Illinois has devised an escape route to this dilemma and that is the use of the discovery deposition of the witness. In Schmidt v. Chicago Transit Authority,23 the plaintiff called the passenger in her vehicle to testify. The witness testified that she noticed the east and west traffic lights were green “somewhere in between the half block and the corner of Ashland.” On cross examination she was interrogated about an answer that she gave on her discovery deposition in which she said “I can’t remember where the car was but I remember seeing the green light.”
On redirect examination the Court permitted the attorney for the plaintiff to read questions and answers from her discovery deposition regarding when she saw the green light. These questions apparently clarified the issue in the plaintiff’s favor. The First District held that:
“A statement may be repetitious of or bolster up a direct examination statement and yet may be proper in order to avoid the unfairness and distortion which can result if a party is permitted to read isolated and out of context portions of a deposition.”24
In Rose v. B.L. Cartage Company,25 the plaintiff was impeached on cross examination. On redirect examination the attorney for the plaintiff attempted to rehabilitate the plaintiff by reading pertinent selections of her testimony from the first trial of the case. The First District held that this was proper redirect examination.
An attorney must often confront the problem of trying to clarify the testimony of a witness who uses a certain term in an unusual way. In a First District case the plaintiff testified that she looked both ways when she entered into an intersection. On cross examination she was impeached from her discovery deposition where she said that she only “glanced” at the intersection and continued straight without doing anything else.
On redirect examination the attorney for the plaintiff attempted to read other questions and answers from the same discovery deposition. The trial Court refused to allow this form of rehabilitation and the Appellate Court reversed the case on this basis.
The questions approved were as follows:
Q: Several times, Mrs. Smith, you have been asked whether you looked, you said you glanced: Would you tell me what you mean by the word glanced and what you mean by the word looked?
A: I don’t think you have time when you are driving to take a good long look you glance quickly one way and the other.
Q: Sort of bat your eyes side to side more or less?
A: I think more than that. I was a stranger on that street and I was really looking, because I was looking for a road to get back over to go off 118th Avenue.26
In Goertz v. Chicago and Northwestern Railway Company,27 the plaintiff testified on direct that he heard no warnings from the Railway Company about the train starting. On cross examination the defendant attorney used the deposition of the plaintiff to contradict the plaintiff’s trial testimony that he heard no warnings. On redirect examination the attorney for the plaintiff read questions and answers from the plaintiff’s deposition to the effect that the plaintiff did not hear any warnings.
The First District held that the “Defendant claims error in the reading of statements from the plaintiff’s deposition by his counsel on redirect examination because this tended to bolster testimony given on direct examination. The deposition was first referred to by defendant on cross examination to contradict plaintiff’s testimony that he heard no warning and that he started to get off the train while it was standing still. A party impeached or contradicted at the trial by statements made prior to that time may use the same document to qualify or explain what has been testified to.”28
Conclusion It is clear that redirect examination in Illinois affords the trial attorney an opportunity to effectively rehabilitate his witness after the witness’ cross examination.