By Keith Mundrick
Fall has arrived, and school is back in session. What better time to brush up on deposition practice in the age of social media, reptile theories, and short attention spans?
It’s no secret that depositions can make or break your defense. A discovery deposition is generally your one and only chance to learn what a witness knows and what they might say at trial. Failing to take advantage of this tool can lead to big consequences down the road, whether at trial or in a dispositive or other motion.
Defending a deposition is just as critical as taking one. The internet has facilitated the sharing of corporate depositions and discovery like never before, and a bad deposition can follow a company for years across cases and jurisdictions. The stakes are higher than ever, but with a little (or, even better, a lot) of preparation, there is nothing to be worried about.
Going on Offense: Keys to Taking a Deposition
Rule 1: Remember what you came for
There are three primary reasons to notice a deposition. The first and most obvious reason is that the witness presumably has information that you do not. Naturally, you need to learn the facts as the witness perceives them. However, it is equally important to explore the boundaries of the witness’s knowledge. This includes determining what the witness does not know. Not only will this streamline your questioning, but it will bolster your defense later. A witness who suddenly “remembers” something at trial or in a subsequent affidavit is a ripe target for impeachment.
The second reason is also clear: you need to get the deponent’s version of the facts sworn, transcribed, and ready for use in a dispositive motion. If you are representing a corporation, this sometimes provides a motivation to depose your client’s own key employees in case they disappear before trial.
The third and most frequently overlooked reason to take a deposition is to gather material for impeachment. This means asking the questions for which you already know the answers, whether from discovery records, online research, or other investigation. It also means drilling into the details and asking the witness to describe his claims in a way that can be tested objectively. If a personal injury plaintiff claims he injured his shoulder and has trouble extending it, ask him to describe how far he can extend it, or what specific tasks he can no longer perform. This is critical if you have surveillance, social media research, or other evidence relevant to the claims (e.g., photos of the claimant competing in the Oktoberfest stein hoisting competition).
Depositions also provide a valuable opportunity to make personal observations of the witness, see how he or she handles pressure, and judge how the witness will perform at trial. The difference between a professional and a combative performance can also have a big impact on settlement negotiations.
Rule 2: Do your homework and do it well
To take the most effective deposition possible, you need to put in the time and do your homework. Ideally, you should know the case and the written discovery better than anyone else in the room. Better than the witness. Better than your opposing counsel. Before noticing a key deposition, make sure you are highly familiar with any key documents (contracts, business records, medical records, or whatever is at issue), but be especially familiar with any of the deponent’s prior statements. This stretches beyond the interrogatories and includes any statements or remarks the witness made online or in other records if connected to the claims.
Failure to adequately prepare for a deposition can make your questioning inefficient and puts you at risk of missing key areas of inquiry. Your homework not only guides your questioning but provides the crucial fodder for impeachment. If the witness said one thing in a record, ask him the same question, and make sure you get the same answer.
Rule 3: A deposition is not a trial
There is a big difference between a deposition question and a trial question. Depositions are about laying the groundwork for later, whether for trial or summary judgment. A deposition is not the place to go for a dramatic kill shot. The witness may exaggerate, misstate or overstate something, or flat-out lie in his deposition. (That’s good — it’s one of the reasons you noticed the deposition!) However, the deposition is neither the time nor the place to rub his nose in it. After all, the jury isn’t there to see it.
Going for the “Gotcha!” moment in a discovery deposition is almost always a mistake. First, it gives the witness a chance to explain away the testimony, muddying the transcript and making it much harder to use it for impeachment later. Second, tipping your hand gives the witness and his counsel months of advance warning to prepare for the would-be climax of trial. This means you are less likely to get the reaction you want and your opponent has plenty of time to think of an explanation and game-plan to use before the jury. You will have no chance of catching the witness off guard.
One of the biggest disadvantages of noticing an oral deposition is that you are forced to show some of your cards to your opponent. The questions you choose to ask will necessarily reveal your general theories and defenses. However, you can mitigate this issue by putting on your poker face when the witness missteps. Dial back the drama; just make a mental note and save it for trial.
Rule 4: Come prepared, but remain inquisitive
Some lawyers can take a great deposition without an outline. I am not one of them (although I have seldom tried to do so). Make a checklist or broad outline for the topics you need to cover, otherwise you risk losing track or missing a key topic. Although an outline is essential, you should remain curious. Ask the necessary follow-up questions and be ready to deviate from the outline. In this regard, preparing a broad checklist is often more helpful than a list of specific questions.
