I’ve written about dealing with difficult or overly coaching counsel when trying to conduct a deposition.  Considering that the entire purpose for taking a deposition is to gather evidence, and a coaching or otherwise difficult opposing counsel can undermine this goal, this is an important issue.  Unsurprisingly, Professor McElhaney, in his excellent Litigation (aka the Bible), offers a wise strategy for dealing with these situations.  In a chapter entitled “Pit-Bull Depositions,” he discusses The Wedge.*  Because I cannot say it better, here’s a quote: “[T]he lawyer is coaching the witness because he is afraid of what the witness might say.  That means he has not adequately prepared the witness for the deposition.  It also means he is afraid you are getting close to something that might help your case or hurt his. . . . [T]here are probably better things to do than run to the judge when a lawyer coaches a witness during a deposition.  One of them is to drive a wedge between the lawyer and the witness.”  (Id. at 53.)

How to do this? Professor McElhaney suggests you change the dynamic of the deposition, so that the witness begins to see how her attorney is interrupting her and preventing her from telling her side of the story.  The witness will likely already be irritated that her lawyer did not adequately prepare her for the kinds of questions you are asking (or perhaps did not prepare her at all).  Capitalize on this dynamic by encouraging the witness to finish telling her story.  In addition to the above, I would add that a calm, prefatory response to the attorney might also be useful.  I’m thinking something along the lines of, “Counsel, you and I both know that what you’re doing is against the rules and making the deposition a miserable experience for your client.  That’s not my goal.  It’s also going to make this take much longer than necessary because I have to re-ask the question every time you do it.  Your client is entitled to tell her own version of the events, let her do it. We can hash through your technical objections later with the judge.”

This, of course, requires the examiner to maintain a calm, professional composure throughout.  Raising your voice, or even scowling will tend to reinforce the Us vs. Them dynamic and cause the witness to cling to her lawyer, regardless how poorly she was prepared for the deposition.

*McElhaney credits New York lawyer Patricia Hynes for this strategy.  That either renders this post triple hearsay or I owe Ms. Hynes a royalty.

In case this term is foreign to you, a “running objection” is sometimes offered by a party taking a deposition (or during a hearing or trial) when it appears that they are going to repeatedly encounter the same or similar objection.  Here’s an example of how it would arise:

Examining Attorney: “Why did your supervisor finally decide you should receive discipline?”

Defending Attorney: “Objection, calls for speculation, lacks foundation.”

Examining Attorney: “Counsel, why don’t we just agree you’ll have a running objection, so you don’t have to keep interrupting?”

Defending Attorney: “Thanks for the offer, but I would prefer to address each question separately.”

There are probably a wide variety of reasons why attorneys offer running objections.  I’ve even done it.  First, on the surface they would seem to streamline the deposition process, saving both time and money, since each individual objection consumes time and transcript space.  Why not give/take a running objection and cut down on the interruptions, shorten the deposition and transcript?

But I almost never accept the offer if I’m attending or defending a deposition.  Why? First, while I’m not interested in impeding the search for truth, I don’t view my job at a deposition to include making the examining attorney’s job an easy one.  If he/she asks a crappy question, it’s his/her fault, not mine.  If this results in repeated or even frequent objections, then he/she should hone his/her deposition skills.  It’s not my goal to interrupt the examiner’s flow–which is inevitable every time I make an objection–but it is an incidental benefit of objecting to protect the record.  If the examiner want’s to reduce the incidence of these interruptions, he/she should ask proper questions.

Second, the principal purpose of making an objection is to preserve the objection so the judge can later consider it and make a ruling if the deposition transcript is used at trial (or as evidence in another capacity, say in support of a motion for summary judgment).  The examiner has a choice, upon receiving the objection.  He/she can push forward (assuming there has been no instruction to the witness not to answer) and require the witness to respond.  Or, he/she can consider the objection, conclude it may have some merit and rephrase the question.  The benefit to me, as the attorney representing the witness, is that my witness will potentially get a proper question.  This is important where the objection to the question is that it is vague and ambiguous.  While such an objection may not be ultimately sustained by a trial judge, it might prompt the examiner to rephrase the question so that my witness is responding to a question that is less vague, less ambiguous.

Finally, it can be cumbersome to obtain a ruling on a running objection.  For example, in the context of an all day deposition, imagine I accept the offer of a running objection at 11 am, which ends up on page 45 of the transcript.  The examiner continues to ask objectionable questions for the remainder of the day, but I stay mum based on the running objection.  Later, the case proceeds to trial or a motion for summary judgment is filed, and a bad, objectionable question from late in the day is about to see the light of day.  I want to obtain a ruling on the objection, but it becomes a cumbersome exercise, as I have to point the court back to a much earlier part of the transcript, where I obtained a running objection.

