4th ANNUAL SECTION OF LABOR AND EMPLOYMENT
LAW CONFERENCE
November 4, 2010
There is No Such Thing as “The Perfect Witness”:
But for the Witnesses, I Would Have Won the Case
American Bar Association
Elaine Drodge Koch
Bryan Cave LLP
INTRODUCTION
This memorandum is to provide practical suggestions for dealing with various issues
which may arise when conducting or defending a deposition or dealing with a witness at trial,
including: preparing yourself and your witness for the testimony; protecting your witness from
the examiner when necessary; conferring with the witness; dealing with the obstreperous counsel
and what steps can be taken if the examiner uses bullying or harassment as a means of
intimidating the witness; dealing with the problem witness and finally how to use motions in
limine to limit or exclude witness testimony. The memorandum is not a compilation of case law
or court rules but emphasizes practicalities for defending and taking depositions in difficult
witness situations, and problems/issues which arise with witnesses in trial.
A.
PREPARING FOR DEPOSITION OR TRIAL WITH A DIFFICULT WITNESS
1.
Preparing Yourself. —There is no substitution for preparation. Have a game
plan well in mind. How does the witness fit into that plan; what purpose does this witness’
testimony serve? Know the facts of your case. Review all discovery. It goes without saying that
the attorney is ethically bound to zealously represent her client and owes to her client legal
competency. Without vigorous preparation, the attorney has violated these duties to his client.
Know your witness and his or her weaknesses. Know your opponent. Find out what type of an
attorney you are facing—what is his or her reputation—is he or she a bully when examining
witnesses? The more you are prepared, the better prepared your difficult witness will be.
2.
Preparing Your Witness for Testifying. If you feel as if this section should be
titled: “But for the Witnesses, I Would Have Won the Case” perhaps you have misplaced blame
unless you can say that your own preparation and the preparation of all your witnesses was well
organized and thorough. Preparing yourself for deposition or trial is of major importance. Of
equal importance is preparation of your witness. An unprepared witness is left on his own and
will never benefit your case.
Ideally, you have already thoroughly interviewed the witness and have a knowledge of
what the witness knows about the case. You should have some idea about whether or not this
witness will be a “good” witness and what further investigation may be necessary before the
deposition. What are the witnesses weaknesses? What are the danger zones? Giving the
witness a lecture about the do’s and don’ts of testifying is not good preparation. Neither is
handing the witness a video to view or a pile of papers to read. Witness preparation is time
consuming. However, it is time well spent.
Giving testimony either at trial or in a deposition most often is a daunting experience
especially for inexperienced witnesses who have never been called upon to testify either in a
deposition or a trial. Preparation is the key. However, there is a line between preparing a
witness and rehearsing a witness--providing a script. Making sure that the witness knows what
to expect and understands his/her role in the case not only alleviates fear of the unexpected but
enhances the “worth” of such testimony; preparation instills confidence; confidence aids
credibility; credibility helps convince the jury of your position.
The witness should also be told that there is nothing wrong with meeting beforehand and
preparing for deposition or trial. Often the witness may feel that there is something unseemly
about meeting and discussing answers to possible questions and presentation of facts. Impress
upon the witness that you are not going to tell him what to say—not only is this unethical, it also
leads to a stilted recitation that is counter-productive. On the contrary, you are going to advise
the witness how best to present the witness’ personal knowledge of the particular issue.
Emphasis should be centered upon making your witness understand her “role” in the
overall case—what is the relevancy of her testimony to the issue. While it is important to go
over some tips (set out below) for a deponent, the greatest amount of time must be devoted to
making your witness feel confident about what she is doing; what will the examiner seek to elicit
from her; what should she expect to happen? What is the procedure? Your goal and the
witnesses goal is to remain composed throughout the process so that the testimony she gives will
support your case. This is impossible without an understanding of the process.
