78. Refreshing Recollection and Impeachment, with John Farrell

In this episode, veteran trial lawyer John Farrell distinguishes between refreshing recollection and impeachment, two essential but sometimes conflated courtroom skills. Learn how to help your own witness recall facts on direct examination through refreshing recollection and how to effectively challenge an opposing witness on cross with a structured, high-impact impeachment technique. Packed with practical language and strategy (and a few demos along the way), this conversation offers clear guidance on when and how to deploy these important skills that every trial lawyer needs to master.

Topics
3:13    Difference between refreshing recollection and impeachment
4:54    What’s wrong with “I don’t know” during examination
6:19    Using documents to refresh recollection
7:24    What’s wrong with “would” during refreshing recollection
8:41   Refreshing recollection demo
10:13 A crucial step to remember
13:21 The point of impeachment
14:37 Step 1 of impeaching by prior inconsistent statement
15:35 Demo
17:52 Why you should sound disappointed
18:50 Demo
19:20 Steps 2–6
23:21 Demo
27:21 Why impeachment better be worth the effort
30:05 Your tone through impeachment
33:16 Impeachment by omission
40:49 Consequences of a bad impeachment
41:56 Again, make impeachment worth your while
44:16 Signoff questions

Quote
“The reason [impeachment] is so important is that if you decide to impeach and you don’t do it correctly or successfully, the witness has just been told they can lie all the time on the stand. You’ve lost control. If you do it really well the first time, and the next time they go off message, they say something else different, and [the witness goes], “Well, no, that’s not right. It was Fact C.” And [you] go, “I don’t think so. Let's go to your depo transcript.” [The witness will] go, “Okay, fine, fine, it was C,” because they don’t want to go through that again. So I think it’s an important tool.” John Farrell

Resources
John Farrell (bio)
Refreshing Recollection and Impeachment (article)
Eight Steps for Handling Deposition Exhibits (podcast)
Deposition articles (1, 2, 3)

Transcript

Marsi Mangan 0:06

On today's episode of May the Record Reflect.

John Farrell 0:12

The problem is in real life, we never say I don't remember. That'd be weird in a conversation. When someone says, What did you do last week? We always say, I don't know. Well, of course you once knew. You just don't remember. And so our normal habit for witnesses is to do what they normally do, which is, you know, what was the license plate number? Oh, I don't know. And what they really mean is I don't remember. So when you prep a witness, it'd be great for them to say, if you don't remember, say I don't remember. It will still happen. You will ask them, what was the license plate number of the car? They'll say, I don't know. And you'll have to fix that by saying, Do you mean you never knew or you just don't remember right now? And once they say, Oh, I mean I just don't remember right now, then you may refresh recollection.

Marsi Mangan 1:00

That was John Farrell, and this is May the Record Reflect. John is the Director of Advocacy and Training at the New York City office of Becker and Palayakoff. He is a veteran of over 150 jury trials and is recognized as one of the top trial lawyers in America. Prior to relocating to New York last year, John was a principal at Fish and Richardson in Northern California, where he handled complex litigation, contract disputes, and intellectual property litigation. And before that, John was an assistant DA in the San Francisco District Attorney's Office, where eventually he served as the head attorney of the Homicide Unit. John is here today to totally geek out on the difference between refreshing recollection and impeachment. And after this episode, you will never again confuse the two. I hope you will enjoy listening to John Farrell as much as I enjoy talking with him. So, without further ado, here's our interview. So I am really pleased to welcome back a guest I had on last year, John Farrell, who came on board to talk about handling exhibits during depositions. John, welcome back.

John Farrell 2:55

Thanks for having me back.

Marsi Mangan 2:56

Well, I had such a fun time recording with you. And as I recall last time, we had no more than finished up that conversation, and you said, Hey, I'd like to do that again. And so here you are, and I'm so glad.

John Farrell 3:11

I am too. It's gonna be fun.

Marsi Mangan 3:13

Yeah. So this time we're gonna be talking about refreshing recollection and impeachment. And as I understand it, there is sometimes a bit of confusion or about, or maybe it's conflation of these two parts of trial. So I want to set the record straight. What is the difference between refreshing recollection and impeachment?

John Farrell 3:36

Yes, I I see them as mere opposites of each other. Um the reason I talk about them together is that first of all, there are two key skills for a trial lawyer. But one is really for your friends on direct examination to help them remember something they've forgotten.

Marsi Mangan 3:54

So your witness.

John Farrell 3:55

Yes. Your friends, your witness. That's what that's what uh refreshing is for in general. It's for your friends, your witness on direct. Impeachment is for the other side's witnesses when you're cross-examining them. So it's two different audiences and they work completely differently. The conflating comes when people that would be lawyers tend to start doing their passive aggressive attitude where they on cross-examination will say, Well, let me see if I can refresh your recollection. And they're not really refreshing, they're just being nasty. That's not refreshing recollection, you're impeaching them. And you should not say I'm refreshing your recollection when you're in fact telling them they said something differently in the past. So refreshing really should be friendly for your witnesses to help them remember impeachment is taking the other side's witness down on cross-examination.

