Collection of Articles by Judge Judy Holzer Hersher

116 Pages·2014·9.41 MB·English

SACRAMENTO
COUNTY BAR
2008 - 2015
ASSOCIATION
MAGAZINE
Collection of
Articles by
Judge Judy
Holzer Hersher
2008-2015
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www.sacbar.org | September/October 2014 | SACRAMENTO LAWYER 1
CONTENTS
SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE
Collection of Articles
2008 - 2015
by Judge Judy Holzer Hersher
The articles reproduced in this compilation represent the thoughts and opinions of their author, the Honorable Judy Holzer
Hersher, Judge, Sacramento County Superior Court, and should not be considered court policy or the opinion of other judges.
Comments should be addressed to [email protected].
These articles were originally published in the Sacramento Lawyer and are the copyrighted property of the Sacramento County
Bar Association. No article shall be reproduced, copied, stored in a retrieval system, or otherwise transmitted in any form without
the written permission of the Sacramento County Bar Association. To request permission contact: [email protected].
WARNING: No authority cited in any article in this compilation should be cited without first ensuring that it is still reliable
precedent, has not been superceded by changes in California codes, or otherwise overruled, amended, distinguished, or altered.
Judge Hersher and the Editor-in-Chief of the Sacramento Lawyer express their thanks to people who made this compilation
possible, Judge Hersher’s courtroom attendant, Rachel Sanchez Jacobo, and the staff of the SCBA, including Executive Director
Mary Burroughs.
Page
4 The Importance of Direct Examination in Modern Day Civil Jury Trials ........................................................September/October 2008
6 Jurors Asking Questions in the Courtroom .............................................................................................November/December 2008
8 Using Depositions in a Civil Jury Trial .............................................................................................................January/February 2009
12 Civil Case Management Orders and the New Trial Setting Program: Getting it Right the First Time .........................March/April 2009
14 Civil Jury Instructions Part I - Untimely Submission by Trial Counsel an Oversight with Significant Consequences.........May/June 2009
16 Civil Jury Instructions Part II - Argumentative Instructions ........................................................................................July/August 2009
18 Civil Jury Instructions Part III - Juror Questions during Deliberations ..........................................................September/October 2009
20 Juror Nullification in the Civil Trial: Power without Right .........................................................................November/December 2009
22 Cross Examination: Crowning Glory or Calamity ............................................................................................January/February 2010
24 Tough Economic Times Make for Reluctant Jurors:
Making Jury Service Work for Everyone ..................................................................................................................March/April 2010
26 The Privilege against Self–Incrimination: Immunity Subject to Change at Trial .............................................................May/June 2010
30 “With All Due Respect”… Not Really .....................................................................................................................July/August 2010
32 A Look at the Accomplishments of Judge Loren E. McMaster ....................................................................September/October 2010
35 Prevailing Party Determinations Post–Goodman v. Lozano,
a Cautionary Tale for Plaintiffs and Their Lawyers ...................................................................................November/December 2010
CONTENTS
39 “Reliable Authority” and Cross-Examination of Experts under California Evidence Code Section 721(b)(3):
What We Have (Not) Learned ........................................................................................................................January/February 2011
43 Writ Practice in the Superior Court: Where Medieval History Illuminates the Law ....................................................March/April 2011
46 Judicial Estoppel: The Marriage of Court and Litigant that Demands Integrity .............................................................May/June 2011
50 “Don’t Spit on Me” and Other Words of Wisdom from 50 Years of Court Reporting ..............................................July/August 2011
54 The Pitfalls of Neglecting a Court Approved Settlement in a Minor’s Case .................................................September/October 2011
58 “Out of the mouths of babes” ... Child Witnesses in the Courtroom ......................................................November/December 2011
60 The Courtroom as Arena – Positioning Is Everything ..............................................................................................March/April 2012
62 Insufficiency of the Evidence and the 13th Juror: Motions in Support or Opposition to a New Trial .............................May/June 2012
