By: Of Counsel Lyndon Laird
Here are some thoughts for deposing an adverse police officer. A typical case is one in which a police officer testifies for the Plaintiff in an auto collision case and the defense lawyer is taking the officer’s deposition.
- A police officer will often testify as an expert. The lucky litigator is one who gets an opposing expert to help his own case with smart questioning. It happens more often than one might think. Think how it could happen and work toward it.
- If he doesn’t help you, be courteous but put him through the Robinson Lead him by the nose. Get him excluded or his testimony limited or otherwise weakened.
- There are usually only 1-3 key contested facts or issues in any case. Find them, focus on them, and shape the case with them in mind.
Send a Request for Disclosures under Rule 194 to obtain an overview of the officer’s background, opinions, and underlying data. If worthwhile, obtain previous depositions and trial testimony of the officer. The American Trial Lawyers Association (ATLA) and the Defense Research Institute (DRI) maintain databases of expert testimony.
- DOB, where born, where lived
- Number of times testified in court and depositions
- If retained, how much is he being paid to give an opinion?
- If retained, how many times has he consulted for the Plaintiff or his attorney?
- If retained, what percentage of his income comes from testifying?
EXPERT STATUS (OR NOT)
Judges and juries generally put more weight on the testimony of police officers. Thus, especially in video depositions, you should show due respect to such a witness, while vigorously highlighting any gaps, uncertainties, or inconsistencies in his testimony. And be especially attentive to testimony that may help you.
Further, a police officer testifying for the Plaintiff will likely be a non-retained expert subject to the expert provisions of Tex. R. Evid. 702, 703, 705, and Tex. R. Civ. P. 194, 195. This is very significant because you can seek to exclude or limit any unfavorable testimony of the officer on several grounds listed in the Rules and case law. See also Tex. R. Civ. P. 104,401-402, 702-70.
To be admissible, expert testimony must satisfy 4 criteria described in Whirlpool Corp. vs. Camacho, 298 S.W.3d631, 637 (Tex. 2009) and others:
- Qualification–The expert must be qualified to give an expert opinion “by knowledge, skill, experience, training, or education.” Tex. R. Evid. 702; Broders vs. Heise, 924 S.W.2d 148, 153 (Tex. 1996). Some questions relating to qualification might include:
- Prior work experience.
- Training as a police officer.
- Law enforcement experience–new as an officer?
- Number of accidents investigated.
- Accident investigation courses completed.
- Certified in accident investigation?
- Take annual refresher courses?
- Specialized knowledge–The subject of the expert’s testimony must be “scientific, technical, or other specialized knowledge.” R. Evid 702. If a party’s negligence is a matter of “common sense,” expert testimony may be unnecessary and inadmissible.
- Helpfulness (reliability and relevancy)–The expert’s testimony must “help the trier of fact to understand the evidence or to determine a fact in issue.” R. Evid. 702, K-Mart Corp. vs. Honeycutt, 24 S.W.3d 357, 360-361 (Tex. 2000). To meet the helpfulness test, the expert’s testimony must be both reliable (Gharda USA, Inc. vs. Control Solutions, Inc., 464 S.W.3d 338, 349 (Tex. 2015) and relevant (E.I. du Pont de Nemours & Co. vs. Robinson, 923 S.W.2d 549, 555 (Tex. 1995).
Some questions relating to reliability might include:
- He did not see the incident.
- Time spent in the investigation—he could have spent more time.
- Witnesses he interviewed
- Disciplinary actions.
- He wants to defend his report.
- Ask about all assumptions made in reaching his conclusions.
- What measurements did he take?
- What photos and videos did he take and where are they?
- What notes did he take and where are they?
- Did he make earlier reports? How were they different? Where are they? Get him to admit that they had different assumptions, facts, conclusions.
- Get him to admit that unknown facts could change his opinion.
- Get him to admit that other experts could have different opinions.
- Get him to agree with your experts to the extent he will.
- Adequate foundation—The expert’s opinion must be based on sufficient “underlying facts or data.” Tex. R. Evid. 705(c), 703; Caffe Ribs, Inc. vs. State, 487 S.W.3d 137, 144 (Tex. 2016).
Questions relating to relevancy bear on facts relating to the Plaintiff’s elements of proof, Defendants defenses or counterclaims, the credibility of witnesses, or other admissible evidence.
All of the above factors are fertile grounds on which to test a police officer/expert’s opinions in a deposition.
Even if the court finds that the officer passes the 4 tests, the officer’s opinions may still be excluded by the court on a finding that the probative value of the opinions is “substantially outweighed by the danger of unfair prejudice, confusion, or delay.” Tex. R. Evid. 403; Robinson, 923 S.W.2d at 557.
Have an agenda and a game plan. Focus on the “crucial few” facts and issues in the case. Everything else may be irrelevant or worse, distract from what is really important. Ask leading questions. Make the police expert answer your question. Ask your question several different ways until you get the answer you want, an inconsistent answer, or a concession. Stop when you get the answer you want. Object to nonresponsive attempts to backtrack or explain. The lucky litigator is one who gets an opposing expert to help his own case or your own expert. It happens more often than one might think. Think how it could happen and work toward it. But if the police expert doesn’t help you, try to get him excluded under Robinson or his testimony limited.