Where Experience Counts And Results Matter


Charles H Barnett III

By – Charles H. Barnett, III and Sara E. Barnett

A. Qualifications – Competency

There are not too many surprises under this topic. Both the state and federal rules provide that witnesses are competent unless there is a specific reason why they are not. Federal Rules of Evidence (“FRE”) 601 says: “Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.” The Advisory Comment under the Tennessee rule is helpful in that it states that virtually all witnesses may be permitted to testify including children, mentally incompetent persons, and convicted felons.

Sara E Barnett

Rule 602 lays down the big qualification for witnesses and that is that they have to have personal knowledge of whatever they are testifying about. Rule 603 states that a witness must give an oath or an affirmation to testify, which relates to Rule 601’s requirement that a person be competent. In other words, a witness needs to understand the nature of the oath or affirmation.

The state and federal rules also provide, not surprisingly, that neither the trial judge nor the jurors are competent to testify in a matter in which they so serve. Rules 605 and 606. The Rules of Professional Conduct make this a trio in that the lawyers participating in the trial are also not allowed to be witnesses, with the exception of procedural matters. Rule 3.7 of the Tennessee Rules of Profession Conduct states:

(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as an advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness, unless precluded from doing so by RPC 1.7 or RPC 1.9.

The matter of a lawyer testifying is really an extremely important topic. Under the right circumstances, a lawyer testifying or being exposed as testifying can have tremendous consequences. If you don’t get anything else out of this seminar, learning how powerful a lawyer’s testimony is worth the price of admission. That sounds absurd since we all know that lawyers do not actually get sworn in and testify at trial. Nor do jurors, but sometimes their testimony gets into the case. Let me give you some examples. In a products liability case, a woman died when her house mysteriously burned down in the middle of the night. The plaintiff’s theory was that the fire was caused by an improperly manufactured or remanufactured coffee maker. The defense was that the woman’s husband was a handy man and tinkerer who had built, repaired, or rebuilt everything in the house and who had modified the coffee maker. The case was close with skilled lawyers and learned experts on both sides. The case had been pending for many years, and many depositions had been taken. The plaintiff’s lawyer conducted himself, during the trial, with great civility and honesty. In the plaintiff’s rebuttal to the defendant’s closing argument, the plaintiff’s lawyer said “You know, I have worked on this case for many years. I have spent hundreds of hours with Mr. Handyman, and I have never, ever, once thought or suspected that he repaired the coffee maker.” The jury went out and gave a multi-million dollar verdict for the plaintiff. So, what should the defense have done?

The following is an example of a lawyer testifying and the opponent countering it with their own testimony to devastating effect. The case involved a white-collar prosecution. A nice family man who sold food and supplies to school cafeterias was accused of giving “kickbacks” to the buyers in the form of expensive gifts and etc. The defense lawyer was a skilled criminal law specialist who tried many cases. Nevertheless, in closing argument, the defense lawyer got carried away and stated that he thought that the defendant was innocent. The prosecutor countered in his argument to the jury that “You heard Mr. Defense Lawyer say that he personally thought that the Defendant was innocent. You know what the defense lawyer does for a living? He represents murderers, rapists, and child molesters. He says that in every case.” The jury came back with a guilty verdict.

Here is an example of the jury testifying. This was a personal injury case in which the plaintiff was in a rear end automobile collision. The plaintiff claimed back injuries. The defense’s theory was that the plaintiff had little or no injuries. There was medical proof on both sides. The case was tried in a small county where many people on the jury panel knew the plaintiff and were voir dired as to whether they had any knowledge of the case including knowledge of the plaintiff’s injuries. Many people knew the plaintiff but no one claimed knowledge of the plaintiff’s injuries. In closing argument, the defense lawyer acknowledged that there was medical proof on both sides that was completely conflicting. The defense lawyer suggested that in such a circumstance the jury should believe the other members of the jury panel who had said that they had no knowledge of the plaintiff being injured. The jury awarded a verdict for the plaintiff but it was less than the plaintiff’s medical bills.

In the right circumstances the testimony or implied testimony of the lawyer can be extremely effective, and thus the practitioner must be vigilant to counter-act this type of testimony. The best way is by exposing it and turning it around as one of the above examples but, if that cannot be done as in the first example, the remedy has to be a jury out hearing and motion for new trial or at the very least a cautionary instruction to the jury.

There are other instances in which witnesses can be found “incompetent” to testify. One example is the “Dead Man’s Statute” which can be found at T.C.A. § 24-1-203. The Dead Man’s statute says:

In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party. If a corporation is a party, this disqualification shall extend to its officers of every grade and its directors.

