DEPOSITION MANUAL

First Edition Copyright© 2014 By the Federation of Defense & Corporate Counsel All Rights Reserved and Protected

First Printing, August 2014

Printed in the United States of America by Voepel Publication Services, Inc. Springfield, Illinois EDITORS

Edward J. Currie, Jr. Francisco Ramos, Jr. CURRIE JOHNSON GRIFFIN CLARKE SILVERGLATE, P.A. MYERS, P.A. 799 Brickell Plaza, Suite 900 1044 River Oaks Drive Miami, Florida 33131 Post Office Box 750 Jackson, Mississippi 39205

CONTRIBUTORS

Victor R. Anderson, III K. Marc Barré, Jr. WADE & LOWE SWIFT, CURRIE, MCGHEE & HIERS, LLP 15615 Alton Parkway, Suite 270 1355 Peachtree St. N.E., Suite 300 Irvine, California 92618 Atlanta, Georgia 30309

Joanne T. Blackburn Stacy A. Broman GORDON THOMAS HONEYWELL LLP MEAGHER & GEER, P.L.L.P. One Union Square 33 South Sixth Street, Suite 4400 600 University, Suite 2100 Minneapolis, Minnesota 55402 Seattle, Washington 98101

Barrett J. Corneille Lauren S. Curtis CORNEILLE LAW GROUP, LLC TRAUB LIEBERMAN STRAUS & 7618 Westward Way, Suite 100 SHREWSBERRY LLP Madison, Wisconsin 53717 360 Central Avenue, 10th Floor St. Petersburg, Florida 33701

Christopher Scott D'Angelo Evelyn Fletcher Davis MONTGOMERY MCCRACKEN WALKER HAWKINS PARNELL THACKSTON & & RHOADS, LLP YOUNG LLP 123 S. Broad Street 4000 SunTrust Plaza Philadelphia, Pennsylvania 19109 303 Peachtree Street NE Atlanta, Georgia 30308-3243

Francis J. Deasey Elizabeth A. Fitzpatrick DEASEY, MAHONEY & VALENTINI HURWITZ & FINE, P.C. 1601 Market Street, 34th Floor 535 Broad Hollow Road, Suite B-7 Philadelphia, Pennsylvania 19103 Melville, New York 11747

Joseph M. Guillot James D. Holland CHRISTOVICH & KEARNEY, LLP PAGE KRUGER & HOLLAND, P.A. Pan American Life Center 10 Canebrake Boulevard 601 Poydras Street, Suite 2300 Suite 200 New Orleans, Louisiana 70130-6078 Jackson, Mississippi 39232-2212

Derek D. Lick Jane A. North SULLOWAY & HOLLIS, PLLC PHILADELPHIA INSURANCE COMPANIES 9 Capitol Street, P.O. Box 1256 One Bala Plaza, Suite 100 Concord, New Hampshire 03302 Bala Cynwyd, Pennsylvania 19004

G. Bruce Parkerson Kurtis B. Reeg PLAUCHÉ MASELLI PARKERSON LLP REEG LAWYERS, LLC 701 Poydras Street, Suite 3800 One North Brentwood Blvd, Suite 950 New Orleans, Louisiana 70139 St. Louis, Missouri 63105

Gregory B. Scher Joyce C. Wang WOOLLS & PEER CARLSON, CALLADINE & PETERSON LLP One Wilshire Boulevard, 22nd Floor 353 Sacramento Street, 16th floor Los Angeles, California 90017 San Francisco, California 94111

John P. Rahoy Gregory A. Witke BROWN & JAMES, P.C. PATTERSON LAW FIRM, L.L.P. 800 Market Street, Suite 1100 505 Fifth Avenue, Suite 729 St. Louis, Missouri 63101 Des Moines, Iowa 50309

The FDCC thanks Marilyn Pedraza for all her support and assistance with the Manual and the Boot Camps.

Introduction

The Federation of Defense & Corporate Counsel, founded in 1936, is an invitation only organization that consists of accomplished defense attorneys, corporate counsel, and insurance industry executives who have achieved professional distinction during their careers. The FDCC attracts the top echelon of private practitioners as well as the best in- house litigation managers and general counsel from both the insurance industry and corporate America’s law departments. Innovative programming and superb networking are our hallmarks.

Pursuant to that, the Deposition Boot Camps are designed to allow young lawyers to learn how to prepare for, take and defend all types of depositions from a remarkable group of lawyers who are FDCC members by virtue of having reached the top of our profession. Your hands on experience, the manual you will receive, and the contacts you make during your training will all contribute to making you a better lawyer – for yourself, your firm, and your clients.

Victoria H. Roberts FDCC President Meadowbrook Insurance Group

TABLE OF CONTENTS

The Purpose of Depositions – Dos and Don’ts 1-10 By: K. Marc Barré, Jr.

Video Deposition Dos and Don’ts 11-22 By: Evelyn Fletcher Davis

Examination of Plaintiff 23-34 By: Kurtis B. Reeg

Examination of Lay Witness 35-46 By: Victor R. Anderson, III

Examination of the 30(b)(6) Witness 47-55 By: Christopher Scott D’Angelo

Examination of Expert 56-63 By: Jane A. North

Preparing the Corporate Client for Deposition 64-72 By: Joyce C. Wang

Defending the Corporate Client Deposition 73-82 By: Gregory B. Scher

Use of Documents at Deposition 83-96 By: John P. Rahoy

Technology and Depositions 97-107 By: Francis J. Deasey

Objections to Raise at Deposition 108-112 By: Joanne T. Blackburn

Dealing with Difficult Opposing Counsel 113-121 By: Joseph M. Guillot

Laying the Foundation for a Summary Judgment Motion 122-132 By: Elizabeth A. Fitzpatrick

Laying the Foundation for Cross-Examination at Trial 133-139 By: James D. Holland

Use of Depositions at Trial 140-154 By: Barrett J. Corneille

Ethical Questions – How Far Can You Go Preparing a Witness/ 155-163 Questioning a Witness? By: Stacy A. Broman

Examination of Doctors 164-171 By: Gregory A. Witke

Examination of Liability Experts 172-179 By: G. Bruce Parkerson

Examination of Damages Experts 180-188 By: Derek D. Lick

Cross-Examination at Deposition 189-195 By: Lauren S. Curtis

THE PURPOSE OF DEPOSITIONS – DOS AND DON’TS By: K. Marc Barré, Jr. and Drew Timmons

I. PURPOSE OF DEPOSITIONS

Depositions in civil matters are governed by the Federal Rules of Civil Procedure 26 through 32 or your state’s civil practice and procedure rules or statutes (e.g., in Georgia, O.C.G.A. §§ 9-11-26 through 32). A majority of states have civil procedure rules which closely follow, or mirror, those of the Federal Rules of Civil Procedure, but there can be significant differences. As will be discussed in detail in this chapter, and throughout this manual, the purpose of depositions can vary somewhat depending on the type of case in which you are involved (contract, slip and fall, toxic tort, automobile accident, etc.), and/or the witness being deposed (party, fact witness, corporate representative, expert, etc.). However, the general purpose for taking depositions is the same in any case: (1) collect information; (2) pin the witness down to a certain version of events; and/or (3) preserve sworn testimony for later use.

A. COLLECT INFORMATION

The general purpose of every deposition, no matter which witness you are deposing, or how you may end up using the testimony the witness provides, is to collect information. The information may be good. The information may be bad. You must, however, obtain as much information as possible in order to avoid surprises as you prepare your case for trial, to learn the facts and circumstances which led your client to be involved in this suit, and to prepare your client and your case for this particular witness.

1. WHAT’S YOUR STORY?

The most important goal for any deposition is to figure out exactly what the witness you are deposing is going to say at trial. You must determine what he or she honestly believes happened, and if you cannot secure that, at least decipher what he or she wants you to believe happened. When it is all said and done, the witness’s version of the truth is really what you need. Everyone is familiar with the situation where two people were present at the same event but came away with completely different versions of what took place – the “he said/she said” scenario. As you continue to practice, you will undoubtedly see that this happens, and it does not necessarily mean that one person is lying, although sometimes it does. In any case, you must explore what each particular witness has to offer without assuming anything about what information they plan to give you. In that respect, at least in discovery depositions, you must be able to ask questions which provide you with both good and bad facts for your case, and explore the details of the witness’s answers in a manner which will provide you with sufficient ammunition moving forward.

Page 1 2. GOOD FACTS

If you can, begin your deposition with the good facts – those are the questions you will have prepared in your outline and the ones to which you believe you know the answer. Starting your deposition with these questions will also allow you to get into a comfort zone with the witness. For example, in a deposition of the plaintiff, find out if plaintiff’s version of events actually supports the claim he or she raised in the Complaint. Before deposing a plaintiff, or any witness who may be able to support plaintiff’s version of events, review the allegations contained in the Complaint, and discovery responses, if available, so that you truly understand the specific claim being raised. Then, draft your deposition outline with an eye toward obtaining facts regarding the specific elements of each claim (i.e., what does the plaintiff need to prove in order to prevail?). The more information you obtain from the Plaintiff about the circumstances of the incident, the better you will be able to craft your defenses. Similarly, make sure you have explored the potential defenses available to your client, and ask as many questions as possible from the witness to obtain testimony which supports those defenses. With this foundation, you will be able to extract the most relevant information from every witness, expert and fact witness alike.

In every case there will be at least a few facts upon which everyone can agree. In that respect, ask the questions to which you already know the answer – was it raining that day? Was it dark outside? How long did you work for that company? Did you take an ambulance from the scene? Was the store busy at the time of the fall? By exploring these items, especially with an eyewitness or a plaintiff, you and your opposing counsel can make note of the stipulated facts regarding the incident, and you will not need to waste time attempting to prove these items at trial. Establishing facts like these will also help you with the depositions of expert witnesses later in discovery, since you will need to know the facts upon which they will base their ultimate opinions.

In addition to the facts surrounding the incident, you must also collect information about the witness’s background, past medical history (if appropriate), and education and occupational experience (these are especially important in the case of an expert witness). Find out how he or she generally spends their time, including what social activities or groups in which they are involved. Oftentimes, you will discover something in a plaintiff’s past like a previous lawsuit or two, a previous serious injury, or an arrest or conviction. Even better, you may discover that a plaintiff’s key fact witness had been drinking until 3 a.m. the night before the incident, or that the witness’s daily activities involve highway graffiti or Ponzi schemes. These items can be useful in attacking the credibility of the witness down the road if his or her testimony raises questions about your defenses or otherwise supports the plaintiff’s claims. Finally, if you know what kind of educational or occupational background the witness has, you will be able to combat any attempt by a witness to offer opinions which may be outside of the scope of their knowledge or experience (e.g., lay witness attempting to offer expert opinions on medical causation, traffic speed, etc.).

Page 2 3. BAD FACTS

Unlike cross-examination at trial, depositions are also the right place to ask questions about the “bad” facts. In a discovery deposition, you cannot avoid talking about the facts that will hurt your case. On the contrary, you must explore these bad facts in addition to the good facts so that you will be prepared to defend against and reduce the sting of those facts at trial. For example, in a personal injury case, find out how badly the plaintiff was hurt, even if it ultimately brings you to tears. If your client apologized and admitted fault at the scene, you need to know that too. Be assured that if the facts are truly good for the other side, the plaintiff’s counsel will find a way to bring them out if you do not. Ultimately, the plaintiff will present the worst facts about your client and your case at trial, and if you have never heard them before, you will have no way to respond to them. Moreover, if you are unable to uncover the bad facts during a deposition, your opposing party will be able to control references to those bad facts through affidavit testimony in summary judgment briefs, which may cost you an early judgment in your client’s favor. By asking questions to which you do not know the answer and which may reveal bad facts, you can better evaluate the case for your client and better prepare your defenses, and perhaps determine how to exclude such evidence at trial. The more information you can obtain, the better, even if the information is negative for your client.

The one exception to the rule of generally exposing “bad facts” during a deposition is in the circumstance of an evidentiary deposition. Unlike discovery depositions, evidentiary depositions are typically used as a substitute for trial testimony. In those circumstances, what you do not know can hurt you. In an evidentiary deposition, you should limit yourself to questions to which you already know the answer, and which present the best version of your case, as you would typically do in a trial setting.

4. IMPRESSION OF THE WITNESS

One final piece of information which you will need to collect at a deposition is how a witness will appear to a jury. This includes how the witness presents her version of the story, e.g., how many details she remembers from that day, what she thinks is important, and what emotion is behind particular facts. It also includes how the witness responds to tough questions -- whether she becomes agitated or defensive when you discuss disputed facts, and how genuine she may appear. Furthermore, how is the witness dressed and is she polite? These simple facts can ultimately turn a case, and your client needs to know your impression of this person as a witness in order to evaluate the strength of your case. A bad witness can easily cancel out good facts, and vice versa.

B. PIN THE WITNESS DOWN

As touched on previously, one of the primary purposes of a deposition is to find out the witness’s or party’s version of events. In the same way, a deposition is also the place to pin the witness down to that version of events so that you do not end up getting a different version later, or if the witness does change her story, you can use the deposition testimony for

Page 3 impeachment. When preparing for a deposition, especially the deposition of the opposing party, you must have a complete understanding of the facts and available evidence relevant to each claim. This information will come from your file, a claim file which you may obtain from an insurer or other corporate records. It also comes from the complaint, pleadings filed, and written discovery and documents exchanged by the parties prior to the deposition. Review these documents carefully and prepare an outline which will guide you during the deposition. Make sure that you have reviewed the facts of the case with your client and any friendly witnesses, so that you are aware of what information can be obtained from the witness you are preparing to depose. Reviewing these materials will also allow you to make sure the witness is consistent in his responses, or confirms the truth of one and not the other. It is not uncommon for deposition testimony to vary greatly from interrogatory responses. One was carefully drafted by the plaintiff’s own attorney, and the other was extracted during a question and answer session by a very well-prepared defense attorney.

The more facts you can cover with a witness, the better position you will be in when you examine the witness for a second time at trial. While it is difficult to cover absolutely everything, it is not impossible, and there are attorneys who will take several hours to depose a witness who seemingly knows almost nothing. The less you leave out, the less that witness can use to explain or change his or her testimony at a later date. For example, in a car accident case, if the witness tells you that the light was green when your client went through the intersection, ask the witness what he was doing when he saw the light, whether he was listening to the radio or distracted by anything in the car, and why he remembers your client’s vehicle. The answers to these questions will solidify the testimony. In addition, if that witness later appears at trial and attempts to say that the light was red, or that he was not sure he saw the light, you can use the details of his previous testimony to destroy his credibility. The alternative is that you obtain testimony that the light was green, but the other side is able to obtain testimony on cross-examination at trial that the witness actually looked down at his radio just as the accident happened. The worst thing that can happen during a deposition is that you find out that the witness is not actually worth as much as you thought, or that she is not a witness you want to call at trial at all. If the witness is going to be a star for the other side, any competent opposing attorney should be able to discern that fact without your assistance.

Do your best to secure the clearest answers from the witness. When asking about the speed of a vehicle, get as close to an actual “radar gun reading” as you can. If the witness tells you that the car was moving “quickly”, find out what “quickly” means to the witness. Was the car moving more or less than 35 miles per hour? Try starting with a range of speeds (e.g., was it closer to 100 mph or 2 mph?) and narrow the gap until the witness is no longer comfortable answering the question. The closer you can get to a specific number, especially after a barrage a questions, the more the witness will look like she is lying if she tries to change her answer later. Attempt to do the same thing with financials (e.g., medical expenses, lost income), physical exercises (e.g., miles per day, classes per week), bad habits (e.g., smoking, drinking), and anything else that the witness may be able to quantify. What may appear to be an insignificant detail will often allow you to “trap” the witness into a narrowly constructed version of the events. This not only makes you confident in the story the witness will tell at the trial, but it

Page 4 also makes your job easier when it comes to trial preparation. The more you cover now, the more focused you can be during the trial.

While pinning the witness down is a fairly important goal for a deposition, keep in mind that your opposing party is also likely represented by seasoned or competent counsel, and the witness has likely been coached not to speculate or guess. As such, you may not be able to secure specific answers on every point. However, a witness’s hesitancy to speculate during a deposition can also work as an advantage. If you find yourself in this position with a witness, make sure you obtain a good record of the plaintiff’s inability to remember – ask the question in more ways than one. That way, if the witness suddenly remembers at trial the important detail for which you were searching in the deposition, his or her previous testimony will certainly call the witness’s credibility into question with the jury.

C. PRESERVE THE USE OF TESTIMONY

The last general purpose of depositions is to preserve sworn testimony prior to trial. Once a record is made of the testimony, the parties are free to use it in motions, and can also choose to use the deposition testimony in place of live witness testimony at trial. Especially when it comes to motions, deposition testimony is the best evidence available – the questions are crafted by the attorney and they require mostly unprepared responses by the witness, so it is much more likely than interrogatory responses or other discovery to contain helpful evidence.

1. USE IN MOTIONS

For the majority of witnesses, the primary use for their testimony will be in motions, and for defense attorneys, most likely in a motion for summary judgment. Before taking a deposition, the first step is to carefully review the pleadings and discovery exchanged by the parties in order to determine the specific claims and defenses raised. Then, draft an outline of what the plaintiff needs to prove in order to prevail on her claim, and what the defendant needs to prove in order to be successful on a particular affirmative defense. Generally, upon receiving a new complaint and reviewing the available documents surrounding the claim, you should be able to form a general concept of whether a motion to dismiss or motion for summary judgment may be appropriate. Especially if the claim is one that may be appropriate for summary judgment, in addition to reviewing the pleadings, you should also review available treatises and even conduct additional research regarding similar claims, so that you are not only familiar with the specific elements of the plaintiff’s claims, but also the relevant law governing the type of evidence which may be used, or which is necessary to prove each element of those claims. Another good rule of thumb is to make sure that you are familiar with any specific language applicable to the claims or defenses, such as “constructive knowledge,” or “reasonable degree of medical probability.”

Armed with the knowledge of what the plaintiff must be able to prove in order to be successful, you can enter the deposition with a specific goal. In addition to all of the

Page 5 information previously discussed, you must also be sure to ask, and appropriately phrase, specific questions relating to the elements of the plaintiff’s claims and your defenses, in order to create evidence which will support a subsequent motion. First, determine what evidence the plaintiff has available to support her claim. For example, in a slip and fall case in Georgia, in order for a plaintiff to recover, she must not only present evidence of a defect on the subject property which caused her to fall, but she must also present evidence that the defendant had actual or constructive knowledge of the defect. In this particular circumstance, specific questions to ask may include: Did you actually see the puddle of water on the floor? If not, did anyone else see it? Did anyone actually witness you fall? Can you provide me with any information about how long the puddle may have been on the floor? Do you know, as you sit here in the deposition, what actually caused you to fall? If the answer to any of those questions is “no”, you may have just laid the groundwork for a potential motion for summary judgment. The more you know about what evidence the plaintiff must prove, the better you can craft your questions to expose the holes in the plaintiff’s case and ultimately provide a roadmap for a subsequent motion for summary judgment. Without those answers you may not have enough evidence to support a dispositive motion.

2. USE AT TRIAL

Another potential use of deposition testimony is in place of live testimony at trial. In an ideal world, each of your witnesses would be ready, willing, and able to attend the trial and testify live to the jury. The reason being that live testimony is more effective to a jury and is less likely to put them to sleep than is an attorney reading the transcript from a deposition taken months prior. However, in reality, very few witnesses are actually anxious to attend trial, and if you cannot compel their appearance with a subpoena, you will need to present their testimony another way.

There are mainly two types of witnesses whose deposition testimony is likely to be used in place of live testimony: (1) physicians or other professional experts; and (2) witnesses who live outside of the subpoena power of the Court or cannot otherwise be found. As a general rule, medical professionals do not have any desire to attend a trial, and unless they are a party to the suit or are being paid as a hired expert, they generally never do. Most attorneys will agree that in cases of personal injury, testimony of the plaintiff’s treating physicians will be presented by deposition testimony. The simple answer is that medical professionals have extremely busy schedules and cannot afford to take the necessary time to attend a trial. Even if a physician’s testimony supports your case, you will want to avoid putting a distracted or agitated physician on the stand, especially if you are the source of his agitation. As such, very often one or more parties will ask that a treating physician’s deposition be videotaped, so that the video can be played back to a jury, rather than read by the attorneys. This is a much more- effective use of deposition testimony at trial.

In addition to medical professionals, there are also witnesses whose presence cannot be compelled by the Court because they live outside of the Court’s jurisdiction or they otherwise cannot be found. For example, the federal rules provide that a subpoena may only command a

Page 6 non-party witness to appear at a trial which is within 100 miles of the witness’s residence or place of business. See Fed. R. Civ. P. 45(c)(1). If a key witness lives more than 100 miles away from where the case is pending, the best available option is to try to convince the witness to sit for a deposition at a time which is convenient for him, and thereafter utilize the deposition in place of the live testimony. Again, if you expect a witness to be unavailable at trial and believe the testimony is important to the case, a video deposition may be appropriate. If there is a chance that a witness may run away, either due to related or unrelated criminal issues, deportation issues, etc., it is a good practice to obtain the deposition as quickly as possible after the case is filed.

Finally, depending on the specific evidentiary rules of your jurisdiction, there are also ways to use sworn deposition testimony at trial against a witness who is testifying live. Because you will likely comb through a witness’s deposition testimony in preparation for your direct or cross-examination of each witness at trial, you should be fairly familiar with it. If during your examination at trial, the witness changes his story, or adds to it, the federal rules of evidence (and likely your local state rules) will permit you to introduce inconsistencies in the witness’s prior deposition testimony in order to impeach his trial testimony. See, e.g., Fed. R. Evid. 613. This is one of the many reasons to attempt to pin down a witness to a specific version of events in his deposition.

II. DOS AND DON’TS OF DEPOSITIONS

As you begin arranging and preparing for depositions, and even taking depositions on your own, there are a host of tips which you can learn which will assist you to be more efficient and proficient with your depositions. The bad news is, at least for most of us, many of these you may not learn until the court reporter is taking down every word you say. In the meantime, below are a few “dos and don’ts” which have proven helpful.

A. COOPERATION WITH OPPOSING COUNSEL

Do cooperate. This sounds like a small thing, and to a certain extent, it is. But it truly will make a difference in how you are able to control the pace and attitude of your case as you move through the discovery period and leading up to trial. Always work with your opposing counsel to find agreeable dates to take depositions. Not only is it the professional and ethical thing to do, it is also the right thing to do for your client. Unless you have no other choice, don’t unilaterally notice depositions. Most lawyers have extremely busy schedules, some of which include court conflicts from which an attorney cannot be removed. This type of litigation tactic may provide you with a slight advantage in the short run, but petty arguments with opposing counsel over deposition dates will always come back to bite you.

B. PREPARATION

Do prepare. It cannot be said enough – preparation is absolutely necessary. Your practice may involve a hundred car accident, slip and fall, or toxic tort cases a week, but each

Page 7 one is unique, and so are the parties and witnesses involved. The better you know the facts regarding the incident before you step into the conference room for a deposition, the more efficiently you will be able to direct the witness’s testimony to the important points, and be able to question any testimony which does not fit the facts as you understand them. Likewise, if you are familiar with the legal standard governing the plaintiff’s claims, and the specific elements and evidence required for the plaintiff to be successful, you are much more likely to obtain the testimony you will need to file a dispositive motion or win the trial down the road. It may sound tedious, but you must review the pleadings and written discovery before each deposition so that your attention is focused. It is also a good practice to prepare a detailed outline for every deposition, which at the very least touches on every topic, if not specific questions, to be addressed during the examination. Don’t think you know how the testimony is going to play out because you have handled a similar case in the past – each case is different and requires the same preparation. Often it is the question that you would not have thought was necessary which leads you to the answer you need. A mere “glance-over” type preparation will never yield the same result for you or your client.

Do prepare your witness. In the same way that you must prepare to take a deposition, when defending a deposition, be sure to prepare your witness. Especially when the witness is a party, he or she must be prepared for the circumstances and procedure of the deposition and the type of questions you might expect from the opposing attorney. Long before the deposition is scheduled to take place, set aside time for your client to meet with you and go over the facts in the case and his or her specific role. Is this witness the named party or is he merely a corporate representative? If he is an employee or officer of a corporate defendant, to what role is he limited in the deposition? Additionally, make sure he knows that he should not try to outsmart the questioning attorney. The number one rule for every witness is to tell the truth. Make sure your witness knows that he will not be able to talk the opposing counsel out of his case.

C. OPEN-ENDED QUESTIONS IN DISCOVERY DEPOSITIONS

Do ask open-ended questions in a discovery deposition. Experienced lawyers will advise their younger attorneys, “Depositions are not the trial. We just want to know everything that this person could possibly tell us, so do not be afraid of the answer.” A discovery deposition is the time to hear what the party or witness is going to say, and it is really the only opportunity you have to control how much information he or she provides. Don’t avoid bad facts. By exploring the bad facts, you can better understand the facts and figure out ways to use them to your advantage. Or, if the fact is one which cannot be spun, you at least have an opportunity to prepare a response and minimize the effect of the bad fact on your case. Not knowing is always worse than knowing.

D. LISTEN

Do listen. Preparation is key, and a deposition outline with a list of topics and specific questions is advised. However, your questions in a deposition should be dependent on the

Page 8 answers you receive to each preceding question. Often a witness may provide you with a “golden nugget,” an answer you did not expect and which may change the course of the case. If you are not listening or are not prepared, you may move away from the subject matter too quickly and fail to explore the details of the answer provided by the witness. Usually, the answer to a question will guide you to your next question. Accordingly, while having an outline is extremely helpful, don’t rely too much on it. Not only will it distract you from the answers provided by the witness, it may also create a disconnect between you and the witness if you are constantly looking down for the next question. Make sure the witness actually answers the question you ask. If you are not listening carefully, a witness may respond inadequately or evasively. If you are just methodically moving through your outline, you may fail to extract an answer from the witness which you can actually use.

Do tell your witness to listen. While attorneys are certainly notorious for anticipating certain questions or answers, witnesses are equally as bad. When defending a deposition, coach your witness to listen carefully, make sure he understands the question before responding, and only answer the question asked. The last few words of a question can change its meaning, and your witness must be willing to wait until the attorney is finished. Don’t allow your witness to think that if he answers quickly and provides as much information as possible with each answer, the deposition will end sooner – the opposite is almost always true.

E. BE STUBBORN, BUT NOT UNREASONABLE

While a majority of depositions can be conducted without any arguments between counsel about the discoverability of specific evidence, or the subject matter of specific questions, there are other cases where objections take up more of the transcript than the testimony. If you are dealing with an overzealous or objection-happy attorney, or with an evasive or argumentative witness, you must be calm, but also determined and stubborn about getting the answers to relevant questions. If the attorney is unreasonably interfering with your examination of the witness, you must make a clear record of those issues on the transcript, in case you need to seek the intervention of the court. Listen to objections from your opposing counsel, and if you cannot understand the objection, ask him to explain it. If the objection is well-founded, rephrase the question. Do the same thing if your opposing counsel instructs his witness not to answer what you believe are relevant questions. As a rule, you should never allow a witness to take a break from a deposition to confer with counsel if there is a question pending. Request that the witness answer the question and then take a break. If the opposing counsel’s objections are unfounded, or the witness is unreasonably withholding information, don’t stop until you have gotten an answer.

F. KNOW WHEN TO STOP

Finally, there is one exception to the rule that you should ask as many questions as possible and leave no stone unturned. When you have secured the answer you want, don’t revisit the question. Every now and then, you will ask a question that is key to your defense, and the witness will provide you with the exact answer for which you were hoping. When this

Page 9 happens, move on. Go to the next topic in your deposition outline. If you get too excited or flustered and try to ask additional questions on that subject, the witness will often realize the mistake and attempt to clarify, explain, or otherwise change the answer. Don’t give the witness that opportunity.

III. CONCLUSION

Depositions are an integral part of the practice of law, especially when it comes to the defense of civil suits. Depositions provide attorneys with the information necessary to obtain early judgments through motion practice, properly evaluate and settle a case, or otherwise prepare for trial. While each individual case is unique, the key goal for a deposition is clear – find out what information is out there that is going to help you, and find out what information is out there that is going to hurt you. Your strategy for defending the plaintiff’s claims and every action you take in the case leading up to trial will originate from the information you can obtain in a deposition.

Page 10 VIDEO DEPOSITION DOS AND DON’TS By: Evelyn Fletcher Davis

Right now, your future jurors are being pummeled with images from the media, YouTube, Flickr, Tumblr, Facebook, and countless television shows, both reality and scripted, of how “popular culture” thinks they should look, be, and act. Whether it’s how you should look, how you should dress, what kind of fancy foreign car you should drive, how big your house should be, or what “hip” music you should download, our non-stop, 24-hour news and entertainment cycle lets the public know how things are supposed to look and sound. And, rest assured, your jurors are being told how lawyers and trials should look and sound as well. From Suits, The Practice and Law & Order to Nancy Grace and TruTV, your jurors-to-be are indoctrinated to believe that courtrooms are full of drama and passion, and that lawyers are all “gorgeous demi-gods.” But the truth, as jurors frequently tell lawyers after trials, is that trials and courtrooms, even in the most salacious cases, are by-and-large dull affairs. Attorneys drone on seemingly endlessly, and their witnesses mumble their way through mind-numbingly boring testimony. Perhaps this is why lawyers are so frequently exhorted to USE TECHNOLOGY! at every turn - because our jurors expect high-tech, slick-packaged productions even (or particularly) when they step into a courtroom. And what is duller than watching and listening to a lawyer and their expert witness drone and mumble on about the intricacies of the patent process? Watching and listening to that same exchange on videotape.

So, the purpose of this chapter is to provide you with some tips for making your videotaped deposition live up to the expectations of the modern juror when it is played for them in court. These tips are for both the attorney and their witnesses, as appropriate, and are split into two categories: technical tips and stylistic tips. The technical tips focus on preparation for the deposition and are lawyer-oriented, while the stylistic tips consist of advice in light of a video deposition’s ultimate use at trial and will hopefully assist attorneys and their own witnesses as well.

A. INTRODUCTION: To videotape or not to videotape . . . that is the question.

To determine when to videotape a deposition, one must understand the purpose of videotaping a deposition; that being, to preserve not only the verbal testimony of the witness, but also the entire surroundings of the testimony to be played for a jury at a later date. If you want a jury to see the full picture, from the solemn and professional demeanor of an expert witness (whose testimony may be replayed in several trials) to the memory lapses and facial expressions of a plaintiff or fact witness (who may not survive until the day of trial), the cold written transcript simply will not do.

Oftentimes, it may be difficult to determine in advance whether videotaping a deposition is necessary or advantageous. In other words, you may ask yourself: will my witness perform so poorly on videotape or will the opposing party’s witness perform so well on videotape that it damages my case? As a practitioner, you can alleviate concerns about the first

Page 11 possibility by preparing your witness to be deposed on videotape and you can assume that an opposing party’s witness will always be better prepared for actual trial testimony than for deposition testimony and will likely be more “unvarnished” in a non-courtroom setting with an unobtrusive camera across the room, as opposed to being in courtroom packed with lawyers and jurors, all of whom are staring at them. But, the ability to capture the well-prepared testimony of your witness and the “unvarnished” moments when an opposing witness struggles with their memory or lets their bias show through is what makes the added expense of a videotaped deposition worthwhile.

Consider this lesson from a recent deposition. The deponent was the plaintiff in a wrongful death action, alleging that his father had died as a result of an asbestos-related disease contracted due to exposure to asbestos from automotive friction products. The deponent was a pleasant enough older gentleman, who was well-spoken overall, but two things became noticeable about his testimony early on in the deposition. The first was that he spoke about his father with absolutely no emotion whatsoever. The second, perhaps more important element, was that he frequently used facial gestures and body language that indicated he was guessing at answers or naming defendants’ products because he thought that was what he should do. In one moment, in particular, the deponent was being questioned by a defense counsel that represented “Brand X” automotive brakes, about the types of brakes his father used at a particular auto repair shop he had worked at when the deponent was a boy. The attorney asked about the brand of brakes used, and the deponent, clearly struggling with his memory of an isolated time period nearly 45 years ago, looked around, huffed, screwed his face up, and then after several seconds finally shrugged his shoulders and threw his hands up in the air and said “Brand X brakes.” The clear implication being, “I don’t remember, but I might as well say your client’s name since you are sitting here.” Any juror watching that on videotape would understand the facial expressions and body language of the deponent to mean “I’m guessing,” even though the written transcript would read as follows:

Q: When you saw your father doing brake work at his shop, what brand of brakes did you see him using?

A: Brand X.

The words are the same on both the videotape and written transcript - nothing has been omitted - but, the difference in impact between the two depictions of the same testimony is night and day. The same can be said of a videotaped deposition of an engaging, professorial expert witness’s testimony, as opposed to the dry transcript of some PhD using excessive jargon and complex verbiage. These are considerations to keep in mind when determining whether or not to videotape a deposition. However, once the determination has been made, either by you or for you, that a deposition will be videotaped:

Tip #1: ASSUME that the video recording will be seen by a jury. Most of the tips below flow from this one simple tip – keeping this in mind will put the rest of this chapter in context.

Page 12 B. TECHNICAL TIPS: Increase production value before the camera rolls

We all know the way to Carnegie Hall is to “practice, practice, practice,” but every attorney should know that the way to success in the courtroom, and by extension the videotaped deposition, is to “prepare, prepare, prepare.” Certainly any attorney, experienced or otherwise, can pick up a file for the first time the night before a deposition, rush into the court reporter’s conference room five minutes before the deposition is to start, fly by the seat of their pants and wing it through the deposition - but that is for the birds. A successful deposition starts with preparation, not just of the facts and the questions that make up the meat of the deposition, but just as important are all the small details that go into making a videotaped deposition that will increase the value of the witness’s testimony - details that require planning and preparation long before the camera begins to roll.

Tip #2: Dress appropriately for the occasion. This tip applies particularly to the witness, as the attorney will not typically be in the camera view; however, the attorney should dress commensurate with the seriousness of the deposition and the litigation. Remember, depositions, and videotaped depositions in particular, are extensions of the courtroom. While this is not to suggest that courtroom attire is always appropriate for a deposition, depending on the level of formality amongst attorneys in your jurisdiction, it does make a rather poor statement to ask a witness to dress appropriately for a courtroom appearance and then, as the attorney, to show up in frayed jeans, a Ron Jon™ t-shirt, and flip-flops.

The witness should be instructed to wear what is considered appropriate courtroom attire; that being, clothing that will convey to the court and the jury that the witness is serious, professional, credible, and honest. For an expert witness, a coat-and-tie should be considered as appropriate attire. A lay witness should be instructed to wear comfortable clothing that leans more toward the solemn or formal, i.e., clothing the witness might wear to church, to a “business casual” or “classy casual” event, or to work. If your witness is an auto mechanic, for instance, you do not want to tell the witness to “wear what you do to work” and have the witness show up in grease-covered coveralls. Conversely, you do not want to tell the same witness to wear a suit-and-tie and have the witness be visibly uncomfortable during the entire deposition. Discuss clothing options with your witness in order to come to a decision on what attire the witness will be comfortable in, yet will convey the appropriate message to the jury.

From a purely aesthetic standpoint, be sure to have your witness wear “camera-friendly clothing.” Since most videotaped depositions will focus on the upper body and face of the witness, it is important that the witness choose colors and patterns for shirts that do not wash them out or become a distraction to someone watching. Colors to consider for shirts are cool blues, natural tones, and pastels. Shirt colors to avoid are white or black (which may cause the camera to under or overexpose other colors), or “hot colors” such as red, hot pink, orange, or bright yellows, purples or greens (which tend to bleed on camera). Avoid tight patterns, such as pinstripes, checks, or textured clothing, which cause the video to “dance” or “swim” and can be highly distracting to the viewer.i

Page 13 While obsessive clothing-control is not advisable, it important to consider the choice of attire for attorneys and, in particular, witnesses who will appear in front of the camera. Taking just a few minutes to discuss and select proper attire in the days leading up to the deposition will pay dividends in the end product when the witness can successfully convey sincerity and honesty to the jury without saying a word.

Tip #3: Select your video location with production value in mind. Oftentimes depositions, video or otherwise, are scheduled to take place at the location most convenient to the parties, the lawyers, or the witness. That location might be a hotel conference room, a court reporter’s office, or even the deponent’s home. And frequently, these locations are selected sight unseen, which can create a whole host of issues from seating capacity to internet access to insufficient power outlets. For purposes of this discussion, however, we will assume that the geographic location of the deposition has already been selected in such a way that those issues do not come into play and will focus only on the physical location issues that will impact the videotaped deposition.

First, select the location for the witness to be seated in a way that will minimize background visual distractions and/or background noise. Do not seat the witness in front of windows, doors, or in a corner. The problems with those locations should be obvious. For one, it will eliminate a source of distraction and keep witnesses’ eyes from leaving the room. If there are outer windows in the room that cannot be fully darkened with blinds or curtains, take a moment to determine (or ask) where the rising and setting sunlight will enter the room through the window as it may create glaring light or dark shadows at certain times of day. The loss of natural light caused by windows darkened by blinds or curtains will more than be compensated for, if necessary, by the lighting equipment provided by the professional videographer. With glaring klieg lights, however, be sure to consider the glare from a deponent’s eyeglasses or nearby objects and ensure the videographer adjusts the angles of the lights and the camera appropriately to avoid this problem. Also, nudge the thermostat down a few degrees just prior to the start of the deposition - the hot lights and hot seat of the videotaped deposition will need to be offset by a little extra air conditioning. You do not want the witness dripping with sweat in response to your questioning (except, perhaps, for a hostile witness).

One other distraction to be sure and eliminate when selecting where the witness will sit is the witness’s chair. No, do not remove the chair altogether and have the witness stand or sit on the floor, but be sure the chair used by the witness is not too high-backed that it appears to envelope the witness. This will make the witness appear small and insignificant, or like royalty sitting on a throne. Also ensure the chair is not one that swivels or rocks easily and excessively. Nothing is more distracting or annoying for a juror than watching a witness, live or on video, rocking and turning back-and-forth while testifying.

Windows and doors also present the problem of sound penetration from vehicle traffic, construction noise, or persons in adjoining rooms, etc., so be sure to note whether sitting the deponent near a window or door will cause outside noise to infiltrate the video. Prior to the start of the deposition, inform those who are outside of the room, but in the immediate vicinity

Page 14 (such as adjoining offices or conference rooms) that a videotaped deposition will be taking place for the estimated time necessary to complete it, and politely ask for their consideration. In the event that you find yourself taking a videotaped deposition in a location, such as a “conference center” hotel or other facility with multiple conference and seminar rooms or event spaces, be sure to speak with the management to find out what activities will be going on in the adjoining rooms during the taking of the videotaped deposition. You will certainly want to know if the ballroom next to your deposition space (and separated by a flimsy partition) will be hosting an awards luncheon or other activity that will encourage applause, laughter, or loud conversation. If so, do not hesitate to ask the facility management to post signs asking for quiet during the timeframe of your deposition. Reducing light and sound distractions as much as possible will allow you, the deponent, and the jury to focus only on the testimony being presented. Of course, if the deposition was noticed by another party, it may be best to have their attorney interact with the facility managers to avoid any appearance of meddling.

Tip #4: Make sure your “crew” - the court reporter and videographer - are confirmed and arrive at least 30 minutes early to set up, test equipment and do sound and light checks. This may seem to be superfluous in the age of professional court reporting and videography services, but the only law not subject to judicial activism is Murphy’s Law. In other words, if you neglect to confirm the services of the people who will make your video deposition happen, you run the unacceptable risk of having lawyers and witnesses show up at the appointed time, only to have to wait for what will seem like eternity while you scramble to get a court reporter or videographer at the last minute and at high cost. With deposition dates and times and, often, locations frequently changing due to the whims of attorneys’ schedules, ensuring that your court reporter and videographer are kept abreast of the latest and greatest information is essential.

Beyond knowing where to go and when, your crew should be instructed to arrive early to assess the location for light and sound issues and to set up their equipment so that it works in conjunction with each other and with the planned seating arrangement in the room. The space must be set up such that the court reporter can be close enough to the witness to hear the witness and take down the testimony, yet not be in the video frame or be close enough to be a distraction to the witness. Moreover, the videographer must have a clear shot directly at the witness with no obstructions or concern for the inopportune appearance of heads, hands, or other body parts of attorneys who may decide to move or stretch during the deposition. Keep in mind that the camera should be facing the witness, although the attorney doing the questioning should sit near the camera so that the witness is facing it without staring directly at the jurors.

Ensure that the placement of the microphones will be relatively unobtrusive, particularly if your videographer is still using larger stand microphones from the ‘80s, so that wires and microphones are not intruding into the video image. Perhaps most importantly, make sure that your crew tests their equipment after it is set up at the location to ensure that it works and that the sound and picture quality on the recording is ready for primetime. Even though equipment may have been tested prior to arriving at the deposition location or used

Page 15 without a problem the day before, it is axiomatic that when you do not test the equipment after set-up, the video gremlins will create havoc for you, making everyone’s day much longer. Again, a professional videographer and court reporter will know to do these things, but a well- prepared attorney should also know to do them in order to ensure that they are done beforehand. Nobody wants to be sitting around in a conference room, tapping their fingers and wasting time because of the dreaded “technical difficulties.”

Tip #5: Have water on hand for you and the deponent. Do not discount or fail to prepare something so obvious, yet so necessary, as having something on hand for both the questioner and the deponent to sip on during the back-and-forth of the deposition. Regardless of time, place, or circumstance, even the most sure-voiced speakers discover that when they begin to talk for long periods of time, they inevitably experience the “frog in the throat,” the “tickle,” dry mouth, or the sudden unstoppable cough that makes continued and focused conversation impossible. Even if the witness avoids these conspicuous distractions, their voice may subtly deteriorate without enough water which may be distracting – or even unnerving – to the jurors. While comfort breaks are certainly allowed during depositions, keeping water on hand can prevent a sudden stop in the video deposition followed by an unexplained break. This break may seem not only awkward to the viewer, but may also potentially give the appearance that the deponent needed time to gather their thoughts or get their story straight based upon the line of questioning.

In addition to simply having water (or cola or coffee, if that is the witness’s or attorney’s preference) on hand, for the deponent, the beverage should be literally at hand. That is, the beverage should be close enough that it is within simple arm’s reach, yet far enough away that it is out of view of the normal camera angle shots. The witness should be able to reach the water and take a quick sip without moving out of the camera shot or disrupting the flow of the deposition. It is preferable that the water or other beverage be placed in a nondescript container, like a paper or Styrofoam cup or a glass, rather than in its original container - to avoid appearances of “product placement” - or in a garish personal tumbler or coffee mug. No juror wants to see the witness’s “Virginia is for Lovers” coffee mug.

Other items to consider having on hand for depositions are tissues (if there is a possibility that the witness will become emotional when testifying) and reading glasses (a witness cannot review documents that he or she cannot see). On the flip side, be sure to remove any documents, paper, or pens and pencils from in front of the witness, unless and until necessary for their testimony, to avoid finding out after your video deposition has begun that your witness likes to fiddle with objects or doodle when they get nervous. If there are documents or items that the witness will be required to review or refer to during the deposition, the attorney should keep them close by, but out of reach of the witness, until they are needed. Not only will this avoid the potential for nervous fingering of paperwork, but will also prevent the witness from looking at documents and appearing to be testifying from documents, rather than from memory. These considerations will allow for a smooth and natural deposition, free from unnecessary distractions or diversions. Remember that, unlike live testimony or a written transcript, the camera in a video deposition focuses unwaveringly on

Page 16 the witness and will highlight any distractions that might otherwise go unnoticed. There is a reason for the old saying, “the camera doesn’t lie.”

Tip #6: Relax. Before you start the cameras rolling, do your best to put your deponent at ease, as they will likely be much more nervous or anxious about the deposition than you will be. Start by introducing yourself and having the witness take a deep breath. If you and the witness are not familiar with each other, and try to engage in some light, non-case related banter (e.g., “Did you see the ______{insert local sports collective here} game last night?” or “Wow, this sure is ______weather we are having?”). A few minutes of small talk will give the witness time to get a feel for you and for the space, and will prepare them to engage in a more serious conversation with you once the deposition begins. Also, let the witness know, if you have not previously done so, generally what you will be asking them about so that they do not feel blindsided once the camera is on, and remind them that there are no “right or wrong answers,” that you simply want their best testimony about the subject matter.

Once you have established at least a basic level of rapport with the deponent, give them a few quick video-specific instructions to remember during the deposition: (A) sit up straight and don’t slouch; (B) don’t rock or swivel in the chair; (C) speak clearly, slowly and naturally; (D) look at the questioner when you speak, rather than directly into the camera; and, (E) breathe. Though it may sound trite, a little small talk, some smiles and laughs, and a few words of encouragement will make the beginning of the deposition feel like less of a sudden start and more of a continuation of a conversation and will make difficult questioning later in the deposition seem less intrusive or hostile.

Tip #7: Silence all smart phones! Or, even better, turn off all smart phones! We all know how important our smart phones are as tools to help us do our jobs more effectively and efficiently. However, having a smart phone on during a videotaped deposition could create serious distractions that affect not just the taking of the deposition, but also a jury watching the video at later proceedings. During the early years of cell phone usage, a phone ringing in court or in a meeting earned the offending phone owner several dirty looks and, depending on the setting, a stern admonishment. And woe to the owner of the phone who did not express sufficient remorse and embarrassment for the disturbance they caused. Turning off phones completely rather than silencing them can also avoid potential electronic interference with the microphones used to record the audio at the deposition.

When a jury is watching a videotaped deposition, which they will think of as a production, rather than a live witness who is capable of common error, they will certainly notice if a phone rings, a witness checks their screen, or an attorney must ask for a brief break in order to take (or ignore) a call. Thus, ensuring that all persons present at the videotaped deposition (witness, attorneys, court reporter, and videographer) silence their smart phones will alleviate the first major potential distraction of a ringing or beeping or annoying-song- playing interrupting the flow of questions and answers. Having everyone present turn off their smart phones altogether will prevent the second major potential distraction of a witness or other person stopping the flow of the testimony to follow the siren song of the blinking red

Page 17 light and check an email or text. Also, consider again that the camera is stationary and focused on the witness’s face, so if the witness is looking down at a smart phone to check messages or even to check the time, the jury watching the video will only see the witness constantly looking down or to the side. This will appear awkward and distracting at best, and nefarious at worst - a juror may assume the witness is looking at notes or something to assist them with their testimony. You do not want jurors speculating as to whether or not your witness’s testimony is based on something other than their own personal recollection or documents properly introduced during the deposition. “(Smart phone) silence is golden.”

Tip #8: Once the camera is rolling, make introductions, give basic instructions, and treat the witness with respect throughout the deposition. Though you have had time to chat up the witness to break the ice, remember that the jury needs to be brought into the conversation once the camera is recording. Start the videotaped deposition by introducing yourself, who you are and who you represent, and the purpose of the video. An example of how that introduction might go is:1

Good morning, Mr. Smith, I am Sly Cheatham, from the law firm of Dewey, Cheatham & Howe, and I represent XYZ Corporation, one of the defendants in this matter. This morning, we will be taking your deposition in the matter of Smith v. XYZ Corp., and I will be asking you questions for a while this morning, before some of the other attorneys ask you some questions. I’m going to begin by asking you a little about your background and your family, then I will ask about your medical condition and the reason for your lawsuit. Do you understand?

Following the brief introduction and road-map, give the deponent some things to remember - even though these may have been covered prior to the start of the recording - during the videotaped deposition:

Mr. Smith, this deposition is being taken down both by a court reporter, for a written record, and by a videographer, for a video record. During the deposition, please do your best to speak slowly and clearly, and keep your voice up as best you can. Let me know if you do not understand my question, and I will rephrase it. There will be times that our discussion here this morning will become quite conversational and when people are having a conversation, sometimes one person will talk over another or even finish another person’s sentences when they realize where the other person is going. But while that is okay for a normal conversation, it makes for a confusing written transcript and video recording. So, I tell you what, I will do my best to wait until you are finished with your answer before I ask my next question. In turn, I ask that you do the best you can

1 This is merely an example, and of course, there may be instances where you do not wish to immediately identify your client or you may wish to have a more abbreviated introduction.

Page 18 to wait until I have finished my question before you begin your answer. Can we agree to do that?

These two paragraphs illustrate not only a good introduction to a videotaped deposition, but also to the final part of this tip - always treat the deponent (and other attorneys attending the deposition) with respect. Refrain at all times during the videotaped deposition from raising your voice above what is necessary to be heard, from using profane, sarcastic, or slang verbiage, and from arguing with either the deponent or another attorney. If someone at the videotaped deposition conducts themselves in this manner, do not reciprocate or retaliate - when the mud flies, it makes all parties to the fight dirty. If you treat all others respectfully and weather any acrimonious moments with composure rather than reacting to it, any negative feelings that a jury may have which would hurt your cause will likely be negated by your professional demeanor. Conversely, if the witness is one hostile to your case and comes across as literally hostile, your sangfroid will make the impression of the witness on the jury even more negative.

C. STYLISTIC TIPS: Act like you are in trial in front of a jury

While sitting in a hot drab closet-sized conference room, it is easy to forget about your potential jury or even that the proceedings are being videotaped (hopefully the camera is behind you and out of your line of sight). It is imperative to remember that the future decision makers in the case, whether judge or jury, may eventually hear your questions and the witnesses answers for themselves. Video depositions are more than mere words in a written transcript and can form an integral part of your case and your argument at trial if you prepare, prepare, prepare. This section of tips contains tips focused on the style and substance of your questioning, keeping in mind that this may be your one chance to question a witness, particularly if they are from out of town, sick, or even dying. Because the videotaped deposition often serves as a substitute for a portion of trial, this section of tips borrows from an excellent resource on trial preparation, McElhaney’s Trial Notebook.

