
    Alexis BRONSON and Crystal Hardin, on behalf of themselves and all others similarly situated, Plaintiffs, v. SAMSUNG ELECTRONICS AMERICA, INC. and Samsung Electronics Co., Ltd., Defendants.
    No. C 18-02300 WHA
    United States District Court, N.D. California.
    Signed July 3, 2019
    Kyla V. Alexander, Paul Rothstein, Pro Hac Vice, Gainesville, FL, Peter Y. Lee, New York, NY, Alan J. Sherwood, Law Office of Alan J. Sherwood, Hayward, CA, for Plaintiffs.
    Shannon Suzanne Broome, Hunton Andrews Kurth LLP, San Francisco, CA, Beth Sharon Coplowitz, Hunton Andrews Kurth LLP, Miami, FL, Michael J. Mueller, Hunton Andrews Kurth LLP, Washington, DC, Thomas Richard Waskom, Hunton Andrews Kurth LLP, Richmond, VA, for Defendants.
    ORDER DENYING MOTION TO STRIKE AND VACATING HEARING
   William Alsup, United States District Judge

For twenty years on the bench, I have tried to inform lawyers about the inherent ambiguity in a leading question premised on a negative, then ending in the word "correct?" or "right?" This motion perfectly illustrates the problem. At issue is the following question and answer during deposition testimony (Dkt. No. 142-5, Exh. 3, 162:5-7):

Q: Because you didn't intend to have it fixed, right?
A: No.

Does the answer mean "No, that is not right" or does it mean "No, I did not intend to have it fixed"? Both answers - entirely opposite in meaning - are equally plausible. It is impossible to be sure. The response is inherently ambiguous. This ambiguity is not the fault of the witness. It is entirely the fault of counsel and the form of the question.

We all understand that counsel on adverse examination prefer leading questions. But the unambiguous way to ask a leading question anchored in a negative is in this form: "You didn't intend to have it fixed, did you?" When, by contrast, the negative leading question ends with "correct?" or "right?" a "yes" or "no" answer will always be hopelessly ambiguous - always and forever, period.

When "correct?" or "right?" ends an affirmative leading question, no ambiguity occurs, as in "You intended to have it fixed, correct?" It's the negative form that leads to trouble. The entrenched and recurring problem arises from the confluence of (i) the negative leading question, (ii) ending in "correct?" or "right?" and (iii) answered "yes" or "no."

For twenty years as a trial judge, I have seen this error time and again. During many trials, out of the presence of the jury, I have alerted counsel to the problem. This unfortunate error spans the continent from big firms to small firms and even to the United States Attorney's office. Some lawyers get the point and improve their form of question. Others, however, just cannot reform. Sometimes, summary judgment motions must be denied on this very ground.

* * *

With this in mind, let's turn to the mundane issue at hand, namely whether to allow a correction made by a deponent. The deponent seeks to change an answer as follows. For clarity, the prior answer is lined through and the change is underlined (Dkt. No. 142-5, Exh. 2; Exh. 3, 162:5-7):

Q: Because you didn't intend to have it fixed, right?
A: No. I first wanted to see if they had the part.

It is unnecessary to recite the chronology relating to the correction at issue, for no issue is raised of timeliness or procedural entitlement of the witness to make a correction. The only issue raised is whether the particular change so reverses the meaning of the original testimony that the change should not be allowed under Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc. , 397 F.3d 1217, 1224-1226 (9th Cir. 2005). Unlike in Hambleton , however, the modifications here were not "changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment." Id. at 1225. Here, the question itself injected ambiguity, so it's hard to say the clarification radically alters the original answer. The corrected clarification will be allowed.

It would have been helpful, perhaps, if defending counsel had objected to the form of the question as ambiguous, but we are not concerned with admissibility at trial. We are merely concerned with the viability of a modification. The fault was with the examiner, not the witness. So, the modification is now permitted.

* * *

The second change poses a separate problem. The line of questioning was as follows. For clarity, the prior answer is lined through and the change is underlined (Dkt. No. 142-5, Exh. 2; Exh. 3, 103:7-13):

Q: So you assume they put in a new part to fix the on/off issue, right?
A: I did not assume that.
Q: You were paying for that, right?
A: Yes. I was paying for the repair of my on/off issue.
Q: And did it fix the on/off issue?
A: Yes.

The first question injected two separate points, a part plus a repair. The corrected answer was therefore permissible to specify which of the two was intended by the original answer, namely, the repair. This modification is also permitted.

For the foregoing reasons, defendants' motion to strike is DENIED . The hearing set for July 11 at 8:00 A.M. is hereby VACATED .

* * *

My plea to trial lawyers is to eliminate the words "correct?" and "right?" from the end of your questions. While those endings work fine for affirmative points, they invite trouble for all negative points and, in the heat of battle, you may lose track of which is which. Instead, may I urge the narrowly-directed non-leading form ("Did you intend to have it fixed?") or, if you insist on a leading question to make a negative point, end with "Did you?" or "Did it?" or "Did they?" as the case may be (e.g. , "You didn't intend to have it fixed, did you?"). Witnesses, jurors, and judges will appreciate the clarity.  