You’ve been asked to take a fact witness deposition. Where do you start? Fact witness depositions can present challenges such as learning the case-specific and court-specific rules for your deposition, getting through a large number of documents in a limited time, and budgeting time to cover all relevant topics—all while dealing with an opposing attorney who may try to take advantage of your inexperience. While this article is not meant to be an exhaustive list of all the things to consider when embarking on your first fact witness deposition, here are some pointers to help the deposition preparation and deposition go more smoothly.
Details Matter—Familiarize Yourself with the Applicable Rules
At the outset, when preparing for the deposition, be sure to pull the applicable court order or rule governing depositions in your case. In some jurisdictions, in the absence of a court order, the court department handling the litigation will have rules posted on its website governing the discovery process, such as depositions, or the local procedures may apply. Knowing these rules at the outset is crucial because it will color the rest of your preparation for the deposition. For example, if the judge’s order mandates that all depositions cannot exceed three hours, that will affect the length and scope of your deposition outline and force you to refine the topics to only those crucial to your case. Details matter, including the location of the deposition.
Last, in addition to the rules specific to your case or by court order, you should be familiar with any local quirks and rules for depositions in your jurisdiction. Unfamiliarity with these rules is an easy way for opposing counsel to detect inexperience. If they sense inexperience, they may try to take advantage of it. Anyone who has recently taken a deposition in Southern California is familiar with the “usual stipulation” that is rattled off at the end of a deposition. The most experienced attorneys are able to recite the stipulation off the cuff. Less experienced but prepared attorneys will have the stipulation written down at the end of their outline. In Southern California, you do not want to be the attorney who does not know what the stipulation is. The bottom line is that you want to make sure that you have checked all the local rules in your jurisdiction.
Thorough Investigation Can Reap Rewards
When preparing for a deposition, do not underestimate the power of good investigation and detective skills in uncovering crucial facts about the witness not otherwise available in the pleadings. Social media—which are worthy of a separate article—have an abundance of information about a fact witness’s background, affiliations, and interests, and can often include information that will support your themes or undermine your opposing counsel’s theories. Facebook, Instagram, and other social media websites may also have postings and comments regarding a plaintiff’s claims and claimants that should be considered as well. Pictures and comments on social media can sometimes expose weaknesses or factual inaccuracies in a party’s claims or defenses. Including such information during a deposition can strengthen your case for trial or settlement. Investigating a witness’s prior involvement in lawsuits can also be informative. Perhaps your witness has recent or pending bankruptcy proceedings that may be fueling the lawsuit or a criminal history related to the claims in the case. Even if such an investigation does not end up in your deposition outline, thorough investigation will invariably inform your deposition strategy and approach.
Know and Organize Your Documents and Exhibits
In fact witness depositions, attorneys often have a plethora of documents to go through with the witness. The deposing attorney should review and know all the documents relevant to the fact witness being deposed. This includes all references to the fact witness in plaintiff fact sheets, discovery responses, the complaint, other witnesses’ depositions, and other case documents. The deposing attorney should also go over all of the documents the witness brings to the deposition, as requested in the notice of deposition or other document requests, and mark such documents as exhibits. In addition, the deposing attorney should go back and check whether the document requests propounded before the deposition or plaintiff fact sheets encompassed everything needed for the deposition or whether a further document request or subpoena is needed before the deposition. Ideally, the deposing attorney would receive all the relevant documents weeks before the deposition date. If this involves a subpoena, you should budget for the subpoena response time in the jurisdiction, as well as a few additional weeks as a buffer to prepare and serve the subpoena and account for delays while the witness is gathering the requested documents.
So you have the stack of documents for your deposition—then what? While you are reviewing documents related to the witness, take the extra time to organize the documents in the order you intend to raise them with the witness—such as by incident, chronologically by date, or whatever method is appropriate. Fumbling around with a stack of potential exhibits during the deposition is frustrating and takes away valuable deposition time. Further, it throws attorneys off their rhythm and train of thought in asking questions and developing case themes, and it can fluster even more experienced attorneys. The more documents and potential exhibits you have, the more it becomes crucial to organize them beforehand.
Use Your Outline Wisely
Your deposition outline should be used as a guide and checklist, but be prepared to stray from your outline when appropriate. Chances are that your first deposition as a young attorney will be of a relatively minor player in your case. Regardless of how minor the deposition might be, if you are like most people, you will be nervous for your first deposition. This is where your deposition outline can really help you. Being nervous could cause you to forget to ask certain questions. A deposition outline can be your saving grace. If you have adequately prepared for your deposition and know what your goals are going into the deposition, your outline should include all the key testimony you should strive to go home with at the conclusion of the deposition. And if you are thinking about the deponent’s answers and not being chained to your outline, you may also walk away with other information you may not have expected.
