Episode 41 -Developing Deposition Testimony of Adverse Witnesses So You Can Lead Them During Your Case-In-Chief

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 a claim for indemnity over against the witness, then again the witness is said to be sufficiently identified with the adverse party so that the witness may be called as an adverse witness and cross-examined”) *** Since the adoption of Rule 611, Fed.R.Ev. in 1975, there has been precious little litigation concerning the issue of who may be considered as “identified with an adverse party”. There are only two decisions emanating from United States Courts of Appeals which address this issue: Ellis v. City of Chicago, 667 F.2d 606 (7th Cir.1981) and Perkins v. Volkswagen of America, Inc., 596 F.2d 681 (5th Cir.1979). The holding of these cases can be summarized as follows: Before the adoption of Rule 611(c), the use of leading questions on direct examination required either a showing of actual hostility or a determination that the witness being examined was an adverse party, or an officer, director, or managing *832 agent of such an adverse party. [citations omitted] These limitations were designed to guard against the risk of improper suggestion inherent in examining friendly witnesses through the use of leading questions. [citations omitted] The drafters of Rule 611(c), however, determined that these limitations represented “an unduly narrow concept of those who may safely be regarded as hostile without further demonstration.” [citation omitted] The new rule was thus designed to enlarge the categories of witnesses automatically regarded as adverse, and therefore subject to interrogation by leading questions without further showing of actual hostility. —Ellis, 667 F.2d at 612–13; see also Perkins, 596 F.2d at 682 (trial court's failure to allow a mere employee of a corporation to be regarded as “identified with the corporation” was incorrect)

United States v. McLaughlin, No. CRIM.A. 95-CR-113, 1998 WL 966014, at *1 (E.D. Pa. Nov. 19, 1998) (“Here, Mr. St. Clair clearly is “identified with an adverse party”—the defendant. See Perkins v. Volkswagen of Am., 596 F.2d 681, 682 (5th Cir.1979) (employee of an adverse party was “identified” with employer). Although I would not call them in cahoots, they were, at the very least, cohorts”)

Washington v. Illinois Dep't of Revenue, No. 01-3300, 2006 WL 2873437, at *1 (C.D. Ill. Oct. 5, 2006) “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.” Vanemmerik v. The Ground Round, Inc., 1998 WL 474106, *1 (E.D.Pa.1998) (collecting cases). As one district court has recognized, “Scholars have warned that, although the rule allows ample room to maneuver, “the courts should be careful before extending this list much further.” Id. (citing 28 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 6168, *6 (1993)). Even if a witness is not an adverse party, or identified with an adverse party, the Court may find the witness to be “hostile” under Rule 611(c). “This classification usually involves a showing by the examining party that the witness is biased against the direct examiner, his/her client or both and often is demonstrated by examples of that witnesses demeanor.” Id. at *2 (citing 28 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 6168, *7 (1993)).

State v. McBeth, 2019 Ohio 59 A witness identified with an adverse party is “a witness aligned with an opposing party because of a relationship or common interest in the litigation.”1 State v. Fields, 8th Dist. Cuyahoga No. 88916, 2007-Ohio-5060, ¶ 14. “[E]vasiveness is not a prerequisite to finding adversity” in determining whether a witness is identified with an adverse party under Evid.R. 611(C). State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 150. The trial court need not expressly find that a witness is identified with an adverse party in order for the decision to allow leading questions to be affirmed on appeal. State v. Benson, 11th Dist. Portage No. 2001-P-0086, 2002-Ohio-6942, ¶ 25, citing State v. Snyder, 12th Dist. Butler No. 88-04-054, 1989 WL 943, *6 (Jan. 9, 1989). “A witness that identifies himself with an opposing party by prior acts or expressed intentions may be questioned as if on cross-examination by the party calling the witness.” State v. Shepherd, 10th Dist. Franklin No. , 2000 WL 192360, *8 (Sept. 28, 1999), quoting State v. Matthews, 5th Dist. Clark App. No. 96-CA-0011, 1997 WL 593821, *10 (Sept. 26, 1997). “Ordinarily, a trial judge is in a better position to evaluate the attitudes displayed by witnesses.” State v. Stearns, 7 Ohio App.3d 11, 14, 454 N.E.2d 139 (8th Dist.).

