“You will have an opportunity to review the deposition transcript and make corrections if you wish. It’s best to make a solid record as we go. In rare cases, your words could be misunderstood by the reporter, something that almost never happens in the transcripts of our present professional company,” and Corrigan offered a professional boost on the record for one of his favorite reporters, who smiled in reply.
“We will take regular recesses, but should you wish to have a break just say the word. This is not meant to be a physical or mental ordeal. Nonetheless, the process is taxing on everyone. Any questions about this proceeding today?” he concluded, with a gracious smile beamed at the witness.
“No, thank you. I understand your instructions,” she confirmed again.
“Very well. How did you come to understand that you were so appointed by the judge? That is, how were you notified of your status as an expert in this case?”
“Well, I received a copy of a court order referencing the assignment,” meeting the question with a direct reply.
“Very well. Once you came into possession of the court document what did you do?” Corrigan continued.
“I contacted a patient I knew to be an attorney to find out what I should do. The attorney said she had never heard of such a procedure, but suggested I call the court clerk, which I did. After several attempts, I reached someone who put me in touch with Judge Crouch’s clerk.”
“I see,” Corrigan continued. “Did you receive any instructions from any source about your assignment in this case?”
“Yes,” she replied. “The clerk was very forthcoming. She forwarded copies of two declarations from experts in this case and asked me to review them for background about the issues involving the forensic sciences. She told me I had been appointed by Judge Crouch to serve at her direction.”
“Well,” intoned Corrigan, “have you ever had occasion to speak with Judge Crouch about this case or your assignment?”
“No, I have never spoken with the judge about this case. I have never met or spoken to her, ever.”
“Okay, then,” Corrigan went on, “please allow me to provide some orientation about what we’re doing here today, if you don’t mind.”
“Actually, I would be very grateful for some background,” the witness confirmed.
“Let me ask you, please,” he continued, “has anyone discussed with you the deposition procedure that we will be following today?”
“No.”
“Well, by way of background and your experience in the field of forensics, have you ever testified in the superior court or before a formal fact-finding panel, in any county of this state, as a forensic expert?” he queried.
“Yes,”
“How many times, would you estimate?”
“I don’t keep tab specifically, but my estimate is five or six times,” she answered.
“Give me an idea of the kinds of cases you have testified in, please,” Corrigan asked, pursuing his line of questioning.
“Surely. I’ve done some contract work for various county coroners in the Bay Area for several years. I have backed up other pathologists who might have become overloaded and then helped with their matters. Most of the cases that required my forensic testimony were trauma cases from motor vehicle accidents or violent attacks,” she explained.
“Any other types of cases in which you testified?”
“Well, yes, as I recall, I was asked to testify in a case involving a contested life-insurance benefit payment, I think it was.”
“You’re not certain about that?” Corrigan probed.
“I’m certain that I testified.”
“It appears to me that your courtroom experience is primarily directed at presenting scientific opinion in cases involving government proceedings focused on alleged violations of criminal laws,” Corrigan said hinting at the answer he wanted.
“I would say that’s probably correct, but if so, I’m not able to confirm one way or the other since I’m never informed of such extraneous matters,” she replied.
“What about the life insurance case? Who hired you in that case?” he asked.
“Yes, in that case, I was retained by an attorney whose client was making a claim for life-insurance benefits after his wife died,” she explained.
“Did the attorney mention to you what his client’s position was in the case?” Corrigan said, leaning toward the witness.
“Certainly, from the comments of the attorney I understood that the question in issue was whether the decedent died of natural causes or by intentional act, be it self-induced or at the hands of another or some instrumentality. As I recall, the attorney never told me in so many words what his client’s legal position might be in the case,” she continued, “but I knew his client claimed benefits under the policy.”
“When you testified in that case, did you reach an opinion and provide it to the court?” he continued.
“Yes,” she replied.
“Please tell us what your opinion was, if you don’t mind,” and Corrigan began to press ever so slightly.
“I object,” Malone interjected. “I don’t see that your question is calculated to lead us to discoverable evidence that might be admissible at trial.”
“Well, Mr. Malone, if you pay attention in the next few minutes you’ll see where I’m going with this line of questioning,” Corrigan bristled as he made his record.
A point worthy of noting is that no judge is present at a deposition, except in very unusual situations when uncooperative witnesses or attorneys are hailed into the courtroom so the entire proceeding may be monitored closely by a judge. Regardless, a record is made of all comments, including those of attorneys making objections. No need for alarm because the attorneys are making a record of points to be handled at a later time, if necessary. The trial judge in this case may have occasion to rule on any objection, possibly months or even years later. Even though the objection is made at the time of the taking of the deposition, the witness being deposed may nonetheless give his or her answer. Later on, at a subsequent court hearing, if the judge sustains the objection, the jury will never hear the answer in the deposition transcript because the question was deemed improper for any number of reasons. On the other hand, if the objection is overruled and the witness has become unavailable or died in the meantime, the testimony is admitted into evidence for whatever impact it may have at trial.