This is not to say that running objections are a bad idea.  I just prefer, if I am defending a deposition, to deal with each question individually.  If you do agree to a running objection, be sure to remain vigilant.  If a question is objectionable for an additional reason not addressed by the running objection, it is important to raise the additional objection or risk waiver.

I previously wrote that I disagreed with the proposal to amend the California Code of Civil Procedure to limit depositions to 7 hours.  Well, now we’re stuck with it.*  So, I thought I would explore strategies to deal effectively with this new rule.   I developed these strategies from trying to take effective plaintiff depositions in employment cases pending in Federal District court.  The Federal Rules of Civil Procedure have long limited depositions to 7 hours.  (Fortunately, the new California rule has a carve out for depositions in employment cases.)

As I said before, it seems to me that most depositions in most kinds of cases should be reasonably capable of completion in 7 hours or less.  This is probably a radical overgeneralization, but it’s been my experience that most witnesses don’t have more than 7 hours of relevant testimony in them.  For those other cases and witnesses, in which it will be hard to finish in that time, here are 5 strategies that should help: 

1.  Give yourself more time to prepare.  Like everything in litigation, preparation is the key to success.  If you typically spent a day preparing for an all-day deposition without the time limitation, spend a day and a half preparing now.  If you generally eschew using deposition outlines in favor of a “come what may” approach, consider making at least a rough outline of topics you absolutely must cover.  The alternative is to risk running short of time without having covered crucial topics.  The argument against using an outline is that, using an outline causes us not to listen carefully to responses; this can be overcome with effort.

2.  Don’t be wed to a chronological or other artificial order of topics–get what you absolutely need first.  Speaking personally, I generally have an order I use over and over in taking depositions.  It is one that follows logically from how I see the case.  This can be a problem, though, when time is limited.  Then I have to prioritize based on order of importance, rather than imposing a chronological or other more familiar order of topics.  If, for example, there’s an especially important affirmative defense available, I reorder my examination in order to cover what I need to invoke that defense at the beginning, even if it doesn’t seem to make sense.  (This has the collateral benefit of “throwing off” opposing counsel who expected you to begin at the beginning.  It’s fun to see them look confused.) 

3.  Make a record that will support a motion for more time, if that becomes necessary.  You may need more than 7 hours regardless how you prepare and how smoothly the depo goes.  If this is the case, begin early creating a solid record to support judicial relief from the limit.   The new section, CCP 2025.209(a) includes this language: “The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.”  There’s a lot of room here.  Either “witness XYZ cannot be ‘fairly examine[d]’ in 7 hours because . . ., ” or “as demonstrated in the transcript of the first session of her deposition, XYZ [or her lawyer] impeded and delayed the examination by . . . ”   Videotape of the depo may help illustrate evasive responses, long delays or lengthy, meritless or talking objections.  In one case, we relied heavily on the videographer’s time-keeping records to show long delays.

4.  Resist the tendency to fight opposing counsel on the record.  As a reminder, taking a deposition need not be a contact sport.  This is especially true if you’re trying to get useful testimony and don’t have enough time.  Unreasonable objections or instructions not to respond should basically be ignored until after the deposition, when it’s time to “meet and confer” prior to filing a motion to compel responses to questions and/or a motion for more time.  Focus, don’t get distracted! 

5.  Go off the record whenever there’s going to be “dead air.”  If you hand a witness a document that will take a few minutes (or more) to read, go off the record while the witness reads it.  The same is true if you need to re-group or review your notes or a document between questions.  Just take a break. 

I hope these help.  Good luck.

Cal. Code of Civ. Proc. 2025.290 becomes effective Jan. 1, 2013.

It used to be that I gave no real thought to when, in the course of a lawsuit, I would serve contention interrogatories.  Sometimes, I would serve them concurrently with my client’s answer to a complaint, just to get the discovery ball rolling.  But a couple of years ago a litigator whom I greatly respect gave me a tip I’ve found to be valuable, and which I’ll pass on here.  In a nutshell, the idea is to hold off propounding contention interrogatories, or requests for admission with corresponding interrogatories, until after completing the opposing party’s deposition.  This seems so obvious to me now that it’s hard to believe I didn’t intuitively follow the practice from the beginning.