Marsi Mangan 4:53

So when you are refreshing recollection, I know that it is important to prep your witness never to say, I don't know, to a question during examination. Why should they not say I don't know? And what should they be prepped to say instead? And I'm sorry, that's a compound question.

John Farrell 5:13

Well, I think the the the danger when you're refreshing recollection is that the witness is supposed to say technically, I don't remember. So I can refresh your recollection. If a witness says, I don't know, many judges will say, well, there's nothing to refresh, they simply don't know. So uh this the problem is in real life, we never say I don't remember. That'd be weird in a conversation. When someone says, What did you do last week? We always say, I don't know. Well, of course you once knew. You just don't remember. And so our normal habit for witnesses is to do what they normally do, which is, you know, what was the license plate number? Oh, I don't know. And what they really mean is I don't remember. So when you prep a witness, it'd be great for them to say, if you don't remember, say I don't remember. It will still happen. You will ask them, what was the uh license plate number of the car? They'll say, I don't know. And you'll have to fix that by saying, Do you mean you never knew or you just don't remember right now? And once they say, Oh, I mean I just don't remember right now, then you may refresh recollection.

Marsi Mangan 6:18

So oftentimes documents are used to refresh your witness's recollection. Can you talk about how they play into that process?

John Farrell 6:29

Yeah, remember this. When you're refreshing recollection, all you're trying to do is to get your witness to start up again, to remember something they've forgotten, and then you move on with your direct. So whatever you're using to refresh a recollection does not have to be anything that's admissible at trial, or may even not be marked as an exhibit. Uh, an extreme could be if the witness's name was shoemaker and they say, What was the guy's name? And the witness says, I don't remember. You literally could say, would looking at my shoe refresh your your recollection. So the answer though in real life is that you can mark anything, use any document, regardless of whether it's admissible. An expert report, it's hardly ever admissible at trial. A police report, never admissible at trial. You can use any of those things. All you're doing is getting your witness to start talking again. That document's never coming into evidence. It's just to get his brain going again.

Marsi Mangan 7:24

Okay. So I think that when you need to refresh your witness's recollection, it's pretty natural to say something like, Would looking at the memorandum or the report help you remember? But you actually recommend avoiding that phrasing. Would looking at X help you remember? What's wrong with it?

John Farrell 7:48

The way we ask the question is one of my pet peeves, and the lack of specific direction after you ask the question is another pet peeve. So let's go to this question. Would looking at your report refresh your recollection? The truthful answer to that is I don't know. How can he say it will? How can the witness say it will when they don't know? Um and so the more technically precise question should be, might looking at your report refresh a recollection? Do you think you might be able to remember if you look at your report? Just give them like, yeah, might. That's that's the true answer. Because there's no way he's allowed under oath to say yes because he doesn't know for sure. So I think the answer is your first question should be, might looking at your report refresh your recollection? And they'll certainly say, sure, it might. That's all you have to do to start it.

Marsi Mangan 8:40

Okay, so pose it as a possibility then. So I think that it's always helpful to have language kind of tucked away in your back pocket so that when the time comes, you're not stumbling for words. So I thought that we might do a little demo about how you would refresh my recollection if I were your witness.

John Farrell 9:01

Right. And remember as we go through this, my big theme of refreshing recollection is that it's calm, it's no big deal, it's not a problem, there's no drama here.

Marsi Mangan 9:13

Oh, okay.

John Farrell 9:13

Which is the reverse of impeachment when it is a problem, and there is drama. This should be quick, simple, and calming to the witness who's who's upset because they forgot something. You need to let them know it's not a problem. So we can go through that script with that attitude in mind.

Marsi Mangan 9:29

Okay. Well, I think that you you start it.

John Farrell 9:32

So uh when was that monograph um about AI dangers first published?

Marsi Mangan 9:41

I don't know. I don't know.

John Farrell 9:43

What now when you say you don't know, do you mean you never knew or you just don't remember right now?

Marsi Mangan 9:48

Oh, I just mean that I don't remember.

unknown 9:51

Okay.

John Farrell 9:51

Might looking at your expert report refresh your recollection as to the date of that publication?

Marsi Mangan 9:57

Oh, yes, I think it would.

John Farrell 9:59

With the course permission, I will hand you a copy of your expert report entitled Expert Report of Dr. Marcy Mangan on Infringement, dated March 9, 2020. Posting counsel has a copy.

Marsi Mangan 10:12

All right. That's easy enough.

John Farrell 10:14

Well, except the problem now is what people will do is they'll just say, Why don't you look at your report and tell me if that refreshes your recollection? And that's the big problem. And the reason that's a big problem is you're not helping me. I'm the witness, I'm a little upset. You've given me this massive report or a 12-page police report, and you say, Look at it, I'll look at every single page. And remember, this should be pretty quick. And if I've forgotten something, and you give me the book to look at, I'm gonna look at the whole book. So so the step now would be after you've given the you the witness the report, now you have to be specific. Tell them exactly where to look, tell them exactly what you want them to read, and tell them why you are asking them to do that. So how you would do that would be Professor Mangan, if you would look at page 84 of your extra report, the page entitled Documents Reviewed, go to the section entitled Monographs, and go to the third line down where it says The Dangers of AI. I want you to look at that line. And as you read that line, know that my question is going to be, does that refresh your recollection as to the date of that publication? Okay?