Explain to the witness that the opposition’s purposes for a deposition include: to catch the
witness in a lie (why truth is paramount); to obtain information about the case; to evaluate the
witness’ demeanor (how good a witness will she make); to preserve the witness’ testimony for
trial (lock her into her deposition answer); to learn facts which may be detrimental to
opposition’s case; and to help counsel make decisions regarding the advisability of settlement.
Additionally, you must prepare your witness for what is in reality “cross-examination”
during deposition or trial. Attorneys tend to enjoy cross. For an inexperienced deponent, having
questions fired at him—questions that he does not expect or want to answer—can destroy a
witness. Therefore, you should do some play-acting as to what questions may be asked.
The following are some tips/suggestions to discuss with a witness during preparation for
a deposition (obviously, this is not an exhaustive list of all possible suggestions nor will all
suggestions be necessary in all cases—one size does not fit all):
(a)
Tell the truth. As an officer of the court, an attorney cannot knowingly
present perjured testimony and the ethical rules permit the attorney to refuse to offer
testimony she reasonably believes to be false.
(b)
Only answer if asked. Require questioner to illicit/address each issue. Do
not volunteer. Do not aide the examiner in anyway.
(c)
Avoid sarcasm and humor. Remind the deponent that everything he says
will be recorded by the reporter and all becomes part of the record.
(d)
Avoid facial expressions and improper tone of voice.
(e)
Do not be intimidated.
(f)
Pause before answering—make sure you understand the question. If, not
ask the examiner to explain what he means.
(g)
Verbal answers only – no nods, gestures. Explain what the reporter is
doing and that at trial parts of his deposition may be read. Additionally, on appeal, only
what is recorded will make it into the record. Remind deponent to speak clearly and
slowly enough for the reporter to get all in the record. If the witness makes a gesture as
to for example, how far were you from the third party and spreads his arms, you should
state: “Let he record show that the witness has indicated three feet”.
(h)
Ask for clarification if you don’t understand questions. Assure the witness
that it is the job of the examiner to ask intelligible questions; the witness is not to try and
figure out what he is being asked.
(i)
questioning.
Do not try to anticipate where the attorney is going with the line of
(j)
A one-sentence answer is the goal. If additional information is required,
make the examiner ask.
(k)
Don’t be afraid to answer that you don’t know. Do not speculate/guess.
You are not expected to know or remember everything.
(l)
Listen to my objections and wait to answer.
(m)
Do not respond to a question about a document without seeing it. Do not
depend upon your recollection of what was in the document. First ask to read the
document.
(n)
examiner.
(o)
Respond only to questions. Do not respond to statements made by the
Take time to read any document presented to you.
(p)
Do not volunteer testimony about prior conversations, meetings,
discussions unless specifically asked by examiner.
(q)
Do not respond to the opposition telling you to answer a question.
(r)
Answer “yes/no” if the question calls for such a response—do not
volunteer information. If the examiner wants additional information, it is the
responsibility of the examiner to ask follow-up questions.
(s)
Ask for a break if needed.
(t)
Do not bring any documents or notes to the deposition unless they have
been reviewed earlier by counsel and approved.
(u)
Supplement/ correct a response if needed.
(v)
Use “approximately” if not sure about precise time or place.
(w)
The examiner is not your friend. Do not respond to flattery.
(x)
Do not respond to silence and stares by the examiner.
(y)
Do not take the bait as to open-ended questions; do not engage in
conversation.
(z)
Dress appropriately. While the deposition is less formal than appearance at
trial, the witness should be impressed with the solemnity of the process and should be
encouraged to dress appropriately.
Rather than just handing the witness a list of these suggestions, the attorney should go
through some or all of these suggestions and repeat the more important ones. Discuss with the
witness each one and give illustrations of what is meant by each. Interact with the witness
throughout the process making sure you answer his questions rather than just asking at the end
whether he has such questions.
There is a thin line between preparing the witness for what might happen and giving her
so much information that you increase rather than decrease her anxiety. Often the witness is
nervous because she is afraid she will make mistakes that will jeopardize the case. Again,
reassuring the witness that the goal is the truth may help and the assurance that if she makes a
mistake she will have time during a recess to call this to counsel’s attention and she can make the
necessary correction; the deponent will have time later to review the deposition transcript and
corrections can then be made.
