Woodland Hills personal injury attorney Barry P. Goldberg regularly sees young or inexperienced lawyers attempt to cross examine plaintiffs essentially about the attorney’s legal contentions in the lawsuit. It gets confusing when the cross examiner asks for “facts” which support a particular contention, affirmative defense or denial of a request for admission. Any version of that type of examination, asking a witness to explain the basis of his legal contentions, is conduct condemned in Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255 (Rifkind). We find that many lawyers are unaware of this important case.
In Rifkind, the witness was asked at deposition to state with respect to each of his affirmative defenses: “all facts that support the affirmative defense”; “the identity of each witness who has knowledge of any facts supporting the affirmative defense”; and the identity of “any documents that pertain to the facts or witnesses.” (Id. at pp. 1257–1258.) The Court of Appeal condemned the practice, which it referred to as asking “legal contention questions,” but held the same questions could properly be asked in interrogatories. (Id. at pp. 1256, 1260.) The distinction between these discovery devices is that “‘the client presumably knows the facts (although not always), but he can hardly be expected to know their legal consequences. This is what lawyers are for.’. . . [Citation.]” (Id. at p. 1260.)
“[L]egal contention questions require the party interrogated to make a ‘law-to-fact application that is beyond the competence of most lay persons.’ [Citation.] Even if such questions may be characterized as not calling for a legal opinion [citation], or as presenting a mixed question of law and fact [citation], their basic vice when used at a deposition is that they are unfair. They call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot.” (Id. at p. 1262.)
In particular, this kind of conduct is even worse at a trial and in front of a jury. The underlying concerns discussed in Rifkind apply to the use of such questions in trial. Asking an injured plaintiff to explain “by memory and on the spot” and without the ability to consult with his attorney why he took a particular legal position is inherently unfair and should not be permitted.