64 “Blowing Hot and Cold” in Pleadings: A Risky Business at Trial ...............................................................................July/August 2012
66 “The Cat’s Paw,” “Me too,” and the “Stray Remarks” Doctrines:
Admissible Evidence in Today’s Employment Trials ......................................................................................September/October 2012
70 “Technology in the Courtroom: Should the Prevailing or Losing Party Pay?” .......................................... November/December 2012
74 State of California v. Continental Ins. Co., et al., and the All Sums with Stacking Rule:
An Insurance Decision with Broad Implications ..............................................................................................January/February 2013
78 Computer Animation Evidence in Jury Trials ...........................................................................................................March/April 2013
82 “Gatekeepers:” A Dramatic Analogy Between Expert Testimony and the Movie Ghostbusters ....................................May/June 2013
86 Reduction to Present Cash Value: Whose Burden Is It? ...........................................................................................July/August 2013
90 The Internet and Misbehaving Jurors: What Price Justice? .........................................................................September/October 2013
94 Howell v. Hamilton Meats & Provisions, Inc., and Corenbaum v. Lampkin:
Examining the Policies behind the Decisions and their Future Impact ......................................................November/December 2013
96 Setting the Number of Peremptory Challenges in the Simple and Complex Civil Jury Trial:
Part Statute, Trial Strategy, and Discretion .....................................................................................................January/February 2014
98 Poet Robert Frost and the California Legislature Agree: Good Fences Make Good Neighbors .................................March/April 2014
102 The Primary Right Doctrine and Duplicative Damage Awards: Avoiding Reduction or Reversal on Appeal ...................May/June 2014
106 Settlement Demands in Excess Available Insurance:
Good or Bad Faith under Code of Civil Procedure Section 998? ................................................................September/October 2014
110 Posting Jury Fees by Sides: The Impact of Changes to Code of Civil Procedure Section 631 on
Last Minute Motions Affecting the Right to a Jury Trial ...........................................................................November/December 2014
114 The Demise of “Camping Rights” (Unlimithed Jury Time) in Civil Trails .........................................................January/February 2015
Litigation
View From The Civil Trial Bench
The Importance of Direct Examination in
Modern Day Civil Jury Trials
By Judge Judy
Holzer Hersher
T
he Sacramento County Superior Court inaugurated its including the use of special questionnaires and peremptory
Civil Trial Division in January of 2006. With the challenges; juror questions during trial; motions in limine;
internal exchange of information on jury trial outcomes, set- writs; jury polling; and the use and abuse of jury instructions.
tlements and difficult discovery matters, the civil trial bench is Comments on the published articles and suggestions for future
in a position to offer guidance to Sacramento County litigants articles are welcome and should be addressed to hershej@sac-
and their counsel. My goal is to share some of these perspec- court.com.
tives with you, both practical and legal, through a series of arti- The life blood of a jury trial is the question and answer.
cles over the next several months. The articles represent the It is the method by which facts and impressions pulse from
thoughts and opinions of the author and should not be con- attorneys to witnesses to jurors and, with the advent of
sidered court policy or the opinion of other trial judges. jurors asking questions, from the jurors back to the witness-
In this first article, I offer personal observations on the es and the attorneys. It is this “pulse” that Evidence Code
importance of allowing the “voice” of witnesses to be heard, for sections 760 - 764 (Method and Scope of Examination
better or for worse, and the importance of direct examination During Trial) addresses.
with our information saturated juries. In subsequent articles, Ask an attorney what the difference is between a question
I will look at the operation of the Case Management Program posed on direct examination versus cross-examination, and
in Department 45; the most abused and least understood evi- she or he will most likely respond that you can lead a witness
dentiary objections I've observed in trials; civil jury selection, on the later, but not the former. And there appears to be a
Paul S. Hokokian, Esq.
Mr. Hokokian, former chair of the State Bar's Regulation, Admission and Discipline
Committee, represents lawyers facing State Bar discipline. He will also consult on ethics.
Mark Twain: “The man who represents himself has a fool for a lawyer.”
Paul will provide you the dedicated, diligent attention to preserve, protect your Bar Card
and maintain your professional reputation. Paul will schedule evening or Saturday
appointments in his Sacramento office to accommodate your professional obligations.