B.
DEFENDING/PROTECTING YOUR WITNESS
Most witnesses exhibit a reasonable degree of nervousness. Some, if not al,l anxiety can
be lessened by reassuring the witness that you are there to protect him from any bullying or
harassment by the examiner. Assure the witness that you will not leave the witness hanging out
there to twist in the wind. Nervousness can also be alleviated by preparation—knowing what to
expect.
The attorney should shoulder as much of the burden of testifying as possible so that the
witness can focus on giving truthful, believable answers. One way to take over some of the
burden is to anticipate as much as possible, what the examiner will be asking. The witness
should be assured that you are there to prevent harassment of the witness. The witness should be
aware that she may be asked embarrassing questions or other questions that deponent will feel
infringe upon private matters and in all probability will have to answer. The fact that the witness
is required to answer these types of questions comes as a real shock to those unfamiliar with the
process. It is much better to prepare the witness for this eventuality than watch the unprepared
witness face it for the first time at the deposition. Witnesses are fearful that they will be made to
look stupid. Assure the witness that you will deal with such questions and protect the witness
from badgering. Assure the witness that most questions can be answered—they are not ticking
time-bombs.
Assuming the examiner goes beyond the bounds of acting zealously for his client and
asks unreasonable, harassing questions of the witness or refuses to stop coaching his witness or
continually raises unnecessary objections, there are several avenues you may take to protect your
client:
1.
Be Proactive: Prior to the taking of/defending a deposition, if you believe that
there may be problems, there are various steps you can take. Consider taking a video deposition.
Having your behavior on tape (for later replay to the court) goes a long way in curbing such
behavior. Conducting a videotaped deposition is a matter of right (depending upon the
jurisdiction) provided proper notice is given and payment made by the party noticing up the
deposition.
2.
Curbing Attorney Coaching: A common method used to coach a witness during
deposition is the use of “speaking objections”. This is a lazy attorney’s alternative to thorough
witness preparation. Local “Guidelines” of various courts often require objections to be concise,
non-argumentative and non-suggestive—“speaking objections” are not allowed. Not only are
these objections an attempt to guide the witness as to how to answer but also result in
considerable waste of time and cut into the seven hour time limit for depositions on the federal
level. Should the examiner engage in such tactics, make a record of the time for each such
objection. To create a record, consider stating “I note for the record that counsel’s sixth speaking
objection took just over two minutes”. If later, the examiner asks for additional deposition time,
you will have the record to support why additional time should not be granted. Turn this type of
behavior to your advantage. The defender can also learn from the coach. Why does coaching
occur only when certain topics are addressed? Why is the coach so protective of these areas?
Defenders may add “If you recall” to the end of each objection raised. Thus, signally to
their witness that the question is better answered as “I don’t know”. It is also good advice for the
examiner not be begin questions with “Do you recall”—that also can signal the witness of an
easy out. Defenders may also continually object by stating that the question needs clarification.
The witness should be the one to state that he does not understand, not the defender.
3.
Other Objections and Improper Use of Objections: Court rules do not prohibit
objections during a deposition. But the rules do discourage objections, except to preserve a
privilege, work product, material subject to an existing protective order or other order limiting
discovery, to present a motion or to address the form of a question. The purpose of making an
objection is to allow the opposition to correct the problem in re-forming the question. It is not a
form of gamesmanship—or it should not be. The defender should not be too quick to address
improper objections. Wait and see if this is the way the examiner intends to proceed or if he is
merely playing to his audience/witness. That being said, each side will and should try to control
the deposition.
Implicit in the rule and explicit in the guidelines is the expectation that counsel will
cooperate and be courteous to each other and to deponents. Objections at the time of the
examination to any aspect of the conduct of the deposition are to be noted in the record, but the
examination is to proceed with the testimony taken subject to the objections. Objections should
be stated concisely and in a non-argumentative and non-suggestive manner.
