Depositions: Estimating Dates, Distances, Times, or Measurements
There Are Some Things That You Can’t Let Slide: Bracketing
Your opposition will always coach witnesses to avoid answering any question when they are not absolutely sure of something, and they will be specifically coached about estimates of time, distance and the like.
As a Result, witnesses often have “difficulty” giving any estimate of something that can be measured (time, distance, weight, speed and so on). The witness will abandon a lifetime of comfortably making estimates about time, distance or measurements for incomplete responses like, “I’m not sure” and “I don’t know.”
More often than not this will satisfy the questioner who will move on to more fertile areas. This kind of coached, unnatural answer can create problems in a case when the deposition does not represent the facts and evidence. Allowing the witness to slide on this kind of testimony can be fatal mistake. Unfortunately, it is inevitable that the witnesses’ recollection and ability to estimate will improve by the time the case goes to trial.
Bracketing is the technique to get an estimate from a reluctant witness. This technique is not about putting words in a witness’s mouth or misleading him. It is about getting to the truth. However, just because you can get a witness to provide an estimate does not mean that it makes strategic sense for the case.
Bracketing is an extremely useful technique to use when the witness gives you an “I don’t know,” “I’m not sure,” or “I don’t remember.” You can use this same technique for dates, events, distances or anything with a start and finish.
One approach, (not the only one) begins by getting a witness is to say one number is too big, and another is too small. The goal is to narrow the gap (sort of like settlement negotiations) When using bracketing, try to use measures that a witness, and a juror, will connect with and immediately understand.
For distances or lengths, any of the following may work: a yardstick, as long as (an arm, a finger, and so on). car lengths, football fields, or some other known distance in the community. For example, “ about as far as the high school is from downtown.” When using brackets for time, counting aloud, “one thousand one, one thousand two,” is often helpful, but do not hesitate to compare to other things like “as long as those TV ads for the Kia dealer?” or “long enough to get home, change clothes, and meet someone for dinner?” The key with any bracketing is providing a way to express the measure that the witness is comfortable with using and the same time will be clear to potential jurors.
I’m going to end right now, I’ve got a ton of things to do before the holiday but this weekend I’m going to post another Blog, a follow-up to this one with actually deposition testimony using bracketing. I wanted to thank each and every one of you who read my Blogs and also wish you a very hopeful and thankful Fourth of July. God Bless America
Don’t forget, if you have that big case and you want to talk about it give me a call and let’s set something up.