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November 03, 2011 Articles

Preparing for and Taking an Effective Deposition, Part 2

By Ladd Sanger

Part one of this article, published in the Summer 2011 issue of Mass Torts Litigation, discussed how best to prepare for a deposition. Part two focuses on conducting the deposition.

Conducting the Deposition
After the witness is sworn in, but before the deposition actually begins, discuss any stipulations with opposing counsel and reach any necessary agreements. More often than not, attorneys make only passing reference to the “usual” stipulations and agreements. Taking a minute or two to firmly establish them for the record can save you a great deal of grief later and make for a smoother deposition. For example, what types of objections are permitted by the governing rules? What actually constitutes an “objection to form”? Take the opportunity to establish that an objection remains proper if made reasonably soon after the witness answers. This discourages unnecessary interruption, allowing the court reporter to fully capture each statement for the record. What rule governs the authentication of documents? Any agreements made need not be limited solely to the current deposition, either. If you have a series of depositions to conduct, establish that all will be conducted in keeping with the same stipulations and agreements.

Once you are on the record, remember that everything you say will be recorded and, for that reason, you will need to present a professional demeanor. Try to limit the deposition record to pertinent testimony and the important discussions among counsel. A great deal of the dialogue between attorneys has absolutely no place being on the record. If an informational discussion off the record leads to an agreement among counsel or anything that warrants preservation, you can always restate it concisely once you are back on the record.

Many attorneys will begin by bombarding the witness with an overly lengthy explanation of the workings and strict decorum of the deposition process. Aside from using up your limited time to present your questions, the high formality may leave many witnesses feeling intimidated. A concise and unpretentious preamble covering the witness’s prior deposition experience, an understanding of his or her duty, and your willingness to clear anything up throughout the day accomplishes all of the same. In addition, the vast majority deponents have been thoroughly briefed by their own attorney. Take note, however, that nonparty witnesses may prove to be a frequent exception to the rule.

It is important that you set the tone for the deposition by being cordial to the witness and speaking loud enough for the reporter to hear clearly. When you ask your questions, make eye contact with the witness—do not read questions from your outline. If necessary, first read the question to yourself silently, then make eye contact with the witness and ask the question. Always wait for the witness to complete an answer. Occasionally, a witness will pause and then continue to give important information. Never start another question until you are sure the witness has completely answered the previous one. If the witness nods or gives other unspoken responses, you should explain what the witness is doing so it is captured in the record.

In most depositions, a relatively simple pattern of questioning can be used quite effectively. Begin with open-ended questions to encourage the witness to relax and provide narrative answers to your questions. This is the most important time for the attorney to be observing the witness’s behavior, opposing counsel’s objections, and the answers given. Based on the way the witness is answering the questions, you should note any areas where you think the witness may have further knowledge that he or she is withholding or where the attorney appears to be overly defensive without a valid reason. Know that there is the tendency, however, to get bogged down in minutiae, especially when covering background information. Remember your purpose. What information do you absolutely have to get out of this witness? If the witness says something interesting, unhelpful, go on to a more productive topic.

Moving to the next level of questioning, narrow your focus to develop particular topics or address specific documents. You may need to use a combination of open-ended and leading questions to fully explore each subject matter area. In narrowing your questions, be careful to consider the effect of the subject matter on the witness. If you will cover a line of questioning that you know the witness will take exception to, reserve those questions for the end of the deposition. When the organization of the deposition does not require that you proceed in a particular order, there is no need to sour an otherwise cooperative witness with unpleasant questions any earlier than necessary.

Finally, use closure questions to pin down the testimony so that the witness may not change his or her testimony at trial. Do not let an evasive witness off the hook—stay with the line of questioning as long as it takes. However, do not “step on” your own answers: When you have arrived at a statement that’s almost ideal after a long and tedious struggle, seldom will the witness go further in your favor. Often the witness will come to better understand your goal and begin to tiptoe in the other direction. The same is true, if not more precarious, when revisiting the same line of questioning later—as the saying goes, “Save the cross for trial.” If you get inconsistent answers, leave them alone and do not give the witness the opportunity to explain them away. Depending on the type of witness you are deposing, you may want to consider asking the foundational questions first or cutting straight to particular topics and then picking up the foundational questions later in the deposition. Throughout the deposition, keep in mind the two primary ways that you might use the witness’s answers later: (1) as general information and (2) to refute any future variation or revision in the witness’s version of events or opinions.

During the course of the deposition, your questions will undoubtedly draw objection from opposing counsel, no matter how carefully framed or how extensively founded. If you do not know how to handle the objections properly, they will only result in wasted time, derailed lines of questioning, and incomplete answers. To take them in stride, you must limit objections to the proper format and know how to respond.