A common mistake made by young attorneys is that they do not think to stray from their outline. While you need to make sure that the deponent’s answer was responsive to your question, you should also be aware that the deponent’s answer may open another line of inquiry that you had not anticipated (and therefore is not reflected in your outline) and could lead to other helpful information. If you are not truly thinking about what the deponent is saying and are simply mechanically asking questions from your outline, you may miss out on good information. Taking your time between questions can help you be thoughtful in any follow-up questions. Err on the side of a few awkward long silences if it helps you think about the prior response before moving on to your next question.
If you effectively follow an unanticipated line of inquiry, you can discover information that can be very helpful to your case. Do not worry about losing your place in your outline—you will have a chance to review your notes and cover anything you may have missed.
Know How to Deal with Inappropriate Conduct by Opposing Counsel
To prevent being bullied by opposing counsel and to increase your confidence, you need to know and understand the permissible objections. Opposing counsel may try to intimidate you, as a young attorney, and get away with as much inappropriate behavior as you let them. Knowing the permissible objections will not only prevent improper conduct but will also make you feel, and come across as, more confident.
An example of common improper conduct during a deposition is speaking objections made by a deponent’s counsel. This can be a not-so-sneaky way of coaching the witness about what to say. For example, you may ask an open-ended or broad question of the deponent. Instead of merely objecting to the form of the question with “vague and ambiguous,” the deponent’s counsel goes beyond the objection and states that “the witness could not understand your question; it’s too broad.” Even if the deponent understood your question and could have answered, chances are that the witness understood from counsel’s “speaking objection” that he or she should say “I do not understand the question.” Nip this in the bud as soon as possible or your opponent will continue to make these objections.
Before the deposition, have a good grasp of when a witness can be instructed not to answer a question. Generally speaking, the only time a witness can be instructed not to answer a question is when the response is privileged. If the deponent’s counsel instructs the witness not to answer a question, immediately ask the attorney to explain the basis of the instruction and make a record of it. On the record, explain to the deponent’s counsel why you believe the response is not privileged and why the information is discoverable. For example, two questions that often trigger objections are “When did you reach out to your attorney?” and “Who referred you to that doctor?” If the plaintiff’s attorney objects and instructs the witness not to answer based on the attorney-client privilege, you should be able to articulate that those questions seek information that is relevant and speaks to the credibility of the witness. If the plaintiff’s attorney continues to tell the deponent not to respond, move on and you now have a basis for a motion to compel a response. Depending on the case or court rules, calling the judge or magistrate during the deposition to resolve the dispute may also be an option.
After the Deposition: What Next?
After the deposition, it is important to review the transcript to note any documents or information promised by the witness and to send a letter memorializing such requests right away. You may also have learned of additional witnesses to depose or documents to gather, and those can be added to your case tasks as well. Set a calendar reminder to also review the errata sheet signed by the witness when it is available, and know the local rules and law regarding objections to errata sheet changes. In addition, don’t forget to provide a summary of the deposition to the other attorneys working on the case with you on behalf of your client, and send along a summary of key points to the client as well. Afterward, circulate a lengthier, robust deposition summary for the case file and the larger team with your impressions of the witness and key testimony from the deposition.
Remembering the Big Picture
A final and important point that many young attorneys lose sight of is that you should be thoughtful about preparing for and taking a deposition. It is easy to fall into a trap of preparing an outline, reviewing the relevant documents, and reading straight from your outline during the deposition. But be sure to zoom out and remember the purpose of what you are asking and doing. What is the goal of this deposition? How do I authenticate this document? One helpful tip is to make a short list of the “must-get” testimony that you need to ask during the deposition and to revisit that list during breaks to hold yourself accountable to those goals. Also use breaks wisely to go over your notes, devise topics where follow-up questions are needed, and review closely any new documents the witness brings to the deposition. Knowing the bigger picture of how the deposition fits within the themes and endgame for your case will help you prepare and take the deposition, as well as posture you to ask follow-up questions and elicit testimony favorable to your themes. Keeping in mind the bigger picture of how the deposition fits within the larger puzzle of the case will help you take a more thoughtful deposition.
Natassia Kwan and Richard Tabura are associates at Greenberg Traurig LLP.