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!

One of our most important jobs during trial is to object, when necessary, to prevent the improper admission of evidence. But doing this job, even properly, is not without its risks. Chief among these is the risk of alienating jurors or garnering resentment because it is obvious–assuming the objection is sustained–that you have succeeded in hiding some quantum of information from the jury. After all, they’ll wonder, if your client’s case is so obviously a winner–as you said in your opening statement–why this need to hide facts from us?

As always, the wise Professor McElhaney has something to offer on this topic. In his Trial Notebook (3rd. Ed.), he suggests we learn and practice how to make objections understandable to the jury. He even suggests they can be made appealing. He writes:

“It is true that objections are supposed to be made to the bench, not to the jury or opposing counsel. In fact, addressing either your adversary or the jury is an invitation for a reprimand from the judge. On the other hand, there is no rule against making objections so that the jurors understand the basis for your objection and perhaps even sympathize with your position, rather than concluding you are pulling some lawyer’s trick to keep them from hearing the whole truth.

Essentially the idea is to state a legally sufficient objection–one that is specific and accurate–which a layman can understand and appreciate, and do it in five to ten seconds. For example, ‘Objection, leading,’ may win a ‘sustained’ from the judge, but will not really help the jury understand what you have done. ‘Objection, Your Honor, leading. Counsel is putting words in his witness’s mouth,’ lets the jury see that your adversary has been doing the testifying.

The time limitation is very important, since if you take too long, you are inviting attack for making a speech. With some work, even the most difficult concepts can be understandably compressed in a short time. Instead of saying, ‘Objection, hearsay,’ you might say, ‘Objection, Your Honor, the jury can’t tell whether some casual bystander this witness overheard was telling the truth. This is hearsay.'” (p.327)

McElhaney goes on to point out that, while it may seem like fine trial lawyers who make well-phrased objections do so extemporaneously, the truth is that such language is generally developed and practiced in advance.

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.

Ever found yourself in that situation where you are not only losing an argument or motion, but it seems mysteriously like the judge is bent on preventing you from making a decent record of your position?

In Litigation, the wise Professor McElhaney identifies games judges commonly play with attorneys in the interest of preventing them from making a record which can be used to challenge the ruling on appeal. He writes, “If [the judge] can force lawyers to waive objections or forget to make offers of proof . . . it will improve [the judge’s] batting average with the court of appeals.” (p.294) Here are a few such games:

1. Cutting off, under the guise of preventing speaking objections, any argument or objection.

2. Refusing to permit offers of proof at the time an objection is sustained; requiring counsel to wait until the next recess or next day of trial, when they’re likely to forget.

3. Insisting that exhibits be offered and admitted only at the end of the entire trial. This “forces lawyers to waive most of their evidentiary objections about exhibits. At the end of trial they are thinking about their final arguments, not about foundations or rulings.” (p.295)

4. Making “weasel” rulings on evidentiary objections: “I’ll let it in for what it’s worth.”

5. Making noncommittal rulings. “I’ve heard enough, let’s proceed.” Or, “All right, I understand your positions; let’s move along.” These aren’t rulings and, regardless what happens next (i.e., the objected-to question is answered and/or the jury hears the evidence), it will be all but impossible for an appellate court to identify an error, since the judge shirked her responsibility to make a ruling.

Recognizing your judge is playing one of these games will help you to maintain your resolve to make an effective record. Oh, and if you’re in a California state court, be sure to order and pay for that court reporter, otherwise you’re not going to be making a “record” at all.

It’s interesting that our law school evidence classes teach us the mechanics of the rules of evidence, however, (if my memory serves) we’re not given much guidance on how to decide whether, assuming a question is objectionable, it is a good idea to object during trial. It is true that the rules of evidence have application outside the context of a jury trial, and in fact it can be years before a lawyer actually has to make the decision whether to raise an objection at trial. But the question whether it makes strategic sense to object in the presence of the jury merits some analysis.

I consulted Professor McElhaney and, as expected, he had wisdom to impart. In Litigation, he articulates rules for when to object. I’ll list the first five here.

