§ 8.01-404.Contradiction by prior inconsistent writing (Subdivision (b)(i) of Supreme Court Rule 2:613 derived in part from this section and subdivision (b)(ii) of Supreme Court Rule 2:613 derived from this section).

A witness can be cross-examined about something written down earlier without the lawyer first showing the writing to the witness — § 8.01-404 allows probing the topic before revealing the document. But if the lawyer intends to contradict the witness with that writing, a foundation must be laid first: the witness’s attention has to be directed to the particular occasion the writing came from, and the witness must be asked whether he made a writing to that effect.

What happens next depends on the witness’s answer. If the witness denies making the writing or will not admit signing it, the writing must then be shown to him. If he admits it is genuine, he gets to explain it in his own words. And at any point during trial, the court can require the writing be produced for its own inspection and decide how best to use it for the trial.

The section carves out a real limit for personal injury and wrongful death cases specifically. In those actions, no ex parte affidavit or written statement — other than a deposition taken after due notice — and no extrajudicial recording of a witness’s voice made at any time other than simultaneously with the wrongful act or negligence itself may be used to contradict that witness about the facts and circumstances of the incident. That protection exists to keep insurance adjusters and investigators from locking in a witness’s account before the witness has had a lawyer or full context, then using it to impeach the witness’s trial testimony later. The one exception: nothing here stops using such an affidavit or statement in a later insurance-policy lawsuit built on a judgment already recovered in a personal injury or wrongful death case.