Category Archives: depositions
Depositions are legal proceedings which are not typically officiated by a court officer. During such affairs attorneys can behave quite badly. Such behavior can range from simple rudeness to conduct that borders on criminal conduct such as threats of bodily harm or emotional charges to go outside and handle the matter like a man. Needless to say, you don’t want to be that guy. Only the trial court can legally terminate a deposition for abusive conduct by an attorney. Rule 30(d)(3) of the Federal Rules of Civil Procedure provides that a party may move to terminate or limit a deposition “on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses the deponent or party.” If the deposition is terminated you must immediately seek the trial court’s assistance and approval.
This not a course to chart unless it is justified. You and you client can be subject to sanctions and even disciplinary action for improperly terminating a deposition. See Rule of Professional Conduct 3.4. If you guess wrong and do not terminate the deposition properly, you can be responsible for paying the other party’s attorney fees. Smith v. Logansport School Corp., 139 F.R.D. 637 (N.D. Ind. 1991). Here is a famous example of things going south during a deposition courtesy of YouTube:
So be ready if abusive behavior occurs during a deposition. Act quickly and wisely… and remember don’t be that guy.
1. Tendencies of your expert: If you can obtain and read past depositions of your
expert to see not only what type of questions are asked but how he reacts. Does he ramble or
argue? Does he fail to listen to the question or dodge it? Is he argumentative or polite and
professional? You may want to run through some questions, especially problems so your expert
is ready to address them. If the expert is new to the practice, I would video tape the questioning
so the expert can see how he reacts objectively evaluate his performance.
2. Do not hide bad evidence from your expert, deal with it. If you hide bad
evidence from your expert, you will expose your expert to potential embarrassment. He may
even be force to abandon your side of the case because he was not prepared for what was coming
and unwittingly made imprudent concessions earlier in the deposition.
3. What does the expert consider authoritative as a learned treatise? This will
be asked. How will he answer the question? If at all possible, avoid doing the deposition in the expert’s office. It will only provide bookshelves full of ideas for authoritative materials to ask
and cross examine your expert about at trial
4. Screen your expert. Make sure you have already screened your expert’s curriculum vita in
advance for any bluster or bull not supported by the facts. Hopefully, this was done before you ever hired your expert.
5. Obtain Historical Medical Records. The prior medical history of a Plaintiff can
seriously undermine a case’s value and the client’s credibility. It is important to obtain all significant prior medical history from a client. If you don’t, the defense attorney will. Without a full medical history, a client is prone to make misstatements and create fertile ground for purposes of impeachment at the time of trial. Likewise, expert witnesses will be unable to address and deal with any potential weaknesses you might have as a result of any pre-existing medical condition or prior injury. While it is tempting to limit your pretrial production of records to those postdating the injury, it is better to do the investigation yourself ahead of time.
6. Prepare a Medical Chronology – A detailed medical chronology prepared ahead
of their deposition, will give you a means to identify and refresh the expert’s memory regarding past illnesses and injuries, and avoid making misstatements at the time of the deposition, or worse, at the time of trial. In addition, by reviewing the past medical chronology with your expert, you can address responses to the resolution of prior symptoms and/or problems.
7. Prior Lawsuits and Claims – It is important to promptly identify any prior
litigation your expert may have been involved in as either a litigant or as a witness. The prior proceedings can create a ready resource of impeachment through the use of pleadings, discovery responses and depositions. Failure to identify such easily verifiable information can also make it appear as if your expert is a liar. The prior litigation also provides background information on your expert that could lead to surprises.
8. Compound Questions – Compound questions are questions, which incorporate two questions in one. They are very deceptive and dangerous because a yes or no answer can be interpreted as an affirmative response to the underlying predicate. For example, “Do you beat your wife only on Tuesdays and Thursdays?” is actually two questions in one. The first question is, “Do you beat your wife?” and if yes, is it only on Tuesdays and Thursdays? Make sure your expert can identify an undisclosed predicate to a question which makes it compound in case you fail to object.
9. Summary Questions – Another classic approach to the compound question is to
summarize an expert’s prior testimony, and then ask at the tail end a yes or no question. Experts often focus only on the yes or no question, and forget that by answering the question without objection or clarification they are affirming the entire scenario outlined in the question. While you, as an attorney, should object to such questions, it is important to educate the expert on these problems as well, in case you fall asleep at the switch.