Collection of Articles
If the bar calls, call Paul.
by Judge Judy Holzer Hersher
[email protected]
2008-2015
[phone] Office [phone] Toll Free
[phone] Cell [phone] Fax
12 SACRAMENTOLAWYER(cid:31)SEPTMEBER/OCTOBER2008 4
widely held belief that cross-examination by leading questions does not form a lasting impression about the witness.
is the crowning moment in a jury trial. I offer for considera- Ask a juror post trial what he or she thought about the
tion, however, that a well-paced direct examination, even of an testimony of a witness who said relatively little other than
adverse witness, is not only just as important but may be more “yes” or “no,” and you may well hear that the witness was of
important today than in the past. little or no consequence to their deliberations. Here are
Regardless of age, ethnicity or background, jurors today some of the responses I've heard: “I thought the witness was
exhibit a growing sophistication and use of enhanced infor- coached what to say and wasn't telling us the truth or the
mation transmission. This includes email, computer video, whole story;” “I think the witness was afraid to testify;” “It
text messaging and the internet. In short, they are pro- was boring;” or “The lawyer didn't let his client speak and I
grammed to receive “instant” communication by text or was suspicious and started paying more attention to the
phone or computer messaging. The same is true for com- lawyer rather than any witness.”
prehensive world news. One need only read the most recent When a witness is not allowed to speak in his or her own
revision to California Civil Jury Instruction 100, “Preliminary voice, the jury does not get a feel for that person. The facts get
Admonitions,” to see that Courts are aware of this phenome- lost in the presentation. What comes through in a lengthy set
non. The following language has been added to the instruc- of leading questions is not the personality of the witness, but
tion as of December 2007: “…Do not post any information the personality of the attorney, and sometimes not for the ben-
about the trial or your jury service on the Internet in any efit of the client.
form. Do not send or accept any messages, including e-mail YouTube and other computer information technologies
or text messages, to or from anyone concerning the trial or have been highly successful in conveying persuasive informa-
your service…” tion using both a “face” and a “voice.” The prevalence of sound
As our jurors' life experiences and expectations have based information on the internet, cell phones, iPods and other
changed, so too have their expectations of jury trials. They communication devices are testaments to the growing impor-
want a well-paced presentation of the facts, and they are visi- tance of the voice and sound to everyday living. We have spe-
bly impatient with duplicative evidence. At first blush this cial ring tones on our phones. If we hear a certain song, we
might seem to argue in favor of more leading questions. After know if we want to answer the phone. And we know if we will
all, leading a witness is often an efficient way to get relevant answer it with a smile on our face or dread. Sounds both pre-
information in front of the jury in a hurry. However, there is a condition us to what happens next, just like the scary music
danger in too much leading. before the villain enters the room, and condition us to remem-
Trial attorneys know that leading questions are generally ber and evoke certain memories or thoughts.
reserved for an adverse or hostile witness, as they offer the Imagine, if you will, a 40 minute video clip on
response the asking party wants in evidence, or because a “yes” GoogleVideo, where a voice off in the distance asks a series of
or “no” answer impeaches a witness's prior testimony. questions, the camera remains focused on the face of the
(Evidence Code § 764) Some are aware that you can lead an answerer, and all you hear for 30 or 40 minutes is “yes” or “no.”
expert--even their own expert--because the law assumes that I daresay you'd sign off that site within the first few minutes.
an expert cannot be lead to misstate his or her opinion. (People And that's what jurors do in their minds.
v. Campbell (1965) 233 Cal.App.2d 38, 44; Chula v. Superior Providing an opportunity for the jury to “hear” what
Court(1952) 109 Cal. App. 2d 24.) people have to say in their own voice is often overlooked by
A fair number of attorneys also use leading questions attorneys, who value leading as the greatest weapon in their
with their own witnesses. Some attorneys seem to deter- artillery. Jurors seem to respond to testimony where the
minedly avoid direct questions with their key witnesses and witness is allowed to voice, in his or her own words, the
the opposing side does not object. There may be any number events that transpired. From where I sit, it appears that their
of reasons why this is done with one's own witness: estab- brains are engaged, they pay attention to the sound, tone
lishing foundation, speed, fear the witness might not get it and pace of both the attorney and the witness's voice, and
right, or concern about exactly what the witness may say or they remember.
