TAKING AND DEFENDING DEPOSITIONS: PITFALLS TO AVOID

by

THOMAS J. McDERMOTT, JR.

Jewish lore includes this tale. Hillel was taunted by

a Roman soldier. "If you can tell me all that is in your Torah

while you stand on one foot, I will convert." Hillel raised a

foot and said "Do not do to others what you would not want done

to yourself." He lowered his foot. "The rest is commentary.

You are now a Jew. Go and study."

Conversion to the faith of the deposition room zealot

is just as simple.

Read this article.

Prepare extensively~

Practice a lot.
 Considerably more time must be devoted to the last two

steps than to the first, but on the other hand, you will be paid

while preparing and practicing.

Taking and defending depositions are both demanding

and have roughly equal pitfalls. But the attitude to avoid is

the same in each. That attitude is "This is not the real

thing. This is only a deposition." Since approximately 95% of

cases settle, in 95% of your cases this is as real as it is

going to get. If you do go to trial, this deposition may be

invaluable or valueless depending upon on how well it is taken.

Prepare as though for trial and you will not go wrong.

In taking depositions, the first pitfall to avoid is

going forward without a plan .. Know your purpose in taking this

deposition, both tactically and substantively.

Tactically, are you seeking information, impeachment

material, trial material, settlement leverage, or just sizing up

the witness? Most depositions are taken for information.

Usually, you will not know enough about the witness or the case

(particularly at early depositions) to plan for much more than

obtaining all of the information you can about your opponent's

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case. Indeed, this is probably the most important function that

can be accomplished by deposition. If you are out strictly for

information, you will ask open-ended questions in a relatively

gentle style at the beginning, becoming more and more pointed

toward the end.

There are other purposes for taking a deposition than

obtaining information. If you know a good deal about your case

and about your witness, you may be able to develop testimony

that later can be used for impeachment. This requires questions

that are more carefully crafted, usually that are prepared in

advance, and that are asked in a particular sequence. If you

believe the deposition transcript will be used at trial in lieu

of the actual witness, because the witness is outside of

subpoena range, sick or otherwise might be unavailable, then you

must be more careful in the framing of your questions,

particularly avoiding questions that are subject to objection.

If you hope to encourage settlement by reason of the

deposition, it is best to dazzle and provoke the witness. By

impressing the witness with your knowledge of the facts of the

case, the background of the case (for example, using the

appropriate technical jargon) and your aggressiveness, the

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witness, if a decision-maker, may be impelled toward

settlement. Many experienced trial lawyers will tell you that

settlement discussions often follow an abrasive deposition where

the deponent loses his temper. In my own experience, I have had

two separate cases settle immediately after the principals got

into a fist fight at depositions. And those are the only two

fist fights I have ever seen at a deposition.

Finally, a major tactical purpose may be to evaluate

the deponent as a potential witness at trlal. If so, draft a

short memo after the deposition giving your i~~ediate

impressions of his testimonial skills. Your perceptions will

never be more accurate.

Substantively, you may want to ask a witness

everything he knows (~, an expert witness), everything he

knows about this case, or everything he knows about a narrow

facet of this case. Or you may want only an authentication of

documents. No matter what the purpose, your areas of inquiry

should be planned in advance with considerable definition and

precision.
 DOCUMENTS

A major pitfall is taking the deposition of an

important witness without sufficient knowledge of the case. A

common practice is to take the deposition of significant

witnesses first and this ordinarily is appropriate. It is best

to confront important witnesses with questions before your

opponent has an opportunity to fully evaluate your direction and

to prepare his witnesses properly. However, you cannot take an

effective deposition unless you know a great deal about the

case. This means extensive interviewing of your own client,

third party witnesses where available, and most importantly, the

obtaining and review of documents prior to deposition. As a

rule of thumb, only in extraordinary circumstances (as where a

temporary restraining order or preliminary injunction is sought)

is it wise to take a deposition without first obtaining and

reviewing your opponent's documents.

Review everything you can before commencing an

important deposition. This means the pleadings, depositions

previously taken, the documents, your notes taken while

interviewing your client, and anything else that will aid your

factual perceptions. In other words, know your case.

