Back in the ice age when I first started, you had three trials in three different counties all on the same day. So you ran from one to the next, learning how to select a jury, give an opening, ask a question. Your ears would be boxed by the courthouse lifer whose tie told you he had spaghetti marinara for lunch. Judges would sarcastically toy with you, and you’d believe you were making progress until you’d ask one too many and the expert would slice you open with a cogent and devastating response. Eventually, bloody and battered, you acquired experience and expertise.
Now a trial is as rare as a New York politician not under indictment. Everything settles. Whether it’s good or bad is for the law professors and their footnotes. All I know is that you, the litigator, have to position the case so when you’re at your 10th conference, the judge turns to your adversary and snaps, “You better pay more, or else…” (which means she’ll schedule 10 more settlement conferences).
Depositions are the new trials. They determine how and when the case settles. Decades ago, depositions were relatively informal investigations that would last an hour or two. “I have nothing further,” you would announce, staring at the dirty, rotten liar. Just wait, you vow, after my cross-examination, you’ll wish you were never born. It was on the stand where the witness would sweat and squirm.
No longer. You can’t hold back the question, document, video that shocks the witness, destroying his credibility, revealing to the jury the fraud. Now, at the deposition, you have to shatter, or at least damage, the witness’s integrity for we realize this dispute will never see a courtroom.
So how do you do learn this skill, the ability to question a witness? Used to be late one afternoon, the managing partner would toss a file and order: “Hey, we need you to take this deposition tomorrow. You’re free, right?” At an early one, my older, polite adversary kept repeating: “Objection as to form.” I had no idea what he meant. “Form, what the heck is form?” I thought. Finally, I snapped: “What’s wrong with my form?” He patiently explained how all my questions were improper as my face reddened.
It’ll happen to you, too. Builds character. But here are some suggestions on how to take effective depositions:
Know everything. Facts, law, especially the subject. If you’re involved in a product liability lawsuit, you must comprehend how the product was created, built, marketed, installed, used. All that stuff. Why was this pill, this talcum powder developed? How was it tested? Its side effects, warnings? Those you’re questioning spend their lives in one industry, concentrating on one product, perhaps. They know way more than you.
The internet is a wonderful tool for research, but I’m old-fashioned. Better to sit with an expert and pick her brain. Early on, I was referred an obstetrical malpractice case and obtained the records. Looked like hieroglyphics, so I hired a nurse, who patiently deciphered the code and explained the procedures. At her kitchen table, I interrupted, asked her to expound until I understood. Much more valuable than via phone or email.
Be conversant with the lingo. Google every unfamiliar word, abbreviation. Listen to and practice the pronunciation of technical terms. If you mangle “spondylolisthesis,” and the witness corrects you: advantage, witness. If you sound confident and assured, the witness will be less likely to try to confuse and disguise through technical shorthand. It won’t hurt your self-confidence either.
Read transcripts. Become familiar with the process, the give-and-take. Grab a bunch and read them out loud as if you were conducting the depo. Listen to your voice so you become more relaxed, more assertive. Learn how to mark an exhibit, how to question using an exhibit. Study how an able questioner pins down what the witness saw or heard, or how she clarifies an answer that is vague or uncertain. Take note on how to handle objections, interruptions.
Learn the rules. In researching this article, I asked my good buddy and evidence guru, Magistrate Judge Jeff Cole, Northern District of Illinois, to advise me on the Federal Rules of Evidence that govern depositions. Of course I meant the Federal Rules of Civil Procedure. I knew that.
I may not be able to cite the rules, but I was never afraid to stop the stenographer after he said, “Usual stipulations?” If unsure, I would respond: “What are they? Could you read them to me, please?” Then on the record, I would agree or object, and have my adversaries do the same, so later there’s no confusion. Don’t be intimidated by opposing counsel smirking: “You don’t know what the usual stipulations are? Have you ever taken a deposition before?”
Study them all—the judge’s, the state, the federal ones. Ask those who are experienced their meaning and whether you should agree. Don’t be blindsided. Is there a time limit? If your adversary won’t permit an answer—“Outside the scope of the deposition”—is that proper? Can you immediately call the judge? If not, make a record, but without invective. “I’ve asked Mr. Jones a perfectly legitimate question and Ms. Smith has instructed her witness not to answer. This violates the rules. I will make a motion as soon as I return to the office.” And make the motion.
Have a goal. Strategize with others. Why this guy; why now? What’s the best and worst scenario? Usually it’s to gather information, fill in the blanks, evaluate the demeanor, credibility. In the past, we sometimes deliberately avoided deposing a witness because we didn’t want to make a record in case he moved to Florida before trial. That eventuality is mostly gone, but analyze who you’re questioning and what you wish to achieve. Before completing your questioning, take a break and determine if you’ve accomplished your purpose. If not, ask more questions.
Use an outline, but listen. If you’re young, write out each question: “What is your name? Have you ever been known by any other name?” I did. That way when I’d become flustered, I could read the next question. The problem is, of course, that this doesn’t promote flexibility, so when the witness gives an unexpected answer—admits a conviction, the suspension of his license, there’s a tendency to return to the next question, rather than: “Tell us the circumstances regarding the suspension of your license.”
So, when first beginning, I had a list of questions, and an outline. I’d use the outline when questioning, but consult the list during a break to ensure I didn’t forget anything. This isn’t figure skating where you get style points. All that matters is what’s on the record, not if you act or look like a dweeb.
Perhaps the most difficult is to listen to the answer and react. A partner once confiscated a young lawyer’s outline in the middle of the deposition because she failed to follow up. Take your time. If you hear something you didn’t expect, pause, and if unsure, have the reporter reread the question and answer. Go where the witness takes you. Be curious. If the witness sounds uncomfortable, hone in and explore.
Break down an answer into many parts: You said you had a meeting. What time did it begin? How do you know? What time did it end? How do you know? Who was in the room at the beginning of the meeting? Who was in the room at the end? Was anyone on the phone? Anyone enter during the meeting? Leave the room? Are you certain? Anyone else ever communicate with the people in the room at any time during the meeting? And on and on. Then I’d always sum up. “From the beginning of the meeting to the end of the meeting on June 11, 2017, the only people in the conference room on the 21st floor were you, Thomas Walsh, and William Drago, is that correct?”
Some witnesses love to tell you how smart they are. They wish to teach, explain. Let them. Ask open-ended questions: “Tell me how that works…Tell me what you did…You thought of that? Wow! How did that come about?” The more they yap, the more you know, and the better the chance the witness divulges a contradictory statement. Take notes, then dissect the testimony and insist on a detailed explanation. Don’t be afraid to ask the stenographer to read back testimony even if everyone groans. Go where the witness leads; then return to your outline.
Depose everyone. In a medical malpractice case, we represented the family of a young father who died as a result of complications from a perforated bowel that occurred during a hernia repair. We deposed every person who had contact, but all, supported by the medical chart, denied error. After a dozen depositions, our adversaries mocked us and threatened sanctions for harassment. Finally, we questioned the operating room clerk whose job was to record all medical equipment used for billing purposes. Each item had a sticker with a unique identifier that would be affixed to the log. He showed us that multiple mesh stickers were used during the surgery, meaning that the first mesh failed and the surgeon had to implant a second, during which the bowel was perforated. All this was previously and repeatedly denied. The case settled shortly after we received the transcript of the clerk’s testimony.
Relax the morning of. Go for a run. Eat healthy. Listen to Sinatra. You’ll be fine.
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