By Robert A. Clifford
Trials are won or lost at the deposition stage.
And it’s tiring to see some lawyers assiduously prepare for trial while putting forth little or no effort to prepare for a deposition. The real work begins prior to talking with the first witness, perhaps years before the trial date.
Good trial lawyers understand this. And good trial lawyers generally take good depositions. They are masters in the art of discovery. They understand the bigger picture of how a deposition fits into the trial process.
They realize they must enter the deposition with a plan – it must have a beginning, a middle and an end. It must have a theme. It must have a cause and an effect.
The challenge of the deposition is to use it to make your case. It is at this point in the process that you best begin to formulate a trial strategy. Know where you want to go and have a sense of what the answer is going to be. Begin testing inferences and hunches.
The deposition never should be a series of light bulbs going off in the examiner’s head. The object of most depositions is not to learn new information. It is to find out what evidence can be limited at trial.
The lawyer does this by, first, becoming intimate with the facts and by, next, drawing inferences from those facts. You demonstrate your credibility with the witness and ultimately at trial through your command of the facts.
You also must know your idiosyncrasies. Read your own transcripts, not just for content but also for style. See how you can make your questions more precise and not subject to multiple interpretations. All roads lead to trial; and, therefore, you may need to rely upon the precision of your deposition questions at the trial.
And you must stay focused. This can be difficult when there are a lot of lawyers involved. I have been at depositions with 40 attorneys in the room. Staying focused means ignoring their objections.
That means don’t be deliberately argumentative. Ranting and raving is frequently regarded as a sign of weakness. Every time you argue, the other side stands to gain valuable information about your position, which is preserved in the record. A deposition should not turn into a debate between lawyers. It is not the time to score rhetorical points against the other side.
You need to be aggressive. When you are on the attack, you have to expose the witness’ bias and get admissions. Don’t let the witness off the hook until you get what you want. Exhaust the areas the deponent knows as well as those he doesn’t know. Get the witness to commit to a version of the facts.
Are you prepared to deal with the overtly hostile witness? What about ebullient friendliness? What about any attitude in between? You set the pace. You must maintain control. Much may be at stake, and emotions may be highly charged. But try to establish a conversation with the witness, making him or her comfortable to obtain the truth. A friendly, helpful demeanor can encourage the witness to be responsive.
Video depositions provide an interesting challenge in this regard. Generally, I try to plan for the use of one or two video depositions at each trial. When witness scheduling at trial is not flowing properly, the videos fill in a time gap without wasting the jurors’ time. Jurors appreciate your concern for condensing the testimony in as short a time as possible.
But before taking a video deposition yourself, know your own style. Long pauses or frequent “OKs” are lost in print. On tape, these habits can become aggravating.
Also, if you are facing an attorney who constantly whispers responses to the witness so that the testimony is not spontaneous, a video dep is a sure cure to end the unfair coaching.
Deposing an opponent’s expert poses some peculiar problems as you try to gain insight into your adversary’s theories of the case and some views on important pieces of evidence.
Frequently, it is the examiner’s job to demonstrate the inadequacy of the expert’s expertise, investigation or performance. I think achieving this goal particularly is crucial with the so-called “professional” witness. Typically this expert is over-extended – testifying in San Francisco yesterday, in Dallas today and in Cincinnati tomorrow. This expert usually lacks fluency of the facts.
One time I found myself in the uncomfortable position of flying to Seattle just to turn around and catch a plane with my expert to review the facts of the case. The plane trip was his only time available before trial. And that is the lawyer’s job. A lack of familiarity with the facts on the part of the expert is the lawyer’s fault.
One further note on experts: Check their credentials. In the past I tended to believe a professional if he or she made a claim about their backgrounds. But no more.
In the last five years, I have noticed inflated and exaggerated statements on curriculum vitaes and resumes. It may be grunt work to uncover the discrepancies, information that generally should be held off until trial, but it could pay off because the name of the game is credibility.
Above all else, lawyers win cases on credibility. And building that credibility starts at the deposition stage.
With courtesy, fairness and professionalism, justice will emerge, assuring the truthful disclosure of relevant facts.
It must be remembered that litigation ultimately is a search for truth. It is not a battle to the death.