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 HOH TO QUESTION

In preparing, do not write out your questions. This

lS too awkward and stunts your natural flow. Rather, outline

the areas of inquiry with great detail. It is also helpful to

write out the answers you expect to get in certain very

important areas.

You have developed a plan and you have implemented the

plan in a thorough outline with great particularity, even to

setting forth some of the answers you anticipate receiving.

Now, it is a pitfall to follow this plan and it is a pitfall not

to follow this plan. This dichotomy can be resolved by

developing one attribute: Curiosity.

If you follow your plan to the letter, and inquire

only in the areas set forth in your outline, you will miss

golden opportunities presented to you by the witness. When a

witness points down an unexpected path, follow it. Follow it

then, not later, in a natural succession of questions each based

on a witness' previous answer. Be curious and follow that path

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until you get where you want or determine there is no where to

go. Then come back to the main road of your outline and pick

up.

Example:

Q. Tell us your education after high school.

A. I received a B.A. in English Literature from

UCLA.

Q. Hhen did you start at UCLA?

A. 1953.

Q. Hhen did you graduate?

A. 1963.

(You should be thinking: "That is curious.")

Q. Has there any particular reason why it took you

ten years to complete a four-year college course?

A. No.

Q. Were you in attendance at UCLA for the entire

ten-year period?

A. No.

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 Q. Was there a period of time when you were not in

attendance?

A. Yes .

Q. What was that period?

A. 1955-1960.

Q. Hhy did you absent yourself from UCLA from 1955

to 1960?

A. I was in prison.

SOME MORE PITFALLS

Taking notes while examining the witness is like

whistling at a piano recital. It is superfluous and

distracting. Taking notes requires concentration and you should

be concentrating on the witness' answer. You must understand

that answer and all of its ramifications. Only then will you be

able to allow your curiosity to lead you down the various paths

that may be available. When you start down one of these paths,

you may want to write down where you left off on your main

outline so that you will be able to get back to it. Otherwise,

take no notes. That is what you are paying the court reporter

to do.

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 Never take "No" for an answer unles~ you want the

answer to be "No." That is the metaphorical "No," of course.

When you receive a fuzzy, equivocal, ambiguous, or facetious

response, ignore it. Ask the question again. If the answers

continue to be unsatisfactory, reframe the question slightly but

continue to prod. There is no need to get angry but there is a

need to get the answer you are after.

Another pitfall is to fail to listen to the objections

of opposing counsel. Most beginning lawyers are told that the

objections of opposing counsel are merely to harass and since in

most depositions all objections, except those as to form, are

reserved, there is no need to pay attention to objections. As

with many shibboleths, this is partially correct. Many times

opposing counsel is simply harassing or attempting to cue the

witness or give the witness a break. However, you should listen

to objections. If the objection is one as to form, such as

"ambiguous" or "compound," you will want to consider whether or

not the objection is accurate. If it is, you will want to

reframe the question. The last thing you want is an ambiguous

and objectionable record. If the objection is "hearsay" or some

other substantive type, you may want to consider ways in which

to overcome the objection. This is particularly necessary if

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you intend to use the deposition as a substitute for the witness

at trial. There will be no opportunity to correct objectionable

testimony and the transcript may be rendered worthless.

Never be afraid to fire the silver bullet. It makes

little sense to hold back your strongest points in the hope that

you will score at trial. If your opponent has any merit, the

witness will be prepared to overcome your "surprise" evidence.

If you believe the evidence is irrefutable, you will rely upon

it too much, and when it is refuted at trial, you will be in

trouble. An even more heretical proposition follows. Once the

silver bullet has been fired and you have scored a direct hit,

give the witness a chance to talk his way out of it. An old

cross-examination story, regularly attributed to a trial that

Abraham Lincoln participated in, goes like this:

Q. Did you see the defendant bite off the victim'S

ear?

A. No.

Q. Ah-ha. Then how do you know that the defendant

bit off the victim's ear?

