Anyone who has taken or even attended a deposition is at least somewhat familiar with the litany of admonitions that are customary before the substantive examination begins. These include explaining to the deponent, and generally asking her to confirm her understanding, how a deposition works, i.e., don’t answer unless you understand the question, use words not gestures when responding, etc.

I attended a deposition last week of two of my client’s experts for an upcoming trial. The questioning attorney, obviously reading from an outline or script that he either drafted or was provided to him, attempted to get both experts to buy into the following:

“Q. If  you answer a question without telling me you didn’t understand it, I’m going to take the position — if you try to later say you didn’t understand the question — that you did and you were trying to get out from under the answer.  Do you understand that?”

In each instance, although I objected, my deponent ultimately agreed with the statement. I expect if my opponent attempts to use the testimony at trial the judge will probably sustain my objections. But he might not. Which leads me to think I should have better prepared both deponents (both of whom, by the way, are seasoned expert witnesses, very familiar with the deposition process). I will certainly prepare future witnesses for this kind of question, particularly by this particular attorney (whom I do generally respect for his frequent creative, outside-the-box thinking and approach to his cases).

What’s the problem?

The question asks the witness, in a complete vacuum, to buy into a set of circumstances and motivations that have no basis. Folks who have spent time in the world of depositions know that this isn’t a perfect science. Questions are only rarely (if ever) perfect. However, even seasoned experts get swept into the unconscious desire to “help out” the examiner, sometimes answering questions that weren’t asked, were very poorly asked, or supplying missing terms that help a problem question make sense. It’s not fair to ask that witness, who later explains a “bad” answer by suggesting she did not fully understand the question when it was originally answered, to agree in advance that any such effort is really “trying to get out from under the answer.” No.

Hearing a witness try to “back pedal” out of a bad deposition response by suggesting she didn’t understand the question when it was first asked is generally going to be viewed with suspicion by the jury. This is particularly true if it happens more than once. So, it is not a huge issue how the deponent answers the question above. However, the admonitions generally occur at the start of the deposition. If an examiner asks questions like that at the outset and the deponent answers without realizing words are being stuffed into her mouth, there is a good chance that questions and testimony are coming later in the deposition that will create a dangerous record.

So be on the lookout!

In my last post, I attempted to describe what has come to be known as the Reptile technique of discovery and trial presentation, as advocated in the book, Reptile: the 2009 Manual of the Plaintiff’s Revolution. Again, the goal with this technique is to invoke the reptilian brain of jurors, which thrives on evolution, and therefore maximizes “survival advantages” and minimizes “survival dangers.”

As Reptile becomes more common, it falls to us to ensure that our lay and expert witnesses are adequately prepared to deal with the technique during deposition. To better understand what your witness will be up against, here is an example of a Reptile examination of a medical expert concerning a doctor’s care:

“Q: Physicians are not allowed to needlessly endanger patients?

A: Correct.

Q: That’s the standard of care?

A: Yes.

Q: When diagnosing or treating, do doctors make choices?

A: Yes.

Q: Often, several available choices can achieve the same benefit?

A: Yes.

Q: Sometimes, some of those are more dangerous than others?

A: Yes.

Q: So you have to avoid selecting one of those more dangerous ones?

A: Correct.

Q: Because that’s what a prudent doctor would do?

A: Yes.

Q: Because when the benefit is the same, the extra danger is not allowed?

A: Yes.

Q: The standard of care should not allow extra danger unless it might work better or increase the odds of success?

A: Yes.

Q: So needless extra danger violates the standard of care?

A: Yes.

Q: And there’s no such thing as a standard of care that allows you to needlessly endanger a patient?

A: Yes.”

Imagine your client is a doctor. He/she treats a patient suffering from an ailment for which multiple treatment options are available. At least when I was in law school, we learned that a doctor is held to the standard of care that a similarly qualified practitioner would have performed under the same or similar circumstances. Yet, it is difficult to take issue with the “umbrella rule” that “A doctor is not allowed to needlessly endanger patients.” No one should be allowed to “needlessly endanger” anyone, right?