10. Box Questions – Questions in Absolute Terms – Questions cast in absolute
terms can also be a problem. Opposing counsel wants to limit your expert’s basis for his opinions and show that he overlooked or ignored some important facts. If he is attempting to exhaust your
expert’s knowledge of the facts on a topic, your expert should indicate “that is all I can recall at
this time.” This leaves an opening to refresh your expert’s memory and supplement or correct the answer through the errata sheet. Whenever an attorney uses such terms as, “Do you always” or, “Have you never,” they are attempting to lock your expert in absolute terms. There is nothing wrong with being absolutely sure, you just want to make sure that that is, in fact, the case. If there are exceptions, then the expert needs to avoid answering such questions in the affirmative. On the other hand, defense attorneys will use such absolute terms as a means of unnerving an expert and backing them off of their testimony. The point is, make sure if you answer in absolute terms, that you’re absolutely correct.
11. Milk-Toast Answers – The flip side of this is to water down answers with
qualifiers such as, “I think,” “I believe,” or, “In my opinion,” when you actually know the facts. Make sure your expert avoids using such terminology. It is better to indicate that you don’t know or recall than to guess or speculate. Once again, the primary rule is to answer truthfully and accurately.
12. Do not exaggerate – Don’t take a good case, try to make it a great case, and turn
it into a bad case. Do not be an advocate. Be an expert.
13. Remember you are a professional. Don’t respond in kind to impolite or rude
comments by opposing counsel. The only thing a witness has absolute control over is their behavior and demeanor. By emphasizing this point with your expert, you can both empower and relax them. No matter how rude or aggressive the other attorney is, it’s important for the expert to remain calm and composed. By doing this, the deposition will typically be shorter. When an opposing attorney senses he has drawn blood, he will simply bore in with more of the same. An expert can tactically overcome this by simply remaining calm. Likewise, the expert needs to be cautioned to avoid any sarcasm or insincere solicitous comments.
14. Identify and explain what items which are privileged – Another classic
question to unnerve a witness t that attorneys will often use is, “Have you talked too anybody about this case?” Sometimes, a witness will think that they’ve done something wrong by discussing their testimony in advance. The expert should be put at ease that there is nothing wrong with preparing for their deposition or meeting with you in advance. In fact, most jurors expect attorneys to meet with their witnesses, in order to properly prepare for trial or a deposition. Discussions with counsel are privileged as work product because they are communication with counsel. See Fed. R. Civ. P. 26(b)(4)(C). If the question is posed by opposing counsel and you fall asleep at the switch, you want to make sure that your expert seeks a clarification as to whether the attorney is, “Asking for information discussed with counsel.” If your expert has discussed the case with other persons, you want to identify this well in advance of the deposition. Some experts, especially teaching experts, will discuss pending cases during their lectures. I can recall one case where this occurred and the expert was impeached at trial with tape recordings of his lecture with devastating effect. Loose lips sink both ships and cases.
15. Review all evidentiary foundations – You should review the appropriate
foundational requirements for the admission of any records, tests, or other analysis which is not stipulated to by the opposing party. Remember under Rule of Evidence 703, your expert can
consider matters outside the evidentiary record at trial in reaching his opinion.
16. Standard of proof or level of confidence required – this distinction has
somewhat dissipated. However, a number of judges are still requiring use of the magic words.
Typically at the beginning it make sense to asked that you expert give his opinion in the case
based upon a reasonable degree of medical or scientific probability unless instructed otherwise.
Caution your expert to avoid using the phrase “possible” since it is legally meaningless.
17. Reliance on materials outside of the court record. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the
field. Federal Rule of Evidence 703. Typically, I would ask the expert ‘if in reaching his opinions and conclusions in this case, did he use only materials reasonably relied upon by persons in his field?
18. The Subpoena Duces Tecum Trap – Make sure any subpoena is dealt with well
in advance of the deposition. You should personally review with your expert all items sought
and insure nothing is “lost” or destroyed which is in existence at the time the subpoena is issued.
