JDK wrote:
Thanks Mark.
P51Mstg wrote:
... CY sues Bowlins for a number of things, none of which he can prove. He testifies and can't remember anything (to about 200 questions). ...
So how does one read this? Poor prep for court? Hoping that you can attack with "I don't recall" answers as against the normal defending? Or that CY genuinely isn't steering this thing and doesn't actually know what's going on when on the stand on his own?
Regards,
The forgetful witness is an obstructionist discovery tactic. We take depositions to find out what the witness knows and to try to get him to make damaging admissions. One way to hide the ball and avoid saying anything harmful is to suddenly develop amnesia about almost everything except your own name. Very common and frustrating gambit and ordinarily the questioning attorney can't do much besides rant about it. However, it carries risks if the witness has to affirmatively carry water for you later, which is obviously true when the witness is the suing party. Here the gambit seems to have been overplayed, and the court was incredulous that CY could recall nothing about difficult-to-forget events such as his involvement in court proceedings and plane crashes. (Amusingly the court grouped those two examples together as if they were similar; I imagine for CY, court proceedings might be the more traumatic of the two!) The court found such blatant and unexplained disparities between CY's amnesia at deposition versus his total recall three months later in an affidavit that it disregarded the affidavit as a sham. Of course it it was really more of a sham deposition that the court was punishing CY for.
The sham testimony issue is a bit of a side issue though. The actual grounds for tossing all of CY's claims are that he waited too long, suing in 2008 over web content the Bowlins published in 2003. The case really hinged on an issue, of interest mostly to lawyers, about whether an entire website is deemed republished whenever an update to any part of it is made, or whether you are only liable for a statement on your website when you first post that statement.
The underlying merits of CY's false advertising and right of publicity claims were not decided, so this case does not provide guidance for anyone else out there who may be making commercial use of a pilot's name, likeness, airplane markings, or whatever.
August
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