Episode Details

In this episode, Jim Garrity offers practical tips for developing deposition testimony that will allow you to use leading questions when examining adverse witnesses you'll call during your case-in-chief at trial. Being able to lead so-called "611(c)(2) witnesses" before the jury is a tremendous advantage, but you've got to first build the foundation. Garrity explains the requirements of Fed. R.Evid. 611(c)(2), and offers numerous lines of deposition inquiries to meet your burden.

SHOW NOTES

Mcleod v. Llano, No. 17CV6062ARRRLM, 2021 WL 1669732, at *8 (E.D.N.Y. Apr. 28, 2021) Here, Officer Prinston is defendant's partner, witnessed the use of force at issue, and previously was a defendant in this case. Pl.’s Mot. 7. Additionally, plaintiff has shown that Officer Prinston provided inconsistent testimony in the CCRB investigation and the NYPD administrative trial that favored defendant. Id. at 9. These facts sufficiently show that Officer Prinston is a “witness identified with an adverse party")

Doe By Watson v. Russell Cty. Sch. Bd., No. 1:16CV00045, 2018 WL 1089277 (W.D. Va. Feb. 28, 2018) (“The normal sense of a person ‘identified with an adverse party’ has come to mean, in general, an employee, agent, friend, or relative of an adverse party.” Id. (citation omitted); see Ratliff v. City of Chi., No. 10 C 739, 2012 WL 7993412 (N.D. Ill. Nov. 20, 2012). “Whether a former employee is properly considered ‘a witness identified with an adverse party’ is an unsettled inquiry whose resolution is often fact-dependent.” Fehr, 2015 WL 6166627. In analyzing this question, courts have come to differing conclusions based upon the former employee's position and involvement, if any, in the events giving rise to the litigation. Compare Stahl v. Sun Microsystems, Inc., 775 F. Supp. 1397, 1398 (D. Colo. 1991) (finding former employee of defendant to be “identified with an adverse party” because of her former employment and ongoing relationship with a key witnesses who attended the trial on behalf of defendant), with Radice v. Meritor Sav. Bank, Inc., Civ. A. No. 89-6914, 1993 WL 56044 (E.D. Pa. Mar. 2, 1993) (finding that witness, who was a former employee and defendant in the case, was not a hostile witness simply due to his former employment because he had been dismissed as a defendant at summary judgment and “was not involved in the internal process” that led to litigation).

Flores v. Miami-Dade Cty., 787 So. 2d 955, 958 (Fla. Dist. Ct. App. 2001) (A doctor's sharing of a runner with plaintiff's prior counsel, his extensive payments to the runner, and his reciprocal referral arrangement are facts which could reasonably be viewed as creating a bias toward testifying favorably to plaintiffs. Interest and motive of a witness are proper subjects for cross-examination. Id. § 608.5, at 465. The cross-examination was properly allowed)

Harris v. Buxton T.V., Inc., 460 So. 2d 828, 833 (Miss. 1984) (“In sum, the test for determining how closely the witness must be identified with the adverse party before he falls within that rule is variously stated: (1) If the witness' acts or omissions are the predicate for a party's claim or defense, that is, if in a case such as this under the plaintiff's theory of the case the defendant is subject to potential liability in substantial part not just because of his own actions but because of the actions or omissions of the witness in question, then that witness is ordinarily sufficiently identified with an adverse party and may be called as an adverse witness and interrogated by leading questions. (2) If the conduct of the witness plays such an integral part in the transaction or occurrence which is the subject of the action and which gives rise to the defendant's potential liability, so that the defendant, if the plaintiff's primary original claim is successful, would have prima facie