A deponent may be instructed not to answer a question only when it is necessary to
preserve a privilege or material protected by work product, to enforce a limitation on evidence
(i.e. hearsay, insurance coverage, offers of compromise, subsequent remedial measures) when
directed by the court, or to present a motion for a protective order as to the manner in which the
deposition is being taken. If the opposition continues to disrupt the deposition by instructing the
witness not to answer, you should continue to obtain as much information as possible and if that
becomes impossible, file a motion to compel or a motion for a protective order. Be sure that you
have made a record to submit with either motion.
Of course, certain objections are necessary and failure to make necessary objections
would be detrimental to the client. Failure to object results in waiver of such objection later. All
objections, except as to form and foundation are preserved for trial. Certain objections, for
example, hearsay and relevancy are not waived and objection may be made at trial. An attorney
should be open to the possibility that she has not artfully framed a question and a valid objection
alerts her to that possibility. In many instances, counsel should take the opportunity to re-frame
the question and continue the questioning rather than arguing. You should reserve real anger for
times when it is necessary. Overreacting to each objection by raising your voice or threatening
to go to the judge will probably get you nowhere. The best guide to how to control an aggressive
opponent is experience—both your own and sitting in on others’ depositions.
The following are examples of deposition objections:
Privilege. Communications between the client and attorney (assuming
that the witness is a client of the attorney) is protected by attorney client privilege;
other privileged communications such as: spousal, accountant, etc. will depend
upon the controlling law of the state or upon the federal rules of evidence.
INSTRUCT WITNESS NOT TO ANSWER whenever a question involving a
privilege is asked. The concept of what is and is not protected by either the
attorney client privilege or work product doctrine is difficult to evaluate. Your
client should not be expected to identify which information need not be disclosed.
This is the basis for allowing a witness to confer with counsel before answering
any such question. Examiners often ask many questions about what was or was
not discussed during deposition preparation. Facts of such preparation are to be
disclosed but the attorney must be on guard for any questions going to substance
of conversations and the legal basis of counsel’s analysis of the legal issues.
Clearly, deposition preparation between the witness and attorney is
protected and many cases hold that a privileged document does not lose the
attorney client privilege merely because it is used during deposition preparation.
However, it is prudent to check the law in your jurisdiction and have such a
citation on hand. The deponent can be asked what documents were reviewed
(privilege attaches to communications not to facts) but not what was said about
the document(s) or what they contained.
If the opposition instructs her witness not to answer, you should ask: “Are
you asserting a privilege? What privilege is being asserted? What is the basis for
your assertion?” Following these questions, the questioner should ask the
witness: “Do you intend to answer the question?” At this point you should make
a record. If you believe that there is no basis for the instruction not to answer, ask
the reporter to make you a copy of the exchange that has just taken place and to
overnight you that portion (at your expense). You can additionally notify
opposition that you plan to file motion to compel and for sanctions the next day,
attaching the deposition portion. To allow the opposition to save face, you may
want to come back later in the deposition and ask the same question—it may be
answered.
Form Objections. When appropriate objections as to form give the
opposition the opportunity to rephrase the question.
•
Vague or unclear
•
Ambiguous
•
Unintelligible
•
Relevancy: The relevancy objection is too often made in light of the
broad definition of what is relevant or likely to lead to relevant
evidence. The proper course of action is to object on the record and
allow the testimony to be taken subject to the understanding that, if
the testimony is later determined to be irrelevant, it will be excluded.
Some questions of doubtful relevancy may be innocuous and nothing
is lost in answering, subject to objection.
•
Complex or confusing
•
Misleading
•
Compound: The compound objection is made when two or more
questions are combined in one. If the deponent answers, the answer is
meaningless because it is impossible to tell which part of the
compound question was answered.
