Page 35 - FDCC Deposition Drills

Deposition Drills How to Teach Deposition Skills
Having a Witness Mark Exhibits
The time may come where you need a witness to mark a photo or diagram. Knowing how to walk a witness through marking an exhibit and making a record, while addressing any objections raised by opposing counsel, is important in cases where exact locations or distances is relevant.
EXPLANATION
Participants learn how to walk a deponent through identifying and marking an exhibit.
EXERCISE
Locate a photo or diagram of an intersection or floor plan and use it to teach participants how to have a witness mark an exhibit. Have the participants lay the foundation for the photo or diagram and instruct you how and where to mark it. For example, on a floor plan, have them pretend you are a plaintiff in a slip and fall case and have them ask you to mark where the hazard was and where you allegedly fell and then discuss how they can address objections by Plaintiff’s counsel to having their client mark the exhibit.
LESSONS LEARNED
This exercise teaches the mechanics of having a witness mark an exhibit. It sounds simple enough, but sometimes a mark that is just slightly off from where it should be can negatively affect your case. Committing a witness to the exact location on a diagram and having her mark that area can serve you well at mediation, summary judgment or trial.
A FEW QUESTIONS TO DISCUSS
Why do you want a witness to mark a photo or diagram? What’s the end game?
What happens to your case if the witness marks a document where you want her to? What happens if she marks a document where you don’t want her to?
How do you deal with an attorney objecting to having their client mark an exhibit? Is there any caselaw in your jurisdiction addressing this issue?
©2021 Federation of Defense & Corporate Counsel
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SECTION 03 USING EXHIBITS