Daniel M. Caine
Dan’s friendship, professionalism and
collegiality will be missed by all.
SMITH GOODFRIEND, P.S.
When appellate procedure matters.
LKO v. TCG, 168 Wn. App. 862 (2012), aff’d 181 Wn.2d 48
Bank of America v. Owens, 153 Wn. App. 115 (2009), 173 Wn.2d
40 (2011), on remand 177 Wn. App. 181 (2013).
Collings v. City First Mortgage, 175 Wn. App. 589 (2013).
Fluor Enterprises v. Walter Const., 141 Wn. App. 761 (2007).
Roberson v. Perez, 156 Wn.2d 33 (2005).
contact Howard Goodfriend or Catherine Smith at
Washington’s Appellate Law Firm
possibility that a “yes” really meant “no.”
“Did you see the car crash?” is a bet-
ter question than, “Isn’t it true that you
didn’t see the car crash?”
Setting forth the deposition ground
rules in plain English at the outset of
the deposition and with reminders after
breaks is also important, especially in the
case of unsophisticated witnesses. For in-
stance, the witness should audibly agree
that she will only answer questions she
understands, that she will ask for clari-
fications if she does not understand the
question, and also that the examiner can
assume that the deponent understands
the questions she answers. This will
weaken any later claim that the witness
was confused by the question or did not
understand it. Likewise, it is important
to establish that the witness has no other
information on the topic in question. For
example, in the case of the car-crash wit-
ness, simple clean up questions may be
effective: Did you give me your complete
recollection of the car crash? Is there any
other aspect of the car crash that you
have not told me about today? It will be
difficult for the witness to provide addi-
tional information in a later declaration if
the witness previously admitted that she
testified to the whole story.
While there is no iron-clad way of
locking down witness admissions, deposition examiners should be aware
of the exceptions to the sham affidavit
rule in order to take proactive steps to
protect favorable admissions from later explanations and clarifications that
could disrupt a motion for summary
Adam Starr is
complex business and real
Adam joined the firm from the Bay
Area, where he was a litigation
associate with Miller Starr Regalia.
He loves the Northwest and does
not miss California traffic. He can
be reached at 503-295-3085 or
Did you recently move and want to be sure you’re getting
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