•
Calls for speculation
•
Assumes facts that have not been established
•
Lack of foundation
•
Mischaracterizing prior testimony. While it is permissible to
summarize what has been said before, the questioner should always
ask if that is an accurate summation.
•
Asks for mental process of someone other than the witness
•
Is argumentative
•
Calls for legal conclusion
•
Asks for lay opinion
•
Asked and answered. Repetitive questioning may result in witness
bullying and also wastes the time allotted for depositions (7 hours for
federal court).
•
Seeks opinion beyond purview of witness being deposed.
Necessary as objections may be, their use may be unreasonable. Often an attorney will
make drawn out objections in an attempt to alert the client not to answer or how to answer, i.e.,
“speaking objections” (discussed below).
C.
DEALING WITH OBSTREPEROUS COUNSEL
The use of improper objections and coaching has previously been dealt with in this
memorandum. However, there is practically no limit to what some attorneys will do in attempting
to control a deposition—be they examiners or defenders. Disruptive behavior on the part of your
opposition rarely, if ever, occurs before a judge but some attorneys take advantage of the lack of
such oversight in a deposition. Such behavior is not only a problem to the witness but is often
aimed at the other attorney; the aim is to throw the opposition off track and embarrass the attorney
in front of the witness. The best response is to remain calm and if the behavior persists to seek the
court’s guidance and authority. Remember, the judge hates to play traffic cop or police what she
may regard as playground behavior. Again, make a written record and take that record to the
court. If the opposition knows that a judge will see his behavior (use of video) or memorialized in
the record, he often will back down.
Subject to the suggestion of filing a motion to compel and attaching relevant portions of
the deposition as suggested previously, if all else fails, the rules provide that if a party believes
that the examination is being conducted in bad faith or in such a manner as unreasonably to
annoy, embarrass or oppress the deponent or party, the deponent or party may apply to the court
for a protective order and may suspend the deposition for the time necessary to make a motion
for protective order. At any time during the taking of the deposition, on motion of a party or of
the deponent and upon a showing that the examination is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass or oppress the deponent or party, the court in which
the action is pending . . . may order the officer conducting the examination to cease forthwith
from taking the deposition, or may limit the scope and manner of the taking of the deposition as
provided in the federal rules.
For fast-moving litigation in which discovery disputes are constantly arising, the
attorneys may wish to stipulate to the appointment of a discovery referee who can be made
available on quicker notice for motions involving discovery. Additionally, one may seek
sanctions which can range from orders providing for exclusion of evidence from trial, certain
facts deemed admitted, attorneys fees and costs, striking pleadings or portions thereof, or
dismissing portions of the suit or defense.
D.
DEALING WITH THE PROBLEM WITNESS
Often the problems with witnesses can be worse than any problems created by
opposition counsel. Witnesses are not constrained by ethical rules or their responsibility to the
court. Witnesses have no obligation of civility. Clearly, an attorney will not receive help from
the opposition in a situation in which the witness is out of control. A witness should be advised
that counsel will make a record of his behavior and will seek aid from the court. One curb to
such behavior is that usually the witness wants the deposition to end as soon as possible.
Many witness become evasive—they may believe that it is their job to avoid answering.
The best advice in this situation is to remain calm and professional and do not be put off but
continue to ask until answered. Ask the question six different ways—be tenacious. Consider
making your questions as narrow as possible; leave little “wiggle” room. A witness who
continually states that he can’t recall, may work to your advantage later at trial if he or the
attorney attempts to introduce testimony on that same subject. The court will not allow a witness
to have it both ways. Again, a clear record made at the time of the evasions is invaluable.
If the witness is stating that he does not understand the question, bore in and make the
witness tell you exactly what he does not understand. Remind the evasive witness that he is
under oath. Consider stating: “Please remember that you are under oath. You must answer all
my questions unless you are instructed not to do so by your attorney.” If all else fails suspend
the deposition and file a motion to compel attaching the record.