Malone seemed satisfied with this opening skirmish. He wanted Corrigan to know he was in the same room with him, that he was paying attention to the line of questioning and truth be known Malone simply wanted to interrupt any sense of momentum Corrigan may have thought he was building. Corrigan continued without losing his rhythm.
“Doctor Borodin, please excuse our little detour. Counsel thinks he needs to make a record. Do you have my previous question in mind, ma’am?”
“I think I do. You asked about my opinion in the life-insurance case, I believe,” she responded.
“Quite right. Would you share that with us, please?”
“Forgive me, but I have not reviewed that file for some time. I can give you my impressions if you wish,” and she arched her eyebrows in Corrigan’s direction.
“Yes, certainly,” encouraging her to continue.
“Well, as I recall, in that case the immediate cause of death was not in dispute since death was apparently instantaneous due to a gunshot wound to the head. From the direction the questions were going, it seemed obvious to me that there was an argument whether the decedent took her own life.”
“Did you give an opinion in that case, as you remember at this point in time,” he persisted.
“Yes, I did,” she replied.
“Fine, please tell us what it was, if you don’t mind?” Corrigan really had no particular idea where he was going with this line of questions, and he certainly would not do this fishing in front of a jury, but he was within his rights when taking the deposition of the court’s expert. All the more so, he argued in his ow
n mind, because this expert had no loyalties to any litigant in the will-contest case.
“In that case, I could find no evidence to support a suicide theory.”
“I see,” Corrigan said thoughtfully. “I take it you testified to the effect that in your opinion there was insufficient evidence to reach a conclusion, except that you believed most likely that suicide was not involved, right?”
“Yes, that’s correct. I had no evidence to support any other opinion”
“If I may ask, why were you certain that suicide was not involved?” he continued
“Really!” Malone said, unable to contain himself any longer. “I renew my objection for the record, this time in capital letters!” and he shrugged a litigator scowl.
“Let the witness continue, please, Mr. Malone. I’m entitled to an answer to my question. Please proceed, Doctor Borodin. Do you have the question in mind?”
“Yes, I do. As I recall now, my opinion was, and still is, subject to any further investigation of the facts, that I could not say the case involved a suicide because there was no note or other manifestation of the decedent’s state of mind when she died. In other words, there was no evidence that she intended to take her own life. The manifestation of intent to take one’s own life is essential to an opinion that suicide may be involved in a case. She had not written a note asking forgiveness, and she had not made comments to family or friends indicating depression or a willingness to take her own life.” The witness stopped to look at Corrigan inquisitively, as though to ask, anything further?
“Thank you, Doctor, I think we’ll be moving to a new topic now,” Corrigan foreshadowed.
“Thanks a lot,” Malone chimed in, with his own special emphasis. Ignoring the modest attempt by Malone to annoy him, Corrigan geared up a notch.
“Doctor, did you bring a resume, you know, a CV, with you today?”
“Yes, I did,” she replied.
“May I take a look, please?”
She handed a copy to Corrigan who identified it for the record with an exhibit reference number. As he scanned through the document, by his questions he made occasional references to her educational background, professional work experience, articles published, and honors received.
“Very impressive, I must say, Doctor.”
“Thank you, Mr. Corrigan,” she responded matter of factly.
“Moving ahead to this case—”
Malone couldn’t help himself and blurted out: “By the grace of—” and suddenly broke off the remainder of his sentence, trying unsuccessfully to conceal his own discomfort with and ignorance of this aspect of civil litigation.
Corrigan paid him little heed and continued with his new line of questioning. To his credit and consistent with his methodical approach, Corrigan had anticipated reaching this point in the deposition of the court’s expert many times over. He had satisfied himself that the witness handled herself very professionally in answering the preliminary questions posed thus far. He had reviewed her credentials and realized there was no sense making an attack on her qualifications, since such a strategy would surely be misconstrued by Judge Crouch who was likely to become protective of her forensic appointee.
From the earliest moment that Corrigan realized Judge Crouch might appoint an expert to serve the court, he knew that his best approach was to focus his efforts to establish that whoever came on board as the third forensic in the case tended to agree with the two experts hired by the Martorano family. There were well-respected rules for conducting an expert’s examination on an oral deposition, but there were good reasons to dispense with formalities if it was possible to get what he wanted by asking the few essential questions that troubled him. He continued his examination.
“Doctor, did you review any documents that you believe were useful to you in reaching any opinions you have reached in this case?”
“Yes, I did. I—”
“Thank you, Doctor,” Corrigan said, interrupting. Rather than get a list of the materials, Corrigan went directly to his favorite line of questioning, for this particular case, at least.
