For those of you who are thinking, accurately I might add, “So few cases go to trial,” you still need to shut those doors. Your summary judgment motions will benefit. Judges cite deposition admonitions when they detect parties trying to create a “sham fact issue” in counter-affidavits. For example, “At the deposition, Josh acknowledged that he knew if he did not understand a question that was put to him, he should say so. (Depo., at 6–7.)”
In another, the court stated, “There is no indication of genuine confusion in his answers during the deposition…Therefore, the affidavit will be disregarded as an impermissible attempt to create a sham fact issue.” Each of these doors needs to be shut and locked. The admonitions need to be separated. You must get a clear, verbal answer. You must ask the question as if it really matters—because it does.
Your tone with the admonitions works on many different levels. Your care with the admonitions conveys that this is serious business. It is not just a rote exercise that you must get through before you get to the meat of the deposition. The care you take conveys to opposing counsel and their client that you are preparing for trial or a possible dispositive motion. If you ever play back the admonitions to a jury or a judge, they will have more impact if you treat the admonitions as important. If they are done well, everyone will hear the doors slamming shut.
Finally, go one step farther and “prime the pump” to get the deponent talking. After all, that is your goal. After you ask, “If you don’t understand a question I ask, I need you to let me know. Will you do that?” follow up with “So, if I ask a question that you don’t understand or confuses you, what are you going to do?” This gets them talking and really puts an unbreakable padlock on the door marked “I was confused.”
Doors to Open
The number of doors to open will depend on the complexity of the case, the number of witnesses and documents, and the time period involved. In your trial notebook, you have already placed labels on many of the doors. The tool I used was the three-ring binder that had the major topics on separate pages so I could make a note for follow-up if necessary.
I like the hallway memory palace because it gives a structure to the examination. The first question is whether I go all the way down the hallway and open every door just to see how large each room is or, when I open a door, do I thoroughly explore that room before moving on to the next? Going all the way down the hallway gives me some idea of how much I must explore. Addressing each room as I go gives me confidence that I have completely explored that topic before I move on. The approach you take will depend on the case. The hallway helps you structure the exam regardless of which approach is taken.
For example, you learn that there were three meetings on three different dates involving the issue in question. You put those dates on three different doors. Now, you can continue down the hallway to explore all telephone conferences, emails, texts, documents, etc., to get an idea of the scope of contact between the parties. Or you can start with the first meeting and fully explore who was there, what was said, or if anything was recorded.
You don’t fully shut a door until you are confident that you have fully explored that room. In addition, a door opened later may cause you to revisit that room.
If we are going to have a hallway, we might as well decorate it with something useful. The wallpaper I like to use is the calendar. I do not think you can adequately prepare a case for trial unless you start very early to create a timeline. Then you must place this timeline on an actual calendar. Only then does the case truly come alive for you.
Having an actual calendar at the deposition is crucial. Let’s say the witness claims that he did something around 7:00 p.m. on a certain date. You look at your calendar. You see that date is a Friday. A Friday before a three-day weekend! Only by having the calendar does it prompt the next question. “Tell me, why were you in the office at 7:00 at night before a three-day weekend?”
By placing the events on a calendar, you see when events occurred but also, perhaps just as important, the gaps between events. When I did insurance defense work, my mentor told me to always explore any gap between the time of the accident and when the plaintiff sought medical treatment. It was almost a Yoda-type mantra of “live in the gap” because anything done in the gap was arguably more important than seeking treatment.
In one case, I noted a three-hour gap between the accident report and the emergency room admission. At the deposition, I explored this gap and discovered that the plaintiff had gone to his mother’s house, showered, and then drove back to the scene to recover a three-piece box of chicken he had purchased for $3.95 at a gas station so he wouldn’t be hungry if he had to wait at the emergency room. Explore the gaps.
The first line of my opening statement in that case? “So, ladies and gentlemen of the jury, what was the first thing on the plaintiff’s mind after the accident? Was it getting to the emergency room? No, it was going back to the scene to retrieve and eat (short pause) a $3.95 box of chicken that he bought at the Quik Stop before he went (long pause) to the emergency room.”