Rule One: Wait for a Reason

Only object when you have a good reason to object, and this means that “it advances your theory of the case.” Id. at 211. McElhaney reminds us that jurors resent objections. Why? Because they understand the point of an objection is to keep information from them, keep them in the dark. Assuming your objection is sustained, the jury will most likely understand that you have succeeded in an attempt to keep a piece of information from them. It must have been important information, or else why would you have made the effort to object–at least that’s how the jurors will think.

Rule Two; Don’t Object When It Will Help Your Opponent

I’ll confess that applying this second rule, obvious as it seems, may be challenging. This is because I’m not sure it will always be clear how my objection will help my opponent. Professor McElhaney gives two examples. In the first example, your opponent is leading a witness because so much time has passed that her memory has become fuzzy. You could object to the leading questions, but McElhaney points out that leading questions send a message that the witness cannot be trusted to remember properly, so your opponent’s leading questions may not be helping his cause, and the objection, sustained or not, will likely lead your opponent to improve the witness’s credibility by asking fewer leading questions.

In his second example, your opponent is fumbling through trying to lay a foundation for a business record. If you object, it “may help educate him so he will do a better job with other business records that are much more damaging.” Id. at 212. Let him fumble.

Rule Three: Only Object When Your Objection Deserves to be Sustained

The subtle message sent to the jury if you make objections that are overruled is that you are not especially fit to guide them out of the “swamp” of trial. McElhaney is careful, however, not to suggest you limit objections to only those circumstances in which they will be sustained, but rather only those instances in which they deserve to be sustained. “There are times when you simply must make your record, knowing the trial judge will overrule your objection.” Id.

Rule Four: Object Outside The Jury’s Presence If Possible

McElhaney is careful to distinguish outside the jury’s presence, from outside the jury’s hearing. Jurors hate sidebar conferences.

Rule Five: Object Promptly

This also makes sense. But he also gives an example of where an opponent exaggerates or fabrics a fact during his closing argument. He suggests it could make sense to wait, not object, and instead comment upon the fabricated or exaggerated fact during your rebuttal.

One point McElhaney makes really rings true for me on the subject of objecting during trial: “you have a limited good-will account with the judge and jury at the start of the trial. Everything you do in the trial affects that account. You are always making deposits and withdrawals. . . . [A]n objection looks like you are trying to keep something from the judge and jury, so it usually counts as a withdrawal.” Id. at 211.

(I so wanted to accompany this post with a still photo from the scene in Training Day in which Denzel Washington, wielding a sawed-off shotgun, tells Ethan Hawke’s character, “You know I’m surgical with this bitch!” Sadly, I couldn’t find a good still from that scene, so I used this lame stock photo instead.)

I’m a big proponent of serving written discovery that is “surgical,” that is, as narrowly drawn to fit the facts of the case as I can make it. Why? First, because I am a lawyer, my time is expensive. I don’t like to waste my client’s money writing discovery that is not likely to yield anything of value. But it’s not just that.

Drafting and serving unfocused and overly broad discovery will lead, in most instances, only to objections (“Overbroad!”) and, even if there are substantive responses, chances are they’ll be weak and of little value. As I’ve earlier written, you and your client should almost always “go to the mat” if necessary to obtain complete discovery responses. This means time spent reviewing the crappy objections and responses, writing one of those spectacularly painful “meet and confer” letters, getting a spectacularly painful letter in response, possibly writing another and/or having an unpleasant telephone call, followed by a motion which you may or may not win because the discovery was crappy and overly broad in the first place. All of this is time-consuming and, therefore, expensive for your client. In most jurisdictions, moreover, the court has discretion to force the party who loses a discovery motion (which could be you) to pay the other side’s attorney’s fees. Ouch!