Marsi Mangan 11:36

Okay. Yes.

John Farrell 11:38

Then you look at it. And the next question is, does it refresh your recollection as to the date of the publication?

Marsi Mangan 11:44

Yes, it does.

John Farrell 11:45

And what's the date? And then the witness says the date and you move on. And you just and that's how quickly it should be. Um it's uh I see this a lot with police officers. They forget the license plate number. They're given their eight-page report, and they're just told, look at that report and see if that refreshes your recollection. You're not telling them where to look and what recollection you need to refresh. Not the whole recollection of life. It should simply be here, they take a look at your report, go to page two, the section entitled license plate number. My question will be, does that refresh your recollection as to the license plate number? Just be very specific and very um narrow on what they have to do then. Because your witnesses a little flustered and you want them to make this easy for them. If you when they're flustered and you give them this entire report to look at, now you're making it too big a deal for them.

Marsi Mangan 12:37

And it sounds like you really need to know all of your documents really well in order to do that without hesitation or feeling flustered yourself.

John Farrell 12:48

Right. And part of that lack of drama is when you have your direct examination outlined and you have a question right to the side of that would-be answer, it should be the source of that answer. So you can merely pull the report up or the document up and do it simply and and quickly and with no drama, with the attitude of this is not a big deal, and we'll just move on after you remember. Um, other than that, you're making your witness look bad versus it's not a problem you forget something. That's all right, we all forget something, and you'll remember once you look at the pieces of paper.

Marsi Mangan 13:20

All right, so refreshing recollection is not a big deal, but impeachment is. So if you wouldn't mind refreshing my recollection, John, what exactly is the point of impeachment? What are we trying to accomplish here?

John Farrell 13:34

Yeah, impeachment is a big deal. Um to do it right, it takes time. Um and the point of impeachment is you are calling this witness out in a very significant way. Under the federal rules, what you're doing is when you show that the witness has been inconsistent between what they say on the stand and what they said before, that the jury can disregard their entire testimony. That's a significant blow. In in some states like California, prior inconsistent statement comes in for the truth, that that's the actual truth. So either way, it's a significant uh sanction for not telling the the s the truth on the stand. Um and so it is a big deal. It's drama. The jurors see that there's a fight going on, and you have to be able to deliver because if you go through all this drama and you don't deliver, you've wasted a lot of time and most of your credibility.

Marsi Mangan 14:36

So today we're going to talk about two situations that call for impeachment by prior inconsistent statement. The first one is when the witness says something that differs from their prior statement, and then the second is when they've added something that was not in their prior statement, and that is called impeachment by omission. There are six steps to impeaching with an inconsistent statement. Everybody loves a list, so we've got six steps. What is step number one, John?

John Farrell 15:09

Yeah, the first step is you want to confront the witness with the truth. That is, you want to say, no, no, what you just said isn't right. This is the truth for two reasons. One, maybe they'll say, you know, you're right, that is the truth, and we're done. But the other real reason is the jury is gonna go, oh my gosh, there's a fight. So you want to confront the witness with the truth. That's the first step.

Marsi Mangan 15:34

Okay, so we've got two quick little demos to illustrate confronting the witness with the truth. And the first one is the demo where I'm gonna take back my inconsistent statement.

John Farrell 15:47

Okay. And so what happens is, yeah, you you've uh testified either on direct or just now dearing cross that you did overhear a conversation. So my way of confronting you with this problem and confronting with the truth is I'll say, Did you just say you overheard that conversation? I did. Well, that's not right. The truth is you were too far away to hear it, right?

Marsi Mangan 16:15

Oh. Uh, wait a minute. Yes. Yeah. Sorry, you're right. I was too far away to hear to hear it.

John Farrell 16:22

Now let's stop there. The the the reason this is the first big step is that you know, 10-20% of the time the witness may say, Well, you know what, I made a mistake. And now you're done. You don't have to go through any more impeachment. But more importantly, you have to be really clear to the jury and to the judge when you first say, Did you just say A? Well, that's not right. The truth is B. Right? And now I know that there's A is not true, and B is the truth. And you're making that clear, and everyone knows there's a fight. And sometimes a witness will say, you know what, I misstep. I'm I I made a mistake there. You're right. B is the truth. And that can happen. But you got to give them that chance. That's how I look at it. Um, and again, I believe the tone should be, not that you're reveling in embarrassing this witness, but that you'd rather you didn't have to. In other words, I don't think you should say, Did you just say with that kind of tone? It should be, did you say? And I think the verb is say, not did you testify? Testifying's a good thing. Claim pulling your s your story is that's too far. That's too argumentative. Did you just say that you overheard the conversation? Yeah, I said that. Well, that's not right. The truth is you didn't overhear it. You were too far away, right? Uh, I was. And that's what'll happen in the first step. Maybe. But the first step is to confront you just said A, that's not right, the truth is B.

Marsi Mangan 17:51

Okay, so uh the the difference in tone that I'm hearing between what you just said is that you're kind of like so you sound surprised, like, hey, wait a minute, did you just say blah blah blah?