A privilege log should be prepared for any items withheld and a motion for protective order
sought if agreement cannot be reached on how to handle the subpoena. Blanket claims of privilege are not favored. The party seeking to avoid discovery has the burden of establishing the
essential elements of the privilege being invoked. United States v. Lawless, 709 F.2d 485, 487(7th Cir.1983). The claim of privilege must be made and sustained on a question-by-question
or document-by-document basis. Id., citing United States v. First State Bank, 691 F.2d 332, 335(7th Cir.1982); Matter of Walsh, 623 F.2d 489, 493 (7th Cir.1980), cert. denied, 449 U.S.
994, 101 S.Ct. 531, 66 L.Ed.2d 291. Spoliation of evidence by your expert in response to a subpoena can lead to sanctions, a contempt citation and an adverse instruction to the jury. Spesco, Inc. v. General Elec. Co., 719 F.2d 233, 239 (7th Cir. 1983); see also Adkins v. Mid- America Growers, Inc., 141 F.R.D. 466, 473 (N.D. Ill. 1992) (“In cases where evidence has been
intentionally destroyed, it may be presumed that the materials were relevant.”).
19. Give the shortest accurate answer… Remember a deposition is not a
conversation – The purpose of a discovery deposition is to learn as much as one can about the
opposing expert. When answering a question give the shortest accurate answer. Explain only
when asked. Do not ramble. Repeat after me: A deposition is not a conversation. A deposition
is not a conversation. A deposition is not a conversation!
Run through these points with your expert so he can avoids the “traps” of litigation and not end up stuck in the “sand.”
Preparation is your greatest tool to avoid problems caused by difficult or agressive
attorneys. Ultimately, once you are at the deposition there is little you can do without risking
sanctions. Harassing behavior. If an attorney engages in ongoing harassing behavior which
is truly beyond the pale, call the magistrate of court and have a discovery conference. However,
make sure it is truly exceptional.
As mentioned earlier, your best tool to control the deposition is to prepare your expert. If
truly extraordinary harassment or name calling occurs and persists even after you have addressed
it on the record, and the Court is not available to resolve your dispute, you can move to terminate
the deposition. Rule 30(d)(3) of the Federal Rules of Civil Procedure allows a litigant to suspend
a deposition at any point for the purpose of filing a motion to terminate or limit the deposition on the grounds that it is “being conducted in a manner that unreasonably annoys, embarrasses or oppresses the deponent or the litigant.” Obscenity or insults, persistent questioning that embarrasses a witness or concerns privileged matter are sufficient grounds for suspending or terminating a deposition. See Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007); Lewis v. United Air Lines Transp. Corp., 32 F. Supp. 21 (W.D. Pa. 1940); Broadbent v. Moore-McCormack Lines, 5 F.R.D. 220 (E.D. Pa. 1946); Shapiro v. Freeman, 38 F.R.D. 308 (S.D.N.Y. 1965).
If a suspension is sought, the deposition remains postponed until such time as the court issues an
order. The loser is subject to fees and sanctions under Rule 37(a)(5). Smith v. Logansport Community Schools Corp., 139 F.R.D. 637 (N.D. Ind. 1991).
Objections should be kept to a minimum. The Rules contemplate that
objections should be concise and afford the examiner the opportunity to cure the objection. See Fed. R. Civ. P. 30(c)(2) (noting that “objection[s] must be stated concisely”); id., Advisory
Committee Notes (1993 Amendments) (noting that “[d]epositions frequently have been unduly prolonged . . . By lengthy objections and colloquy” and that objections “ordinarily should be limited to those . . . grounds that might be immediately obviated, removed, or cured, such as to
the form of a question”). Rule 30(c)(2) provides:
Objections. An objection at the time of the examination—whether
to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
The Notes to the Advisory Committee for the Amendments of 1993 state that “[w]hile objections
may, under the revised rule, be made during a deposition, they ordinarily should be limited to
those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on
grounds that might be immediately obviated, removed, or cured, such as to the form of a question or the responsiveness of an answer.” Rule 32(d)(3)(A) & (B) state specifically which objections must be made or waived:
(A) Objection to Competence, Relevance, or Materiality. An
objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.
(B) Objection to an Error or Irregularity. An objection to an error
or irregularity at an oral examination is waived if:
(i) it relates to the manner of taking the deposition, the form of a
question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and
(ii) it is not timely made during the deposition. [Emphasis Added].