A second reason I try to make my discovery surgical relates to how I want to be viewed by my opponent. While there are certain times when, for strategic reasons, I want my opponent to view me as unsophisticated and/or unprepared, I usually desire to instill the opposition impression. Nothing shows I haven’t a clue more clearly than 100 unfocused interrogatories, most of which skirt the real issues in the case. On the other hand, well drafted discovery shows not only that you know how to practice law, but also that you know what facts will win or lose the case. If your opponent happens also to know what she is doing, she will take you more seriously throughout the case, including at important times like when you are mediating or discussing settlement. If, on the other hand, your opponent is a lawyer who has gotten in over his head, recognizing that you know what you are doing will make him that much more eager to resolve the case before trial. Fear of submitting a case to judge or jury can be huge leverage.

So that’s my spiel for why it makes sense to serve surgical discovery. What about the how? A couple of ideas. First, it should be no big mystery at the discovery stage what the major theories of liability or defenses will be. I recognize we often refine theories and defenses based upon what we learn in discovery, but the complaint and answer at least frame the case in a general way. I like to take the jury instructions for the theories and defenses and draft discovery that seeks facts (and documentary evidence) that will support or defeat each element of a cause of action or defense. I recognize this isn’t revolutionary, but it works.

In addition, I like to involve at least some of the expert witnesses who will ultimately consult and, potentially, testify on behalf of my client as early as I can in the case. By meeting with these experts earlier than later, I can understand the technical issues likely to be in dispute. I may involve the expert in drafting discovery requests that are likely to yield meaningful information. I recognize that involving an expert early in the case can be costly. On the other hand, early expert involvement can ultimately save your client money in lots of different ways, starting with drafting useful cost-effective discovery, and including explaining earlier than later how the case you and your client thinks is so good actually sucks on a technical level.

So, go on, be surgical with that . . . er . . . interrogatory.

From the District Court:

1. Avoid making frivolous or blanket evidentiary objections in motions for, or oppositions to, summary judgment. This is one instance where the “kitchen sink” approach will simply piss the clerk off, since she will have to research and decide upon the merit of every single objection, regardless how pointless. Give her a break!

2.  Be flexible at oral argument. If the judge issues a tentative, use that information to tailor your oral argument. Try to address issues the court may have missed or evidence in the record that may have been overlooked but support your position.

3.  Read and comply meticulously with local rules and the judge’s standing order. Standing orders will be either posted on the judge’s Procedures and Schedules webpage or will be issued and posted to the docket once the case is assigned.

4.  Stand whenever you speak to the judge. Speak at the lectern, unless the court givs you leave to do otherwise. (And, of course, we know never to traverse the well, don’t we?!?)

5.  Avoid overly broad protective orders. Make sure an issue is ripe for a protective order (i.e., your client knows for sure it will disclose confidential information). Provide specific information to the court describing the documents and an explanation of the harm that will result if not protected.

From the Ninth Circuit:

 

Should our trial preparation and presentation be appreciably different when trying a bench trial or arbitration before a single arbitrator? If so, how?

As in most instances, McElhaney offers spectacular guidance on this topic.  Instead of framing the situation as simply a bench or nonjury trial, he reminds us we are still trying a jury trial, it’s just that there is only one juror.  While some of the drama may be diminished, we’re still in the business of seeking a unanimous verdict.  That said, his chapter on Judge Trials from Litigation offers the following advice:

1.  Understand your jury.  “[K]nowing to whom you are talking makes a difference in what you say and how you say it.”  Instead of a half-hour voir dire session, you may have months and months to learn about your judge, including her biases and prejudices.  Make good use of this time.

2.  Win the case before you say anything.  Write a bench brief that really sings, focusing particular attention on the first three pages.  McElhaney quotes Houston lawyer William Pannill: “The first one to explain what the case is really about has a tremendous advantage. The bench brief is an opportunity to do that.”

3.  Don’t relax your presentation just because there’s only one juror.  Use the same care in the order of presentation of witnesses, be concise and concentrate on telling a story.

4.  Preserve objections.  Just because the judge hears evidence before ruling on its admissibility, it remains imperative to preserve the record for appeal.  In fact, objecting isn’t as potentially harmful in bench trials because the judge knows you have to do it.

5.  Finally, even if parts of evidence have been stipulated to, don’t leave these out when arguing the case to the judge or arbitrator.  McElhaney points out that it is sometimes the stipulated facts that “are the best proof of what the case is all about.”

 

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.