In certain circumstances, a party would be disqualified or incompetent from testifying about a conversation with a deceased in a suit brought to render a judgment against the estate. There are several very specific requirements of this statute and it generally applies in very limited circumstances. I would suggest that if you have a case where either your client or the opposing party is claiming some sort of amount of money owed by the estate, then you might want to refresh your memory of your law school days of understanding the Dead Man’s Statute. A good article about the Dead Man’s Statute can be found online from the Tennessee Bar Journal Website: : “Autopsy reveal Dead Man’s Statute Still Obtuse After All These Years” by T. Pinkley, http://www.tba.org/journal/cold-case

Another circumstance where a witness maybe found incompetent to testify might be in a divorce case in which the testimony of a child may come into play. Section 36-6-106(a)(7) of the Tennessee Code Annotated requires the trial court to consider “the reasonable preference of the child, if twelve (12) years of age or older.” The statute goes on to note that “the court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children.” When faced with the proposition of whether or not to allow a younger child to testify, the court must determine whether that child is competent to testify. As stated above, under Tennessee Rule of Evidence 601, all witnesses are presumed competent unless otherwise provided by the Rules of Evidence or statute. No one is automatically barred from testifying simply because of age or mental status. So long as a witness is of sufficient capacity to understand the obligation of an oath or affirmation, and some rule or statute does not provide otherwise, the witness is competent. Tennessee courts have held that age alone is an insufficient basis to conclude a child is not competent to testify as a witness at trial. Strickland v. Strickland, 2012 Tenn. App. LEXIS 899 (Tenn. Ct. App. Dec. 21, 2012). A court would use a similar analysis with respect to a mentally incompetent witness.

B. Deposition/Examination Procedure

1. Rule of Sequestration

Shortly after law school, I found myself in a courtroom facing a judge and an opposing attorney. The judge looked at me sternly from the bench with his black robe on, and asked if I was calling for “The Rule.” Since I had just graduated from law school, I knew a lot of rules but did not know which rule to which the judge was referring. I asked him which rule? The judge replied, “The rule.” After some embarrassing moments, I was finally able to understand that “The Rule” was the rule of sequestration.

A question arises as to whether the rule of sequestration applies to depositions. Neither the federal nor state rules of evidence themselves specifically address this issue. The answer is, however, found in the rules. Rule 30(c) of the Federal Rules of Civil Procedure states: “The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except for Rules 103 and 615.” Rule 615 is the rule of sequestration, so the Federal Rules of Civil Procedure make the rule of sequestration not applicable to depositions.

The Tennessee Rules of Civil Procedure do not contain a similar provision to the federal rules, but TRE 615’s advisory comment states that the rule of sequestration only applies to trial, which brings the Tennessee law in conformity with federal:

Under Rule 101, the Evidence Rules apply to rulings in “trial courts.” Strictly speaking, Rule 615 is intended to apply only to sequestration of witnesses at trial. A lawyer who wishes to exclude nonparties from oral depositions must resort to T.R.Civ.P. 26.03(5), allowing on motion a protective order” that discovery be conducted with no one present except persons designated by the court.

Despite the above rules, one of the common myths among lawyers is that the rule of sequestration applies to depositions. It does not. However, this belief is so engrained that you are likely to create a large squabble if you have a witness that is not a party sit in another witnesses’ deposition. You will note, however, that no one seems to pay attention to the fact that witnesses frequently read other witnesses depositions before they testify. One practical aspect of this is that you should recognize that you are not violating any rule if you talk to a witness about deposition testimony of a prior witness. If you are taking depositions and you think that it is important that each witnesses testimony be isolated from each other – in other words that the rule of sequestration apply – you need to file a motion under FRCP 26(c)(5) or TRCP 26.03(5).

2. Objections During Depositions

Depositions play an increasingly important role in the litigation process since most civil cases end up settled as opposed to tried. One of the more troubling aspects of depositions is the making and meeting of objections during depositions. The Federal and Tennessee Rules of Civil Procedure have simplified this process a great deal. Rule 30.03 of the Tennessee Rules of Civil Procedure and Rule 30(c) of the Federal Rules of Evidence both prohibit speaking objections. “Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner.” TRCP 30.03 (FRCP 30(c) is almost identical). The nice thing about Tennessee is that the Rules usually include the comments. The advisory comment adds a lot of punch to this rule because it states: “The added language in the second paragraph of Rule 30.03 admonishes lawyers not to make ‘speaking objections’, which unethically put lawyers’ words in deponents’ mouths.” Wow, that’s pretty strong. I suggest to you that using that language in the comment to stop an opponent from making speaking objections in a deposition is quite effective.

