GPSolo Magazine - March 2004

Trial Practice
Showing Your Hand: A Counter-Intuitive Strategy For Deposition Defense

Anyone who litigates “by the book” is familiar with the standard advice for defending depositions: Do everything you can to limit the information given to the other side. After all, a deposition is a discovery device used in preparation for trial. When the other side takes a deposition, they are, by definition, seeking information that might be used to bolster their case. Because the goal of defending a deposition is to minimize the other side’s benefit, the presumptive strategy is to withhold as much as possible, within the confines of the rules.

There is a compelling logic to this approach. Information that may eventually become evidence is the currency of a trial. Whoever has the most information is at a substantial advantage. Consequently, lawyers should want to find out everything the opposition knows, while keeping all of their knowledge to themselves. Because the objective of a successful deposition is to obtain information, the objective of a successful defense must be to deny it. By unnecessarily sharing knowledge, a lawyer loses the advantage of having it.

Deposition responses depend on the particular questions asked, with no general duty to volunteer or expand— hence the lawyer’s usual admonition that the witness provide only the shortest possible answers, without explanation or elaboration. If opposing counsel wants more information, it’s their job to make further inquiry.

Questioned about this assumption, most attorneys will respond that their strategy is to surprise the other side at trial. Why allow the opposition to prepare its cross-examinations, or set up impeachment, or search out other witnesses, or otherwise patch up the holes in their case? These objections to disclosure and others like them would be persuasive if a substantial number of cases actually went to trial. In a practice environment where trials are predictably frequent, there would be great reason to design one’s pretrial strategy primarily on the basis of anticipated trial tactics. Today, however, actual trials in civil litigation are few and far between. Although it is debatable whether this is good or bad from the perspective of social policy, it is an inescapable reality.

Although no competent lawyer would neglect trial preparation, it is surely the case that depositions are most likely to be used as negotiating tools rather than trial bombshells. This, in turn, should lead to at least a partial reevaluation of “by the book” deposition tactics. Negotiation theory posits that the strength of one’s position is a major determinant of the outcome. The acronym for this is BATNA: best alternative to a negotiated agreement. The better your perceived BATNA, the better your negotiated result. Of course, the opposing party cannot be intimidated by your BATNA unless they know about it. Thus, a good deal of any negotiation must be devoted to a detailed description of your powerful case. And what is it that makes your case so compelling? One factor would certainly have to be the strength of your witnesses and the quality of their expected testimony, leading to the likelihood that you will prevail at trial.

Negotiation theory indicates that you would want the other side to know about your witnesses well in advance of the trial, the better to influence their settlement posture. Don’t prepare your witnesses to give short, unrevealing answers; encourage them to tell what they know, explaining why you represent the winning side.

This proposition is discordant. Secrecy, not disclosure, is the animating principle. Moreover, there are good reasons to ask witnesses to keep their answers short. Short answers can “simplify the witness’s job,” thereby reducing the burden of the deposition. Freed from the need to be thorough or explanatory, the witness can concentrate exclusively on accuracy.

The “shortest answers” approach is no doubt essential with witnesses who are anxious, undependable, or ill-prepared. With others, however, thorough preparation may be sufficient to create an adequate comfort level with the process. After all, they will have to be prepared for direct and crossexamination if the case goes to trial. Recognizing that the deposition may well function as a substitute trial, it may make sense to engage in that preparation sooner rather than later.

This proposal rests on two related premises. First, concealing information is less valuable than most lawyers believe. Second, it is often advantageous to inform the opposition about the evidentiary strengths of your case. Each premise is somewhat counterintuitive and therefore subject to obvious questions.

What about the smoking gun? The first premise is that lawyers exaggerate the importance of concealing information from the opposing side. But isn’t there some information that truly needs to be protected?

In fact, smoking guns are rare. And absolutely critical information is usually so important that both sides have sufficient incentive to ferret it out, notwithstanding evasive tactics in deposition defense. Further, even in cases where there is a smoking gun, it is astoundingly risky to expose the witness to deposition in the first place. The better approach would be to settle these cases before they ever get to the deposition stage.

In most cases, however, there are no such killer facts to worry about. There are simply positive facts and negative facts. Very few items of information are the exclusive knowledge of a single witness. Consequently, even successful efforts to divert one deposition will not ensure that the information is ultimately suppressed. Moreover, most such efforts merely delay rather than blunt the inquiries.

Can the other side really be influenced? In deposition practice, lawyers have come to expect a certain level or recalcitrance from a wellprepared deponent. Most deposition books recognize that witness evaluation is a crucial aspect of the deposition process. The witness’s performance is recognized as crucial. It must follow that the content of the witness’s testimony is as important as perceived credibility. In negotiation, it is important to separate bluff from strength. It is not difficult to imagine that counsel’s willingness to let a deponent speak might quickly be recognized as a sign of confidence. Thus, revealing information could eventually be recognized for the assertive, perhaps even aggressive, tactic that it is.

Conclusion. As most trial advocacy texts explain, direct examination is usually far more important than cross-examination. Direct is the very fulcrum of the trial, the heart of the case, the opportunity for counsel to present the theory and tell the story. Why, then, do we routinely attempt to conceal our witnesses’ forthcoming answers from opposing counsel? Standard deposition defense strategy has turned the discovery process into a guessing game or treasure hunt, when it might more profitably resemble a preview of direct examination. To be sure, there is no one-size-fits-all deposition tactic for every situation. Nonetheless, it is an empirical error to treat deposition defense as though its primary purpose is to prepare for trial. Instead, the deposition should be recognized as a critical stage of an ongoing negotiation.

Steven Lubet is professor of law and director of the Bartlit Center for Trial Strategy of the Northwestern University School of Law in Chicago, Illinois.

For More Information About The Section Of Litigation

- This article is an abridged and edited version of one that originally appeared on page 38 of Litigation, Winter 2003 (29:2).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/litigation/

- Periodicals: Litigation, quarterly journal; Litigation News, bimonthly newsletter; Litigation Update, monthly e-mail newsletter; committee newsletters (all Section members may join three committees at no additional cost).

- Books and Other Recent Publications: More than 30 titles in print, including Questions from the Bench; Effective Appellate Advocacy; Examining Witnesses, 2d ed. ; Model Witness Examinations, 2d ed .; The Trial Lawyer: What It Takes to Win; Internal Corporate Investigations, 2d ed. ; Fighting Injustice (Michael Tigar); The Attorney-Client Privilege and the Work-Product Doctrine, 4th ed. ; The Winning Argument; Persuasion: The Litigator’s Art; The Litigation Manual, 3d ed. ; McElhaney’s Trial Notebook, 3d ed.; Model Jury Instructions: Construction Litigation; Effective Depositions; Civil RICO, 2d ed .; Environmental Litigation, 2d ed. ; Lawyers and Reporters; Alternative Dispute Resolution.

 

 

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