Episode 85 - Can You Bluff Dishonest Deponents By Implying You Have Evidence that You Don't?

In this episode, Jim Garrity tackles the question whether you can bluff a dishonest deponent - for the purpose of encouraging the witness to be truthful - by implying you have evidence that actually doesn't exist? This episode discusses a decision that confronted this precise question. A lawyer placed cassette tapes on a table in front of a deponent during the examination. The tapes were suggestively labeled to imply that the tapes contained recordings of the witness' conversations, although they contained nothing of the kind. Learn more by listening to the episode. As always, email us with questions, comments, or show ideas at [email protected] NOTES:Cincinnati Bar Association v. Statzer, 800 N.E.2d 1117 (Ohio 2003) (disciplinary action initiated against trial lawyer who used props at deposition to incentive potentially-dishonest witness to be truthful)Green, Bruce, Deceitful Silence, 33 No. 2 LITIG 24 (2007) (discussing the use of trickery in litigation)Disciplinary Counsel v. Brockler, 48 N.E.3d 557 (Ohio 2016) (prosecutor suspended from practice for one year, based on his creation of a bogus Facebook page, which he allegedly used to communicate with a defendant's alibi witness; the goal was to see if he could create sufficient dissension between the witness and the defendant to cause her to recant her support)*Added after first airing of this episode:Boulder Falcon, LLC v. Brown, No. 222CV00042JNPJCB, 2023 WL 2662187, at *17 (D. Utah Mar. 28, 2023) ("Second, asking Mr. Vitek questions asserting adverse facts that Mr. Cohan knew or clearly should have known were false is hardly fair under any sense of that word")Matter of Rena, 225 A.D.3d 1055, 206 N.Y.S.3d 817 (2024) ("In January 2023, respondent was suspended from practice for a 90-day term by the Supreme Court of Florida upon respondent's consent and her admission that, in the context of her representation of a criminal defendant, she had used an altered photo pack in her deposition of a child witness in violation of Florida law")