Playing defense: Keys to defending a deposition
Rule 1: Take your witness preparation seriously
A whole series of articles could be written about preparing a witness for deposition. Just because you may not be doing the questioning, that does not mean you can or should skimp on your preparation.
Invest the time to make sure your client knows the case, the key documents, and any relevant prior statements made by the witness or the company. If you are defending a corporate employee, make sure he has seen and is familiar with the relevant corporate rules and procedures. A prepared adversary will know them and may use them as an exhibit or guide for his questioning.
Although preparation is necessary for all depositions, it is especially vital for corporate depositions pursuant to Federal Rule or Indiana Rule 30(B)(6). In these situations, while the stakes are generally higher, and you have a duty to identify the right witness and make sure he is educated, you benefit from an advance list of topics for examination. Know these areas intimately, and thoroughly review the relevant corporate documents with your designated witness. Work with your witness and other representatives to educate him and build his confidence, starting well in advance of the deposition date. This preparation should ideally include a challenging mock deposition.
The demeanor and presentation of your witness is important, too. A witness who feels that he has been adequately prepared will be confident, cool and collected. Your job as a lawyer is to help your client reach this level of comfort. Neither you nor your witness want to be surprised by anything at the deposition; this can only be achieved through adequate preparation.
Rule 2: Know the proper and improper deposition objections
You will likely need to object at some point during the course of the deposition. Stick to the proper objections and avoid making improper objections that needlessly prolong the deposition. Using groundless objections as a tool to coach your witness or throw off your opposing counsel is unprofessional and ineffective. Don’t do it.
Claims of privilege must be objected to or else they are waived. If a question seeks to invade a privilege, object and instruct your client not to answer the question. Similarly, objections to the form of the question are generally waived if not raised at the deposition. Questions calling for legal conclusions are also improper, since the witness is there to testify about facts and not legal matters.
Relevance is an improper deposition objection except in extreme cases. Please don’t be the lawyer who makes relevance objections. If a question may lead to admissible evidence, it is generally proper. Similarly, hearsay is an improper objection at the time of a deposition. These objections are preserved for trial and require no action at the time of a deposition.
Speaking or coaching depositions are always improper and are a surefire way to raise the tension level with your opposing counsel. If you have a valid objection, make it for the record and either let your client answer or instruct him not to. Then stop talking.
Rule 3: Be the mongoose
The “reptile” strategy gets a lot of attention, but it is nothing revolutionary. Reptile practice aims to trigger the survival instincts of the jurors and get them thinking about protecting themselves, rather than focusing on the evidence of your specific case. It is little more than a psychological trick to circumvent the “golden rule,” which prohibits a lawyer from inviting the jury to place themselves in the plaintiff’s position. Defending against the reptile is largely a battle for the limine and trial stage, but a successful defense to this tactic starts before the defendant is deposed.
Explain the “reptile” strategy to your witnesses and make sure they are listening for questions that depart from the specific facts of the case and tread into broader concepts. Encourage them to feel free to explain their answers in more than just a simple yes or no. Prepare them in particular for absolute questions such as, “Would you agree that a company should never use a product that could hurt somebody?” A semi-truck can hurt somebody, but our economy would screech to a halt if companies stopped using them. Encourage your witness to give an answer accompanied by an explanation.
Similarly, be on the lookout for these questions yourself, and object to the improper form of such questions. They generally invite a legal conclusion, rather than a factual answer. A simple form objection will generally suffice, and the issue can be raised with the court before trial.
Keeping it professional
Taking or defending a deposition is one of the tenser activities in litigation, and depositions can become confrontational. Part of handling depositions like a professional means behaving professionally. Shouting and similar behavior have no place in deposition practice. If things break down, keep your cool and try to work it out with your opponent. If necessary, terminate the deposition or get the judge on the line.
With some preparation and professionalism, deposition practice can be one of the most useful and rewarding parts of litigation practice. Do your homework, keep your cool, and have a game plan. Happy deposing!•
Mr. Mundrick is an attorney at Cantrell Strenski & Mehringer, LLP, where he practices in the areas of product liability, premises liability, toxic torts, and insurance coverage. He is chair of the Insurance Coverage Section of DTCI and serves on the DTCI Amicus Curiae Committee. The opinions expressed in this article are those of the author.