Some lawyers seem to believe that the rule is that you can only say “object to the form of the question” when making an objection within a deposition. The rule does not limit the objections to just those words. The rule says that the objection should be concise and non-suggestive. This writer believes that it is perfectly fine and proper to make an objection such as “Object to the form of the question, compound.” Or, “object to the form of the question, argumentative.” The advantage of making objections in this form is that there is no prohibition of educating your witness as to what the rules are and what the common problems with questions are such as: what is a compound question and how to deal with it.

Nevertheless, many skilled lawyers as their modus operandi simply say “object to the form of the question” every time that they hear a question that they have any concern about or even some that they do not. Lawyers who employ this tactic object to the form frequently, sometimes almost every question, which may well be an effective tactic because it has a tendency to lull you into paying no attention to the objection. Then, out of 50 or 100 objections, there may be one that is valid, and that objection just might cause a critical piece of information to be thrown out. See, e.g., DeGalliford v. United Cabinet Co., LLC, 2014 Tenn. LEXIS 194 (Tenn. Mar. 17, 2014) (deposition testimony excluded from evidence for leading). This begs the question of how to deal with an “over objector”. This is a tough tactic to deal with because the lawyer is not making speaking objections and is not disrupting the deposition. They usually state their objection in a quiet, non-obtrusive way, but do it time and time again. One frequently feels like asking what was wrong with that question, but that usually does not elicit a useful answer and frequently leads to arguments. Here are some suggestions:

1. Be much more careful if the deposition is an evidentiary deposition or is likely to go into evidence. If the witness is a party or is inevitably going to testify at trial, then the chances of the objection having any meaning are greatly diminished.

2. One solution is to rephrase the question numerous times every time you get the objection and see who gives up first. You could try a version of this where you just rephrase the ones that you think there might be a problem with.

3. Another possibility is that you could stop the deposition and seek help from the court in an extreme circumstance. You could argue by objecting to every question the other attorney is acting unethically and is circumventing the purpose of the rule by not letting you know which questions are objectionable so that you can rephrase them.

There are some other fundamental mistakes that lawyers make while taking depositions. When a lawyer takes a deposition, the type of question he or she asks is generally either in an information gathering mode or a cross-examination mode. One deposition might be entirely inquisitory and another deposition might entirely be cross-examination. Most depositions switch back and forth. It is important that the lawyer recognize whether the purpose of the question is to discover information or to force the witness to acknowledge a desirable fact. The big mistake is that lawyers who are in the inquisitive mode frequently lead. If you are seeking information, let the witness talk and see what they have to say. They may say something that will astound and please you. Here is an example. The witness was at the scene of an explosion and claimed to have a hearing problem and a touch of post-traumatic stress disorder. The witness testified that the PTSD manifested itself in the fact that he had recurrent dreams that included reliving the circumstances of the explosion. One of the multiple defense lawyers asked this astute question: “When you have these dreams, do you wake up all sweaty and shaky?” The witness’s answer was, of course, “yes.”

Many lawyers throw in the phrase “do you recall” with some frequency in their questioning apparently because they think it sounds lawyerly. This is like telling the witness, “Before you answer this question, keep in mind that you can always say ‘I don’t recall or remember’ if the answer presents some sort of difficulty for you or your case.” This question suggests that it would be reasonable for the witness not to “recall” the answer to the question. Most of the time you want the witness to think that it would not be reasonable for them to not remember something. The only legitimate reason you should use the “do you recall” phrase is to suggest that the witness should not recall it.

In terms of deposition preparation, there are videos and checklists that are useful in preparing a witness for depositions, but they do not necessarily cover everything. One area to warn your witness about is the “isn’t it fair to say” question. This seems to be the most frequent and best shoe-horn to put words into the mouth of a witness. I frequently use it with a great deal of success. Other phrases are “what I am hearing you say is” or “let me see if I got this straight” or “let me see if I understand.” Your witness should be told that if they hear any of these phrases, it is like the doctor asking you to say “Aah” so that they can put a tongue depressor in your mouth, the lawyer is using “isn’t it fair to say” to put words into your mouth. The witness should be instructed to stick with their own words by saying something like, “I don’t know about that, here is what I am saying.”

Another interesting communication by lawyers in depositions and trials is the words “I understand.” What does the lawyer mean by the words “I understand.”? If you translate these words from lawyer speak to ordinary language, the translation is “Shut up, I don’t want to hear any more of that. You are hurting my case.” The witness should be told that the words “I understand” means you are on the right track.