John Farrell 18:05

Yeah, I I I don't think it's puzzled, I always think I'm disappointed. That's how I put it. I'm not shaming you. I'm just disappointed. Did you just say that you overheard the conversation? Because I want the jury to understand that I'm not puzzled, I know what the truth is, but I don't have to be yelling or being mean about it. And also remember, I want this witness to agree with me so I can just stop early. If I just decide to yell at the witness and and have an attitude toward them, they're they're unlikely to agree with me. So my view is more like I'm sort of disappointed. Did you just say that you overheard their conversation? Yeah, I did. Well, that's not right. The truth is you didn't overhear it. You're too far away. That's how I'd like to phrase it like you're disappointing me.

Marsi Mangan 18:50

Okay. So let's do a demo then where I stick to my new story.

John Farrell 18:56

Right. So what we'll do now is this is the first step still, but here's where, because of how you respond, we're gonna have to go to the second step. So did did I just hear you say that you overheard the conversation? I did. Well well, that's not right. The truth is you were too far away to hear it, correct?

Marsi Mangan 19:17

No, I overheard the conversation.

John Farrell 19:20

Okay, so now we have to go to step two. Because the witnesses stick you're sticking to your guns. And the second step now is okay, I need to mention out loud to the judge and the jury what that prior statement is, the source of where I got the you were too far away statement comes from. I gotta mention the prior statement now.

Marsi Mangan 19:41

Okay. And step three?

John Farrell 19:44

Well the step three then is after I mentioned the prior statement, I'm gonna what I call cool up that prior statement. I want to make it seem more cool, more interesting, and more believable than the trial testimony. I'm gonna spend some time cooling up the statement.

Marsi Mangan 20:02

Okay. What about step four?

John Farrell 20:05

Well, now step four is after I have mentioned the prior statement, whether it's a police report, a deposition is a common one for us in civil practice. Once I mentioned it, then I've cooled up the conditions of that deposition. The next step is I'm going to have the witness identify that statement or that prior statement. For example, it would be uh turn to your tab one in your binder, that's a copy of your deposition transcript, right? Or turn to tab two, that's your police report, right, officer. I'm going to have him confirm that that's in fact my depot transcript. So they're going to confirm it.

Marsi Mangan 20:43

Okay, so identify the statement, which takes us to step number five.

John Farrell 20:48

Yeah, now the problem with step number, why are we doing step five? Remember at the very beginning, I had a hold of this fight. I overheard the conversation. No, you didn't. That was the fight. Now I spent some time mentioning the deposition. I spent a lot of time explaining what the deposition is and how cool it is and how believable it is. Then I spent some time having you turn in your binder and stuff, and it's all great, except the jury's forgotten what the fight's all about. And so has the judge. They sensed there was a fight, but it's been a while. Now what you do is you state again what the truth is. So after you do all this, like that's your depot transcript, yes it is. That's your police report, yes it is. The truth is you were too far away to hear the conversation, correct? And the reason I want to do that is because guess what? In my experience, 30 to 40% of the time, the witness now knowing you got the prior statement, goes, oops, you know what? You're right, I did. That's true. They might take it back. So I first want to give them a chance, one more chance, to take it back. And again, the tone shouldn't be sneering or you know, you're enjoying this. It's more like Come on, man. The idea we the truth is you were too far away to hear the conversation, right? And that's the hope. And if they say, you know what, you're right, or you know what, that might be right, I'm done. And but if the witness sticks to their guns and says, Well, I'm sorry, I overheard the conversation. Now you go to the final step.

Marsi Mangan 22:20

Okay, so step number six then.

John Farrell 22:23

Which is now you'll read that portion of the prior statement and follow with the did I read that correctly. In other words, you announce to the judge what you want to do ahead of time, and she has to give you permission. So you have to include the judge. Your Honor, page 14 of the depot transcript, lines three through five, and you pause for the judge to say you may go proceed. Which is kind of cool, by the way, because the judge is now part of the whole drama. But the judge has to say it's okay because you're reading into the record an out-of-court hearsay statement. So she's got to approve that. So what you do is you announce that, and then you will simply read question. Um, did you hear the conversation? Your answer. No, I was too far away to hear the conversation. Did I read that correctly? That's the last step six. That's all you got to do.

Marsi Mangan 23:21

So we actually have a little demo that puts all six of these steps into play. So people can listen and track those steps.

John Farrell 23:30

Right, and you'll see how long this takes. And the reason I say that is because, as we'll talk about later, you have to decide is it worth this much time? If if it's a big deal, it is. So here's the process and see how long it takes.

Marsi Mangan 23:46

Okay, let's begin.

John Farrell 23:48

Did you just say that you overheard the conversation?

Marsi Mangan 23:51

Yes.

John Farrell 23:52

Well the truth is you could not hear what they were saying. You were too far away, correct?

Marsi Mangan 23:59

No, I could hear what was being said.

John Farrell 24:01

Well no, this is not the first time you've given sworn testimony about this matter, right?

Marsi Mangan 24:07

Right. Yeah.

John Farrell 24:09

You gave a deposition this case? Right?

Marsi Mangan 24:12

Yes.

John Farrell 24:13

It took place in New York, right?

Marsi Mangan 24:15

Yes.

John Farrell 24:16

In March of last year? March twenty-third to be exact, right?

Marsi Mangan 24:20

That sounds about right, yes.

