Kentucky

How many times at a deposition have you seen a lawyer ask a witness other than his client to draw the accident scene with location of the cars, area of impact, lanes of travel, etc.?

We have all been trained to draw conclusions from questions and answers, but drawing diagrams is a whole new area for us to "Gogh".

Most of us have heard the old adage that a picture is worth a thousand words.  Of course, the adage does not play out at a deposition as there may be thousands of words that follow in spite of that drawing.

Well, this post addresses this issue from two angles.  First, from the digital angle on how technology can elevate you past the notepad moment.  Second, from the legal issues surrounding an attorney's efforts to cross-examine by drawing.

First, the digital realm and approach is addressed from a "borrowed" post from Finis Price at www.TechnoEsq.com's blog. 

By Finis Price on lawyer

Second, have you ever thought what you were actually asking the witness to do and what are you going to do with that final product?

The usual objection by some counsel is if the witness is a party (or the witness is not favorable to the attorney's case) is to object that the drawing is not to scale, the witness has no training or qualifications in making the drawing or sketch, and/or that the sketch is for illustrative purposes only. 

I don't know if these usual and customary objections help, hurt or even address the real issue which is the potential use of the sketch at trial as evidence, demonstrative or otherwise.

Let us not forget that a deposition is an "examination" (be it direct or cross) in which the usual formula is questions followed by answers (usually audible).  The case law supports an attorney to introduce drawings or exhibits or witnesses with the appropriate foundations etc. being laid, and I am not addressing the wisdom or mechanics of that approach.  But, I do question cross-examination by drawings.

If the attorney wants a drawing or sketch, then hire their own expert, drawer, artist, etc and ask questions about that piece of artwork (just as if it were a picture or other properly authenticated piece of evidence).  But, it is too much to expect my client to be their artist to produce a rendition that is obviously not to scale and often poorly done is an invitation to admissions, declarations against interest, and then using my client's own inartfully drawn drawing against them by blowing it up on the projector in court!  This should not happen.  The civil rule for a deposition talks about an examination; let's keep it at that (unless there is no objection).

Now, this of course raises some collateral concerns. 

Does "for illustrative purposes only" imply an agreement that it is just to help all to understand at the deposition or to help the jury too as demonstrative evidence?

Does "not to scale" destroy the authentication, completely or partially?  For example, can the drawing nonetheless be used to show the direction of the vehicles, the approximate location of an impact in one lane or the other, the pedestrian was on the sidewalk when hit????

Does a notepad drawing by the attorney permit subsequent cross examination of the attorney on his artistic background?  (Just kidding on this one.)