Witnesses should also be told that whatever instructions you give them that they should not take them to extreme. On one of my checklists, there was the instruction, “always pause before giving your answer.” I told this to a witness, who happened to be a person who always took things to the extreme. The deposition went sort of like this:

Q: What is your Name?
A: (2 minute pause). Bill Jones.
Q: What is your occupation?
A: (3 minute pause). Store Manager.
Q: Where do you live?
A: (4 minute pause). 12 Oak Street.

At that point opposing counsel was becoming agitated, and I stopped the deposition and told my client “forget what I told you, just answer the questions!”

The desire to sound “lawyerly” also causes other problems in depositions. Believe it or not the words “subsequent” and “prior” are not universally understood by every witness. I have seen depositions go off track because of use of these words. I do not know why “before” and “after” are not as good as “prior” and “subsequent”. Many lawyers are fond of using the word “client.” The problem with the word “client” is that it reminds a juror, at least, of the fact that you are hired to do the talking for someone. Wouldn’t it be better to call your client by their name than remind the jurors that you are a hired gun?

Both the state and federal rules have solved the problem of attorneys instructing their witnesses not to answer a question. The basic rule is that a lawyer cannot tell his client not to answer questions except for three limited circumstances. First, you can instruct a witness not to answer if the answer is privileged. Second, if the answer is the subject of a prior court order limiting the scope of discovery, you can instruct them not to answer. Third, you can instruct the witness not to answer if your next step is to seek protection of the court. Rule 30.03 of the Tennessee Rules of Civil Procedure states: “A deponent may be instructed not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion to terminate or limit examination.”

You may have been or will be in a deposition in which one attorney or another threatens to stop the deposition to “call the judge.” If you are like me, you may have originally been mystified as to what rule authorizes telephone calls to the trial judge in the middle of depositions. I have made and received this threat on numerous occasions and on a few occasions have been a party to calls to the judge. On several occasions, the judge actually ruled on the point in question and, in at least one case, the judge acted as if we were crazy in calling him and said if we had a problem we needed to file a motion and he would take it up then. The procedure of terminating a deposition and seeking protection of the court is authorized under Rule 30.04 of the Tennessee Rules of Civil Procedure and Rule 30(d) of the Federal Rules of Civil Procedure. This is sometimes referred to as the “nuclear option.” If a phone call to the judge does not work, a written motion will have to be filed, and the result is likely to be sanctions including monetary sanctions against one party or the other. If you are in a deposition and the opposing attorney is completely out of line in the questions that they ask, by this I mean questions that are intended to embarrass or harass either the party or the counsel and have little or nothing to with the case, the proper procedure is to terminate the deposition as opposed to telling a witness not to answer.

Another frequent area of concern in depositions is the question of whether an attorney can confer with their client during a breaks in lengthy depositions. In my judgments the Rule 30.03 Advisory Comment makes it clear that it is not proper to coach a witness during a break. The comment states:

Some courts have reminded the bar that a deposition is a formal judicial proceeding – albeit absent a presiding judge – and consequently consultations between counsel and deponent are not be tolerated any more than it would be in the courtroom. See Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).

I wish I could tell you that this comment completely settles the hash on this issue, but in researching for this seminar, I came across a well-reasoned Tennessee Bar Journal article in which the author questions that conclusion. “How to Act During a Deposition”, Daniel Headrick, Tennessee Bar Journal, http://www.tba.org/journal/how-to-act-during-a-deposition. Mr. Headrick states:

Another as yet untested element of Rule 30.03 is the Advisory Commission’s comment that “consultations between counsel and deponent during questioning are not to be tolerated any more than it would be in the courtroom.”[42] I read this narrowly to preclude conferences with your witness during live questioning. In other words, you cannot confer right there during the deposition. The comment does not address conferences during breaks.

It is not clear from the balance of the article as to what the author thinks is proper in so far as communications during a break are concerned. I know I have encountered occasions in which I felt like my opponent was being unfair or tricky with my client, and I felt like I should be able to say something to alert them to the nature of trick that was being perpetrated on them. (And to be candid, I have, on occasion, cautioned a witness to watch out for some unfair tactic. It was either that or a speaking objection.)

On the topic of depositions, another problem that arises is the so-called “late filed exhibit.” This procedure is not specifically authorized in the Rules of Civil Procedure or Rules of Evidence. Agreeing to a late-filed exhibit is normally harmless enough, but it causes a problem if your witness has agreed to a late-filed exhibit and later learns that they do not have the document. It also becomes a problem with the opposing attorney starts using this late-filed exhibit business so that you have a gigantic list of late filed documents. In my judgment, if the opposing attorney asks your client to file a late-filed exhibit of more than one or two documents that your client definitely has, you should object to the production and tell the opposing attorney they need to file a Request for Production and you will respond within the Rules of Civil Procedure requirements.

