Rule 9: Be Careful with Documents and Prior Statements

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 125-136

The witness is just settling into the deposition, starting to sense that there

may be a light at the end of the tunnel, when the questioner pulls out

the rst document. She waves it around with great air, asks a few “isn’t

it true?” questions, slaps it down on the table, and even the most intel-

ligent, articulate witness is lost, thinking, “Oh, no, she has a document.

I’m in trouble now.” All witnesses need preparation for dealing with doc-

uments, both to be careful with them and to not be afraid of them. It’s

not an easy task.

Issues

Three basis issues arise with any document:

• Credibility: Is the document accurate? But more importantly, does the

witness know whether it’s accurate?

•

Language: Language means just that. Is the questioner quoting the

document accurately—the exact words, the full sentence or paragraph,

the question being answered?

•

Context: Even if the questioner quoted the language correctly, did he

125

Chapter 22

Rule 9:

Be Careful with Documents

and Prior Statements

Small_PrepWitness_20140403_13-27 Second Pass.indd 125 8/12/14 10:20 AM