If you encounter a witness whom you believe is lying, let him know that you believe he
is. If you decide to confront the witness, repeat the incredible response back to the witness. If
you are videotaping the deposition you can state: “You have just told the jury that even though
you consumed five drinks in one hour, you were not in the least intoxicated; is that correct?”
Make the witness aware of how ridiculous his answer sounds now and will sound later before the
jury.
Some witnesses become hostile, i.e. attempt to guess your objective and then give
answers that they believe thwart that objective. Do not meet hostility with hostility. Two can
play the game. Counsel should be able to confront this behavior and box-in the witness. For
example, if the witness evades answering considering stating: “Since you have such limited
knowledge of this area, I will only ask a few questions and we will be gone.” Later, at trial he
will not be allowed to remember.
If the witness becomes rude—state the fact on the record and civilly ask the witness to
end the behavior and inform him that if the behavior persists you will suspend the deposition and
seek the aid of court. However, never threaten action unless you are fully prepared to take such
action.
The rambling witness is often a boon to the examiner due to volunteered information.
At times, the witness may begin an answer with an editorial comment that you do not want
entered at trial. Ask the witness to answer with a simple yes or no. The rambler may also take
up valuable time; he may want to show how much he knows on a subject or his legal take on the
issue. This slows down the deposition and in most instances is to be discouraged.
E.
CONFERRING WITH YOUR WITNESS
Conferring with your witness has been addressed previously in these materials.
However, it is of such importance that it bears additional discussion. It is permissible for a
witness to request a break to determine if an answer involves privileged communication.
However, if an opponent and/or witness abuses this right to confer, be sure you make a record.
You could state: “Let the record reflect that the witness is conferring with counsel while a
question is pending”. On the record, ask the opponent for the justification for repeated
conferences. If the behavior continues you may decide to make a motion to compel.
Numerous local rules deal with attorney client conferences so applicable rules should be
consulted prior to deposition. It is recommended that counsel sit beside his witness and in the
witness’ line of sight. Taking this position at the table enables counsel to raise her hand
whenever she is considering making an objection and alerts the witness to pause. It also gives
“moral support” to the witness to sit at counsel’s elbow; it conveys the assurance that you are
both in this together. More importantly, it allows counsel to confer easily with the witness
during questioning.
As with any other aspect of the deposition, conferring with counsel must be kept within
bounds and not resorted to unless necessary. Some attorneys take advantage of such conferences
which may lead to a motion for protective order limiting such tactics. Numerous judges are
granting such limitations, especially when accompanied by a record which illustrates that
conferring is overly frequent and taking time from the substantive questioning of the deponent.
Conferences between counsel and witness when a question is not pending are usually less
of a problem than one made when a question is pending. It is therefore prudent to anticipate
where the questioning may be heading and alert your client if necessary.
Attorneys are all familiar with the “elbow rule” which means that if the witness is
careening off course or is having difficulty with the questioning, counsel should announce that
they are taking a break and take the witness by the elbow, steering her out of the room. The
examiner may protest vehemently but there are times when a witness needs to re-group;
attorneys may need to re-group also.
Attorneys should check the law in the relevant jurisdiction to make sure that such
conversations are protected by the attorney client privilege. Most jurisdictions do protect such
communications but the fact that such a conference occurred can be noted on the record—
especially if the witness changes his testimony after consultation. Additionally, the privilege
will be waived if the conversation is overheard by a third party.
However, asserting a privilege is one time where conferring with the client is acceptable
to the extent necessary to discuss the privilege and its scope. However, if the opposition is
improperly conferring with his witness you have several options—make a record or suspend the
deposition and seek solution from court—remembering the admonition given previously—
judges do not look kindly upon being forced to deal with these disputes.
If you are faced with an attorney who is continually whispering to the witness, consider
stating: “Let the record reflect that counsel is conferring with her client while the question is
pending.” You may also note the amount of time consumed by such conference. Following
conferences an attorney may wish to state to the witness, for the record: “After conferring with
your attorney, do you have any changes or additions to your testimony?”
F.