forget to say, etc. However, if you sit where I sit, and if you There is an art to direct questioning. It is an art that is
observe jurors as they listen to leading questions in lieu of undervalued. Some of the best cross-examination I have
direct questioning, you will observe several disturbing observed in the courtroom-- in both criminal and civil trials--
things. Foremost, unless the leading questions are significant has really been direct questioning of an adverse witness, punc-
revelations, the jury gets bored. They just stop listening. Of tuated with leading questions that tie down the witness in his
course, if they are not listening, they are not hearing. And if or her own voice.
they are not hearing, they are not processing the information. Planning the presentation of evidence that allows a witness
I've seen jurors close their eyes and get visibly annoyed at a to speak in his or her own voice as much as possible is in keep-
long string of leading questions. More problematic than any ing with today's juror experiences in the real world. And it will
transitory annoyance by a juror, however, is that he or she keep them awake and engaged.
5 SEPTEMBER/OCTOBER2008 (cid:31)SACRAMENTOLAWYER 13
Litigation
View From the Civil Trial Bench
Jurors Asking Questions in the Courtroom
By Judge Judy
Holzer Hersher
T
he Sacramento County Superior Court inaugurated its to their use, but they are ignored at counsel's peril, as they cue
Civil Trial Division in January of 2006. These articles rep- attorneys into what jurors do not understand, or may not have
resent the thoughts and opinions of the author and should not be caught in prior testimony.
considered court policy or the opinion of other trial judges. Some trial counsel have candidly admitted that jurors have
Comments and suggestions for future articles are welcome and asked questions they did not think to ask and thus have been
should be addressed to [email protected] appreciative of having an opportunity to address -- or in some
Effective January 1, 2007, California Rule of Court 2.1033 instances revisit -- areas that jurors appear concerned about. I
provides that a California trial judge “should allow jurors to also believe the process likely has reduced impermissible dis-
submit written questions directed to witnesses,” after provid- cussions in the jury room. This is particularly true where a
ing counsel with an opportunity to object to the question out- question has been raised that alerted the Court to the need for
side the presence of the jury. The rule applies to both civil and additional or repeated admonishments that a particular area,
criminal trials. As the innovation is such as insurance or a juror's personal
embraced by a growing number of In considering the experience, is off limits and must not to
judges, it is important for trial attorneys be discussed or considered.
value of jurors asking
to consider how best to use the process. There are some federal courts, but as
Since many practitioners have not yet no reported decisions by California
questions, it is impor-
yet had the opportunity to work with courts, that have questioned the consti-
the new rule or related jury instruc- tutionality of the practice, as well as the
tant for civil attorneys
tions,1 some counsel are concerned ability of trial judges to manage situa-
about whether the process is good for to remember that tions where juror questions affect due
their clients and the advocacy system in process. The main concern is that by
general. As discussions and personal jurors are admonished asking questions, an impartial fact find-
experiences with the process grow, the er is turned into a de facto third advo-
that they can only take
number of those with reservations cate, thereby distracting the juror from
should decrease. the real task at hand, i.e., listening,
into account evidence
My department has allowed jurors absorbing and rendering a decision
to ask questions for over two and a half that is presented from a fair and neutral perspective.3
years in civil trials, and I have just More often, trial attorneys express con-
begun using the technique in criminal during the trial. cern that allowing jurors to ask ques-
cases. Other judges throughout the tions affects their ability to control trial
state and the country, as well as here in strategy and may open areas of inquiry
Sacramento County, are using the process.2 My experience is which counsel have chosen not to address or perhaps have
that the ability to ask appropriate questions has contributed to stipulated to allowing the court to decide.
a reduction in juror questions during deliberations. From per- While these concerns are valid if juror questions are not
sonal observation, jurors appear to listen more attentively, and handled properly, they are not insurmountable. Counsel need
often ask questions which are not only relevant, but identify to be honest with the Court about trial strategies that may be
for counsel a missing element or fact viewed by jurors as adversely affected by juror questions. If there are valid reasons
important to their decision-making. Their questions then give to deny inquiry into a particular area, the trial judge can so
counsel and the Court the opportunity to clear up areas of decide or, if appropriate, instruct the jury at the beginning of
potential confusion in the facts through additional questioning the case or at the appropriate time during trial regarding any
and/or provide appropriate admonitions and instructions. limitations. Attorneys should understand that just because the
The number of questions asked in a trial has varied from attorney wishes to avoid certain questions, the juror is not pre-
one or two, to literally dozens. Generally, the longer the trial, cluded from considering those questions in his or her mind.