Contention interrogatories provide an excellent roadmap to the proponents case.  If I represent a plaintiff, my contention interrogatories will ask my opponent if and how they contend I will not be able to prove any essential element of my client’s case.  They may also ask what evidence my opponent has to meet his/her/its burden of proving essential elements of an affirmative defense.  If I represent a defendant, the interrogatories ask what facts and evidence my opponent has to prove his/her/its case (or to counter my client’s affirmative defenses). From viewing these interrogatories, my opponent should be able to get a pretty good idea where the contest(s) will be in the lawsuit.

Assuming my opponent can walk and chew gum, he or she is not going to simply tender the interrogatories to his/her client, transcribe and serve the responses.  Either the attorney is going to work with his/her client to jointly draft responses, or he/she is simply going to write the responses and have the client sign a verification.  Either way, the interrogatories and responses are probably the best tool available for preparing his/her client when the time comes for deposition.

This is not to say that I do not serve any discovery before the deposition.  In fact, I think it’s important to serve a pretty comprehensive set of requests for production right at the outset.  Ideally, I’d like to have most or all of the relevant documents in-hand and reviewed prior to the deposition.  This is not always possible, but it’s a worthy goal.  I also see no problem serving discovery which asks the opposing party to identify all witnesses he/she/it believes will have knowledge of relevant facts (note that I do not limit the query to persons with knowledge of facts the opposing party “may use to support its claims or defenses” a la FRCP 26(a)(1)(A)(i)–I want to cast a broader net).  Unlike contention interrogatories, this discovery provides no roadmap whatsoever as to my client’s strategy in the case.

Anyway, I hope this finds readers thinking “hey, that’s a pretty good idea.”

I recently defended a fairly contentious deposition.  To my surprise, my witness complained to me during a private meeting halfway through the deposition, “I wish you’d really give it to him.  If I was a lawyer, I’d never let him (opposing counsel) get away with that.”

I was frankly surprised.  While I wasn’t obstreperous, I hadn’t been a shrinking violet, either.  The examining counsel had asked mostly crappy questions and my witness had been really well prepared (in my not-so-humble opinion) over the better part of two full days.  I thought the deposition was going swimmingly.

I sensed that the problem, from my witness’ perspective, was that she was wounded by the way the examiner was treating her and bitter that certain facts she viewed as private (family status, country of origin, etc.) were being dragged out of her in what appeared to be a harsh, public way.  She’d never been deposed before, and wasn’t used to how lawyers routinely twist and torture the meaning of a witness’ testimony.  I realized it wasn’t that she felt that I wasn’t doing a technically capable job, but more that she expected any lawyer on her side to exact a pound of flesh from the examiner.  After all, what else was I there for?  She wanted John Wayne with a briefcase.

I told her, “I actually think you’d find it harder to concentrate, understand the questions and answer if I had really mixed it up with him.”  This is based on experience.  In the past, when I’ve encountered a real asshole examining my witness, or when I’ve been flabbergasted by a particularly egregious line of questions, or just had too much caffeine, I’ve turned into a real jerk.  (Turns out I can portray a pretty good jerk–who knew?)  I’ve always reflected afterward that, while I might have dished out some really cutting barbs, had I been a good advocate?

I certainly hadn’t improved the record.  (In fact, I’ve worried after particularly hot tirades about the possibility my Mamet-esque monologue might find its way into an exhibit read by the judge.)  Worse, though, I’d always felt afterwards that the additional tension caused by our dust-up exacted a psychological toll on the witness.  Sure, there are people used to concentrating and communicating in abusive environments.  But I’m sure the abusive environment rarely made them concentrate or communicate better than they would if those around them treated each other with respect.

At the end of the day, as I explained to my witness, what matters most is the transcript–the written record.  (Unless the deposition is videotaped.)  Whether I verbally punish the examining lawyer, or even make it more difficult for him to do his/her job, it’s unlikely to improve my client’s chances of prevailing, particularly if I engage counsel in a vitriolic exchange which makes it hard for anyone to think.  The best revenge, I told my witness, is to win the case!

I’ve been embroiled in a multi-week deposition bonanza in a religious discrimination case.  Yesterday, though, I experienced a first.  We were deposing the plaintiff.  Her lawyer is very seasoned.  While my co-counsel was conducting the examination, I was astonished to see what looked like plaintiff’s counsel passing subtly passing his client a small, square post-it note with writing on it.  I watched a little longer and, lo and behold, the plaintiff, while trying to respond to a question, looked down and read the note!

I called him on it.  To my amazement, plaintiff’s lawyer became indignant.  “I will counsel my client in any way I see fit,” he announced.  “Really,” I said.  “Well, don’t pass notes while questions are pending.”  A half hour later I saw him do it again.  Again, I called him on it.  This time he became even more indignant.

