Lawyers Pan Judges’ Use of ‘Paper Testimony’
Benefits To ‘Live’ Direct Examination
Lawyers say that a judicial time-saving technique which employs the submission of affidavits instead of direct testimony does a disservice in subtracting the value of “live” witnesses.The practice — mandated by some judges, but just in jury-waived proceedings — calls for witnesses to take the stand for cross-examination only.
Many attorneys labeled the technique counterproductive.
“Direct examination provides a chance to look at witnesses and their demeanor,” said Boston litigator Stephen L. Hoffman. “There is a big difference between live testimony and a cold written record.”
“I have a problem with getting away from live witnesses,” said Douglas K. Sheff of Boston. “There is something valuable in seeing and hearing the witnesses on the stand. Nonverbal communication comprises a tremendous amount of information.”
“Having a witness go through his or her testimony breathes some life into it,” said Boston lawyer Richard M. Gelb.
But judges who employ the practice said “direct examination by affidavit” saves court time, prevents last-minute evidentiary disputes from cropping up and encourages earlier settlement of cases.
Superior Court Judge Margaret R. Hinkle said that the procedure “can further parties’ ability to clearly present their opinion … and give the judge a good overview of a case.”
Hinkle is currently using the technique in a much-publicized case over which she is presiding involving Massachusetts General Hospital’s legal challenge to Boston’s “Big Dig.”
U.S. District Court Judge Robert E. Keeton emphasized that the practice shortens lengthy cases while still affording parties the opportunity for a full and fair trial.
“It saves the courts and parties a lot of time on [an otherwise] lengthy trial,” Keeton observed. “It cuts a two-week non-jury trial to something like two or three days.”
Losing It
According to Gelb, lawyers “lose something” by presenting witnesses “with paper.”
“How do you evaluate the cross without a direct?” asked Gelb. “How do you know if a witness has changed his demeanor?”
For example, Gelb pointed out, “a witness may appear nervous during cross-examination because he is simply a nervous witness. But if there is no live direct examination, the judge might think the witness is nervous because he is being evasive.”
A shaky witness who looks good on paper could become “meat thrown in a tiger cage” when the judge first sees the witness on cross-examination,” said Boston criminal-defense attorney J.W. Carney Jr. “You don’t want the judge to see your witness on the stand for the first time being torn apart on cross-examination.”
“Witnesses should be able to take the stand and look [the fact finder] in the eye when they testify,” Sheff observed.
Superior Court Judge Julian T. Houston also voiced opposition to having direct examination conducted through affidavits.
“I think a trier of fact evaluates a witness on the basis of how the witness responds to all questions,” said Houston. “It’s important to have as complete an opportunity to make that evaluation as possible.”
Carney said that examination by affidavit does not seem appropriate in a case where the credibility of witnesses is at issue.
“Credibility cannot be built on the cold record of an affidavit,” Carney observed.
Judge Keeton said that — where credibility is a big issue — he allows the direct examination to be done orally. Likewise, the judge does not require testimony by affidavit when a lawyer calls a hostile witness to the stand.
Judge Hinkle also indicated that she would allow a lawyer to put a witness on the stand for direct examination if it was warranted by the circumstances.
‘Sparing’ Use
Hinkle said she uses the direct-examination-by-affidavit procedure “sparingly.”
For example, a complex case that would otherwise tie up eight weeks of busy trial time might be a good candidate for an affidavit format, the judge said.
Superior Court Judge John C. Cratsley — who has conducted one trial in which the technique was used — said it can work well in complex cases.
“[The case] was a long jury-waived trade-secret trial,” Cratsley said. “We were looking for consensual methods for keeping the case under control. We agreed that several of the expert witnesses present [direct testimony] by affidavit. I thought it worked fine [in that case].”
Since the Massachusetts Rules of Civil Procedure do not provide for direct examination by affidavit, it is unclear whether consent of the parties is necessary for a judge to impose it, according to practitioners.
“It does seem that, absent some sort of agreement, the rules require that the witness testify live,” said one Superior Court judge. “I would suppose that if there’s any objection, that’s the end of it.”
While Keeton routinely requires that witness testimony be by affidavit when hearings on motions are held, he only follows the procedure during trials if the lawyers consent to it.
“Most lawyers agree to it,” Keeton said.
John M. Connors of the administrative office of the District Court said he is not aware of any District Court judges who accept affidavits in place of oral direct testimony.
“It seems like something that detailed and important should be expressly authorized by a rule before it is done,” Connors said.
How Examination By Affidavit Works…
The following is the portion of a pre-hearing order issued by U.S. District Court Judge Robert E. Keeton pertaining to direct-examination testimony by affidavit. Except as provided in part (d) below, all direct examination of witness at the hearing shall be presented by affidavit.
- An affidavit of a witness, constituting the direct examination, must be in admissible form. That is, each statement in the affidavit must be in form such that if the witness were making the statement orally at trial, in response to a question, it would be admissible under the Federal Rules of Evidence. Statements that would be objectionable as conclusions, or objectionable because of lack of essential foundation evidence, should be avoided. … To facilitate use at trial, the affidavit shall be prepared in numbered paragraphs, each of reasonable length.
- When an affidavit is offered in evidence, opposing counsel may present objections. If the court sustains an objection to any part of the affidavit, the court will consider whether good cause exists for allowing supplementation of the affidavit or allowing the witness to be called to the stand to attempt to cure or avoid grounds of objection and elicit evidence to replace that stricken on objection. The court may place limitations on the opportunity for such curative additions to the direct testimony if counsel has inexcusably presented an affidavit not in compliance with part 2a above.
- If notice has been given by opposing counsel …, the witness may be present for cross-examination, in the event the court allows it, and for redirect examination.
- In the following circumstances a party may use a deposition or call a witness for oral examination:
- If notice is given …, the deposition of a witness may be used whenever … authorizes its use.
- With leave of the court, for good cause shown, an opposing party and anyone having authority to represent that party as officer, director, or managing agent … may be called for oral examination at the hearing if notice has been given.
- For good cause shown on or before ________ [H-2 days] (or filed thereafter, but with good cause shown for late filing), all or part of the direct examination of any witness may be by oral examination at the hearing. The court may, even if no motion is filed, call a witness for oral examination to aid the court’s fact finding; if this is done, the parties will be heard as to whether one or more other witnesses should also be called to assure fair opportunity to develop claims and defenses.Mark A. Cohen and David L. Yas