John Farrell 24:22

I mean you were at the deposition with your lawyer, right?

Marsi Mangan 24:25

Yes. She sat right next to you during the deposition, right? Right.

John Farrell 24:30

And you had met with your lawyer for six to eight hours to be ready to testify at the deposition, right?

Marsi Mangan 24:36

Yes.

John Farrell 24:37

You looked over documents with your lawyer to get ready to testify, right?

Marsi Mangan 24:41

Yes, I did.

John Farrell 24:42

Not at the deposition? You raised your right hand and took an oath, right?

Marsi Mangan 24:47

Yes.

John Farrell 24:47

The same oath you took here in court, right?

Marsi Mangan 24:50

Yes.

John Farrell 24:51

To tell the truth, the whole truth, and nothing but the truth, right?

Marsi Mangan 24:54

Yes, that's correct.

John Farrell 24:56

And you understood that the testimony you gave at the deposition was just as important as giving testimony in court before the jury, right?

Marsi Mangan 25:04

Yes, I did understand that.

John Farrell 25:06

And you were told that the jury may well see or see or hear your depot testimony, right?

Marsi Mangan 25:12

Yes.

Speaker 2 25:13

Oh, you also understood that if you didn't understand a question, you should say so, right?

Marsi Mangan 25:17

Yes. I understood that.

John Farrell 25:19

And you agreed that if you answered a question you understood it, right?

Marsi Mangan 25:22

Right.

John Farrell 25:23

And you understood that you had to tell the truth, right?

Marsi Mangan 25:26

Yes.

John Farrell 25:27

And you did tell the truth at your deposition, right?

Marsi Mangan 25:29

Yes, I did.

John Farrell 25:31

And by the way, at the deposition, you understood that you could change, take back, or modify in any way an answer you had already given, right?

Marsi Mangan 25:39

Yes.

John Farrell 25:40

And after the deposition was over, you were given a transcript of your testimony, right?

Marsi Mangan 25:45

Yes.

John Farrell 25:46

And you had the right to read the transcript and make changes to the testimony, right?

Marsi Mangan 25:52

Yes, that's true.

John Farrell 25:53

And then you signed the transcript under penalty of perjury, right?

Marsi Mangan 25:58

Yes.

John Farrell 25:59

Okay, now look in your witness binder under tab one. That's the transcript of your deposition, right?

Marsi Mangan 26:06

Yes, it appears to be. Yes.

John Farrell 26:08

And it appears to be because it has a cover page that reads deposition of witness, right?

Marsi Mangan 26:14

Right.

John Farrell 26:15

And it bears the date March 23, 2022, right?

Marsi Mangan 26:19

Yes, it does.

John Farrell 26:20

And turning to the last page of the transcript, that's your signature there, right?

Marsi Mangan 26:25

It is, yes.

John Farrell 26:26

Your Honor, I've given a copy of the transcript of the deposition of the witness to opposing counsel. It's in the deposition binder, and we have provided a copy of the transcript to the court as well. The truth is you could not hear what they were saying. You were too far away, correct?

Marsi Mangan 26:46

No.

John Farrell 26:50

Your Honor Page 67, lines one through three. Follow along silently while I read this out loud. Question. What could you hear of the conversation? Your answer. I could not hear what they were saying. I was too far away. Did I read that correctly?

Marsi Mangan 27:13

Yes, but that's a mistake.

John Farrell 27:16

Did I read that correctly?

Marsi Mangan 27:19

Yes.

John Farrell 27:20

That's the process. Now, I want to tell you that takes a while. Um what that means is this had better be worth it. If if it's a small difference, it's not worth the time. Um you'll notice too that that cooling up part of all the conditions of the deposition, you can shorten that up and make it shorter under pressure, time, pressure. And you certainly can skip all of it if you have to go back to the deposition transcript a second time. But that's the long version of impeachment. And the length of your cooling up depends on how important this change is. If it's if it's a major change in the testimony, it's worth spending a lot of time on cooling it up. All those ground rules you gave now come into play. Um, and so that is the entire process of you first confront them with the truth, hope they take it back. They didn't take it back. Okay. Let's tell them what the prior statement is. Okay, let's let's have the witness, you know, let's tell them about how cool that prior statement was, that depot transcript and all the conditions of it. Now let's have the witness identify and confirm that that is the depot transcript. Okay, now try the truth again. They still stick with it, okay? Follow along silently while I read this out loud. And did I read it correctly? Is the end of your impeachment. You do not say things like this. So which is it? What's the truth here? Don't know we're having a fight there. All I'm doing is testing my English reading skills. That's all I'm doing. And that's the effective part of impeachment.

Marsi Mangan 29:02

And it's kind of your mic drop moment, too.

John Farrell 29:05

It is. And the danger, by the way, if you have to impeach, oftentimes it's because you're doing a cross and you expected them to say B, but they said A. And so you go through all this impeachment and it feels so good, like you said, a mic drop. I have seen people stop and have no more questions for cross-examination when all they were doing is correcting one of their many questions they still had to do. So just be aware that maybe you have a lot more of your cross to go. That was just one question that you had to correct. And so I have seen in real life somebody on the fourth question of their cross, they have to impeach, and it feels so good they have no more questions except for the 25 pages of which they still had in their outline.