First—and often as stipulated to, but rarely followed—objections in a deposition are strictly limited in both format and content. The Federal Rules of Civil Procedure require objections to be “stated concisely and in a non-argumentative and non-suggestive manner.” Fed. R. Civ. P. 30(d). Many state procedural rules carry this requirement further, limiting objections to the exact wording permitted, for example, “Objection, leading”; “Objection, form”; and “Objection, nonresponsive.” E.g.,Tex. R. Civ. P. 199.5(e). An objection phrased any other way can result in waiver, sanction, or termination of the deposition. Id. The general principle is universal: objections are briefly stated for the record, and the deponent answers subject to the objection, which will later be addressed by the trial court. See, e.g., Eggleston v. Chi. Journeyman Plumbers, 657 F.2d 890, 892 (7th Cir. 1981); Tex. R. Civ. P. 199.5(e). Look to the procedural rules governing a given deposition for guidance and clarification whenever necessary.

Second, a working knowledge of deposition objections is essential to preserve the deponent’s testimony fully and to address improper objections made by opposing counsel, without bringing the deposition to a sputtering halt. Generally, it is best to ignore most objections, unless they raise a truly meritorious ground that needs to be cured on the spot. If they do, rephrase your question in a manner that avoids drawing the objection. If the grounds for the objection are unclear, ask for an explanation. Some jurisdictions require the objecting party to give a clear and concise explanation for the objection, or the objection is waived. E.g., Tex. R. Civ. P. 199.5(e). When faced with opposing counsel who repeatedly levies improper objections, remind counsel of the procedural rules (and perhaps your stipulations). If the objections continue, remind counsel that improper objections can and will be ignored. Let the witness know that he or she is free to ignore them as well and that it is proper procedure to do so. In this fashion, opposing counsel’s attempts at disruption and signals, if that is opposing counsel’s goal, may be greatly reduced. Your goal should be to stick to the rules and obtain your testimony, while maintaining proper decorum. If you do, the ramifications for opposing counsel are great, including waiver of objections, intervention by the court, and even justified termination of the deposition, while you will (eventually) obtain the witness’s testimony. See, e.g., Fed. R. Civ. P. 30; Tex. R. Civ. P. 199.5.

Use of Documents at a Deposition
Effective use of documents at deposition can be difficult without proper organization. A particularly effective method uses two separate notebooks: your deposition notebook (a three-ring binder with tabs dividing each of the documents you intend to use at the deposition) and a second folder filled with several copies of the same documents, with tabs corresponding to the tabs in your deposition notebook. The deposition notebook documents are annotated with your notes so that you can review each document with the witness, considering issues uncovered by your preparation and making additional notes as needed. The second folder, containing extra copies of the originals, allows you to have ready access to each of the documents and to present a copy to the witness, a copy to the defending attorney, and a copy to any other attorneys attending the deposition. This approach maintains the pace of the deposition by allowing each attorney and the witness to look at the documents simultaneously. Because you have already highlighted and annotated your copy of the document, you can efficiently ask the witness questions about the document and move on to another one. This approach also allows you to skip around among the documents without losing track of the order. In addition, with this method, your notes and annotations on the documents follow you from deposition to deposition, reducing the preparation required to question later witnesses on the previous witness’s testimony. It is also a good way to compile a master annotated document, keeping each witness’s comments on the same relevant documents and allowing easy integration into your case file.

Invariably, new documents or labeled existing documents crop up at deposition. If a witness brings previously unproduced material, have the witness explain what is being produced, precisely how it relates to his or her testimony, and why it was not produced previously (if applicable). Remember, you can always go off the record to review the document as needed. Take this opportunity to ask the witness again if there are any other relevant documents similarly not yet produced. Simply label or relabel these documents as you admit them, making sure to make a reference in your deposition notebook.

To be admissible into evidence, a document must be authenticated, subject to a hearsay exception, and in compliance with the best evidence rule. Authentication simply requires you to establish a witness’s familiarity with the document in that it is a true and correct representation of what the witness recalls. If you wish to offer a document for the truth of the matter asserted, you must lay a foundation that qualifies the document for an exception to the hearsay rule. One of the most commonly used exceptions for the admission of documents is the business record exception. Pursuant to Federal Rule of Evidence 803(6), and most corresponding state rules of evidence, you must establish that the document is a compilation of acts, events, conditions, opinions, or a diagnosis made at or near the time the events took place by or from information transmitted by a person with knowledge of the event or act and kept in a normal course of business and that it was a regular practice of the business to make such records. See Fed. R. Evid. 803(6); see, e.g., Tex. R. Evid. 803(6). Another popular hearsay exception is the public records exception under Federal Rule of Evidence 803(8) See Fed. R. Evid. 803(8); see, e.g., Tex. R. Evid. 803(8). Admission of a government report can lead to admission of more than just the government agency’s factual observations. In Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170 (1988), the Supreme Court held that a public record that qualifies for admissibility under the public records exception is admissible for not only its factual observations but also any conclusions or observations, so long as the conclusion is accompanied by the factual finding. A recorded recollection under Federal Rule of Evidence 803(5) is admissible if the document is a record concerning a matter that the witness once had knowledge of but now cannot recall being able to testify to fully and the document was made or adopted by the witness when the subject matter was fresh in his or her memory and the document correctly reflects that knowledge. Fed. R. Evid. 803(5); see, e.g., Tex. R. Evid. 803(5).

