(4) Where employees voluntarily
testify as private citizens with respect to
environmental matters (in such cases.
employees must state for the record that
the testimony represents their own
views and does not necessarily
represent the official position of EPA).
(c) The purpose of this Subpart is to
ensure that employees’ official time is
used only for official purposes, to
maintain the impartiality of EPA among
private litigants, to ensure that public
funds are not used for private purposes
and to establish procedures for
approving testimony or production of
documents when clearly in the interests
of EPA.
t402 Policy of presentatIon of
testimony and production of dpeumsnta.
(a) With the approval of tl e cognizant
Assistant Administrator. Office
Director. Staff Office Director or
Regional Administrator or his designee.
EPA employees (as defined In 40 CFR
3.102 (a) and (b)) may testify at the
request of another Federal agency, or,
where It Is in the interests of EPA. at the
request of a State or local goverr)ment or
State legislative coMmittee.
(b) Except as permitted by paragraph
(a) of this section, no EPA employee,
may provide testimony or produce
documents in any proceeding to whIch
this Subpart applies concerning
information acquired In the course of
performing official duties or beciuse of
the employee’s official relationship with
EPA. unless authorized by the General
Counsel or his designee under fl 2.403
through 2.406.
2.403 Procedures when voluntary
testimony ii requested,
A request for testimony by ait EPA
employee under I 2.402(b) must be In
writing and must state the nature of the
reçue ed ‘ str arid t r : asors
why the testimony would be in the -.
Interests of EPA Such req ests are —
immediately sent to the General Counsc
or hi, designee (or. In the case of
employees in the Office of Inspector’
General, the Inspector General or his -
designee) with the recommendations of
the employee’s supervisors. The Genera
Counsel or his designee, In consultation
with the appropnate Assistant .
Administrator, Regional Administrator.
or Staff Office Director (or, in the case
of employees in the Office of Inspector
General, the Inspector General or his
designee). determines whether
compliance with the request would
cIearI be In the interests of EPA and
responds as soon as practicable.
I 2.404 Procedures when an employs. Is
(a) Copies of subpoenas must -
immediately be sent lathe Generaf’
Counsel or his designee wtth the
recommendations of the employee’s
supervisors. The General Counsel or Ku
designee, in consultation with the
appropriate Assistant Administrator.
Regional Administrator or Staff Office
Director, determines whether
compliance with the subp ena would
clearly be in the interests of EPA and
responds as soon as practicable.
(b) If the Genera! Counsel or his
designee denies approval to comply
.with the subpoena, or if he has not acted
bythe return date, the employee must
appear at the stated time and place
(unless advised by the General Counsel
or his designee that the subpoena was
not validly issued or served or that the
subpoena has been withdrawn), produce
a copy of these regulations and
respectfully refuse to provide any
testimony or produce any documents.
United States cx tel. Tou/iy v. Rogen.
340 U.S. 462 (1951).
(c) Where employees in the Office of
Inspector General are subpoenaed, the
Inspector General or his designee makes
the determination under paragraphs (a)
and (b) of this section in consultation
with the General CounseL
(d) The General Counsel will request
the assistance of the Department of
Justice or a U.S. Attorney where
necessary to represent the interests of
the Agency and the employee.
J2.40$ Subpoenas duces scum.
Subpoenas duces tecurn for
documents or other materials are treats
the same as subpoenas ror testimony.
Unless the General Counsel or his
designee. in consultation with the
appropriate Assistant Administrator.

“““!tor or Staff Office
Director (or. as to employees In the
r f Tnspecto.. Cenerti, the
Inspector General) determines that
cornpl nce with the subpoena is clearly
In the Interests of EPA. the employee -.
must ap ar at the stated time and place
(unless advised by the General Counsel
or his designee that the subpoena was -
not validly issued or served or that the
subpoena has been withdrawn) and - -
respectfully refuse to produce the -
subpoenaed materials. However, where
a subpoena duces tecum Is essentially a -
written request for documents, the ‘
requested documents w !l be provided
or denied in accordance with Subparts
A and B of this Part where approval to
respond to the subpoena has not been
2.406 Requests for authenticated copies
of EPA documents.
Requests for su entlcated copies of
EPA documents for purposes of
admissibility under 25 tict ’ 1?ti . i
Rule 44 of the Federal Rules of Clvii
Procedure will be granted for documents
h c i would c’-erwfee be released
pursuant to Subpart A. For purpose, of
Rule 44 the per,on having legal custody
of the record is the cognizant Assistant
Administrator. Regional Adminhsb,tor,
Staff Office Director or Office Director
or bis designee. The advice of the Office
of Ceneral Counsel should be obtained .
concerning the proper form of - .- -
“r”r ‘
authentication. -.“., .11. .-. .a% -
.,, -
(FR Doc. IS-Iaa3a Flied 54-15; 5.45 aml •.i. ;. -
cederal Register / Vol. 50. No. 154 / Friday, August 9. 1985 / Ruled and Regulatfons