The Rules should be abided by during the course of the deposition.
Form objections. While unspecified “form” objections are certainly concise, they
do nothing to alert the examiner to a question’s alleged defect. Because they lack specificity, “
form” objections do not allow the examiner to immediately cure the objection.
Permissible objections. If an objection could have been obviated at the time of
the deposition and it is not made, it is deemed waived. The only objection you should make are “insufficient foundation”, “compound”, “argumentative”, “asked and answered,” and “work
product privilege” or “attorney client privilege.” All other objections are available and can be
raised at a later time.
Below is a list of potentially impermissible objections (check your jurisdiction):
1. Speaking Objections. Speaking objections are not allowed and can draw
sanctions. Your objection needs to be short and concise.
2. No right to consultation. A witness has no constitutional right to consultation
while testifying. Perry v Leake, 488 US 272 (1989).
3. Recesses. It has been held a deponent has no right to consultation during
depositions and during recesses. Hall v Clifton Precision, 150 F.D.R. 525 (E.D. Penn. 1993).
4. Communications during recesses. There is no attorney client or work product
privilege for discussion between attorney and deponent during recesses. You can ask what they
talked about. Id.
5. Questions by Defending Counsel. An attorney cannot state on the record their
interpretation of a question asked. Hall, supra.
6. If you know or if you understand is a speaking objection (coaching). Suggestions such as
“if you know” or “if you understand” are raw unmitigated coaching and never appropriate.
Serrano v Cincinnati Ins. Co., 2012 WL 20871 *4. (Kansas)
7. Calls for speculation. Objections to “speculation” are not form. It’s also
coaching. Serrano, supra.
8. Vague Objection. Saying a question is “vague” is improper speaking objection.
Serrano, supra. Likewise, a lawyer cannot object saying he/she didn’t understand the question.
9. Multiple objections. Rambo-like multiple objections prohibited. In Re
Stratosphere, 182 F.R.D. 614 (D. Nev. 1998).
10. Excessive number of objections. Excessive number of objections is
sanctionable. Fed. R. Civ. P. 30(d), Committee Notes 1993.
1. Cannot be a contingent fee arrangement. This is unethical and would be
disastrous regardless… enough said.
2. Cost of initial consultation. This should be free or nominal, but make sure this
3. Definition of scope of work. This should be set out in the initial engagement
letter in a straightforward, succinct manner.
4. Determining whether the case will be billed hourly or in stages. This should
be discussed at the front. Are you doing it by the hour or by the job to be performed? By the job
avoids runaway expenses, but can lead to experts cutting short the work that needs to be done.
5. Setting a budget. This avoids surprises for both sides and eliminates the stress of
6. Regularity of billing statements. Same as above. It eliminates stresses and
surprise by not including the expert’s bill in your final statement of charges or in the
reconciliation to your client.
7. Estimate of costs associated with forensic testing and/or scene work. Such
work can involve outside contractors or specialists. You want to budget these out as well.
8. Cost benefit analysis of economy versus completeness. If you cannot afford to
do everything necessary, cover it with your client first! Explain that the costs ultimately are
either paid directly or indirectly. Some clients will raise hell after you settle their case even though you may have fronted the expenses and resolved the case very favorably. Keep your client informed of the cost in advance of incurring it.
9. Cost associated with satisfying federal court or state court disclosure
requirements. What costs in your jurisdiction are to be borne by the party, versus the opponent?
Initial disclosures or answers to interrogatories are usually the financial responsibility of the party who hired the expert.
10. Cost associated with responding to discovery requests. Additional requests for
information or discovery may not be had for free. Under Federal Rule of Civil Procedure
Unless manifest injustice would result, the court must require that the party
(i) pay the expert a reasonable fee for time spent in responding to discovery under
Rule 26(b)(4)(A) or (D); and (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions.
If you are in state court, check your jurisdiction’s law and make sure your expert is paid
in advance of doing the work.
I hope you strike the right deal.
I have always thought it is unclear whether Indiana Rule of Evidence (IRE) 615 applies to depositions. IRE 101(C) states:
Rules Inapplicable. The rules, other than those with respect to privileges, do not apply in the following situations:
(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).
(2) Miscellaneous proceedings. Proceedings relating to extradition, sentencing, probation, or parole; issuance of criminal summonses, or of warrants for arrest or search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and grand jury proceedings.