“Did you review the declarations of Doctors Smythe and Hendricks filed in support of the estate’s motion for summary judgment in this case?” Corrigan continued.
“Actually, I did, but along with many other documents as well,” Borodin answered.
“Well, let’s focus for the moment on the declarations I just mentioned, please, if you will,” he continued, training his big affectionate smile in her direction.
“Yes, that’s fine,” she replied.
“I take it you read them both, then?”
“Thoroughly,” she assured him.
“Then listen carefully, not that you don’t anyway. But please answer my questions as best you can, it’s very important to my clients,” and Corrigan again became just the slightest bit pushy in his manner. “Did you find yourself in substantial disagreement with anything these two experts stated in their declarations?”
“Well, I—”
Corrigan interrupted, again, prompting Malone to lean on Corrigan a bit harder.
“Counsel, I must insist that you permit the witness to answer the questions you direct to her. I’ve allowed you considerable leeway,” Malone directed.
Now it was Corrigan who let loose with a near violent barrage in his own defense. “Counsel, if you don’t know it already—and you may be unschooled in the civil end of the legal world, which would constitute a meager defense in your case—you have no leeway to allow or disallow me to pursue my sworn duty of protecting my clients’ rights!” Corrigan was nearing the bellowing and throwing stage, and the court reporter was looking nervously about the room, perhaps hoping someone in the adjacent suites might play like the proverbial cavalry and swoop in to her rescue.
Nothing doing, apparently, although Malone suggested a morning break, and the room cleared quickly. It stretched to more than thirty minutes before everyone reassembled. Pulse rates had returned to normal, and Corrigan resumed his questioning of the witness.
“Would the court reporter kindly read my last question of this witness, please?”
She complied, and Corrigan continued: “Doctor, do you have my question in mind?”
“Yes, I do,” she confirmed.
“May I have your answer, then?” he prodded.
“I have no substantial disagreement, although—”
Another interruption by Corrigan: “I must insist, Doctor Borodin, that you limit yourself to giving a truthful answer to my question.” He instantly regretted his comment as soon as it escaped his lips. Quickly, he tried to rehabilitate himself.
“Please excuse my use of the word ‘truthful’ as I meant nothing by my comment. I am very sorry. I think I’m feeling the stress of this proceeding and regrettably lost my composure. Will you forgive me, please?”
Dr. Borodin, a total stranger to such litigation proceedings, really did not know just quite what to make of Corrigan’s question and hasty recantation. Corrigan, of course, did know better. If and when Judge Crouch might read this passage, his goose would be quite well done in the judge’s opinion. By social custom inside the courtroom, there is no room for casting aspersions about a witnesses’ truthfulness unless a formal declaration of war is announced once a witness appears to be evasive or is suspected of outright lying. None of these conditions applied in this case.
Malone had no intention of saying anything as he thoroughly enjoyed seeing his contentious opponent wallow a bit in his own juices. Corrigan showed his mettle, however, and quickly moved forward.
“I made a word-slip when I added the term ‘truthful’ to my last question. Please disregard that reference as it has nothing whatsoever to do with this case and certainly nothing to do with your manner of testifying here today. It was my intention to simply have you answer my question without any elaboration. If I may, my question was whether you find yourself in any substantial disagreement with any of the topics you found in either of the declarations of the ot
her two expert witnesses.”
Corrigan let the import of his latest question settle in with the witness. Dr. Borodin was in no hurry to begin her answer.
“I think I understand that what you want to know is if I have any substantial disagreement with any of the conclusions reflected in the written reports of the other two expert witnesses in this case, is that right?”
“Yes, that’s correct. Well put!” Corrigan responded directly to Dr. Borodin.
“My answer is ‘no.’ I do not have any substantial disagreement with the testimony offered by these witnesses as stated in their respective declarations.” Dr. Borodin released a long sigh and sat back in her chair.
Corrigan was so pleased with the answer that he played his last card most flamboyantly.
“Thank you, Doctor! I have no further questions at this time.” Then he eased slowly yet deliberately back into his chair.
For his part, Malone was nearly exhausted from the pressure of the morning but could not afford to telegraph any suggestion of weariness that might embolden his opponent. Corrigan was entitled to flash his histrionics to signal his deep satisfaction with the witness’ testimony, yet Malone was nevertheless determined to reverse the momentum if he could find a way to do so. There was one major flaw in his strategy, however. Now that he had the ball, he had no idea where to start his examination, much less a sense of where further questioning of this expert might lead. So, he flashed the sign for a break in the action, heartily acquiesced to by Corrigan, who was certainly ready for a timeout. A stipulation for an early lunch break was made on the record by counsel.
(2012) The Court's Expert Page 28