Tip #9: USE YOUR VOICE. Speak even more clearly and deliberately than you would at trial, and of course, more so than you would at a non-videotaped deposition. There will still be a “court reporter” at your deposition, but if videotaped, the jury will likely not see any of the transcript except for small excerpts. Instead, the jury will likely just hear your voice. Worse, because you are not with them live in the courtroom, they will not have the ability to read your lips or body language. Experts routinely suggest that well over half of all communication is accomplished outside the words themselves, and much of this comes from your tone of voice. Do not be flat as though the deposition was only being transcribed. The transcript does not care whether your tone is flat or animated, but the jury will. Further, you will need to use your tone and inflection even more than at trial to make up for the loss of other nonverbal communication such as hand and body gestures. To borrow an example from McElhaney’s Trial Notebook (3d Ed. 1994 American Bar Association, McElhaney, James W., p.576), the importance of tone in our communication can be illustrated by our interaction with dogs. Beyond more than a few commands, dogs understand no words themselves but only the tone of our voices.

Page 19 Yelling “Good dog!” in a stern tone will make a dog cower, but softly and soothingly speaking “You lazy mutt, go get a job” will result in a good face-licking and tail-wagging.

Tip #10: Know your trial theme before the deposition. This is of obvious importance for video depositions that serve as trial preservation testimony. In a transcribed discovery deposition you have the luxury of simply gathering information and testimony that you can later use to reshape and reword your line of questioning at trial for ultimate effectiveness. No such luxury exists if the deposition is videotaped for trial preservation. This may be your only chance to elicit testimony from a witness that flows and that fits with the story you are telling to the jury. Repeat your themes in your questions and prepare your own witnesses accordingly. Pick words and use them often to hammer them home to a jury, then your story will be reinforced when you use them again at trial with other witnesses or in opening and closing arguments. Of course, when going over key words with your own witnesses, you must caution them not to use the words in every sentence else they sound contrived or rehearsed. Use simple and strong words, preferably verbs and nouns, and harness the emotion and vividness inherent in certain words. For instance, what word is more likely to resonate with a juror: “broken” or “shattered”? When emotive nouns and verbs are used, many adjectives and adverbs can be dispensed with that could otherwise make it look like the witness – or worse, you – are exaggerating.

Tip #11: Protect your credibility – do not respond to provocations. Again, McElhaney has excellent tips on this issue in the trial context but they are also applicable to video depositions. Develop an awareness of when you feel anger creeping over you in response to incitement by your opponent, whether it is from a witness or opposing counsel. Remember that often times an opponent will bait you knowing that it is often the retaliation that draws attention and is punished. It sounds trite, but do not lower yourself to their level. “He that diggeth a pit shall fall into it…” Ecc. 10:8. Sit back and enjoy the show. Being the “bigger person” will go a long way with the jury. Snarky comments may look innocuous on a deposition transcript, but in a video deposition the jury will hear your anger and judge you with at least the same contempt they give your opponent. Avoid sarcasm because it often makes one look small and petty rather than quick and clever, and worse, the jury may only notice your response and think you are the instigator. Instead, impress jurors with your self-control and ability to defuse situations (not to be confused as advice to “be a wimp”). King Solomon said it best: “A gentle answer turns away wrath, but a harsh word stirs up anger.” Prov. 15:1.

Tip #12: Do not call your client “my client.” Remember that the jury is listening. First, speaking about your “client” reminds jurors that you are paid to speak on their behalf (“the jury can hear your cashbox ring” McElhaney p.569). While the odds are that you are getting paid to be at the deposition, it serves no purpose to remind your audience of that fact. Second, it suggests that you have forgotten your client’s name. It is always important to humanize your client, particularly when they are a defendant, and even more so when they are a corporation. Rather than say “my client” you should use their name at every appropriate opportunity to remind jurors they are potentially punishing a person or people rather than a faceless “defendant.” In a similar vein, do not call a favorable witness “the witness” but use their name

Page 20 to humanize them and reinforce their credibility. Again, while using “my client” in a transcribed deposition can be harmless because it will probably not be used at trial, odds are that the video deposition is being taken specifically for trial.

Tip #13: Tread lightly but firmly with opposing witnesses that are overly sympathetic. In personal injury cases, odds are that someone is injured, and sometimes visibly. In wrongful death cases, a widow or widower is often the primary plaintiff and must be deposed. The reality is that a plaintiff’s deposition (and often a defendant’s) will necessarily broach sensitive subjects and reopen old wounds. First, if you have a witness with emotionally charged testimony that will present as sympathetic, think long and hard about whether their testimony is even worth videotaping. A sobbing widow’s tears will have little impact in a written transcript but could sway even the most hardened jurors when seen and heard. It is one thing for a witness to testify about his difficulty breathing with tubes in his nose, it is another for a jury to see for themselves someone wheeze away while strapped to a machine. If a decision to videotape is made, walk softly. No juror will support your position if you yell at an elderly person for forgetting their glasses while driving, or if you chastise a parent for jaywalking across the street with grocery bags and stroller full of crying children to get to the solace of their car faster. That being said, be firm. You are paid to achieve the best possible outcome for your client. This cannot be accomplished by rolling over. Get the information you need, prove the facts required; then get out. One advantage offered by videotaping sensitive depositions is that there is less need to keep hammering a sympathetic witness if they are unclear, exaggerating, or embellishing. The jury will see a witness’s hesitation, hear their tone, and can draw their own conclusions that you might otherwise have to painfully extract from a witness if there is only a written record of the deposition.

Tip #14: Do not clutter the video record with “throwaway” objections and take care of important objections in advance. Typically, lawyers start blurting out nebulous objections (“form!”) as soon as their witness is asked a tough question or when they know the answer to a question will be harmful (or even just uncomfortable). In a written transcript these objections are easily edited out for use at trial once they have been ruled on (“denied!”), so throwing out an objection with the hope that one will stick can be harmless. With a videotaped deposition, editing is often necessary but can be exceedingly expensive. Editing out a constant stream of your own unsuccessful objections could cost your client hundreds if not thousands of dollars. Should you skimp on that expense, the jury will hear your barrage of objections – many to questions which they otherwise would have no interest in – and conclude you are a jerk. Just as bad, your stream of objections will immediately pique the jury’s interest in the answers to the very questions you are objecting to. As you would in trial, only object to the form of a question if it will hurt your case and you have a proper basis to object. Few people like lawyers, even fewer like obstinate and obstructive lawyers. Of course, objections exist for a reason and some are crucial. For these, particularly if you anticipate the use of some impermissible prop or other demonstrative evidence to avoid, obtain a ruling in advance of the deposition to avoid a “cat out of the bag” situation. At the very least, make a phone call to the court for an immediate ruling if your jurisdiction allows it. Leaving the objectionable evidence in the video

Page 21 record could so intertwine the evidence with the testimony that a later attempt to have the objection ruled on may be fruitless.

Tip #15: Do not say “I only have one or two more questions.” While it is natural to want to reassure a bored or tired witness (or jury) that your examination is coming to a close, a limiting statement about how many questions or how much time you have left can back you into a corner. What if an unexpected answer is given? What if a follow-up line of questioning needs to be asked? The first option is to keep your word and stop the questioning. Of course, this means that you leave questions unanswered, and potentially waive your ability to ever find out the answers. Your client (and potentially your malpractice carrier) may not like that choice. The second option is to ignore your promise that the questioning is coming to a close. Of course, after two questions, the witness and jurors will begin counting the number of questions you ask beyond two or look at their watches to determine how much more of their time you are wasting. They will be so distracted that the extra questions you ask will be ignored anyway. As in other facets of life, do not make a promise you cannot guarantee you can keep.

D. CONCLUSION: “That’s all, folks!”

A deposition is an extension of the courtroom, and this is never truer than when a deposition is videotaped. Imagine a jury sitting through a multi-week trial - they have gone through the courtroom formalities of jury selection, initial instructions from the Judge, opening statements, and live witness testimony - and then comes the moment that you play the videotaped deposition for them. And suddenly, rather than the formality and professionalism they have seen in the courtroom for the past several days, the jury sees a poorly made video, with a sloppily dressed and sarcastic witness being questioned by an unintelligible attorney, all in an overly casual setting. Not only will the impact of the testimony on the jury be diminished, but the risk exists that the jury will discount other important parts of your case as well if they are put off by what they see on the video.

Whether preparing yourself and your witness for a videotaped deposition, setting up for the deposition, or executing the videotaped deposition, always keep these two things in mind: (1) the jury that sees the video will be expecting high production value and (2) the video will be a part of a trial with a jury and a judge. If you retain nothing else from this chapter, it is essential that you remember Tip #1 - your videotaped deposition is for the jury. Visualize the deposition fitting into your trial theme and presentation, and imagine the jury watching it and reacting to it. Conduct your videotaped deposition accordingly.

i Antonio Centeno, What to Wear on TV – Dressing for the Video Camera, .

Page 22 EXAMINATION OF PLAINTIFF By: Kurtis B. Reeg and Paul L. Knobbe

INTRODUCTION.

Taking the Plaintiff’s deposition can be one of the most important aspects of defending a civil lawsuit. Depending on the type of case you are defending, the Plaintiff may be the only witness to the incident at issue and their version of the facts will be all you have to go on. In other types of cases, the Plaintiff’s deposition may reveal little in ultimate facts, but nonetheless, can serve as a valuable discovery tool. Take the time you need to complete a thorough examination, don’t rush. You will likely only get one chance to question the Plaintiff prior to trial so do not allow other counsel to push or pressure you into rushing or shortening your questioning of the Plaintiff.

One thing Plaintiff’s deposition should not be is a cross-examination of the Plaintiff, or an exercise in arguing the finer points of your version of the case with the Plaintiff. Typically, Plaintiff’s counsel has told the witness that this isn’t their chance to tell you their story; instead, this is your chance to ask them questions and the Plaintiff has usually been instructed to only answer the questions you are asking. You are not going to convince the Plaintiff to dismiss their lawsuit by talking them out of it at their deposition.

First and foremost, you should use the Plaintiff’s deposition to establish and then explore the Plaintiff’s version of the facts applicable to the case. Through your questioning, you should be able to gauge the strengths and weaknesses of various areas of your case; whether they are causation, contributory negligence, or damages, ask those unanswered questions you have, and clarify unclear issues. No attorney wants any surprises at trial, and you should leave Plaintiff’s deposition comfortable that you have explored all relevant areas and issues in the case. Aside from asking questions you don’t know the answers to, Plaintiff’s deposition should be used to discover additional areas for investigation -- additional witnesses, sources of injury, pre-existing conditions, damages, potentially liable third parties and various defenses you may want to assert at trial. Finally, you should use the deposition to evaluate the strengths and weaknesses of the Plaintiff as a witness and their likeability in front of the jury.

INITIAL PREPARATION FOR PLAINTIFF’S DEPOSITION.

The key to any successful deposition is preparation. Prior to deposing the Plaintiff, you should take sufficient time to fully review the file, including the pleadings. What does the Plaintiff allege? What are the relevant dates of Plaintiff’s allegations or injury? Does the Plaintiff plead any statutory causes of action which require specific evidentiary proof? Review the discovery responses of all the parties. Typically these are sworn responses and can ultimately be used to impeach the Plaintiff if necessary. If your case involves a physical injury, review the relevant medical records. Look for statements by the Plaintiff, or his family members, to medical personnel and physicians which may contradict his allegations surrounding the circumstances of the incident at issue, the extent of his injuries, or his damages. Make sure you

Page 23 review copies of accident reports, witness statements to law enforcement officers or other first responders and any other witness statements, photos, maps, or news reports that may apply to your case. Review Plaintiff’s employment records for relevant information. Has your Plaintiff applied for any positions recently which require special skills or required a medical examination? Does the Plaintiff clearly perform duties on the job that are inconsistent with their claimed damages? If your case involves contractual or other documentary issues, make sure you are intimately aware of the contents of the relevant documents and any terms and conditions which may be relevant to the issues and defenses in the case.

You should also know the law applicable to your case. Jury instructions are always a good starting point to determine what elements Plaintiff will have to prove at trial or conversely, what you may have to disprove. If the Plaintiff pleads specific statutory causes of action, review the statutes, applicable defenses and familiarize yourself with relevant case law related to the statutory cause of action.

Familiarize yourself with the types of objections plaintiff’s counsel may lodge specific to your areas of inquiry and the law applicable to your case. It is always easier to deal with opposing counsel when you are comfortable with the applicable relevant rules and laws in your case.

Determine your goals for the deposition; do you want to conduct an open-ended discovery deposition, or are you trying to pin the Plaintiff down on a few specific facts to pursue summary judgment?

Once you have reviewed the file and relevant documents, and determined your goals for the deposition, you should draft an outline for your deposition. Some attorneys prefer detailed outlines setting out all of the questions they intend to ask at the deposition, while others prefer a more general outline and only draft specific questions in certain areas of the case. The type of outline utilized is usually an issue of personal style. However, regardless of how broad or detailed your deposition outline is, you need to remain flexible and able to fully explore areas of questioning that arise at the deposition outside of the questions or topics on your deposition outline. Don’t be so focused on your outline that you forget to listen and follow up. Aside from standard preliminary questions, some attorneys prefer to write out detailed questions on the ultimate issues in the case to be used in support of summary judgment or other dispositive motion. The best practice is to draft an outline with which you are comfortable, and that allows you to fully explore all of the areas you have identified to achieve your goals in the deposition.

The process of drafting the deposition outline can also be a good time to determine what exhibits you may use at the deposition. As you work through your deposition outline, mark records, photos, and other relevant documents that you may want to use during the course of your examination of the Plaintiff. This is also the best time to review any potential evidentiary issues with certain exhibits which may need to be prefaced with specific foundation questions during the deposition. It is always a good idea to draft specific foundation questions when you anticipate any evidentiary issues with a potential exhibit to ensure the record is clear

Page 24 in the event these issues come before the court at a later date. While you may not want to pre-mark exhibits, you should order them chronologically so they flow with your deposition outline.

PRELIMINARY DEPOSITION QUESTIONS AND GROUND RULES.

Most attorneys have a standard set of preliminary questions they like to ask at the start of every deposition. The purpose of these questions is usually to lay down the “ground rules” for the Plaintiff who, typically, has not given a deposition before. Another important aspect of the preliminary questions is to make a clear record as to the deponent’s understanding of the rules and the purpose of the deposition. One of your goals should be to establish a firm foundation for impeaching the Plaintiff should he change his testimony at trial claiming he “didn’t realize he was under oath”, “didn’t understand a question”, or “didn’t take the deposition seriously.” When deposing the Plaintiff, make sure at the start of the deposition that the witness understands the rules and terms under which the deposition is being taken, and what you expect of the Plaintiff. The Plaintiff is usually the ultimate fact-witness, and his recollection of the facts that make up the basis for his claim is usually the foundation for your trial strategy in defending and refuting his claim. You should come away from the Plaintiff’s deposition with a firm grasp of the facts that will ultimately be at issue in the litigation, and leave little wiggle room for the Plaintiff to change facts as the case goes along to suit his attorney’s current theory of the case.

It can be effective to pose preliminary questions in a manner which requires affirmative responses from the Plaintiff instead of a series of statements. This helps to quickly get the Plaintiff in the mode to answer questions and, hopefully, puts you in control from the beginning of the deposition. Areas to explore with the Plaintiff include whether they have any memory problems, if they are taking any medications or are under the influence of any drugs or substances that affect their ability to understand and answer questions under oath. Are there any other health issues that affect their ability to understand or answer questions? These questions will help undercut any later changes in Plaintiff’s version of events due to a change in medication at the time of the deposition, an ear infection which affected hearing at the time, or an overnight shift at work that left him too tired to effectively listen to and answer your questions.

Empower the Plaintiff to ask questions and ask for clarification of the questions you are asking him. Inform the Plaintiff that you are not trying to trick him and that you do not want him to answer any questions he does not understand. Make it clear to the Plaintiff that when he does answer any question, he is indicating that he fully understood the question asked, and has provided a complete answer. This serves a dual purpose: to make the witness comfortable, but also to make a clear record for the witness, and the jury if necessary, that you are not trying to trick the witness or use legal lingo to trap the witness into his answers.

Make it clear to the Plaintiff that his deposition testimony is the same as his trial testimony. If your jurisdiction allows the use of Plaintiff’s deposition at trial, explain to the witness that his testimony may be read to the jury, and is the same as him coming into court

Page 25 and testifying under oath. If your jurisdiction has limitations on the use of “discovery” depositions at trial, explain to the Plaintiff that if he changes his testimony at a later date, or at trial, his deposition testimony which he has giving under oath, will be used to show the jury how his testimony at trial was different from his deposition testimony. This not only makes it clear to the Plaintiff that his deposition testimony may be used against him at a later date, it also makes it clear to a jury when you are impeaching the Plaintiff that you gave him fair warning, and are not trying to take advantage of an inexperienced, perhaps sympathetic Plaintiff.

PLAINTIFF’S BACKGROUND INFORMATION.

Aside from re-affirming for the Plaintiff that you expect, and the rules require, complete, honest and thorough answers, another goal of the “preliminaries” should be to begin to develop information regarding potential witnesses, evidence and other important areas for case development. Once you have laid down the ground rules for how you expect the deposition to proceed, you should begin to procure basic background information from the Plaintiff. For the inexperienced attorney, developing a standard deposition outline covering the preliminary information you will want to discover from every Plaintiff is helpful, and can be used over and over for consistent results.

While obvious, it is important to get all of the Plaintiff’s relevant identifying information: name, prior names, date of birth, social security number (last 4 digits at a minimum), address, prior addresses, marital status, children, grandchildren, stepchildren, brothers, sisters and any dependents regardless of relation, and anyone who provides income or support to Plaintiff, including present address or location.

After securing the primary identifying information, you should move on to education and employment history. Move in chronological order, either from the oldest or most recent job, so that you can create a timeline and investigate Plaintiff’s full employment history. Ask details regarding job length, promotions, demotions, discipline, periods of unemployment and all circumstances surrounding any period of unemployment. Get the names of all supervisors and co-workers if necessary for your case; these are all potential witnesses who may either support or impeach/discredit Plaintiff’s testimony regarding damages or the extent of an injury.

Ask the Plaintiff about any prior lawsuits, claims or requests for payment of benefits. Make it clear to the Plaintiff that you are not just asking about lawsuits, but workers compensation claims, applications for disability, claims for property damage, or other insurance claims they may have made in the past.

Ask the Plaintiff about any prior misdemeanor or felony arrests or convictions, particularly any which involve a crime of dishonesty, fraud or deceit.

Ask the Plaintiff about any and all social media sites he may utilize, such as Facebook, Twitter, Google+, Pinterest and Instagram to name a few, as these are fertile areas for potentially contradictory evidence to impeach Plaintiff’s various claims. As a rule, you should

Page 26 “google” your plaintiff prior to his deposition to determine the extent of his social media activity, save screen shots of any potentially valuable information you may find such as photos of the “injured” plaintiff water skiing on vacation, or horseback riding despite a debilitating back injury, as this evidence will likely be deleted once you start to inquire about his social media sites. It is always a good idea to get as much information about the Plaintiff as possible prior to the deposition.

In cases involving any type of injury, it is important to explore Plaintiff’s medical history. This includes prior surgeries, hospitalizations, injuries, medical conditions, prescriptions, and any doctors or physicians who have treated Plaintiff for any condition, whether related to the injury at issue or not. Again, take a chronological approach to construct a timeline and assist the Plaintiff in proving a full and complete medical history.

Ask the Plaintiff if he has ever testified under oath, either in trial, at a deposition, or even over the phone with an insurance company. Ask if he has ever made any sworn statements in conjunction with an application for medical or disability benefits. Finally, ask if he has given any statements to anyone other than his attorney regarding any aspect of the claim at issue in the current litigation.

Ask the Plaintiff to tell you everything he did to get ready for the deposition, aside from discussions with his attorney. Ask about any specific documents he may have reviewed, people he spoke with, any websites he may have utilized and any other research he may have done. Ask if anyone else was present when he met with his attorney, as these are potential witnesses. This information may lead you to areas and issues of the case that the Plaintiff is concerned or uncomfortable with that you may not have considered, and may direct you to areas of Plaintiff’s case which he believes may be more difficult or important for his case. It also further establishes with Plaintiff that you expect complete and truthful testimony, and will be talking to and verifying his version of events with other people, hopefully leading Plaintiff to keep his testimony simple and honest.

Ask the Plaintiff for the names of anyone who may have been a witness to the incident, or anyone who has any information about the incident that forms the basis of his lawsuit, including anyone who may have taken photos, movies, statements, notes or other documentary evidence. Use this opportunity to pin the Plaintiff down on the names of anyone who may have witnessed the incident, or who may have evidence or information regarding the incident involved in the lawsuit.

GOALS FOR THE PLAINTIFF’S DEPOSITION.

When deposing a Plaintiff, your general goals should focus on discovering facts, preserving evidence, securing admissions and locking in the Plaintiff’s version of events relevant to the lawsuit or claim. You should focus on the facts you already know to either firm up helpful facts or discredit harmful ones. You should also elicit from the Plaintiff the facts you do not yet know, or the questions to which you do not have answers. You also want to discover the full scope and extent of Plaintiff’s claimed damages, as well as assess the Plaintiff’s demeanor and

Page 27 jury presence. What type of witness Plaintiff will make? Will the jury see him as sympathetic, or a malingerer? Ultimately, the Plaintiff’s deposition should allow you to focus in on the strengths and weaknesses of your case.

TONE AND STYLE FOR PLAINTIFF’S DEPOSITION.

In determining what tone to take for your deposition, you should ask yourself two questions: Who is my witness, and what is my goal for this deposition. Is the Plaintiff a convicted criminal in a civil rights case, or the young widow of a worker killed in an industrial accident, leaving behind a family? Is your goal to show that the Plaintiff has told various versions of his story in the past which casts doubt on his credibility, or is your goal to get a good picture of the extent of the plaintiff’s damages and evaluate the extent of the sympathy a jury will feel for him at trial. Obviously, you do not want to come across to the jury as a bully badgering the young widow, and your tone and manner should reflect kindness and understanding, but also, a business like demeanor. On the converse, the jury will likely give you more latitude in attacking the credibility of the convicted felon, as long as your tactics do not cross the line of good taste and professionalism. These are the two extremes, and it is likely your plaintiff on any given case will fall somewhere in between.

Personal style also comes into play in determining the tone you take when deposing the Plaintiff. Whether you prefer a conversational tone, or a more interrogative tone, you want to come across as genuine. You never want the jury to view you as the evil, tricky trial attorney. If you take an interrogative tone, you must do it in a way that will seem justified. Never give the appearance that you are badgering or taking advantage of an inexperienced or sympathetic Plaintiff. You should proceed in a deposition as if the jury is present in the room, particularly in the age of videotaped depositions, where your demeanor, tone and actions will be preserved, and likely played for the jury.

A good rule of thumb to avoid the appearance of badgering or taking advantage of the Plaintiff is to focus on the goals you set for the deposition, and tailor your specific questions toward achieving that goal. If your question does not assist you in moving toward your goal, do not ask it, unless you are following up on specific responses from the Plaintiff that need to be explored for discovery purposes.

Typically, a witness’s personality will show throughout the course of a deposition, regardless of how well he has been prepared for the deposition. Intentionally provoking a Plaintiff is a risky strategy to engage in as it can easily backfire and make you look like the bad guy. Carefully evaluate your witness and determine if this strategy can be effective. Ask a few questions to test the water before you dive in. Subtle challenges to a witness’s recollection and completeness are better than outright challenges to a Plaintiff’s honesty, although if it is clear the witness is lying, you should bring this issue to the forefront and make it apparent. This strategy can also be effective with the difficult Plaintiff who suddenly cannot remember important details of his case when presented with evidence contrary to his testimony.

Page 28 With this type of “memory challenged” Plaintiff, you should demonstrate that even though Plaintiff claims he cannot remember details about the event at issue, he has a clear recollection of other events that happened long before. You can also use this strategy to establish a pattern of “I don’t remember” answers clustered only around the event that is most critical to the issues in the case to show the Plaintiff’s selective memory.

Depending on the type of Plaintiff with whom you are dealing, asking substantive questions immediately after the “preliminaries” can be quite effective, particularly if your Plaintiff is a sophisticated witness, as most witnesses expect to ease into the deposition with assorted background questions, rather than substantive issues. If used effectively, this strategy may set up the Plaintiff to be on the defensive for the majority of the deposition. Proper use of hypothetical questions may also be effective in getting a Plaintiff to agree with a particular aspect of your defense, but when asking hypothetical questions, be sure to establish with the Plaintiff that you are asking if something is possible, not if something is probable.

Regardless of the type of witness and the tone of the deposition, it is important that you do not allow witnesses to answer before you have finished your question. While the witness is typically instructed that this is important so that the court reporter can accurately report the questions and answers, it also clearly puts you in charge of the pace and tone of the deposition, and allows you to establish this from the beginning of the deposition. This is particularly important with a difficult or argumentative Plaintiff who is more intent on telling his story than answering your questions. Moving to strike non-responsive answers which are self-serving to Plaintiff is very important, not only from a legal perspective, but in continuing to remind the witness that there are rules and a process that need to be followed, and that you are in charge of the pace and content of the deposition you are taking. Most importantly, you want the record to be clear on the question you asked, and the response that was given. Once you are confident you have made a clear record, you may follow up and explore areas that may have been exposed by Plaintiff’s responses.

If your goal is truly to conduct a “discovery” deposition in which you are trying to gather as much information as you can, you should always ask open-ended questions of the Plaintiff. If, by contrast, you are trying to pin a witness down on specific versions of events, ask the Plaintiff leading questions to the extent you can, and try to lead the witness to accept or deny a single, simple fact. Don’t be afraid to repeat your question until the Plaintiff provides a clear answer without comment or qualifiers.

For example, your question to the Plaintiff may be, “Did the oncoming driver signal her turn as you approached the intersection?” The witness responds “I think he did, but he was driving really fast”, or, “I don’t think he did, but I’m not sure”. Simply re-ask the question. Hopefully, after re-asking the question, the Plaintiff will provide a yes or no answer. If not, hints such as “Perhaps you didn’t hear my question…”, or “we will discuss the speed of the other car in a minute, but right now, I’m interested in your recollection of whether the oncoming driver signaled his turn as you approached the intersection” may be more effective than lodging an objection for a non-responsive answer. Once the Plaintiff has answered your

Page 29 initial question with a clear, unqualified answer, be sure to explore the limiters and qualifiers in his previous answers.

Deposition outlines are necessary and valuable tools to keep your deposition focused on the relevant issues and to make sure you explore all of the areas you have identified in your case work up. But you should never be so married to your outline that you do not venture outside of it to ask important follow-up questions. Listen to the Plaintiffs’ answer and explore with follow-up where it is appropriate, even if it takes you away from your outline. Depositions, particularly true “discovery” depositions, are your opportunity to explore all areas that are reasonably calculated to lead to the discovery of admissible evidence. You should satisfy yourself that there will be no surprises at trial. Many seasoned litigators have been in a deposition with an inexperienced or inflexible attorney who passes up obvious, important follow-up questions because they simply move onto the next question on his outline.

Using silence and strategic pauses can also be very effective, particularly with talkative or nervous Plaintiffs. Some people are uncomfortable with silence and will try and ease the discomfort by talking. Others, as discussed earlier, want to talk and tell their story and perhaps will grow impatient with the question and answer-format of the deposition. Sometimes “listening” to the silence after a Plaintiff’s answer can lead the witness to additional information you would not have gotten by rushing into your next question. However, earlier admonishments regarding objections to non-responsive answers which are self-serving should not be forgotten when preserving the record. This doesn’t mean you cannot explore areas that may not have been apparent prior to Plaintiff’s statements.

USE OF EXHIBITS.

Exhibits can be an effective tool in focusing the Plaintiff’s testimony on relevant facts, as well as laying the foundation for impeachment, or in some cases, the contradiction or repudiation of Plaintiff’s claims. Photos, maps, medical records, police reports, letters and emails are all important sources of documenting facts frozen in time and not subject to the whim or reach of a Plaintiff’s memory.

On a basic level, it is essential that you have the Plaintiff fully explain any important documents that may pertain to him or of which he may have knowledge. Lay the proper foundation for the witness to identify the document, and then get the “who, what, where, when, why and how” regarding that document. Leave the record, and your mind, clear on all the facts behind each and every document.

If the document is already in the record as a prior exhibit, make sure on the record that the Plaintiff is clear what the document or exhibit is, the foundation for it as an exhibit, and give the Plaintiff sufficient time to review the exhibit before asking any questions about it.

Photos can be very effective in pinning the Plaintiff down as to what he saw, where he was, distances, conditions, visibility, and other factors that may affect his recollection of events and are subject to interpretation at trial. Of course you can use photos taken by your

Page 30 investigator, but it is equally effective, and perhaps more, to use photos received from the Plaintiff in discovery, or photos taken by third parties, such as the police, newspapers, or internet news providers.

The use of maps and diagrams is also an effective tool to tie down a Plaintiff’s testimony on the specifics of an incident at issue in the litigation. Lay the proper foundation, mark the document as an exhibit, and proceed to have the Plaintiff mark on the map or diagram the particulars of what they recall, including where other witnesses were, and other relevant facts that could be open to interpretation and argument at trial--the location of a truck when it lost its load, the distance between two cars, the proximity of the witness to a piece of equipment, the distance the witness was from the incident about which they are testifying, etc. These documents can then be used at the depositions of future witnesses to impeach or cast doubt on the Plaintiff’s version of events, or lead other witnesses to testify more consistently to your theory of the case. Finally, many of these maps and diagrams make helpful and persuasive trial exhibits.

Witness statements can also be used effectively to not only impeach the Plaintiff at deposition and/or trial, but to challenge a Plaintiff’s selective memory at deposition. Prior detailed statements given to police or investigators can be used at deposition to show that even though the Plaintiff claims he cannot remember details about the event that are important to issues in the case, the Plaintiff can recall insignificant details about the same event.

In the case where your Plaintiff claims he cannot remember, or cannot mark the relevant area on the map where an incident occurred, where witnesses were located, where the vehicle first swerved, his proximity to a piece of machinery, or what he said immediately after an incident, you can use this answer to minimize or eliminate Plaintiff’s testimony in the case on certain, perhaps important issues. Effective use of documents, photos and diagrams can make it difficult for the Plaintiff to claim later that he suddenly remembered the details of the incident. It is important to ask the forgetful Plaintiff during the deposition whether there are any documents or things that would refresh his recollection. If the answer is no, this will close the door on this route to a newly-refreshed recollection at a later time. If the answer is yes, it can lead to additional important documents you may not have.

Documents and exhibits that originated from the Plaintiff can be some of the most valuable exhibits when used properly. Medical questionnaires written by Plaintiff document his medical conditions at a date in time in Plaintiff’s own words. It is difficult to claim that a doctor did not write down relevant complaints, or was told about prior health problems when Plaintiff’s own handwritten medical history contradicts that position.

Phone records, internet search histories, GPS data, and vehicle data recorder devices are all valuable areas to explore to put the plaintiff in a place in time that may ultimately contradict a Plaintiff’s version of events. Lay the foundation as to what the Plaintiff remembers, then, once the record of his version of the facts is clear, lay the foundation for potentially contradictory documents or evidence and proceed to contradict the Plaintiff’s

Page 31 version of the facts through the use of his own documents. Don’t allow the Plaintiff to hedge or change his version of events based on contradictory evidence by failing to adequately lock in Plaintiff’s version of events. Follow up Plaintiff’s initial answers to your questions with a series of affirmative, follow up statements making the record clear as to what Plaintiff’s version of the facts are.

One caveat on impeachment of the Plaintiff at his deposition - your strategy may be best served by saving impeachable evidence for an evidentiary deposition or trial. However, this is typically not the case when deposing a plaintiff as opposed to an expert or opinion witness who can amend or update his opinions prior to trial. Taking advantage of the Plaintiff’s deposition to show opposing counsel the weaknesses of his client’s case is an opportunity that only comes once, and may lead to a favorable, pre-trial outcome for your client, as well as eliminating facts that were initially important to Plaintiff’s case. As with any strategy decision, there is no bright-line rule and you should evaluate your case and strategy to determine what best fits your need.

Finally, you do not want to debate Plaintiff about his version of the facts surrounding his case. Nothing is gained by arguing facts with the Plaintiff. If Plaintiff is un-wavered when presented with conflicting witness accounts or other evidence, simply move on once you are satisfied you have made a sufficient inquiry and the record is clear. Sometimes the Plaintiff who is overconfident in his version of events in the face of contradictory evidence is the least credible witness.

COACHING AND SPEAKING OBJECTIONS BY PLAINTIFF’S COUNSEL.

One issue frequently encountered when confronting a Plaintiff with surprising or unexpected and contrary evidence is coaching via “speaking objections” from Plaintiff’s counsel. Frequently, coaching, or speaking objections are made when you are eliciting evidence that is harmful to Plaintiff’s case. For example, after you have adduced clear testimony from Plaintiff that, since the time immediately after his initial injury until present he has been unable to use his right hand in any manner, including handwriting, you present him with medical records from a subsequent visit to a hand specialist in which he hand wrote his own medical history and intake sheet. Instead of an objection based on foundation, Plaintiff’s counsel interjects that his client’s testimony has been that “he is unable to use his right hand consistently”, or “sometimes he could use it for short periods of time”, in an obvious attempt to coach his client to qualify his earlier answers. Another common coaching objection is “you can answer if you know”, or “you can answer if you saw it clearly”. Since our preliminary questions make it clear to the witness that we do not want him to guess, speculate or answer any question he does not know, and he is allowed to indicate that he does not know the answer to any question, these statements are clear and improper coaching. Plaintiff’s counsel is coaching the witness to indicate he does not remember, rather than answering a potentially damaging question.

When encountering this situation, you should object to the improper speaking objection. Request Plaintiff’s counsel make a proper, legal objection, and then ask the court

Page 32 reporter to read back the question, subject to the proper objection, thus precluding Plaintiff’s counsel from re-stating the speaking objection, and essentially, “re-coaching” the witness. You should not allow Plaintiff’s counsel to improperly coach the witness, or allow opposing counsel to derail a line of testimony that is significant to defending your case.

If Plaintiff’s counsel instructs his witness not to answer a question, make sure the record is clear on the basis for the instruction, whether it be privilege, relevance or another basis, so that if necessary, you have the supporting record to bring the issue in front of the Court on a motion to compel and possibly, for sanctions.

CIVILITY AND PROFESSIONALISM.

As can be seen from the materials above, there are many things to be accomplished at the Plaintiff’s deposition. This is an exercise in thoughtful preparation before the deposition and nimbleness based on the answers of the witness. This is not a time to demonstrate how tough, mean, loud, obnoxious and annoying you can be, or that you can top the opposing counsel in any of those areas. You are there to do a job for your client, as the case belongs to the client, not the lawyer. You are there to seek information, identify themes, get answers to your questions and get information to support your defenses. Too many inexperienced lawyers either get side-tracked with the antics of opposing counsel or just act as if they have to prove to everyone in the room they are somehow bigger, meaner and tougher than anyone else. Such conduct will cast a long negative shadow with the judge, jury, plaintiff, opposing counsel, the other lawyers in your firm, and even within yourself. There are no mulligans when bad conduct and outbursts are captured on the record.

Whether the plaintiff truly feels wronged, or has been convinced of the righteousness of his cause by his counsel matters not. Your training and the applicable Codes of Professional Conduct and Responsibility dictate that you act at all times professional with opposing counsel and civil to the opposing party. The old adages of turning the other cheek and not stooping to the opponent’s level has never been truer than in the Plaintiff’s deposition. Killing both counsel and the plaintiff with kindness is not only your calling in this and all depositions, but it is a much more effective elixir than shouting, sarcasm or pounding the table. It is, in and of itself, both disarming and unnerving; it is as effective as any other tool you employ in a deposition. Never, ever forget your role and calling as an attorney; you can be an effective lawyer and advocate for your client’s cause without being rude and annoying.

CONCLUSION.

As is true in most areas of the law, preparation is the key to a successful and thorough deposition of the Plaintiff. Be thorough in your knowledge of the case, the law, and your file. Set your goals, and treat each deposition as a key part of the broad litigation as a whole. Prepare your outline utilizing all the resources available and go into the deposition of the Plaintiff knowing what you know, what you want to know, and what you want to achieve. Take the time you need with plaintiff to assure yourself that you have covered the areas you identified and new areas that may arise during the deposition. You should leave with an

Page 33 exhaustive understanding of all elements of the plaintiff’s claims, the bases therefor, and the facts to establish each and every one of your defenses.

Page 34 EXAMINATION OF LAY WITNESS By: Victor R. Anderson, III

INTRODUCTION:

The purpose of this chapter is to address some of the important considerations and techniques one should entertain when preparing for and taking lay witnesses’ depositions. This chapter is not meant to be an exhaustive guide to taking a lay witness’s deposition. Rather, it is intended to present helpful considerations and techniques you can utilize in preparing for and deposing a lay witness.

Taking the deposition of a lay witness is often looked upon as a simple task, requiring little preparation as compared to expert witness depositions. The degree of difficulty and level of preparation necessary to effectively depose a lay witness can vary widely depending on a number of factors including the type of witness and the primary purpose for deposing the witness. Your knowledge of your case and of the witness should be key driving factors in how you approach and prepare for deposition of the witness.

THE BASICS OF DEPOSING A LAY WITNESS:

BASICS: Types of Lay witnesses:

There are virtually innumerable types of lay witnesses. However, the most frequently encountered variety are:

 Plaintiff

 Defendant

 Friendly/favorable

 Neutral/independent

 Hostile/Adverse

 Technical /Non expert

 Culturally/Normatively

 Unknown

The capacity of the lay witness can significantly impact the nature and level of preparation necessary to effectively depose the witness.

Page 35 BASICS: Order of Lay Depositions

An important consideration is the order of deposing lay witnesses, especially in regard to when to depose the plaintiff(s). If there are multiple plaintiffs or defendants one must consider which plaintiff or defendant to depose first. The order of depositions can be of significant importance because of the tendency for witnesses to potentially influence one another’s testimony. For example, in the case of husband and wife party litigants, whether plaintiff or defendants, one may be a stronger witness than the other. In most jurisdictions the parties are allowed to attend the depositions of other parties. Hence, the weaker party deponent may defer to the testimony of the stronger deponent. So whether it is husband and wife or supervisor and subordinate, the weaker deponent may mimic the testimony of the stronger deponent.

Non-related lay witnesses can indirectly influence the testimony of other lay witnesses. A lay witness can be examined or cross-examined based upon the deposition testimony of another lay witness or witnesses. For example, “Mr. Smith testified that the blue car ran the stop sign, did you see that?” Or, “…all the witnesses deposed thus far have testified that the parking lot was well lighted, would you agree with that?”

If there are multiple unrelated parties in the case, notice all of the depositions in the order that you think is strategically warranted. Alternatively, coordinate the deposition schedule with your co-defendants, etc.

BASICS: To Video or Not to Video Record the Deposition?

The costs of videoing a deposition is not insignificant and therefore may need to be authorized by the client. If cost is a factor, there are certain deponents that should be considered candidates for video depositions over others. As mentioned below, it might be anticipated that some deponents may not be available for trial and their testimony should be preserved in the form of a deposition. It is recommended that such testimony be videotaped as it is usually more engaging for the jury or judge than to hear lawyers or substitutes read the deponent’s testimony.

Hostile and/or poorly appearing adverse witnesses should be considered candidates for video recorded depositions. Oftentimes, the presence of a videographer can lessen the ill- mannered conduct of a hostile witness because he knows the conduct itself, in addition to the testimony, will reflect on him negatively when viewed by the trier of fact. If the deponent is a party, his attorney will likely tame the deponent. Alternatively, what can be better than the adverse party demonstrating his ill-tempered behavior on video for the judge and jury?

BASICS: The Technical-Non-Expert- Lay Witness

Many times a technical, non-expert, lay witness can present many challenges in a deposition, for example, a medical doctor who specializes in immunohistochemical pathology or an engineer who specializes in quantum mechanics and fluid dynamics. Unless you have a

Page 36 background in those fields of specialty, it is highly recommended that you work with experts to adequately prepare for the deposition, or risk being led astray in the deposition.

BASICS: The Culturally/Normatively Different Deponent

Occasionally the witness may be from a country that is culturally or normatively different from the United States. Usually it is worthwhile to do a bit of homework in that regard. Similarly, be careful not to assume that all countries are monolithic in language and custom. When arranging for an interpreter make sure you have engaged the services of one who speaks the correct dialect.

PURPOSES FOR DEPOSING LAY WITNESSES:

The deposing lawyer should give careful consideration as to why the proposed deposition is being taken. The purpose for taking the deposition can heavily influence the way in which the deposition is taken. Or, you might decide to forgo taking the proposed deposition if you have an investigation report of the witness’s likely testimony or a pre-deposition statement.

PURPOSE: Preservation of Testimony

One key reason for taking a deposition is to preserve critical or important testimony in the event that a witness is not available for a later trial. A lay witness might not be available for a trial for several reasons, e.g. advanced age, terminal illness, beyond the subpoena power of the trial court, vacation plans, etc. If one or more of these factors are in play, strong consideration should be given to taking the deposition of such a witness early in the litigation. However, if the proposed deponent, on balance, has testimony that is more harmful than helpful to your case, consideration should be given to deciding against taking the deposition for obvious reasons.

If the deposition is going to be taken, careful and detailed preparation is warranted, because the interrogation will have to withstand trial objections. Be prepared to lay proper foundation for the testimony. Carefully prepare and mark all of your exhibits. Authenticate documentary evidence through the witness. Prepare an orderly examination of your questions in the fashion you would like to present the testimony at trial.

PURPOSE: Discovery Depositions

More often than not a deposition is simply taken to discover one’s case. In other words, what does a witness know about the facts or circumstances surrounding the case? In addition, the witness will likely have knowledge of the identity/existence of additional witnesses, documents and evidence. Discovery depositions can be challenging because they tend to lack the same degree of focus as compared to other types of depositions. As with all depositions, a thorough outline of examination should be prepared in advance of the deposition. Although

Page 37 the outline does not require a question by question list, it should contain a topic by topic delineation. It should also seek to identify additional evidence, facts and witnesses.

It is recommended that the examiner commence questioning the witness on a topic utilizing general/open ended questions in order to ascertain the witness’s scope of knowledge on the subject. Then the examiner should drill down from general to specific questions until the subject is exhausted. As the examiner, you should be careful to follow-up on every lead revealed by the testimony. Don’t fall into the self-imposed trap of religiously following your outline to the exclusion of new clues and other potential fruitful areas of inquiry revealed by the witness.

PURPOSE: Surprise Avoidance

Frequently one might know prior to commencing discovery who the witnesses are that are favorable to one’s case. In that situation, the question might arise as to whether the depositions of favorable witnesses should be taken. Concern is often voiced about educating the opposition. While that is a valid consideration, equal consideration should be given to the possibility that a favorable witness might change his testimony from favorable to adverse. If testifying at trial is inconvenient for the witness, he might not be in a cooperative mood which can affect his testimony.

PURPOSE: Credibility and Demeanor Evaluation

In order to properly evaluate your case and prepare for trial you need to be in a position to assess the credibility and demeanor of the key witnesses, particularly lay witnesses. In the case of a lay plaintiff, a detailed examination of the witness’s background is usually warranted. In addition to inquiring about the deponent’s educational, occupational and marital/family status, you should not shy away from potentially embarrassing inquiries, e.g. felony convictions, involuntary discharge from employment and the reasons therefore, prior injuries and lawsuits, etc. Ask other witnesses what they know about the honesty and integrity of plaintiff, and vice versa. Inquire about the number of times the witness has been sued or has filed suit and for what?

To the extent the witness offers unfavorable testimony, you should strongly consider interrogating the witness on subjects reflecting bias, credibility and demeanor. Do not shy away from finding out about potentially bad facts and circumstances. If the witness is highly credible, even though the testimony is adverse to your side of the case, you want to know that before trial. This information is essential to a proper evaluation of the case. Better to find out bad news in deposition than in the middle of trial.

PURPOSE: Theory and Theme Testing

Prior to taking depositions of significant lay witnesses you should formulate your theories and themes of the case. Moreover, you should also contemplate the other side’s theories and themes that will be advanced at trial ( e.g. Plaintiff had the last clear chance to

Page 38 avoid the accident; the abandoned refrigerator attracted young children to play with it; the ACME Company took reasonable steps to protect the privacy rights of all of its employees, etc.) These theories and themes should not be etched into stone, but are fluid and subject to change depending on what discovery reveals.

Depositions of lay witnesses present a unique and spontaneous opportunity to test one’s themes and theories of the case. Eliciting testimony to support your theories and themes does not have to be telegraphed and obvious. Questions on these topics can be woven in throughout the deposition over the course of several hours. Although such questions are topical, they are not necessarily chronologic. Hence, they can be sprinkled throughout the deposition. Similarly, you can elicit testimony to debunk the opposition’s anticipated themes and theories. Frequently, early on in the course of litigation the opposition has yet to formulate or refine its theories and themes. Accordingly, you can foreclose the opposition’s more viable theories and themes before it has time to develop them.

PURPOSE: Evidence Development for Summary Judgment Motions

Unlike written discovery, depositions of lay witnesses provide an exceptional and spontaneous forum to elicit testimony to support motions for summary judgment. This is particularly true in the case of plaintiffs’ depositions. It is a critical mistake to undertake significant discovery, including depositions, without knowing where you are going with your case. Without knowing your destination it is virtually impossible to chart a meaningful course. You might end up simply running in circles.

Inextricably linked to theory and theme development is the need to have detailed knowledge of what you must prove to win your case. Know the elements of your causes of action or defenses before you commence taking depositions. Likewise, know what the opposition must prove in order to prevail at trial. To the extent possible, take those elements out of the mix.

Determine the goals you wish to achieve in taking a specific witness’s deposition. What does the witness know that will be helpful? How do I elicit the testimony? List the elements of the cause of action and/or defense. Study the key jury instructions necessary to prove your case. Incorporate the key language and buzz words of the jury instructions into your questions. If your questions track the language of the jury instructions and/or elements of the cause of action, it will be easier to write the motion for summary judgment and for the court to understand it.

PLANNING YOUR INTERROGATION:

General Norman Schwarzkopf, shortly before the first Persian Gulf war, was quoted as saying “…Your battle plan is only good until the first shot is fired.” This can be true of a deposition outline as well. However, you notice that Generals always draw up a battle plan. And so too should you, in the form a detailed deposition outline. If nothing else, you will have a comprehensive check list of topics and issues to cover. Depending on the witness and your

Page 39 objectives, there are different types of questions and order of questions you may choose to employ.

PLANNING: Chronologic Order of Interrogation

A chronologic order of interrogation is very useful in deposing certain types of lay witnesses and depending on one’s objectives. In a preservation of testimony for trial deposition a chronologic format is normally very useful. Such testimony needs to be presented to the jury in a cogent and logical order. The foundation for the witness’s testimony needs to be established as part of the chronology.

Similar to a preservation of testimony witness, a favorable witness’s deposition normally lends itself to a chronologic format of interrogation. One need not worry about the potential gamesmanship of an adverse witness who might be trying to anticipate where the questioning is leading and defeat your objective.

A neutral witness’s interrogation is also amenable to a chronologic format of interrogation. Again concerns of gamesmanship, obfuscation, etc. are normally not attendant to this type of witness’s interrogation.

PLANNING: Non-Linear Form of Interrogation

Certain witnesses will try to “out smart” the examiner by trying to anticipate where a certain line of questions is heading and resisting going there. Usually the opposing party, aided by its attorney, will try this anticipatory tactic. However, for reasons only known to the deponent he or she will employ this tactic. Sometimes this is done purely for egotistical reasons, i.e. “I am smarter than the lawyer.” Whatever the deponent’s motivation, the interrogator should be prepared to deal with this tactic. If you have a line of questioning that can be devastating to the opposing party’s case you should anticipate the other party will employ the anticipatory/avoidance tactic on his own initiative or with the assistance of counsel. Astute counsel can facilitate this tactic by making speaking objections, trying to coach the witness and taking breaks and educating the deponent outside the deposition room.

Mixing up the order and timing of your questions can camouflage the import and devastating nature of your questions and the resultant answers. Remember that the order and timing of your questions is not very important in a non-video recorded deposition because you can re-arrange the questions and answers for use at trial or in a motion for summary judgment. Also, you can string out your line of questions throughout the course of the deposition and then put them all together, in order, at trial or in your motion. It can be quite entertaining to see the opposing counsel asleep at the switch during the course of the deposition as you are sprinkling your questions into the flow and he fails to realize the impact of them. It is even more satisfying to know the opposing counsel is surprised to see the mosaic of questions put together in a motion.

Page 40 PLANNING: Types of Questions

The type of questions you ask may depend on several factors, which may include the bias, linguistic skills, attitude and orientation of the witness. Also, the purpose of the deposition may significantly influence the style of questions you ask.

A non-cooperative witness that is biased against you or your side of the case normally will not respond well to an open ended general question. A party witness will most likely have spent several hours with a lawyer in deposition preparation learning how to avoid answering difficult questions and not volunteering information. Usually, such witnesses have heard that he should try to stick to answering questions with a “yes” or “no” and to refrain from volunteering information. A well trained witness will also be taught to answer questions in his own words and to avoid adopting the language of the well-crafted questions of the other party’s lawyers.

A shy or linguistically challenged witness may present similar difficulties if the questions are general and call for more than a simple answer. Such witnesses can be almost as challenging as a non-cooperative or opposing party witness. For better or worse, these witnesses can be easily led.

