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Soundbite questions are a hallmark of depositions taken of Persons Most Knowledgeable (PMK aka Persons Most Qualified or PMQ) within an organization on certain topics. Here are some examples:
“Does your company, manufacturer XYZ, have ethical considerations in the design of its products?”
“Does ABC Hospital care about the safety of its patients?”
“Was it important to your company that African-American employees not be harassed because of their race?”
Of course the answer to these door-openers is an enthusiastic Yes. The problem is the inevitable follow-up:
“Then why didn’t you recall product 123 when you learned it was defective?”
“If you cared about preventing harassment, then why did you skip harassment training in 2011?”
These kinds of questions are intended to elicit soundbite responses that are, at best, only marginally relevant. But they can leave a strong negative impression with the jury if they somehow get into evidence. You can object until you are blue in the face, and chances are slim that the colloquy ever gets read to a jury, but do you want to take that chance? Even though I can’t anticipate every kind of soundbite question an opponent will ask my witness, I like to prepare her to recognize and effectively “manage” these questions.
One of the best ways to limit bad PMK or PMQ deposition testimony is to make the witness really understand the scope of his or her intended examination. For this purpose, I do not rely on the language of the deposition notice or subpoena. Rather, I typically object to the deposition notice, which is inevitably overly broad or problematic for other reasons. I then indicate, in the objection, that my client “will make a witness available who is knowledgable about . . .” This gives me some measure of control over what is going to happen in the deposition. For example, I never make a witness available to testify on ridiculously overbroad topics like “safety.” Rather, a notice asking for a witness on the “safety” of a product will get an objection promising instead a witness who is prepared to testify about “design considerations” or “testing.” If opposing counsel receives my objection and has a problem with it, I expect he/she will raise the issue and we will hash it out before the day of the deposition. Failing that, I take the position that the language of my objection governs for purposes of scope.
Now, this may seem strident. However, if push comes to shove and we need to appear before the judge, (1) I have not conceded anything and there is an opportunity to fully brief my client’s position; and (2) the burden is on the party noticing the deposition to move to compel, rather than having the burden on my client in moving for a protective order. As Denzel Washington points out, in Training Day, “The shit’s chess, it ain’t checkers.”
Since I have had some say in the scope of the witness’ examination, I want to make sure the witness knows the boundaries of this scope. After explaining this, I reinforce it by asking a series of mock deposition questions that fall just inside or outside the scope. This practice helps the witness feel comfortable asserting that the question is outside the scope of her deposition. I also teach her to listen for my objection that the question is outside the scope.
Unfortunately, while some examiners will walk away when the witness resists an invitation to give a soundbite, others are more persistent. They will ask the same question over and over until they get a response, or slightly change the question until they get an answer they think is useful. Preparing my witness for this kind of persistent examination requires consideration of my overall theme in the case. For example, if my client made a single part that was incorporated into a larger product that is claimed to be defective, my theme might be that my client made the part according to a specification. I teach the witness to restate this theme in a way that she finds comfortable, then help her to apply it in response to a variety of different questions. Again, practice through hours of mock questioning is the only way to “train” my witness how to incorporate the theme into her responses.
The most important thing is to put my witness on notice that she is likely to be asked soundbite questions. Since the questions can seem innocuous (“You care about safety, right?), and seasoned examiners know how to sandwich them in between more legitimate questions, it’s important for the witness to remain vigilant.
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.
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.
Bloomberg TV interviewed Vel Hogan, the foreperson of the jury in the recent Apple v. Microsoft patent trial, which returned a $1 billion verdict in Apple’s favor. Undoubtedly future jury consultants will anchor entire PhD theses on this trial. I don’t pretend to have the education and experience to do any kind of in-depth analysis. But a few interesting points can be quickly gleaned from the interview.
