(323) 652-9451(805) 845-1752
(323) 652-9451As 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.
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!
Anyone 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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