When cross-examining a witness at trial, the general rule is that an attorney may question a witness with respect to specific immoral, vicious or criminal acts that have a bearing on the witness’ credibility. In a recent decision from the Appellate Division, Fourth Department, this rule was upheld when an attorney attempted to question a plaintiff about information in her federal tax returns that the attorney believed to be inaccurate.

In Young v. Lacy, the plaintiff was injured in a motor vehicle accident and was awarded significant damages at the conclusion of the trial. On appeal, defense counsel argued that the lower court erred in refusing to allow her attorney to cross-examine Young about her federal tax returns. Specifically, defense counsel wanted to ask Young why she had filed as head of household for four consecutive years when she had been married and living with her husband during that period. The lower court precluded defense counsel from asking these questions explaining that, because they had not questioned Young about her taxes at her deposition, defense counsel was improperly trying to “ambush” her at trial.

The Fourth Department disagreed and reasoned that defense counsel had a good faith basis to ask Young about the propriety of her filing status. The Court stated that while the nature and extent of cross-examination such as this is discretionary with the trial court, any evidence that Young may have committed tax fraud had “some tendency to show moral turpitude to be relevant on the credibility issue.” Because Young’s credibility was central to several close issues at trial including proximate cause, serious injury and damages, the Court reversed the order and judgment from the trial court and granted a new trial on Young’s cause of action.

Defendants can and should use cross-examination as an opportunity to impeach a plaintiff’s credibility where it is appropriate. Even in a case like Young where certain questions were not asked during a plaintiff’s deposition, attorneys can always ask new questions at trial, so long as they are not using extrinsic evidence to impeach a witness’ credibility. Depositions take place before discovery is complete. That is the nature of a deposition – to gather facts. If an attorney does not have sufficient information to ask what may turn out to be a key question, he or she may not be precluded from that line of questioning should the case proceed to trial.

Thanks to Jeremy E. Seeman for his contribution to this post. For more information, please contact Nicole Y. Brown at .