the more complicated the issues and greater number of wit- Unexplored inner dialogue can be dangerous and affect the out-
nesses, the more questions. Juror concerns may appear to be come of the case. Like any process involved in a jury trial, it is
off-script and time consuming to trial counsel not accustomed important that the Court and counsel work together to antici-
12 SACRAMENTOLAWYER(cid:31)NOVEMBER/DECEMBER2008 6
pate and avoid problems that may occur with this new process. reasons for overruling the objection. If done properly, the
This includes a discussion with counsel before the trial about process is a great enhancement to the jury process and, I
how the procedure will work and a discussion with potential believe, is an aid to trial attorneys.
jurors during voir dire regarding the limitations of the process.
In considering the value of jurors asking questions, it is Judge Hersher provided the following script used to explain the
important for civil attorneys to remember that jurors are process to potential jurors. It is provided for illustrative purposes
admonished that they can only take into account evidence that only, so counsel can acquaint themselves with how a trial judge
is presented during the trial (CACI 100-Preliminary might handle the discussion with jurors.
Admonitions; see also CALCRIM 101-Cautionary
Instructions). Civil jurors are also told that they can consider The Superior Court Judge's Voir Dire
(1) the ability of each party to provide evidence and (2) if a Script Explaining the Role of Jurors
party has provided weaker evidence when it could have pro- Asking Questions
vided stronger evidence, jurors may distrust the weaker evi- Ladies and Gentlemen, as part of the Court's continuing
dence (CACI 203). Similarly, CACI 205 allows a juror to con- effort to improve justice and the jury system, we allow our
sider whether a party failed to explain or deny some unfavor- jurors to ask questions to witnesses.
able evidence and that such inaction can be used to suggest If, during the trial, you have a question that you believe
that the unfavorable evidence is true.4 Questions by jurors should be asked of a witness, you may write out the question
give counsel an opportunity to make better decisions on what and send it to me through the court attendant. I will discuss
should and should not be explored before the jury. the question with the attorneys and decide whether it may be
The criminal and civil jury instructions on juror questions asked. Do not feel slighted or disappointed if your question is
are not identical. Both provide that the question must be writ- not asked. Your question may not be asked for a variety of rea-
ten and that jurors should not discuss their question with other sons, including the reason that the question may call for an
jurors until they are in the deliberation room. Both advise that answer that is inadmissible for legal reasons. Also, do not
the attorneys will have an opportunity to discuss their question guess the reason your question was not asked or speculate
with the Court before it is asked and that there may be legal about what the answer might have been. Always remember
reasons why a question is not asked. Both admonish jurors that that you are not advocates for one side or the other in this case.
they should not guess or be concerned with the reasons why You are impartial judges of the facts.
their question was not asked. The CALCRIM criminal instruc- This is how the process works during the trial. One side is
tion goes further and advises jurors that they should not feel going to call a witness and all attorneys will have an opportu-
“slighted” or “disappointed” if their question is not asked nity to question that witness until each indicates their exami-
because, among other reasons, the question may call for an nation and cross-examination is complete. When they tell me
answer that is inadmissible for legal reasons. The criminal they are done, I will then turn to you and give you a few min-
instruction also admonishes jurors that they are not advocates utes to write out any questions you may have for the particu-
Collection of
for one side or the other and to remain impartial. I believe the lar witness, based on the testimony you have heard. Please do
criminal instruction covers more of the concerns that a civil not be distracted by the writing of questions while the witness
attorney might have and I encourage the offering of the crimi- is testifying. I wAill grivet yoiuc a flewe msom enbts tyo th in k and write
nal instruction (CALCRIM 106) in civil trials. after the examination is complete.