The rub here is the word “needlessly.” Sure, if there is a 100% fail-safe, side-effect-and-risk-free treatment option, then the choice for the doctor should be simple. In the real world, however, nothing is “risk-free.” Every treatment has risks and benefits which must be weighed and evaluated. And the jury must understand this. Practicing medicine is not a game of darts. The problem with the above set of questions, however, is that they (purposely) leave no room for the crucial weighing of risks and benefits. The Reptile strategy works best when jurors sense at a primitive level that the defendant doctor is out there, on the loose, preying upon unsuspecting patients, and the only way to stop him is by returning a monster jury verdict.†

The challenge for your witness, then, will be to ensure that she does not get boxed in by questions that leave out the weighing of risks and benefits. Remember I generally take an “activist” role in defending depositions, which means I will do everything within my (albeit limited) power to prevent my witness from being bullied into answering an unfair question. Thus, to a question like, “Physicians are not allowed to needlessly endanger patients?” I would object that this question is vague, ambiguous, unintelligible, overly broad and presents a hopelessly incomplete hypothetical. I would challenge the examiner to be more specific about what he/she means by “needlessly” and “endanger.” I would hope that, even if the examiner ignores my invitation to re-frame the question (as I expect she will), the judge will later agree that, in the real world of ailments and treatment options–and assuming the doctor did not perform surgery drunk–the phrase “needlessly endanger” is functionally meaningless.

Let’s assume, however, that the examiner ignores my objections and the court overrules them. The witness needs to be prepared to deal with this kind of question. And I believe she can learn, with practice, not to get boxed-in by questions that are frankly absurd. First, as I noted in my objection, the question is vague, ambiguous and unintelligible. The deponent should refuse to answer any question until she feels the meaning is crystal clear. I submit that “needlessly endanger” is far from crystal clear. If the examiner steadfastly refuses to break down or define what she means by “needlessly,” then the deponent should re-frame the question in her answer in a way that makes it reasonable. I’m no doctor–I don’t even play one on TV–but I believe the following answer beats “correct” any day:

“Q: Physicians are not allowed to needlessly endanger patients?

A: Correct. If you mean in prescribing treatment or medication, must a doctor consider and balance the risks and benefits of all treatment options available and known to him, I would agree with that. Otherwise, I don’t understand your question.”

Your witness must refuse to be drawn into empty over-generalizations. She needs to be prepared to endlessly reframe unfair questions, lest she will commit herself to enormous, sweeping “rules” or standards which have no real relevance or application to the concrete facts of the case. This actually holds true in any kind of deposition. The only difference with Reptile is that the questions will be cunningly tailored to prey upon jurors’ unconscious fears that doctors like your client are out there “needlessly endangering” patients like the juror and his/her family, and must be stopped. If your client did not “needlessly endanger” the plaintiff, but simply prescribed one among many accepted treatments, then the jury must–absolutely must–understand the balancing of risks and benefits that physicians undertake every time they prescribe a treatment. They can still conclude the doctor breached the applicable standard of care, but they should only do so based on an informed application of the appropriate standard to the specific facts.

†Let me say here that, while my practice does not include suing doctors for alleged malpractice, I do not have a built-in bias against plaintiffs or their lawyers.

Two blawg posts last week caught my eye. Both discussed preparing and defending witnesses at deposition. At the Lawyerist, Chris Bradley talked about his experiences defending a client in his first judgment-debtor examination. His title for the piece, which I mistakenly took to be ironic, was: How To Defend A Deposition: Just Show up. The other post, by Philly Law Blog blogger Jordan Rushie, took the assignment more seriously, and provided better guidance, likely because he has more experience. In his post, Rushie credited Max Kennerly with the notion that “[i]f you prepare your witness properly [for deposition], you should be able to just be a potted plant.”

