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January 25, 2018 Articles

Tips for Young Lawyers: Fact-Witness Depositions in Mass Tort Cases

By Natassia Kwan and Richard Tabura

So you’ve been asked to take a fact-witness deposition in a mass tort case. Where do you start? How is this deposition different from fact-witness depositions in single-plaintiff cases? Mass tort depositions present some unique procedural rules that may catch some lawyers by surprise, especially attorneys new to mass torts. They also 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, budgeting time to cover all relevant topics, all while dealing with an opposing attorney that may try to take advantage of your inexperience. This article is not exhaustive of considerations that must be made for prescribing physician depositions, which would deserve an article of its own. This article is also not meant to be an exhaustive list of all the things to consider when embarking on your first fact-witness deposition in a mass tort case. Nevertheless, here are some pointers to help your first fact-witness deposition preparation and deposition go more smoothly.

Details Matter: Familiarize Yourself with the Applicable Mass Tort Rules
At the outset, when preparing for the deposition, be sure to pull the applicable court order or rule governing depositions in your mass tort case. In multidistrict litigation and other coordinated proceedings, there may be a case management order, pretrial or scheduling order, stipulation, or other applicable rule governing the length of the depositions, permissible objections, how to resolve disputes during the deposition, and other guidelines regarding depositions and discovery. In some jurisdictions, in the absence of a court order, the court department handling the mass tort or complex litigation will have rules posted on their websites governing the discovery process, such as depositions, or the local procedures may apply. Knowing these rules at the outset is crucial, because it will determine 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. In mass tort cases involving hundreds (and sometimes thousands) of plaintiffs, sometimes a court order will require that a deposition take place within a certain radius of the fact witness’ residence. So even when selecting a location for the Notice of Deposition, it is important to be cognizant of those rules to avoid the deposition notice being deemed improper due to your choice of an improper location.

Lastly, in addition to the rules specific to your mass tort case or by court order, you should be familiar with any local quirks/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 fact-witness 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 is worthy of its own separate article—has an abundance of information about a fact witness’ background, affiliations, and interests and can often include information that will support your themes and/or undermine your opposing counsel’s theories. In mass tort cases in particular, there are sometimes additional online resources such as a website or blog dedicated to the product or claims at issue, or a section on the plaintiffs’ attorney’s website regarding the mass tort. Facebook, Instagram, and other social media websites may also have postings and comments in regard to the mass tort 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 deposition can strengthen your case for trial or settlement. Investigation of court dockets regarding a witness’ prior involvement in lawsuits can also be informative. Perhaps your witness has recent or pending bankruptcy proceedings which may be fueling the lawsuit, or a criminal history related to the claims in the case, or even has brought suit before over the same injuries. 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 for mass tort cases, attorneys often have limited time but 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 witness’ depositions, and other case documents. The deposing attorney should also go over all 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 in 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. Mark exhibits in advance and be sure to have enough copies. 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 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 depart from your outline when opportunities arise. As a young attorney, chances are that your first deposition 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 result in you forgetting 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 after 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 not being prepared to stray from a preprepared outline. Not only do you need to make sure the deponent’s answer was responsive to your question, but their answer may open other lines 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. Unless on a strictly timed deposition schedule, 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. As a young attorney, opposing counsel may try and intimidate you and get away with as much inappropriate behavior as you let them. Not only will knowing the permissible objections prevent improper conduct, it will 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 what to say. For example, you may ask an open-ended or broad question to 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, etc.” Even if the deponent understood your question and could have answered, chances are that he understood from his/her counsel’s “speaking objection” that he/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 on when a witness can be instructed not to answer a question. In general, the only time a witness can only be instructed not to answer a question is when the response is privileged. Relevance is not a valid basis for refusal to answer. 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 them 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?” or “Who referred you to that doctor?” If the plaintiff’s attorney objects and instructs their client 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 mass tort case with you on behalf of your client, and send along a summary of key points to the client as well. Afterwards, 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. If you deviated from the deposition outline, you may want to suggest modifying the outline.

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 your deposition. It is easy to fall into a trap of preparing an outline, reviewing the relevant documents, and reading straight off your outline during the deposition. But be sure to zoom out and remember the purpose for 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 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. While not fatal to the deposition, 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.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).