A common mistake made by younger lawyers is the use of legal-ease or fancy lingo in formulating questions. Words such as “notwithstanding, aforementioned, the forgoing, etc." should be avoided. Such words can be confusing to a lay person. Moreover, if the witness changes his or her answer at trial, the jury might be sympathetic to the explanation that the witness was confused by the question. Also, keep in mind that the jury is comprised of lay people who may struggle to understand your question if it is comprised of polysyllabic and legalistic words. Obviously, technical subject matter and expert witness depositions will often require specialized vocabulary. However, plain and simple English goes a long way in most depositions, including that of an expert witness, when possible.

Here are some types of questions to consider as you plan your interrogation:

Open Ended Questions

Open ended and general questions usually work well in discovery depositions when the witness is favorable, cooperative or at least neutral. When the deposition is being taken for the primary purpose of finding out facts, witnesses and circumstances, you want to frame your questions in such a way as to cast a broad net. You do not want to narrow the focus of the witness in such a way that will allow the deponent to inadvertently leave out critical information. After you have obtained the general information you need, then you should begin to narrow the focus in order to obtain important detailed information. Note the difference between the two scenarios:

Page 41 Scenario #1

Q. What did you see when you first arrived at the scene of the accident?

A. I saw two cars in the middle of the intersection, a fire truck, the paramedics, and ambulance.

Q. Did you see any other emergency medical or official vehicles at the accident scene?

A. I also saw two police cars and four police officers and a coroner’s van with two men near it wearing jackets that had coroner printed on them.

Q. Did you observe the police officers doing anything?

A. Yes, they questioned witnesses at the scene and then I heard one of the officers arrest one of the people for vehicular manslaughter.

Q. Did you see the deputy coroners do anything?

A. Yes, a deputy coroner pronounced a person dead at the scene. The paramedics helped load the body into the coroner’s van.

Scenario 2

Q. When you arrived at the scene of the accident, were there any police officers there?

A. Yes.

Q. Did the police question witnesses and take a report?

A. I saw an officer questioning people and taking notes. I don’t know if the officer prepared a report?

Q. Was anyone treated at the scene by the paramedics?

A. Yes, I saw them treating a woman.

Notice the difference between Scenario 1 and Scenario 2. In Scenario 1, the examiner starts out with a general question about what the witness saw at the scene. The examiner then brought the focus to the medical, law enforcement and coroner personnel on scene and further focused on what the witness observed them doing. After exhausting this line of questions, the examiner could then start to ask questions about what else the witness observed including two

Page 42 cars in the intersection (presumably the ones involved in the accident). The questions could then involve seeing skid marks, automobile body damage, broken glass, etc.

Notice in Scenario 2 how the examiner quickly focused on the police present at the scene and touched on the paramedic involvement? No mention was made of the Fire Department or the Coroner’s van and personnel. Although the scenarios are fictitious, they serve to illustrate how quickly narrowing your focus can cause one to miss major facts.

Short Declarative Questions

Short declarative questions are frequently useful when dealing with a hostile, oppositional and unfavorable witness, especially when you get to that portion of the deposition where you want to elicit admissions. To have a chance at being successful with this technique, tedious preparation is required. You will need to break down the admission into numerous subparts or into a logical syllogism whereby the conclusion is almost inescapable.

Example 1:

Q. At noon on Sunday, you drove from your house to Easy Go Liquor Store and purchased a case of beer, true?

A. Yes.

Q. You returned home at 12:15 p.m. with the case of beer, true?

A. Yes.

Q. You drank all 24 cans of beer by 3:30 p.m. that same Sunday, true?

A. Yes sir.

Q. At 3:35 p.m. on that same day you got back in your car and drove to Easy Go to buy another case of beer, true?

A. That parts a bit fuzzy in my mind.

Q. You don’t have any reason to dispute my time line, true?

A. I believe what you said to be true.

Q. On the way to Easy Go for the second time on Sunday you ran a red light and caused an accident, true?

A. Yes, that’s what I’m told.

Page 43 Q. You were arrested for vehicular manslaughter, true?

A. Yes.

Example 2:

Q. You always get drunk when you drink more than eight beers in three hours, true?

A. Yes.

Q. On the Sunday in question you drank 24 beers in three hours, true?

A. Yes.

Q. You were drunk when you got in your car immediately after drinking 24 beers in three hours, true?

A. Yes, you bast**d!

Notice the difference between example 1 and 2. In example 1, the examiner is using a step by step process of questioning the witness. Example 2 accomplished the same thing by use of a logical syllogism. It is up to the examiner to choose which technique will work best for a particular deposition.

Accusatory Questions

Accusatory questions are much the same as short declaratory questions. They are frequently used to extract damning, credibility damaging, admissions. If you have unshakeable evidence to establish the admission, you may decide to save the questions for trial.

Examples of accusatory questions are as follows:

Q. You just served five years in prison for burglary, didn’t you?

Q. You are a three time convicted felon, aren’t you?

Q. You were fired from your last job for sexual harassment, correct?

Careful consideration should be given to asking these questions in deposition because you might tip the other side that you are aware of the background of the witness. Then your opponent might seek to exclude such evidence at trial.

Page 44 Pinning Down Questions

Very few things can be more frustrating than to believe you have a witness “boxed in” only to see them wiggle out of the box at trial. In order to minimize this risk you should be careful to exhaust every avenue of escape once you think you have a game changing admission.

Example:

Q. Your car was out of brake fluid at the time of the accident, true?

A. Yes.

Q. Do you know how long your brake fluid had been low before the accident?

A. No.

Q. Do you know how long the fluid level was below the half way mark in the brake fluid reservoir?

A. No.

Q. Do you know when you last had your brake fluid level checked?

A. No.

Q. Do you have a shop or mechanic that serviced your car?

A. No.

Q. Do you have any records or documents to tell us when you last had your brake fluid level checked?

A. No.

Q. Do you know of any documents or writings you could refer to that would tell us when you last, if ever, had your brake fluid checked?

A. No.

Q. Do you know anyone that you can consult with to tell you when you last had your brake fluid checked?

A. No.

Page 45 Q. Have you exhausted every means you can think of to tell us when you last had your brake fluid level checked?

A. Yes.

The example above, even though a simple fact pattern is designed to illustrate the tedium required to nail down an admission.

PLANNING: Documents to be used at Deposition

Deciding on which documents to use as exhibits at a deposition can be another tedious process. Sometimes you have to make a decision whether a particular document is more harmful to your case than helpful. Most seasoned lawyers would rather know what the testimony is going to be concerning a document even if it is not helpful to his or her case. In so doing, the lawyer has an opportunity to strategize on how to take the sting out of the document. Additionally, it might bear heavily on the evaluation of the case and prompt a settlement.

Make sure that your exhibits are organized in a logical fashion for use either chronologically or by topic, whichever is most useful for the deposition. Make sure you have not made any extraneous marks on copies of your exhibits.

If you want to use the deposition in lieu of trial testimony, do not assume that just because the witness recognizes the document that it is authenticated. Make sure either the deponent or another witness can authenticate the document and lay the proper foundation for its admission into evidence.

CONCLUSION:

Your knowledge of the case and of the witness should be key driving factors in how you approach and prepare for deposing a lay witness. This chapter is intended to present helpful considerations and techniques you can utilize in your thought process as you develop your plan for deposing a lay witness. While this is not meant to be an exhaustive guide, it does provide a checklist of considerations including: the type of witness; unique witness characteristics, e.g. hostile, biased, technically knowledgeable, culturally diverse, non-English speaking, etc.; and the purpose of the deposition. The answers to these questions will help you determine if deposing the witness is in the best interest of your case. If so, it assists you in developing the appropriate chronology of interrogation; determining other services you should engage, e.g. translator, technical expert; developing the best types of questions to use to achieve the goals of the deposition; and identifying any documents that should be used in the deposition. Weighing all these considerations should assist you in conducting a successful, goal oriented, deposition.

Page 46 EXAMINATION OF THE 30(b)(6) WITNESS By: Christopher Scott D’Angelo

INTRODUCTION

Under the Federal Rules, and under the rules of most if not all States,2 a party may seek the deposition of a corporation or other entity, whether a party or non-party.3 The deposition will be through one or more representatives chosen by the entity to be deposed (the “designee”).4

Rule 30(b)(6) requires that the corporate designee “testify about information known or reasonably available to the organization.” The testimony is then binding on the entity.

In a seminal case on the interpretation of Rule 30(b)(6),5 the court elaborated on the role of the corporate designee and the duty to prepare:

2 For purposes of this chapter, references will be made to the Federal Rules of Civil Procedure. It therefore is imperative to check state rules for any variations and specific requirements that may be different or even at odds with the Federal Rules. Further, references to corporations or corporate designees in this chapter include all organizations and entities contemplated by Fed. R. Civ. P. 30(b)(6).

3 See, e.g., Fed. R. Civ. P. 30(b)(6); Pa. R. Civ. P. 4007.1(e); and N.Y. C.P.L.R. 3106. Fed. R. Civ. P. 30(b)(6) states:

Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

4 Id. While Rule 30(b)(6) allows the examining party to notice the deposition of a corporation and move the burden to the corporation to designate the appropriate witnesses, the examining party could also name an officer, director or managing agent of the corporation, without having to go through Rule 30(b)(6) or specifying the subjects beforehand. See Fed. R. Civ. P. 30(b)(6). Such witnesses may also bind the corporation, and thus it is wise for particularly such witnesses to be prepared as appropriate and know when not to surmise or go beyond personal knowledge. See Fed. R. Civ. P. 32(a)(3); 7 MOORE’S FEDERAL PRACTICE 3D §30.02[2].

5 United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996) (citations omitted) (emphasis added). See also Barron v. Caterpillar, Inc., 168 F.R.D. 175, 176 (E.D. Pa. 1996) (“Rule 30(b)(6) allows an entire corporation to speak through one agent . . . Rule 30(b)(6) also imposes a duty to produce an individual with knowledge over the relevant subject matter.”); Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995) (a corporation has “a duty to provide a witness or witnesses with the requisite knowledge and to prepare these witnesses, despite the difficulty of investigating the subject matter requested by the deposing party”); Dravo Corp. v. Liberty Mutual Ins. Co., 164 F.R.D. 70, 75 (D. Neb. 1995) (quoting Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1986)) (“If no current employee has sufficient knowledge to provide the requested information, the

Page 47

“The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponent . . . The corporation appears vicariously through its designee. If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation. Thus, the duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved . . . Moreover, the designee must not only testify about facts within the corporation’s knowledge, but also its subjective beliefs and opinions.”

The purpose of this rule is, in large part, to prevent “bandying,” which occurs when a corporation provides a string of employee-deponents, all of whom disclaim knowledge of deposition topics, due to the fact that a different person in the corporation actually possesses that knowledge.6

Accordingly, the choice of the designee or designees becomes of utmost importance. Who has the appropriate knowledge, who makes a good representative, and what must or should the entity and representative do to be prepared for the deposition? Practically speaking, however, the organization being deposed often struggles to select a representative who is able to testify fully about the designated topics without disclosing too much information, while lawyers taking 30(b)(6) depositions are often irritated when the 30(b)(6) designee the organization selects is not able to testify as comprehensively as the lawyer believes he should.

In fact, if approached thoughtfully and properly, 30(b)(6) depositions can be an effective way for the organization to present its story.

NOTICE OF DEPOSITION

As stated above, the deposition notice under Rule 30(b)(6) may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity; in doing so, the notice must describe “with reasonable particularity” the matters on which examination is sought. Subject to Fed. R. Civ. P. 34, the Notice may also contain a request for documents (duces tecum). party is obligated to ‘prepare [one or more witnesses] so that they may give complete, knowledgeable and binding answers on behalf of the corporation.’”).

6 Canal Barge Co. v. Commonwealth Edison Co., No. 98 C 0509, 2001 U.S. Dist. LEXIS 10097, at *2 (N.D. Ill. July 18, 2001) (“Rule 30(b)(6) is designed to prevent business entities from ‘bandying,’ the practice of presenting employees for their deposition who disclaim knowledge of facts known by other individuals within the entity.”); Alexander v. FBI, 186 F.R.D. 148, 152 (D.D.C. 1999) (“All of these duties correspond to the ultimate underlying purposes of Rule 30(b)(6) –namely . . . eliminating ‘bandying,’ which is the name given to the practice in which people are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to the organization itself.”). See also Brazos River Auth. V. GE Ionics, Inc., 439 F.3 416 (5th Cir. 2006).

Page 48

The "reasonable particularity" requirement will generally be enforced by the court; as one court stated, “the requesting party must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute."7 A generalized statement of the subject matters as "any matters relevant to this case" will not meet the "reasonable particularity" requirement.

Once the notice of deposition is received, the corporation must designate one or more directors, officers or managing agents, or other persons who consent to testify on the corporation’s behalf, and set out the matters contained in the notice on which each designee will testify. Rule 30(b)(6) provides an advantageous tool to one wishing to take discovery of a corporation or other entity, particularly when the examining lawyer, as is often the case, is uncertain as to which individuals associated with the corporation have knowledge on a particular subject. The procedure puts the burden on the corporation to identify a witness or witnesses to testify on with respect to specified subjects. As stated above, one purpose of the rule is to avoid the need to depose many witnesses in search of those with relevant knowledge.8 And as stated above, if approached thoughtfully and properly, 30(b)(6) depositions can be an effective way for the organization to present its story.

Likewise, it is important to review the notice promptly and carefully. The deposition of the organization is to be by “one or more directors, officers or managing agents, or other person[s] who consent to testify on its behalf.” The Rule does not require production of the “person most knowledgeable” even though many lawyers often use this language because it may cause such a person – or the “PMK” in the parlance of some jurisdictions - to be produced or it is used as an attempted intimidation or jury tactic. Lawyers for corporate deponents should not get sucked into this concept or parlance.

Further, if there are issues with the clarity, specificity, scope or breadth of, or other issues with, the specified matters to be the subject of the deposition, they should be addressed at that time, through either objections or preferably by a motion for protective order.9 Negotiations or “meet-and-confers” can often address or reduce concerns, or allow for more efficiency, before the deposition begins.

CHOICE OF DESIGNEE – OBLIGATIONS OF PREPARATION

It is not necessary that the corporate designee selected have any personal knowledge or, as stated above, be the “person most knowledgeable” concerning the specified matters as

7 Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000); see also Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1058 (7th Cir. 2000); Alexander v. Federal Bureau of Investigation, 188 F.R.D. 111, 114 (D. D.C. 1998) . 8 See also DSM Desotech Inc. v. 3D Sys. Corp., 2011 U.S. Dist. LEXIS 3292, at *24-*25 (N.D. Ill. Jan 12, 2011) ; Ethypharm S.A. France v. Abbott Labs., 2010 U.S. Dist. LEXIS 120544 (D. Del. Nov. 15, 2010); Craig M. Roen & Catherine O'Connor, Don't Forget to Remember Everything: The Trouble with Rule 30(b)(6) Depositions, 45 U. TOL. L. REV. 29, 30 (2013). 9 See Fed. R. Civ. P. 26(c).

Page 49 long as he or she is able to provide binding answers on behalf of the corporation. The 30(b)(6) witness is meant to represent the collective knowledge of the corporation; because of this, the designated individual may need to review available materials such as past depositions, exhibits, corporate records, financial records, design records, sales records, employee files, etc., in order to become educated enough to speak for the organization. Similarly, the designee may have to meet with people from within the organization or even former directors, officers and employees in order to become educated on the topics for which he has been selected to testify. It is important to note that, at deposition, 30(b)(6) designees are not testifying as to their personal opinions and beliefs, but rather presenting the corporations’ positions on the topics.10 Further, the designee is not providing only facts, but can be examined as to the corporation’s opinions and beliefs.11 The designee is not speaking about the organization, but is speaking for it.

The Taylor court contended, and other courts agree, that this duty to designate and prepare a representative to speak for the corporation in a deposition, applies even when “a corporation . . . no longer employs individuals who have memory of a distant event or that such individuals are deceased.” 12

Often it is the corporate in–house lawyer or outside lawyer who conducts the investigation and, in fact, may have the best overall understanding of the information or facts. Corporations should resist any temptation to designate such in-house counsel – or even an outside counsel - as the Rule 30(b)(6) witness except in the rarest of occasions and with extreme caution; such a choice carries with it substantial inherent risks (e.g., waiving attorney- client privilege or work product protections, with far-reaching consequences). Likewise, it is best if the designee conducts his or her own investigation and speaks directly to appropriate personnel reasonably expected to have relevant knowledge, even if it is essentially a repeat of what counsel had done, and if utilizing others to assist in gathering the requisite information or documents, to engage those within the organization whose responsibility encompasses the subject, task or department. The duty to be prepared may also involve interviewing former directors, officers and employees.

The designee must also be ready to testify about what he or she did to prepare for the deposition, with whom the designee or designee’s assistants spoke and why, and what documents were sought and reviewed by the designee or the designee’s assistants and why, and to explain how and why it was a reasonable investigation and search under the

10 See generally Sprint Commc’ns L.P. v. Theglobe.com, 236 F.R.D. 524 (D. Kansas 2006). 11 See, e.g., Lapenna v. Upjohn Co. 110 F.R.D. 15, 20 (E.D. Pa. 1986) (corporate designee may be compelled to testify about corporation’s subjective opinions and beliefs). 12 166 F.R.D. at 361. See also Dravo Corp., 164 F.R.D. at 75 (quoting Marker, 125 F.R.D. at 126) (“If no current employee has sufficient knowledge to provide the requested information, the party is obligated to ‘prepare [one or more witnesses] so that they may give complete, knowledgeable and binding answers on behalf of the corporation.’”).

Page 50 circumstances.13 This is particularly important where the designee was not intimately involved in the underlying transaction or issues or where the designee has to respond as to lack of knowledge during the deposition.

A corporation is required to prepare a Rule 30(b)(6) designee only to the extent of the evidence and information reasonably available to the corporation. “If [the corporation] does not possess such knowledge as to so prepare [the designee] or another designate, then its obligations under Rule 30(b)(6) obviously cease, since the rule requires testimony only as to ‘matters known or reasonably available to the organization.’”14 In addition, courts have commented that “both parties should anticipate the unavailability of certain information” when parties litigate practices engaged in and events that occurred many years in the past, and “both parties should expect that the inescapable and unstoppable forces of time have erased items from [the designee’s] memory which neither party can retrieve.”15

Corporations or their counsel may be tempted to designate a witness who is not very knowledgeable or helpful in response to a Rule 30(b)(6) notice. However, if the court finds that the witness was so unprepared, non-responsive or otherwise is unwilling or unable to provide necessary factual information on the specified matters, the corporation may be sanctioned as the equivalent of failing to appear. In such circumstances, courts have ordered corporations to “re-designate” witnesses or designate additional witnesses, and often impose other sanctions when it appears that the corporation has purposely designated a witness who lacks knowledge or was not properly prepared on the specified matters.16 Even when corporations argue that they do not have any further knowledge relating to a particular area, courts have ordered that the designee is obligated to appear and testify as to what the corporation knows or does not know.17 Other courts, however, have rejected motions to compel corporations to produce additional designees where it was shown that the original designee provided the best chance of obtaining the information sought and there was no evidence that the corporation acted willfully or in bad faith.18

13 See Fed. R. Evid. 612 (an adverse party is entitled to inspect and cross-examine a witness on any writing the witness uses “to refresh memory for the purpose of testifying either . . . while testifying, or . . . before testifying, if the court in its discretion determines it is necessary in the interests of justice.”) 14 Dravo Corp. at 76 (quoting Fed. R. Civ. P. 30(b)(6)). 15 Barron, 168 F.R.D. at 177 (ordering additional discovery, but denying a motion to compel the appointment of an additional designee when the products liability case addressed the defects of a front end loader manufactured and designed almost 25 years before). 16 See Fed. R. Civ. P. 37(d)(1)(A)(i), 37(d)(3) and 37(b)(2). See S. Cal. Stroke Rehab. Assocs. v. Nautilus, 2010 U.S. Dist. LEXIS 76508 (S.D. Cal. June 29, 2010) (ordering defendant to pay costs incurred in preparing sanctions motion and fees associated with taking deposition of Rule 30(b)(6) witness who was not properly prepared and did not have requisite knowledge). 17 See, e.g., Barron v. Caterpillar, Inc., 168 F.R.D. 175 (E.D. Pa 1996). 18 Id. (designation of an additional corporate designee was unnecessary but allowing plaintiff to conduct further discovery in an effort to obtain information to supplement the witness’s testimony).

Page 51 Failure to comply with the preparation requirements of Rule 30(b)(6) may result in sanctions. In MCI Worldcom Network Serv. v. Atlas Excavating, Inc.,19 the court sanctioned the corporate deponent because, “[e]ven though [designee] was mostly qualified and the deposition was by no means futile, defendant’s failure to fully prepare him to testify violates Rule 30(b)(6).” But in Crouse Cartage Co. v. Nat’l Warehouse Investment Co.,20 the court held that the Magistrate Judge did not abuse his discretion by deciding that plaintiffs had not violated Rule 30(b)(6) when the designee has been prepared to a certain extent, there was no evidence of “intentional bandying,” and when the Magistrate ordered that the designee be made available for additional deposing.

Some have argued that if a corporate designee does not or is unable to answer questions at the deposition, the corporation should be precluded from presenting any evidence on those issues later.21 This argument was embraced in such cases as Lerardi v. Lorillard, Inc. where the court wrote, “[u]nder Rule 30(b)(6), defendant has an obligation to prepare its designee to be able to give binding answers on behalf of [defendant]. If the designee testifies that H&V does not know the answer to plaintiffs’ questions, H&V will not be allowed effectively to change its answer by introducing evidence during trial. The very purpose of discovery is to avoid ‘trial by ambush’.” 22

However, other courts have rejected such a harsh position. For example, in Taylor, the court noted that “if a party states it has no knowledge or position as to a set of alleged facts or area of inquiry at a Rule 30(b)(6) deposition, it cannot argue for a contrary position at trial without introducing evidence explaining reasons for the change.”23 Similarly, Interstate Narrow Fabrics, Inc. clarified the position in Taylor and rejected plaintiff’s contention that if a defendant’s 30(b)(6) witness cannot answer deposition questions fully, that defendant is then prohibited from providing “evidence on these matters that would show the existence of a material issue of fact.”24 Instead, the court focused on the fact that “statements in a 30(b)(6) deposition are not the same as judicial admissions” and “that under certain circumstances the corporation may contradict the testimony at trial.”25 Finally, the court held that the defendant in that case was “not precluded from providing evidence different or beyond that which was provided at its 30(b)(6) deposition, and summary judgment will be decided with reference to all appropriate evidence.”26 In short, a corporate party or deponent can change or add to the

19 MCI Worldcom Network Serv. v. Atlas Excavating, Inc., No 02 C 4394, 2004 U.S. Dist. LEXIS 2736, at *6 (N.D. Ill. Feb. 23, 2004). 20 Crouse Cartage Co. v. Nat’l Warehouse Investment Co., IP02-0071-C-T/K, 2003 U.S. Dist. LEXIS 9066, at *17-19 (S.D. Ind. April 10, 2003). 21 See Interstate Narrow Fabrics, Inc. v. Century USA, Inc., 218 F.R.D. 455 (M.D.N.C. 2003). 22 Lerardi v. Lorillard, Inc., No. 90-7049, 1991 U.S. Dist. LEXIS 11320, at *8-9 (E.D. Pa. Aug. 5, 1991) (quoting Fed. Deposit Ins. Corp. v. Butcher, 116 F.R.D. 196, 201 (E.D. Tenn. 1986)). 23 166 F.R.D. at 362 (emphasis added). 24 Id. at 461-62. 25 Id. at 462. 26 Id.

Page 52 testimony or record the same way that an individual party or deponent can, and likewise be subject to cross-examination based on any such changes.27

In situations when at least one Rule 30(b)(6) designee has been provided, but the designee could not answer all of the questions and the deposition topics in question were found to be too legally complicated or too burdensome, some courts have refused to compel the appointment of additional designees, and have ordered that other discovery methods be used, such as contention interrogatories. “Whether a Rule 30(b)(6) deposition or a Rule 33(c) contention interrogatory is more appropriate will be a case by case factual determination.”28 In Canal Barge, the court noted that “some inquiries are better answered through ‘contention interrogatories’ when the questions involve complicated legal issues.”29 Similarly, the court in Medtronic Sofamor Danek, Inc. v. Michelson,30 held that “the use of a contention interrogatory at that time and stage of litigation would be the quickest, most efficient, and most inexpensive way to obtain the required information.”

EXCEEDING THE SCOPE OF THE NOTICE, EFFECT OF DESIGNEE’S TESTIMONY

Issues often arise during a 30(b)(6) deposition when the examining lawyer seeks to expand the examination beyond the specified matters for which the representative has been designated. Clearly, the notice and fairness requirements, and the obligations of preparations, would be for naught if the examiner could stray beyond the specified matters identified in the notice. However, there is a split among the jurisdictions as to whether the examiner is limited to the scope of the notice or may continue beyond it. Some hold that it is patently unfair and contrary to the Rule to make a designee testify as to matters that are unrelated to the matters for which he or she has been designated, let alone for which the designee is prepared to testify.31 On the other hand, the Rule also states that “[t]his paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.” The examining party could simply notice another deposition of the individual, and some counsel have taken to serving a “concurrent” notice for the deposition of the designee as an individual witness to avoid the issue.

The trend in most jurisdictions is that a 30(b)(6) deposition is not limited to the matters listed in the notice. If the examiner asks questions outside the scope of the notice, the general deposition rules apply so that relevant questions under Rule 26 may be asked. However, a

27 See, e.g., A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630 (7th Cir. 2001); Continental Cas. Co. v. First Financial Employee Leasing, Inc., 716 F. Supp. 2d 1176 (M.D. Fla 2010). 28 Taylor, 166 F.R.D. at 362 n.7. 29 Canal Barge, 2001 U.S. Dist. LEXIS 10097, at *6 (holding that plaintiff’s “quite fact-specific inquiries . . . are more appropriately posed in a Rule 30(b)(6) deposition rather than through contention interrogatories”). 30 No. 01-2373 MIV, 2003 U.S. Dist. LEXIS 24234, at *3. (W.D. Tenn. Dec. 18, 2003). But see, contra, Lerardi, 1991 U.S. Dist. LEXIS 11320, at *3-4 (quoting Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1986)) (rejecting defendant’s request that discovery be obtained via contention interrogatories and not a 30(b)(6) deposition, because, “‘the deposition process provides a means to obtain more complete information, and is, therefore, favored.’”). 31 See, e.g., Paparelli v. Prudential Ins. Co. of America, 108 F.R.D. 727, 730 (D.C. Mass. 1985).

Page 53 30(b)(6) witness’s answers to questions outside the scope of the notice of the deposition will typically not bind the organization and the organization cannot be penalized if the witness does not know the answer to a particular question; such answers are treated as answers of the individual deponent. 32

Going beyond the scope of the specified matters is a tactic often employed by experienced attorneys, so the defending attorney must be ever vigilant and be sure the record remains clear as to the proper scope and the “role” of the witness in responding to questions. Accordingly, because 30(b)(6) witnesses, like other deposition witnesses, generally cannot be instructed not to answer questions other than to preserve a privilege, enforce a limitation ordered by the court or to present a 30(d)(3) motion ,33 counsel must thoroughly prepare their witnesses for this eventuality and to be likewise ever mindful of the distinction and make sure that the his or her responses reflect the role in which the witness is responding. Likewise, it is imperative that the corporation’s counsel to object on the record “early and often” during the deposition and otherwise make it clear that the examination has strayed outside the specified scope, rendering that portion not a “30(b)(6)” deposition but an individual deposition. Failure to do so may result in a waiver of such objection or the use of the deposition beyond that contemplated by the notice.

BINDING NATURE OF TESTIMONY

Once the corporation has designated a deponent on a particular issue, it becomes “bound” by that designee’s testimony.34 It may also be used “for any purpose” at trial, regardless of whether that individual is available to testify.35 When a 30(b)(6) designee is selected by the corporation, the corporation has in effect represented that the witness is authorized to speak for the organization on the specified matters, unlike other employees not so designated who are deposed during the course of litigation.36

Some courts have emphasized that the organization is bound by the designee’s testimony in the same way that any other witness is bound, differentiating between binding testimony, which can be refuted by additional evidence at trial, and judicial admissions, which

32 See, e.g., Sprint Comms. L.P. v. Theglobe.com, 236 F.R.D. 524 (D.Kansas 2006); Detoy v. City and Cty. of S.F., 196 F.R.D. 362, 367 (N.D. Cal. 2000); Cabot Corp. v. Yamulla Enters., 194 F.R.D. 499 (M.D. Pa. 2000); King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995 (“in sum, this Court concludes that Rule 30(b)(6) cannot be used to limit what is asked of a designated witness at a deposition. Rather, the Rule simply defines a corporation's obligations regarding whom they are obligated to produce for such a deposition and what that witness is obligated to be able to answer.”). 33 See Fed. R. Civ. P. 30(c)(2). 34 See, e.g., Beazer East, Inc. v. Mead Corp., 2010 U.S. Dist. LEXIS 129202, at *9 (W.D. Pa. Dec. 6, 2010) (“In producing representatives for a Rule 30(b)(6) deposition, a corporation must prepare them to give complete, knowledgeable and binding answers.”). 35 Fed. R. Civ. P. 32(a)(2) and (3). 36 Lapenna, 110 F.R.D. at 20.

Page 54 cannot.37 Statements in a 30(b)(6) deposition are not the same as judicial admissions and that under certain circumstances the corporation may contradict or add to the testimony at trial.38 Conversely, other courts have held that a 30(b)(6) witnesses makes conclusive judicial admissions on behalf of organizations because the deposition is the statement of a party in a “representative capacity” or “by a person authorized by a party to make a statement concerning the subject.”39 In short, a corporate party or deponent can change or add to the testimony or record the same way that an individual party or deponent can, and likewise be subject to cross-examination based on any such changes.40

Courts have also held that testimony that is a legal conclusion rather than “factual admissions” or opinions are not binding on the corporation.41

A deponent or party may reserve the right to read and make changes to the deposition transcript.42 In the 30(b)(6) context, it is usually advantageous – many say de rigeur given the import of such depositions – for the designee to reserve reading and signing. This request must be made before the deposition is completed and the “usual stipulations”, if used, must be limited in this way. If the witness or counsel reserves this right, the designee will be afforded thirty days to review and make changes to the transcript; the witness must create and sign a statement which lists the changes and the reasons for making them.

37 E.g., Radian Asset Assurance, Inc. v. Coll of the Christian Bros., 2010 U.S. Dist. LEXIS 127390, at *8 (D.N.M. Nov. 16, 2010) (“[T]he testimony of a Rule 30(b)(6) representative, although admissible against the party that designates the representative, is not a judicial admission absolutely binding on the party.”). 38 Id. at 462. 39 Fed. R. Evid. 801(d)(2)(A) and (C); see also River Oaks Furniture v BDO Seidman (In re River Oaks Furniture, Inc.), 276 B.R. 507, 525 (N.D. Miss. Bankr. 2001). 40 See, e.g., A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630 (7th Cir. 2001); Continental Cas. Co. v. First Financial Employee Leasing, Inc., 716 F. Supp. 2d 1176 (M.D. Fla 2010). 41 See, e.g., AstenJohnson, Inc. v. Columbia Cas. Co., 562 F.3d 213 (3rd Cir. 2009); R&B Appliance Parts, Inc. v. Amana Co., L.P., 258 F.3d 783 (8th Cor. 2001). 42 Fed. R. Civ. P. 30(e).

Page 55 EXAMINATION OF EXPERT By: Jane A. North

A. PRELIMINARY CONSIDERATIONS

The Federal Rules of Civil Procedure permit depositions to be conducted of an opposing party’s expert. Rule 26(b)(4)(A) provides “A party may depose any person who has been identified as an expert whose opinions may be presented at trial.” A tactical decision needs to be made early on whether the deposition of an opposing expert is appropriate. If there is any question about whether an expert is properly credentialed or qualified to render the opinions he is rendering, a deposition should definitely be taken to fully explore those issues. Similarly, if counsel knows that the expert is espousing a theory that is new or controversial to the relevant scientific/medical/engineering community, a deposition should be taken to explore the bases of the opinions, the reliability of the methodology and the expert’s responses when challenged with opposing contrary studies and literature. Be mindful, however, that defense counsel’s questioning of the expert in advance of trial inevitably reveals the defense’s theory of the case and some of the defense trial strategy. Therefore, just as the deposing attorney is being educated about the bases of the expert’s opinions, so too is the expert being educated on how to handle these same types of questions at trial. “Occasionally an attorney will forgo deposing an expert because of fear that the deposition will result more to educate the expert and the opponent about the examining attorney’s trial strategy and prospective cross-examination than to provide the examining attorney with information that will assist in impeaching the expert or aid the examining attorney’s case.” See Graham, Discovery of Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure: Part Two, an Empirical Study and a Proposal, 1977 U. Ill. L. Rev. 169, 186.

Another important consideration is the cost of conducting the deposition. A party seeking to depose the opposing party’s expert must pay the reasonable fee for the time the expert spends preparing for and attending the deposition. Fed. R. Civ. P. 26(b)(4)(E)(i). To make the expert deposition more meaningful, counsel may want to also have their own testifying expert present to provide information during the deposition about additional questions based upon the witness’ answers. Again, there is a cost associated with that so the attorney must balance the benefits and risks of proceeding with the deposition. Generally, experts qualify as persons whose presence at a deposition can be shown by a party to be essential. Williams v. Electronic Control Sys. Inc., 68 F.R.D. 703, 703-704 (E.D. Tenn. 1975). Experts can be excluded from depositions only upon a showing of good cause. Lumpkin v. Bi-Lo, Inc., 117 F.R.D. 451, 453 n. 1 (M.D. Ga. 1987). Rule 615 (c) of the Federal Rules of Evidence may also be invoked to support the need for an expert to attend an opposing party’s expert and provides that while the court can order witnesses excluded so as to not hear each other’s testimony, “…a person whose presence a party shows to be essential to presenting the party’s claim or defense”, is permitted to be present during testimony. Fed. R. Civ. P. 615( c).

Page 56 B. TOPICS TO COVER WHEN DEPOSING OPPOSING EXPERTS

If, after weighing the pros and cons of deposing the opposing expert, the attorney concludes that the deposition should be taken, the scope of the deposition needs to be carefully mapped out. There are many strategic and tactical considerations that must be considered well in advance. However, generally, the following topics should be covered:

The expert’s qualifications, experience and expertise.

The expert’s experience with the particular issue involved.

The scope of the expert’s retention by the other side.

The retention terms, i.e. contingency or hourly.

The expert’s relevant publications on the issue.

The frequency that the expert testifies for opposing counsel’s firm or for plaintiffs versus defendants generally.

The information that opposing counsel gave the expert and whether or not the expert asked for any additional information to consider.

The time the expert spent evaluating the information.

How much of the work was performed by the expert versus by his staff members.

The expert’s methods for keeping records of his tests/analysis/work performed.

The opinions the expert has formulated and the basis for each opinion.

The authorities, references and texts that the expert relied upon in reaching his opinions.

The parameters of each opinion rendered.

The issues upon which the expert has no opinion.

Any change in facts that would cause the expert to revise his opinions.

Whether the expert’s theories are supported by generally accepted principles in the expert’s respective field.

Page 57 This list is not exhaustive and counsel will need to tailor it to the specific issues involved in your case. As a general rule, the cross-examination of the expert should not be overly aggressive, since it might dilute the effectiveness of the deposition. Remember that counsel is taking the deposition to gather information, not suppress the free flow of information during the deposition. If the expert feels cornered in the deposition, he may not be as forthcoming in his responses to questions. Instead of counsel being educated on the parameters of his opinions and locking him in on those opinions, counsel may instead, only educate him on how to handle cross-examination.

Consider moving away from the traditional outline which starts with credentials first. The opposing expert will expect that. Instead, it may be beneficial to jump right into the heart of his opinions to throw off his rhythm.

C. EXAMINATION OF THE EXPERT’S FILE

Counsel should always request to see the opposing expert’s file before the start of the deposition. Well in advance of the deposition, the notice of deposition should be served, which specifies exactly what documents the expert should bring to the deposition. Although an expert usually lists within his report what documents he was provided with to consider, the deposing attorney should request that all of these records be brought to the deposition to make sure that the expert was given complete records and not hand-selected records by opposing counsel. For example, in a medical deposition, if the medical expert lists that he has reviewed the plaintiff’s family physician’s records, make sure the notice of deposition asks for the medical expert to bring those records to the deposition. The deposing attorney may find that he was only given selected portion of the family physician’s records or only those records that post-date the accident rather than a full and complete set. Under this scenario, counsel could successfully establish that the expert did not have the benefit of any prior medical records that showed a pre-existing similar injury or illness. If the expert’s files show that based upon what information he was provided with, he should have known that there were other prior medical records that he should have received, ask him what efforts if any he made to obtain those other records and if no effort was made, why not.

The expert’s notes will often be revealing, particularly if they are notes from an inspection or notes reflecting calculations made by the expert. These notes can be marked as exhibits during the deposition and counsel can ask the expert to take counsel through his calculations or explain what each notation from the inspection meant. This information can be shown to the defense expert later to make sure that his calculations were done properly or that his inspection covered all critical relevant aspects of the property, product, etc.

The deposing attorney is also permitted to see the bills generated by the expert and any retention letters between the expert and counsel. However, in December of 2010, there was an amendment to Rule 26 of the Federal Rules of Civil Procedure, which regulates the permissible scope of expert discovery. Specifically, Rule 26(b)(4)(C) now explicitly protects from disclosure communications between a party’s attorney and a testifying expert witness to the extent these communications constitute attorney work product. There are three minor

Page 58 exceptions to that general prohibition. A party may obtain from an opposing party’s expert: (1) communications related to compensation for the expert’s study or testimony; (2) communications related to identify facts or information that the party’s attorney provided to the expert and that the expert considered in forming the opinions to be expressed; and (3) communications which identify assumptions that the party’s attorney provided and that the expert relied upon in reaching his/her opinions. Fed. R. Civ. P. 26(b)(4)(C) (i)-(iii) (revised December 1, 2010).

By way of example, if an attorney retains an expert and sends him an initial letter which sets forth some basic facts and his theories of liability against a defendant and further sets forth what assumptions the attorney has made in supporting those theories, arguably, that letter is discoverable since the attorney is in essence “selling” his expert on a particular theory. If, on the other hand, the attorney writes to his expert asking him to refute a particular defense raised by the other side, but does not offer any assumptions, that letter would be protected from disclosure.

The expert file may reveal an expert’s thoughts on facts that were harmful to his side of the case or may reveal that in fact, he only considered one side’s version of the events. By locking in the expert through his sworn testimony that he has produced all discoverable portions of his file and that he did not consider certain information helpful to the defense, counsel will have boxed him in before trial. If, at trial, he claims that he did consider this other defense-oriented information, counsel can easily cross-examine him with his pre-trial deposition testimony. Further, if he claims that since the pre-trial deposition, he did review and consider this information, counsel can still score points with the jury that defense counsel had to bring to his attention at his deposition all that he had failed to consider, essentially shaming him into doing his job adequately. Either way, defense counsel will score points with the jury.

Counsel should have the expert read into the record each handwritten note so there is no later confusion about what the note meant. The deposing attorney can subpoena the expert to produce all discoverable portions of the file to ensure that all discoverable portions of his file have been produced (some states require only a notice to produce). Obviously, it would be more cost effective to the client to get the expert’s file in advance of the deposition so that the client is not incurring unnecessary cost of reviewing file at the expert’s deposition while his clock is ticking.

Additionally, the Federal Rules of Civil Procedure now prohibit the disclosure of drafts of any expert report or expert disclosure, even if that report is in a written form. Specifically, Rule 26(b)(4)(B) protects such draft reports from disclosure. According to the committee notes, which explain the rule changes, there was widespread agreement between the plaintiff’s bar and the defense bar that permitting such expert communications and drafts had an undesirable effect, including heightened discovery costs. Further, the concern was that parties would simply incur “shadow experts”, i.e. non-testifying experts, at additional cost to shield testifying experts from producing certain information that a non-testifying expert would have no obligation to reveal. The committee was also concerned that unfettered discovery of expert communications might inhibit the communication needed between an attorney and his expert.

Page 59 The amendment was designed to “ensure that lawyers may interact with retained experts without fear of exposing those communications to searching discovery.”

D. EXPLORING THE EXPERT’S QUALIFICATIONS

An expert’s resume, or curriculum vitae, is often a reflection of what the expert perceives himself to be rather than an accurate portrayal of the expert’s actual experience and credentials. Engineering experts, for example, may list a wide array of products they have examined, but it very well be that the expert only had one such case and has no particular expertise about how the product at issue functions. Therefore, the deposing attorney should question an expert about all of his prior experience, including the number of cases he has handled on a particular topic, the date the expert handled these cases, whether or not he was qualified as an expert in those cases and whether or not he testified. Counsel may find that while the expert represented himself as an expert on riding mowers, for example, he only handled one case, twenty years ago. Additionally, counsel’s questioning may reveal that this expert considers himself an expert on so many types of products, that it makes the expert look foolish. For example, in a recent case, an expert indicated that he was an expert in everything from playground, pools, office buildings, sidewalk construction, toilet design and construction and lawnmowers, among fifty other examples. This gave the impression that this expert thought he had specialized knowledge about everything and the jury’s perception was that he would say anything so long as he was paid.

If the expert claims that he belongs to a particular professional society and suggests that his membership should be given weight, counsel must scrutinize what exactly that means. For example, what are the requirements for membership? Does the expert simply pay dues to be in good standing? Does the expert claim to have spoken on the subject at issue? If so, question the expert extensively on any seminar he has given or publication he has authored so that a paralegal can try to research whether or not these are things the expert legitimately presented or authored. Try to get the actual seminar materials or publications since he may have said something therein that is contrary to the opinions he is giving in the case. Confirm the expert’s educational background to make sure that he actually graduated from the universities listed rather than having simply taken a course there.

Questions should be asked about what publications the expert subscribes to and what publications the expert believes are authoritative in his field. Counsel should find out in advance from his own expert what publications or treatises are authoritative in the relevant field. Make sure the expert is asked about those authoritative publications and treatises so that the deposing attorney can lock the expert into whether or not he agrees that they are authoritative. By doing so, if that publication has published articles that are contrary to the expert’s opinions in the case, defense counsel can discredit him at trial. Since the expert’s curriculum vitae will list any publications that the expert has authored, review them carefully to see whether the expert has been published in any publication either plaintiff’s expert or the defense’s own expert find authoritative.

Page 60 Another point to remember is that if the expert is part of a consulting firm, it may be worth spending some time exploring what other experts within his consulting firm have opined on the relevant topic. An expert will not like to discredit another fellow expert’s opinions from the same consulting firm, so the expert involved in your case may soft peddle his own opinions to try to be as consistent as possible with his colleague.

E. QUESTIONING THE EXPERT REGARDING THE LIMIT OF HIS/HER OPINIONS

It is not enough to ask an expert what work the expert has performed in reaching his opinions. This gives the expert too much wiggle room to adjust his opinions. Instead, the deposing counsel must box the expert in and out, meaning that counsel should not only ask what the expert has reviewed, considered, and done to formulate his opinions, but also what facts, theories, opinions or methods were either considered and rejected by the expert or not considered at all. What information was the expert given to consider and did the expert ask for additional information to either rule in or out a particular theory?

Counsel should not let an expert hide behind technical jargon or be intimidated by a response that counsel does not understand. Counsel should press the expert to simply his explanations and use layman’s terms until counsel understands what the expert is saying.

In order to box an expert in, counsel should ask a series of questions about the basis of the expert’s opinion. Then, when the expert has identified all of the basis for the expert opinions, counsel should ask a follow-up summarizing question, asking, “You base your opinion that ______on the following pieces of information: A.__, B.__ and C.__ and nothing else, correct?” By doing so, the deposing attorney will have boxed in the expert on this opinion. If at trial, during cross-examination, the expert tries to claim that he did consider some of the information defense counsel believes should have been considered and was not, defense counsel can impeach him with his own deposition testimony.

A quandary the deposing attorney faces is how far to challenge an expert’s opinions during the deposition. On one hand, if counsel does not challenge the expert on some of his opinions, then counsel will not know how the expert would respond to these same types of questions at trial. On the other hand, if counsel reveals too much of his cross-examination during an expert deposition, the expert will be fully prepared to address those questions at trial. Most deposing lawyers would rather be armed with the knowledge of what the expert will say in advance of trial rather than be surprised at trial.

Another potential land mine for the deposing attorney is whether or not to ask the opposing expert any questions that go beyond the opinions he has given in a report or provided in answers to expert discovery. Some lawyers believe that the door should not be opened, since it will give the trial court a reason to permit the expert to go beyond the four corners of his report. On the other hand, since most trial judges do give some leeway to a testifying expert, it is expected that there may be testimony given at trial that is beyond the scope of the report. Rather than making it easy for the testifying expert to go beyond the fair scope of his report, counsel can question the expert in his deposition as follows:

Page 61 Q. Do you expect to testify at trial as to any facts or opinions besides those set forth in your answers to interrogatories or your report dated ____?

Q. Have you formed any opinions concerning this case other than those set forth in your answers to interrogatories or your report dated ____?

These questions will help reign in the expert with respect to what opinions he is able to give. It will also create a strong record to show the trial judge if at trial, this same expert espouses a new or different theory than that which he set forth at his deposition.

F. THE MONEY QUESTION

Most lawyers always ask an expert how much they have been paid for the work they did in preparation of issuing a report or answering expert interrogatories and ultimately at trial, how much the expert is being paid for the time spent testifying at trial. While it is appropriate to find out the expert’s hourly rate and how much they have billed on a particular case, most jurors realize that both sides’ experts are being paid. Unless counsel knows that there is a large discrepancy between the hourly rate of the opposing expert to the hourly rate of the defense’s own expert, it may be of little value to try to attack an expert regarding his fees. On the other hand, if the defense’s medical orthopedic expert charges $395 an hour but the opposing side’s similarly credentialed expert charges double that, then pointing out that discrepancy may influence how the jury perceives the higher paid expert, especially if that expert did not review all of the materials that he should have in order to be thorough and render opinions that were based upon all of the available evidence.

What is of critical importance, on the other hand, is how frequently that expert has testified for the opposing law firm (not just the individual lawyer from that firm), how much income he received from referrals from that law firm over a five year period and how much income he derives from testifying for plaintiffs as opposed to defendants. If his deposition testimony reveals huge numbers, defense counsel can use that during trial to suggest a motive for the expert saying anything helpful for the plaintiff. If the expert’s work is primarily performed for plaintiffs versus defendants, that may influence a jury, however, it is likely not as powerful as the actual number of cases and revenue derived from the particular law firm.

If the deposition is held in the expert’s office and he vacillates on giving this information, defense counsel should place on the record that he wants to take a five-minute break so that the expert can print out the cases he has previously had with opposing counsel’s firm or a printout of all income generated from referrals by that firm. Point out on the record that the attorneys are in the doctor’s office, that he has confirmed that his office staff is working on that date and that to his knowledge, such a report can be generated. If the expert does not produce the information, counsel can use that during cross-examination at trial to suggest that he was hiding that information.

Page 62 G. CONCLUSION

Deposing an expert in advance of trial is not an easy task. However, it is of critical importance and when done well, it can lead to the jury disbelieving that expert’s opinions completely. While there is a high cost to deposing an expert in advance of trial, it is well worth the investment if for no other reason than to box in an expert regarding the scope of his opinions and the materials he reviewed or relied upon in reaching his opinions. Sitting in with a more experienced attorney until a comfort level is reached is helpful as well as tremendous pre- deposition preparation and consultation with the defense’s own expert.

Page 63 PREPARING THE CORPORATE CLIENT FOR DEPOSITION By: Joyce C. Wang

INTRODUCTION

This chapter addresses preparation of the corporate client for deposition. These days, depositions play a bigger role than ever in the resolution of cases, as summary judgment motions are filed in increasing numbers, and lawyers are constantly evaluating cases for settlement purposes. The credibility of your client will therefore be critical to your case. And how well we have prepared our client is the single most important factor in how well the deposition goes. Preparation requires a substantial commitment of time – usually several days for each day of testimony. And while taking depositions requires a great deal of skill and finesse, preparing your client for deposition is equally demanding. The best way to avoid a hair- raising day of defending your client in deposition is to thoroughly prepare.

GETTING STARTED

Preparation requires a certain level of commitment as it is time-consuming, tedious and requires a great deal of concentration on the part of both the attorney and the witness. Preparation involves trying to construct as accurately as possible what may have happened years ago primarily by reviewing potentially voluminous documents. In addition to substantive preparation, it is also important to coach your client on how to carefully listen to questions, strategically respond to questions that are designed to trip him or her up, and keep calm if opposing counsel eggs the witness on.

The function of the lawyer is to marshal together all the facts and documents which are relevant to the case, review them with the witness, and work with the witness on making the most persuasive presentation possible through his or her answers. It is important that the witness be as accurate as possible and refrain from guessing about what might have happened. At trial an inaccurate recollection on a minor detail can reflect poorly on the truth of the important testimony given by the witness. It is also important to spend sufficient time in preparation, both substantive and stylistic, so that your client can have confidence in his or her ability to testify. Most witnesses – even experienced ones – have some level of anxiety over the deposition process. Providing some information about the process, what to expect, and his/her role in the case may help alleviate any anxiety, resulting in a better deposition. You should first explore whether your client has any particular concerns about the process or the case. It is also a good idea to cover all the logistics, again to minimize anxiety. This includes such details as what to wear, what time and where to meet, what to bring, where to sit and the like. Below are some suggested topics to cover in the preparation session.