A negative foundation is used to prove that a document is inadmissible. To prove, you will need to establish that the witness lacks familiarity with the document or that it was not a practice to keep such documents in the ordinary course of business. See Fed. R. Evid. 901, 803(6); see, e.g., Tex. R. Evid. 901, 803(6). If the documents are notes, you should seek to establish that they were not made at a time when the subject matter was fresh in the witness’s mind or that the document is not a complete, true, and accurate representation of the material. See Fed. R. Evid. 901; see, e.g., Tex. R. Evid. 901.

Expert Depositions
General Considerations
An expert is a trained witness, and you should be aware that, for that reason, an expert will be difficult to impeach with deposition testimony. Instead of focusing on impeaching an expert, you should concentrate on walking the witness through everything he or she will testify to at trial and learn about the expert’s particular area of expertise. The goal of an expert deposition is to lock in all of the expert’s opinions and the underlying basis for the opinions, allowing you to determine whether the expert’s testimony can later be limited or to obtain rebuttal testimony from your own experts.

In addition to the expert’s opinions, you should examine his or her education and employment background. These responses will give you the background information that you may need for a Daubert motion. It also gives you information that you can use later to find materials to impeach the expert at trial. The topics you should discuss include memberships in professional societies; any materials or general articles written by the expert; prior deposition testimony; other cases that the expert has worked on including the attorneys’ names; and prior experience the expert has as an expert witness, including the case name and court.

To uncover possible bias, you should ask the expert how long he or she has been testifying on either a part-time or full-time basis, how many cases the expert is involved in, how many times he or she has given deposition testimony and testified at trial, how many of those prior cases have fact patterns similar to the fact pattern in the present case, and whether the expert previously testified on behalf of the same law firm or defendant. Throughout this line of questioning, look for any responses that may show a bias in a particular manner that you should further explore with more specific questions.

Finally, try to turn the expert into your witness. Always find those points on which there is an agreement. Then you can focus on the areas of disagreement and seek out the underlying cause: Do their experts make different factual assumptions or employ different methodology? Discover the root of the disagreement so you can have your expert show the logic behind his or her side of the analysis. Resist the temptation to argue with experts or challenge the basis for their opinions. Instead, give an expert free rein to answer your questions in a narrative and get as much information as possible. The more information you have from the expert in deposition, the easier it will be for you to impeach the expert at trial. You should also ask whether the expert has come across any material that is inconsistent with the opinions that he or she reached. Similarly, ask whether the expert has relied on any treatises or industry publications in forming his or her opinions and whether the expert’s opinions are consistent with those publications.

The 2010 Amendments to Rule 26
The recent amendment of Rule 26 of the Federal Rules of Civil Procedure brought significant changes to the conduct of expert witness discovery in federal courts. These changes seek to enhance counsel’s ability to protect their mental theories or impressions, while at the same time ensuring that an expert’s opinions and factual bases remain discoverable.

The 2010 amendments increase the protection of work product by (1) limiting the expert disclosure to “facts or data considered by the witness in forming” the opinions offered, excluding “other information” previously discoverable (Fed. R. Civ. P. 26(a)(2)(B)(ii) (as amended in 2010)); and (2) extending work-product protection to drafts of expert reports and other communications between counsel and expert (Fed. R. Civ. P. 26(b)(4)(B) (as amended in 2010)). This extension of protection, however, is not without limits. First, communications between counsel and expert are discoverable to the extent that they relate to expert compensation and when they identify facts, data, or assumptions provided by counsel that the expert actually relied on in forming his or her opinions. Fed. R. Civ. P. 26(b)(4)(C) (as amended in 2010). Second, the amendments place upon parties a new obligation to disclose a summary of the facts and opinions of nonprofessional experts who will offer some form of expert testimony (e.g., medical doctors or fire marshals). Fed. R. Civ. P. 26(b)(2)(C) (as amended in 2010).

The 2010 amendments to Rule 26 apply to “all forms of discovery,” including depositions. Fed. R. Civ. P. 26(b) advisory committee’s note (2010). However, neither Rule 26(b)(4)(B) or (C) shall otherwise “impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions.” Id.Note that the revisions are applicable to any suit filed after December 1, 2010, and may apply to suits filed previously, “insofar as just and practicable.” U.S. Supreme Court, Rule 26 Amendment Implementing Order (Apr. 28, 2010).

Depositions do not typically make or break a case; however, they are a valuable way to learn a great deal about the opposing party’s position while demonstrating your own confidence, professionalism, and level of preparation. Try to learn from each deposition you take, and over time and with experience, you will develop the techniques that work best for you. The most effective way I have found to learn from prior depositions is by spending some time afterward creating a brief summary. Consider the adequacy of your preparation, the effectiveness of your questioning, and the extent to which you realized your objective. Not only can you determine where to improve in general, but also you can easily identify the gaps that remain in the current case and address them through subsequent discovery. After you have had time to reflect on what you thought you asked and the answer you thought you received, you may be surprised by what the transcript reveals. By spending the time to summarize your own deposition, you will learn from your past mistakes and more consistently elicit the very testimony that you need to make your case.

Keywords: deposition, witness, questioning, expert testimony

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