Sec. & Exch. Comm'n v. Goldstone, 317 F.R.D. 147, 164 (D.N.M. 2016) The definition of a witness “identified with an adverse party” is broader than the old definition of an “adverse party” in the Federal Rules of Civil Procedure: Rule 43(b) of the Federal Rules of Civil Procedure has included only “an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.” This limitation virtually to persons whose statements would stand as admissions is believed to be an unduly narrow concept of those who may safely be regarded as hostile without further demonstration.... The phrase of the rule, “witness identified with” an adverse party, is designed to enlarge the category of persons thus callable. 15 Fed. R. Evid. 611, advisory committee notes. Although the precise meaning of a witness identified with an adverse party is not clearly defined, a few relationships fall within its meaning. These relationships include: (i) employee/employer relationships, see Chonich v. Wayne Cty. Cmty. Coll., 874 F.2d 359, 368 (6th Cir.1989)(allowing leading questions on direct examinations of community college's former president and personnel director); Haney v. Mizell Mem'l Hosp., 744 F.2d 1467, 1478 (11th Cir.1984)(“Nurse Williamson, an employee of one of the defendants present when the alleged malpractice may have occurred, certainly was identified with a party adverse to [the plaintiff].”); (ii) romantic partners, see United States v. Hicks, 748 F.2d 854, 859 (4th Cir.1984)(“Clearly [the defendant's girlfriend] was a person ‘identified with an adverse party’ so that interrogation by leading questions was permissible.”); and (iii) law enforcement investigators, see United States v. Tsui, 646 F.2d 365, 368 (9th Cir.1981)(stating that a district court's refusal to permit the defendant to pose leading questions to an IRS investigator was error, albeit harmless error). Courts must be careful, however, not to expand these pre-existing categories. See Suarez Matos v. Ashford Presbyterian Cmty. Hosp., Inc., 4 F.3d 47, 50 (1st Cir.1993)(“We find no case involving the adversary's proposed expert, or suggesting that simply because a party expects favorable testimony from a witness, the opponent is entitled to call him, or her, as hostile.”). They may thus wait until trial to determine whether the witness will actually demonstrate hostility. See Gold, supra, at § 6168 (“[S]ince leading questions can also be justified if the specific witness in question is demonstrably ‘hostile,’ there is no need to make possibly unwarranted generalizations about the types of witnesses who should be presumed immune to suggestion.”); United States v. Brown, 603 F.2d 1022, 1025–26 (1st Cir.1979)(treating a witness as hostile “after a lengthy direct examination (twenty-five transcript pages) during which all leading questions were excluded”). Courts make determinations outside of existing formal categories based in large part on a witness' demeanor at trial. See United States v. Cisneros–Gutierrez, 517 F.3d 751, 762 (5th Cir.2008)(affirming a district court's decision to treat a witness as hostile “given the extent of Edgardo's memory problems, which reasonably appears to have been feigned, and Edgardo's hostility”); United States v. Wiley, 846 F.2d 150, 156 (2d Cir.1988)(treating witness as hostile where he “was unresponsive and deviated from previous statements”). Even witnesses cooperating with the prosecution pursuant to an immunity agreement may nonetheless be designated hostile witnesses to the United States during their direct examinations. See United States v. Diaz, 662 F.2d 713, 718 (11th Cir.1981)(“The record clearly reflects, however, that, despite the grant of immunity, Gelebert's hostility was directed to the government, rather than to Diaz. Previously, Gelebert had testified that he was a very good friend of Diaz and that he had known him for approximately five years[.]”)