A. I saw him spit it out.

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 The usual trial technique analysis ~s that the

cross-examiner should have stopped with the answer "No." That

advice is absolutely correct as far as it goes. But would not

the prosecution have followed up by asking the "how" question.

It is improbable to think that had the defendant's lawyer

stopped with the answer "No," the case would have been won.

It is generally a mistake to think that you have

"prevailed" at a deposition when you get a particular answer

that you want. You must nail that answer down absolutely,

giving the witness every opportunity to squirm out of it, so

that at trial there are no avenues open to avoid that answer.

As with every rule, there are exceptions. The following

provides an illustration. Imagine that the issue is whether or

not the three-year statute of limitations for fraud has run in

the sale of real property. The standard for the commencement of

the statute is that the plaintiff "knew or should have known" of

the alleged wrongdoing, which in the illustration is the

existence of undisclosed termites.

Q. Did you see termites in the foundation in 1979?

A. Yes.

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Q. How many?

A. It looked like thousands.

(Leave that answer alone. It will be very

difficult for the plaintiff to avoid at trial.)

Q. Did you see termite damage to the foundation in

1979?

A. I thought so.

Q. How much damage?

A. It was extensive.

(Here you should go on.)

Q. Why did you not take action at that time?

A. I did.

Q. What action did you take?

A. I called the termite inspector.

Q. What did the termite inspector say?

A. He said it was not termite damage that I had

seen. It was damage that must have been inherent

in the wood when the house was originally built.

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 EVEN MORE PITFALLS

You are not "cross-examining" the witness at a

deposition. Although you are cross-examining in the sense of

questioning an adverse witness, and you have all the rights of a

cross-examiner, you should not cross-examine as you would in

court. As a general rule of thumb, when you cross-examine in

court, you lead and control the witness, ask only questions

where you know the answer, and stop as soon as possible. In a

deposition you ask open-ended questions, there is no need to ask

a question if you already know the answer although you may want

to confirm it, and you do not stop. You ask and you ask and you

ask until you are sure that you have explored every possible

facet of the case and until you are sure that every answer you

have gotten cannot be refuted at trial.

Often at trial a cross-examiner will be aggressive and

abrupt, or at the least, firm. It is far better at a deposition

to be courteous. It is unproductive, and probably unethical, to

argue with a witness. You should commence the deposition by

introducing yourself on the record so that the witness can never

complain that he or she did not know who you were. "Good

morning. My name is Anthony Advocate and I represent the

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Goodheart Insurance Company, the defendant you have sued in this

action." You should adopt a conversational attitude which will

encourage the witness to talk and which may lull your opposing

counsel into a stupor. You should establish eye contact with

the witness and keep that eye contact so that you have a sense

of whether the witness is answering truthfully or avoiding a

sensitive area.

Objections by opposing counsel should not necessarily

be ignored. As noted above, you will want to consider the

objections and reframe the question should the objection be

appropriate. If there are too many objections, clearly aimed at

harassment or at coaching the witness, you may make a statement

on the record that such is going on. This tends to calm down

opposing counsel. If it does not, you may want to adjourn the

deposition until it can be conducted before a magistrate or a

referee.

Where a deponent continues to confer with his or her

lawyer, or constantly asks for breaks, you will also want to

note that on the record. One way to avoid it is to have

regularly scheduled breaks which are noticed in advance. For

example, you might say at the beginning of a deposition, "We

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plan to have a 15-minute break at 10:15, a 15~minute break at

11:15, and a one-hour break at 12:00 Nobn for lunch."

Almost all of the above can be mastered by serious

preparation prior to the commencement of the deposition. There

i~ one area that cannot. Framing a proper question is

difficult. It takes experience and practice to do it well on a

regular basis. When you are beginning, slow down. Think about

the next question. Your slowness will not be apparent in the

transcript. Reframe the question if it is not understood or if

you do not get the answer you want. There is no stigma attached

to reframing a question and, indeed, your professional

obligation requires you to do it. Generally, it is better to be

flexible than stubborn, relaxed than aggressive.

Avoid commencing questions with phrases like "Do you

recall" (they will not) and "Isn't it a fact that" (they will

say "No"). Try instead "Tell us what happened next?" Something

happened next. The witness must either tell you or say "I don't

recall" and seem a fool.