Marsi Mangan 29:47

Oh no.

John Farrell 29:48

So just be aware that that was just that was the I was just trying to get you back on course by impeaching you to get back to B. And now we keep moving on.

Marsi Mangan 29:57

Keep moving on. Don't forget to keep moving on.

John Farrell 30:00

Yeah, exactly. Because it feels really good.

Marsi Mangan 30:02

Yeah, I bet it does.

John Farrell 30:04

And it because it feels so good, I think for us as lawyers, um, you have to remember when you're cross-examining your adrenaline level is very high. What you think is not aggressive is really aggressive. And I think your tone should be always one of disappointment. You're completely under control, and you just want them to take it back. You will embarrass them if you have to, but you'd rather not. That should be your tone. Because when I do embarrass you, it's not like I'm reveling in it. You just you made me. And I think jurors can hear that better than the lawyer just acting so um puffy. Now, I will say this too: impeachment does take time. So lawyers have tried to figure out a way to impeach without doing it correctly. Um I had a federal judge come up to me uh at an event and she explained to me, federal judge, that she doesn't understand where people learned how to impeach because what she was seeing was things like this. The witness on the stand says A. Uh says that the car was red. And she said, what the lawyers do, they go, Well, that's not what you said or your deposition, and they move on. You you can't do that. If you're going to impeach, you have to do this. If if you think it's not worth the time, then skip it. That's what I'm trying to say. But if you're going to impeach, judges expect this process, and they have to be included in it, and they have to give their approval. And you should want that too. Remember, the jurors don't like you. They don't like any lawyers. But this judge, they think she's the bomb. She's this is the parent we've all wanted, this judge, the mom or dad. And so if the judge is on your side, that's a big deal. And can you imagine she's always being neutral? And in when you're impeaching, after you say, you know, that's your deposition transcript, yes it is, Your Honor, uh counsel has a copy of the transcript, and we're handing a copy up to the judge. And the jurors see that? And the jurors see the judge getting involved, and they see the judge turning to that page 63. And when you say, Your honor, page 63, lines one through three, and she says, you may proceed, they hear the judge is approving what you're doing too. And I want you to know there are times judges don't get mad hardly ever, but they really don't like yellow lying in their courtroom. They can't stand it. And I've seen a judge when the lawyer said, You're on a page 63, lines one through three. Clearly, this witness had changed their testimony dramatically. And the other side says, objection, improper impeachment. The judge said this that is so overruled. I mean, that's not a bad thing to have happen for you. And that's the other reason you have to announce to the judge what you're going to do before you do it. The other side has a right to object. It'll get overruled, but they have a right to object. And I want them to object, so it gets overruled. So that's the key about impeachment. When they change their testimony, this is the process. You can shorten it up some, but it's going to take a while.

Marsi Mangan 33:16

All right, duly noted. Okay, so the second type of impeachment that I mentioned before is um impeachment by omission, when the witness has added a new key fact that they didn't mention in their prior statement. What do we need to know about impeaching a witness? Is it for omission or by omission? I don't know what the Yeah.

John Farrell 33:42

I I and this is a little this is trickier, number one, and number two, it's more common. My experience, it's rare that a witness changes from red to blue, yes to no, uh, fast to slow. What they what they tend to do is add something. They're line by adding. Uh the challenge though is what how can I effectively impeach somebody when they have added something? Now, to be honest with you, with depositions, it's going to be very difficult to impeach by omission with a depot transcript. First of all, it maybe you just didn't ask them that question. So they have the freedom to add something. But even if, for example, you had in your depot, list all the reasons why you fired them and they listed them all and you said anything else, they said nothing else. That's the whole list. Even if you have that on page 14 of your transcript, you hand a 240-page transcript up to that witness, they're going to get to look through it all to see if if their answer is somewhere in there. So I think usually impeachment by omission is usually a statement the witness is given, a police report that was written, some smaller document that that's manageable. And what you have to do is the only difference now is your cool-up part has to be if this fact were true that they added, you would have put it in this prior document. If this fact were true, you would have said that. And that is the challenge. So what happens is let's take an example where a police officer um suddenly adds uh uh a fact of uh oh, the defendant uh confessed to him on the drive back. Yeah, you know what, he told me he was just trying to kidnap the kid. And that's nowhere near this report. That's a big thing. Now, what you have to do for the cool-up part is the confronting is did you just say that the defendant confessed to you? Yeah. Well, that's not right. The truth is he didn't confess to you, did he? Yes, he did. Now there's the fight, right? That's the fight. Now I'm gonna mention something. You wrote a police report in this case. Yes, I did. That's that's the police report. And now what you have to do is cool up that police report with the idea that important stuff gets put into that report. That's all you have to have, not all the facts, the important facts. Because you wouldn't bother doing this unless the added fact was important, right? So you write reports, and this is where you make the witness look great. Yeah. And you're experienced in writing reports, you like you write great reports. If you start saying no, you're already winning, by the way. You write good reports, you write thorough reports, you put down the important facts. That's all you gotta say. If you say you put down all the facts, you'll say, I can't put down all the facts, I'll be writing a report all night. You put down the important facts, right? Yes. And you would agree that a confession is an important fact, right? Yes. Now that's the cool-up part. Well, what do I do though? And then I sort of say, now this is a copy of your police report? Yep. And you can see that because that's your signature on the first page? Yes. Okay. And Your Honor defense count, I mean, the prosecutor has a copy of the police report. Your Honor, I'm going to give you a copy of the police report. So everything's going the same, but you can't how long silently while I read out loud because there's nothing to read. So what do I do? Well, this is where you give the report to that witness and you say, I want you to go through the report and stop when you get to the word confession. Stop when you get to the word scar, whatever the added word is. And they will go through the whole report. I've seen this, hoping it magically will appear, and then they'll look up after a painful 30 or 40 seconds, and they'll go, it's not in there. And then you say, That's right, it's not in there, correct? And that's your impeachment. Um, and the short answer is that really will not work with depots, but it will work with short reports, statements the witnesses signed, things like that. If a witness wrote out a statement or signed a statement, adopted as their own, that um is when it works. And you have to be able to do that because I do think people add things much more than change.