Interestingly enough, no mention of depositions is made in the proceedings excluded.
Ind.T.R. 30(C) states in part:
Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43(B). *** All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. When there is an objection to a question, the objection and reason therefr shall be noted, and the question shall be answered unless the attorney instructs the deponent not to answer, or the deponent refuses to answer, in which case either party may have the question certified by the Reporter, and the question with the objection thereto when so certified shall be delivered to the party requesting the certification who may then proceed under Rule 37(A).
Ind. T.R. 32(B) states:
Objections to admissibility. Subject to the provisions of Rule 28(B) and subdivision (D)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any depositions or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
* * *
(D) Effect of errors and irregularities in depositions
(3) As to taking of deposition.
(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition. ***
Ind. T.R. 43(B) then reads:
Evidence on motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.
My take away from all of this is that if you want to use the deposition at trial or in connection with a motion for summary judgment, then the rules of evidence would apply. Also, if you do not object to the presence of the expert at the time of the deposition pursuant to IRE 615 the objection is waived because it could have been obviated by the opposing attorney by ordering the expert to leave. If the opposing attorney disagrees then you would have to hope you win the issue at trial or stop the deposition and immediately file a motion to terminate under Ind. T.R. 30(D). As a result, I would think a court would find IRE 615 applicable to a deposition.
That being said, I think having an expert present to aid you in examining another expert would usually be “a person whose presence is shown by a party to be essential to the presentation of the party’s cause” under IRE 615(C). In Ledden v Kuzma, 858 N.E.2d 186 (Ind.Ct.App.2006), the Kuzmas sought a protective order barring Ledden’s expert from attending Ledden’s deposition of the Kuzmas’ expert witness. The Court of Appeals stated:
Under appropriate circumstances, it may be proper for a protective order to be granted barring an expert -or anyone else – from attending the deposition in question. If a party is able to meet the requirements of Trial Rule 26(c)(5), then a protective order would be warranted. But if, as here, a party is unable to provide any particular and specific demonstration of fact in support of the request for a protective order, then there is no reason – based in logic or rule – to bar the expert from attending the deposition.
Generic allegations of prejudice were made in Ledden v Kuzma. A factual demonstration supported by evidence of real harm seems to be required given the holding in Ledden v Kuzma.
Trial is a different thing. The argument for the a separation of witnesses is weaker at the discovery stage since you may need the help of your own expert to pin someone down at the pretrial discovery stage whether investigation is needed. While IRE 615(C) does allow a party to designate a person whose presence is essential to their presentation to be present in the courtroom, this creates practical problems and raises concerns about “fairness in administration” and “the end that the truth may be ascertained and proceedings justly determined.” See IRE 102 Purpose and Construction.
When I had this occur in a trial, I successfully argued that the defense expert is not allow to watch the trial and weigh evidence as this is the sole province of the jury. IRE 702(A) states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Allowing expert to attend the trial and opine is a kin to having a shadow jury. Such a process misleads the jury as to an expert’s true role which is to aid the jury in deciding the case, not supplant them. Trial testimony by the expert could run afoul of Rule 704(B) since the expert would in essence be testifying as to whether a witness (including your expert) testified truthfully by opining after watching all the witnesses testify. Also, Ind.T.R. 26 requires that the basis and opinion of an expert be seasonably disclosed before the trial. An expert’s opinion would change and morph as the trial progressed. The expert, not the jury, would resolve questions of fact, credibility and the weight to be given witness testimony and items of evidence. Such expert testimony could impair or deprive a party of their constitutional right to trial by jury.
So, what do you think?
It costs you nothing to be a gentleman or lady. However, a lack of civility can be very costly. The manner in which a witness or party testifies is critical to their credibility and understandability to the jury. You want witnesses to testify in a natural manner, but they need to be understood and well received. If you have a witness who talks a mile a minute, then the best way to persuade them that they need to speak in a slower and more measured tone is to allow them to see exactly how they testify.
I will typically meet with a witness or a client and, through the magic of a cell phone or iPad, record the testimony and then allow them to view it. I then asked the witness or client to tell me what they see and how they would improve such a witness’s testimony if they were in my position. Most people will be a harder critic of themselves than you could ever be. After we discuss problems with their testimony and their manner of delivery, I covered the same line of questioning again and let them watch the new video.