Let me say first that I’m not sure whether Max Kennerly ever made that statement. It sounds pretty good, provided you don’t, as Jordan Rushie fortunately did not, take it completely at face value. What concerns me is that young lawyers reading Bradley’s post at the Lawyerist and contemplating Kennerly’s remark, might mistakenly conclude that adequately preparing your client or witness for deposition is enough. Or nearly enough.

It’s not enough. Or nearly enough.

I agree that preparing your client or witness is surely the single most important part of your job in defending the deposition. Clients or witnesses who have never been though litigation are quite literally astonished when I suggest that we spend a half or full day preparing for their deposition. And that’s often not enough. I once spent three full days preparing a sexual harassment defendant for his deposition–and I was still unsatisfied with the result. So yes, Max Kennerly is right that witness preparation is the first priority.

But even if you spent a full week preparing the witness (yes, we do spend weeks preparing certain key witnesses, particularly if they do not speak English or the subject matter is particularly complex), your job is not done. There is your responsibility to “preserve the record” meaning making objections when questions are not technically correct. Jordan Rushie got that right.

But, in my humble view, adequately preparing the witness and interposing appropriate objections is still not enough.

My goal at every stage of the proceedings in a lawsuit is control. I’m not so naive that I think I can actually control very much. There are about a thousand things in every lawsuit that are simply beyond my control, the top of the list being the judge. But that doesn’t mean I don’t try to control every single nuance as best as I can. I’m a control freak. Control. Control. Control.

When I present a witness for his or her deposition, I am being forced to relinquish control over a very important aspect of the process. In civil litigation, at least in my experience, depositions and documents win or lose a case. There’s very little I can do about bad paper. If there’s a bad document out there and my opposition has properly asked for it, and it’s not privileged, then I’ve got to produce it and we’re stuck with the consequences.

Depositions are different. Unlike bad documents, depositions don’t just exist. A deposition is more of a process. Even when we’re done preparing and I object whenever necessary, my opponent still must ask the right question and get a damaging answer before the evidence comes into existence. That’s a big leap, and I want to make it as difficult as possible to cross that chasm. And I’m not talking here about inappropriate objections, improper instructions not to answer, or being a difficult jackass, or other ethically-challenged conduct. But I do want my opponent to know I’m listening closely, to every word, and I’m not going to make it any easier for him/her than I absolutely have to. Otherwise, what am I getting paid hundreds of dollars an hour to do? A well-trained monkey can object when questions are “vague and ambiguous.”† I think our role is bigger than that.

I learned pretty early that you want to create a “tight” environment from the start. By this, I mean that, even if I generally have an extremely cordial relationship with my opponent (and I usually do), I don’t want him or her to think that this particular deposition is going to be easy or fun. I want him or her to feel that our time on the record is “borrowed time,” that he/she is taking up my client/witness’s extremely valuable time, that we’re inconvenienced, that his/her goal should be to finish up as quickly as possible. It’s been my experience that, in most instances, this results in a shorter deposition. Shorter deposition = less chance of damaging testimony from my client/witness = a good thing.

Another way I create a “tight” environment is by interposing a fairly stiff objection early in the deposition. By early I mean in the first 20-30 minutes. This signals to my opponent that I’m listening, and that I don’t intend to put up with any baloney. I do try to avoid speaking objections, because they’re unprofessional. On the other hand, if I need to say additional words to fully state the objection or my nonspeaking objections aren’t getting anywhere, then I’ll say what needs to be said. Again, while it may be my opponent’s deposition, I’m going to retain as much control as I can.

I also want to dictate when we take breaks. At least every hour. I don’t want my witness getting fatigued, hungry, exhausted or even comfortable. When he/she gets comfortable, that’s exactly when the filters in his/her brain start to shut off and the damaging evidence is created.