Marsi Mangan 38:23

It's interesting. Well, I think that the language that you just provided in the demo you did is also very helpful, too.

John Farrell 38:31

Well, I think I think the the what I've always liked is um I don't like it when the this is where you're trying to, I mean, this witness has lied significantly. You wouldn't bother doing this if it wasn't a really big lie, right? If it was a small lie, who cares? But you're only doing this because this is a big deal. Um and now I think you have to make the witness feel uncomfortable without you being a jerk about it. You just I've seen lawyers say, and there's no mention of a confession in the report. Well, that's you. I mean, I guess. I want to make this more awkward for them. I want to hand that report to them and say, I want you to go through the report and stop when you get to the word confession. Now, there are two ways they're going to react to that. One is they'll say it's not in there without ever looking, which means they knew it wasn't in there. But most of them actually will page through it, hoping that the magic ink will magically appear. And then they'll look up and go, it's not in there. And that's your impeachment by omission. And I think jurors find that telling, by the way. And remember, if you impeach correctly, whether it's because they change their story or by omission. I, you know, I practice law in California forever, and I used to love the fact under state law, that prior statement comes in for the truth of the matter. And I was annoyed that in federal law in most states, it just comes in to affect the credibility of the witness. I thought, well, that's lame. Well, there are two things about that. One, the jurors don't know the evidence code, and they're thinking that prior statement's the truth, by the way. But more importantly, think of the jury instruction. If you find a witness has lied to you, you may disregard their entire testimony. That's a pretty big sanction. That's not bad. And you'll be saying that in closing. First, the second the second instruction the jury judge reads to you is if someone's lied to you, you can ignore everything they had to say. You know? And guess what? You know he lied to you. Couldn't it be cool to wipe out their entire witness in one fell swoop with that impeachment? But again, I still think your tone impeachment should always be, I'm reluctant to do this, but I'm gonna have to. Not like I'm enjoying this. Because then they you just look like a jerk. And you know, when you're calling somebody out, don't act like the jerk. They're it'll be more obvious they're being called out.

Marsi Mangan 40:48

Well, I know that you're not supposed to act like a jerk, but it you do make impeachment sound like it's kind of fun.

John Farrell 40:54

Do you do you enjoy doing impeachment? Oh, it is fun. It is fun, and I think what it is is the reason it's so important that if if you decide to impeach and you don't do it correctly or successfully, the witness has just been told they can lie all the time on the stand. You've lost control. If you do it really well the first time, and the next time they go off message, they say something else different, and they go, Well, no, that's not right. It was fact C. And they go, I don't think so. Let's go to your depot transcript. They'll go, okay, fine, fine, it was C, because they don't want to go through that again. So I think it's an important tool. And one thing jurors do like about it, it's a fight. And they like, they're bored. They've been bored this whole trial, and suddenly they go, Well, that's not right. The truth is people going fight. Oh my god, fight. Did you hear wake up, fight, we gotta fight. They like fights. And so I think it it's something they find memorable. But then there are a couple of thoughts I have after we've gone through the mechanics about impeachment in general.

Marsi Mangan 41:56

Well, we are almost to our sign-off questions. So before we move on to that, is there anything else that you want to add that we did not cover?

John Farrell 42:03

Yeah, I think the number one thing is ask yourself whether it is worth impeaching. Just because you can, it may not be worth it. When I was doing patent trials, we had 12-hour time limits per side, and you were given like 22 minutes for cross-examination. A lot of times you had to forego impeachment because you didn't have time to impeach. But even without a time limit, unless this is a home dinger of an inconsistent statement, I don't know if it's worth impeaching. Lawyers are so technical. I've seen a witness say, uh I think in the prior statement, he said it was very dark out. Uh, and on the standing goes, it was hard to see. And they go through all this impeachment to say it was really dark out. And the jurors going, that's not that big a difference. What are you doing to me? So be aware whether it's the drama is worth it. That's the first thing. The second thing I would also say is impeachment has to be literal. The prior statement has to be literally the opposite of what they've said on the stand, so it can't be by translation. Example, in the prior statement, they said uh the red car was speeding. On the stand, they say uh the Honda, which was the red car, the Honda was not speeding. Now they didn't say Honda in the prior statement. So you're gonna have to translate that to match up with your prior statement. So they say the Honda was not speeding. Did you say the Honda was not speeding? Yeah. Now the Honda was the red car, right? Yes. Well, the truth is the red car was speeding. Now you've converted it to word for word. And judges find it very frustrating. You can't impeach by implication. It's a literal process. So just be aware of that as well.