I suppose I should do some research to find out if coaching one’s client in deposition by means of written notes could somehow be an approved method of advocacy.  If it’s not prohibited, it certainly should be.  Who knows what he was writing to her.  It was probably just something innocuous, like “slow down” or “just say yes or no.”  On the other hand, it could have been substantive information, substituting the lawyer’s own memory for that of the witness.

Either way, depositions are not three-way conversations.  They are question and answer sessions designed to uncover facts.  I know there are all kinds of competing views on how involved the lawyer representing the witness should be in influencing the testimony, and I’m not above making speaking objections if I feel it’s necessary to protect my client.  I’ll also “remind” my client that certain questions ask only for yes or no, or point out that he or she has answered the question.  But I draw the line at passing notes back and forth during examination, even if only because it creates an appearance that something shady is afoot.

Like I said, my opponent is a very seasoned employment lawyer.  He’s brought his young protege associate along with him to every deposition.  I wonder if the protege is going to think it’s ok to pass notes to a deponent.  Or if he’ll just assume all defense lawyers are jackasses because I called out his boss on something I think is unethical.  My hope is that the young lawyer will think for himself, and decide for himself whether it’s ok to influence evidence gathering this way.  Mentors are important and valuable, but not if they carelessly pass on bad habits to impressionable young lawyers who represent the future of our profession.

In his book, Litigation, Professor James McElhaney laments the fact that civil litigators are horrified at the prospect of a blind cross-examination.  As a result, he argues, “[e]very year we spend millions of dollars on needless depositions of ‘witnesses’ who have little to say and nothing to add about the cases in which they would never be called to testify anyway.”  But we depose them, he suggests, because we’re scared to death of asking a question to which we don’t know the answer.

In Litigation, he provides some suggestions to civil litigators who, despite their best efforts, find themselves in a blind cross-examination situation.  One of these, which he terms “Duck facts,” I particularly like.

Duck facts refer to things for which you don’t need proof.  “If it looks like a duck and walks like a duck and quacks like a duck, it’s a duck.”  The classic example of this is where the witness tries to testify to something that makes no sense at all.  McElhaney’s example is pretty good:

“Q.  You say Schultze didn’t throw the bowling ball at Malone?

A.  No way.  He just dropped it.  It was an accident.

Q.  So Schultze just dropped the bowling ball?

A.  That’s right.

Q.  And then it just rolled onto Malone’s foot?

A.  That’s right.

Q.  Uphill?”

For those of us who continue the practice of deposing every conceivable witness, practicing duck facts questions, and looking for duck fact opportunities will surely sharpen our skills.  I keep waiting for that case where the client forbids me from conducting any pretrial depositions and forces me to go to trial “cold.”  I’ll get to practice my blind cross skills  in real-time.

California Assembly Bill 1875 would limit the deposition time to 7  hours, thus mirroring the Federal Rule.  There is currently no limitation at all for cases pending in California state court.  Is the proposed 7 hour limit a good idea?

My experience tells me that most depositions in many kinds of cases can (and definitely should) be completed in less than 7 hours.  That said, I’ve had the issue repeatedly arise in employment discrimination and sexual harassment cases in which the plaintiff’s deposition cannot reasonably be completed in 7  hours.  In fact, the plaintiff’s deposition in a sexual harassment case involving multiple instances of conduct allegedly occurring over the course of 3 years could not be reasonably completed in less than 20 hours.

The good news with this California legislation is that it would exempt cases involving employment issues or which are deemed complex.  It would provide the parties a choice to opt-out by stipulation.  Expert depositions would also be exempt from the limitation.

The stated purpose of the bill is to prevent attorneys from deliberately using the deposition to harass a party or witness or needlessly increasing the litigation costs of a case.  I’m not so sure.  While I’ve felt that some attorneys could be more organized with their examination and sometimes they seem to dwell on areas that ultimately bear no fruit, it is important that examiners not feel unduly rushed or constricted.  I could probably count on one finger or less the number of times I’ve honestly felt that an examiner was dragging out a deposition for a purpose other than legitimate fact gathering.  As far as harassment goes, I bet most people find the entire deposition process to be an exercise in harassment.  A lawyer intent upon harassing a deponent can do so as easily in 7 hours as 10, so is the law necessary?

On balance, I think members of the bar should think and act like professionals.  We should not engage in harassing behavior.  Nor should we drag out the length of a deposition unnecessarily.  If somebody gets out of line, there are remedies available, including a protective order and/or sanctions.  But I’d like to think we can govern ourselves without the need to be overregulated.  So let us decide for ourselves how long it takes to complete a deposition.

Oh, and please don’t ask after the first hour how long I think I’ll take for my examination.  That is just soooo annoying.