The essence of a well-framed question is that it is

understandable and that it is precise. The witness must

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understand the question in order to give you any answer, much

less the one you are seeking. The question must be precise or

the answer will not be precise. Vague questions beget vague

answers.

DEFENDING A DEPOSITION

The mistake inexperienced lawyers most often make in

defending a deposition is to believe the defense begins when the

first question is asked. By that time, the majority of the

defensive work should have been completed.

Foremost in defending a deposition is preparing your

client to testify. That can be done effectively only by taking

your client's deposition yourself in a practice mode. It is

appropriate to tell your client how to testify. It is not

appropriate to tell your client what to testify.

The method to use is to question your client much as

you expect the cross-examiner to question and to break regularly

and give instructions as to how the witness may better present

himself. For example:

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 Q. Did you call the insurance company on January 15,

1979?

A. I guess so.

BREAK (off the imaginary record).

Lawyer: Did you or did you not call the insurance

company?

Client: Yes, I did.

Lawyer: Why did you say "I guess so."

Client: I dunknow. I say that a lot. Besides, I'm not

sure of the date.

Lawyer: Check your appointment book right now. Is that

date right?

Client: Yes, it is.

Lawyer: Do not say "I guess so." Guesses are n9t

evidence. Say "Yes," "No," or in this case

"Yes, but I'll have to check the date precisely."

Now that you have confirmed the date in your own

mind, let's go back on the record.

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 Q. Did you call the insurance company on January 15,

1979?

A. Yes.

All of the important areas of the forthcoming

deposition should be handled in this manner. Once the

prospective deponent gets the feel of it, some of the less

important areas can be shortened or skipped.

Even with this extensive preparation, your client is

liable to wander now and then. Suppose a portion of his

testimony goes like this:

Q. Did you call the insurance company on January 15,

1979?

A. I dunknow.

Do you take him on direct and rehabilitate? It depends.

Conventional wisdom is that you only can be hurt, not

helped, at your client's deposition. Therefore, you never

question your client at his own deposition. A deposition

without a disastrous admission is a victory. Your own direct

evidence, the heart of your case, can be proven at trial through

the witness exclusive of the deposition.

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 But suppose that the telephone call of January 15 is

the heart of your case. To leave the record bare now may

reflect on your client's truthfulness (or intelligence) at

trial. Therefore, under these circumstances, it is probable

best to take the witness on direct at the conclusion of the

deposition and place the appropriate testimony on the record.

Another occasion when you would have to question your

client, of course, would be if he is ill or infirm and may not

be available for trial.

However, the general rule and the conventional wisdom

still obtain. Never question your own client at his deposition

unless you absolutely must.

It is a mistake to object often at a deposition.

Usually, either by law or stipulation, all objections except as

to form are stayed and you need to make objections only as to

form to preserve them. If the form of a question is ambiguous,

vague or compound, the answer often will be valueless since the

witness can get out of it at trial. Thus, when you are

defending, it is well to leave poorly framed questions alone

until you see how your client answers. If the answer is good,

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l~ave it. If it is not so good, say "Move to strike for the

purpose of interposing an objection as to form. Compound and

ambiguous." Then the questioner must reframe the question and

ask it again if he wants an answer he can use. Your client has

been alerted to listen to the reframed question carefully.

If the question is subject to a substantive objection

which is reserved, it is most often a mistake to object. Your

objection simply educates your opponent. For example, "Lacks

foundation" may cue your opponent to inquire into foundation to

your detriment.

The real use for objections in defending a deposition

is to alert your client or get him out of a jam. An objection

slows things down and can be framed in such a way as to direct

your client into safer harbors.

Hopefully, these tips will be helpful, but preparation

and practice are the keys. Preparation is the most important

and should be foremost on your mind. Practice can be increased

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by using sit-through depositions, where you are neither taking

nor defending, as a practice field. Listen to every question

and first frame an objection in your mind. Next, reframe the

question in your mind to make it more precise. Soon you will be

able to do it standing on one foot.

aba3

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