C. Impeachment

1. Prior Inconsistent Statements/Contradictions

Often during trial, one of the most useful and powerful techniques is to impeach a witness. This is usually the “gotcha” moment in the trial. Once a witness is impeached, the rest of the testimony of the witness is now suspicious of being less than truthful.

Pursuant to Rule 607 of both the state and federal Rules of Evidence, both parties can impeach a witness, and even an attorney may impeach his own witness during direct examination or cross-examination. There are several ways to impeach a witness that are provided for under the Rules of Evidence 607, 608, 609, and 613. The most common type of impeachment of a witness is “prior inconsistent statement” which is found at Rule 613 of both the federal and Tennessee Rules of Evidence. Under Rule 613, a witness may be impeached by showing that the witness made conflicting statements about a material issue in the case or a prior inconsistent statement.

A practitioner should note that the general and historical rule is that a prior inconsistent statement is admissible to impeach, but is not substantive evidence unless a hearsay exception applies. See King v. State, 215 S.W.2d 813 (1948). This rule, however, is riddled with exceptions. The Federal Rules of Evidence provides that prior inconsistent statements given under oath, Fed. R. Evid. 801(d)(10)(A), are not hearsay. This allows the prior inconsistent statements to be admitted as substantive evidence. The Tennessee rules contain what appears to be a special rule for prosecutors that provides a hearsay exception for witnesses that renege on an identification. TRE Rule 803(1.1). In 2011, the Tennessee Rules of Evidence were amended to include a new exception to the list of hearsay exceptions found in Rule 803 for prior inconsistent statements. This rule states that certain prior inconsistent statements can be admitted for proof. The rule provides:

Rule 803 (26) Prior Inconsistent Statements of a Testifying Witness.

A statement otherwise admissible under Rule 613(b) if all of the following conditions are satisfied:

(A) The declarant must testify at the trial or hearing and be subject to cross-examination concerning the statement.
(B) The statement must be an audio or video recorded statement, a written statement signed by the witness, or a statement given under oath.
(C) The judge must conduct a hearing outside the presence of the jury to determine by a preponderance of the evidence that the prior statement was made under circumstances indicating trustworthiness.

This rule represents a change to Tennessee law. Previously, prior inconsistent statements were admissible to impeach the testifying witness or the hearsay declarant. See State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982) (stating that prior inconsistent statement may be considered only on the issue of credibility and not as substantive evidence). Under prior law, extrinsic evidence of a prior inconsistent statement is inadmissible if the witness unequivocally admits to having made the prior statement. See State v. Grady, 619 S.W.2d 141, 143 (Tenn. Crim. App. 1980) (noting general rule that extrinsic evidence of prior inconsistent statement “is inadmissible if the witness unequivocally admits [to] making [the prior statement]”).

It is important to remember that if your witness is impeached with a prior inconsistent statement which was not under oath, you will need to object to the introduction of the statement for substantive proof. If you fail to object, then the evidence may be used by the jury for that purpose. State v. Smith, 24 S.W.3d 274, 280 (Tenn. 2000).

From a practical matter there are several prerequisites to admissibility under TRE 803(26). First, the statement must be inconsistent. Rule 803(26) provides that the statement must be admissible under Rule 613(b). Rule 613 does not define “inconsistent” but case law has defined the term not to require direct contradiction. It is sufficient if the “proffered testimony, taken as a whole, either by what is says or by what it omits to says, affords some indication that the fact was different from the testimony of the witness whom it sought to contradict.” United States v. Gravely, 840 F.2d 1156, 1163 (4th Cir. 1988). TRE 613(b) requires that a witness be confronted with the statement prior to the introduction of extrinsic evidence. It provides that “extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless and until the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.” (It should be noted that this requirement does not apply to statements that are admissible as statements by a party opponent under Rule 803(1.2).) The confrontation requirement of Rule 613(b) has been interpreted to require that the witness be asked about the statement during cross-examination. See State v. Flood, 219 S.W.3d 307 (Tenn. 2007). Thus, because Rule 803(26) incorporates Rule 613(b), extrinsic evidence of a prior inconsistent statement is not admissible unless and until the witness is given an opportunity to explain or deny the statement. This is not the same under FRE 613(b). The federal rule does not use the phrase “unless or until” but provides that extrinsic evidence is not available until the witness is given the “opportunity” to explain or deny the statement. Under federal case law, this has been interpreted to mean that the witness must be given the “opportunity” but it does not have to be through cross-examination or even before the extrinsic evidence is admitted.