THE USE OF MOTIONS IN LIMINE TO LIMIT OR EXCLUDE WITNESS
TESTIMONY
As with the previous issues in this memorandum, preparation/anticipation is also of key
importance once counsel enters the pre trial phase of his case. Assume that counsel anticipates
that the opposition will present certain witnesses detrimental to counsel’s case or that counsel
anticipates that his witnesses’ testimony will be met with various objections by the opposition.
Motions in limine enable counsel to exclude or limit the introduction of witness testimony
harmful to his case and counsel should be prepared to meet such motions in order to present his
witnesses.
A motion in limine is a pre-trial device1 which addresses the admissibility of certain
evidence. It is used to prevent the opposition from presenting prejudicial, irrelevant, collateral
(which may include personal habits, prior criminal convictions/acquittals), confusing or
inflammatory evidence in the presence of the jury.2 In essence it is a protective order which
prevents the introduction of evidence either by limiting its introduction in some way or by total
exclusion. Its function may be to obtain a ruling on the competency of certain evidence or to
obtain a ruling that certain evidence should be excluding for a wide variety of reasons; it is not a
method by which a party may obtain a dispositive ruling on a question of law. Thus, a motion in
limine is a motion made prior to trial for the purpose of prohibiting opposing counsel from
mentioning the existence of, alluding to, or offering evidence on matters so highly prejudicial to
the moving party that a timely motion to strike or an instruction by the court to the jury to
disregard the offending matter cannot overcome its prejudicial influence on the jurors’ minds
Such a motion not only keeps the matter from the jury but should the judge rule in
counsel’s favor counsel will not need to make an objection to the evidence later at trial.
1
A motion in limine has been defined by the U.S. Supreme Court as “in a broad sense … any motion whether made
or before during trial to exclude anticipated prejudicial evidence before the evidence is actually offered.” Luce v.
United States, 469 U.S. 38, 40 n.2 (1984); State v. Superior Court, 108 Ariz. 396, 499 P.2d 152, 153 (1972) (“the
primary purpose of a motion in limine is to avoid disclosing to the jury prejudicial matters which may compel a
mistrial. It should not, except upon a clear showing of non-admissibility be used to reject evidence”).
2
While the list is not exhaustive, a motion in limine is proper where: (1) the trial court has directed that evidentiary
issue be resolved before trial; (2) the evidentiary material is highly prejudicial or inflammatory and would risk
mistrial is not previously addressed by the trial court; (3) the evidentiary issue is significant and unresolved under
the existing law; (4) the evidentiary issue involves a significant number of witnesses or substantial volume of
material making it more economical to have the issue resolved in advance of the trial so as to save time and
resources of all concerned; or (5) the party does not wish to object to the evidence in the presence of the jury and
thereby preserves the issue for appellate review by obtaining an unfavorable ruling via a pretrial motion in limine.
75 Am Jur2d TRIAL, § 39.
Objections often call the attention of the jury to the specific matter counsel is attempting to keep
from the jury and places increased importance on that evidence in the minds of the jurors.
When seeking to exclude evidence it is suggested that counsel make a broad exclusion so
that the opposition will not be permitted to introduce the “evidence” in an opening statement or
voir dire. Such a request could be phrased as follows:
Defendant requests the Court to instruct Plaintiff and Plaintiff’s counsel not to
mention, refer to, or bring before the jury, directly or indirectly, upon voir dire,
reading of the pleadings, statement of the case, interrogation of witnesses,
argument, objections before the jury, introduction of documents, or in any other
manner evidence of [set forth specific evidence sought to be excluded].
The use of such motions arise in litigation circumstances too numerous to mention.
However, in the context of employment law a few examples are set out below3:
3
•
Me Too: Evidence offered by co-workers stating that they also experienced similar
discrimination. Such testimony may be excluded on the basis of relevancy (lack of
same supervisor), juror confusion (jury may assume a connection between the
witness’ experience and plaintiff’s which has not been proven) and undue prejudice
which introduces emotion in favor of plaintiff which is not justified.