Fehr v. SUS-Q Cyber Charter Sch., No. 4:13-CV-01871, 2015 WL 6166627, at *3 (M.D. Pa. Oct. 20, 2015) citing, N.L.R.B. v. Sw. Colorado Contractors Ass'n, 379 F.2d 360, 365 (10th Cir.1967) (finding leading questions appropriate under similar statutory provision because “[b]y virtue of [former employee's] status as the proprietor of one of the respondent firms as well as his former official position within [the Defendant] Association, his interests and sympathies were clearly aligned with those of the other respondent”)

Dudley v. City of Kinston, No. 4:18-CV-00072-D, 2020 WL 7049554, at *5 (E.D.N.C. Dec. 1, 2020) That Moore is Dudley's daughter places her firmly within the category of a witness identified with an adverse party. Vanemmerik v. The Ground Round, Inc., No. 97–5923, 1998 WL 474106 (E.D. Pa. July 16, 1998) (“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.”). There was nothing inappropriate about defense counsel asking Moore leading questions)

Chonich v. Wayne Cty. Cmty. Coll., 874 F.2d 359, 368 (6th Cir. 1989) (allowing leading questions on direct examinations of community college's former president and personnel director)

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" in part because of her former employment)

Haney v. Mizell Mem'l Hosp., 744 F.2d 1467, 1478 (11th Cir. 1984) (finding that an employee of defendant present when the alleged malpractice may have occurred was identified with an adverse party). The term 'witness identified with an adverse party' is intended to apply broadly to an identification based upon employment by the party or by virtue of a demonstrated connection to an opposing party)

Batte v. Pomeroy, 497 So.2d 1275 (Fla. 4th DCA 1986); Medina; Smith v. Fortune Insurance Co., 404 So.2d 821 (Fla. 1st DCA 1981)

Young v. Metropolitan Dade County, 201 So.2d 594 (Fla. 3d DCA 1967)

Colwell v. Voyager Casualty Ins Co., 251 Ga. 744, 747 (S. Ct. Ga. 1983) (adverse party may only question witness by direct examination)

Ellis v. City of Chicago, 667 F.2d 606, 612 (7th Cir.1981)

Perkins v. Volkswagen of America, Inc., 596 F.2d 681,682 (5th Cir.1979) (error for trial court to rule that employee of defendant would be plaintiff's witness if plaintiff called him)

Erp v. Carroll, 438 So. 2d 31, 36–37 (Fla. Dist. Ct. App. 1983) An adverse witness means only one who gives evidence on a material matter that is adverse, unfavorable or prejudicial to the party calling the witness. See *37 Hernandez v. State, 156 Fla. 356, 22 So.2d 781 (Fla.1945); Johnson v. State, 178 So.2d 724, 728 (Fla. 2d DCA 1965). Cf., Direct Transport Company of Florida v. Rakaskas, 167 So.2d 623 (Fla. 3d DCA 1964), cert. dismd., 176 So.2d 68 (Fla.1965). A knowledgeable but unwilling, reluctant or recalcitrant witness should always be subject to interrogation by leading questions without regard to who called the witness or as to the witness' status as a party or identity with an adverse party or the possible interest the witness may have in the outcome of the case. Conversely, an obviously willing, forthright and candid witness need not, and should not, be led without regard to the witness' formal status or interest or whether the witness is being directly examined by the person calling the witness or cross-examined by anyone else. Thus, as Wigmore concludes, the test for permitting or prohibiting leading questions is ultimately and essentially independent of the superficial circumstance as to which party originally put the witness on the stand. 3A Wigmore, Evidence § 909 (Chadbourne Rev.1970)

Colwell v. Voyager Casualty Ins Co., 251 Ga. 744, 747 (S. Ct. Ga. 1983) (party may not use leading questions on cross-examination of friendly witness after adverse party called the hostile witness on “direct” examination")