Further, I believe it is important for both the Court and the Next, my Court attendant will collect the questions. I will
Judge Judy
attorneys to talk with jurors during voir dire and tell them that meet with the attorneys at sidebar and see if we can quickly
the decision to ask or not ask their question is the Court's alone, reach agreement on whether the question is legally permitted.
based on the judge's knowledge and understanding of the law. If so, I wiHll poose ylouzr qeuesrtion Hto thee writnsess hande askr that he or
As such, any feeling of disappointment or concern about the she turn and respond to the jury. I will then give the attorneys
decision not to ask their particular question should be laid at the the opportunity to follow up with additional questions, if they
2008-2015
doorstep of the judge, and not counsel or the parties. feel it is appropriate. I will then again ask you if you have any
In Department 45, the official court reporter transcript is the further questions. And so it will go until counsel and jury are
record of the actual question asked, which sometimes is modi- given an opportunity to ask appropriate follow up questions.
fied from a juror's written question after consultation with the Please understand that I, as the trial judge, make the final
attorneys, as jurors often do not understand concepts such as decision as to whether your question will be asked. If your
compound questions or speculation. The original written ques- question is not asked, please do not speculate as to why it is
tions are kept in the file, so that a complete record is maintained not asked. Just as importantly, do not hold it against any of the
and any argument by counsel later can be placed in context. attorneys or their clients because your question is not asked.
Of the literally hundreds of questions that have arisen in The decision to ask or not ask your question is mine alone to
trials, less than handful have generated an objection by coun- make. It is my job to know what questions are permitted
sel or necessitated making a record of the objection and the Continued on page 17
7 NOVEMBER/DECEMBER2008 (cid:31)SACRAMENTOLAWYER 13
Litigation
View From the Civil Trial Bench -
Using Depositions in a Civil Jury Trial
By Judge Judy
Holzer Hersher
The Sacramento County Superior Court inaugurated its deposition testimony before the jury. Importantly, unless
Civil Trial Division in January of 2006. These articles represent used strategically and sparingly, the use of a deposition to
the thoughts and opinions of the author and should not be con- present evidence at trial can be more of a negative than a
sidered court policy or the opinion of other trial judges. positive.
Comments and suggestions for future articles are welcome and The California Evidence Code and the Code of Civil
should be addressed to [email protected] Procedure allow for the effective use of deposition testi-
mony to challenge witness credibility during cross-exam-
P ination. It is not necessary, for example, to give the wit-
resenting effective evidence in a civil trial is very dif- ness an opportunity to review his or her testimony before
ferent from gathering evidence in a deposition. impeaching their credibility with a prior inconsistent
Choice of deposition tactics, like whether to cover things statement.1 The statutes distinguish, however, how and
chronologically or whether to establish a complete founda- when deposition testimony can be used against a partyas
tion for each question before eliciting answers, should be opposed to a non-party witness. The most significant dif-
considered if the trial attorney wants to effectively use the ference is that practically anything said by a party in a
deposition is potentially admissible, while statements
made by a non-party witness have more limited admissi-
bility. (Compare Code Civil Procedure section
2025.620(b) with section 2025.620(a) and (c).)
Specifically, Code of Civil Procedure section
2025.620(b) allows the use of the deposition for “any pur-
pose” against a party. The use of the testimony therefore
starts with the presumption of admissibility, subject only to
other sections of the Evidence Code, including lack of rele-
vance, hearsay without exception, no foundation or where
the probative value is outweighed by the prejudice of
admission. (See, Evid. Code secs. 350-352, 400-403, and
1200 et. seq.)
If the deponent is not a natural person, “party”
includes any officer, director, managing agent, employee,
or agent designated as the most qualified to testify. Often
Collection of the battle in the courtroom is over whether someone is a
managing agent, such that the presumption of admissibil-
Articles by ity applies and the statements bind the corporation or
entity.2
With respect to a party witness, an attorney can offer
Judge Judy
into evidence portions of the party's deposition that are oth-
erwise admissible. The text need not impeach or contradict
Holzer Hersher
the testimony of the party on the stand--although it is often
used for this purpose--but may simply provide relevant
2008-2015 background or information.