Secondly, TRE 803(26) applies only when the declarant is testifying at trial and is subject to cross-examination about the statement. The rule does not allow for admission of statements made by non-witness declarants for substantive proof. Third, Rule 803(26) requires that the statement be recorded and either be audio, video, written and signed, or under oath. Finally, the rule requires that the statement be “made under circumstances indicating trustworthiness” as determined by a judge in a jury-out hearing. If each of the four elements is satisfied, then the prior inconsistent statement can be admissible as substantive evidence.

Another separate issue which may arise is a prior “consistent” statement. Can these be admitted into evidence? Yes, under Federal law. FRE 801(d) of the Federal Rules of Evidence deals with statements that are not considered to be hearsay. This is found in FRE 801(d)(1)(A). As stated above, what this rule means is that not only can you impeach a witness with a prior inconsistent statement but unlike common law, the inconsistent statement can come in as evidence since it is not hearsay. Rule 801(d)(1)(A) is not applicable to a “prior consistent statement”. Prior consistent statements are dealt with by Rule 801(d)(1)(B).

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or . . .

There is no similar rule under Tennessee Rules of Evidence. You may be able to fit the prior consistent statement into an exception, but there is no specific exception or rule related to prior consistent statements in Tennessee law.

I recently had this come into play in a trial in federal court in which we wanted to introduce a testimony related to a prior consistent statement of another witness. The issue related to a “gag order” that was allegedly given by a public official to an employee. The defense claimed that this employee’s testimony was fabricated to support her lawsuit. We wanted to introduce a statement of another employee which was given before the employee filed her lawsuit. In this statement, the co-employee testified that our client had told him of the gag order given by the public official. Thus, it was a prior consistent statement of our client. We pointed out the rule to the judge, who acknowledged the rule and its applicability to the situation, but chose to not allow the evidence in anyway.

2. Bias

TRE Rule 616 relates to impeachment by “bias or prejudice,” which states: “A party may offer evidence by cross-examination, extrinsic evidence, or both, that a witness is biased in favor of or prejudiced against a party or another witness.” There are a couple of important things to note about this Rule. One is that the evidence is not limited to cross-examination but can include extrinsic evidence. In other words, “bias and prejudice are never collateral.” Another point to note is that there is no Rule 616 in the Federal Rules of Evidence; however, federal case law is apparently the same or similar. “Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’s testimony.” United States v. Abel, 469 U.S. 45, 52 (1984).

3. Character-Related>/b>

Rules 608 and 609 are related to impeachment by character and conduct of witness and for conviction of crime. This was discussed in some detail in Section I. “Determining Admissibility.” As discussed in that section, Rules 608 and 609 relate to something that is happening the court room at the trial. These rules deal with whether the witness is telling the truth at trial. Rule 608(a) states:

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

As you can see from above, the Rule does not actually say that truthfulness is proven by hearsay and gossip, but it says that it is proved by reputation. Again, it is important to note that the impeaching evidence for reputation does not come in until the character of a witness for truthfulness has been attacked.

Under certain circumstances, specific instances of conduct can be used for attacking a witness’s character for truthfulness. Rule 608(b) allows cross-examination as to specific acts, but does not allow extrinsic evidence. So if you ask a witness if they beat their wife, then you are stuck with whatever answer they give. In addition, the Tennessee Rule contains a laundry list of hoops that you have to jump through before you use this testimony including an out of court hearing and advanced notice etc. All of this means that the use of this type of evidence is extremely rare and has to be planned well in advance.

Rule 609 concerns the more common and useful impeachment of a witness by evidence of conviction of crime. Both the state and federal rules are complex and should be studied if one anticipates the use or defense of such evidence. Under the Tennessee rules, the witness has to be asked about the crime on cross-examination, and the crime has to be a felony, involve dishonesty, or involve a false statement. If it is in a criminal prosecution, the state has to give reasonable notice and, if requested, the court has to have a hearing on balancing the probative value against it prejudicial effect. There is a ten year time limitation on the use of convictions in both the state and federal courts.

D. Dealing with Missing Witnesses, Evidence, and Documents

It is important for a practitioner to know what to do when witnesses and evidence is missing. And, if you are the one who is not able to produce the witness or evidence, you need to know what the repercussions might be.

In a criminal case, if you fail to present a witness at trial, then the “missing witness rule” may apply. In Tennessee, the “missing witness rule” provides that:

a party may comment about an absent witness when the evidence shows ‘that the witness had knowledge of material facts, that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and that the missing witness was available to the process of the Court for trial.

State v. Bough, 152 S.W.3d 453, 463 (Tenn. 2004) (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)). The “missing witness” or “absent material witness” instruction provides:

When it is within the power of the [S]tate or the defendant to produce a witness who possesses peculiar knowledge concerning facts essential to that party’s contentions and who is available to one side at the exclusion of the other, and the party to whom the witness is available fails to call such witness, an inference arises that the testimony of such witness would have been unfavorable to the side that should have called or produced such witness. Whether there was such a witness and whether such an inference has arisen is for you to decide and if so, you are to determine what weight it shall be given.