Explain the Deposition Process

A simple explanation of the deposition process can go a long way. Start by explaining that a deposition is a question and answer session attended by a witness, attorneys, certified

Page 64 court reporter and, occasionally, the parties or consultants. Make sure your client realizes that a court reporter will record the questions and statements made by the attorneys and the answers given by the witness verbatim, the testimony is given under oath and can be used at trial and sometimes in cases other than the case being litigated. Make sure your client understands that above all, it is important that he tell the truth. You might want to note that a deposition differs from actual trial testimony in that the deposition is an informal proceeding, it typically lasts longer than trial testimony, attorneys may object but there are no rulings on objections, and the witness has the opportunity to correct his or her answers. (Such corrections may be commented on by opposing counsel at trial, so common wisdom is to be judicious in making any corrections.)

Explain the Logistics

In addition to telling your client how to dress and where to meet, you should explain where the deposition will be held, whether in your office, the office of the attorney taking the deposition, or the offices of the court reporter. If it will be in your office, show your client the conference room where it will be held so he can become familiar with it.

Explain that the court reporter can utilize several methods to record the testimony given at a deposition. Examples would include:

a. Steno typing machine, which might utilize a computer tape cassette as well as a paper tape for recording the deposition.

b. Tape recorder with microphones placed around the room.

c. Voice recorder which involves the court reporter whispering everything into a hand held microphone which resembles an oxygen mask. A backup system consisting of a tape recorder might also be used.

d. Videotape.

Be sure you set the stage by explaining that while the atmosphere of most depositions does not rise to the level of formality depicted in courtroom scenes on television, neither is it a casual undertaking since the context is often an adversarial proceeding, and the testimony has the same effect as it would in court. Even if counsel are on friendly terms, the informality of the deposition should not detract from the seriousness of the matter.

Talk about the lawyer conducting the deposition so your client knows what to expect. Are they aggressive and cunning, straightforward or disarming? Whatever qualities you attribute to the lawyer should not come as a surprise to your client on the day of the deposition. You should instruct your client not to feel intimidated or get upset by the attorney’s conduct; that he should remain calm and not feel defensive.

Page 65 Be sure your client understands that, although you will be at their side, they will not be able to rely on you to provide answers, since it is ultimately their testimony, not yours. While opposing counsel might not be too concerned about occasional discussions between a witness and his lawyer during the course of a deposition, they may not allow it and in any event, this would not be permitted at trial. The deposition should, as much as possible, be used as a way of preparing for testifying at the trial.

Review the Objectives of a Deposition

Explain to your client that the main purpose of a deposition is to learn information about the case, assess the credibility/likability of the witness, obtain admissions and otherwise pin the witness down for purposes of trial. Although depositions are similar to formal interviews which permit the lawyers to ask questions which seek to establish what happened, they can also serve a more purely strategic purpose, such as exposing adverse evidence to the other side or their counsel, or testing witness credibility, which can facilitate settlement. In addition, under certain circumstances, the deposition can be used at trial in lieu of live testimony or to impeach. Because the deposition becomes a record of sworn testimony that cannot be “undone,” depositions can be a harrowing experience for a witness unless thoroughly prepared by his attorney beforehand. Fortunately, a witness is afforded ample opportunity to meet with an attorney before the day testimony is required and the witness can bring his attorney along for assistance at the deposition.

Review the File, Pleadings and Discovery Responses

You should also be prepared to thoroughly review with your client any relevant documents that have been produced by the parties. This is a laborious but necessary process. For a claim handler in an insurance coverage and/or bad faith case, a detailed review of the file can take several days, depending on the size of the file and issues involved. It will be helpful, maybe even crucial, to have the file organized in a way that facilitates review, such as chronologically, or by subject matter. Take the time to discuss any factual disputes and clarify your position. This too may take time – sometimes several hours to decide on how to answer one question or line of questioning. It is worth the investment. Keep in mind, however, that documents reviewed by your client to refresh his recollection may not retain any applicable privileges, depending on the document and the court.

It will also be important to review the key pleadings and discovery responses with your client, as these often serve as a road map for the questioning attorney. This means actively discussing with your client the allegations and assertions of the parties, not just having your client review these documents independently (although it is helpful for both you and your client to review them in advance of your preparation session). You should fully explain the nature of the allegations and theories behind those allegations, and find out what your client thinks they pertain to. This will allow you and your client to get a better understanding of how his knowledge fits into the case, as well as expose any areas he needs to brush up on.

Page 66 Review How to Handle Documents During the Deposition

Documents, unlike people, don’t become less accurate with the passage of time. They will likely form the basis of much of the questioning. Accordingly, be sure to instruct your client:

1. Never testify about the contents of a document unless it is in front of you and you have carefully read it. Have it in your hands and read it carefully and completely before testifying about it. If you want to refer to a document before giving an answer, ask for the document.

2. Always review the whole document on which you are being asked questions, not just the portion on which the lawyer is asking questions, even if a recess is necessary to give you enough time. Be sure you and your client are familiar with which version of the document is being asked about.

3. Don’t assume the examiner has correctly stated the contents of the document. Always review the document before answering.

4. When using documents during your testimony, be specific about:

a) Date of the Document;

b) Author of the Document:

c) Addressee of the Document;

d) Exhibit Number of the Document; if it has one.

5. Referring to a document by its exhibit number will result in a clearer transcript.

Additional Pointers For The Deposition Witness

The following are some additional helpful tips to use in preparing your witness. Some clients will be natural witnesses and take instruction easily; others may have a more difficult time. It is still helpful to review these points during your preparation session.

1. Listen carefully, and think before answering a question. Know your “end game” before you start talking.

2. Try to answer as many questions as possible with a full sentence that states your position. Answering in full sentences maximizes the chances for a clear answer and minimizes the chances that an answer will later be taken out of context or twisted to mean something you didn’t intend to say. Full sentence answers also aid the jury (or judge, mediator or arbitrator) to better understand your whole

Page 67 story and can be an effective way to qualify an otherwise “yes” or “no” question. For example:

Q: Did you graduate from college?

A: [Instead of “Yes”]: I attended the University of Knowledge and graduated with a Bachelor of Science in Chemistry and then went on to obtain an MBA.

Q: Did you consider any documents besides those you’ve identified so far?

A: [Instead of “No” or “No, but…”]: I considered all the documents your client provided to us which as far as we were concerned were not complete.

Q: You didn’t retain an expert to advise you on the condition of the widgets, did you?

A: [Instead of “No” or “No, but…”]: An expert was unnecessary since the widgets were in good working order and their condition was readily apparent.

Note how answering in full sentences focuses the testimony on the answers, rendering the questioning virtually irrelevant. This is particularly advantageous when later quoting testimony – in a motion, brief or letter, for any purpose. Full sentence answers saves the reader from having to read pages and pages of testimony just to be able to understand the context of a simple “yes” or “no.” Giving full sentence answers requires practice, which can be had by role playing with your client as if he were actually testifying in a deposition.

3. Start answering only after you’ve formed a full thought. This will give the attorney a chance to object if the question is not proper, as well as give you the opportunity to organize your thoughts before responding to the question. You do not want to start talking before you know where you’re going with an answer, or you may end up rambling with no known “destination” and bring up unimportant details in the process. Controlling the pace can also have the collateral effect of throwing off the questioning attorney and prevent him or her from getting on a roll.

4. Don’t answer questions you are not sure you understand. If a question is either too complex or unclear, say you do not understand the question. You are also required to answer only one question at a time. If asked more than one question, or a compound question, ask which question the attorney wants you to answer. If you want to see a document before answering, ask for it.

Page 68 5. Answer questions in a way that the average person will understand. For example, when answering a technical question, phrase it in a way that not only the lawyers familiar with the case – but also a regular person such as a neighbor or friend – would understand.

6. Don’t rush your answer. You need to give the court reporter enough time to transcribe your answer. Again, controlling the pace will help your attorney and your testimony, and will not help the questioning attorney. Pauses are not reflected in the transcript, and you are not obligated to fill any silences. The same is true once you have finished your answer. Do not be tempted to embellish an answer simply to fill a long silence. It is the questioning attorney’s job to ask any follow-up questions.

7. Only answer the question asked and nothing more. Volunteering information will only prolong the length of the deposition and probably open up a whole new area of inquiry for the opponent.

8. Do not answer if your attorney objects to a question. Once you hear the word “Objection,” do not answer until you get the go ahead from your counsel.

9. Do not divulge privileged, confidential, or sensitive information without discussing it with your lawyer. Privileged or confidential information sought by an opposing party during the course of a deposition will usually prompt an objection by the attorney for the witness. However, there are certain situations where, despite all preparation, the attorney asking questions of the witness stumbles upon a topic involving sensitive information not previously discussed with counsel. When faced with the quandary of whether this privileged/confidential information need be disclosed, do not panic. Simply say that the question may call for confidential information and for that reason you do not think you should answer. Your attorney can then advise you whether an answer is required.

10. When the opposing lawyer asks an inaccurate or incomprehensible question, don’t assist him in phrasing the correct question. Neither should you respond with the answer to the question you think is being asked.

11. Never guess, testify as to a hunch, or speculate based on what someone told you occurred. If you cannot answer a question with certainty, do not offer an educated guess as to what might have happened. Occasionally, an attorney might play on a witness’s professional pride by making the witness feel bad that he or she does not know the answer. (E.g., “Are you honestly going to tell me that you do not know how you would handle such a situation?”) Resist the temptation to guess. One option might be to say “I really cannot answer that question in a vacuum, without knowing all the facts and circumstances.”

Page 69 12. If you do not remember, do not be embarrassed to say, “I do not remember.” If it is a crucial point, your attorney will take whatever course of action is appropriate under the circumstances to refresh your recollection.

13. Be mindful of note-taking as you prepare for your deposition as your notes may be discoverable.

14. Do not try to be flippant, cute, sarcastic, funny or try to outwit opposing counsel. He probably knows the case thoroughly, has probably thought of all the ways you might try to outwit him and is fully prepared to go at least one step further than the witness. After all, you are up against a professional. Rely on your own counsel to keep opposing counsel in line. The facts will ultimately speak for themselves.

15. Damaging admissions are part of any case (otherwise there would not be a case). Do not try to be evasive; just answer the question, even if the answer is damaging.

16. Try to be as specific as possible on names, dates and places. If you make a mistake and realize it, correct it on the record. Do not wait for the transcript. If a mistake is corrected on the record, even if later in the deposition, it will be very difficult if not impossible for the other side to make use of the incorrect testimony.

17. Just be yourself. Do not try to use big words or try to impress anyone.

18. When testifying about a conversation, specify whether you are quoting or recalling the substance of the conversation.

19. Avoid adjectives such as “never” and “always.”

20. Dress in a professional manner. Even if the attorneys have an agreement to dress business casual, the witness should always dress in business attire.

21. Be courteous to the court reporter. This means not only being friendly and polite, but do not talk when someone else is talking. Speak clearly and at a slower than normal pace especially when reading any part of a document into the record, and say “Yes” or “No”, rather than shaking your head.

22. Do not argue with opposing counsel. Just maintain your position without engaging in a back and forth.

Page 70

PRACTICE

There really is no better way to fully prepare for the art of answering questions, especially when some of them may be trick questions, than role playing. Once you have reviewed the file with the client, re-familiarized him or her with the facts, clarified your positions and done the other substantive preparation needed, you should insist that your client engage in a practice session as there simply is no substitute for practice. It is the same difference between reading a speech to yourself and practicing saying it out loud. If the deposition might be videotaped (most deposition notices reserve the right to videotape the deposition), as many these days are, practice in front of a camera and play it back. (Even if it is not going to be videotaped, this is a useful exercise.) This will help the witness see, and possibly improve upon, how he is coming across both in words and presence. Credibility is paramount, since your client’s testimony will be evaluated by the other side for settlement valuation purposes. Their testimony could also be evaluated by the Court as part of a motion for summary judgment, by a neutral in a mediation or arbitration, or by a jury in a jury trial.

Explain to your client that the purpose of role playing is to help him feel more prepared and therefore give a more concise, effective deposition. It will be important for you to set the stage so you can provide feedback without your client taking it as criticism. You should be prepared to advise your client on distracting mannerisms, suggest clearer wording of answers to avoid misinterpretation, and make other suggestions to make the deposition go more smoothly. Note, however, that you cannot put words in your client’s mouth or otherwise suggest testimony that is inaccurate or untruthful.

If you are not comfortable engaging in a mock cross-examination of your client, enlist a colleague to play the role of opposing counsel. For a particularly important deposition or a particularly difficult witness, you may want to even consider retaining a jury/witness consultant to assist in providing feedback. This saves you from having to personally deliver any criticism to your client.

YOUR ROLE DURING THE DEPOSITION

Every deposition is different, but there are a few cardinal rules that apply to every deposition. You should review these with your client as well.

Never Leave Your Client Alone

No matter how friendly the relationships between counsel, you should never leave your client alone in a room where opposing counsel might come in and engage in even harmless conversation with your client. Even if there are no substantive discussions, this type of rapport may create a false sense that the opposing attorney is a friend or otherwise cause your client to let his guard down during questioning. It is important to explain this to your client in advance of the deposition, and advise him to keep things on a professional level.

Page 71

Stay Alert

Staying on your toes and carefully listening to each question is challenging, but it is a must in order to make timely objections and protect the record as well as your client. After all, this is the attorney’s primary responsibility during the deposition. You will also need to keep track of any areas that you may wish to ask follow-up questions to clarify testimony.

Always Be Professional

You should always maintain a professional, civilized demeanor during a deposition. Your conduct will not only convey competence and professionalism to your client, it will convey confidence in your case and tell the opposing lawyer you will carry yourself in front of a jury in a similar manner.

Page 72 DEFENDING THE CORPORATE CLIENT DEPOSITION By: Gregory B. Scher

As the deposition of a corporate client presents the single greatest risk to a corporate litigant short of trial, effectively defending the deposition is of paramount importance. Just as taking a useful deposition requires thoughtful planning, effectively defending any deposition – especially the deposition of a corporate client – requires deliberate and careful preparation. Having prepared the corporate client with knowledge about what a deposition is, how the process will unfold, and the facts, documents and issues specific to the case at hand, the conduct of the deposition is an exercise in teamwork and focus.

Show Up Early for Review and Recognizance

Although clients cannot be effectively prepared for deposition in the moments immediately before a deposition is scheduled to begin, they can be made more comfortable. Comfort stems from familiarity. Witnesses usually benefit from having some time to familiarize themselves with the environment, review the basic ground rules and discuss any lingering issues they may be concerned about before the deposition gets underway.

Arranging to show up early to the deposition (at least 30 minutes) presents several benefits. Commonly, a witness will experience some degree of anxiety leading up to a deposition. Not many people relish the idea of being interrogated. Arriving early to the deposition venue provides the witness an opportunity to take a look at the room where the deposition will take place and get comfortable with the environment.

Let the witness see where she will be sitting, where you will be (immediately adjacent), and where opposing counsel and the court reporter will be. If the deposition is going to be videotaped, the notice will have said so and you will have discussed it with the witness in advance. Still, the reality of a camera and audio recording equipment in the room can be sobering and even intimidating. It can dominate the room and attract the witness’s focus. To combat that result, let the witness actually see the camera and get used to the idea that it is actually there before she walks into the room to be sworn in. Give her time to get used to the idea.

If necessary, chairs can be re-arranged to give the witness more room. Curtains can be opened or closed to keep the sunlight out of the witness’s eyes. Restrooms can be located. Introductions to other counsel can be made. All of these things can ease anxiety and increase the witness’s comfort level so that the witness can focus on what's truly important – the questions and answers.

Arriving early also presents an opportunity for counsel and the witness to review the basic ground rules discussed during the substantive preparation meeting(s). This is a good time to remind the witness to:

Page 73  listen carefully to the questions

 deliberately pause for a few seconds to absorb the question and give the lawyer an opportunity to do the same and interpose objections, and

 answer only the question asked, directly and economically

I also like to remind the witness about a couple of ancillary points. The first has to do with listening to my objections. You will already have prepared the witness to anticipate that objections will likely be interposed and that the witness should not allow herself to be distracted by the fact that objections are being made, as they do not indicate any problem with her testimony or performance. Rather, remind the witness that you and she are working as a team. While her primary role is to focus on and answer the question unless you instruct her not to do so, you will want to remind the witness that she should also listen for objections you may make regarding the form of the question – particularly the objections that the question calls for speculation, lacks foundation, or constitutes an incomplete or improper hypothetical.

Remind the witness that your objections are serving more than one purpose. Certainly you are making a record and preserving the right to challenge any attempt to use the testimony at trial or in subsequent motion practice. But in a very real sense the objections can also serve as an effective communication tool between counsel and a focused witness. Remind her to take extra time when she hears you object to the form of a question and ask herself:

 Do I really know the answer to this question, or am I assuming or speculating?

 Is the question assuming something is true, when it isn't?

 Is this a hypothetical question; does it contain all the elements I need to provide a meaningful answer?

Remind the witness that if any of those things are true, she should say so. Remind her that "I don't know" or "I can't answer that question" are perfectly acceptable answers.

And remind her that the lawyer asking the questions is not her friend, but rather is there for a single purpose: to interrogate her and get her to say something which is helpful to his client's case, and harmful to the witness, or her employer. Remembering that basic truth should assist the witness in resisting the temptation to get into a conversation with the interrogating lawyer, in tone or substance, no matter how friendly or charming the lawyer may appear.

Before entering the deposition room to begin the proceeding, ask the witness whether there are any substantive issues about the case she would like to review before getting underway. If so, take whatever time is necessary to discuss the issue(s) until the witness is

Page 74 comfortable, even if it means delaying the start of the deposition for a few minutes. It is better to be late than to begin a deposition with a witness who is not comfortable.

Lastly, tell the witness that you will endeavor to call for a break in the proceedings approximately every hour. Doing so serves to reassure the witness that she will have opportunities to consult with you during the day. Getting up from the chair and moving around a bit periodically also helps a witness fend off fatigue. Let the witness know that any time she feels she needs to take a break – for any reason – she should speak up and ask for the break. Although it is universally improper to take a break while a question is pending, I tell witnesses that if they are particularly troubled by a question, they should attempt to answer it in a benign way and then ask for a break before the next question is posed.

If the deposing counsel insists on finishing the line of questioning before taking a break, the defending lawyer can weigh the risks of proceeding without consultation against a potential motion based on alleged improper deposition conduct and decide, based on all the circumstances, whether to break anyway. Ultimately, although it is difficult if not impossible to win a case by giving a deposition, cases can be lost that way. It therefore may be preferable to aggressively protect the witness and the record while risking motion practice, or even sanctions, than to leave an uncomfortable witness without support at a case determinative juncture.

Regarding breaks, it is important to know the rules of your jurisdiction. Some jurisdictions prohibit conferences between lawyer and client during a deposition (or recess) except for the purpose of determining whether a privilege should be asserted. See, e.g., Hall v. Clifton Precision, a Div. of Litton Systems, Inc. 150 FRD 535, 528 (ED PA 1993). Except for the exception noted, lawyer and witness may not speak once the deposition commences. If they do, opposing counsel may inquire into the substance of the conversation. Id. at p. 531-532. In these jurisdictions, your preparation had better be thorough, because your opportunity to influence the deposition once it begins is limited. Absent a showing of improper coaching or interference with the questioning, though, most jurisdictions permit consultation between deponent and counsel during a recess. The attorney-client privilege continues to shield such discussions from inquiry once the deposition resumes. Even these jurisdictions, however, do not countenance breaks and conferences while questions are pending, so caution is warranted.

Once In the Room

Inside the deposition room, the witness needs to know she is not alone. You have already made her familiar with the surroundings, rearranged the furniture if necessary, letting her see the seating arrangements and (if present) the video equipment. Now, when you sit down, pull your chair up close to the witness so she is reminded of your presence; that you are there together, as a team. That proximity both reminds opposing counsel that the witness is not alone and provides the witness with the reassuring presence of her lawyer. As part of that "team" mentality, let the witness know you are looking out for her interests by asking deposing counsel what their anticipated ending time is. The witness will appreciate having that

Page 75 information at the onset if counsel is willing to provide it. If not, be familiar with local rules regarding time limitations to be sure they are not exceeded.

Probably a symptom of anxiety, one of the more common mistakes inexperienced witnesses make is anticipating questions rather than actively listening to them. Often, witnesses fall into a conversational cadence and begin formulating and even verbalizing responses to an anticipated question as soon as, or even before the interrogating lawyer finishes speaking. The most benign result will be that the witness speaks over the question and compromises the clarity of the record. More significant problems may arise when the witness inaccurately anticipates the question and therefore begins answering a question – providing information – never called for. That sort of anticipation also deprives the defending lawyer of time between question and answer to formulate and interpose objections. Sitting close to the witness gives the lawyer an opportunity to control the pace with a non-verbal queue, e.g., placing a hand on the table in front of the witness as an indication that the witness should not speak until the hand is removed. Once a proper pace is established early, witnesses are often able to maintain a more appropriately deliberate method going forward.

Be professional and courteous at all times. Never raise your voice; it is never necessary.

Proper Use of Objections

Objections during depositions of a corporate client are the same as with any deposition – limited.

Privilege is the big one. If missed, it is waived. That is true of any privilege, including attorney-client, doctor-patient, self-incrimination, and trade secrets. Just as the witness must actively listen to questions, so must the lawyer. Remember that the attorney-client privilege protects the content of the communication intended to be confidential, not necessarily the bare fact that a communication occurred, when it occurred, or who was present when it occurred. Indeed, those latter inquiries are permissible.

A corporation can be a client and have a right to the attorney-client privilege. Upjohn Co. v. United States, 449 U.S. 383 (1981). But when does the attorney-client privilege apply with a corporate client? Courts traditionally employed one of two "tests" to make this determination: the subject matter test (which focused on whether the subject matter involved the duties of the employee to the corporation) and the control group test (including those employees in a position of control such that they could play a substantial role in determining what action the corporation would take upon receiving legal advice). The current trend, however, focuses on whether the matters discussed are encompassed by the corporate duties and responsibilities of the employee.

For example, suppose that Candice Smith called Lawyer Jones on behalf of Smith's corporation, Sieve Insurance Company (SIC). Smith is the president or chief operating officer of SIC, and discusses with Jones new claim handling regulations issued by the Department of Insurance and how they impact SIC's operations. As Smith is the president of the corporation,

Page 76 the privilege clearly extends to these communications. But if the call is made by Sally Digits, the corporate actuary, the answer becomes less clear. Based upon the current trend, Digits's conversations with the attorney are privileged so long as the issues she discusses with the attorney are directly related to her responsibilities within the company.

But what is the result when an employee seeks advice in her individual capacity? Most courts will extend the attorney-client privilege to corporate officers, even in their individual capacity, upon a showing that the corporate officer communicated with counsel concerning personal matters such as potential individual liability. Not surprisingly, the showing required of the corporate employee is stringent, and even when made, certain information might create a conflict of interest for the corporate attorney. In that case, the corporate attorney must end the conversation and advise the corporate employee to seek separate counsel.

In-house counsel presents its own challenges. While communications concerning corporate legal matters between in-house counsel and outside counsel normally are privileged, when the communication is between a representative of the corporation and the in-house counsel, the distinction is less clear. Because in-house counsel often wears several hats, courts have struggled with the application of the privilege. The privilege extends to legal advice rendered, but does not cover strictly business-related communications. Problems can arise when the content of the communication involves both legal and business issues or advice.

The "bottom line" here is that if your corporate witness is asked what she and you (or any other lawyer representing the corporate client or the witness) talked about, object. Privilege is also the only situation where you may properly instruct the client not to answer. If necessary, do so to protect the record and sort out any disputes later.

Form of the Question. Objections concerning the form of the question are also proper and usually are asserted to protect the clarity of the record. Form objections are several. While some jurisdictions require only a general objection ("I object to the form of the question"), other jurisdictions require that the deficiency be specified (calls for speculation, compound, argumentative, leading, etc.). Know the rules of the jurisdiction, as objections as to form are waived if not properly made at the time the question is posed.

Foundation/Misstates the Record or Earlier Testimony. Lawyers commonly, whether intentionally or otherwise, ask questions which assume a fact which either has not been established, or simply is not true. For example, if an insurance company witness testifies that the management team met to discuss whether to adopt a corporate rule regarding when, if ever, to interplead policy limits and is then asked: "So, when the management team met and adopted the policy never to interplead policy limits..." the lawyer might properly object that the question lacks foundation and mischaracterizes prior testimony. The deponent said that a meeting occurred to discuss the issue, not that any particular rule had been adopted.

Asked and Answered. Strategically or due to inattention, lawyers often ask the same questions repeatedly. If you do not object and the client witness provides a different answer, she may lose credibility. The answer more favorable to the other side may be used for

Page 77 impeachment at trial. While a certain amount of leeway is often granted to the questioning lawyer, particularly if he artfully and subtly modifies the grammar of the question while leaving the meaning intact, at minimum the objection should be made to alert the witness that the question was asked before and the witness should be mindful to give the same answer. Or the lawyer may not realize he has asked the question before and may withdraw it. At some point excessive repetition becomes harassment, though, and should be handled accordingly.

Harassment. Harassment can take many forms, including the excessive repetition described above. It may involve attempts at verbal or non-verbal intimidation or threats, on or off the record. It may involve overt argument or sarcasm. If your deponent is being harassed or bullied, object. If the behavior continues, remain calm and escalate your response. Sometimes it may be effective to make the objection and then tell the lawyer that you and your witness are going to leave the room for a few minutes to give the lawyer an opportunity to compose and begin comporting himself in a manner more aligned with professional standards; then do it. You may even need to do that more than once. Usually, the lawyer will moderate his conduct, even if grudgingly. If not, calmly make a record. When you make a record, remember the purpose and audience. Understanding that the judge or magistrate will be mindful of the public policy (liberality) behind discovery, be specific in describing the offensive conduct. Remember that such disputes often are decided in motion practice based upon who appears to be the most reasonable party in the room. You want to be that party – every time.

In the most egregious cases, where nothing else works and counsel is mercilessly harassing the witness, most jurisdictions permit you to terminate the deposition and seek a protective order. Doing so will require you to make a judgment call based on your evaluation of your witness and the effect the conduct is having on her, how egregious the conduct is and perhaps other factors, including your judge and the rules of your jurisdiction. Ultimately though, you need to protect your witness, as prolonged browbeating can wear a witness down, cause frustration, lack of focus, and ultimately compromise the record. A single answer given in anger or frustration can alter a case outcome.

Calls for a Legal Conclusion. Clients should be instructed to avoid answering legal questions. Most clients understand that while lawyers sometimes look and even sound like regular people, we are not. We seem to naturally gravitate toward the subtle meanings of words. And we use legal terms and sometimes even know what they mean. Most clients do not know, and they should not be answering legal questions, even if couched in the context of defining the nature of their defenses or claims. In that case, the client can certainly respond in lay terms by describing their lay view, however.

Another consideration is that clients not trained in the law arguably obtain their understanding about the support for a legal position from only one source: their lawyer. Thus, a question calling for an explanation of a legal position arguably invades the attorney work product doctrine and the attorney-client privilege. Corporate witnesses are almost always there to testify about facts, not the law. In very limited circumstances (if the deponent is a lawyer) it might be a proper question. All other times, it is not. Object so that you can preclude the testimony from being used later.

Page 78 Other Common but Improper Objections

All other objections, which may be appropriate at trial or in other contexts, are not proper at deposition. Certainly making objections can interrupt the flow and occasionally distract the questioning lawyer. For that reason counsel may believe more objections are a strategic advantage. But objections can also interfere with your own client witness’s concentration. It's also unprofessional. The better practice is to make only proper objections and avoid those which are improper. Examples of improper objections include:

 Speaking Objections. Objections should be stated directly and succinctly without arguing. Rarely are more than three words required. As a defending lawyer, you should not be testifying, clarifying the record with your own memory of the evidence or prior testimony, or coaching the witness with comments like "I don't understand the question" or, "if you know." What is important is whether the witness understands the question. Presumably, you have spent sufficient time preparing the witness that she will know to speak up if she does not understand the question, and to say "I don't know" if that is the case. And under no circumstances should the defending lawyer undertake to explain to the opponent taking the deposition how he might better go about getting the information you assume he seeks. Let him do his job. And if he does not, that is almost always going to be good for your client.

 Relevance. This objection is all too commonly made at depositions. But if a question might reasonably lead to admissible evidence, it is permissible. Unless the question invades privacy, or is manifestly irrelevant, leave it alone. As with the other objections listed here, failure to make the objection does not result in a waiver. You can always bring up the issue later.

 Calls for Hearsay. While certainly an appropriate trial objection, hearsay is not appropriately asserted at deposition. The reason is that the answer could easily lead to the discovery of admissible evidence. The lawyer taking the deposition might hear something which causes the lawyer to depose somebody else, or send a subpoena to a third party for previously unknown documents, for example.

 Calls for an Opinion. Usually, this is a "so what? Even lay people can have opinions, and they may lead to other lines of inquiry which result in admissible evidence. If you believe the witness’s opinion will never be admissible at trial, so be it. Make the objection at trial. Occasionally a question may call for an opinion so far beyond the purview of the witness that it actually calls for speculation. In that case, make the speculation objection, or perhaps foundation.

Page 79 Special Considerations for Rule 30(b)(6) ("Corporate Designee") Depositions

Scope Issues

Parties seeking information from a corporation (as opposed to an individual) may require the corporation to designate one or more persons to testify on specified topics. When those persons testify, they are speaking for and binding the corporation, not themselves as individuals. Testimony provided is treated as an evidentiary admission which can be used against the corporation at trial. Such depositions are therefore one of the strongest and most effective discovery tools plaintiffs have against corporate defendants. Conversely, they present one of the most dangerous pre-trial events for a corporate defendant.

Depositions of corporations sometimes exceed the scope of the notice. When the deposing party asks a question that goes beyond the scope of the noticed topics, counsel should:

 Object to the question. For example, counsel may object on grounds that the question exceeds the scope of the deposition notice and therefore exceeds the scope of the corporate defendant's duty to prepare, or that the question relates to a topic a separate witness has been designated to cover (if you have designated more than one witness).

 Unless you are in one of the minority jurisdictions which strictly limit questioning to the scope of the notice, allow the witness to answer.

 Where the witness does not know the answer, she should say so.

 Make it clear (by stating so) that any answer provided is not on behalf of the organization.

The reason is that while there is no obligation to prepare a corporate designee to answer questions which go beyond the scope of the noticed topics, most courts consider the deposition notice to be a minimum guideline of the topics the corporation must be prepared to address, not an absolute limitation on permitted questioning. However, these same courts hold that (i) the witness does not need to be prepared to answer these questions, and (ii) the answers are not binding on the organization. See Detoy v. City and County of San Francisco, 196 F.R.D. 362, 367 (N.D. Cal. 2000). Moreover, a defending lawyer may instruct the witness not to answer only if the question invades a privilege or the terms of a court order. Doing otherwise may expose the lawyer to pay his opponent's attorney's fees in bringing a motion to compel.

But because no duty exists to prepare for topics not identified in the deposition notice, the witness is not required to have the answer, and an "I don't know" response is perfectly acceptable. So when the questioning begins to wander away from the enumerated topics, the defending attorney should object on the record, noting that answers to these questions are not

Page 80 binding on the organization. If the opponent attempts to use the testimony at trial, counsel can request a limiting instruction, which the court should grant. Detoy at p.367.

Cheat Sheet?

Rule 30(b)(6) deposition notices are often wide-ranging. To respond, the corporate client must either designate multiple witnesses, or attempt to educate a single witness to testify knowledgably about the varied topics. When the client elects to educate a single witness, it sometimes may be helpful to prepare a "cheat sheet" which contains technical and factual information for the witness to refer to when testifying. Doing so may prove useful when it is important that the witness provide specific testimony, or when the volume of information the witness is required to testify about is too great for the witness to reliably remember.

Cannot Hide Behind Privilege

Privilege generally does not insulate a corporate defendant from complying with the obligations imposed by a FRCP 30(b)(6) deposition notice, or the equivalent under state law. For example, in the insurance context, a carrier which receives a claim, sends it to counsel for evaluation and then denies the claim based on counsel's advice cannot, in response to a proper notice seeking testimony regarding the basis for denial of the claim, refuse to testify simply because the lawyer conducted the evaluation and made the recommendation. That exact scenario unfolded in Willing v. Community Ass’n Underwriters of America, Inc., 2007 U.S. Dist. LEXIS 48543 (W.D. Wash. 2007). The District court held that while the insurer's corporate designee was not required to disclose counsel’s advice or communications, the plaintiffs were entitled to an explanation of the reasons for its business decision – a decision that it, not its counsel, made pursuant to its statutory obligation and its policy. Defendants cannot avoid their duty by forwarding the claim to outside counsel.

Direct Examination?

Ordinarily, a lawyer will not conduct any part of a direct examination of his own client at deposition. Certainly no obligation to do so exists. But in the context of a Rule 30(b)(6) deposition, there may be circumstances where it makes sense to do so. Counsel should consider how the deposition might be used in the case at hand, or in future litigation. If, absent direct examination the transcript standing alone will present an incomplete, or even damaging record, it may make sense to provide context and complete the record presently, rather than wait for trial. It may occasionally also make sense to make a record of the witness’s' activities preparing for the deposition, e.g., what the witness reviewed or who the witness interviewed to gain additional knowledge. That record may prove useful for subsequent motion practice relating to an alleged failure to produce a knowledgeable witness, for example. As potential sanctions for failure to comply with the deposition notice by producing a knowledgeable witness include a new deposition at the client's expense, or even evidence preclusion, it may make sense when counsel signals that such a motion may be coming to immediately fortify the defense to the motion.

Page 81 If you think there is a chance you may conduct even limited direct examination, do not surprise the witness with it. If you know in advance, prepare. If not, discuss it during a break and make sure to let the witness know that you are not doing it because the witness made a mistake, or did something wrong.

What to Do with "I Don't Know"

If, despite all your careful planning and thorough preparation, the witness encounters a question the witness does not know the answer to, you have options. Consider educating the witness during a break in the proceedings. Make telephone calls if necessary to obtain the information. Have documents e-mailed or faxed for the witness to review, and then have the witness affirmatively seek to correct the prior answer before the deposition concludes. Should that immediate response not be obtainable, offer (on the record) to reconvene the deposition and provide the information, either with the same witness, or another. Each of these options can and should be explored in order to avoid the risk of being barred from asserting a defense or claim at trial.

After the Deposition: Reevaluate

Courts generally take the position that the purpose of a Rule 30(b)(6) deposition is to obtain binding testimony. Therefore, if the witness does not fare well at the deposition, the company will have to deal with the witness’s “bad” testimony. The testimony is generally treated as an evidentiary, rather than a judicial admission, so it generally is not "binding" in the sense that it cannot be explained or rebutted. But the effectiveness of such an explanation is going to vary from case to case. In these situations, counsel must determine how the organization will explain to the judge or the jury any damaging admissions made during the deposition, and the effect the deposition has on the overall case evaluation and settlement strategy.

Page 82 THE USE OF EXHIBITS IN DEPOSITION By: John P. Rahoy

The decision to use exhibits in deposition and how to prepare a witness for those exhibits often are more difficult than the deposition itself. How do you use the exhibit? Have you laid a proper foundation for the exhibit for later use as evidence? Have you properly authenticated the document and does it pass the hearsay rule? Conversely, when you defend a deposition, what documents do you show the witness beforehand? What documents do you withhold to avoid disclosure of work product or “prepared in anticipation of litigation” documentation? How do you prepare the witness with respect to testifying on the documents?

The following section will discuss how to use a document in depositions; when to use a document in depositions; how to lay the proper foundation for a document for evidentiary purposes; how to get around the hearsay rules when using a document; how to authenticate a document; and how to properly prepare your witness with documents when defending a deposition.

ADMITTING YOUR EXHIBITS

The Federal Rules of Civil Procedure provide a guide for the use of exhibits in a deposition. The fundamental issues to consider when using exhibits are (1) Relevancy; (2) Hearsay; and (3) Authenticity and Foundation. For an exhibit to be admitted at trial or in support of a motion through deposition testimony, those issues must be satisfied.

A. RELEVANCY

Simply put, if the exhibit is not relevant you will not be able to use the exhibit at trial. Therefore, your first determination is whether or not the exhibit is relevant with respect to the issues in the case, the elements of the claim, and/or the character of the witness etc. For example, plaintiff’s prior tax returns may show that he has never worked a day in his life but if plaintiff is not making a claim for lost wages, those records might not bear any relevance to the case. Federal Rule 401 sets forth concisely whether a document or piece of evidence is relevant. Evidence is relevant if:

(a) It has any tendency to make a fact more or less probable that it would be without the evidence; and

(b) The fact is of consequence in determining the action.

This is clearly a low threshold. Still, the question to ask yourself is whether this document is sufficiently probative for the court to receive it into evidence. In other words, is the court more likely than not to admit the exhibit for an intended use or purpose at trial? Do not waste time trying to use a document in deposition that you know is irrelevant. Not only is it a waste of time, but you may be providing the plaintiff insight into your defenses. That being

Page 83 said, if there is some basis for the exhibit’s use, do not waste an opportunity to introduce it in deposition with the proper witness as relevance is in the eye of the beholder (Judge).

Even if you decide that the exhibit is relevant it may be excluded by the court pursuant to Fed. R. Evid. 403 which provides that “the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time or needlessly presenting cumulative evidence.” Be prepared to argue the probative value of the evidence.

Is the evidence cumulative in nature? For example, perhaps you want to use medical records to cross-examine an expert. You need to consider how many you use, in what order of importance and which will have the greatest impact on the jury. By using too many of the same type of exhibits, the court could exclude those that are most favorable and allow those that have less of an impact.

A tactic to consider when multiple experts testify on the same or similar issues is the holding back of some exhibits and using them in subsequent depositions. For example, if the records establish prior injuries to the same parts of the body then you will get more “bang for the buck” by having different experts testify to different but favorable records.

Additionally, assume all documents used in depositions have relevance and are probative. However, you should consider the use of less prejudicial evidence so as to minimize the possibility that an exhibit may be excluded. For example, you have a witness that cannot appear at trial and must testify in a video deposition. If you rely solely on a single exhibit that a judge may consider too prejudicial to the jury then you could be stuck without having a foundation for the other, less prejudicial exhibits. Thus, make sure that if there is any concern about the court potentially excluding an exhibit for some reason, you cover yourself by using other exhibits that are less likely to be excluded. Although it may not have the same initial impact, the other records can establish the same points.

B. HEARSAY

Federal Rule of Evidence 801 defines hearsay as a statement:

(1) The declarant does not make while testifying at the current trial or hearing and;

(2) A party offers in evidence to prove the truth of the matter asserted in the statement.

Fed. R. Evid. 801 A(1)(2).

To the contrary, a statement of a witness is not hearsay where:

The declarant testifies and is subject to cross-examination about a prior statement and the statement;

Page 84 A. Is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in deposition;

B. Is consistent with the declarant’s testimony and is offered to rebut an express or implied change that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying;

C. Or identifies a person as someone the declarant perceived earlier.

Thus, if you have a prior statement under oath from a witness, that statement can be used against the non-party to either address an inconsistency in the testimony or a prior consistent piece of testimony that shows bias, fabrication or motive.

But what about a party opponent? The hearsay rule is slightly different. A statement of a party opponent will not be hearsay if the statement:

(A) Was made by the party in an individual or representative capacity;

(B) Was one the party manifested that it adopted or believed to be true;

(C) Was made by a person who the party authorized to make the statement on the subject;

(D) Was made by the party’s agent or employee on a matter within the scope of that relationship; or

(E) Was made by the party’s co-conspirator during and in furtherance of the conspiracy.

Thus, as will be discussed below, a corporate representative who testifies on behalf of a corporate defendant can bind the corporation with admissions that are not hearsay. Additionally, an agent for the person or company can also make admissions or statements that are not hearsay assuming you can show that the statement was made within the course and scope of that employment or relationship.

Most of the time you will only find two types of statements that are not hearsay: (1) a prior statement of the witness/party and (2) a prior admission of the witness/party. For example, an admission in a statement given by the party that they were at fault. Another simple example would be a prior written statement of a witness as to what they observed. Otherwise you are generally looking at exceptions to the hearsay rule when deciding on how to use an exhibit.

So what are the exceptions to the hearsay rule? Fed. R. Evid. 803 provides the following exceptions:

Page 85 (1) Present sense impression;

(2) Excited utterance

(3) Then existing mental, emotional or physical condition

(4) Statement made for medical diagnosis or treatment

(5) Recorded recollection

(6) Record of a regularly conducted activity

(7) Absence of a record of a regularly conducted activity

(8) Public records

(9) Public Records of vital statistics

(10) Absence of a public record

(11) Records of religious organizations concerning personal or family history

(12) Certificates of marriage, baptism and similar ceremonies

(13) Family records

(14) Records of documents that affect interest in property

(15) Statements in ancient documents

(16) Market reports and similar commercial publications

(17) Statements in learned treatises periodicals or pamphlets

(18) Reputation concerning personal or family history

(19) Reputation concerning boundaries or general history

(20) Reputation concerning character

(21) Judgment of a previous conviction

(22) Judgments involving personal, family or general history or a boundary;

Page 86 If you are using a record or a document that falls within Federal Rule 803, you must determine how you will authenticate it, lay the proper foundation and establish relevancy. For example, authenticating previous conviction records will be different from using pages from a learned treatise. To introduce prior criminal records, certification of the records are necessary whereas using a learned treatise requires testimony from a witness that the writing is relied upon in the industry or is authoritative. So, you will have to know the method of authentication and foundation.

You will most commonly use exhibits that fall under the Business Records Exception or a “record of regularly conducted activity” or the “absence of a record of a regularly conducted activity.” Also common is a Recorded Recollection. In order to successfully use these exceptions, you must lay the foundation showing that the witness testifying is knowledgeable about the record and how it is maintained, that the record is what it purports to be, and the record meets the hearsay exception.

Generally, a document is a Business Record when it is frequently used, organized, and retained. The proper foundation for meeting the Business Records exception is discussed below. A Business Record may not be, for example, an insurance adjuster’s report created after an accident investigation. See Jordan v. Binns, 712 F.3d 1123, 1136 (7th Cir. 2013) (holding corporation’s business was trucking, not litigation, thus the report was not a business record of the trucking company). Work product aside, an insurance adjuster’s report does not meet the four requirements of a business record unless the following requirements are met: (1) it must have been made in the course of a regularly conducted business activity; (2) it must have been kept in the regular course of that business; (3) the regular practice of that business must have been to have made the memorandum; and (4) the memorandum must have been made by a person with knowledge of the transaction or from information transmitted by a person with knowledge. Redken Labs., Inc. v. Levin, 843 F.2d 226, 229 (6th Cir. 1988).

The Redken court applied the four Business Record requirements holding that an incomplete set of undated “sales slips” were inadmissible as business records. Redken, 843 F.2d at 229. The requirements were not met because the slips were undated, did not indicate the customer to whom the goods were alleged to have been sold, were not in the custody of an employee charged with keeping the records, and the company did not faithfully save every slip. Id.

Under the Recorded Recollection exceptions, a document can be read to the jury as a past recollection recorded. The exception applies if “(1) the witness once had knowledge about the facts in the document; (2) the witness now has insufficient memory to testify about the matters in the document; and (3) the document was recorded at a time when the matters were fresh in the witness's mind and the document correctly reflects the witness's knowledge of the matters.” Rush v. Illinois Cent. R. Co., 399 F.3d 705, 719 (6th Cir. 2005) citing United States v. Smith, 197 F.3d 225, 231 (6th Cir.1999) (internal citations omitted). In Rush, use of the document was precluded when the witness provided “detailed and lengthy testimony.” 399 F.3d at 719. Therefore, if the witness has poor memory and the exhibit is favorable to your

Page 87 case, the better tactic is to read the document into the record, rather than risk the witness providing less favorable testimony opening the witness to cross-examination.

Additionally, your foundational questions can mirror those for other exceptions to avoid having the exhibit excluded. For example, the business records and recorded recollection exceptions to the hearsay rule are based on different rationales, but there is nothing inherently inconsistent about the admission of those records under 803(5), if it is ruled inadmissible under 803(6). Parker v. Reda, 327 F.3d 211, 214 (2d Cir. 2003) (internal citation omitted). If one exception does not work, lay the foundation for another. In other words, be prepared to lay the proper foundation for multiple exceptions if you can to use an exhibit in deposition and ultimately trial.

C. AUTHENTICATION AND FOUNDATION

It has been said that “the inability to get evidence admitted because of a failure to authenticate almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation.” Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 542 (D. Md. 2007).

Some documents are self-authenticating. These documents include: domestic and public documents that are sealed and signed, domestic documents that are not sealed but are signed and certified, certified copies of public records, and documents that are accompanied with a certificate of acknowledgement that is lawfully executed by a notary public or officer. Fed. R. Civ. P 902.

Whether evidence is authentic is also governed by Rule 104(b) of the Federal Rules of Evidence. The Court must first determine whether the proponent of the evidence “has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.” United States v. Branch, 970 F.2d 1368, 1370 (4th Cir. 1992).

An affidavit will work to authenticate some evidence, such as the Custodian of Records for doctor’s offices, hospitals, or corporations. However, in many cases, testimony is required. For example, if you have an expert who took photographs of the scene you must have them available to testify at trial to authenticate that he took the photographs or took the measurements shown in the photos.

Federal Rule 901 sets forth the manner in which exhibits and evidence are authenticated. In general, you must produce evidence sufficient to support a finding that the exhibit is what it claims to be. Authentication or identification under Rule 901 involves the process of presenting sufficient evidence to make out prima facie that the proffered evidence is what it purports to be. See 5 Weinstein, Weinstein on Evidence, 9.01(a)[01]. Authentication is a “condition precedent to admissibility” and once the trial judge determines that there is prima facie evidence of genuineness, the evidence is admitted, and the trier of fact makes its own determination of the evidence's authenticity and weight. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 784 (9th Cir. 2002) citing Alexander Dawson, Inc. v. NLRB, 586 F.2d 1300, 1302 (9th Cir. 1978) (per curiam).

Page 88 Courts will exclude exhibits for failure to properly authenticate the records. For example in In re Vee Vinhnee, 336 B.R. 437, 440 (9th Cir. 2005), the court struck evidence when the Custodian of Records lacked knowledge of the corporation’s computer based records and, as such, the proponent failed properly to authenticate exhibits of electronically stored business records. Generally, authenticating these paperless electronic records follows the same reasoning as tangible business records. The four business record requirements are discussed above. However, one must additionally demonstrate that the record that has been retrieved from the file, paper or electronic, is the same as the record originally placed into the file. In re Vee Vinhee, 336 B.R. at 444. The court in Vee Vinhnee employed an eleven-step foundation for computer records:

1. The business uses a computer.

2. The computer is reliable.

3. The business has developed a procedure for inserting data into the computer.

4. The procedure has built-in safeguards to ensure accuracy and identify errors.

5. The business keeps the computer in a good state of repair.

6. The witness had the computer readout certain data.

7. The witness used the proper procedures to obtain the readout.

8. The computer was in working order at the time the witness obtained the readout.

9. The witness recognizes the exhibit as the readout.

10. The witness explains how he or she recognizes the readout.

11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.

See Edward J. Imwinkelried, Evidentiary Foundations § 4.03[2] (5th ed. 2002). In applying this eleven-step foundation, the Vee Vinhnee court determined the Custodian’s knowledge of the corporation’s computer equipment was vague and conclusory, finding the Custodian’s statement “[t]here’s no way that the computer changes numbers” was unpersuasive. Id. At 447.

In, United States v. Jackson, 208 F. 3d 633, 638 (7th Cir. 2000), evidence pulled from an organization’s website was deemed inadmissible when the proponent failed to properly authenticate. The court held that computer data compilations are inadmissible as business records under Fed. R. Evid. 803(6) unless a proper foundation as to the reliability of the records

Page 89 is established. Jackson, 208 F.3d at 638 citing United States v. Briscoe, 896 F.2d 1476, 1494 (7th Cir.1990). Proper foundation as a business record requires reliable testimony that the source of information or the method or circumstances of preparation is trustworthy. Id. citing United States v. Croft, 750 F.2d 1354, 1367 (7th Cir.1984); see also Rambus v. Infineon Tech. AG, 348 F.Supp. 2d 698, 699 (E.D. Va. 2004) (proponent failed to authenticate exhibits computer generated business records); Wady v. Provident Life and Accident Ins. Co. of Am., 216 F. Supp. 2d 1060, 1062 (C.D. Cal 2002) (sustaining an objection to affidavit of witness offered to authenticate exhibits that contained documents taken from defendant's website because affiant lacked personal knowledge). Therefore, when authenticating paperless electronic documents, it is necessary to find a knowledgeable custodian and prepare your witness in mock cross-examination using the above eleven questions. Be sure the witness has been adequately prepared.

Personal knowledge is key. A physician can testify to treatment records because the doctor is a witness with knowledge of those records. The same is true for the manager who was on the scene of an accident and who prepared the incident report, or the OSHA investigator testifying about the report prepared following a work site accident. When examining a medical expert, have the physician authenticate his records -- when they were prepared, were they dictated, are they part of the physician’s record of plaintiff’s treatment, and does the physician review the notes before being placed in the file.

When deposing an opponent’s expert, you may decide to use a learned treatise. Before you ask any substantive questions, ask the expert whether the treatise is accepted authority in the industry, or whether it is it relied upon by those in the industry. Lay the foundation and authenticate the treatise by name, author and publication date. Only then do you start your cross-examination.

However, do not assume that you must have direct evidence to authenticate a document. For example, in today’s society where emails and texts are used more often than form letters, you can use circumstantial evidence for authentication. See United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000) (e-mail may be authenticated entirely by circumstantial evidence, including its distinctive characteristics); United States v. Safavian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006) (recognizing that e-mail may be authenticated by distinctive characteristics or by comparison of exemplars with other e-mails that already have been authenticated); Rambus, Inc. v, Infinieon Technologies AG et al, 348 F. Supp. 2d 698, 699 (E.D. Va. 2004) (e-mail that qualifies as business record may be self-authenticating under 902(11)). In Kirk v. City of Tulsa, 72 Fed. Appx. 747, 750 (10th Cir. 2003), an exhibit was struck when no circumstantial evidence suggested the exhibit was attached to the proffered e-mail.