Marsi Mangan 43:48

Hey John, thanks so much for coming back. I think this has been a really wonderful conversation, and you've shared a ton of great information and language that I know will be helpful to listeners. And so on that point, you have written a free article for Nita all about refreshing recollection and impeachment. And it goes through all of these steps that we have just discussed.

John Farrell 44:10

Yeah, and the article does have these scripts, so you can look through them and really get them in your own head.

Marsi Mangan 44:15

Yes. So sign-off questions. You have mentioned California, but now you're in New York City. So you've recently relocated, which I think is a very exciting midlife move. How do you like living in New York?

John Farrell 44:28

I used to say it was a midlife crisis. Now I think it's a near-death crisis, but you know, it's just an issue. But uh I do like it. Um uh I I I think it's important to always have change. Uh, and when you get too comfortable, um, I love California. I love the weather there. Um, I love living living here. Um I have good friends on the East Coast, uh, and for years they talked about their mild winters. Um that's a lie. This winter was the most miserable, cold, and snowy winter they've had in 20 years, so I take credit for that. So, but now that it's spring and it's lovely outside, I you know, I'm enjoying it. I like I love New York City. I just love it.

Marsi Mangan 45:08

What are some of your favorite things to see and do there?

John Farrell 45:11

Well, I think in in not the order, um I mean I love all the museums. I really love all the bookstores. I'm a I'm a it's my own addictionist books, and you have McNally, Jackson, Strand, Three Corners, Argosy, you have all the amazing bookstores everywhere, independent bookstores, so it's it's the museums, it's the bookstores, um, it's Broadway. I go to a lot of Broadway plays. I tend to go to the really depressing ones. Um But I go to a lot of Broadway plays, and then I love Central Park. Um when I first got here, I uh I got off my buck list, I played softball in Central Park, and you're sitting there on a baseball field, and it could be anywhere, it could be in Kansas or Massachusetts, and you're playing regular baseball field and you look up on there are these massive skyscrapers all around you, and it was just very cool. So um that's what I I love all of that stuff. And you can walk everywhere, and you can walk everywhere.

Marsi Mangan 46:09

This time of year is so beautiful to be in New York too. Um Yes.

John Farrell 46:13

I will be complaining in August, though. I'll be complaining when it gets to be August. But for right now, just walking around outside. And what I do like about New York, which if you don't live here, you may find it hard. It's amazing how friendly and kind people are walking around New York. If you pause for just a second in New York City, someone will stop and say, Do you need some help on where to go? But more importantly, when it gets nice like this and everyone's outside, everyone's just happy. Everyone is just so thrilled it's not miserable anymore that they're actually very happy.

Marsi Mangan 46:45

The mood is contagious.

John Farrell 46:47

It is contagious. They still people, tourists have got to walk faster, that drives me nuts, but other than that, it's a wonderful place.

Marsi Mangan 46:54

Yeah, I I have to say I'm jealous.

John Farrell 46:57

Um It's fun. It's fun. It's a big change, but I like it.

Marsi Mangan 47:00

So what have you been watching on TV lately?

John Farrell 47:04

Well, I mean, you know, my favorite show um almost of all time, shrinking. You know, of course it's over now, but I guess it'll have another season. I'm starting to watch Beef on Netflix. Um it's in its second season. It's uh it's it's sort of depressing, but sort of funny too. It's about married couples having challenges, um, which is why it's called Beef. Um they're having beefs. But uh that's what I've been watching a lot on TV. Although given that I walk around New York too much, um I'm not watching as much TV as I used to, which is probably a good thing.

Marsi Mangan 47:36

Yes, it is. Well, thank you so much for spending time with us again. This has been wonderful, and you are the master, as always.

John Farrell 47:44

Well, not sure about that, but I do like talking with you and it's a lot of fun, and I love Nita.

Marsi Mangan 47:49

All right. Well, we love you too. Thanks, John.

John Farrell 47:52

Thank you.

Marsi Mangan 47:54

As John and I just mentioned, John wrote a free article about the content of this episode, and it is yours to download from the show notes. There, you will also find a link to his previous episode on properly marking documents as exhibits during depositions. John wrote a series of three articles about depositions for Nita, and all three are linked in last year's show notes. They are free, and I think that you will find them quite nutritious, so please check everything out. As for next month, I am already looking ahead to when Justice Sal Mangia of the Washington State Supreme Court joins me to share 10 things he says you should remember about being a trial lawyer. Justice Mungia is a program co-director of our Seattle Trial Skills Program. And after the 10 tips, he and I have a lot to say about the sheer beauty of Seattle in August. I hope you will be back next month to hear all about it. Until then, we at Nita wish you the very best of luck in your depositions, motions, and trials. Happy lawyering. May the Record Reflect is a Nita Studio 71 production. NITA, we are advocacy enhanced, mentorship reimagined. Welcome to the community.