T.P.I.-Crim. 42.16 (15th ed. 2011). Before the instruction may be given, the party requesting it must establish “that ‘the witness had knowledge of material facts, that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and that the missing witness was available to the process of the Court for trial.'” State v. Bigbee, 885 S.W.2d 797, 804 (Tenn. 1994). The witness who was not called must also not have been available to both parties. See State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App. 1992).

The context that a missing witness mostly comes up in is where a witness’s deposition has been taken but the witness is “unavailable” to testify at trial. Tennessee Rule of Civil Procedure 32.01 applies to the use of deposition testimony for cross-examination and impeachment. It governs when a deposition may be used as substantive proof under the former testimony exemption to hearsay. Rule 32.01 provides:

Use of Depositions. – At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against the party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions[.]

T.R.C.P. 32.01(3) provides that a deposition of a witness who is “unavailable” as defined by the Rule may be used ‘by any party for any purpose unless it appears that the absence of the witness was procured by the party offering the deposition.” The rule that defines when a witness is “unavailable” is T.R.E. 804. There are several circumstances that are listed in which the witness is considered “unavailable” and those include exemption from testimony by court, a witness who has a lack of memory, death or illness or a party is unable to procure attendance by process. As to this last category the Rule states in 804(a)(6) that a declarant is unavailable when the person is:

is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process; or for depositions in civil actions only, is at a greater distance than 100 miles from the place of trial or hearing.

This means that, if a declarant has moved away after their deposition and is more than 100 miles away, then you can introduce their deposition in evidence.

Another issue that arises is the application of the Bearman Rule. The “Bearman Rule,” so named for Leo Bearman who requested the rule be inserted into the Rules, is found in Rule 32.01(3) of the Tennessee Rules of Civil Procedure. This rule states: Notwithstanding the foregoing provisions, depositions of experts taken pursuant to the provisions of Rule 26.02(4) may not be used at the trial except to impeach in accordance with the provisions of Rule 32.01(1). This rule was included to address the situation where an attorney was taking the deposition of a hostile expert who is “unavailable” because the witness is exempt from a subpoena to trial. This comes up often in the context of doctors who are exempt from subpoena pursuant to Section 24-9-101 of the Tennessee Code Annotated. The opposing attorney does not want to take a deposition which would be for proof since under Rule 804(a) the deposition would be admissible. So the Bearman Rule essentially provides that a discovery deposition of an expert is not for any use other than impeachment. It should be noted that there have been a few chinks in the Bearman Rule. In Dial v. Harrington, 138 S.W.3d 895 (Tenn. Ct. App. 2003), the court held that a deposition of an expert taken in accordance with Rule 26 may be offered by a party to oppose summary judgment to the same extent that an affidavit could be used.

In the context of missing evidence or documents, the hot topic is “spoliation” and “sanctions.” This is a rapidly developing area of the law due to e-discovery. E-discovery is covered in another section of the materials, but it should be noted that it is important for the practitioner to be aware of the pitfalls that can befall both your client and you by destroying or losing evidence. Sanctions are appropriate when there has been spoliation of evidence. Spoliation includes both the destruction and the suppression of relevant evidence. “Spoliation refers to the destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Lexington Ins. Co. v. Tubbs, No. 06-2847-STA, 2009 WL 1586862, at *3 (W.D. Tenn. June 3, 2009). “Spoliation sanctions are proper when (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.” Lexington Ins. Co., 2009 WL 1586862, at *3 (citation omitted); Jain v. Memphis Shelby Cnty. Airport Auth., No. 08-2119-STA-dkv, 2010 WL 711328, at *2 (W.D. Tenn. Feb. 25, 2010) (citation omitted). The “doctrine of spoliation” also includes incidences when litigants have “suppressed relevant evidence.” Flottman v. Hickman Co., TN, 2010 U.S. Dist. LEXIS 117251 at *3 (M.D. Tenn. 2010); citing American Family Mut. Ins. Co. v. Roth, 2009 U.S. Dist. LEXIS 32519 at *10 (N.D. Ill. 2009). “When parties present no valid objections to discovery and intentionally withhold properly requested information, courts have the authority to presume that the party’s refusal to produce the information is an admission of the want of merit in the asserted defense or claims.” Technology Recycling Corp. v. City of Taylor, 2006 U.S. App. LEXIS 16590 at 36 (6th Cir. 2006).