Importantly, the deposition excerpts can be offered at
any time, up to the time the case is finally submitted for
decision. For example, the party need not be on the stand
14 SACRAMENTOLAWYER(cid:31)JANUARY/FEBRUARY2009 8
at the time the excerpts are read. Under Code of Civil tion 1202, the Court also may allow the hearsay evidence if
Procedure section 2025.620, as long as the offered testimo- it tends to establish the witness's lack of credibility, even if
ny is admissible “under the rules of evidence applied as the witness has not had an opportunity to explain or deny
though the deponent were then present and testifying as a the inconsistency or conduct. In so considering, however,
witness,” the testimony will come in. This is true even the court must give “due regard to the importance of pre-
when the party is available to testify, has already testified, or senting the testimony of witnesses orally in open court.”
will testify at some later time; and even though the party (See Evid. Code section 2025.620(c)(3).)
has not been asked or will never be asked the question on Whether the witness is present or not, the Court must
the stand that has been covered in the deposition. (See CCP consider whether the offered extrinsic deposition evidence
section 2025.620(b).) of a non-party in fact contradicts an in-court statement or
In contrast, deposition testimony may only be used impeaches credibility. Sometimes the deposition excerpt
against a non-party witness under the circumstances set does just that, and counsel may well score a point for their
forth in Evidence Code section 770 regarding extrinsic evi- client. However, if the question posed at deposition is not
dence of inconsistent statements. Specifically, counsel gen- really on all fours with the question posed during trial, has
erally can only offer the deposition testimony of the non- too many variables, or does not contradict the witness' state-
party witness if it contradicts the fact offered by the witness ment on the stand, the use of the deposition testimony can
while on the stand. And unlike a party witness, the Court be denied. Even if the deposition testimony is allowed,
can exclude the evidence if the non-party witness is not counsel can look ineffective, over reaching or foolish in try-
given an opportunity to explain or deny the inconsistent ing to make the witness out as a liar when the deposition
deposition statement. (See Evid. Code section 770(a).) testimony does not firmly establish this point.
Thus, if the statement is offered at a point in the trial While the statutes distinguish between the use of party
when the non-party witness is not on the stand, the Court and non-party deposition at trial in the majority of
first determines whether the witness Continued on page 17
remains subject to recall or was not
excused from giving further testimony
in the action. (See Evid. Code section
770(b).) If the non-party witness can-
not be recalled to explain or deny the
inconsistency, it is very likely the dep-
osition testimony will be excluded.
Read together, Evidence Code section
770 and Code of Civil Procedure sec-
tion 2025.620 provide more initial
protection to the non-party witness,
who has no stake in the litigation, is
generally not represented at the depo-
sition, and has not been counseled
about ambiguous questions.
Collection of
In certain circumstances where the
non-party witness is not on the stand
Articles by
or has been released from further tes-
timony or cannot be located after tes-
Judge Judy
tifying, the Court still can admit the
extrinsic impeachment testimony, but
only after considering the interests of Holzer Hersher
justice. Attorneys will have an oppor-
tunity outside the presence of the jury
2008-2015
to present their legal arguments in
support of and in opposition to the
admission. Under Evidence Code sec-
9 JANUARY/FEBRUARY2009 (cid:31)SACRAMENTOLAWYER 15
Civil Trial Bench continued from page 15 Civil Trial Bench continued from page 15
instances, there are a number of circumstances under CCP establish a clear fouinnsdtaatniocnes ,i nth ethree adree pao nsuitmiobne rt roafn cscirrciputm. stances under CCP establish a clear foundation in the deposition transcript.
section 2025.620(c) where “any party may use for any Finally, counsel shousldec dtieocnid 2e 0if2 5u.s6in2g0 (dce)p owshiteioren “teasntyim poanryty may use for any Finally, counsel should decide if using deposition testimony
purpose the deposition of any person or organization.” would actually scorep puoripnotss ef otrh eth edierp soidsiet.i oWn hoefr ea inmyppeearcsho-n or organization.” would actually score points for their side. Where impeach-
(emphasis added) The distinction between a party witness ment or credibility i(se imn pihssauseis, aifd dtheed )s eTrihees doifs tqinucetsitoionn bs eitnween a party witness ment or credibility is in issue, if the series of questions in
and a non-party witness disappears when: (1) the depon- court leading up to atnhde aim npoena-cphamrteyn wt iatnree ssst rdaiisgahptfpoerawrsa rwd,hen: (1) the depon- court leading up to the impeachment are straightforward,
ent resides more than 150 miles from the trial; (2) is unambiguous and one pnot inret swiditehs thmeo green ethraaln l in1e5 o0f qmuielestsi ofnrosm the trial; (2) is unambiguous and on point with the general line of questions
unavailable to testify because of privilege or is deceased; presented at depositiounn,a ivta wilialbl lbee tmo otrees tdifiyff ibcueclta fuosre o opfp opsriinvgilege or is deceased; presented at deposition, it will be more difficult for opposing
(3) has an existing physical or mental illness or infirmity; counsel to object or (t3o )r ehhaas bainlit aetxei stthine gi npchoynssiicsatel notr wmitennetsasl. illness or infirmity; counsel to object or to rehabilitate the inconsistent witness.
