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Timothy R. Capowski and John F. Watkins Timothy R. Capowski and John F. Watkins

Most litigators have at least a passing familiarity with the so-called “tailored testimony rule.” In the paradigmatic civil litigation example, a party makes a damning admission at his deposition, the admission is used as the basis of his or her adversary’s summary judgment motion, and, in opposition, the party submits an affidavit that—flatly and without explanation—contradicts his or her deposition testimony. The party’s attorney then claims that the two contradictory versions of the party’s story creates a credibility issue that must be resolved by a jury, which, the argument goes, is entitled to believe the second version of the story and reject the first. Facially, this argument is plausible, because juries are, in fact, afforded broad discretion to weigh and credit testimony.[i]

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