E. Disclosures to Opposing Counsel

Since this topic falls under the broad heading of witnesses, it must be assumed that the disclosure to opposing counsel is disclosure of witnesses. In the Federal rules, Rule 26 relates to the initial and supplemental disclosure of information to opposing counsel. Rule 26(a)(1) states:

(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy-or a description by category and location-of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party-who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Generally, these initial disclosures are required 14 days following the scheduling conference. It should be noted that these are no substitute for discovery requests because there are limitations on what exactly the opposing party must disclose. The opposing party only has to disclose those witnesses and documents that the party “may use to support its claims or defenses.” This is an important distinction because they do not have to provide you with any information that they will not use to support their case. So you need to go ahead and send out discovery requests in order to get all witnesses with discoverable information whether it is harmful to the opposing party, or helpful, or will or will not be used by them.

In state courts, Rule 26 disclosures are not used. Usually witnesses are disclosed by discovery and/or by local rule related to disclosures prior to trial. A good practice is to check your local rules related to pre-trial disclosures well in advance of any trial. The worst thing that could happen is that an important witness be disqualified because you failed to disclose the witness to the opposing party.

Federal Rule of Civil Procedure 37(c)(1) deals with sanctions for providing false or misleading disclosures. It states the following:

A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney’s fees, caused by the failure, these sanctions may include any of the actions authorized under Rule 37(2)(A), (B), and (C) and may include informing the jury of the failure to make the disclosure.

Rule 37 of the Federal Rules of Civil Procedure allows a party denied discovery responses to file a motion requesting the Court to order the opposing party to respond to the discovery requests. In addition, Rule 37 allows for sanctions and requires that a party failing to disclose and provide requested evidence not be allowed to use that evidence at trial, unless the failure to disclosure was harmless or substantially justified. In addition, Rule 37 allows this Court to strike Defendant’s defenses at issue, deem Plaintiff’s claim at issue as admitted, issue a default judgment, stay proceedings until the discovery is produced, or hold Defendant in contempt of court. Rule 37 mandates that the expenses and fees associated with the moving party’s Motion be granted.

These potential sanctions are not just against the parties. It is also well-established that the Court “has the power to control admission to its bar and to discipline attorneys who appear before it.” Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991). This inherent power is not just applicable to attorneys but the power to sanction also “extends to a full range of litigation abuses” of parties. In Chambers, the Supreme Court defined the scope of this inherent power as follows:

[A] court may assess attorney’s fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. In this regard, if a court finds that fraud has been practiced upon it, or that the very temple of justice has been defiled, it may assess attorney’s fees against the responsible party, as it may when a party shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order. The imposition of sanctions in this instance transcends a court’s equitable power concerning relations between the parties and reaches a court’s inherent power to police itself, thus serving the dual purpose of indicate[ing] judicial authority without resort to the more drastic sanctions available for contempt of court and mak[ing] the prevailing party whole for expenses caused by his opponent’s obstinacy.

F. Complying with the Scheduling Order

In all federal cases, there is a scheduling order pursuant to Rule 16 of the Federal Rules of Civil Procedure. Often this scheduling order is prepared jointly by the parties pursuant to a form provided by the specific magistrate who is hearing the case. In federal court, you live and die by the scheduling order. This is a “mother, may I, court.” This means you need to ask before you make a change. Agreement between the parties means nothing. If you need to extend the discovery deadline, then you must file a motion with the court before the close of discovery, along with a memorandum in support and a certificate of consultation with the opposing party. This has become more important with the significant revisions to the Local Rules of the Western District of Tennessee as of January 1, 2014. The Court adopted a “Differentiated Case Management System” at LR 16.2 with the stated purpose as follows:

The purpose of this rule is to establish a Differentiated Case Management (“DCM”) system, under which cases are screened for complexity and the need for judicial involvement, assigned to specific tracks based on that criteria, and managed to disposition according to predetermined milestones established for respective tracks. Cases falling under the Local Patent Rules of this Court are exempt from this Rule.

Under this new rule cases are divided into five tracts: 1) administrative, 2) pro se, 3) expedited, 4) standard, and 5) complex. Once the case is assigned into the track based on the type of case it is, then the deadlines are established for the scheduling order. Obviously, the complex track has the longest scheduling periods. If you are not familiar with the revised rules, I would suggest that you take the time to study them so as not to run afoul of them.

In state courts, there are usually not mandated scheduling orders, but this does depend on local rules and practice. A party can make a motion for a scheduling order in state court, and these are generally granted. Although, many attorneys believe that the beauty of having a case in state court as opposed to federal court is that you are not bound by the scheduling order. The rule of thumb still stands, if there is a scheduling order in place, then do what you can to comply with it.