or (4) when the Court is unable to compel the deponent's If not, counsel mighot r w(4el)l wfohregno tohfefe Crionugr tt oi s rueanda bflreo mto cthoempel the deponent's If not, counsel might well forgo offering to read from the
attendance by legal process. The Court can, again, con- deposition, lest they agtitveen dthaen cime pbrye slseigoanl tpor othcee sjsu. r yT ohfe i nCeof-urt can, again, con- deposition, lest they give the impression to the jury of inef-
sider whether there are exceptional circumstances that fective lawyering. sider whether there are exceptional circumstances that fective lawyering.
permit the use of the deposition testimony “in the interests permit the use of the deposition testimony “in the interests
of justice.” In each of these exceptions, the offering attor- 1. Counsel should use ocafu jtuiosnti cceit.i”n g Itno ecaascehs porfi othr etos e1 e9x6c7e. p tPiroionrs, the offering attor- 1. Counsel should use caution citing to cases prior to 1967. Prior
ney should be prepared to establish through the use of 1967, counsel for the witnneeyss ushndoeur ledx abmei npatrioenp acroeudld treoq ueisrtea tbhlaits thh ethrough the use of 1967, counsel for the witness under examination could require that the
witness be shown the prior written inconsistent statement, which witness be shown the prior written inconsistent statement, which
admissible evidence his or her reasonable diligence in admissible evidence his or her reasonable diligence in
included his or her deposition transcript, before being asked about any included his or her deposition transcript, before being asked about any
attempting to secure the witness for in court testimony. attempting to secure the witness for in court testimony.
statements made therein. (See, e.g., the history contained in the statements made therein. (See, e.g., the history contained in the
In summary, in preparing for deposition counsel should In summary, in preparing for deposition counsel should
Assembly Committee on Judiciary comments to Evid. Code sections Assembly Committee on Judiciary comments to Evid. Code sections
consider how they ask questions if they hope to have the consider how they ask questions if they hope to have the
768 and 769 and 7 Cal.L.Rev. Comm.Reports 1(1965).) This allowed 768 and 769 and 7 Cal.L.Rev. Comm.Reports 1(1965).) This allowed
answers admitted during trial and for their strategy to be the witness an opportuniatny stow beorsth ardevmieiwtt eandd dexuprlianing atwriaayl tahne din cfoonr- their strategy to be the witness an opportunity to both review and explain away the incon-
effective. They should also pay to attention to the differences sistent statement immedieaftfeelcy taivfteer. Tthhe ejuyr syh woausl idn faolrsmoe pda oyf tthoe a itntceonnt-ion to the differences sistent statement immediately after the jury was informed of the incon-
in the rules on admissibility of party and non-party deposi- sistency, if not before. Tihnis t ihs en oru lolensg eorn t haed cmasies.sibility of party and non-party deposi- sistency, if not before. This is no longer the case.
tion testimony. If they hope to use the testimony of a man- 2. See, e.g., White v. Ultratmioanr (t1e9s9t9im) 2o1n Cy.a l .I4ft hth 5e6y3 ,h 5o7p7e-5 t7o8 ufosre a tchaese testimony of a man- 2. See, e.g., White v. Ultramar(1999) 21 Cal.4th 563, 577-578 for a case
that offers guidance on how to determine who is a “managing agent.” that offers guidance on how to determine who is a “managing agent.”
aging agent or agent or employee, they would do well to aging agent or agent or employee, they would do well to
Collection of Articles
by Judge Judy Holzer Hersher
2008-2015
JANUARY/FEBRUARY2009 (cid:31)SACRAMENTOLAWYER 17 10 JANUARY/FEBRUARY2009 (cid:31)SACRAMENTOLAWYER 17