I’m also not above verbally bitch-slapping scolding any opposing counsel who gets too high-handed with my client. Again, I’m not getting paid several hundreds of dollars an hour to sit back and watch some unprofessional lawyer abuse my client. I’ve come to believe that civility really is best 99.9% of the time. But, if an opponent is abusing my client with his/her examination, I have two choices: I can terminate the deposition or I can push back a bit. If I give some push back, perhaps we can alter the course and finish the deposition without bothering the judge. If I terminate the deposition, motion practice is sure to follow and this is costly, and the judge might not see things my way.

We sometimes walk a fine line when defending depositions. I don’t want to be obstructionist, or an asshole. But when we’re on the record, my job is to do everything ethically within my power to prevent that record from containing evidence that is damaging to my client’s case and/or helpful to my opposition. I respectfully disagree with the notion that this obligation is satisfied by “just showing up” or even by just making objections.

†I mean no disrespect to monkeys, trained or otherwise.

When Alec Baldwin retires we’ll look back over his career, appreciate his different “periods,” and argue over when he shined most brightly. I’ll be torn between the current Alec Baldwin, a mischevious clown with serious acting and comedy chops, and an earlier, completely different Baldwin, handsome, hardened, narcissistic–kind of an asshole, really–that we see in Glengarry Glen Ross, The Juror, and Malice, from which this clip is pulled. I personally find his monologue in the opening minutes of Glengarry Glen Ross to be the most compelling (“Coffee is for closers!”), though he’s damn funny on 30 Rock.

This excerpt, though, is useful because it illustrates two points when defending a witness at deposition. First, if you can’t control your client sufficiently to prevent him or her from saying “I am God” at the wrong time, then look into another line of work. More technically, though, the clip illustrates the importance of securing a stipulation among all counsel to go “off the record,” meaning that the stenographer will no longer record testimony or colloquy. In the movie, one of the lawyers tells the reporter to stop reporting, and that seems sufficient. And I’ve found it usually is sufficient for one of the attorneys to say “off the record” or something similar. But, technically, an actual stipulation is required. See, Schwarzer, Tashima & Wagstaffe, Cal. Prac. Guid: Fed. Civ. Pro. Before Trial (The Rutter Group 2013), §11:1567, p.11-208. If you think you’re off the record, make sure the reporter’s hands aren’t moving, or your client’s declaration of divinity, or other gaffe, could become a bone of contention in the case.

Every once in a while I get a glimpse into the way another lawyer or firm practices their craft and I have something like an epiphany. I realize there’s a vastly better way to do something, and it makes me want to kick myself because I didn’t realize it sooner. I was privy this week to some work product from a lawyer representing a co-defendant and I had one of these moments.

By way of background, I have long despised the practice of summarizing depositions. When I finish taking a deposition, the last thing I want to immediately do is revisit the details. I’m not sure why, but I usually just want to get on with my life. Then, the next day–which is the very latest possible time that you should try to summarize a deposition from notes and memory–I’m even less interested in summarizing a depo. Not only do I just hate doing it, I’ve actually given the issue a bit of thought and concluded that, in most instances, it does not bring a lot of value to have someone bill several hundred dollars an hour to “summarize” anything, deposition testimony included. That’s why when I am engaged by a client that does not require a summary, I usually keep the reporting of the event to two sentences or less. Later, as we near trial, I find a sensibly written* page/line index is useful if there is a 5% or greater chance the witness will be called to testify. But a summary of what I just heard has always seemed like a painful waste of time.

Well, like I said, I’ve had an epiphany and changed my mind. The summaries I learned to write as a young associate were these kind of narratives: what kind of witness did they make and what did they say. The summary that made me change my tune had 3 distinguishing characteristics.

First, the “summary” part was in bullet, not narrative, form. It wasn’t a long, time-consuming rumination about what kind of witness the deponent will likely make at trial because she has excessive facial hair, or tends to drool, or whatever. Instead, it was punchy and to-the-point. Something like: “Retired nurse. Late 60s. Smart. Detail-oriented.” The information conveyed by the deponent was described this way, too. It probably took the lawyer 10-15 minutes to lay out these details, maybe less if he dictated it.