Takeaway Number 1: Vel is smart. But not just intelligent or wise. He possesses the kind of intelligence, training and knowledge necessary to grasp much, if not all, of the technically sophisticated evidence presented during a patent trial. According to my crack internet research, Hogan is VP of Engineering for Multicast Laboratories. He holds patents and has been a member of the Silicon Valley tech community for over 30 years. I would think most patent lawyers would be heartened to know jurors of Vel’s intellect are out there, available to be impaneled (particularly if your trial is conducted in a venue rife with tech engineers). He said in the interview that the jurors were “inundated” with evidence. Someone less intelligent or uninterested in technology could easily have been overwhelmed by the evidence and, rather than considering and re-considering the evidence–a great deal of which was highly technical — reached a verdict instead based the cut of John Quinn’s suits or because they like Apple’s TV commercials.
On the other hand, for the reason I am about to discuss (in Takeaway Number 2), many trial lawyers might be fearful of a juror of Vel’s intellect in this kind of case. Purely from the interview, it does not appear Vel had any bias going into the trial or deliberations. He owns no Apple products; his wife has a Samsung phone, but it’s not a smart phone. If he had any bias that he concealed during voir dire, but that he brought into the jury room, it could have been a problem. Why?
Takeaway Number 2: Vel served as a torch-bearing guide to most of the other jurors. I speculate that it took the other jurors no time at all to select Val as their foreperson. They knew from voir dire that he was a techie. They probably paid attention to his expressions and slightest comments throughout the trial. If/when he took notes, they either wrote notes themselves or wondered what they had missed that was so important. He said in the interview that they started deliberations with a question and answer session, trying to clear up confusion some of the jurors had about certain issues. Vel was thus their teacher, and their trusted guide in a way that none of the lawyers or witnesses could have been. I suspect this was particularly true because I read about (and Vel Hogan alluded to) Judge Koh’s frustrations with the lawyers for both sides throughout the trial. The judge’s scoldings likely eroded the jurors’ confidence in the lawyers to guide them through the trial. Thus, as a knowledgeable, likeable, apparently objective teacher and guide, Vel Hogan’s ability to influence the outcome of the trial was enormous.
Takeaway Number 3: Vel took the legal questions home with him and continued to deliberate. He alluded during the interview to an “Aha” moment he had one night during the deliberations. Before that, at the outset of the deliberations, he thought the verdict would likely be in Samsung’s favor. But there was a single point that he struggled with (whether the No. 460 patent was invalidated by prior art). He said that, after he internally resolved that struggle and decided he could defend the patent if it had been his own, much of the remainder of the deliberations went smoothly. I speculate (with extra emphasis on that word) that the deliberations thereafter went smoothly because Vel, as the torch-bearing guide and teacher, had made his decision. All that remained was for Vel to explain his own reasoning to the others.
Takeaway Number 4; The jurors worked in a systematic fashion to reach their conclusions. Several comments during the interview suggested that the deliberations were indeed deliberate. They addressed the “simplest things first.” If they hit a bump in the road, it would not derail their progress. Rather, they suspended judgment on that point and moved on, with the plan to re-address the bump in the road informed by the outcome of their other deliberations. In this way, they navigated their way (with their torch-bearing guide) through a veritable morass of evidence and instructions.
The interview is worth watching. If I’ve mis-paraphrased Vel’s comments, please let me know. I struggled with embedding the code, so the best I can offer is a link: https://bloom.bg/OkRkhk.
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.
A great recent post at What About Clients? highlights a policy that will benefit most trial lawyers. Basically, no later than 60 days before trial, take a fresh look at everything. Here’s how it goes:
“[N]o more than 60 days from trial, read over and take a proverbial bath in all of the written discovery responses and–if time permits–every deposition transcript in the case. Work through the materials relatively quickly but as thoroughly as you can. In particular, do one good read of any deposition you did not take yourself. And of all written and signed discovery responses (you can skip the documents). Go back to the start of the case. Do not rely only on deposition summaries or on outlines of direct or cross examinations prepared by others. The process of “immersing yourself” in all the discovery will suggest new sub-themes, patterns, weak points and even a new fact or two in your opponent’s case that meant little to your side when it was first produced. Now discovery will take on new and instructive meanings. Having gone through that exercise, you will be steeped in the case. You’ll have knowledge that will give your examinations of witnesses credibility, authority and command.”