TAKING THE DEPOSITION

Just as you must determine what questions to ask in a deposition and when to stop so as to avoid asking the dreaded “one question too many,” the same is true for the use of exhibits. When taking a deposition you have several considerations. For example, do I even

Page 90 use the exhibit in this deposition? If I use the exhibit where will it be most effective? Is the exhibit better suited for another witness?

The first decision you must make is whether you are taking the deposition for pure discovery purposes or evidentiary purposes. If the deposition is for discovery purposes only, you should strongly consider not using exhibits at all unless the exhibits are already in the hands of all parties and there is nothing to gain from withholding the evidence. You run a great risk of educating your adversaries by showing your hand in discovery depositions. It is important to remember that the best cross-examination is that which includes the element of surprise. Many attorneys do not prepare their clients for trial testimony beyond what was asked in the deposition. The good ones do. Thus, if you have helpful medical records, perhaps it would be to your advantage to withhold their use during deposition.

The second issue is to determine whether you use the evidence and exhibit at all. Young attorneys make a habit of trying their case in deposition and showing all of their cards in the early stages of the game. What purpose does this serve? All you are doing is providing the opposition an opportunity to adjust to your strategy well in advance of trial.

However, one matter to take into consideration is the witness. How old is the witness? Is their memory fading? Are they transitory or suffering from an illness that could lead to death before trial? If it is possible that the witness could be dead at the time of trial or unable to be located, do you have another witness able to testify regarding the same evidence and exhibits? If he is the only one, do you gamble in holding back exhibits in the deposition looking for the big payoff at trial? It is always a judgment call but err on the side of caution if it is possible that the witness will not be around come trial. Thus, if it is truly necessary to achieve a desired result in the deposition and the witness may be unavailable, consider the use of exhibits in the discovery deposition in advance of trial. Obviously photographs, statements of the plaintiff, video of the plaintiff and video of the incident will most likely be used regardless because the other side will be in possession of those exhibits and will be familiar with them. Such exhibits allow you to pin down the plaintiff as to how, when, where, what and why.

Taking a deposition for evidentiary purposes is a completely different animal. Here, the goal is to extract all the relevant favorable testimony you can while being mindful that, usually, the opposing lawyer’s objections except as to the form of the question are reserved until trial. Under these circumstances, you should use your strongest evidence. Assuming you are videotaping the deposition, there are several things you should do to maximize the effectiveness of the evidence.

The old saying a picture is worth a thousand words is absolutely true. In today’s virtual world where people communicate by text, email, Snap Chat, etc., jurors require and demand immediate stimulation. It is unacceptable to simply use paper exhibits in a video deposition. Use digital media, video, blowups of documents and audio recordings to keep the jury engaged.

If you are using medical records, plaintiff’s personnel records, incident reports, or other documents that may contain plaintiff’s statements, use large board exhibits and highlight the

Page 91 relevant portions. During examination, ask the witness to stand, point out the relevant portions of the documents, circle the highlighted portions etc. Do anything you can to focus the jury’s attention to your evidence.

If you are cross-examining an expert, blow up relevant portions of a learned treatise, industry standards, warnings on the product, policy and procedure manuals or other papers that drive home your point. The more work you put into exhibits and their presentation at deposition, the more effective your cross-examination will be. Remember, an evidentiary deposition is nothing more than an examination before a jury (but without the jury). It is part of the trial and must be treated as such. Other than the form of the question, you must anticipate what other objections the opposing lawyer might make when the deposition is used at trial.

When using exhibits of witnesses with statements or notes from the witness, use the exhibit to keep the witness reigned in. Too many young attorneys allow experts and other intelligent witnesses to explain away words or phrases in their own notes. By using enlarged exhibits of the witness’s own writing, you can force the expert to admit to the words on paper. Every time the expert or witness attempts to deviate from the written word, force them back to the exhibit. This is a much more effective tactic than to argue with the witness.

The expert’s written report can be a sharp tactic during deposition. Blow the report up and attack areas where records were not reviewed, a site visit did not take place, or certain industry standards were omitted or ignored. It is the rare attorney who can go one on one with an expert on the area of expertise. Normally the attorney’s greatest weapon is the written document or the lack of documents that allows them to catch the expert in a moment of weakness. In other words, make the expert play on your turf.

Furthermore, do not allow the witness to give long winded answers when using exhibits. The most seasoned experts will provide a politician’s answer, a lengthy response that never answers the question. Make the expert come back to the issue at hand. Do so by saying something like “We appreciate that but that is not the question I asked.” Then go back to the exhibit. Continue with this approach until you have made your point to the jury that the expert is avoiding answering the question. Many times that type of answer is just as effective as a real answer.

DEFENDING THE DEPOSITION

Just as important as taking the deposition is the art of defending the deposition. As you have been told, preparation is the key to a good deposition. This is especially true in defending a deposition. It is foolish to meet with a witness in any complex litigation on the day of the deposition or the day before and expect a good result. In a document intensive case where your witness will be expected to testify on the documents, preparation begins several months in advance.

Page 92 First, designate the person who has the greatest ability to deal with the exhibits and can handle the pressure. Once you have done so, provide the witness with the relevant documentation well in advance of the deposition so that the documents can be reviewed. In a corporate designee deposition, the documents are normally referenced in the notice and that notice provides a simple outline of what should be produced to the witness. If however, the witness is testifying individually, you will need to anticipate the high priority documents. Do not ask the witness to do so.

Do not, I repeat do not, under any circumstances produce a document to your witness that is work product or that contains privileged information or communications. Once a privileged document is used by your witness to prepare for the deposition, the document may be deemed to be discoverable. It should be expected that the opposing counsel will ask your witness what documents were reviewed and used to prepare for the deposition, and which documents refreshed the recollection of the witness. If the documents that refreshed the recollection are work product, production will likely be required. Federal Rule of Evidence 612 allows a party to discover and obtain copies of documents that constitute work product if they are used to refresh the recollection of a witness. Specifically it states that “an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it and to introduce in evidence any portion that relates to the witness’s testimony.” Fed. R. Evid. 612 (b). In Northern Natural Gas Co. v. Approximately 9117.53 acres in Pratt, Kingman, and Reno, 89 F.R.D. 644, 654 (D. Kan. 2013), the Court, citing Rule 612, stated that “to obtain disclosure of a writing used by a witness prior to testifying, a party must meet three conditions: (1) the witness must use the writing to refresh his or her memory; (2) the witness must use the writing for the purpose of testifying; and (3) the court must determine that production is necessary in the interests of justice. The party must also show that the documents “actually influenced the witness's testimony.”

There are several options available to avoid producing privileged documents under such circumstances. First, the Federal Rules allow a party to seek a Protective Order. Rule 26(c) provides that a party from whom discovery is sought may move for a Protective Order forbidding the disclosure or discovery, forbidding inquiry into certain matters or limiting the scope of discovery and other measures.

A Protective Order is especially necessary when a Rule 30(b)(6) deposition is scheduled and the designated representative must review certain documents that are work product or otherwise privileged. The Protective Order should state the witness must review work product information in order to fulfill the required testimony as laid out in the notice; however, that witness may not be compelled to produce the work product documents used. However, the motion must be filed prior to your showing the documents to or using the documents to prepare the witness.

If the deposition is of a direct witness, instead of showing the document to the witness to refresh the recollection or to prepare the witness for the deposition, read the document to the witness. If you show the statement to the witness it will likely be discoverable. Discussing

Page 93 the document or going over the document in detail will likely be sufficient to refresh the recollection of the witness.

For a 30(b)(6) deposition, once you have made a determination as to what to provide your witness and what constitutes work product, and you have taken the necessary steps to protect the work product -- you must then prepare the witness. Preparation of the witness should begin in earnest well in advance of the deposition. This includes an initial discussion of the records with the witness. The more important the witness or testimony the longer the preparation.

Find out how familiar the witness is with the documents. Does the witness have personal knowledge of the purpose of the records, content of the records, and potential problems? If not, you must have the witness do his homework and require the witness to meet with those who have knowledge of the documents. In federal court, if the witness comes to a corporate designee deposition and cannot testify to the documents or topics set forth in the notice, sanctions can be levied. Rule 30(d)(2) provides that the “court may impose an appropriate sanction. . . on a party who impedes, delays or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). Consequently, make sure your witness is prepared to testify on the topics and exhibits used in the deposition.

However, the witness cannot be ambushed by the plaintiff with questions referencing documents not produced or placing a never before seen document in front of the witness and asking for comment by the witness. As the attorney, it is your duty to protect the witness and you can do so by several means. First, you can demand that the witness review the document before answering. You should stop the deposition and provide the witness as much time as the witness needs to review the document. Also, you must conduct a mini-review prior to returning to the deposition. If the witness cannot answer questions relating to the document or is uncomfortable doing so, you can stop the deposition until the court has heard a motion to limit the deposition or motion for protective order.

Fed. R. Civ. P. 30(d)(3) provides that at any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.

By preparing the witness with document preparation, you can avoid legal battles that could prove unfavorable to your client. Your preparation may, depending on the sophistication of the witness, require many meetings and must include mock cross-examination of the witness on the documents. Only when the witness is fully knowledgeable with respect to the documents, is able to joust with the opposing counsel on the meaning of documents and words, and can testify from a position of strength - is your witness ready. Additionally, always have your witness prepared to go on the offensive with each record. It is the rare occurrence that the opposing party will have a document that simply has no favorable information for your

Page 94 case. Thus, make sure the witness is ready to bring out the favorable aspects of the document during the questioning.

The deposition is not trial and there is normally no judge there to order your witness to answer yes and no. As a result, always have your witness prepared to provide an answer which states the favorable aspects of the document as well in the answer. By following this method, the opposing counsel at least cannot obtain poster board material at trial of simple yes and no answers.

Remember the corporate designee can bind the corporation with admissions. Therefore, make sure that you have taken the time to go over the likely testimony that will be given on the important issues. This means you must engage in a vigorous mock cross-examination of the witness to the point that the issues and answers are second nature. If that requires multiple deposition preparation examinations, so be it. It is your duty to prepare the witness for the worst.

OBJECTIONS IN DEPOSITION TO EXHIBITS

Your responsibility does not end in the preparation phase. As stated above, you must be prepared to stop the deposition, review documents that are produced for the first time and object when necessary. Rule 30(c)(2) provides:

An objection at the time of the examination-whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of the taking the deposition, or to any other aspect of the deposition-must be noted on the record.

Additionally, the objection to evidence must be precise. “An objection must be stated concisely in a nonargumentative and nonsuggestive manner.” Rule 30(c)(2). Further, the rule provides that you can instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under 30(d)(3). Thus, you have the right to instruct the witness not to answer the questions in a 30(b)(6) deposition if the witness is questioned on work product or attorney client privileged materials, or to enforce a protective order in place. You can even stop the deposition if it extends beyond seven hours pursuant to Fed. R. Civ. P. 30(d)(1).

Attorneys can be under the misguided assumption that only objections regarding exhibits as to form and foundation must be preserved at deposition but this is not always true. Fed. R. Civ. P. 32(d)(3)(B) is plain on its face: errors or irregularities in the form of questions or answers which might be obviated during the deposition if promptly presented are waived absent timely objections. Kirschner v. Broadhead, 671 F.2d 1034, 1037 (7th Cir. 1982). The Kirschner court, taking guidance from the 6th Circuit, held that where a deponent was unavailable to testify at trial and his deposition testimony was introduced, Defendant’s failure to raise objections during the deposition precluded him from making them at a later date. Kirschner, 671 F.2d at 1037. Citing to the 6th Circuit Court’s reasoning, Kirschner explains that when a party waits until trial to object to testimony in the deposition, the only manner in which

Page 95 to cure the deposition is to bar the objectionable portions from the trial. Id. Otherwise counsel would be encouraged to wait until trial before making any objections, with the hope that the testimony, although relevant, would be excluded altogether because of the manner in which it was elicited. Id. at 1037-38.

However some objections are not waived. Under subsection (A) of the rule, objections to the competency of a witness or to the competence, relevance, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one that might have been obviated or removed if presented at that time. Errors and Irregularities in Depositions—Taking of Deposition, 8A Fed. Prac. & Proc. Civ. § 2156 (3d ed.) For example, objections to an exhibit’s authenticity is waived by failure to make objection because, if not made at that time, it prevents authenticity from being established at time of trial. Gore v. Maritime Overseas Corp., 256 F. Supp. 104 (E.D. Pa. 1966), judgment aff'd in part, rev'd in part on other grounds, 378 F.2d 584 (3d Cir. 1967). Thus, to be safe, if something seems objectionable – object. While many objections, if they are not made during deposition, can be later raised, many cannot.

CONCLUSION

The art of preparing for, and taking and defending, depositions with exhibits is a difficult one to master. Take the time to prepare an outline beforehand -- the outline serves as a thought exercise to ensure your bases are covered. Next, prepare your exhibits. Weigh whether you want to use the exhibit or save it for trial as a surprise element. Step into the shoes of opposing counsel and brainstorm possible objections and consider how to defeat them. In the same way you would outline your deposition questions, outline your foundational questions. Consider: What is this document? When was it generated? Where did it come from? Who maintains it? How is it maintained? Why is it maintained that way? After the deposition when you receive your transcripts, review them. Think of ways you could have performed better. While this process takes time, ultimately it will make you a better trial attorney.

Page 96 TECHNOLOGY AND DEPOSITIONS By: Francis J. Deasey and Depaak Sharma With Special Thanks and Appreciation to Thomas G. Oakes of Thomas G. Oakes Associates

INTRODUCTION

It goes without saying that the technological advantages of the last decade have changed the legal landscape dramatically. Applications of video technology have important implications for the future of the litigation process. Video depositions, almost universally permitted under Federal and State Rules of Civil Procedure, facilitate the transfer of information from pretrial events to the trial event. Traditionally, videotaped depositions were utilized for the depositions of testifying experts, particularly medical doctors. Today, most sophisticated plaintiff’s firms videotape every deposition. From the defense perspective this can create additional problems in preparing witnesses for depositions. Conversely, the savvy defense practitioner should make full use of the technology available to conduct video depositions.

In their formative years, most defense practitioners are taught that depositions are discovery tools designed to elicit facts. This way of thinking is obsolete. One of the major reasons most sophisticated plaintiffs’ attorneys videotape depositions is to “Create a sound bite.” And, if permitted, this “sound bite” will be shown to a jury up to four times including:

(a) During plaintiff counsel’s opening;

(b) During plaintiff’s case-in-chief;

(c) During cross-examination of the same witness (if called by the defense); and

(d) During plaintiff counsel’s closing.

Every defense practitioner must understand how modern videotaped depositions work to prepare their witnesses for this experience. A video deposition brings to the forefront the concept of nonverbal communication including concepts such as channeling, decoding, encoding and rapport. All of these concepts impact how jurors will evaluate a witness’s video deposition testimony,

However, it is important to remember that video deposition testimony is equally available to the defense and can be a tremendous weapon in defense counsel’s arsenal when utilized effectively and professionally. This chapter will explore the genesis of videotaped depositions up through and including interactive depositions, also known as smart depositions and will provide the defense practitioner with the tools to prepare their witnesses for video depositions and, at the same time, utilize videotaped depositions as part of their presentation.

Page 97 GENESIS OF VIDEOTAPED DEPOSITIONS

In the early years of videotaping, the equipment was very antiquated. Cameras used VHS tapes only. Cameras were at least three times as large as today’s cameras, bulky, heavy and the quality was not great. In fact, the lighting levels provided by the camera were so low, that additional lighting needed to be added. At times it resembled a mini movie set. Today, almost all videotaping is done digitally with digital cameras utilizing mini DVD tapes and exporting the video to the format of counsel’s choice, either Mpeg 1, 2 or 4.

In the early years, when the deposition was presented at trial and played to the jury, the videotaped deposition would not be edited, but any part of the deposition which was not to be shown to the jury would then be fast forwarded to the next part of the video to be played. The videographer would sit with a copy of the transcript with the portions not to be played “X’d” out. He would have a set of headphones on to listen and fast forward the VHS tape to the appropriate sections to be used.

While the process by which counsel and the court review objections or deposition designations has not changed, the ability to provide a more seamless edited file has made great strides in today’s market. Years ago, the equipment used in the courtroom to play back the video was normally an old style television – not a flat panel – with a screen no more than 32 inches and the only audio came through the television. So that the audio could be heard better, one of the courtroom microphones would be placed close to the television audio output so it could be heard through the courtroom sound system. If we moved ahead a decade or two, we would find that computers were fast enough, portable enough and software was developed for use in editing video. As a result, there was the advent of trial preparation software, such as Sanction and Trial Director, which brought videotaped depositions to a new level. With this technology we were able to synchronize the audio, video and text file. The greatest part about having a video-synced deposition is the ability to create clips or bytes of the transcript. Delivery of videotaped depositions are now being made on CD or DVD. The video-synced that is received is a DVT (digital video transcript). This portable DVT file allows the user to create their own clips of the deposition directly off the DVD and save the clips as either a Power Point file, MP4 file (I Pad) or Trial Director file to be imported into the full Trial Director Presentation software package.

SMART DEPOSITIONS – THE EARLY YEARS

First use of the smart deposition took place using an Elmo which is a document camera. In the videotaped deposition, counsel would project onto a large screen a document to show the witness. Counsel would do the markings and/or have the witness make markings on a document or photo and capture this on videotape to be used later at trial. There are a number of issues using this type of technology. First, you needed to have multiple copies of the same document or photo for the witness or counsel to put markings on. Counsel would need to request the reporter to put a sticker on each one of the files as they were made. You could not capture a digital copy of the document. You could only capture it on the video. The actual deposition was not being recorded to a hard drive and a video simultaneously. The video was

Page 98 the only recording. This could result in a very erratic replay, since the video camera had to move its focus from the witness to the document or the document camera and to the projections screen. However, this was a start and like any new technology, the bugs had to be worked out.

SMART INTERACTIVE OR SUPER DEPOSITIONS

If you intend to take a videotaped deposition of a witness using Smart, Interactive or Super Depositions, be sure that you take the time to either have your deposition exhibits pre- marked or numbered in such a way that the presenter (trial presenter) is able to offer up on the screen to the witness the document, x-ray or photo that you would like. A simple index of the documents with deposition exhibit numbers would work great. Also, even though the witness may be using tools on the smart board or a monitor to do mark-ups on the exhibits, you not only will want to have this information recorded, you also will want to take screen shots of these documents for later use.

Screen shots can be used as separate exhibits at trial. If you capture the document with its present markings, ask the presenter to capture the file for you. When asking that the file be captured, tell the presenter the number you want to give to the new exhibit. For example, if you offer to the witness a photograph, which was pre-marked “Deposition Exhibit 3,” the witness then would put an “X” on the digital document denoting a location. You would then tell the presenter to capture the new files, perhaps, as “Deposition Exhibit 3A.” By capturing a number in the exhibit at that time, you then can have that exhibit brought back at any time by just asking for “3A.” You also can use this new exhibit with any other witness in a Power Point presentation. The file is captured as a PDF file.

What a Smart deposition provides to you is the ability to have a witness see a trial exactly how the jury would see him on the witness stand, but you get the added benefit of being able to make clips of certain portions of the videotaped deposition to be used over and over again. You will also have the opportunity to have the witness pinpoint for you exactly what they are describing in words into a document, photograph, x-ray, etc. Thus, you create a picture which is “worth a thousand words.” Attached as Appendix A is information concerning terminology which will be helpful in understanding the intricacies of Smart depositions.

THE RULES

Federal Rule of Civil Procedure 30, provides in part, as follows:

(3) Method of Recording.

(a) Method stated in the notice. The party who notices the deposition must state in the notice the method of recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audio visual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition.

Page 99 (b) Additional Method. With prior notice to the deponent and other parties, any party may designate another method of recording the testimony and in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise.

(4) By Remote Means. The parties may stipulate – or the court may on motion order – that a deposition be taken by telephone or other remote means. Pursuant to Rules 28(a), 37(a)(2) and 37(b)(1), the deposition takes place when the deponent answers the questions.

Many states have adopted verbatim or, in large measure, the Federal Rules of Civil Procedure including Rule 30. Before allowing your witness to be videotaped or noticing a videotaped deposition, it is important to know the state’s rules concerning videotaped depositions and, most importantly, restrictions on the use of videotaped depositions at trial.

NONVERBAL COMMUNICATION IN THE VIDEOTAPED DEPOSITION

Nonverbal communication is behavioral communication through facial expression, bodily movements and gestures, as well as vocal tone, hesitations, and pitch. Such communication is often subtle, uncontrollable and spontaneous. These cues are generally interpreted universally and cross-culturally. Thus, the advantage of allowing a jury to audio- visually perceive a witness’s testimony through video tape means the jurors will be able to interpret nonverbal cues that they otherwise could not by simply hearing the testimony being read through a transcript. Another advantage is that the videotape is the most accurate way to relay the testimony, which alleviates concerns about objections that could be made regarding accuracy, inflection, and tone, when testimony simply is read from a transcript.

Of course, nonverbal communication can be controlled to achieve a purpose such as deception or impression management. This is a skill that some are better at than others. Actions such as nerves and anxiety can affect our ability to manage nonverbal communication. For example, a witness may attempt to project confidence, but the jury still might be able to sense nervousness from nonverbal cues, which may impact an assessment of the witness’s credibility. Conversely, positive communication may establish mutual liking, empathy, rapport and, most importantly, trust. A smile, direct gaze, forward lean, and warm vocal tone all convey interest and liking, when all are taken together. However, if you remove the smile or warm tone from that equation, the meaning could become entirely different. Nonverbal communication is imparted through a combination of these types of factors.

Page 100 BASIC CHANNELS OF NONVERBAL COMMUNICATION

(a) Face

The face is the channel that is most easily controlled, and may be the most expressive channel of communication, particularly for emotions. Emotional expression occurs through movements of the mouth, eyebrows, cheeks and eyes. Fear, surprise, anger, disgust, sadness and happiness are all conveyed in this matter, and have been observed universally in a variety of cultures. The direction and duration of a gaze is particularly important. We tend to associate direct eye contact with trustworthiness. Smiling and head nodding tend to be universal signs of empathy.

(b) Body

Bodily expression is less controllable than facial expression. Body orientation, positioning and postures are also key to emotional expression. Bodily expressions are also indicative of self-monitoring. High self-monitoring of one’s behavior in relation to others and constant awareness of the social appropriateness of one’s actions will likely be expressed through such cues. Called postural mirroring, this has been found to create empathy. Changes in posture can be indicative of aggression versus passivity, as well as signs of emotions and/or mental conditions such as anxiety or depression. We tend to associate an erect posture with confidence and personal appearance.

(c) Gestures

Bodily expressions such as hand/arm gestures can have direct verbal meaning that replaces speech. The simplest example is a witness pointing to an object for identification. Such movements can also be culture-specific, such as giving a “thumbs” up sign. The interpretation of these gestures can vary widely across cultures and serious misunderstandings can arise. Some gestures, such as crossing one’s arms, are universal signs of guardedness versus openness. Hand wringing may be a sign of nervousness or anxiety.

(d) Voice

Voice is the least controllable channel of communication. Beyond the actual words spoken, a speaker’s voice, tone and inflection can mean expressions of emotion, mood, confidence and honestly. A harsh and loud vocal inflection such as a “command” voice will relay aggression, dominance and control. This is generally not the best way to establish empathy. A direct, warm and relaxed tone denotes confidence, genuineness and honesty.

Page 101 IMPORTANCE OF NONVERBAL COMMUNICATION IN THE VIDEOTAPED DEPOSITION

Studies have shown that jurors pick up nonverbal signs and cues unconsciously transmitted by the speaker. Up to 55% of the meaning of a speaker’s message is nonverbal. Nonverbal skill is the term used to describe individuals’ abilities to use nonverbal communication effectively and accurately. Nonverbal skills tend to be associated with enduring characteristics of people such as gender, personality and culture. Generally, nonverbal skills are conceptualized in terms of two separate sub skills: Encoding skills and decoding skills.

Encoding skills refer to the ability to communicate emotions, attitudes or other messages through nonverbal cues so that the observer (in this case the jury) can interpret the meeting of the message as the encoder intended. Thus, skilled encoders (the witness) tend to be judged as more empathic when viewed purely from a nonverbal channel such as the face or the voice. More-skilled encoders tend to be more popular, dominant and extraverted than less- skilled encoders.

Decoding skills refer to individuals’ ability to interpret the nonverbal communication of other people. While the decoding skills of people vary, all jurors will have decoding skills which will enable them, more or less, to interpret the nonverbal communications of witnesses. In general, women are more accurate encoders as well as decoders of nonverbal communication than men.

CREDIBILITY

Credibility is established in large part by the witness’s confidence and rapport he is able to establish with his audience. Mutual involvement and interpretation of situations are key to establishing rapport. Witnesses who smile, nod their heads, lean forward, gaze directly at their subject, maintain direct body orientation, have an open as opposed to guarded posture, make few hand gestures, and speak with a warm and relaxed tone will most likely be able to establish a rapport with his audience and thus come across as more credible. Tone of voice, which is the most difficult channel to control, is important to establishing confidence. For example, a positive verbal message in a negative tone of voice may arise suspicion, because we generally expect a positive verbal message to be relayed in a positive tone. To the contrary, a negative verbal message in a positive tone of voice may communicate concern and acceptance.

DECEPTION

Deception occurs when one’s behavioral expression is inconsistent with his true thoughts or feelings. Deception is not always considered unacceptable, as we often expect to mask non-verbal cues of our true feelings. The ability to mask these cues may vary from person to person. However, jurors often times can notice and react to deception. When lying, a witness tends to show more mismatch between the various channels of communication. More attention tends to be directed to managing facial expressions, which may not be synchronized with the bodily movement or voice inflection. People tend to move their face, hand and body more when lying. Also, facial expressions and eye contact can be quick and fleeting. While it is

Page 102 true that studies show that we tend to overrate our abilities to detect deception, it is also true that in the context of a witness’s testimony, a jury’s ability to detect deception generally is higher due to situational factors – primarily, the relationship of the witness to the parties and the motivation of that person to lie.

USES OF VIDEOTAPED DEPOSITION AT TRIAL

There are a number of reasons for using videotaped deposition at time of trial. Traditionally, testimony was preserved in case the deponent died, became too ill, fled or otherwise was unavailable to testify at trial. Deposition testimony was regularly used to impeach a witness if he changed his testimony at trial. Use of video depositions in these circumstances highlights the witness’s inconsistencies. Seeing a witness make an unambiguously different statement on video than they did in court has much greater impact than simply reading the deposition transcript. Further, in the case of impeachment, particular segments are selected for presentation, which amounts to a mere fraction of the entire deposition. While these excerpts can be anticipated they are only used when a witness unexpectedly alters his deposition testimony.

Today, the preservation of testimony via videotape is not only for provisional purposes but is used more and more to try to “catch the witness off guard.” As an example, many skilled plaintiffs’ attorneys do not begin a videotaped deposition in a traditional sense which would entail obtaining significant background information on the witness. Instead, the deposition may start with this question: “Isn’t it true sir that your defective product has caused injuries to my client.” If your witness is not prepared for this style of questioning, then the normal response from the witness when asked a question like this is astonishment and his subsequent verbal and nonverbal communications can impart a lack of confidence, preparation and, worst of all, trustworthiness. The witness will typically look to counsel for help or an objection. But the video camera captures the witness’s expression on his face. Thus, the defense practitioner must be prepared and conduct research on their opponent. If possible, observe your opponent in action. Your opponent’s use of videotaped depositions, whether clips, snippets or bites of your witnesses testimony can provide your adversary with the ability to construct their case in a much more efficient and technologically advanced format.

EFFECTIVE PREPARATION OF YOUR WITNESS FOR THE VIDEOTAPED DEPOSITION

Traditionally, preparation for your client’s deposition consisted of the standard instructions including:

 Tell the truth;

 Be concise;

 Don’t guess;

 Speak clearly;

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 Don’t argue;

 Wait for the entire question before answering;

 Listen and understand the question before answering;

 Don’t speculate; and

 Don’t volunteer.

With the advent of videotaped depositions, preparation of your witness for a videotaped deposition must be taken to a much greater level. It is the general consensus of researchers that people do not see or hear themselves as others do. Most people have never been videotaped and, therefore, do not understand or appreciate how their nonverbal communication skills (or lack thereof) will affect how they are perceived by a jury. Therefore, it is important that as part of your deposition preparation your witness is videotaped both on direct and cross-examination so that the witness can appreciate the strengths and weaknesses of his nonverbal communication skills. The weaknesses in your witness’s testimony are magnified tremendously when their testimony is videotaped. A dress rehearsal of the anticipated line of questioning by your adversary is essential for your witness to become comfortable “in their own skin” during videotaped deposition.

As the research described herein has shown, slouching, rapid eye movement, turning to the attorney for help, stammering, folding of the arms across the chest as well as other forms of body language impact the jury’s acceptance of your witness’s testimony much more than the words spoken by your witness. It is essential, therefore, for your witness to be prepared to develop the necessary rapport with the jurors by proper body language, voice control and inflection and body movement. Remember that the words spoken by your witness may become lost on the jury during the course of the trial but the jury’s perception of your witness as truthful or untrustworthy will remain.

Courts are split on whether videotaped deposition testimony can be utilized in openings. Therefore, it is important that you know the local rules of court for use of videotaped deposition during all phases of the trial. Alert your adversary well in advance of the trial that if he intends to utilize videotaped deposition testimony of your witnesses in his opening, they must provide you with the videotaped deposition well in advance of trial. While local court rules may permit use of videotaped depositions in openings objections can always be made on the grounds of relevancy or out of context.

EFFECTIVE USE OF VIDEOTAPED DEPOSITION AT TRIAL

The world we live in is moving faster and faster and, as a result, the attention span of most people is getting shorter and shorter. Consider, for example, why Superbowl ads are

Page 104 divided into 15 second segments. Effective advertisers can promote their product or message to the audience in as little as 15 seconds.

In the trial setting, jurors expect the attorneys will be polished, sophisticated and technologically savvy. Consider that almost 70% of today’s jurors will be made up of GenX, GenY and Milleniums. Many prospective jurors have grown up in our advanced technological age. Television shows and movies about lawyers show only snippets of courtroom drama. Jurors will expect the same type of courtroom drama during your trial. Research over the past decade demonstrates the following:

 Watching videotaped deposition testimony is much more boring than watching live testimony;

 If jurors are not engaged they are less likely to retain persuasive points;

 Jurors are most riveted by video clips that directly impeach or contain a dramatic nonverbal communication;

 Jurors are “turned off” by video clips that only marginally deviate from the testimony or where the contraindication was subtle.

Thus, when considering the use of videotaped deposition of your opponent consider the following:

 Important testimony should be broken down into “short clips” that can be repeated numerous times during openings, testimony and closing arguments;

 Avoid overuse of this valuable communication tool so that jurors will remain engaged and retain persuasive points;

 Combine videotaped deposition testimony with demonstrative evidence (exhibits, photos, x-rays, etcetera) to increase the jury’s understanding of your message;

 Use smart/super deposition techniques such as synchronized videotaped deposition so that the jury can see and hear the witnesses testimony.

 Follow the testimony through written word.

 Consider using your own “sound bites” during your opening and/or closing to emphasize your defense themes.

 If you have the ability to obtain the trial testimony of your adversary’s witnesses (daily copy) incorporate the written trial testimony into your cross-examination

Page 105 of the adversary’s witnesses highlighting the inconsistencies and/or contradictions between videotaped deposition testimony and trial testimony.

 Cue the jury during your opening to the importance of the videotaped deposition sound bites you will utilize to heighten the jury’s anticipation of your trial presentation.

Sophisticated use of videotaped deposition testimony using the most advanced technology methods available today can be one of the most persuasive elements of your trial presentation. Conversely, an ill prepared witness for a videotaped deposition can result in catastrophic consequences at time of trial. It is the responsibility of the defense practitioner to understand how technology, particularly with respect to videotaped depositions can impact their case at trial either positively or negatively. Remember, in the final analysis the jury may not remember every word a witness said at trial or deposition. However, you can be assured that the jury will never forget the nonverbal communication expressed by a witness during their videotaped deposition or trial.

Appendix A Glossary

 Legal Videotaping – videotaping in the legal industry came about as a means to preserve for trial purposes the testimony of a witness who could not be at trial due to scheduling issues.

 Videotaped Deposition – The adjunct of videotaping the testimony provided by a witness at a deposition for preservation and presentation at trial.

 Video Synchronization – The result of combining the video, text and audio of a deposition into a searchable format which is synchronized by time, page and line number. Scrolling text can be turned on or off, in addition to linking exhibit files.

 DVT – Digital Video Transcript is a video synced file. You can show the scrolling text under the witness if you would like – similar to closed captioning.

 Video Clips (depositions) – Individual portions of a deposition, such as a Question and Answer or multiple Questions and Answers in continuity, which can be as short or as long as necessary.

 Video Segments (depositions) – Portions or bytes of a deposition combined into one file to be played back to a finder of fact. This file excises portions not to be played, so that one complete stream is played without interruption.

 Smart Depositions (SuperDeps, Interactive Deps, iDeps) - Videotaped depositions with adjunct of trial presentation software, which allows the witness and/or counsel to interact with the document, photograph or X-ray applying

Page 106 mark ups and other iterations. All of the actions are recorded via video and also recorded digitally on the computer used by the presenter, so that the final product shows the full video of the witness and the interaction of the witness with the documents. One important feature is that when viewing the video of the witness with the document offered to the witness, it can be in a split screen format or moving the witness into one of the four corners of the video, allowing the document to be shown almost full screen. After the witness is finished with the document, the document moves off the screen and the witness is then on the full screen.

 Smartboard – A computer monitor which allows the user to interact with anything presented on the monitor. An example is the weather person on your local newscast uses a Smartboard to draw arrows, circles, etc.

 Viewsonic Monitors – Touch Screen. Touch screen monitors are the newest generation of interactive monitors. Adding Windows 8 (Microsoft) provides the ability for you to use your fingers or a stylus to pinch open a file and markup a file.

 Videotaped Depositions – Linking Exhibits (split screen) - In post-production exhibits can be linked into the deposition to be shown to the jury. For example, if you were discussing an animation with the witness, the way to present that to the jury would be when the exhibit is discussed, the screen would split into two segments so that the jury can see the witness testifying and the animation at the same time.

 Video Conferencing – The use of video conferencing for depositions and/or trial presentation is becoming more of a regular occurrence. Many times at trial the Court will allow a witness at an offsite location testify directly into the courtroom via video conference. The video conference is a two-way system, so that the video and audio is broadcast to both sides. You can also present documents to the witness in this situation for their view on the video conference screen.

Page 107 OBJECTIONS TO RAISE AT DEPOSITION By: Joanne Thomas Blackburn

I. INTRODUCTION

After an attorney has met with her witness and prepared her for her deposition, the attorney should have reviewed the Complaint and discovery responses of not only the client but also of the plaintiff to prepare for the deposition. There are numerous statutes, regulations, codes, and local court rules that all can come into play during a deposition and may provide additional objections that are unique to the claims pled in the Complaint. We are going to address the basic objections that are available to an attorney during a deposition.

Rule 30 of the Federal Rules of Civil Procedure, and most state courts’ Civil Rule 30, govern the normal process of scheduling a deposition, proper objections at a deposition, and when a deposition can be terminated short of completion. All of these objections should be discussed with the witness during the time spent preparing the witness for the deposition. We explain the reasons for this in more detail below.

In addition to Rule 30, another Rule of Civil Procedure that you need to review is Rule 32 as it governs how one’s objections at a deposition are preserved for trial. CR 32(d)(3)(A) and (B) set forth whether objections made or not made at a deposition remain valid for trial. Specifically, Rule 32(d)(3)(A) sets forth that the following objections are not waived if not made at a deposition:

 Competency;

 Relevancy;

 Prejudicial effects (Rule of Evidence 403);

 Hearsay; and

 Materiality.

In contrast, Rule 32(d)(1) sets forth that objections as to the Notice of Deposition must be made promptly in writing prior to the deposition to allow the examiner to correct it. If this objection is not made in writing, the objection is waived. Also, pursuant to Rule 32(d)(2) any objections as to the qualifications of the officer, i.e., the court reporter, must be made before the deposition begins or as soon as thereafter the disqualification is discovered, or it is waived.

Prior to a deposition, make sure that you explain to your witness the thought process behind your making an objection based upon lack of foundation. According to the rules, counsel cannot make objections in a “suggestive” manner. In other words, counsel cannot coach their witness when they make an objection. However, when you are preparing your

Page 108 witness, you need to explain this objection and provide examples. For instance, if there is a letter that is written by another person or party and your witness is not a recipient, and your witness did not participate in drafting the letter, if asked what the author of the letter intended by stating certain things in the letter, you would object based upon lack of foundation. The basis of the objection is because the witness did not participate in drafting the letter and, more importantly, she was not the author of the letter so she would not know what was intended. (Naturally, if the author of the letter discussed the letter with the witness before or after sending it, the witness would be able to address this question). If you do not explain before the deposition what your statement of an objection on lack of foundation means legally, then your client is going to be befuddled as to what to do once you state your objection. In order to avoid an awkward situation, you need to explain to your witness during the deposition preparation exactly what you mean when you make this objection.

It is important to explain the difference between the examiner asking the question, “Did you know …” versus “Why did Ms. X do this?” If the witness does not know she can respond “No” to the first question, where the second question assumes she knows. There are numerous examples when this objection arises. Another example is when an examiner asks what a picture portrays when no one knows where the picture came from, the date of the picture, or whether the content of the picture has been altered. These are all grounds to make an objection based upon lack of foundation. Most importantly, explain to the witness that despite this objection, your witness must still answer the question if she can. Remember, always coach your witnesses not to guess at depositions, especially when it is in an area that is at issue. Inform your witnesses that this objection often will be stated when we think it is calling for speculation and the witness has no foundation to do so.

Another area where this objection often is used is when the questioning attorney uses a legal term or phrase that your witness lacks the legal training to understand and may assume the meaning of the word incorrectly.

II. OBJECTION BASED UPON FORM

This objection is more broad than the objection of lack of foundation. Objection to form can be simply that the phrasing of the question is inappropriate. However, in explaining this objection to your witness prior to the deposition, it is best to let her know that she should think about the question, how it is phrased and what it is being asked for in every question, but especially the question where you state this objection. For example, does the question:

 lack a time reference;

 assume that certain people are doing certain things and states these actions as though they were fact;

 state that certain people are taking an action that has not been admitted to in the lawsuit;

Page 109  seem vague and not clear about what is being asked;

 seem ambiguous;

 contain more than one question so that it is compound;

 seem confusing and convoluted, so it will be unclear exactly what your witness is responding to in her answer;

 mislead the witness (these usually take the form of including misstatements of facts as though your witness agrees with the misstated facts, i.e., “Have you changed the procedure since it caused the accident?” or “After you failed to help the plaintiff, did you talk to the police?”);

 call for speculation, if the question itself does not clearly state it is asking for speculation; and

 contain an unfair characterization of prior testimony of the witness or others?

While this is an extensive list provided to assist you, it is not all inclusive. These are the types of areas where you, as counsel, can object to form but cannot instruct your witness to not respond. Again, inform your witness that she will still need to respond to the question, if she understands it.

III. OBJECTION BASED UPON ATTORNEY-CLIENT PRIVILEGE

This is the most difficult objection to make at a deposition unless it is obvious. This objection is raised whenever there were communications with you and/or your law firm or in- house counsel after the legal dispute arose that formed the basis for the lawsuit or after a lawsuit was filed. The area where this can be problematic is when there was prior counsel before you and/or your firm, or a conversation that occurred between two co-workers after the lawsuit started but without the presence of counsel. If you instruct your client to find out information from others in the company, or question others in the company about what occurred related to the lawsuit, that is under direction of counsel and you can claim a privilege. Sometimes this area can be very confusing and unclear.

There are times when you can object and instruct that before the witness answers, the examiner needs to determine whether or not the communication was under the protection of a privileged communication with counsel. Most questioning attorneys will be courteous and restate their questions to establish whether, in fact, the question involves privileged communication. This usually takes the form of a rephrased question so that it is easier for you and your witness to determine whether it falls under the privilege. However, there are times that counsel will be aggressive and push you when you make this objection and give the instruction not to answer based upon the privilege. You should be prepared to stand on your

Page 110 objection and be prepared for the questioning attorney to either call the Court for a ruling on the objection or, in the alternative, for the examiner to terminate the deposition and move the Court to determine whether or not you had a proper basis for instructing your client not to answer. If you were incorrect, a Court can award sanctions or order that your client pay the fees and costs incurred to have the Court address the objection. Thus, it is a serious objection and should not be misused.

Another area this can come up in is if an exhibit is entered that is clearly privileged but was somehow produced inadvertently. You need to object immediately to the document being introduced as an exhibit and request that it be returned as well as any copies of it as it is clearly a privileged communication and inadvertently produced. Do not let your witness testify about the exhibit or you will have waived the privileged as to the document and the content of the questioning.

Finally, this objection must be discussed during your meeting to prepare the witness for her deposition. One technique is to inform your witness that when you touch her arm or raise your hand in front of the witness, she is not to answer the question until she hears your objection. Second, she is to answer the follow-up question by the examiner of “whether she will answer the question despite your objection and instruction not to answer?” The witness should respond, “No.”

IV. POTENTIAL OBJECTION BASED UPON FIFTH AMENDMENT RIGHTS OF YOUR WITNESS

A witness may claim the Fifth Amendment privilege against self-incrimination in a civil suit. The federal guaranty against self-incrimination has been extended to the states and protects any disclosures which a witness reasonably may believe could be used in a criminal prosecution or which could lead to other evidence that might be so used in a civil proceeding. The exercise of privilege will cover not only answers that would support a criminal conviction, but also those which would furnish a link in the chain of evidence needed to prosecute the witness for a crime. However, to support a witness’ claim of privilege, there must be some factual basis which a judge can rely on to infer that if answered, her statements might subject her to prosecution. It does not need to be a full evidentiary disclosure but enough factual precedence so the Court can find sound basis for the claim. It cannot be speculative.

For example, where a claim of fraud was brought against the seller of a hotel for misrepresenting the amount and type of regular income made by the hotel, the seller was not required to state the source of her noted income, but that did not protect her from the court’s inference that the income was derived from prostitution at the hotel. “The purpose of the privilege against self-incrimination is to protect the witness from compulsory disclosure of criminal liability. When a witness in a civil suit refuses to answer a question on the ground that his answer might tend to incriminate him, the result sought to be achieved by invoking the constitutional privilege is accomplished. Such refusal cannot be used against him in a subsequent criminal proceeding. However, the trier of facts in a civil case is entitled to draw an inference from his refusal to so testify.” See Ikeda v. Curtis, 43 Wn.2d 449, 457 – 58, 261 P.2d 684 (1953).

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We recommend that you propose an in camera hearing to determine whether there is a sufficient factual predicate to justify the assertion of the privilege claim. This would address concerns of all the parties when such an objection is raised in responding to a question.

V. CONCLUSION

Depositions can be simple or as strenuous as a chess match. Your job is to prepare your witness so she will be comfortable and confident with her answers and your objections during the deposition. Remember, you can always take a break after the question is answered to confer with your client and discuss the reasons for your objections and what the witness should be watching for in the questions that will follow after the break.

Page 112 DEALING WITH DIFFICULT OPPOSING COUNSEL By: Joseph M. Guillot

Depositions should be conducted as though the testimony were being received in a courtroom during trial. Counsel should cooperate with each other and be courteous and polite to each other, as well as witnesses. Attorneys should not object to a question at a deposition, instruct the witness not to answer a question, or suspend the deposition unless there is a good faith, factual and legal basis for doing so at the time. Every lawyer taking a deposition will from time to time encounter the unruly lawyer or witness whose apparent goal is to obstruct the discovery process and prevent you from obtaining necessary information. When faced with such a dilemma, the lawyer must carefully consider the legal and tactical alternatives and approaches for dealing with such conduct.

Some attorneys approach depositions with an aim towards obstructing the other attorney's ability to obtain meaningful information at any and all costs. Frankly, some attorneys believe their main purpose in a deposition is to obstruct the discovery process as much as possible. Several reasons exist for this conduct. The attorney may be unprepared to defend the deposition and acts out of desperation or ignorance. The inexperienced lawyer may also engage in misbehavior because he or she lacks the confidence to allow the facts to come out and may be weary of the opinions of supervising attorneys.

Some lawyers believe that being a strong advocate means to make it difficult for the other attorney to do his or her job. “Zealous advocacy” takes the form of delays, obfuscation, and general disagreement not because they do not like the opposing attorney, but because to them (and/or their client), case management is a zero sum game; i.e., there is a winner and a loser. In their minds, increasing the costs and torment incurred by the other side enhances the probability of being the eventual “winner.”

Perhaps taking the principle of “zealous advocacy” too literally, some attorneys exude hostility and employ bully tactics to gain a perceived advantage. And while it is tempting to reciprocate, doing so may only make matters worse: opposing counsel can become uncooperative on even the most basic requests; both parties might engage in excessive motion practice; and your objectivity, professionalism, and ethics will be compromised. Ultimately, you owe it to your clients and yourself to demonstrate that you can be an effective advocate while still maintaining composure and treating the opposing attorney and parties with civility, courtesy, and respect. It is an unfortunate reality of this profession that everyone has more than one story to share about an opposing attorney whose actions, omissions or even just their style and personality made the work, already difficult to begin with, more so.

For many lawyers, dealing with untrustworthy or volatile or rude or hostile opposing counsel is one of the greatest sources of professional unhappiness and aggravation. It is a mistake to allow yourself to be run over or pushed around by a bully. It is also a mistake to respond to bad behavior by behaving badly yourself. The best way to deal with a hothead is to remain cool. The best way to deal with an unreasonable lawyer is to keep your own positions

Page 113 reasonable. If the dispute gets before the judge, you want to be on the high ground, not wallowing in the mud with your opponent.

Sometimes friction between lawyers can be eased by getting to know each other a little better. Understanding the stresses on your adversary can enable you to reach accommodations and compromises. Before attacking the other lawyer, ask questions. Ask why he is taking what appears to be a patently obstructive position. Have a healthy curiosity about the problems unique to the plaintiff’s side of the world. Keep an open mind. Do not let your aggravation keep you from reassessing your own position, just in case it is not quite as righteous as you would like to think it is. If you have gone a little too far, don’t be too proud to revise your position and admit that your adversary might have a legitimate gripe – or at least a partly legitimate gripe.

Making the effort to find out about your opponent’s family, background and interests enables you to relate better and gives you something to talk about besides the case. Mixing some personal connection with business interaction tends to produce a more civilized and sometimes even friendly relationship.

It is not weakness to cooperate. When presented with the opportunity, work with your opponent, and do not hesitate to do a favor if appropriate. Do not make your representation of your client personal as to the opposing lawyer. Respect that lawyer’s duty to represent his or her client, and err on the side of being courteous and empathetic, especially when the other lawyer is being difficult. If you remain calm and reasonable and refuse to be baited, sometimes the other lawyer will decide to accommodate rather than continue to act out.

Listen carefully for a place one can agree and acknowledge that place. For example:

 “Concerning X, you may be right.”

 “I think you are right about X, and we may be able to ____.”

 “I can understand why that is important to your client, and I want to discuss that with my client.”

 The above with an addition. “And it would be helpful if you would do Y with your client. I’ll contact you in a week to compare notes. Do you agree?”

Some helpful “statement starters:”

 “You may be right about ______”

 “I can see your point on _____”

 “I can understand your point on ___”

Page 114  “You make a good point when ____”

 “Help me understand what is important to you and your client”

 “I am confused about X, help me get clear on why that is important to you and your client.”

 “I agree with you on ______”

These statements and questions are inclusive and seek to bridge the gap between attorneys, as opposed to widening the gap with divisive language. For example, avoid using the following as the conversation goes on:

 “You may be right about ______. But ______.”

 “I can see your point. However ______.”

 “You may be right about ______.” They respond. You respond with “Yeah but ___ .”

In each case above using the word “and” instead of “but” or “however” would build greater unity and be helpful to the overall dynamic between the two lawyers. The use of “but,” “however,” and “yeah but,” on the other hand, signal that you are manipulating (even unintentionally) and possibly breaking trust.

In light of all this information, a certain amount of stoicism can be helpful. After all, despite one’s best efforts there will still be other attorneys who will resist all of the methods described here and will remain difficult with which to work. In such an event, remember that you have done what you can do, and worry about what you can control (how you choose to interact with the other lawyer, your presentation of the case, etc.), not what you cannot control (the attitude and work product of the other lawyer).

The term “Rambo litigation” was coined as a result of the conduct of attorneys in Texas. The practice of Rambo litigation manifested itself in long-speaking objections and colloquy resulting in efforts to coach witnesses during depositions and obstruct the deposition process. To combat this, courts have implemented rules, including limitations on deposition objections, witness conferences and other aspects of deposition conduct, aimed at curtailing the Rambo litigation tactics and minimizing obstructionist behavior during depositions.

One of the main tactics of the obstructionist attorney is to engage in repeated and continual private conferences with witnesses. Sometimes attorneys hold private conferences during the actual pendency of a question, often whispering in the ear of the witness. Private conferences between witnesses and the witnesses' attorney during the actual taking of the deposition are improper except for the purpose of determining whether a privilege applies. There is a question whether private conferences may be held during agreed recesses and

Page 115 adjournments. Lawyers should not be allowed to take a break while a question is pending to discuss the matter with the witness. The deposing attorney is allowed to require that the question be answered and that a private conference can be held only during agreed-upon recesses and adjournments. If you, as a deposing lawyer, do not agree to go off the record.