•
Other Incidents/Claims by Other Employees: May be excluded for the same reasons
as Me Too evidence and may lead to mini-trials on numerous collateral matters.
•
Prior “Bad Acts”: Character evidence or habits (often sexual or use of drugs) may be
excluded due to relevancy and prejudicial nature or invasion of privacy arguments.
•
Remoteness of Evidence: Evidence of alleged discriminatory remarks have been
excluded due to the fact that they occurred far in the past and no logical connection
can be made to the claims at hand.
•
Stray Remarks: Evidence of such statements made by superiors have been excluded
due to relevancy, unfair prejudice, or absence of any connection to the allegations
made by the plaintiff.
•
Non-decision Makers Remarks: Evidence of statements made by those who have no
authority over the termination or adverse action are often excluded due to the obvious
reason that such persons lack any connection to the claims.
•
Statute of Limitations: When other discriminatory acts have occurred outside the
relevant statute of limitations of the underlying claim, they are often excluded.
See Warner law review article. Complete citation set forth in “Recommended Sources” following this
memorandum.
•
EEOC/State Agency Decisions: May be excluded if the decision is attacked for lack
of detail or misinterpretation of law. The decision may also be excluded due to
collateral matters or use of too much time.
•
Self-Critical Analysis: The report prepared by an employer who conducts an
investigation into the allegations may be excluded under the self-critical analysis
privilege.
•
Lay-witness Opinions: Opinions by lay witnesses (i.e. co-workers) may be excluded
based upon the court’s prohibition upon opinions being submitted by one lacking
personal knowledge and opinions based upon one’s “feelings or beliefs’ concerning a
particular employer’s actions.
•
Business Judgment: A reasonable decision made by an employer lacking any
evidence of discrimination can be excluded on the basis that the employer made a
legitimate business judgment decision to terminate or take whatever adverse action is
alleged.
The evidence in an employment law suit may also be excluded for hearsay, lack of
competency on the part of the witness, lack of scientific methodology to name just a few.
Additionally all the reasons for excluding an expert are applicable.
It should be remembered that if the court denies a motion in limine, at trial counsel must
make sure that she again states her objections to the introduction of the evidence. Two reasons
exist for such objection: (1) the court may reconsider at that point and rule in your favor, and (2)
without such an objection counsel has not preserved the issue for appeal, i.e. a previously filed
motion in limine is insufficient to preserve an issue for appeal.
CONCLUSION
In conclusion the implicit question posed by the title of this portion of the seminar can be
addressed: There is No Such Thing as “The Perfect Witness”: But for the Witnesses, I would
Have Won the Case”—there is no “perfect” witness and in almost every instance the witness did
not lose the case for the attorney. The answer is preparation—preparation—preparation.
Recommended Sources:
JEFFREY L. KASTER, QUESTIONING TECHNIQUES AND TACTICS (3d 2004).
12 AM. JUR. 2D Depositions and Discovery (2002).
DAVID M. MALONE, PETER T. HOFFMAN & ANTHONY J. BOCCHINO, THE EFFECTIVE DEPOSITION:
TECHNIQUES AND STRATEGIES THAT WORK (3d ed. 2007).
DAVID M. GREENWALD, EDWARD F. MALONE & ROBERT R. STAUFFER, 1 TESTIMONIAL
PRIVILEGES (3d ed. 2005).
V. HALE STARR, WITNESS PREPARATION (1998).
Charles C. Warner, Motions in Limine in Employment Discrimination Litigation, 29 U.Mem. L.
Rev. (1998-99)
http://heinonline.org/HOL/Page?handle=hein.journals/umem29&div=32&g_sent=1&collection=
journals
CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE:
EVIDENCE 2D § 5037 (2005) (describing motions in limine in general)
http://radio-weblogs.com/0104634/Litigation/Deposition%20Tips.htm
http://www.chicagoiplitigation.com/articles/discovery/
http://www.withthecommand.com/2004-Jan/Richards-depositionprep.html