This alone is a great idea. But I think the review could be an even more meaningful exercise if it is informed by what you’re going to do with the evidence you find. When, for example, does it make the most sense to highlight a piece of particularly powerful evidence? I like to have copies handy of the most important jury instructions I expect will be given at trial. This way, as I’m taking a bathin the evidence, I can develop a plan where the evidence will be best presented. It also gives me a head start on how I’m going to structure my closing argument, where I take the jurors though each element of a claim or defense and show how the evidence proves or disproves a particular element. I like to think this is a great idea made even better.
Learn Morehttps://youtu.be/fgIBG8q1Gjc
In this clip from A Few Good Men, two Marines are on trial for a murder on their training base. The Marines’ defense is that they were ordered by officers to give the decedent, a fellow Marine, a “Code Red,” which is a violent training “tool” used to bring errant Marines in line. The decedent was killed during the performance of the Code Red.
The prosecution (played here by Kevin Bacon) wants to poke holes in the whole notion of a Code Red. When another Marine from the same unit is on the stand, Bacon cross-examines him with two books, The Marine Outline for Recruit Training, and the Standard Operating Procedure applicable to his unit. Bacon elicits admissions that the term Code Red does not appear anywhere in either manual, thus making it seem like something the defense has cooked up or exaggerated.
The defense (played by Tom Cruise) deftly resuscitates his witness by using the same Standard Operating Procedure and asking the witness to locate where in the manual it explains where the mess hall is located. Of course the manual makes no reference to the mess hall, either, crisply illustrating the fallacy behind the argument that a Code Red must be a fiction if not officially recognized in the Marine training manuals.
Oh, and sorry if this contained a spoiler. The movie has only been out for like 25 years.
Learn MoreA great post on Associate’s Mind, entitled “Millennial Jurors: Entertain Us,” discusses the challenges facing trial lawyers trying to communicate with Gen-Y jurors. In addition to prognostications about how these young adults can’t sit still and pay attention for the hours needed to take in information during a jury trial (how will they check their smartphones?!?), the post (which itself references an article in the Texas Bar Journal) notes how information needs to be presented to Millennial jurors in shorter visual “bites,” as opposed to purely verbal, format. Better make sure it’s not boring, either.
Undoubtedly a cottage industry will sprout from within the ranks of jury consultants and trial support firms of “Millennial specialists” who claim to know the secret to engaging Gen-Y jurors. But I don’t think the shorter attention span, and increased need for engaging visual, as well as verbal, content is really that new or a bad thing at all. I’ve written elsewhere how trials are too long and taxing on jurors’ minds and attention spans. Anyone trying cases in the past 25 or 30 years knows that a purely verbal presentation–without visual aids (even rudimentary visual aids) is risky, even if the subject matter is pretty sexy.
I think that, while the (alleged) changes in attention span, and increased appetite for visual stipulation seen in Gen-Y (and presumably later) generations might be lamented by parents, educators, psychologists, novelists (and other print media writers) and others, it should not necessarily be lamented by those in the business of trying cases. Rather, like any development, it should be prepared for and embraced. It is true that evidence will need to be presented differently if it’s going to get through to Millennial jurors, and this will require some reflection and research. (Perhaps more in-depth research than was undertaken in developing the Texas Bar Journal article, which was simply a survey of law school students.) And, probably, some trial and error.
Turning the coin over, though, there will surely be evidence that only the younger generations will “get,” at least at first. For example, while it’s commonplace now for defense lawyers to scour the internet for impeachment evidence, there are older jurors who don’t surf the internet and don’t understand “The Facebook,” Twitter or LinkedIn. Cases involving new media, reality television and certain progressive technologies might be completely foreign to more senior jurors but completely familiar to members of Gen-Y. (OK, I’m a little biased because I practice in Los Angeles, where every case will someday be “pre-tried” on TMZ). In short, there should be a place at the table for every kind of juror. The challenge to the trial lawyer is to engage, as best as possible, with jurors of every generation, not just the over-30 demographic.