While the obstructionist attorney typically utilizes the ability to object as a means to obstruct the deposition and/or coach his or her witness, most procedural rules limit objections to “form,” “nonresponsive answer” and “privilege.” Ordinarily, a witness must answer a question at a deposition subject to the objection. Procedural rules are an effort to eliminate the obstructionist conduct involving long speaking objections and coaching of witnesses. You may ask for an explanation on an objection if you are concerned that the objection is valid and want an attempt to cure the objection. If you are going to ask for an explanation, do it after the witness has already answered the question. Let the witness answer the question so that you will get an answer without the lawyer's explanation and then go back and ask for the explanation and re-ask the question, if necessary, to cure the objection.

Procedural rules authorize an attorney to instruct a witness not to answer only if necessary to (1) preserve a privilege; (2) comply with a court order or the rules; (3) protect a witness from an abusive question or one for which any answer would be misleading; or (4) secure a ruling concerning the termination of a deposition. This is aimed at allowing attorneys to prevent witnesses from having to answer questions such as “when did you stop beating your wife” or other questions inquiring into matters clearly Whether a question is repetitious, argumentative, harassing, or necessarily requires a misleading answer, and can be a very subjective interpretation. One way to combat this is to ask for an explanation and attempt to cure the question.

In addition to the Rules of Civil Procedure, several ethical rules and provisions arguably apply to the obstructionist lawyer. In dealing with an obstructionist attorney, you may either file a motion with the Court seeking sanctions or cite the ethical rules. You may also consider filing a grievance against a lawyer who continually engages in such conduct, particularly if the trial court has refused to take any action against the obstructionist attorney.

Clearly, engaging in repetitive obstructionist conduct in a deposition unreasonably increases the cost of litigation.

The case In re Harvest Communities of Houston, Inc., 88 S.W.3d 343 (Tex. App. 2002), dealt with an attorney who engaged in some old-school typical obstructionist behavior. The obstructionist counsel repeatedly interrupted the deposing lawyer with argumentative objections and did not limit his objections as required by rule. The obstructionist lawyer made continual speeches and was obviously attempting to intimidate the deposing lawyer. He also was abusive towards the lawyer and ridiculed him calling his questions “nonsense” “preposterous,” and “absurd”. The trial court struck the testimony of the expert witness being tendered during the course of the deposition. While the appellate court found that this type of “death penalty sanction” was excessive and unduly punished the client and not the lawyer, the court made it clear and specifically stated that this type of conduct is sanctionable and should

Page 116 be sanctioned by the trial court. This case illustrates the appellate court's view towards the obstructionist lawyer and can be utilized in hearings with courts in dealing with this type of conduct.

While some lawyers are naturally jerks and intend to obstruct the process, others may be engaging in legitimate conduct in objecting to questions and instructing witnesses not to answer. Remember, some objections are made because they are valid and legitimate. When deciding how to respond to the seemingly unruly or obstructionist counsel, you should always remember that responding with nuclear weapons to a polite request for clarification or a polite instruction not to answer is guaranteed to turn the deposition into an unpleasant experience for all involved. It is also likely to interfere with your ability to obtain the maximum amount of information from the witness. As the deposing lawyer, you should always keep your goals in mind; that is to obtain useful information and better prepare your case for trial. You must decide whether the conduct of the obstreperous lawyer is actually obstructing your ability to gain information or is simply irritating. The following are some possible ways to react and deal with the unruly counsel.

A. IGNORE THE LAWYER.

The goal of the difficult counsel is to prevent you from obtaining information and to interrupt the flow of your deposition. If you continually respond to objections and get into long debates with counsel, you are playing into the hand of the obstructionist lawyer. You subconsciously switch your form of questions and your focus from the witness to the lawyer. One tactic you should consider is simply to ignore and do not even look at the lawyer or respond to in any way when they make ridiculous objections or instructions not to answer. Keep re-asking the question and attempt to cure the objection. Many times, lawyers will understand and get the point that you are going to continue indefinitely until you obtain the information you need. Sometimes this will discourage the obstructionist counsel and you may obtain more profitable information during the course of the deposition. This approach does, however, require discipline and patience.

B. ESCALATING YOUR RESPONSE.

While the approach of ignoring counsel is effective if you ultimately are obtaining useful information, this tactic does not work with the obstructionist attorney who is actually preventing you from obtaining necessary information. Ignoring counsel when he is effectively obstructing your deposition or effectively coaching the witness, simply rewards improper behavior. One way to combat this behavior is to make the lawyer understand that you are aware of the tactics and you are keeping track of these matters for a motion with the court. If your low-grade statements do not work, the next approach is to escalate the response and draw a line and threaten to seek assistance with the Court. You may consider taking a break with opposing counsel off the record and ultimately display anger. Sometimes, particularly with young lawyers, displaying anger and/or “throwing a fit” will somewhat control the obstructionist counsel. If the other lawyer knows that his tactics are going to provoke a very unpleasant and aggressive response from you, sometimes this will control the behavior because

Page 117 most people actually want to avoid being in such an unpleasant environment. Use this tactic with caution, however, because you may provoke the opposite response depending upon counsel.

C. ASK GOOD QUESTIONS.

Sometimes what you perceive as obstructionist behavior is merely the result of you not asking good and precise questions. If you know you are going to be dealing with an unruly counsel, you need to give a lot more thought to your deposition preparation and be prepared to ask very clear and precise questions that minimize the ability of an obstreperous lawyer to object to your questions or instruct the witness not to answer. For example, if the lawyer is not allowing a witness to answer compound questions because he claims they are abusive, be prepared to break the questions down and ask precise, clear questions.

D. SEEK COURT INTERVENTION.

Sometimes, you simply cannot control the obstructionist lawyer without seeking court intervention. If this is necessary, do not stop the deposition until you obtain all the information that you can obtain. You never know how the Court is going to rule and if you stop the deposition without getting all of the information you could have obtained, the Court may not allow you to resume the deposition. One suggestion for controlling obstructionist counsel is to ask the Court to allow you to put a video camera on both attorneys. This is particularly useful when you suspect that the opposing counsel is making facial gestures to the witness or perhaps even nudging and/or kicking a witness under the table.

E. USE A VIDEOTAPE DEPOSITION.

When dealing with an obstructionist counsel, consider videotaping all depositions. Lawyers will tend to behave themselves more during a videotape deposition because they know that the audiotape is available for you to use at a hearing in front of the judge and their conduct will be easier for you to demonstrate to the judge.

F. DON'T GO OFF THE RECORD.

Some attorneys will try and get you off the record to intimidate you and get you off your game. They know that it is difficult for you to prove anything that happens off the record. You may consider simply refusing to go off the record to speak with the opposing attorney. The rules allow you to refuse to go off the record unless everyone agrees.

G. DO NOT DEPOSE TOO LATE IN THE DAY.

Obstructionist behavior tends to escalate after 5:00 p.m. When lawyers and/or witnesses get tired, conduct tends to deteriorate. As a general rule try not to prolong a deposition much past 5:00 p.m., particularly if you have been going all day. And remember

Page 118 that under the Federal Rules, opposing counsel may impose the seven hour rule. Rule 30(d)(1), Federal Rules of Civil Procedure.

H. BE LIGHTHEARTED.

Sometimes being lighthearted and almost making a joke of the matter will cause the opposing counsel to lighten up and decrease the obstructionist behavior. By appealing to the good-natured side of the lawyer, you can sometimes get the opposing lawyer's guard down and inject a friendlier attitude that can be conducive to decreasing obstructionist behavior. In short, there is no one single approach for dealing with the obstructionist counsel. Every situation is different and unique and the deposing attorney must be prepared to deal with all possible strategies.

I. UNRULY WITNESSES.

While there are rules governing the behavior and conduct of attorneys, witnesses themselves can also be difficult to deal with. This is usually a result of coaching from their attorney both before and during the deposition. Rules governing the conduct of actual witnesses, however, are few and far between. Sometimes witnesses will simply not cooperate and will not answer questions. Since witnesses are not governed by our ethical rules and there are not many other rules to control the conduct of witnesses in the deposition context, a lawyer's skill and tactical considerations play an even greater role in dealing with the unruly witness.

Witnesses should not be evasive and should not unduly delay the examination. A witness' conduct can be sufficient to permit a trial court to allow evidence in trial of the objections, discussions, and other evidence of the witness' conduct.

Dealing with an unruly witness is frustrating because of the limited resources available to the deposing lawyer to combat this problem. Many times the unruly witness is a skillful expert witness who is very politely refusing to answer your question with long, wordy and suggestive answers to your simple cross-examination questions. The following are a list of some possible tactics that can be used to deal with this type witness.

1. Re-ask the Question Indefinitely.

Dealing with a long-winded, wordy, and skillful witness can be extremely frustrating and tricky. One of the best approaches to this witness is to simply re-ask the question as many times as necessary in an effort to obtain an answer to your question. Many times a witness will learn that their long-winded answers are not going to shake you off the trail and that you will re-ask the question as many times as necessary. The witness may decide that he does not want to subject himself to an all-day deposition and will become more responsive as the deposition continues as your approach becomes evident.

Page 119 2. Have Witness Repeat the Question.

Sometimes after a witness gives a long-winded nonresponsive answer to your question, it is useful to ask the witness, on the record, to tell you what the pending question was. Many times a witness will be unable to tell you what the question was after having given a long- winded, rambling, and nonresponsive answer. This can make the witness feel silly and can sometimes have the effect of controlling the overly wordy witness. It also is a very effective technique in a videotaped deposition to show the evasiveness of the witness.

3. Defining Words and Terminology.

One trick of the unruly witness is to play word games with you and quibble over your use of words. A useful tactic to combat this problem is to be very precise and careful in defining all words with which the witness has a problem. Many times you can simply use the witness's own definitions of words in order to provoke a meaningful response to a question. When a witness complains that your use of words or question is vague, simply ask the witness what was vague about it. Make the witness explain to you what the problem with your question is. You can then respond to the question in accordance with the complaints of the witness, which will be more likely to provoke a meaningful response to your question.

4. Intimidation.

A lawyer must make a tactical decision during the course of deposing a difficult witness as to whether or not you want to use the carrot or the stick. Sometimes being extremely polite and nice can provoke more useful information and more meaningful responses, whereas some witnesses will respond more to intimidation and aggressive behavior. Again, some witnesses will not want to be exposed to an unpleasant experience and will respond more favorably to subtle, and sometimes not so subtle, intimidation tactics in which you aggressively let the witness know that his conduct is improper and that you will bring him before the court if necessary.

5. Court Intervention.

Sometimes nothing works and you simply have to bring a witness before a Court and seek judicial intervention to obtain useful information from the witness. You may even have to consider asking the Court to appoint a master to essentially referee depositions, although this can be extremely time-consuming and costly.

Dealing with difficult opposing counsel and witnesses is a part of the litigation world that is not going away. How you handle the difficult counsel or witness depends on circumstances of the specific deposition and every attorney has their own method that works best. You must determine the method that works best in the particular situation and go with it. Sometimes it is necessary to utilize multiple methods to work a deposition through to completion and to beat the difficult counsel or witness at their own game. Remember, keep

Page 120 your cool, be professional and be ethical. In the end, keeping the high road without getting pushed around will result in a productive deposition.

Page 121 LAYING THE FOUNDATION FOR A SUMMARY JUDGMENT MOTION By: Elizabeth A. Fitzpatrick

INTRODUCTION

This chapter will discuss the effective use of depositions in establishing the basis for a summary judgment motion. In order to provide some uniform guidance, focus will be on the standards for summary judgment while conducting depositions found in the Federal Rules of Civil Procedure since individual states rules vary. Notwithstanding the variations among jurisdictions with respect to summary judgment motions and depositions, the principles of this chapter will provide guidance both in state and federal practice.

THE SUMMARY JUDGMENT MOTION STANDARD

Rule 56 of the Federal Rules of Civil Procedure establish the federal standard for summary judgment, either with respect to claims or defenses. A party is entitled to summary judgment if “the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” (F.R.CIV.P. 56(a)) [Emphasis Added]

While eliminating a genuine issue of material fact is the goal, the manner in which this is accomplished is the key to a summary judgment motion. To begin, it is necessary to understand the legal requirement for summary judgment. F.R.CIV.P. 56(c)(1) sets forth the standard as follows:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.

(c) Procedures. Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored

Page 122 information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

[Emphasis Added]

Having set out the requirements to support a summary judgment motion, some discussion of those individual requirements is warranted.

Noteworthy among the evidence that may be used to support a summary judgment motion are depositions, documents and electronically stored information, among other materials. In my view it is not worthwhile to segregate the documents and electronically stored information from depositions for reasons discussed later on. In many cases the documents and electronically stored information will be as, or more important than, the actual deposition testimony. The appropriate identification of documents and the use of the documents in the course of depositions to obtain testimony from a party or a witness is a significant component in the deposition process. The effective and proper use of depositions to elicit this information is critical.

Equally critical to obtaining the information is to insure that the information is admissible form. F.R.Civ.P. 56(c)(2) provides as follows:

Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

This section makes it equally important that the deposition testimony and the documents identified therein are in admissible form. The failure during a deposition to obtain testimony in admissible form will allow an opponent to defeat a Rule 56 motion on that basis. If you find yourself in that position you can seek relief under F.R.Civ.P. 56(e) which provides as follows:

(d) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support or address the fact;

Page 123 (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or

(4) issue any other appropriate order.

Please bear in mind that this only allows the court to “give an opportunity [to a party] to properly support or address the fact” that the party “fails to properly support” in its moving papers, but does not require it to do so. As a result, the failure to have all of the material facts in a motion in admissible form, may not be curable. Getting it right the first time is highly recommended.

ORGANIZING YOUR DEPOSITION STRATEGY

In order to effectively conduct a deposition with an eye toward summary judgment, an attorney needs to have an understanding of the following:

1. the applicable law;

2. what documents or electronically stored information is necessary to support the motion and, conversely, what documents adverse to your position must be eliminated from consideration;

3. what testimony is necessary from adverse witnesses or parties;

4. what testimony is necessary from the client; and

5. what testimony/evidence is necessary from non-party witnesses.

IDENTIFYING THE APPLICABLE LAW

Since summary judgment asks a court to determine the merits of a claim or defense as a matter of law, it is necessary to understand what the law is before depositions are conducted. In certain cases, such as simple negligence cases, an understanding of the law may be intuitive. However, no attorney should ever take the legal standards necessary for granted, especially in more complex cases.

A good place to begin this research is in the Pattern Jury Instructions for whatever jurisdiction, state or federal, in which the claim arises. The Jury Instructions will provide the “black letter” outline of the legal standard and, if it contains commentaries, those commentaries may assist you in understanding the more subtle aspects that surround the litigation. This research can be done relatively quickly and it can lead to additional research in

Page 124 more complex or nuanced cases. If a claim arises pursuant to a statute, research specifically on that statute will also be helpful. IDENTIFYING DOCUMENTS

Once the legal standard is established in your mind, the second step is to identify those documents which will assist you in establishing a sound basis for a summary judgment motion, as well as those that have the potential to defeat it. Obviously, your goal at a deposition is to establish a foundation for admissibility with respect to those documents that would support a summary judgment motion. However, it is also necessary that you establish the lack of admissibility of any documents that have the potential to defeat the motion.

Without undertaking an extensive review of the Federal Rules of Evidence, suffice it to say that the mere existence of a document containing information does not guarantee its admissibility and this discussion is not intended to address those issues. Nonetheless, awareness of the rules for admissibility of the documents pertaining to the case is a critical factor in determining how to proceed at a deposition as well as whether or not the deposition can form the basis for summary judgment further down the line.

Some discussion is warranted as to the type of documents that may be involved in depositions. The obvious ones include statements from a party or a witness. These statements may be prepared and signed by the party, be prepared by others and signed by the party, or be transcripts of recorded statements, both sworn and unsworn. In addition there may be admissions in the form of oral statements made to a third party. With regard to any statement, it is necessary to establish that the witness acknowledges that they wrote, signed or made the oral statement. Once that is established, it is advisable to then have the witness acknowledge that their memory was better when they made that statement than it is at the time of the deposition. Having established those two factors, it is more likely that the witness will feel compelled to agree with a prior statement, even if it is adverse to the position that they are taking at the time of the deposition. At that point, the witness can be questioned on the specifics of the statement. At this point the witness may be more inclined to agree with the accuracy of facts contained within the statement rather than to dispute them. This procedure serves two functions: first, it locks the witness in to his or her testimony if the case goes to trial and, second, it allows you to establish on a motion for summary judgment that the witness’s testimony is corroborated by both the statement and the deposition. This should prevent a witness from executing an affidavit to contradict his or her deposition testimony or the statement that was used to establish it.

Statements made by your client that are in the possession of your opponents can be used against your position in the case in the same manner. Thus, careful preparation of your client with regard to statements that he or she made prior to the lawsuit is also necessary. This will be discussed in greater detail under the section for witness preparation.

The second group of statements that may be involved in depositions are business records. Generally speaking, a business record needs a two-fold foundation to be admissible: first, the record must be authenticated as having been kept in the ordinary course of business

Page 125 of the entity from whom it was obtained; and, second, that the information within the document is also admissible and not subject to an evidentiary objection. Having the witness merely identify the document may not be sufficient on a motion for summary judgment as it does not guarantee that the information contained thereon is necessarily admissible. Some documents, for instance insurance policies, are seldom fraught with this type of problem. Correspondence, accident reports and other documents that contain statements, or other factual information specific to the case, require this two-fold approach in order to establish their admissibility at the time of trial. Recognition of the hearsay rule and its exceptions found in Federal Rules of Evidence 800 et seq. will offer guidance in this area.

PREPARING TO EXAMINE AN ADVERSE PARTY OR WITNESS

Once you have determined the documents necessary to conduct the examination of an adverse party or witness, it is necessary to also prepare questions pertaining to the factual circumstances regarding the litigation that lie beyond the documents. To the extent possible, it is necessary to understand the mechanism of injury or the operative facts pertaining to the claim before establishing an outline for questioning.

For purposes of this discussion we will assume preparation for depositions in an automobile accident case where the liability of the adverse parties is at issue. Understanding the physics of the accident – and in other cases the manner in which the operative facts can be verified – is important in determining the method and order of questioning of a witness. The questioning should be calculated to lead the witness down the path that is supported by the physical findings at the scene, such as debris fields, marks in the road, areas of damage to the vehicles, etc. in support of the ultimate goal: to determine that your client was not negligence as a matter of law. The questioning should be ordered in such a fashion that the witness, without knowing, begins to lock himself into a series of events that support your client’s version of the accident.

Allowing a witness no room to color the facts in such a fashion to defeat a motion for summary judgment is a tall order and seldom is accomplished unless the strategy for deposition questioning is well founded and organized prior to the deposition. By the same token, the mere fact that the deposition outline is well organized and calculated to yield the desired testimony is no guarantee that it will actually happen. Witnesses, potentially including your own client, may have new and different recollections that would create genuine issues of material fact sufficient to defeat a summary judgment motion. However, the failure to have this level of organization significantly reduces the likelihood that deposition testimony will lead to a successful summary judgment outcome.

Certainly, this is not a “one size fits all” approach. Each case is fact specific, therefore, the outline for depositions in each will reflect the elements that are unique to the fact pattern. It may become easier to develop this strategy as you gain experience but you would be ill advised if you were told that you can follow the outline in another case. In the end, it is the thought process in developing that outline that prepares you to conduct a successful deposition.

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PREPARING YOUR CLIENT’S TESTIMONY

The testimony of your client presents both an opportunity and a risk. It is an opportunity for direct testimony that supports a position that you intend to take on a summary judgment motion. The risk lies in the possibility that your client can testify to some fact that would provide a defense to your summary judgment motion, or, worse, provide your opponent with grounds to make one on behalf of their client. Thus, in addition to the standard preparation, care should be given to determining whether or not the client’s version of events is consistent with the physics that underlie, in this case, a traffic accident.

There are many opportunities in preparing a witness to cover information that has not been disclosed in the course of investigation. In those situations, your client’s testimony can be of great benefit or do great harm to the prospects for obtaining summary judgment. A classic example in an automobile case revolves around time and distance. If, for instance, your client testified that he or she was traveling at 45 miles per hour when confronted with an emergency approximately 200 feet in front of him or her, your client should not guess that the time that it took for his or her vehicle to travel that 200 feet was either too short or too long. Knowing that a vehicle travelling at 45 miles per hour is covering approximately 60 feet per second, your client’s testimony should be in the vicinity of three to four seconds as the appropriate time interval. If your client were to say 10 seconds, or worse, 1 to 2 seconds, it would create the possibility of there being a genuine issue of material fact when the summary judgment motion is made. Thus, walking your client through the calculations of converting miles per hour to feet per second, might assist your client in understanding and recalling events more appropriately.

Your client should also be prepared to address any statements which are in the possession of your opponent. If there is a statement that is significantly adverse to your position, the likelihood of summary judgment is greatly reduced. However, if your client deviates from disclosed statements in the course of his or her deposition, that inconsistency may also create an issue of fact. Thus, your client should understand the relationship between prior statements and the testimony that is being sought in the course of the deposition so that he or she can answer intelligently, correctly and consistently with those facts that provide you the best opportunity to obtain summary judgment.

Finally, make sure you protect any privileged documents such as statements that your client wrote or otherwise provided to your investigators. Invariably such statements will contain information that may be adverse to your position. Should your client review any such document to refresh his or her recollection, the statement becomes discoverable. Limit the documents your client reviews to those already disclosed during discovery.

NON-PARTY WITNESSES

There will be cases where the sworn testimony of the parties will leave gaps in the proof necessary for a successful summary judgment motion, or, for that matter, a trial. Under ideal

Page 127 circumstances the witness will be cooperative and your adversary will not make the effort to take his or her testimony at a deposition. However, circumstances are seldom ideal and a formal deposition may be required. Proceed cautiously in making this decision. There are several pitfalls associated with these depositions.

First, since no attorney-client relationship exists between you and the witness, great care is required. Any conversation with the witness is fair game in the deposition, thus, any inference that you have attempted to color a witness’ testimony will diminish greatly the proponents for a successful motion.

Second, the witness may be upset, or at least disgruntled, after being served with a subpoena compelling his or her appearance. Within the limits on contact, discussed above, it is advisable to accommodate any reasonable request from the witness and attempt to reduce their stress level prior to the deposition. Remember, the requirement to testify may be interpreted by the witness as “no good deed goes unpunished.”

Third, due to your limited contact with the witness, his or her testimony can be unpredictable; a problem exacerbated by a spiteful attitude generated by the inconvenience associated with his or her appearance. Variations between their testimony and any prior statements can be damaging to your prospects on a motion and attempting to cure the problem may only compound it. For instance, if a witness professes not to remember a key fact, do you show them a statement they made previously? If you do, the entire statement becomes discoverable potentially disclosing to your adversary other damaging information.

CONDUCTING THE DEPOSITION

For purposes of expediting depositions generally, attorneys tend to enter into the so called “usual stipulations” that relate to the signing, filing and certification of a deposition, and generally waive the right to make objections except for those objections as to the form of the question.

These “usual stipulations” require you to make certain decisions at the time of the deposition. First, either party can require the witness to review and sign the deposition transcript. Where you are looking to lock in the testimony of an adverse party or witness, reading and signing the transcript should be considered, however, the opportunity to read and sign also provides the opportunity to alter or amend. This allows your opponent to carefully review the transcript and attempt to “correct” statements that would otherwise be beneficial to you and detrimental to your opponent.

Federal Rule 30 explicitly provides or substantive changes as follows:

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(e) Review by the Witness; Changes.

(1) Review; Statement of Changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:

(A) to review the transcript or recording; and

(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

(2) Changes Indicated in the Officer’s Certificate. The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period.

At the end of the day, the decision whether to have the witness read and sign the deposition transcript is entirely a judgment call. If there are corrections in the transcript concerning the questions and answers, the fact that a dispute has arisen at all may result in arguments concerning genuine issues of material fact, thus, precluding summary judgment. As a practical matter, if counsel for an adverse witness waives reading and signing they have agreed to be bound by the transcript. If you waive on behalf of your client you will be in the same position. However, you have the option to have your client read and sign any time before the deposition is completed. Careful monitoring of your client’s testimony is essential to ensure that you require a “read and sign” as circumstances warrant.

OBJECTIONS

Federal Rule 26 provides specific guidance with respect to objections during the course of a deposition:

a) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.

(1) Examination and Cross-Examination. ….

(2) Objections. An objection at the time of the examination-- whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or

Page 129 to any other aspect of the deposition--must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a non-argumentative and non- suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

Not all states, however, have adopted the Federal Rule. For instance, in New York there is no specific requirement that objections be made during the course of the deposition or be waived. The Federal Rules require more diligence. The common objection heard is “objection to the form.” An objection to the form may pertain to the manner in which the question is asked as opposed to whether or not the testimony is relevant or competent. Questions that are leading, argumentative or assume other facts not in evidence, such as hypotheticals, provide a sound basis for objections to the form. Although the Rule does not so state, courts have held that the failure to make an objection as to errors that could be obviated, removed or cured, are waived. See Quicksilver, Inc. v. Kymsta Corp. 247 F.R.D. 579, 582 (C.D.Cal. 2007). On the other hand, parties do not need to raise objections on substantive issues such as relevancy or competency which could not be cured by virtue of the question being rephrased.

This Rule is important both in conducting as well as defending depositions. When conducting a deposition, it is not wise to ignore objections to matters that can be cured. If this occurs, rephrase the question in a fashion that will cure any potential objection so that this objection cannot be raised at the time the summary judgment motion is made. That is why, in the beginning of this chapter I discussed the standards for determining whether the facts proposed in support or opposition to a summary judgment motion are in admissible evidentiary form. If there is a curable problem, cure it. Failing to do so can jeopardize the prospects of a summary judgment motion and leave you without an opportunity to successfully address the issue.

Conversely, when defending depositions, be sure that you raise objections where necessary to preserve the opportunity, either in defense or support, of a summary judgment motion. Many attorneys when conducting depositions tend to ask suggestive questions of witnesses in an effort to elicit the type of proof that they believe will be beneficial to their position. You should have effectively prepared the witness for this type of questioning. However, the failure to raise an objection to leading and improper questions constitutes a waiver of your opportunity to do so later on in the event the answer is not consistent with the witness’ preparation. Further, when making objections to the form of the question, make sure that the court reporter has noted your objection. Court reporters are well trained and competent but they also are human. It is doubtful that you will remember whether you have objected to a question by the time the transcript arrives. As a general rule, you can confirm that the court reporter has heard and registered your objection by making eye contact. Many times you will receive a nod from the court reporter indicating that he or she has heard and recorded your objection.

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There is a limited right with regard to instructing a witness not to answer. Under the Federal Rules, such instruction is only available “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)” [where the deposition is being conducted in bad faith]. Thus, when conducting a deposition, it is appropriate to insist on answers to relevant questions while the deposition is being conducted. In all likelihood, your adversary’s instruction not to answer is based in part on lack of preparation of the witness. If at all possible, attempt to insist upon an answer prior to the suspension of the deposition if suspension is required. When conducting the deposition, it is likely that you will obtain favorable information from that answered question if you can manage to convince your adversary that an answer is required.

REAL TIME TRANSCRIPTS

As a practice point, being able to obtain a transcript in real time through a link with the court reporter’s computer can be very helpful. It is easy to assume that you obtained the exact answer you wanted. Likewise, it is difficult to concentrate on your questions while listening to an answer. Under those circumstances, having a transcript on your laptop or tablet displayed as the deposition is being conducted, is a tool by which you can verify that you have obtained the answer that is necessary for the preparation of a summary judgment motion.

PREPARATION OF THE MOTION

Before advising your client one way or the other with respect to a summary judgment motion, it is wise to review the transcript and exhibits, as well as any other documents that you would intend to produce, and evaluate your prospects accordingly.

In reviewing the transcript, bear in mind that objections as to relevancy and competency are preserved even if not made during the course of the deposition. Under the Federal Rules your client can be asked many questions that are beyond his or her competency and may be irrelevant to the proceeding. While you are powerless to stop an answer to those questions under the Federal Rules, it is well within your right in preparing a summary judgment motion to take the position that such testimony is not admissible and, therefore, not appropriate for the court’s consideration on a motion made pursuant to Rule 56, or under your state law. The same analysis should be undertaken with respect to any documents marked and introduced as exhibits at a deposition, especially those that may be adverse to your position. Analyze those documents to determine whether or not the document itself is admissible and whether the information contained on it is also admissible or is subject to objection on the grounds of hearsay or otherwise.

Once you have organized the deposition testimony, the exhibits and additional documents, you will be in a position to evaluate your prospects for a summary judgment motion and advise your client accordingly.

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CONCLUSION

Obtaining a judgment as a matter of law is a difficult process. Even under Rule 56, it takes only one genuine issue of material fact to defeat a motion for summary judgment. Thus, eliminating all such possibilities is extraordinarily difficult. Without appropriate preparation for and conducting of depositions the ability to meet that standard approaches impossible.

Page 132 LAYING THE FOUNDATION FOR CROSS-EXAMINATION AT TRIAL By: James D. Holland

When so many cases are resolved at mediation or before trial, it is easy to overlook the clear need for and purpose of a deposition as key tool in our preparation for trial and, in particular, for the cross-examination of the key witnesses. The cross-examination of the plaintiff can become the pivotal point in the trial that focuses the jury on the essential controversy of the case. Your preparation for a deposition should fold into your preparation for the cross-examination of the important witnesses for trial. A vigorous cross-examination can directly impact, more than any other part of a trial, the resulting verdict.

As we learn what the plaintiff knows about the incident, event, and her claims in litigation, there are two other goals we should keep in mind. The first is to use the deposition to make sure there are no surprises at trial and to gather cross-examination fodder for use should the witness venture from her testimony provided at a deposition. The second goal is to set up one’s cross-examination on the key points as to both liability and damages during trial. Although it is tempting to expose holes in a witness’s testimony or to use a key impeachment document or argument during a deposition, it is most frequently important to hold on to at least some of that information until the witness is seated in front of a jury or judge deciding on the witness’s credibility and claims. Far too often, that impeachment document or argument spent during a deposition allows the witnesses and opposite counsel to prepare for, diffuse and find alternative explanations to weaken the impact of the impeachment.

There are many ways to handle witnesses on cross-examination. We work to get the witnesses to agree with us, or make the witness’s failure to agree with us look unreasonable or even bizarre. Another method is to show that the witness’s relationship to the case to be both prejudiced and unreliable. Another is to show that the witness is lying or less than completely truthful. Yet another method is to show the foundation of the witness’s testimony is unreasonable or unreliable. It is the rare case where a surveillance video, a prior written statement or an eyewitness clearly makes the party out to be a liar. It is even a rarer occasion when the evidence exists to do this, and the lawyer can wait to spring the evidence at trial while avoiding the temptation to use it at the deposition or mediation.

The basic goals you may address while taking a deposition in preparation for your cross- examination of that witness at trial include:

1. Highlight inconsistencies with the testimony of other witnesses;

2. Demonstrate bias on the part of the witness;

3. Attack the witness’ credibility through impeachment and other means;

4. Highlight errors or confusion in the witness’s testimony, without allowing correction or clarification;

Page 133 5. Identify the portions of your own case the witness can corroborate; and

6. Identify and highlight portions of the witness’s testimony that bolster your own case or defense43

Whether you use bias, inconsistent statements, character evidence such as a prior conviction44, competency or contradiction, preparation during a deposition and prior to trial is paramount.

Remember to review Rule 611 and its subparts (b) and (c) as to the scope of cross- examination and the use of leading questions. The scope of cross-examination is intentionally broad. Rule 611(b) allows cross-examination “on any matter relevant to any issue in the case, including credibility”. When an objection is made that a question exceeds the permissible scope of cross-examination, the trial judge may overrule the objection if the question is “relevant to any issue in the case, including credibility”. As the starting point for your cross-examination, Rule 611 sets the framework of not only your questions at trial, but your preparation for and questions at a deposition. Print a copy of this rule as well as Rule 612 [refreshing recollection and prior inconsistent statements], 803(5) [past recollection recorded as a hearsay exception] and 106 [rule of completeness] and place them in your deposition notebook. Often you will see lawyers who make a listing of the evidence they want to admit including the supporting rules and cases and the witness through which the evidence is to enter.

Your deposition can be used to learn about the witness and her claims and to prepare your cross-examination at trial. One of the few ways your deposition will actually see the light of day at trial will be to impeach the witness with a prior inconsistent statement. Because of this, the focus of your deposition should be to prepare for this event in order to limit the witness to what was said at the deposition and to prepare you sufficiently to allow only leading questions, questions to which you know the answer.

So, how do we set the foundation for cross-examination at trial? At first blush, an attorney must be patient and careful to set the steps in place, right up to the edge of cliff, without showing the actual impeachment. Next, the attorney must have planned how to best deliver the impeachment in front of the trier of fact. The technique used by counsel to control a witness during cross-examination is often as important at the impeachment material itself. The most difficult aspect of cross-examination relates to avoiding the opportunity for the witness to explain away her inconsistencies.

Only with a well-planned deposition can your trial cross-examination be concise and succinct. Only with a well-planned deposition transcript can your trial questions lead to answers that you expect, start and end strong, anticipate and meet with objections from opposite counsel, and maintain control over the witness. One does not need to try very many cases to learn that a longer you pursue an area of questioning after making a key point, the

43 Gregory A. Hearing, Brian C. Ussery, Guidelines for an Effective Cross Examination: The Science Behind the Art, 809 PLI/Lit 663, 665-66 (2009). 44 See F.R.E 609(a).

Page 134 more likely a witness is to explain away her response. Before every deposition and trial, it is important to review the cross-examination techniques like those that come from Irving Younger’s Ten Commandments of Cross-Examination:

1. Be Brief and Succinct: Do not try to make more than three points on cross- examination.

2. Use Plain Words and Short Questions.

3. Use Only Leading Questions. This is an effective way to control the witness.

4. Never ask a question when you do not know the answer.

5. Listen to the answer.

6. Do not quarrel with the witness.

7. Avoid repetition: Do Not Allow a Witness to Repeat on Cross-Examination What He Said on Direct Examination.

8. Do Not Allow the Witness to Explain Anything on Cross-Examination.

9. Limit Questioning: Don't ask the one question too many. Stop when you have made your point.

10. Save the ultimate point for summation. A prepared, clear and simple leading cross-examination that does not argue the case can best be brought together in final summation.45

As you prepare for a deposition armed with impeachment evidence, remember to review the Rules of Evidence related to prior inconsistent statements. Rule 613 is clear:

Rule 613. Witness

(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.

45 Professor Martin A. Schwartz, Selected Evidence Issues Illustrated – Recent Decisions, Famous Trials, Movies and Novels, 790 PLI/Lit 7 (2009) citing Irving Younger, A Letter In Which Cicero Lays Down the Ten Commandments of Cross-Examination, in the Litigation Manual (ABA Section on Litigation 1983).

Page 135 (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

It is easy to overlook the primary requirement under this rule that the prior statement, no matter the form, must actually be inconsistent with the witness’s trial testimony. Even though direct inconsistency is not required, the test is whether the prior statement or omission has a reasonable tendency to discredit the testimony of the witness. Evasion, bad faith lack of recall or change of position can create inconsistency.46

Remember that the cross-examination at trial and your preparation for it during a deposition folds into two purposes: to probe the foundation for the witness’s testimony and to attack the witness’s credibility.47 This leads to a vigorous examination on the witness’s opportunity to know, see, hear or feel the subject matter of her testimony to support an honest doubt on the witness’s direct testimony. As for the witness’s credibility, the focus is on showing that the testimony should not be believed based on, for example, interest in the outcome of the case, a close relationship to a party, suspicious actions or those inconsistent with what one would normally do, or inconsistent prior actions or statements.48 As you prepare for a deposition, look forward to the goals you will have when the case is tried.

Even when well prepared, an intentionally difficult or evasive witness can melt your towering cross examination. When faced with such a witness, take a deep breath and simply and calmly re-ask the question verbatim. Ask the question again, if needed. The jury will understand and the witness’s failure to clearly and succinctly answer is exposed. Listening to the answer and the wiggle words contained in it are well used on closing when discussing that witness’s credibility.

When it is your witness on the stand, keep in mind the Rule of Completeness. Rule 106 has saved many a witness when the court allows the jury to hear complete documents or the rest of a deposition page or topic. This rule applies when evidence of writings, recorded statements, or parts of writings or recorded statements are introduced. The rule provides that “when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require [the party] at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it”. The rule does not require the introduction of additional portions of the statements that are neither explanatory nor relevant, nor does it authorize the introduction of unrelated statements,

46 Chapter XII. Cross-Examination and Impeachment of Lay and Expert Witnesses, page 391-2. 47 Edward L. Birnbaum, Carl T. Grasso, Effective Direct and Cross-Examination Including How to Prepare Your Witnesses for Trial, 560 PLI/Lit 131, 150 (March 1997). 48 Id. at 151-152.

Page 136 statements made at different times or to different persons, or independent statements offered by the defendant.

In the end, your preparation for a deposition and for cross-examination at trial using what you learned at the deposition and in discovery will rely on your personality, your presence and your ability to persuade.

These traits are often manifest in the ability to think and react quickly. But something else is involved as well – something that a trial lawyers often hold in short capacity. That something is humility, and the ability to know when to quit. The art of cross-examination involves all of these traits, and more than a little luck.49

All of those traits flow from experience and hard, thorough preparation. Watching others, reading trial and deposition transcripts and conducting cross-examination are all ways to learn and develop those skills. The primary authors on this issue agree, the first steps are preparation and practice. The most important part of that preparation comes directly from your deposition of the witness. The witness’s background, employment and medical history, and prior statements must be identified there to set up your trial questions.

Looking to the trial evidence, even before a deposition is taken, is an important part of your case preparation. There should be several goals considered each time a party’s deposition is taken, here are a few:

What can we agree on? It is often helpful to begin the trial with all of the evidence favorable to your case. Even in voir dire and in opening statements, you may want to plant firmly the evidence on which all parties agree. This evidence can come from the other party’s deposition, admissions, discovery answers and pleadings. Framing the case in the favorable facts that no one disputes helps the jury focus on the evidence you think is most important. Telling the jury that “even the plaintiff agrees that . . .” or “this case is not about . . .” directs the finder of fact to your key evidence.

Testimony from the other party to the effect that “it is not your claim that my client did this on purpose or intentionally, you are just claiming that she made a mistake or was negligent” helps limit for a jury the issues for decision. “You already had undergone two back surgeries well before this accident” reels in the possible claims considered by the trier of fact. Cross-examination at trial which begins with these limitations on the claims made and damages sought narrows the focus of the testimony to the key issues.

49 Timothy A. Pratt, The Ten Commandments of Cross-Examination, FDCC Trial Tactics Section.

Page 137 How do I limit the party’s claims on liability and damages? If there is a singular purpose for a deposition or discovery as a whole, it would be to make sure there are no surprises at trial. Narrowing the claims in the pleadings and in discovery answers is a key part of deposing a witness in preparation for trial. Following questions in depositions with door- closing questions, such as “Did my client say anything else to you . . . did you hear him say anything else . . . do you have any other basis for that claim” insures that there will be no new evidence to surprise you at trial and, if there is, you have support to have it stricken or limited at trial.

If the most important goal at a deposition is to avoid surprises at trial, the most important rule during cross-examination at trial is to ask only leading questions. This makes a thorough deposition even more important when you are using the deposition to set up your cross-examination at trial. You must use the deposition to make sure you have the information and facts necessary to form your leading questions. Although “use only leading questions” is the third rule on Irving Younger’s listing above, you do not need to experience very many trials to know the hard and unforgiving danger awaiting those who leave open-ended questions for a well prepared witness ready to take control and highjack your cross examination. Out of control witnesses who volunteer damaging information a jury should not hear and the urge to argue with the witnesses in front of jury seem to always follow a question in a form other than leading.

Leading questions are your best tool. Allowing witnesses to retell their story is not the reason you are cross examining them to begin with. Use your deposition to ask the questions beginning with such words as who, what, where, when, did, how, and the most troubling two, why and explain. These are words that need to be erased from your vocabulary during cross- examination at trial. Only when you can avoid these words during trial have you really done a great job in your deposition of a witness. Make it your goal to set up the testimony in the depositions so that none of those words are even necessary during cross-examination. Before you end your deposition, ask yourself, can I now cross examine this witness without using any of these eight words.

Too often we see attorneys who are not prepared for or knowledgeable enough to get the impeachment evidence property before the jury, leaving effective impeachment testimony or document unused. Too often the key prior testimony or other inconsistent statements are not at the cross-examiner’s finger tips, set up or not used properly in front of the finders of fact. If you have assembled all of the witness’s prior statements, sorted by topic and prepared for cross examination, the end product can be extremely dramatic and effective. But this work is wasted if you have not made the proper foundation for impeachment.

In the end, cross-examination may be the highest art form available to a trial attorney. A well prepared and organized deposition that allows a cross examiner to both control the examination and use leading questions is your goal. “Cross-examination is the greatest engine for ascertaining truth,” Wigmore on Evidence. After the extensive preparation for the deposition in the early shadow of your cross-examination at trial, remember these key points: [1] keep your deposition questions and your trial cross-examination simple, concise and precise

Page 138 in your questions, [2] keep you goals clear and tie your questions to your theory of the case and [3] stay within what you know about the case. It is the thoroughness of your deposition that allows your cross-examination at trial to flow clearly. It is your deposition questioning that allows you to only ask questions to which you know the answer and to avoid those answers not favorable to your case. It is your deposition preparation that allows you to focus on the key issues in your defense and bring the relevant evidence and admissions to light.

Page 139 USE OF DEPOSITION AT TRIAL By: Barrett J. Corneille

I. INTRODUCTION

Depositions can be an extremely effective and useful way to elicit testimony at trial. Opportunities to use a deposition can arise in a number of different circumstances. A deposition transcript can be vital to trial testimony in cases where a witness is unavailable to testify live, an attorney is seeking to impeach a witness with a prior inconsistent statement, or an attorney is trying to refresh the recollection of a live witness. Depositions are also used for various substantive purposes. This analysis will highlight some of the most common and useful ways to use depositions at trial and provide tips to make deposition use especially effective.

There are certain procedural rules an attorney must follow in properly using a deposition transcript in federal court. It is important that an attorney seeking to use a deposition for a particular purpose is adequately prepared and knows exactly how and when he or she will use it. Mastering these subtle, yet important rules demonstrates a high level of professionalism and skill, and can be the difference between excellent and merely adequate trial presentation.

The governing rules for the use of depositions at trial are instructive, but these rules are not hard and fast. Generally, Rule 32 of the Federal Rules of Civil Procedure lays out the circumstances under which a deposition is appropriate to use in trial. The Federal Rules of Evidence supplement Rule 32 and serve a gatekeeping function to permit only deposition testimony that is proper for trial, excluding testimony that is irrelevant or unfairly prejudicial. However, even if the proffered testimony passes these procedural hurdles, there is no guarantee that a court will allow the deposition evidence. The court has broad discretion to determine the manner and form in which deposition testimony is elicited.50

Generally, live testimony in court is always preferred. The Federal Rules support the notion that live testimony is a more effective manner for a jury to hear evidence. The preference for live, rather than recorded testimony is also related to the fulfillment of the Federal Rules’ purported goals of fairness and efficiency. Nevertheless, the rules provide alternative mechanisms for situations where live testimony is not possible, and situations where using portions of a deposition is strategically motivated based on something that happens during a trial. Although given out-of-court and prior to trial, deponents are deposed under the same oath or affirmation that the witness would take if the testimony were being given in open court; thus, depositions are particularly reliable and proper for use in court.

50 Pursuant to Fed. R. Evid. 611, “the court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence …”

Page 140 II. GENERAL REQUIREMENTS TO USE A DEPOSITION AT TRIAL

As a threshold matter, the use of deposition in a trial requires compliance with Fed. R. Civ. P. 32(a). The rule is stated as follows:

(a) Using Depositions.

(1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions:

(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;

(B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and

(C) the use is allowed by Rule 32(a)(2) through (8).

Fed. R. Civ. P. 32(a) sets three conditions for using a deposition at trial. The first two conditions must be satisfied in all cases. If those first two are met, then use of that deposition is permitted as set forth in R. 32(a)(2)–(8).

The first requirement in part (A) only requires that the party against whom the deposition will be offered was present or represented by counsel during the deposition or had some notice of it. This requires representation by some counsel during the deposition, not necessarily the same counsel as at trial. The “presence” requirement suggests that there was, at the very least, an opportunity for direct examination during the witness’s deposition. An attorney may choose not to examine his witness during a deposition; however, the absence of a direct examination will not later be grounds to exclude the deposition at trial if opposing counsel offers it.

The second condition in part (B) in Fed. R. Civ. P. 32(a)(1) for using deposition testimony at trial is that it must be shown that the testimony offered would be admissible under the Federal Rules of Evidence as if the deponent were testifying live at trial. This is meant to clarify that deposition testimony that qualifies for use under R. 32 should not be excluded on the basis that it is hearsay; thus, courts have seen R. 32(a)(1)(B) as creating an exception to the hearsay rule.51 Even if a party can use a deposition, the Federal Rules of Evidence might limit what portions of the deposition that can be used.

If the proponent has satisfied the first two conditions of Fed. R. Civ. P. 32(a)(1), the proponent may use the deposition if it is an allowed use under R. 32(a)(2)–(8).52 The party

51 See Fed. R. Civ. P. 32 advisory committee’s note (1970). 52 These allowed uses will be discussed and analyzed throughout this chapter.

Page 141 seeking admission of deposition testimony bears the burden of establishing it as an allowed use.

Fed. R. Civ. P. 32(a)(1) applies to all depositions equally whether the deposition was taken with the intention of presenting evidence at trial or not.53 It must be noted that the standard for allowing testimony in a deposition is vastly different from the standard for permitting testimony at trial. Depositions take place during discovery, permitting inquiry into a broad range of topics with the requirement being only that the subject matter is reasonably likely to lead to discoverable evidence. Conversely, evidence elicited at trial must be relevant, material and not prejudicial. Therefore, certain subject matters permitted in a discovery deposition may be deemed prejudicial or irrelevant at trial. This is where the Federal Rules of Evidence function to supplement the Rules of Civil Procedure.

Strategy and Form in Using Deposition Testimony at Trial

The decision to use a deposition and the manner of delivery of the deposition testimony is a strategic decision by the trial attorney, subject to the sound discretion of the court. In general, the attorney should provide the court with a transcript of the deposition but this transcript is usually not marked, entered into evidence, or provided to the jury, except in rare circumstances.

If a deposition transcript is provided in open court, an attorney may read the relevant portions aloud. However, this form can be very boring and fail to engage the jury. An additional option is for an attorney is to use another individual to play the role of the witness and deliver the questions and answers in the deposition as if the unavailable deponent was testifying in open court. If this is the case, it is better to use an individual who fits the mold of the unavailable witness (i.e. is credible, professional, and believable). In addition, if a video of the deposition is available, the rules allow the video to be played in open court.54

III. IMPEACHMENT

One of the most common and effective ways to use a deposition at trial is for impeachment purposes. Fed. R. Civ. P. 32(a)(2) permits any party to use a deposition to contradict or impeach testimony given by a deponent as a witness. The impeachment procedure is available when a witness makes a statement at trial that is inconsistent with statements made in his or her deposition. An attorney may always impeach a prior inconsistent statement and a hearsay objection is never proper when the statement in a deposition is used for the limited purpose of impeachment.55

53 See Manley v. AmBase Corp., 337 F.3d 237, 247, 61 Fed. R. Evid. Serv. 1748 (2d Cir. 2003). 54 See Fed. R. Civ. P. 43(a). 55 See Fed. R. Evid. 801(d)(1)(A) (a declarant-witness’s prior statement that is inconsistent with declarant’s testimony and was given under penalty of perjury in a deposition, is not hearsay) (emphasis added).

Page 142 Impeaching a witness with a prior inconsistent statement requires a precise technique to be effective before a jury. As an initial matter, an attorney must be knowledgeable about the contents of a deposition and attentive to what the witness says in trial to be on alert for potential inconsistent statements. When a witness makes such a statement, there is a rather structured and simple approach. Here are the three basic steps involved in this procedure:

(1) Commit the witness to the inconsistent statement;

(2) Credit the significance of the inconsistent statement by pointing out the circumstances in which the deposition was given;

(3) Confront the witness with the prior inconsistent statement by reading the actual statement in the prior deposition.56

First, make the witness commit to the fact or the statement he asserted on direct or cross. If necessary, have the court reporter read the exact statement, rather than paraphrasing since it is more likely to cause the witness to comply.57 A proper impeachment cannot proceed unless the attorney has locked the witness into their statement. Second, accredit the prior inconsistent statement, which instructs that you build up the importance and significance of the impeaching statement (in this case the deposition testimony). Point the witness to the date, time, location, and circumstances of the deposition where the prior inconsistent statement occurred, and if you are impeaching the plaintiff, the fact that their lawyer was present. This shows the court that the prior inconsistent statement was made under serious circumstances. Third, confront the witness with the prior inconsistent statement by approaching and reading the appropriate portions of the deposition.58 This is done most effectively by directing the witness to the specific pages and/or lines of the deposition and reading it aloud while simultaneously displaying it for the jury. After you have done so, ask the witness if you have read it correctly. If the witness complies, the impeachment is complete and move on with your cross-examination. Do not ask a follow up question.

To illustrate how this three-step procedure works, I will use an example. In this hypothetical, a witness has given an inconsistent statement about what he saw as an eyewitness to a hit-and-run car accident.

Q: Mr. Smith, you testified on direct examination that you saw a blue truck rear end a black Honda and then drive away? .

