Cross Examination-Using Prior Statement

After watching outstanding webinars during the Pandemic of 2020 I see the most effective way to try a significant personal injury case is through the use of video sound bites. Now I am taking video depositions, ordering the digital copy and producing sound bites for trial. With this said there are cases I will try without video depositions for cross examination. So either way below are the “Old Way” and the New Way to impeach the witness with a prior inconsistent statement.

THE OLD WAY. Howard Nations, on using prior statement to impeach:

1. Illicit.  Get the witness to state the contradictory testimony. In the old way without a video sound bite stand so witness must face jury to answer.

2. Set Predicate.  Have witness agree to prior sworn statement. (Date, place, to whom). This is important in any deposition. Have a chapter in the deposition on Date, Place, Under, Oath so you can lock witness in at trial.

3. Produce. Hand clerk the deposition and have it marked as exhibit. (Give copies to judge and opposition counsel).

4. Witness Reads. Hand marked prior statement to witness and have witness read.

5. Dangle Witness.  Howard Nations points out this can be embarrassing for the witness. He recommends  going to counsel table and futz  around while witness has to either continue looking at jury or look away.

6. Return. After letting witness dangle return to cross but to a new area of questioning. This is because we do not want the witness to return to impeached topic and rehabilitate through answer to similar line of
questioning.

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