We’ve got to raise our game, or get out of the way.
Learn MoreYesterday I wrote about why discovery should be limited to questions or requests which are directly calculated to lead to useful information. I just need point out a single exception to this view: discovery through depositions.
Depositions (live question and answer sessions, recorded by a stenographer, in which a witness is sworn to testify under oath) present an unparalleled opportunity to gather useful evidence. But I’ve found that sometimes it’s necessary to ask a few (or several) extra questions to get the kernel of information you’re looking for (or didn’t realize you were looking for).
Certainly depositions should not be an exercise in free association thinking. Whether the questioning attorney uses an outline or not, there is no question that preparation is needed and you should have a very clear idea going into the deposition what you’re trying to establish. But, beyond establishing exactly what you’re looking to establish, don’t be afraid to explore topics in greater–even random–detail. I’ve seen caselaw suggesting that discovery should not be a “fishing expedition.” When it comes to depositions, I disagree. Don’t be afraid to “fish.”
The most important skill in taking depositions is not asking clever questions, but listening. Only by listening closely, not only to the substance of the responses, but also to intonation, hesitation and a constellation of other emotional “cues,” can we recognize when we might be “closing in” on a sensitive topic. Why is it a sensitive topic? We’ll never know unless we ask the question, and a follow-up question, and another, until we explore it fully. This take patience and persistence.
This makes depositions longer and more costly, which flies in the face of my typical mantra to simplify and be more lean and cost-effective. But there are times that loose, creative deposition questioning will lead to evidence we would never discover any other way. The big reason these loose, unfocused questions can yield better results than a response to written discovery is that written responses are always “filtered” through the mind of (or completely conceived and written by) the witness’s lawyer. That filter is generally missing in a deposition.
Even with this caveat, however, my view remains that any kind of discovery–depositions or written questions or requests–should only be undertaken strategically. While written discovery typically yields information that is carefully choreographed by attorneys, deposition questions can yield important, game-changing evidence precisely because the information is not mediated through the mind of a lawyer. In other words, you have to dig deep to find the gold!
Learn MoreAnyone who has argued a complicated summary judgment motion knows the challenges of making sure the record is robust to provide for appellate review, if necessary. This is particularly true given increasingly “jammed” law and motion calendars, which sometimes cause judges to encourage counsel to make oral argument brief.
Against this background, the Second District California Court of Appeal issued an opinion last week which highlights an important rule when briefing or arguing summary judgment motions. In Tarle v. Kaiser Found. Health Plan, Inc. (2012 WL1850926), an employment discrimination case, the employer moved for summary judgment. The employee opposed the motion, including submissions of 750 pages of evidence. In reply, the employer submitted 335 separate objections to the plaintiff’s evidence. Despite a second hearing and briefing opportunity, the plaintiff did not specifically oppose, in writing or during oral argument, the objections to the plaintiff’s evidence.
The trial court sustained nearly all of the objections to plaintiff’s evidence and granted summary judgment. The plaintiff appealed and tried to raise the issue of the court’s sustaining of defendant’s numerous evidentiary objections. Although the Second District Court of Appeal reversed the summary judgment (on separate grounds), the appellate court barred the plaintiff from arguing the objections, based on her failure to argue orally or in writing against the objections at the trial court. It said. “We conclude that a party who fails to provide some oral or written opposition to objections, in the context of a summary judgment motion, is barred from challenging the adverse rulings on those objections on appeal.”
This opinion reinforces the importance of presenting an organized oral argument on summary judgment motions. Where a judge is “rushing” counsel to make their argument unduly brief, it may even become necessary to take steps to assure that the record reflects this fact (which, itself, could raise an impatient judge’s ire). Tread carefully!
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