We have all seen it or read it in a transcript—the self-satisfied if not smirking delivery of the lines “were you lying then or are you lying now” after a witness has been impeached. And what follows is all too often an explanation that defeats the juxtaposition of the two differing versions of events—they get reconciled or justified.

What is shocking is that this approach was endorsed in a chapter in a generally excellent compilation of articles—”The Art of Cross-Examination,” Charles A. Gibbons, Editor (ABA 2014).  The chapter addressed use of a deposition at trial and offered an illustrative impeachment by prior inconsistent statement. The chapter author used the following two questions and answers as the finale of that examination: