“Winning the Binger Battle” Article for the American College of Trial Lawyers
Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981) and its progeny establish the analysis for unfair surprise testimony, particularly with experts, but with any witness, under Florida law. In trial the Binger line of cases can create substantial issues. Defining what is truly new or surprise testimony from previously disclosed witnesses is frequently a judgment call. Unprepared or unscrupulous opposing lawyers may raise objections claiming unfair surprise sometimes to gain a tactical advantage. On the other hand as trial lawyers we need to know when a witness provides truly surprise testimony. These challenges represent areas of Binger battles.
There are three ways to win Binger battles. First, in direct examination of a witness who has been previously deposed each point to be covered should be referenced in your notes by page and line. That way if there is an objection from the other side that the offered testimony is new or surprise or different, a reference can be easily provided to the court. A command of the specific location of deposition testimony is invaluable in getting through your direct examination without protracted sidebar conferences to address Binger objections. If you can demonstrate to the court and opposing counsel a couple of times early on that you have command of the deposition and the specific references of points the witness testified to previously, this should eliminate further objections.
The second way that a Binger battle may occur is if your witness tries to testify at trial about an area not covered by opposing counsel during a deposition. This is a judgment call to be made at the deposition, but the better practice is to alert opposing counsel on the record of the areas that an expert witness will cover. If opposing counsel has missed an important point and you expect it to be a prominent feature of trial testimony then you have a judgment call to make. If you do not alert counsel to the point you run the risk that if you try to get into the area at trial the trial court may sustain a Binger objection. On the other hand opposing counsel has an obligation to take a thorough deposition. While this is a judgment call, our litigation process is ultimately a search for the truth, and I have found that it’s better to alert counsel on the record of any significant area that you anticipate getting into which has been unexplored. This does not mean that you have to develop an extensive examination on each point, simply reasonable notice is appropriate.
This can be done either at the beginning or the end of the deposition. I will commonly, on the record, at the beginning of an expert deposition scheduled by opposing counsel, ask the lawyer if she wants to know the general areas the witness will be asked to address at trial. If the answer is yes I will provide a summary of the general areas. This is not done during an actual examination of the witness, it’s typically done by me on the record at the beginning of the deposition.
Another reasonable way to address this potential problem is to alert counsel at the end of the deposition if there is a significant area which has not been covered. Again, this does not necessarily require an extensive examination by you of your own witness, rather just notice to counsel of the topic, or a general question or two of the witness should suffice. Counsel can then follow up at her discretion, but at least the issue has been raised and the Binger objection therefore hopefully eliminated. Again, part of this is a judgment call about what opposing counsel should or should not cover and reasonable minds can differ. However, if the area is disclosed this should eliminate a potentially problematic Binger objection.
The final way that a Binger battle may present is if the opposing witness truly gets into a new and different area. This can be hard to prove to the judge at sidebar in a lengthy deposition on many complex topics. Accordingly, particularly with an opposing expert it’s a good practice at the end of the deposition to sum up succinctly, accurately, and all in one place the expert’s opinions.
This is not a retaking of the deposition or an attempt at argument. You should present the opinions to the witness in a straightforward fashion so the witness agrees with them. You should do it all in one place so that the general areas that the witness is going to testify about are easily located. Thus if something is truly new it’s easy to point this out to the judge when the witness gets into the new area. Also, you should try to be disciplined about putting at one place what the witness have reviewed, thus if there is something that’s new at trial this can be addressed by you with the court.
Binger and its progeny are important because they address fundamental fairness. Both Plaintiff and defense deserve a fair trial, one on the merits, and one absent unfair surprise. A good trial lawyer tries to minimize the Binger battles and be prepared to win them when they inevitably come. When it comes to Binger battles, an ounce of prevention is worth a pound of cure.
Thomas E. Dukes, III as a Fellow of the American College of Trial Lawyers and a Board Certified Civil Trial Lawyer. He practices in Orlando, Florida.