56 See Mauet, Thomas A. Trial Techniques. 7th ed. New York: Aspen, 200. Print. Wolters Kluwer Law & Business (285-89) (the commit, credit, and confront three-step technique is a common form of impeachment advocated by legal scholars; specifically, Thomas Mauet, who advocates this structured technique of impeachment when discussing prior inconsistent statements; a technique that is readily applicable to depositions). 57 Fed. R. Evid. 613(b) expressly requires that the witness have an opportunity to admit, deny, or explain making the inconsistent statement before extrinsic evidence of that inconsistent statement is admissible. 58 Fed. R. Evid. 613(a) does not require that you show an impeaching writing to a witness before using it; however, you must show the document to opposing counsel upon request.

Page 143 Q: And it is your testimony today that the truck was blue?

A: Yes.

Q: Mr. Smith, do you remember giving a deposition in this case?

A: Yes.

Q: In fact, you gave a deposition in my office on July 16, 2013?

A: Yes.

Q: You were questioned about the accident you witnessed during this deposition?

A: Yes.

Q: That deposition was shortly after the accident happened and the events were fresh in your mind?

A: Yes.

Q: You were represented by counsel during that deposition?

A: Yes.

Q: You took an oath and swore to tell the truth during that deposition?

A: Yes.

Q: That is the same oath you took at trial here today?

A: Yes.

(If requested, indicate to opposing counsel the page number and line(s) of the transcript prior to approaching the witness)

Q: Mr. Smith, I am going to read from page 38, lines 5 through 11 of your deposition. Please follow along and read silently while I read aloud (reading transcript while showing it to witness):

Q: Mr. Smith, could you describe the vehicles you saw involved in the accident on 3rd Street?

A: Yes, I saw a truck rear-end a small sedan at a red light and then drive away.

Page 144 Q: Could you describe the model and color of those two vehicles?

A: The truck was green and the sedan seemed to be a black Honda.

Q: Mr. Smith, did I read that correctly?

A: That is what it says, yes.

Trial Strategy Tips on Impeachment

This example illustrates all three steps in the impeachment procedure. There are a number of additional questions that could be asked to further accredit the significance of the deposition (i.e. after giving your deposition you had a chance to read it to make sure the testimony was correct, you had an opportunity to amend your answers, you signed the deposition on the back page, etc.). However, too many questions on that point might seem like overkill and detract from the main point, which is to highlight the inconsistent statement. From a stylistic standpoint, it is important to use voice inflection and if necessary, brief pauses, to drive the point home that the witness has lied, forgotten or was confused, all of which hurt their credibility.

Impeachment is a straightforward procedure but it does require strategic value judgments by the attorney. Sometimes an inconsistent statement might be non-collateral, non- substantive, and not worth going through the somewhat protracted impeachment procedure. An attorney may leave a bad impression with the jury and the court if he or she wastes time impeaching a minor or insignificant statement. A good example of this value judgment is an impeachment by omission. In some cases, a witness might add a detail that he or she did not state when asked similar questions in a deposition. A skilled attorney might catch this, use it to impeach and point out that similar information cannot be found anywhere in the witness’s deposition. However, there could be drawbacks to this if the statement is trivial or you are dealing with a particularly skilled witness who might be able to qualify their statement and strip your impeachment of its effectiveness. It is clear that the impeachment procedure is a risk versus reward judgment.

Nonetheless, impeachment is probably the most effective way to use a deposition at trial. Properly impeaching a witness with their deposition demonstrates polish, preparation, and an extensive knowledge of the case. A proper impeachment can seriously undermine the credibility of a witness, especially when the inconsistency relates to a rather substantive aspect of the case. The most effective impeachments are brief and simple. Attempts to impeach long statements or to impeach several facts at one time can become convoluted and hard to follow. Impeachment of short statements with limited but important facts will most effectively capture jury’s attention.

Page 145 IV. USING THE DEPOSITION OF AN “UNAVAILABLE” WITNESS

A common situation where the use of a deposition at trial becomes necessary is where a witness is unavailable to testify at trial. Fed. R. Civ. P. 32(a)(4) governs use of a deposition in this context. R. 32(a)(4) largely mirrors Fed. R. Evid. 804(a) with regard to the criteria that establishes who qualifies as an “unavailable” witness. Additionally, an unavailable witness’s deposition is not hearsay pursuant to Fed. R. Evid. 804(b)(1). However, for the exception to apply, a prerequisite for unavailability has to first be satisfied.

A rather straightforward way that a deposed witness is unavailable is if they are deceased. A witness is unavailable if they are more than 100 miles away from the proceeding or if they are out of the country. However, this does not apply if the party offering the deposition secured that witness’s absence.59 A witness may also be unavailable due to age, illness, infirmity, or incarceration. This prerequisite requires that the witness’s condition or calamity be the actual cause of their inability to appear or testify.60 If a witness is able to testify notwithstanding one of those conditions, he or she is not unavailable under the rule. In some circumstances, an unavailable witness’s deposition can be offered if the offering party was unable to subpoena that witness. Generally, the court looks at whether the offering party made a good faith effort to subpoena and procure the witness’s presence at trial. Fed. R. Civ. P. 32(a)(4)(E) provides sort of a “catch all” provision that exceptional circumstances may warrant the use of an unavailable witness’s deposition. This requires a Notice and a Motion in cases where the interests of justice support submission of deposition testimony. Courts apply this exception quite narrowly. Often times it is raised when a professional witness (i.e. physician, accountant, appraiser) might have an extremely busy schedule that does not permit trial attendance. These instances are close calls, and whether or not to admit will typically hinge on the importance of the deposition testimony.

Some of these prerequisites are rather straightforward; however, others provide less clarity and permit broader discretion to the court to determine whether a witness is actually “unavailable.” In addition, even if a witness is “unavailable,” under the rule, the court has final say on whether to allow the deposition testimony and discretion on the manner in which the relevant deposition sections are presented to the jury. For example, a court may allow a jury to hear deposition testimony of an unavailable witness but might require that a video of the deposition is played for the court rather than an attorney reading portions aloud or a role play question-and-answer style. Many depositions are videotaped and showing the deposition testimony often is preferable for a court because it is consistent with the preference for live testimony.61 Moreover, playing a video of a deposition has inherent benefits because it

59 Fed. R. Civ. P. 32(a)(4)(B). 60 See Delgado v. Pawtucket Police Dept., 668 F.3d 42, 48-49, 81 Fed. R. Serv. 3d 771 (1st Cir. 2012). 61 See Rule 43(a) (Rule instructs that a court may permit testimony in open court by contemporaneous transmission from a different location … [t]his rule is meant to complement, not supersede, Rule 32. In some cases, a court may determine that it is preferable to have “live” testimony from a remote location rather than deposition testimony).

Page 146 allows.62 Moreover, playing a video of a deposition has inherent benefits because it allows a fact-finder to observe a witness in an adversarial trial like setting. Thus, a fact-finder would be able to observe the body language or the presentation style of the deponent, allowing a fact- finder to make credibility determinations that would not otherwise be possible if the testimony was merely repeated.

As a practical matter, determinations about a deposed witness’s unavailability and procedural matters including the parts of the transcript to be offered and the manner in which it will be offered should be handled prior to trial. An attorney seeking to use an unavailable witness’s deposition should file an original copy of the transcript with the court and explain to the judge why the witness is unavailable. You should also indicate what portions you intend to read and opposing counsel will be able to designate what portions he or she will read so evidentiary objections are made and ruled on in advance. The same rules apply for a videotaped deposition. This would require a video editor to include only the admissible sections.

Trial Strategy Tips for Using Deposition Testimony of an Unavailable Witness

In deciding when and how to use deposition testimony of an unavailable witness, there are additional risk/reward determinations an attorney should make. First, it is vital to be concise about the sections of the deposition you will offer. Depositions can be long and cumbersome so it is important to select portions that are relevant and portions that are necessary to give appropriate context to the testimony. Always remember that opposing counsel will have the opportunity to submit portions as well so an attorney should guard against being disingenuous by offering only portions that are not in proper context.63

Unless the judge mandates a specific procedure, an attorney typically will have a choice between reading the relevant portions to the jury, using a person to simulate the testimony, or presenting video evidence if available. If your witness is very strong, confident, and credible, it might be more effective to use the video for the fact-finder to observe. On the other hand, if your witness is rather weak and did not hold up against difficult questioning in their deposition, reading or simulating the testimony might be more beneficial.

V. USING A DEPOSITION AS SUBSTANTIVE EVIDENCE AGAINST AN ADVERSE PARTY

Using the deposition of an adverse party can be a source of substantive evidence that can be used either during the opposing party’s case in chief or during your case in chief. Fed. R. Civ. P. 32(a)(3) permits the use of a deposition of an adverse party, agent, or designee for any purpose, including substantive purposes. These statements are treated as admissions by a

62 See Rule 43(a) (Rule instructs that a court may permit testimony in open court by contemporaneous transmission from a different location … [t]his rule is meant to complement, not supersede, Rule 32. In some cases, a court may determine that it is preferable to have “live” testimony from a remote location rather than deposition testimony). 63 See Fed. R. Civ. P. 32(a)(6).

Page 147 party opponent and are not hearsay pursuant to Fed. R. Evid. 801(d)(2)(A)–(D).64 The pretrial procedure for offering this testimony is the same as it would be for an unavailable witness (i.e. determine the parts you want submitted, have evidentiary objections ruled on in advance). The difference is that, while most of the transcript of an unavailable witness can be read to a fact- finder, typically, only the parts of an adverse party’s transcript that contain “admissions” as defined under the rule for the hearsay exception are normally read.

To qualify as “admissions” generally refers to statements in depositions given by the adverse party or the party’s officers, directors, and “managing agents.” For corporate parties, to alleviate some of the ambiguity regarding how far this extends, the court employs the “Managing Agent” test to determine if a witness has sufficient authority to bind an adverse party and qualify as an admission under the rule.65 The scope of “agency” is measured at the time the deposition is taken during discovery, not during trial. This inquiry focuses on duties rather than position or job title so the scope of a “managing agent” could be construed broadly. The court looks at factors including:

(1) did the deponent have power to exercise discretion in dealing with corporate matters,

(2) whether there were persons in positions of higher authority regarding the matter in question; and,

(3) whether the deponent’s interests were aligned with those of the corporation.66

At a minimum, the deponent must have had important decision-making authority at some time relevant to the dispute and position/title conferring responsibility at the time of the deposition.67

Trial Strategy Tips on Using Adverse Party Deposition for Substantive Purposes

As long as the adversarial party’s deposition is relevant and admissible, it may be used. This is effective because there is no requirement to call the witness to the stand or explain your reason for why you want to read their testimony; admissions by a party opponent are fair game for any purpose. Although the rule does not limit the purposes for which a party can use a

64 An Opposing Party’s Statement is one that is offered against an opposing party and: (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party’s agent or employee on a matter within the scope of that relationship while it existed … (subsection (E) omitted). 65 For discussion of “Managing Agent” test; see Carpenter v. Forest Meadows Owners Ass’n, 85 Fed. R. Evid. Serv. 1257, 2011 WL 3207778, *5 (E.D. Cal. 2011); see also Globe Savings Bank, F.S.B. v. U.S., 61 Fed. Cl. 91, 98 (2004). 66 See Globe Savings Bank, 61 Fed. Cl. 91, 97 n.10; see also Bays Exploration, Inc. v. Pensa, Inc., 2012 WL 122313, *2 (W.D. Okla. 2012). 67 A party seeking to use a deposition for this purpose should also Review Fed. R. Civ. P. 30(a)(6) and Fed. R. Civ. P. 31(a) for discussions of agency rules.

Page 148 deposition that qualifies under this rule, it is better to pick the particularly vital portions of the adverse agent’s deposition for strategic purposes. Provocative statements from individuals of high rank and authority can be quite helpful, but there is no need to offer superfluous testimony. This rule applies whether or not the deponent is unavailable, but again, the court has discretion to limit irrelevant or cumulative testimony.

VI. USING A DEPOSITION TRANSCRIPT TO REFRESH RECOLLECTION

A deposition transcript serves practical functions when it is offered at trial to refresh a witness’s recollection. This includes a present recollection and a past-recorded recollection. The Federal Rules of Evidence are the proper authority for using depositions in this manner. A trial is a culmination of what is often an extremely long litigation, often spanning years. Naturally, a witness’s memory may fade over time about what they specifically heard or saw at a particular time several years prior. Depositions are helpful to refresh these memories since they are discovery documents typically taken shortly after the event in question occurred.

Under Fed. R. Evid. 612, a writing may be used to refresh a witness’s current recollection of a past event. This broad rule refers to any writing; however, a deposition is commonly used in this context. This is a more informal process that is often used when an attorney is questioning his or her own witness who is having difficulty recalling certain details. The procedure is straightforward; ask the witness if the deposition would refresh their recollection, approach and hand the witness the document and let them review. Once the witness has had an opportunity to adequately review the document, ask, “has this refreshed your recollection?” and proceed with questioning. In this context, you do not read portions of the deposition or enter into evidence.

There is a more formal procedure available to refresh a witness’s recollection that can be used by a party’s attorney or by an adverse party. Fed. R. Evid. 803(5) provides a hearsay exception for recorded recollections, of which a deposition qualifies.68 The exception becomes applicable when the deposition provides important information from when the facts were fresh in the witness’s mind, the deposition was accurate when made, and the witness now has insufficient recollection to testify fully and accurately to certain events or details. When the deposition is properly qualified, it should be read to the jury. The rationale behind this hearsay exception is that reading the pertinent parts of the deposition is a proper substitute for the witness’s forgotten recollection.69 However, under the federal rule, the deposition or portions of it may be marked as an exhibit and offered into evidence, but only when offered by an adverse party. Thus, this is a circumstance where all or part of a deposition may be entered into evidence, rather than just read into the record. Here is an example of how a recorded recollection might come up when a witness is questioned by opposing counsel:

68 Pursuant to Fed. R. Evid. 803(5) a Recorded Recollection is a record that: (A) is on a matter the witness once knew about but cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge. 69 See Mauet, Trial Techniques, 7th ed. (148-49) (2007).

Page 149

Q: Ms. Johnson, could you state the names and positions of the employees your company let go in September of 2008?

A: No, I cannot possibly remember all of them, there were many lay-offs that month.

Q: Did you provide this list in your deposition?

A: I cannot recall.

Q: Ms. Johnson, would reviewing your deposition refresh your recollection as to the names and positions of all those employees?

A: It is possible.

(Have deposition marked as exhibit, show to opposing counsel, ask permission to approach witness, show exhibit to witness, establish foundation that deposition is accurate and reliable).

Q: Ms. Johnson, I show you what has been marked as Defense Ex. A, do you recognize it?

A: Yes, it is a copy of my deposition from 2009.

Q: Is this deposition in the same condition now as it was then?

A: Yes.

(Offer contents of exhibit into evidence, have contents of exhibit marked in evidence, ask permission to read to jury, and read relevant contents of deposition to the jury.)

Therefore, if certain elements are met, a deposition qualifies as a recorded recollection and can be offered into evidence if the witness cannot recall past facts while being questioned by opposing counsel. This assumes that the witness had firsthand knowledge of the facts when they occurred and that knowledge was made part of the record in his complete and accurate deposition. In refreshing recollection, the tone and demeanor of the attorney will typically depend on whether the attorney is refreshing the recollection of their own witness, or an adverse witness.

VII. LIMITS ON USE OF DEPOSITIONS IN TRIAL

As we have seen, using a deposition correctly in trial can be a very potent trial weapon. Yet, it is important to remember that the decision to permit or forbid certain deposition testimony often boils down to consideration of the legal system’s dual goals of efficiency and fairness. With this in mind, there are some important limits on the use of depositions.

Page 150

Fed. R. Civ. P. 32(a)(5)–(8) lay out some limits on the manner in which depositions can be used in trial, a couple of which are particularly important to understand. Under R. 32(a)(5), a deposition cannot be used against a party who failed to appear at a deposition because of a lack of reasonable notice. A party who receives less than fourteen days’ notice for a deposition must promptly move for a protective order that the deposition be taken at a later date and time.70 If the Motion for a Protective Order is still pending when the deposition occurs, the deposition cannot be used against that party.71 However, if a party fails to move for a protective order when there is inadequate notice, it might waive the right to challenge the lack of reasonable notice. There is also a narrow exception for a deposition taken without leave of court under the availability provision of R. 30(a)(2)(A)(iii), who, when served with notice could not obtain counsel to represent himself or herself at the deposition.72 This is also a narrow protection for instances when a party was diligent, but unable to be represented by counsel at their deposition.73

Fed. R. Civ. P. 32(a)(6) provides a limitation on the use of depositions that is very important for attorneys to understand. Under this section of the rule, when a party offers in evidence only part of a deposition, an adverse party may then introduce any other parts or require the offering party to introduce parts that, in fairness, ought to be considered with the part introduced. This rule is often referred to as the “rule of completeness” and is very similar to FRE 106.74 This rule becomes important when an attorney makes a disingenuous attempt to offer deposition testimony by providing statements that are misleading when not considered in their proper context. For example, an attorney might submit a portion of a specific answer that paints the deponent in a non-credible light when a subsequent statement may have qualified the answer; thus, lessening the blow. Since the jury typically does not review the actual transcripts, attorneys must be diligent to insure that information is not conveyed in a false light, and that statements that ought to be considered contemporaneously with previously proffered statements are communicated to the trier of fact. Reading limited portions of a deposition transcript satisfies the efficiency prong; however, a party who attempts to offer statements out of context or statements that paint and incomplete and misleading picture, fail to satisfy the fairness prong.

An additional important limitation on the use of depositions at trial involves the admissibility of depositions a witness has given in prior actions. Under Fed. R. Civ. P. 32(a)(8), a deposition that is lawfully taken in a prior action involving the same subject matter between the parties in the current action, may be used as allowed by the Federal Rules of Evidence.

70 See FRCP Rule 26(c)(1)(B) 71 See Roots Ready Made Garments v. Gap, Inc., 2007 WL 3045999 *5 (N.D. Cal. 2007). 72 See FRCP Rule 32(a)(5)(A); see also Rule 30(a)(2)(A)(iii) (when a party obtains leave of court to take a deposition when the party to be deposed is expected to be unavailable or out of the country at a later time). 73 Fed. R. Civ. P. 32(a)(5)(B). 74 FRE 106. Remainder of or Related Writings or Recorded Statements. “If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other party – or any other writing or recorded statement – that in fairness ought to be considered at the same time.”

Page 151 Using depositions in this context can be particularly effective to demonstrate bias, highlight credibility issues, or point out specific patterns. This issue often comes up in medical cases involving experts who regularly testify in trial. A diligent attorney might seek past depositions of an expert in cases involving the same or similar subject matter and use them to point out discrepancies in opinions, procedures, or perhaps a potential bias to either the plaintiff or defendant.

Some courts apply this rule strictly and will only permit such deposition use when the subject matter is precisely the same. However, the prevailing practice is to construe the rule liberally to achieve goals of both fairness and efficiency.75 If the past depositions involve reasonably similar opinions given in a recent matter, a court would be likely to allow the deposition use in this context. In other cases, a court might permit a past deposition pertaining to slightly different issues if, in the court’s mind, the incentive for cross examining the deponent in the prior action was the same as it is in the present action.76

Trial Strategy Tips for Limits on Deposition Use

Seek rulings by motions in limine in advance when these issues come up so it is clear what is fair game for a given witness. Judges typically do not like surprises in these instances and prefer to know what specific testimony will be elicited to guard against the possibility of the jury hearing prejudicial evidence. With regard to using past depositions, a judge may limit the scope of their use by subject matter or by the amount of time that has elapsed since the past deposition(s). Additionally, advanced rulings help in preparing your own witness who has been deposed. When you know what will be subject to cross, you can give your witness time to review their past depositions and prepare for cross-examination at trial.

VIII. OBJECTIONS TO DEPOSITION USE AT TRIAL: WAIVER & PRESERVATION

An often-overlooked section of Fed. R. Civ. P. 32 lays out what parties must do to preserve different types of errors and objections related to the taking of a deposition that have ramifications for how they can be used at trial. Under R. 32(b), a party can object to the admission of deposition testimony that would be inadmissible if the witness were present and testifying. This is consistent with the notion that the Federal Rules of Evidence supplement R. 32 and may limit what testimony is elicited from the deposition.

The provisions in Fed. R. Civ. P. 32(d) deal with rules on waiving and preserving deposition objections. Generally, an attorney should make objections during a deposition to preserve that objection on the record so the issue can later be addressed at trial. If a party fails to object to a defect, error, or irregularity in the deposition that could be corrected at the time of the deposition, that objection is typically waived. This would include objections to the form of a question or answer, the manner of the oral examination, or the conduct of the parties.

75 Hub v. Sun Valley Co., 682 F.2d 776, 778, 11 Fed. R. Evid. Serv. 320, 34 Fed. R. Serv. 2d 981 (9th Cir. 1982). 76 Id.

Page 152 An objection to the form of a question is the most commonly waived objection if it is not made promptly during the deposition.77 Improper form is rather broad; however, it encompasses questions that are compound, confusing, call for speculation, questions that have been asked and answered, or questions that call for legal conclusions. When the objection is made, the opposing attorney can re-phrase or ask the question as-is and risk the court later sustaining an objection, potentially striking a question and answer. Sometimes issues of form can be cured at trial if additional foundation is laid. Although it is important to preserve objections on the record, waiver of objections is construed quite narrowly as to not incentivize excessive objecting during a deposition or objections made in bad faith.78

Under the Federal Rules, substantive and other evidentiary objections need not be made at the time of the deposition to preserve objections at trial. This would include objections to competence, relevancy, and materiality. These substantive objections are automatically preserved for trial. Therefore, it is generally not proper to make these objections during a deposition. An attorney needs to remember that the content in a deposition taken for purposes of discovery must only be likely to lead to the discovery of admissible evidence; therefore, objections to hearsay, relevance, or improper opinions are usually not appropriate but are properly raised during trial.

Trial Strategy Tips on Objection Preservation & Waiver

Excessive objections can interrupt the flow of testimony during a deposition, hurt the credibility of an attorney, or needlessly create animosity in what is already an adversarial proceeding. Nevertheless, preserving certain objections during discovery depositions should be done with an eye on their potential impact on trial testimony. An attorney should also be attentive and prepared to make objections related to material that may be privileged or at the very least preserve the issue on the record.

IX. USE OF DEPOSITIONS IN TRIAL MOTIONS

It is very common for a court to require or request dispositive motions on certain issues over the course of a trial. Fed. R. Civ. P. 43(c) instructs that when a motion relies on facts outside the record, the court may hear the matter wholly or partly on depositions. This is consistent with the court’s ability to exercise its discretion in tailoring the proceedings to the practical realities of a particular motion. If deposition testimony would be most helpful in interpreting and deciding a dispositive motion, the court will permit it.

X. CONCLUSION

There are a number of different uses of a deposition at trial. There are instances at trial when using a deposition may provide a significant strategic advantage if the attorney is appropriately prepared to use it. Nevertheless, this requires that the attorney be well versed in

77 Fed. R. Civ. P. 32(d)(3)(B). 78 See Commentary to Fed. R. Civ. P. 30(d).

Page 153 the specific rules and procedures regulating use of depositions. Generally, Fed. R. Civ. P. 32 governs when a deposition may be used at trial. The Federal Rules of Evidence supplement the Federal Rules of Procedure serving a gatekeeper function in excluding deposition evidence that is irrelevant or prejudicial. These rules provide a basic framework but the question of how a deposition is used at trial is a matter of strategy and skill, and depends on the goals and objectives of the attorney offering the evidence. This question involves value judgments considering the cost or benefit of using deposition testimony. Is an inconsistent statement by a witness worth impeaching? Should I attempt to introduce the deposition to refresh a witness’s recollection? Should I read the deposition portions or use another person to role-play live witness testimony? These and many other questions are strategic questions that only the attorney can answer. Nevertheless, at a bare minimum, an attorney attempting to use a deposition at trial needs to understand the rules and above all else, be prepared.

Page 154 ETHICAL QUESTIONS - HOW FAR CAN YOU GO PREPARING A WITNESS/QUESTIONING A WITNESS? By: Stacy A. Broman

I. INTRODUCTION - WITNESS PREPARATION

The topic of witness preparation must begin with the axiom that every attorney has an ethical obligation to zealously represent the client. See Evans v. Jeff D., 475 U.S. 717, 758, 106 S. Ct. 1531, 1553 (1986) (noting lawyer’s fundamental duty to zealously represent the best interests of the client); see also Model R. Prof. Conduct 3.1 (meritorious Claims and Contentions). Preparing witnesses for deposition and/or trial is essential to effective, zealous representation. The process of witness preparation, however, invites a host of ethical challenges. This is in part due to the fact that in addition to the duties as an advocate for the client, a lawyer also has a duty to the court. And in a deposition setting, a lawyer’s duty to advocate for a client can sometimes conflict with the lawyer’s duty as an officer of the court, whose purpose is to seek the truth in order to do justice. See Model Rules of Professional Conduct pmbl. P 1 (2004) (“A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.”); id. P 8 (“In the nature of law practice, ... conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an upright person while earning a satisfactory living.”); cf. Model Code of Professional Responsibility pmbl. P 3 (1982) (“In fulfilling his professional responsibilities, a lawyer necessarily assumes various roles that require the performance of many difficult tasks.”); see generally Eugene R. Gaetke, Lawyers as Officers of the Court, 42 VAND. L. REV. 39 (1989) (discussing lawyers’ obligations to court and client).

Indeed, the very outcome of a lawsuit may hinge on witness preparation strategy. See David M. Malone & Peter T. Hoffman, The Effective Deposition 27 (2d ed. 1996) (“Depositions are the most powerful discovery device available to a litigator.”); see also Hall v. Clifton Precision, 150 F.R.D. 525, 531 (E.D. Pa. 1993) (“Depositions are the factual battleground where the vast majority of litigation actually takes place.”). Witnesses who fail to fully understand the proceedings or the significance of each aspect of their testimony can become nervous or confused, with potentially disastrous consequences. With so much at stake, it is surprising how little guidance exists on the ethics of witness preparation. See John S. Applegate, Witness Preparation, 68 TEX. L. REV. 277, 279 (1989); see also Elaine Lewis, Witness Preparation: What Is Ethical, and What Is Not, 36 No. 2 LITIG. 41, 42 (2010) (noting absence of law); Zacharias & Shaun Martin, Coaching Witnesses, 87 K.Y.L.J. 1001, 1001 n.2 (1999) (same). This chapter discusses some of the ethical challenges involved in preparing a witness as well as the ethical issues to be aware of when questioning a witness.

This chapter begins with a discussion of the rules applicable to witness preparation in depositions and then provides a few examples of attorney behavior that may raise ethical questions, including certain categories of witness coaching, suborning perjury, suggesting word

Page 155 choice or demeanor that affects the witness’s testimony, and affecting testimony through repeated rehearsals. Finally, this chapter provides a brief review of some of the ethical issues raised when questioning a witness.

II. KNOW THE RULES

The boundaries of ethical witness preparation are established by the rules of legal ethics and also by criminal codes. Both federal and state statutes prohibit tampering with a witness or suborning perjury. Federal criminal statutes include 18 U.S.C. § § 1512 (tampering with a witness) and 1622 (subornation of perjury). State statutes often exist which also prohibit witness tampering.

Although there is no ethical rule specifically addressing witness preparation, there are a number of obligations that bear significantly on the practice. The American Bar Association’s Model Rules of Professional Conduct provide general ethical prohibitions. All of the states except California have either adopted a version of the Model Code or Model Rules. Model Rule 1.2(d), for example, provides that:

[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

See Model Rules of Prof’l Conduct R. 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer). Model Rule 3.3(a)(3) requires that a lawyer not knowingly “offer evidence that the lawyer knows to be false.” See Model Rules of Prof’l Conduct R. 3.3 (Candor Toward the Tribunal). Model Rule 3.4(b) states that a lawyer must not “counsel or assist a witness to testify falsely.” See Model Rules of Prof’l Conduct R. 3.4 (Fairness to Opposing Party and Counsel); Restatement (Third) of the Law Governing Lawyers § 120(1) (2000) (lawyer may not knowingly counsel or assist a witness to testify falsely). It is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” See Model Rules of Prof’l Conduct R. 8.4(c) (Misconduct). A lawyer must balance these professional responsibilities against the obligation to competently represent his or her client. “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” See Model Rules of Prof’l Conduct R. 1.1 (Competence).

Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and . . . adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.

Page 156 See Model Rules of Prof’l Conduct R. 1.1 cmt. 5 (Thoroughness and Preparation). While the Model Rules set forth general ethical prohibitions, their meaning in the context of witness preparation is unclear. The comment to Model Rule 3.4 states that “[f]air competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly coaching witnesses, obstructive tactics in discovery procedure, and the like.” See Model Rules of Prof’l Conduct R. 3.4 cmt. 1. Witness preparation is typically protected from discovery under the work-product doctrine or the attorney-client privilege. Moreover, beyond the obvious maxim that it is improper to instruct a witness to testify falsely, neither the Model Rules nor the comments specify what is allowed or prohibited in preparing a witness. Thus, the boundaries of proper witness preparation are largely “controlled by a lawyer’s own informed conscience.” Richard C. Wydick, The Ethics of Witness Coaching, 17 CARDOZO L. REV. 1, 3 (1995– 96).

Additional considerations regarding witness preparation are set forth in the Restatement (Third) of Law Governing Lawyers. Similar to Rule 3.4, Section 116 of the Restatement (Third) of Law Governing Lawyers provides that:

1) A lawyer may interview a witness for the purpose of preparing the witness to testify.

2) A lawyer may not unlawfully obstruct another party’s access to a witness.

3) A lawyer may not unlawfully induce or assist a prospective witness to evade or ignore process obliging the witness to appear to testify.

4) A lawyer may not request a person to refrain from voluntarily giving relevant testimony or information to another party, unless:

a) the person is the lawyer’s client in the matter; or

b) (i) the person is not the lawyer’s client but is a relative or employee or other agent of the lawyer or the lawyer’s client, and (ii) the lawyer reasonably believes compliance will not materially and adversely affect the person’s interests.

Restatement (Third) of Law Governing Lawyers § 116 (2000). Section 116 explains that in preparing a witness to testify, “a lawyer may invite the witness to provide truthful testimony favorable to the lawyer’s client.” Preparation of the witness may include “discussing the role of the witness and effective courtroom demeanor; discussing the witness’s recollection and probable testimony; revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness’s recollection or recounting of events in that light; discussing the applicability of law to the events in issue; reviewing the factual context into which the witness’s observations or opinions will fit; reviewing documents or other physical evidence that may be introduced; and discussing probable lines of hostile cross-examination that the witness should be prepared to meet.” The fact that these

Page 157 techniques generally are permissible does not allow these, or any other techniques, to be used to assist the witness to testify falsely. The Restatement acknowledges that there is “relatively sparse authority” on witness preparation. Id., Reporter’s note to cmt. b (citing cases).

III. ETHICAL CHALLENGES - WITNESS PREPARATION

Preparing witnesses is, of course, an essential part of trial work, and doing so is neither unethical nor improper. However, the line between legitimate witness preparation and unethical witness preparation is often murky. Two major topics are often discussed when debating ethical issues involving witness preparation: 1) Preparation vs. Coaching; and 2) Conferring with a witness during a deposition.

A. Preparation vs. Coaching.

Some take the position that any witness preparation distorts the search for truth and is thus improper. But witnesses entering a foreign arena often need to be prepared. A witness’s credibility and testimony could be impacted by a trained attorneys’ questioning. A lawyer who did not prepare his or her witness for testimony, having had an opportunity to do so, would not be doing his or her professional job properly. District of Columbia Bar, Ethics Opinion No. 79 (1979) at 139.

Not surprisingly, there are few published cases addressing improper witness coaching. In 2001, the Minnesota Supreme Court suspended an attorney from the practice of law for one year for sending a letter to a potential witness that attempted to obstruct another party’s access to evidence and for sending a letter to that witness’s employer, a portion of which had no substantial purpose other than to embarrass the witness. In re Disciplinary Action Against Dvorak, 620 N.W.2d 908, 907-08 (Minn. 2001). The Eighth Circuit Court of Appeals has similarly affirmed a district court’s disbarment of an attorney for misconduct including counseling his client to deny damaging testimony in violation of Missouri Rule of Professional Conduct 3.4(b). In re Attorney Discipline Matter, 98 F.3d 1082, 1088 (8th Cir. 1996).

Although criticism for witness coaching is not common due to the difficulty in identifying and establishing improper conduct (because lawyers typically interview and prepare witnesses in private surroundings), the consequences for improper coaching can be devastating to a party’s case. As one court noted, as a result of coaching, “[e]vidence can be excluded or stricken; lawyers can be excluded from the courtroom; adverse inferences can be drawn; juries can be instructed that the sequestration order has been violated; a party or witness can be held in contempt; monetary sanctions can be imposed on parties or lawyers; disciplinary proceedings can be instituted.” Minebea Co., Ltd. v. Papsti, 374 F. Supp. 2d 231, 237 (D.D.C. 2005). Further, engaging in improper coaching can have severe professional and personal ramifications, including possible criminal and civil liability.

As long as an attorney is focused on developing and clarifying truthful testimony, such preparation may include the lawyer:

Page 158  Being “persistent and aggressive in presenting [counsel’s] theory of the case.” RTC v. Bright, 6 F.3d 336, 342 (5th Cir. 1993) (Attorneys’ attempt to persuade witness to adopt statements in affidavit, where she had not expressly made those statements and which she initially and subsequently refused to adopt, did not constitute making of false statement in violation of Texas disciplinary rules; absent any indication that attorneys lacked factual basis for additional statements, attorneys were not “manufacturing” evidence.).

 Suggesting language to the witness that might aid the testimony. See Haworth v. State, 840 P.2d 912, 917 (Wyo. 1992) (concluding that the defense attorney’s suggestion that defendant employ the word “cut” instead of “stab” to describe the incident had a de minimis effect on the outcome of the prosecution because there was other evidence describing the incident). But see State v. Earp, 571 A.2d 1227, 1235 (Md. 1990) (“The attorney should exercise great care to avoid suggesting to the witness what his or her testimony should be.”). A lawyer’s suggestion to the witness to modify particular language “means only that the lawyer may be affecting the testimony as respects its clarity and accuracy; and not necessarily that the effect is to debase rather than improve the testimony in these respects.” D.C. Bar Op. No. 79 at 139 (1979), reprinted in District of Columbia Bar, Code of Professional Responsibility and Opinions of the District of Columbia Bar Legal Ethics Committee 138, 139 (1991). For instance, it is proper to instruct the witness not to use prefatory phrases, such as “I think I saw,” “I suppose I said,” or “to tell the truth.” Joseph D. Piorkowski, Note, Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of “Coaching” 1 Geo. J. Legal Ethics 389, 399 (1987). Also, the attorney can properly advise a witness to avoid using technical jargon or colloquial expressions, since the attorney wants the witness to tell the jury a story that the jury can understand. See id. at 400.

 Conducting “practice examination or cross-examination,” DC Opinion 79, at 140. Many attorneys will have their witnesses rehearse before deposition or trial. This is often useful for the lay witness who will be particularly nervous in a formal deposition when everything is transcribed, as well as in front of a jury and judge. In addition, lay witnesses are especially vulnerable to the aggressive nature of cross-examination. See John S. Applegate, Witness Preparation, 68 TEX. L. REV. 277, 322 (1989). Although rehearsal may be necessary to make the witness feel comfortable, there are ethical limits to such rehearsals. “[R]ehearsal has a greater potential for suggestiveness than other preparation techniques . . . [because the] repetition of a story is extremely suggestive.” Id. at 322-23. In sum, “[i]f the purpose of role-playing is merely to accustom the witness to the rough and tumble of being questioned, then it is ethically unobjectionable.” See Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1, 16 (1995) (listing what lawyers can do in the witness interview and preparation session). It is unethical, however, if rehearsals are used to script witness answers. See id.

Preparing a witness to give a rehearsed answer is improper if the purpose for doing so is to mislead the finder of fact or frustrate the inquiring party from obtaining legitimate discovery. One example where attorneys have to be careful is “witness preparation memos.” One often- cited example of this is the Baron & Budd asbestos memo. The Baron & Budd asbestos memo refers to a 1997 asbestos case where it was alleged that a junior associate at a plaintiff asbestos law firm accidentally produced to the defense counsel a twenty-page memo titled “Preparing

Page 159 for Your Deposition” that contained explicit instructions on what the client was to say, and not to say, in the deposition. The memo included detailed descriptions of various asbestos products and how they were packaged along with explanations of which types of workers used the product, for what purposes, and in what places. Academics disagree as to the ethical implications of the memo. One author has called the memo “subornation of perjury.” Lester Brickman, Asbestos Litigation: Malignancy in the Courts, Civil Justice Forum of the Manhattan Institute, no. 40 (Aug. 2002). Others argue that it is merely “zealous representation.” W. William Hodes, The Professional Duty To Horseshed Witnesses—Zealously, Within The Bounds Of the Law, 30 TEX. L. REV. 1343 (1999).

B. Conferring With Witness During Deposition.

Disagreement exists regarding the propriety of a lawyer conferring privately with his witness during a deposition, especially when a question is pending. Some believe that a witness should have complete, unbridled access to counsel during the deposition, while others believe that deposition testimony should be treated exactly like cross-examination at trial, where the deponent cannot confer with her attorney before her testimony is completed. See, e.g., Hall, 150 F.R.D. at 528 (“During a civil trial, a witness and his or her lawyer are not permitted to confer at their pleasure during the witness’s testimony. Once a witness has been prepared and has taken the stand, that witness is on his or her own. The same is true at a deposition.” (footnote omitted)); see also United States v. Scharstein, 531 F. Supp. 460, 463 (E.D. Ky. 1982) (“It is ... common practice and an essential part of trying a case for the trial attorney to confer with ... prospective witnesses ... before trial.”); Hamdi & Ibrahim Mango Co. v. Fire Ass’n of Phila., 20 F.R.D. 181, 182 (S.D.N.Y. 1957) (“It is usual and legitimate practice for ethical and diligent counsel to confer with a witness whom he is about to call prior to his giving testimony, whether the testimony is to be given on deposition or at trial.”); Sanders v. Drane, 432 S.W.2d 54, 57 (Ky. Ct. App. 1968) (noting that “any competent lawyer in the preparation for trial will consult with his witnesses”).

Some view a middle ground that allows the deponent to confer with her attorney, but only under limited circumstances. See e.g., Standing Orders of the Court on Effective Discovery in Civil Cases, 102 F.R.D. 339, 351 (E.D.N.Y. 1984) (“An attorney for a deponent shall not initiate a private conference with the deponent during the actual taking of a deposition, except for the purpose of determining whether a privilege should be asserted.”).

There is a body of federal case law that prohibits all conferences between a deponent and the deponent’s lawyer during a deposition, including scheduled recesses such as lunch and evening recesses. See Hall, 150 F.R.D. at 528-29; see also Ngai v. Old Navy, 2009 WL 2391282 at *4-5 (D.N.J. July 31, 2009); Morales v. Zondo, Inc., 204 F.R.D. 50, 54-57 (S.D.N.Y. 2001); In re Asbestos Litig., 492 A.2d 256, 259 (Del. 1985) (prohibiting attorney-client consultations regarding client’s deposition testimony during course of deposition). These federal cases hold that any such communications between the deponent and the deponent’s lawyers are not protected by the attorney-client privilege. There are two rationales given by these courts. The court in Hall v. Clifton Precision reasoned that because the Federal Rules require that depositions be conducted in the same manner as testimony before the court, and because no

Page 160 witness has the right of consultation with counsel during his or her testimony (other than with respect to the assertion of privileges), such conferences violated the Federal Rules. Hall, 150 F.R.D. at 528-29. According to the Hall court, because the conferences violated the court rules, the attorney-client privilege did not attach to such conferences. Moreover, in Ngai v. Old Navy, the court strongly suggested that the elements of the crime-fraud exception to the attorney- client privilege may provide an alternate ground to support disclosure of communications between a lawyer and a client/witness during a deposition (including during recesses). Ngai, 2009 WL 2391282 at *5-6.

Courts allow one exception to the prohibition against private conferences during pending deposition questions: when the defending attorney needs to discuss with the deponent the possible assertion of a privilege. Hall, 150 F.R.D. at 529 (“Since the assertion of a privilege is a proper, and very important, objection during a deposition, it makes sense to allow the witness the opportunity to consult with counsel about whether to assert a privilege.”).

Most jurisdictions do not have rules concerning private conferences. In addition, the Federal Rules of Civil Procedure do not address private conferences. See Fed. R. Civ. P. 30. In addition, very few published cases address the propriety of private conferences in the deposition setting. See Hamdi & Ibrahim Mango Co. v. Fire Ass’n of Philadelphia, 20 F.R.D. 181, 183 (S.D.N.Y. 1957). Therefore, attorneys in most jurisdictions have little guidance about when private conferences should be allowed or how to react when defending counsel confers with the deponent during the deposition.

IV. ETHICAL CHALLENGES - QUESTIONING A WITNESS

Deposition abuse can occur when one party attempts to use liberal discovery rules to harass, intimidate, or attempt to extract a settlement from the other side. Monroe Inker, Abusive Discovery Tactics in Depositions, 26 Fam. L.Q. 27, 27 (1992). In many cases, however, it is difficult to distinguish when a line of questioning is distasteful, but relevant, and when it is being pursued primarily for harassment value.

To determine whether an attorneys’ questions are proper, the starting point is Federal Rule 26(b)(1), which defines the scope of permissible discovery and provides that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Privileged information is information protected by any statutory or common law privilege and material protected by the work product doctrine. At trial, relevant information is that evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Relevance in the discovery context, however, is very broad. See, e.g., Liew v. Breen, 640 F.2d 1046, 1049 (9th Cir. 1981) (“For discovery purposes ‘relevancy’ is a broad term.”); Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 903 (7th Cir. 1981) (“Admissibility at trial is not the test.”); Schaap v. Executive Indus., 130 F.R.D. 384, 386 (N.D. Ill. 1990) (“[R]elevancy ‘is to be more loosely construed at the discovery stage than at the trial.’”); Under the Federal Rules, “relevance” does not mean that the information will be admissible at trial; instead, the

Page 161 information need only appear “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1); accord Chubb Integrated Sys. Ltd. v. National Bank, 103 F.R.D. 52, 59 (D.D.C. 1984) (mem.)(“Rule 26(b) makes a clear distinction between information that is relevant to the subject matter for pretrial discovery and the ultimate admissibility of that information at trial.”).

Further, “[b]y linking relevance to the ‘subject matter’ of the case,” the rule does not restrict inquiry into the issues alleged in the pleadings. See Francis H. Hare, Jr. et al., Full Disclosure: Combating Stonewalling and Other Discovery Abuses 105 at 7 (1995) (citing Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1187 (D.S.C. 1974); United States v. IBM Corp., 66 F.R.D. 180, 182 (S.D.N.Y. 1974); Triangle Mfg. v. Paramount Bag Mfg., 35 F.R.D. 540, 542 (E.D.N.Y. 1964)). As one treatise explains, the breadth of discovery relevance is reflected by courts ruling that discovery should be permitted on matters that “’might conceivably have a bearing‘ on the subject matter.” It is a flexible concept that is usually addressed on a case-by- case basis. 2 Weinstein’s Federal Evidence § 401.07, at 401-43 (Joseph M. McLaughlin ed., 2d ed. 1997); see also id. § 401.04[3][b], at 401-32 (explaining that relevancy is determined not only by evidentiary rules, but also by controlling substantive law); Eggleston, 657 F.2d at 903 (requiring “flexible treatment” of what is considered relevant (internal quotation marks omitted)).

Courts typically rule in favor of discoverability. See, e.g., Rolscreen Co. v. Pella Prods., 145 F.R.D. 92, 97 (S.D. Iowa 1992) (ordering deposition testimony although it “may prove to be duplicative”). But see 8A Charles Alan Wright et al., Federal Practice and Procedure § 2008, at 107-08 (2d ed. 1994) (indicating that, even under the liberal discovery rules, relevancy does not include information “that has no conceivable bearing on the case”).

Even if the questioning attorney satisfies Rule 26(b)(1), the next rule to be contended with is Rule 30(d)(3), which concerns depositions conducted in bad faith or in a manner to annoy, embarrass, or oppress the deponent:

At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending . . . may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c).

Fed. R. Civ. P. 30(d)(3). Rule 26(c) provides that “the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including that discovery not be had, that the discovery be conducted only on specified terms, that the discovery be obtained by another method, that certain matters not be inquired into, that the persons allowed to attend be limited, or that trade secret information not be divulged. Fed. R. Civ. P. 26(c).

Page 162 Even assuming that the questioning attorney’s conduct comports with controlling court rules or rules of civil procedure, the attorney’s conduct may still violate mandatory ethical rules. Under the Model Rules, “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” Model Rules of Professional Conduct Rule 4.4 (1994). The Model Code contains similar prohibitions. Specifically, DR 7-106(C)(2) provides that a lawyer shall not “[a]sk any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.” Model Code of Professional Responsibility DR 7-106(C)(2) (1982). In addition, DR 7-102(A)(1) forbids a lawyer from acting “when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.” Id. DR 7-102(A)(1). Thus, an attorney may violate an ethical rule by asking a relevant question with an improper motive.

Finally, a questioning attorney’s conduct might contravene civility codes, some of which may be enforced by courts through threat of sanction. For example, several codes proscribe attorneys from asking questions that “inquire into a deponent’s personal affairs or question a deponent’s integrity where such inquiry is irrelevant to the subject matter of the deposition” or that are harassing, repetitive, or argumentative. Boston Bar Ass’n, Civility Standards for Civil Litigation stand. B(5)(e)-(k) (Mass. 1994); see also Los Angeles County Bar Ass’n, Litigation Guidelines guide. 5 (Cal. 1989) (prohibiting, among other things, inquiry into a deponent’s personal affairs); St. Petersburg Bar Ass’n, Standards of Professional Courtesy stand. E (Fla. 1992) (cautioning attorneys to avoid inquiring into a deponent’s personal affairs).

V. CONCLUSION

Given the very nature of witness preparation, it is unlikely that the courts, legislatures, or state bars will ever set forth bright-line tests in the area. It is therefore all the more important for counsel to be careful. By being sensitive to the issues discussed above, attorneys can help ensure that they fulfill their obligations—to the client and to the system. In the end, attorneys should be aware of the ethical standards set forth in the applicable Rules of Professional Conduct and remain mindful during their interactions with witnesses. Indeed, while the ethical line between preparation and coaching may be blurry, unfortunately it is easy to cross if an attorney is unaware of his or her ethical responsibilities.

Page 163 EXAMINATION OF DOCTORS By: Gregory A. Witke

INTRODUCTION

Taking the deposition of a treating physician can at times be difficult. This is especially true due to the fact that defense counsel may not know the role the physician intends to play in the case. It is quite often unclear whether the physician will testify merely as a fact witness (treating physician), an expert witness, or as a combination of both fact and expert. The purpose of this chapter is to provide some guidance to defense counsel when preparing for and taking a treating physician’s deposition.

PURPOSE OF DEPOSITION

At the outset, the purpose of the treating physician’s deposition must be identified. This purpose must then be kept in mind as preparation continues. Generally, the purpose of the deposition is either to conduct discovery or to perpetuate the physician’s testimony for trial. Defense counsel will likely take a different approach depending on the purpose or type of deposition. In a discovery deposition, defense counsel is attempting to gather as much information as possible to prepare for cross-examination at trial. In a deposition taken for trial purposes, defense counsel will be more limited in his or her approach in order to keep the cross-examination focused and consistent with the defense trial theme and strategy.

The goal in the discovery deposition can include any of the following items, or a combination thereof:

1. Identifying each opinion the treating physician intends to offer at trial.

2. Obtaining and understanding the basis for each expressed opinion.

3. Understanding the physician’s diagnosis, as well as treatment and care provided.

4. Putting defense counsel in position to conduct an effective cross-examination at trial.

The goal and strategy established for the physician’s deposition must be kept in the forefront throughout the preparation process and during the deposition. The goal and strategy must be consistent with the defense theme which counsel has established for the case.

As mentioned previously, defense counsel may not know up until the time of the deposition whether the treating physician will testify solely as a fact witness or as an expert witness. The focus of this chapter is based upon the assumption that the treating physician will provide adverse testimony to the defendant. Obviously, this is not always the case, and

Page 164 adjustments can be made in the preparation for and during the deposition of the physician should his or her role be merely one of a fact witness.

PREPARATION

Preparation is critical to conducting a successful and effective deposition of a treating physician. Defense counsel will spend a significant amount of time in reviewing records, notes and entries in the physician’s chart. Effective preparation, however, includes more than just reviewing the physician’s chart.

Obtain all relevant records. Important records should be obtained from all physicians, chiropractors, hospitals, and other identified healthcare providers. Such records should include records prior to the date of injury or incident involved in the litigation. Historical records can provide significant insight into the plaintiff’s medical condition. Physical and mental therapy records should be obtained. Quite often the plaintiff has provided information to a physical therapist which is informative as to progress made. In addition, the plaintiff may have skipped numerous physical therapy appointments which creates the impression that the extent of injury is not as severe as previously claimed. Pharmacy records can also be beneficial. It could be discovered that the plaintiff has been doctor shopping, and such information can be used to discredit the plaintiff at trial. Health insurer claim files can provide insight to the claimed injuries. Any alternative medicine or care records should also be obtained.

Medical records are typically produced by the plaintiff’s counsel in response to written discovery requests. However, it may prove wise not to just rely on the adequacy or completeness of the records provided by the plaintiff’s counsel. A good practice is to obtain a signed medical authorization from the plaintiff which permits your office to independently obtain records. The medical authorization should be presented to each provider that has been identified in written discovery responses or found while reviewing other medical records. The request should seek substantive treatment records, as well as billing and insurance records. The cost of obtaining all relevant medical records should be discussed with and authorized by your client prior to requesting the records.