The second component was how to deal with the witness if she testifies at trial. In this instance, it was a witness of whom we are theoretically afraid. So the lawyer laid out 2-3 points that distinguishes what she said from the facts of our case, and an additional point about how some of what she said is subject to exclusion as hearsay. The real genius of this approach is that it might trigger follow-up that could be missed otherwise. For example, if the witness went out on a limb about something that could easily be proven wrong by a photograph or a subpoenaed record, you should note this and go ahead and assign the follow-up (at least in a perfect world).

Finally, the third component of the summary was a short opinion about the impact of the testimony. It could be as brief as “Problematic for our defense because . . . .” Or something more detailed, if time and inclination permits. The point is that it’s something that could be dictated or written in a half hour or less at the end of the day before you tuck yourself into that first 12 oz. vodka martini.

Because this format is shorter, tighter and more user-friendly, the recipient of the summary will probably be grateful, too. I can tell you my best writing never found its way into a deposition summary–I save that for you, my loyal readers.

And while we’re on the topic of what to do when you’ve completed the deposition, another is to immediately draft written follow-up discovery, or at least make a to-do list of the additional work that needs doing. Most of the time a witness–at least an important one–will open a door that you hadn’t really considered before. Follow up here is critical and, like the details of a dream, easily forgotten if not at least noted right away.

*A sensibly written page/line deposition index is something I might cover in another post, if I run out of marginally interesting things to write about. I know I’m pushing the envelope with this post about deposition summaries, which is why I included the racy picture.

 

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.

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 is my considered view that litigation lawyers fall broadly into two categories: (1) those that adequately prepare their clients to testify in deposition and trial, and (2) everyone else.  I have crossed both types of advocates and, without exception, lawyers who did not spend the time to properly prepare their client (or other witness) for testimony were corner-cutters most everywhere else in the case.  Like most defense lawyers, I eat corner-cutters for lunch.

There may be barriers to proper preparation of a client for deposition or trial testimony.  The biggest is usually the client.  Clients who are not often involved in litigation have a difficult time understanding the need for serious testimony preparation.  It’s time-consuming, expensive, repetitive, exhausting and generally irritating.  After all, these clients reason, I’m just going to be asked to tell the truth, right? How hard can it be?

Reluctant clients need to understand the importance of adequate preparation.  A deposition that goes bad, if it’s an important witness, can be a game-changing event in a case.  Fortunately, many clients will heed our advice and take testimony preparation seriously. 

Experienced lawyers differ on timing and methodology of testimony preparation.  I recently heard a “rule of thumb” of 2 hours of preparation for every anticipated hour of testimony.  This might work as a general guideline, though we seldom know beforehand how long a deposition is going to last.  I prefer allowing lots and lots of time for preparation, and scaling back the actual time spent based on the client/witness progresses.  Some clients/witnesses are naturally good at the process, others are not so good.  I like to think I know how to improve those who are not so good, and I’ve also developed various methods, which I might share later, for helping increase a client’s comfort level in giving his or her testimony.  Typically, practice alone—using credible mock deposition or cross-examination questions—makes a client more comfortable.  When a client or other witness is comfortable and relaxed, he or she not only gives better testimony, but he or she feels better about the process.  This, in turn, tends to build client trust in my skills. 

Our conduct in defending the deposition itself can also engender (or erode) trust.  Our clients need to know we’re there, alert and in control throughout the deposition.  Effectively maintaining control of the process, strategic objecting, etc. are subjects for other posts.  However, in addition to being alert, I think it’s important to maintain and convey a sense of calm throughout the deposition, even if opposing counsel is nasty or taunting.  I’m of the mind that it is preferable to terminate a deposition that has become uncivil (and seek a protective order), rather than subjecting my client to angry arguments between the lawyers.  It is rare, I’ve found, that a heated argument among counsel during a deposition will accomplish much beyond unnerving my client and leading to potentially harmful testimony.

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.