File organization. Once the pertinent records have been collected, it is recommended the records be organized into a medical notebook or file in such a manner to allow the most efficient and effective use by defense counsel in preparing for and taking the deposition of the physician. A medical chronology is a very useful document as it takes the most critical information from the voluminous records collected and organizes the information into a form that is concise, but informative. The medical chronology should identify the records by date of visit and provider, and then provide a summary of the substantive information pertaining to each visit. The chronology will allow an examination to be made to identify such things as gaps in treatment, the identity of other treating physicians not previously identified in the plaintiff’s discovery responses, and the identity of other potential witnesses. The chronology can also help shape the scope of the deposition.

Page 165 Understanding the medicine. Another key component to the preparation for the deposition of a treating physician is to become familiar with and better understand the medicine involved in the case. Defense counsel cannot possibly know more about the subject matter than the treating physician. However, there are things that can be done during preparation to help narrow this knowledge gap and which will allow for a more effective deposition to be taken.

Medical terminology can be difficult. Do not gloss over medical terms in the chart. Rather, utilize available resources, such as medical dictionaries and encyclopedias to learn and better understand the medical terminology involved. This includes learning medical abbreviations found in the physician’s chart.

The human anatomy needs to be understood as well. There are numerous resources which provide illustrations to assist in this understanding. Two such resources are Gray’s Anatomy and Netter’s Atlas of Human Anatomy. These resources are excellent learning aids. Medical illustrations should also be considered for use as exhibits during the deposition of the treating physician. Having the physician utilize the illustrations during the deposition will lead to a better understanding of the medical testimony.

By becoming educated in the field of medicine involved in the litigation, defense counsel will not only be better prepared for the treating physician’s deposition, but will also find such knowledge beneficial in preparing to “educate” the jury about the anatomy and/or medicine involved. The ability to explain the medicine in lay terms goes a long way toward achieving success at trial.

Get to know the witness. Another important aspect in the preparation for the treating physician’s deposition is to learn as much as possible about the physician. Obtaining and analyzing the physician’s curriculum vitae can provide significant information. The curriculum vitae will likely identify the hospitals to which the physician is affiliated, board certifications, medical specialties, published articles, as well as the educational and professional background of the physician. General background information can also be found by reviewing the physician’s website and performing internet searches.

A search should be performed to identify any professional discipline action taken against the treating physician. Information concerning state medical board proceedings or licensing actions can be discovered. The National Practitioner Data Bank requires insurers to report malpractice judgments and requires hospitals to report certain disciplinary actions against physicians. Access to some of this information may be limited. However, there is typically sufficient enough information available to allow further inquiry during the treating physician’s deposition.

Physician’s demeanor and reputation during depositions. In addition to learning about the medicine involved in the case and the background of the treating physician, it is also helpful to become acquainted with the physician’s reputation or general approach when being deposed in a litigated matter. Is the treating physician a patient advocate or does he or she

Page 166 remain more neutral when giving testimony? What is the physician’s temperament? Does the physician have an ego that will be difficult to deal with during the deposition? Such information can be acquired from other attorneys who have previously taken the physician’s deposition. Other attorneys and their experiences can be an invaluable resource. Prior deposition transcripts can be obtained from other counsel or through various data banks, such as DRI. Expert data banks such as IDEX will provide details concerning prior testimony, including deposition transcripts and the identity of lawyers involved in matters in which the physician has testified.

Fees and expenses. Information concerning the treating physician’s fees and expenses associated with the deposition and work on the case should be obtained. Physician charges for depositions and testimony can have a wide variance. There should be no surprises. It is better to learn about the fees up front, so that if there are issues to be dealt with, those issues can be handled prior to the deposition rather than taking up valuable time during the deposition.

Videotaping. Another decision to be made while preparing for the treating physician’s deposition is whether the deposition should be videotaped. Some attorneys and their clients want all depositions to be videotaped. Others do not use videotape to that extent. Videotaping the treating physician’s deposition not only can benefit the preparation for trial, but it can also assist in the evaluation process as it allows others, such as defense counsel’s client, to observe the effectiveness of the physician’s testimony.

Exhibits. Identifying and pre-marking as exhibits the documents to be used in the treating physician’s deposition allows the deposition to proceed more efficiently. The more defense counsel is organized, the less amount of time that will be taken away from the substantive portion of the deposition.

DEPOSITION PRELIMINARIES

There are certain preliminary matters that should be handled prior to beginning the deposition. Handling these matters prior to the start of the deposition promotes a more efficient and effective deposition.

Curriculum Vitae. First, a copy of the physician’s most current curriculum vitae should be secured and marked as an exhibit. A quick inspection of the curriculum vitae should be performed to identify any new information about the physician which was not contained in earlier versions of the curriculum vitae.

Physician’s File. Even though medical records were previously obtained from the physician’s office, it is a good idea to arrive early and request an opportunity to inspect the original file prior to the deposition. Defense counsel should verify that the physician’s file is complete and if it is not, have the physician identify what is missing. It is not surprising to discover aspects of the file which were not previously produced. The request to review the file should also include a request for any billing and insurance records. Some physician offices maintain a separate billing and insurance file.

Page 167 DEPOSITION

Sequencing. Prior to arrival for the deposition, defense counsel has likely prepared an outline to follow during the deposition. Most attorneys begin with the same questions at every deposition, such as asking the name, address, education and professional background. While this is certainly appropriate, consider mixing it up somewhat by going directly to the heart of the issues involved rather than starting out with the general background and credentials. That information can always be ascertained later in the deposition.

Frankly, if adequately prepared, defense counsel has already secured general background information while researching the background of the physician. By getting directly to the meat of the deposition at the outset, defense counsel may catch the witness somewhat off guard, thus creating a more advantageous position for obtaining honest and forthright responses.

Listening. By adequately preparing for the deposition, defense counsel will be in better position to actually listen to the deposition testimony being given by the treating physician. This is extremely important to remember. A common trait of an unprepared attorney is to ask a question and then immediately begin thinking about the next question. Good listening skills promote a more thorough and in-depth inquiry of the issues involved in the case.

Role of witness. It was previously discussed that quite often defense counsel does not know prior to the time of the deposition the full extent of the role of the treating physician. In an effort to determine whether the physician is merely testifying as a treating physician, or whether he or she will be serving in more of an expert role, consider asking about how the physician became aware of the lawsuit; all contact the physician has had with counsel for the plaintiff; whether the physician has been compensated for any work performed not related to treatment of the plaintiff; and what, if any, information has been provided to the physician by counsel for the plaintiff or other third parties. Responses to these questions will likely provide an indication of which role the physician will be taking in the deposition.

If these responses lead to a determination that the treating physician will be acting more as a traditional expert rather than merely a treating physician, then it becomes important to elicit information with regard to the physician’s qualifications as related to the injury or diagnosis involved in the lawsuit. Defense counsel will also want to learn more about the physician’s prior experiences as a retained expert by having the physician identify matters in which the physician has previously been retained. By asking more detailed questions with regard to prior litigation in which the physician has testified, it will allow defense counsel to gather the information necessary to further research any prior testimony.

Opinions. The treating physician should be asked to specifically identify each and every opinion the physician has formulated to date, or is expected to testify with regard to at trial. The basis for each expressed opinion is critical and should be explored in detail. During this part of the deposition, defense counsel should be able to determine whether each of the

Page 168 physician’s opinions as expressed is his or her own opinion, or whether the treating physician has merely adopted one or more opinions from a prior diagnosis made by another physician.

It is extremely beneficial to frequently ask the question “why” during a physician’s deposition. Why did this patient come to see you? Why did you make such a diagnosis? Why did you perform those tests? Why did you exclude other objective tests? Why did you make that referral? Why did you recommend that treatment plan? Why did you reach that opinion? Defense counsel also needs to know the reasons why the physician is testifying to the opinions expressed. It is much better to ascertain the answers to these questions during the discovery deposition than to learn the answers at the time of trial.

Examination and treatment. The deposition of a treating physician should include having the physician discuss his or her examination and treatment of the plaintiff. Confirm once again that the file before you and marked as an exhibit is complete. Have the treating physician identify everything that he or she considered when making the diagnosis and formulating the treatment plan.

The physician’s testimony may include information which is not contained in the written record. For example, perhaps the physician had conversations with family members, friends, plaintiff’s counsel, other physicians, or even the patient which are not recorded in the written chart. All sources of information should be identified and explored during the deposition.

Assumptions. The treating physician should be asked to identify any and all assumptions that were made in making a diagnosis, forming the treatment plan, and establishing the opinions expressed during the deposition. It is not unusual for the plaintiff to be the only source of information relied upon by the physician when expressing an opinion on the issue of causation. By confirming that the information upon which the physician is relying comes solely from the plaintiff, defense counsel may be able to further position the defense theme of the case into one of evaluating the credibility of the plaintiff. It is not unusual for treating physicians to testify that they have relied on the information provided by the plaintiff with regard to such issues as to how an accident occurred, history of treatment, history of symptoms, and other historical information. By establishing the inconsistencies between the information provided to the physician with what was reported to other healthcare providers (or even testified to by the plaintiff in his or her deposition), defense counsel will be able to highlight for the jury the lack of credibility in the plaintiff’s claims.

Objective and subjective findings. An important aspect of the treating physician’s deposition will be to ascertain the objective and subjective findings of the physician. Objective findings do not depend on what the patient has related to the physician. They are independently verifiable through such things as scans, x-rays and various other medical tests. Subjective findings, on the other hand, depend solely on the reporting of the patient.

When the plaintiff is the sole reporter, his or her credibility affects the treating physician’s conclusions. If the diagnosis and opinions expressed are totally dependent on subjective findings, defense counsel will be in a better position to attack the credibility or

Page 169 accuracy of such diagnosis or opinions. When subjective findings are at issue, it is even more critical for defense counsel to conduct a thorough analysis and examination of medical records, prior statements, deposition transcripts, employment file and other records to determine the level of consistency and credibility in the plaintiff’s testimony.

Restrictions and limitations. The inquiry during the deposition of a treating physician should include any restrictions and/or limitations which the physician has placed upon the plaintiff. It is not unusual for the plaintiff to testify in deposition that he or she can no longer perform household chores, carry out work responsibilities, or participate in leisure activities. It may be discovered in the physician’s deposition that there have been no restrictions or limitations placed on the plaintiff that would prohibit the plaintiff from taking part in those types of activities. This is especially true with regard to a plaintiff’s claim that he or she can no longer work, or has suffered loss of past or future income due to inability to perform certain tasks at work.

Positive results from treatment. One part of treating physician depositions that can be overlooked is having the physician identify the good results, improvement or positive signs of recovery. In cases of liability, it is very beneficial if defense counsel can paint a picture that even though the plaintiff was injured in the accident, the injuries were not too severe and that significant improvement has been achieved through the treatment provided. Physicians typically like to talk about the successes they have achieved in treating their patients. Such testimony can be very powerful when discussing with the jury the issues related to the extent of injuries and damages claimed.

Future treatment. Future treatment, planned appointments and estimated future costs should be discussed with the treating physician. Quite often at this point in discovery, the plaintiff’s counsel has not yet covered such matters in detail with the treating physician. If this portion of the deposition is omitted, defense counsel can rest assured these items will be discussed between plaintiff’s counsel and the physician prior to the time of trial. Avoid any surprises by making sure opinions with regard to future treatment are fully explored during the deposition.

Concluding the deposition. When concluding the deposition, defense counsel should make sure the physician has understood all the questions, has covered all the diagnoses and treatment related to the plaintiff, and has expressed all opinions formulated to date. Inquiry should be made as to whether the physician anticipates performing further work with regard to this matter, specifically with regard to any opinions expressed during the deposition, or other opinions which are anticipated at trial. If the physician indicates work is yet to be performed, defense counsel should not close the record, but rather leave it open with the understanding the deposition will be resumed once the physician has provided the additional opinions to be given at trial.

Page 170 POST-DEPOSITION

Motions. Work related to the deposition does not end when defense counsel leaves the treating physician’s office. An assessment should be made to determine whether any pre-trial motions are needed to exclude evidence in whole or in part. Consideration should also be given to whether any grounds exist for a successful Daubert motion.

Identify inconsistencies. An examination of the testimony given by the treating physician should be made and compared to prior written discovery responses or deposition testimony of the plaintiff. Inconsistencies can have a significant effect upon the credibility of the plaintiff, as well as upon the claims being asserted with regard to injuries and causation.

Prepare cross-examination for trial. The information obtained in the discovery deposition of the treating physician should be utilized in defense counsel’s cross-examination of that same physician at trial. The discovery deposition is broader in scope and areas of inquiry are made that may not be utilized at the time of trial. However, given the information collected in the discovery deposition, defense counsel will be in position at the time of trial to more effectively cross-examine the physician with regard to his or her opinions, discredit the plaintiff’s testimony, and be in position to present the jury with the “positives” or “good signs” with regard to the extent of injuries and recovery.

CONCLUSION

In summary, preparation is obviously a key component in taking an effective deposition of a treating physician. If defense counsel gives consideration to the matters discussed in this chapter, he or she will be in a better position to ascertain critical information with regard to the treating physician’s role, qualifications, treatment of the plaintiff, and the opinions expressed during the deposition.

Page 171 DEPOSITIONS OF LIABILITY EXPERTS By: G. Bruce Parkerson

This chapter will provide legal concepts critical as a guide to an effective deposition of an opposing liability expert. Taking an effective deposition of an opposing expert requires knowledge of evidentiary rules relating to opinion testimony. It also requires thinking ahead about the themes of the defense and the goals for the deposition. This chapter will also provide strategic thought processes important to consider when preparing for the deposition of a liability expert. Effective cross-examination of the opposing liability expert involves thorough preparation, knowledge of the relevant documents, a working knowledge of the terminology and concepts of the discipline, investigation of the expert prior to the deposition, a proper request for production of documents with the notice of deposition, asserting objections to non- responsive answers, seizing control of the deposition and a thorough understanding of the goals of the deposition.

THE BASIC RULES OF LAW:

Rule 702 of the Federal Rules of Evidence provides the threshold requirement for the admissibility of expert testimony. Specifically, Rule 702 provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify hereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

FRE Rule 702 (emphasis added).

The threshold requirement is specialized knowledge that will assist the trier of fact. Most courts clarify that generalized knowledge will not suffice. The proponent of the expert bears the burden of proving that the expert possesses some specialized knowledge that will actually assist the trier of fact in resolving an issue material to the case. That specialized knowledge can be gained from experience, training and/or education. Just because an expert has an engineering degree does not mean that he has specialized knowledge, training or experience regarding an appropriate accident reconstruction. Just because a mechanical engineer may have a doctorate in mechanical engineering does not mean that he has any specialized knowledge about how an elevator door functions. A well-prepared trial lawyer understands the nuances of the specialized knowledge necessary to assist the trier of fact. Every case is unique and requires planning specific to the case.

Page 172 It is important to consider whether or not the deposition will be offered as evidence at trial. If the witness likely has specialized knowledge, as evidenced by his curriculum vitae and/or prior deposition testimony, it may not be worthwhile to ask any questions about qualifications so that the transcript by itself does not establish the threshold for the admissibility of the deposition testimony. It is usually important to establish the limits of the expertise of the opposing expert. Know your defense expert’s qualifications and distinguish your expert by establishing that the deponent has not had similar training or experience. Also, to the extent that the opinions of the deponent stray outside of his expertise into another field, then commit the deponent to stating that he is not an expert in that field. For example, an expert in accident reconstruction may not be an expert in mechanical engineering and vice versa.

The second threshold through which expert testimony must pass relates to the Daubert/Kumho Tire progeny of cases. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137 (1999). The trial court should act as a “gatekeeper” to assure that the testimony of the expert is not only something that would assist the jury but also is reliable and relevant. The reliability determination depends upon an examination of the methodology utilized by the expert. The previous standard from the Frye progeny of cases required only establishing that the expert opinions had gained a minimal level of general acceptance within the relevant scientific community. This general acceptance standard still exists in many states even though the Daubert factors may be considered in determining whether the scientific opinions has reached a level of general acceptance.

In Daubert, the U. S. Supreme Court stated that an expert’s opinion, to be reliable, must satisfy one or more of the non-exclusive factors to which a gatekeeper court should refer in determining if the scientific opinions are reliable, as follows:

1. Has the theory or technique utilized by the expert been tested?

2. Has the theory or technique been subject to peer review?

3. Did the expert utilize a methodology that has a published rate of error?

4. Have the opinions gained a level of general acceptance within the scientific community?

This list of non-exclusive factors has been expanded to all types of expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).

Texas courts have added additional factors that are often persuasive to courts. Texas courts look to “the non-judicial uses that have been made of the theory or technique.” This compels a good trial lawyer to examine whether or not the opinions expressed by the expert are limited to the litigation forum and not in any other forum. It often helps to ask whether the expert can cite any authoritative publications that contain or share the same opinion. Texas courts also look to whether the technique relies upon the subjective interpretation by the

Page 173 expert. Id. To the extent an expert can be forced to say that his opinions are his “subjective beliefs” without any authoritative or testable support, his opinions are that much closer to being excluded.

Many courts recognize that an expert must articulate a stated methodology and then follow it. To the extent that the witness can be committed to subscribing to the scientific method as applicable in developing his opinions, cross-examination establishing a variance from those methods is persuasive evidence to support the exclusion of that opinion from trial. Amorgianos v. National Railroad Passenger Corp., 303 F.3d 256, 268-269 (2nd Cir. 2002).79 For example, the scientific method requires identifying the issue, developing reasonable alternatives hypotheses through factual observation and investigation, and systematically ruling out reasonable alternative hypotheses through testing, calculation and/or literature research. The failure of an expert to follow this method reflects on the validity of his/her opinions. In that regard, the expert should be asked if he has been able to rule out the hypothesis of the defense, and if so, the method and basis for doing so.

In essence, the Daubert/Kumho Tire line of cases provide an outline for one line of cross examination of every opinion of the liability expert. Applying the factors leads to numerous logical questions to ask the expert about methodology, testability, peer review, non-judicial uses, general acceptance/publication in authoritative journals and subjective interpretations.

PREPARATION FOR THE DEPOSITION – THE NOTICE:

The key components to any discovery deposition are to make sure that all opinions are elicited, the bases for all opinions are identified (including assumptions), the documents relied upon are obtained and the significant facts important to the expert opinions are isolated. This process starts with the notice of deposition. The notice should include a document request from the deponent of at least the following materials.

“As used herein, the term “documents” shall be construed in its broadest sense and shall include, but not be limited to, all writings, drawings, graphs, charts, photographs, videotapes, and any other data compilations from which information can be obtained.

As used herein, “”the incident” is the incident described in pleadings that is the subject of these proceedings.

1. True, correct and legible copies of all documents, reports, factual observations, tests, supporting data, calculations, mental impressions supporting any of the opinions in which you are expected to testify at the trial of this matter. (In the event such

79 In Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256 (2nd Cir. 2002) the Second Circuit affirmed the exclusion of an expert’s testimony because his “opinion rested on a faulty assumption due to his failure to apply his stated methodology.” Amorgianos, 303 F.3d at 269, emphasis added.

Page 174 reports have not been recorded or reduced to tangible form, request is made that they be reduced to a tangible form and produced without the necessity of court intervention.)

2. Current resume or curriculum vitae.

3. All correspondence, documents and written information provided to you by anyone relating to this matter.

4. All documents or sources referenced by you and/or relied upon by you in forming your opinions, including without limitation, treatises, regulations, guidelines, statutes, policies, procedures, consulting expert materials, reports or data or any other authoritative materials.

5. Any and all correspondence, reports, articles, presentations or other documents authored by you and/or your firm or company, or anyone associated with your firm or company, regarding the opinions you are providing in this matter.

6. All documents concerning the compensation paid or to be paid to you in connection with your testimony and consultation in this action.

a) All billing statements, timesheets or other documents that reflect the amount of time that you have spent in this case to date, as well as your fees for services rendered in this case.

7. All documents, notes, memoranda, computer data, e-mails and/or writings of any kind relating to the incident that is the subject matter of this lawsuit.

a) All correspondence and communications with anyone in the office of counsel for plaintiffs in this case regarding this case.

8. Any lists of the cases in which you have testified at trial within the last five years, including the name of the plaintiff, the name of the defendant, the court in which the case was or is pending, the name of the attorney representing the plaintiff, the name and address of the attorney representing the defendant, and who retained you.

Page 175 9. Any lists of cases in which you have testified as an expert in a deposition within the last five years, including the name of the plaintiff, the name of the defendant, the court in which the case was or is pending, the name of the attorney representing the plaintiff, the name and address of the attorney representing the defendant.

10. Any and all tests, videotapes and/or photographs of tests and/or demonstrations upon which you reference or rely in providing opinions in this matter.

11. Any and all protocols for tests or demonstrations and/or documentation of specifications of components used in tests and/or demonstrations upon which you reference or rely in providing opinions in this matter.

12. Any and all correspondence, evidence or writings of any kind regarding a peer review, if any, of the report that you rendered in these proceedings.

13. Any and all documents regarding any inspection, measurement, photography and/or recording of the scene of the incident.

The next step to preparation requires knowledge of the themes of your defense. If the case involves accident reconstruction of a vehicular accident involving the speed of the vehicles or perception-reaction time, the trial lawyer should attempt to obtain admissions consistent with the theme of the defense. This starts with identifying the physical evidence and factual testimony that your defense expert considers most significant and why that evidence is significant. The deponent should be asked if he agrees with certain statements that you obtain from the defense expert.

Consulting with the defense expert is important to gain an understanding of the technical concepts applicable to the case. Once the trial lawyer understands the physical and factual evidence as applied to the technical methodology, he can apply the legal themes of the defense to the preparation for the expert deposition. Spending several hours with the defense expert can be invaluable to the trial lawyer understanding the significance of specific factual evidence that forms the basis of the opposing expert’s opinions.

OBTAINING ALL OPINIONS:

The first and foremost goal of any expert deposition is to obtain all opinions that the expert may offer at trial. This oftentimes requires being persistent with continuous follow-up questions asking whether the expert has any additional opinions. To the extent that a deponent offers additional opinions outside the scope of his expertise, the trial lawyer should

Page 176 quickly cross-examine the expert to establish that the opinions are simply “beliefs” with no basis in any specialized knowledge or expertise that the deponent possesses.

Equally important in establishing what the expert has opinions about is to close the door on what the expert will not address at trial. Thinking ahead to formulate questions to close doors in the future is important. Obtaining statements by the deponent that he is not an expert in various disciplines potentially applicable to the case may become important at trial.

OBTAINING THE BASIS FOR THE OPINIONS:

The reliability and credibility of any expert’s opinions depends upon the validity of the physical and factual evidence that the expert can cite as consistent with and/or supportive of his opinions; this feeds the potential Daubert attack on the expert’s methodology. The fewer facts and physical evidence that the expert can cite will affect the testability of the expert’s conclusions. Each opinion should be specified with the follow-up questions for each opinion to identify the following:

 Every fact upon which the expert relies in forming that opinion

 Any physical evidence upon which the expert relies in forming that opinion

 All physical evidence that the expert considers to be significant in forming that opinion

 All assumptions upon which you rely in forming the opinion

 Testimony upon which the expert relies in forming that opinion

 Any authoritative literature upon which the expert relies in forming that opinion

 Any publication upon which the expert relies in forming that opinion

Once these bases of each opinion are identified, the trial lawyer should consider challenging the validity of each opinion. For example, applying the Daubert/Kumho Tire principles, each opinion should be confronted with questions as follows:

 Has that opinion been submitted to anyone for peer review before offering it in this case?

 Aware of any expert that shares that opinion by virtue of an industry publication?

Page 177  Ever written an article or presented a paper to an industry group that contains such an opinion?

 What literature, if any, recognized as authoritative regarding the methodology that serves as a basis for that opinion?

 Hold this opinion to the same degree of certainty as the other opinions that you provide in this case?

 Aware of any test that could be performed to establish the accuracy of the opinion?

 If so, describe the test

 How can the expert prove the reliability of the opinion?

As evident from the foregoing series of questions, the bases for the expert’s opinions should be challenged. To the extent that the expert would say that either his methodology is inherently subjective or his conclusions are subjective beliefs, authority can be obtained in your state to exclude the opinions on that basis.

CREDIBILITY OF THE EXPERT:

The credibility of the expert is different from reliability. Experts lose their credibility when they make credibility determinations about fact witnesses whose testimony they have reviewed. Many courts do not allow expert witnesses to make credibility determinations. At minimum, a credibility determination by an expert adversely reflects on their credibility. Therefore, to the extent conflicting factual testimony exists, a trial lawyer should attempt to find out if the expert accepted all of the fact testimony without making a credibility determination. If the expert made a credibility determination, the expert should be forced to say why he favored one witness over another. This often involves asking questions again about methodology and the basis for an expert accepting the testimony of one witness and not accepting the testimony of another.

The credibility of the expert can also be challenged by going through the details of his Rule 26 testimony list. Each of the previous cases in which he has testified should be questioned for the subject matter, the opinions provided and the methodology utilized. This can be tedious but it is often fruitful. To the extent that previous depositions or reports can be obtained for comparison purposes, a good trial lawyer will likely find inconsistencies in a deponent's previous testimony.

The credibility of the expert can also be undermined by identifying statements from the plaintiff’s attorney upon which the expert relied in formulating his opinion. Since such statements by attorneys are neither facts nor evidence, such a reliance reflects on not only the

Page 178 methodology of the expert but also whether or not the “testimony is based upon sufficient facts or data” as required by Rule 702.

CONTROL OF THE EXPERT:

If you have obtained an understanding of the technical theories of the science of the expert through consultation with the defense expert, you will be able to control the cross- examination by confronting the expert with generally accepted science. Understanding the themes of your defense and the goals of the deposition will also enable you to maintain control of the expert. Inevitably, most experts will seize the opportunity and provide longwinded answers that oftentimes return to the dogma of their argument against your client. Objections should be made to the non-responsive portions of the answer. Most stipulations for depositions involve objecting to the form and responsiveness of the answer with all other objections reserved until the time that the testimony is offered into evidence at trial. It can be important to make the objection to the non-responsive portions of the answer for purposes of impeachment at trial as well as attempts by opposing counsel to introduce the responses into evidence. Making the objection to the non-responsive portions of the answer is one method to obtain control of the expert.

Another method of seizing control involves listening carefully to the answer. When the expert strays from the question, the expert can be punished with a series of questions to challenge the basis for his volunteered information.

CONCLUSIONS:

Develop realistic goals for the deposition of the expert. Prepare with the guidance from Rule 702 and Daubert/Kumho Tire. Know what your defense expert thinks is important. Know the themes of your defense. To the extent the expert can be recruited to provide admissions consistent with the opinions of your expert, some examination in that regard should be included. Ultimately, the goal for deposing the opposing expert is to obtain discovery of all of the opinions so that you can adequately prepare for trial. Another goal is to develop testimony that will support a motion to exclude or limit the testimony of the expert. Strategically, such a motion may not be desirable, but at least you will develop evidence to challenge the reliability and/or credibility of the opposing expert.

Page 179 DEPOSITIONS OF DAMAGES EXPERTS By: Derek D. Lick

Damages experts are a cunning and slippery bunch. They typically know how to avoid being cornered, and they use their superior knowledge of their field (and often a barrage of numbers and calculations) to their benefit to keep adverse attorneys at bay. Therefore, perhaps more than with any other expert, it is imperative you take the time to prepare and educate yourself on the issues to be covered at deposition prior to deposing a damages expert.

With proper planning and preparation, deposing a damages expert allows you to meet several important objectives:

 Ensuring that you clearly understand how the expert reached his or her conclusions, including the details of the methodology, facts and assumptions relied upon (not all of which may be clear from the expert disclosure or report);

 “Locking down” the damages expert as to all of the expert’s opinions and conclusions so that the expert cannot change or expand upon his or her opinions and conclusions at trial;

 “Boxing in” the damages expert so that the expert is unable to change his or her testimony or cure any weaknesses in his assumptions in methodology before trial;

 Assessing the expert’s understanding and mastery of the facts underlying the expert’s opinion and conclusion;

 Probing how the expert’s conclusions would change if the facts were different than he or she had viewed them;

 Probing how the expert’s conclusions would change if the assumptions were different than he or she utilized;

 Getting the damages expert to admit what he or she is not able to conclude or opine about;

 Having the expert admit all of the things that he or she has not done;

 Having the expert acknowledge the qualifications and experience of your own expert;

Page 180  Assisting your own expert by putting the opposing party’s expert on the record such that his analysis is fully fleshed out;

 Providing a basis to determine whether to retain a rebuttal expert; and

 Allowing you to fully assess how the expert will stand up to questioning at trial.

TYPES OF DAMAGES EXPERTS

The types of experts who are likely to testify about damages in any given case is as varied as the cases themselves. In a personal injury case, you may be required to depose vocational rehabilitation consultants, life care planners, or economists. With respect to property and construction disputes, you are likely to depose appraisers and estimators. In the commercial context, you will likely be deposing business valuation experts, those who are experts in the particular line of business at issue, forensic accountants or financial analysts and potentially experts in intellectual property. In short, you are likely to face experts in a variety of fields because the cases that can be brought by plaintiffs are in and of themselves wide-ranging.

Because you are likely to face a variety of types of experts and depose them about fields of study about which you are less familiar, it follows that careful preparation and potentially even collaboration with a retained expert of your own in the specific field is required to get you ready to play “on the expert’s field.”

PREPARATION FOR THE DEPOSITION

As with other experts, in preparing for the deposition of a damages expert you should start by reviewing the written materials, including the following:

 Any expert disclosures that opposing counsel was required to provide;

 The expert’s report;

 The expert’s curriculum vitae;

 The expert’s website and materials provided on it;

 The expert’s literature, provided it relates to the subject matter for which you are going to depose him;

 Prior testimony of the expert, including depositions and trial testimony; and

 The expert’s full file.

Page 181 The expert disclosure and the expert’s own report should provide a road map for your initial outline of deposition questions. You will want to dissect the expert disclosure and expert report so that you can question the expert specifically about each of the key conclusions he reached. In fact, it is not unusual for an expert to be deposed about individual sentences and even individual phrases within the disclosure and the report. This allows you to become intimately familiar with the analysis undertaken by the expert, which in turn can lead to further probing at deposition and potentially critique at trial.

With damages experts in particular, it is important to ascertain prior to the deposition the methodology used and the assumptions relied upon in reaching their conclusions. To the extent the expert relies on particular methodology, you should research that methodology and become conversant in it. That will allow you to determine whether the expert appropriately followed the methodology and whether, in fact, it was proper to apply it to the facts of your case. Most importantly, you should determine what assumptions were relied upon by the expert in reaching a damages calculation. Incorrect assumptions can lead an expert to wildly inaccurate conclusions. Therefore, an expert’s assumptions must be fully considered and scrutinized.

If you have retained your own expert by the time you depose the opposing expert (which you should strongly consider), you should work with your expert to evaluate other methods not utilized by the opposing expert that might lead to different results and what other assumptions should have legitimately been considered and utilized. If you are able to identify such alternative methods and assumptions, you can ask the opposing damages expert about them at deposition and get him on the record explaining how using another methodology and other reasonable assumptions could lead to different conclusions.

TACTICS/STRATEGY

Once you have prepared for the deposition by reviewing the expert disclosure, the expert reports and other materials, you still need to make some tactical and strategic decisions about how to approach the questioning.

When determining how to handle the damages expert’s deposition, you need to consider whether or not the deposition is merely one to be used for discovery or whether it is one that might be used at trial. If the deposition is merely one for discovery, there may be no need for you to undertake a full-fledged cross-examination of the expert, as you will have the opportunity to do that at trial. However, in the event there is a risk that the opposing damages expert may not show up for trial if the expert is beyond the reach of subpoena or outside the 100-mile radius and the suit is brought in federal court, you should ensure that you have obtained agreement from opposing counsel that the opposing damages expert will, indeed, be present at trial.

Another consideration that might affect your strategy at deposition is whether you believe your case is going to settle or not. If you believe your case is going to settle, you can feel comfortable asking (and you should ask) all potential questions without fear of “tipping off”

Page 182 the expert as to your own theory of the damages claims or how you might challenge his position. Indeed, you might use the deposition as a way to brightly illuminate your defenses to the damages claims for the opposing counsel as a way to convince opposing counsel to seriously consider settlement. On the other hand, if you believe your case is likely to go to trial, you might consider holding back and not asking what you believe to be the most “damaging” questions so as not to educate the opposing party’s expert about your strategy. In such a situation, you want to ensure that you educate yourself for trial, but you do not want to educate the opposing counsel and the opposing expert in the process.

Finally, as part of your deposition tactics, you might consider following an unexpected order of questioning to catch the opposing expert somewhat “off guard” and to get to the heart of the deposition before the witness has had an opportunity to “warm up.” For example, you might consider starting the deposition with a line of questions about a particularly weak point in the expert’s assumptions or analysis while saving the questions about the expert’s background, qualifications, and scope of assignment in the litigation for last. Such a strategy of getting right to the “heart of the matter” might result in the expert becoming flustered at the outset and being unable to quickly regain his footing.

TYPES OF QUESTIONS TO ASK

In general, you will want to cover the same general topics with a damages expert as you would with any other expert. Those general topics include the following:

 The damages expert’s education, background, and training;

 The damages expert’s employment history and his responsibilities with each position;

 What the damages expert was asked to do by opposing counsel;

 What, in fact, did the damages expert undertake to carry out the assignment;

 When was the damages expert retained and how long did the expert take to come to his conclusion;

 What compensation was the damages expert paid to undertake the work;

 What opinion/conclusion did the damages expert reach based on the work undertaken;

 The bases underlying the expert’s opinion;

Page 183  The assumptions the damages expert relied upon in reaching his conclusion/opinion;

 What additional work the damages expert plans to undertake prior to trial with respect to the assignment; and

 Whether changing any particular assumption would change the expert’s opinion, and if so, in what way.

QUESTIONS TO ASK: BACKGROUND

In addition to the questions relating to the expert’s resume or curriculum vitae, you may wish to ask the following questions:

 Did you graduate undergraduate school in four years?

 Did you graduate with any distinctions?

 What did you do after college?

 Did you obtain any post-graduate education?

 When did you begin your education/training as a ______?

 What specific training and education do you have related to your field?

 When did you first begin doing ______work?

 When did you begin doing litigation-related work?

 What percentage of your experience is related to what was undertaken in this case?

 Where are you employed?

 Are you an owner/shareholder?

 How many employees trained in this field do you have working with/for you?

 Have you or your business ever been a party to a civil lawsuit?

 Have you ever been the subject of a professional disciplinary complaint?

 Do you have any other businesses or occupations?

Page 184  What do you do other than this type of work?

 What percentage of your work comes from being a litigation consultant?

 Of the litigation-related work, what percentage is for plaintiffs and what percentage is for defendants?

 Have you ever been found not qualified to testify in any litigation?

QUESTIONS TO ASK: THE EXPERT’S ASSIGNMENT

 Who hired you?

 Who else was considered for the project?

 What was your assignment?

 When did you receive your assignment?

 How long did it take you to complete your assignment?

 Has the assignment changed over time, and if so, how and why?

 Have you completed your work or are you expected to do something else as part of your assignment?

 Is there anything you would like to have done but did not have the opportunity to do in formulating you opinion? What would you like to have done and why didn’t you undertake that work? Why would that work have been helpful to you?

 Did you talk with any others in the field before agreeing to accept the assignment? If so, why?

 Do you have any prior work relationship with the plaintiff/attorney?

 Do you have any social relationship with the plaintiff/attorney?

 How did you get the assignment?

 How much time has been billed to date?

 How much is still unbilled?

Page 185  Do you keep a detailed narrative for bills?

 How much have you been paid to date?

 What is your rate to testify at trial?

 What is your rate to meet with the client before trial?

 How much are you charging today?

 When did you first form your opinion?

 Before you formed your opinion, who did you talk to?

 Did you meet with the plaintiff or plaintiff’s counsel? If so, what was said?

 Before you formed your opinion, what documents did you review?

 Did you have any assistants to help you on this project, and if so, what did they do?

 Are you relying on anything your assistants told you?

 Did you base your opinion on any data or information they gave you?

 Did anyone review your work?

QUESTIONS TO ASK: THE OPINION/CONCLUSION

 What is your opinion today?

 When was it formed?

 Did you have a different opinion at an earlier time?

 Has your opinion changed since you first formed one? If so, why?

QUESTIONS TO ASK: FACTUAL BASES FOR OPINION

 On what facts are you relying to come to your conclusions/opinion?

 Were the facts provided to you by counsel or did you rely on facts provided by anyone else?

Page 186  Did you personally observe any of the key facts giving rise to your opinion?

 Who, if anyone, did you interview regarding the facts upon which you relied?

 What documents did you review as part of your analysis?

 On which documents did the expert rely when reaching the expert’s opinion/conclusion? Alternatively, which documents did the expert review (or which documents were provided to the expert) that the expert did not consider relevant for consideration when reaching the expert’s opinion/conclusion and why is that the case?

 Would a change of any of the facts change your opinion? If so, which facts are most important to your opinion, and how would a change in those facts have changed your opinion?

QUESTIONS TO ASK: METHODOLOGY

 What methodology did you use?

 What other methodologies were considered, but rejected, and why?

 Did you undertake the analysis and apply the methodology or did others do that work?

 Did you talk with any others in the field about your use of the methodology in this instance? Why? Why not? If so, what did the other experts say and was there any disagreement as to the use of the methodology? If there was any disagreement, what were the differences and how did they get resolved?

 Is the methodology contradicted by any respected authority in the field?

 Has this methodology been proven to work in practice, i.e., in the real world? Provide examples.

 Did you undertake any research on your own or are you merely relying on the research of others?

 Have you ever written any literature or undertaken any analysis in which you utilized a different methodology based on similar facts or circumstances?

 What journals, texts, and articles do you consider authoritative with respect to the methodology you used?

Page 187  What journals do you subscribe to and what books or treatises are in your library relating to the methodology utilized?

 If different, do you agree with the methodology used by the defendant’s expert?

QUESTIONS TO ASK: ASSUMPTIONS

 On what assumptions is your opinion based? Please list and explain each and every assumption you made when reaching your opinion.

 For each assumption, why did you choose that assumption?

 Were there any other assumptions that were considered, but ultimately rejected? If so, why?

 How would a change in each of the assumptions affect your conclusion?

 Do you have any reservations about the assumptions you used in arriving at your opinion?

 How exactly do the assumptions affect the calculations and damages estimates?

 Do the assumptions conform to the methodology and principles utilized?

 Do you agree with any of the assumptions of the defendant’s expert?

 Do you agree with any of the conclusions of the defendant’s expert?

You will, of course, want to fine-tune your questions to make them specific to the specialty of the damages expert you are deposing. However, the questions above can be used as a starting point for all types of damages experts, as they cover the universal issues that must be addressed in any damages expert deposition.

CONCLUSION

When it comes to deposing damages experts, attorneys face a potentially daunting task of deposing someone who is a master of a field with which the attorney is neither conversant nor particularly comfortable. Most of us did not become accountants, economists or appraisers for a reason – we are not that fond of mathematical formulas, computations and calculations. Nevertheless, to appropriately handle an expert deposition we need to properly prepare ourselves – even if that means that we have to review mathematical theories or pull out our calculators to check someone else’s math. Luckily for us, we can have our expert guide us through the preparation process, serving in the role as teacher and tutor so that we ask the right questions and fully critique the opposing damages expert.

Page 188 CROSS-EXAMINATION AT DEPOSITION By: Lauren S. Curtis

Taking a deposition can be one of the most exciting and nerve-racking moments of a young lawyer’s career, and for good reason – while there are other effective methods of discovery (i.e., interrogatories, requests for production, requests for admission, etc.), a deposition provides the opportunity both to learn the witness’s version of events straight from the witness’s mouth, and to preserve that testimony for the record. Moreover, a deposition is likely the only opportunity a lawyer will have to meet the opposing party (and other witnesses) prior to trial, and to assess what kind of witness he or she will make.

Many young lawyers make the mistake of using a deposition solely as a fact-gathering tool. While a deposition is often the most valuable method for gathering facts, it can also be used to elicit key admissions or to gather impeachment materials – and the way to do this is by cross-examining your witness. Indeed, many trial lawyers would agree that an effective cross- examination at trial starts at deposition. A deposition offers the opportunity to “try out” the questions you intend to pose upon cross-examination at trial. In fact, every single question you intend to ask at trial should be asked at deposition, so that you know what answers to expect (surprises – fun at parties, not at trials). Remember that even if your case ultimately does not go to trial (the vast majority of cases do not), an effective cross-examination at deposition can elicit critical admissions or concessions from your witness that can be used in a summary judgment motion, or to gain leverage in settlement negotiations.

Keeping these principles in mind, here are some simple techniques that can be used to conduct an effective cross-examination at deposition.

1. Prepare, prepare, and prepare some more.

This should be obvious, but the importance of preparation simply cannot be minimized, particularly when it comes to taking depositions. The effectiveness of any deposition is largely related to how much preparation time the lawyer put in prior to the deposition. A lawyer must be thoroughly familiar with both the details of and documents associated with his or her case, or else the lawyer will be unable to prepare a concise, targeted and effective cross- examination. The cross-examination of a plaintiff at deposition can be the tipping point in any case, and understandably so – after all, it focuses on the essential controversy of the case, a battle between the plaintiff and the defendant. A prepared and effectively accomplished cross- examination of the plaintiff at deposition can posture a case for summary judgment, provide leverage during settlement negotiations, and even increase the chances of a defense verdict at trial. With this much at stake, you do not want to under prepare.

Page 189 2. Recognize that there are two types of cross-examination, both of which are useful.

Most non-lawyers have a preconceived notion (probably from television and movies) that the sole purpose of cross-examination is to hurt, if not destroy, a witness’s credibility, or at least to limit the effect of the witness’s testimony. This type of cross-examination is often referred to as “destructive” cross-examination, and it is typically utilized with critical adverse witnesses. Destructive cross-examination can be conducted in a multitude of ways, including but not limited to attempting to show bias, prejudice or personal interest on the part of a witness, or attempting to show a witness’s memory is faulty.

However, there is another type of cross-examination that can be just as valuable, and that is “constructive” cross-examination – or in other words, eliciting helpful information from a witness on cross. Such testimony can corroborate the testimony of one of your witnesses, or impeach one of the opposing party’s witnesses, either of which, of course, is helpful. The format “Mr. Smith, can we agree that . . . ?” is often an effective way to frame a constructive question. Consider the following example questions, posed to the opposing party’s expert witness:

Q. Dr. Jones, can we agree that the methodology used by my client’s expert is accepted in your field?

A. Yes.

Q. Can we further agree that the methodology used by my client’s expert is considered reliable in your field?

A. Yes.

Also consider this example, in which the lawyer is deposing a bystander who witnessed a car accident, and has testified that the lawyer’s client ran a red light. The lawyer, however, knows the bystander will corroborate his client’s testimony that he immediately rendered assistance to the plaintiff:

Q. Ms. Brown, at the time of the collision, you were standing on the sidewalk?

A. Yes.

Q. Approximately 20 feet away from the site of the collision?

A. Yes.

Q. And you saw my client run to the plaintiff’s vehicle right after the collision?

Page 190 A. Yes.

Q. And you heard him ask her if she was okay?

A. Yes.

Q. And you heard him tell her he was going to call for an ambulance just to be safe?

A. Yes.

Here, although the witness was ultimately offering harmful testimony against his client about running the red light, the lawyer was still able to glean some helpful information from the witness by asking a few simple questions on cross-examination.

3. Ask only leading questions to which you already know the answers.

This is the cardinal rule of cross-examination, both at deposition and at trial. Cross- examination is not the time to ask the witness open-ended questions that allow him to tell his story. Instead, you want to ask only leading questions which suggest the answer, which as a general rule at deposition, and as a definitive rule at trial, you should already know. The practical effect of this method of questioning is that it essentially allows the lawyer conducting the cross-examination to testify, and the witness being cross-examined simply to ratify the testimony. Consider the following example, where the lawyer knows from the police report that the plaintiff’s witness had been drinking heavily with the plaintiff for several hours prior to the plaintiff getting injured in an altercation with security at his client’s bar:

Q. What had you been doing during the four hours leading up to the altercation where your friend was injured?

A. Well, we got to the bar around 5 o’clock, ordered some food, had a couple of drinks, played some pool, and watched some of the basketball game on TV.

This all sounds fairly innocuous. Compare this, however, to the following:

Q. You arrived at the bar around 5pm?

A. Yes.

Q. The altercation occurred around 9pm?

A. Yes.

Q. And you had several drinks during that four-hour period?

Page 191 A. Yes, I suppose I did.

Q. About two drinks per hour, according to the police report, so around eight drinks total?

A. That sounds about right.

Q. So you were drunk?

A. Yes, I probably was.

As with any rule, there are exceptions – for example, with an expert witness, leading questions in certain areas are unnecessary. Consider the following:

Q. How much money did you make last year testifying for plaintiffs’ attorneys?

Q. How long has it been since you last treated a patient?

A lawyer would ask these non-leading questions because she already knows the answer, and it is better to have it come directly from the mouth of the expert. But as a general rule, ask only leading questions on cross-examination, with a few very limited exceptions.

4. More specifically, ask “yes” questions, and don’t end your question with “correct?”

On a related note, it is generally better to ask leading questions that require a “yes” answer. You want the witness to agree with you as often as possible. In the event the case goes to trial, the more the jurors hear the witness saying “yes” to your questions, the more the jurors will perceive that the witness agrees with your position. By asking leading questions that require a “yes” answer, you are in essence daring the witness to disagree with you.

On the other hand, do not get in the habit of ending your leading questions with words or phrases such as “correct,” “isn’t that so,” or “wouldn’t you agree.” This can grow tiresome quickly for many reasons, not the least of which is that it makes the lawyer appear overbearing. The witness may feel as though he is being interrogated, and may become even more defensive than he likely already is. In fact, it is better to simply make statements and get the witness to agree with them. For example:

Q. You first treated the plaintiff on September 1, 2013?

A. Yes.

Q. And she complained to you that day of a sore neck and back?

Page 192 A. Yes.

Q. She told you she had been in a car accident the week before?

A. Yes.

Q. So you ordered an MRI?

A. Yes.

Using words such as “correct” at the end of all of these questions detracts from the power of your examination (and frankly, becomes distracting after a while).

5. Be concise – one fact per question.

Cross-examination should consist of short questions with plain words. Lengthy questions containing multiple facts are difficult to answer. Plus, the more complicated a question is, the more easily a witness can quibble with it or deny it based on one sub-part of the question. Do not give the witness that opportunity – keep your questions simple by including only one fact per question. Consider the following:

Q. So on September 1, 2013, you ordered an MRI, wrote the plaintiff a prescription for pain medication, gave her a referral for six weeks of physical therapy, and told her to follow up with you in two months?

A. No.

Q. No?

A. Not exactly. I told her to follow up with me in two months if the physical therapy was alleviating her symptoms, but I instructed her to follow up sooner if she wasn’t experiencing any significant improvement as a result of the physical therapy.

This question would have been better broken out into individual sub-parts (i.e., “You ordered an MRI? And wrote a prescription for pain medication? And gave her a referral for six weeks of physical therapy? And so on). By doing this, you will keep your cross-examination clear and crisp, which is exactly what you want it to be.

Page 193 6. Sequence your questions from general (or non-controversial) to specific (or controversial).

Starting with general, friendly and/or non-controversial points before moving on to more specific or controversial points allows you to establish a rapport with your witness (and hopefully elicit some helpful testimony before the witness goes on the defensive). In other words, as a general rule, if you plan to elicit constructive testimony, it is best to do so first before moving into destructive cross-examination. Get the helpful testimony before you start challenging the witness’s credibility.

7. Avoid argumentative questions, unless you want to lose control of the witness.

Avoid argumentative questions, as you will get what you ask for – the witness will argue with you, and you will lose control of the examination. Consider the following examples:

Q. Isn’t it unusual for someone with debilitating back pain to go snow skiing?

With the question framed this way, you are doing nothing but inviting the witness to argue with you, or to qualify her answer. The following series of questions is much more effective, and makes the same ultimate point:

Q. You visited your doctor on January 15th?

Q. And at that visit, you complained of debilitating back pain?

Q. But you left two days later for a ski trip in Colorado?

8. Deal with facts, not conclusions.

A witness is highly unlikely to agree with you on matters of conclusion. For example, if you ask the plaintiff, “so you didn’t comply with your doctor’s orders,” he almost certainly is not going to agree with you. You can make the same point by sticking to questions that are strictly fact-based:

Q. After your initial visit, your doctor told you to follow up with him in two weeks?

Q. And you were a no-call, no-show for that follow-up appointment?

Page 194 9. But if you’re going to ask the “ultimate question,” do it at deposition – don’t save it for trial.

It may be tempting, particularly after getting the witness to agree with you on a number of other points, to ask that “ultimate question” – for example, “Wouldn’t you agree, doctor, that by not going to physical therapy as you instructed, the patient comprised his outcome?” As mentioned above, the witness likely will not agree with you. But, every once in a while, a witness will agree with you – and you can ask that question again at trial, impeaching the witness with his answer at deposition if he disagrees with you while on the stand. Never, ever ask the ultimate question at trial if you did not ask it at deposition and therefore do not know what the answer is. You can still make the same point by asking a series of factual questions (as discussed in (8) above), and arguing the ultimate point in your closing.

10. Know when to quit (there is such a thing as “one question too many”).

When you elicit the testimony you are looking for, it is often tempting to try to emphasize or drive the point home with additional questions. This is a mistake. By asking additional questions in such a situation, you are only giving the witness time to recover, explain, qualify, or claim misunderstanding. To avoid this difficulty, as soon as the witness has provided the testimony you are looking for on a certain point, stop!

If you remember and practice the basic techniques set out above, you are well on your way to a successful cross-examination at deposition. Good luck!

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