The only thing a client or witness has absolute control over is their behavior and demeanor. By emphasizing this point, you can both empower them and relax them. No matter how rude or aggressive the other attorney is, it’s important for them to remain calm and composed. When an opposing attorney senses he has drawn blood, he will simply bore in with more of the same. A client or witness can tactically overcome this by simply remaining calm and truthful no matter how bad the answer seems to hurt.
Likewise, the client or witness needs to be cautioned to avoid any sarcasm, insincere or solicitous comments. Remember, this is their chance to make a good impression and show they will be a likeable and empathetic witness to the jury. It’s not their job is not to exchange verbal jabs with the other attorney. There is an old saying, “If you wrestle with a pig, you’re bound to get dirty.” Don’t let your client or witness get dirty with the other attorney. Ultimately, they will lose
Buddy Yosha, the Melvin Belli of The Midwest, meticulously outlines his examination and writes out every question and expected answer. He also uses marginal notes to signal general topics of the examination such as background, anatomy, treatment opinions, permanency, future medical expenses and treatment, etc. You get the idea. This system works well for him. Some of the other attorneys in our office have adopted it and have been successful in outlining testimony in this fashion. However, such as system has its drawbacks.
First the outline is very long. I have seen some outlines that have gone well over a 100 pages which can be cumbersome. It is basically a deposition transcript of what you hope to present. When it comes down to studying it, you are lucky to get through it two or three times in a single sitting. It can also lead to the testimony coming across scripted and stiff.
It does the have the advantage of allowing you to fully visualize the expected testimony. If you are pressed for time it can also provide a clear blueprint for the witness’s testimony which would allow a young associate or paralegal to work with the witness and know what to expect as far as the question and answer.
There is an alternative method that I use. I outline the facts I hope to obtain from the witness, in the order I hope to obtain them from the witness. I will write at the top of my outline the legal elements of the claim I expect to cover with the witness (breach of duty, proximate cause, damages, etc.) and list any exhibits by number and description , I hope to cover with the witness. I make the question up as I go. The testimony comes across spontaneous and more conversational.
From my perspective this type of outline can be reviewed multiple times because it is substantially shorter than one which has both the questions and answers. It places the emphasis on your goal, the expected answer, not the question. This forces you to listen to the witness, instead of moving on to your next question. You make up each question as you go which helps you develop the skill of forming questions on the fly. If an objection is sustained, no worry, you simply rephrase the question. It’s second nature to you.
This method forces you to develop the skill of thinking on your feet and adapting rapidly to your opponent’s objections and the Court’s rulings. Most of the time if you rephrase the question, the Court will allow you to move forward. With a scripted witness outline, I have seen attorneys freeze in their tracks when an objection is sustained because they are locked into their script and do not have the requisite skills to rephrase their question quickly. It makes them look like they are struggling and have been hurt by the legal objection. This second method of outlining a list of facts, also keeps you focused on the goal… the witness’s answer.
The only exception to this rule is when you are asking a question which requires information to be loaded into it such as for an expert witness such as a hypothetical question or when words of legal art must be included in the question, such as “Based upon a reasonable degree of medical certainty, what caused Mr. Roger’s numbness in his left arm?”
Hypothetical questions, as noted above, should be written out in advance so that no key facts are omitted. Otherwise your question could be objected to as an incomplete hypothetical or one that either misstates the record.
There is more than one way to outline your examination. Choose the method which works best for you. Both approaches have their advantages and drawbacks. Good luck!
Here is a short list of items to cover with your client the next time you have a discovery deposition:
1. Listen and make sure you understand the question.
2. Stop for five seconds and think.
3. Answer the question.
4. Is there more than one answer that is correct?
5. If there is, then you do not understand the question.
6. If you don't know when to start and and end in terms of the time frame, you don't understand the question.
7. If you try to win your case, then you will lose your case. Don't try to win it. In other words, don't take a good case, try to make it a great case and turn it into a bad case.
8. You don't know, what you don't know. So don't guess or speculate.
9. Keep your hands in lap, hold a paper clip and press the paper clip if you get nervous. Don't fidget.
10. Depositions are not conversations. Listen to the question and answer what's being asked. Do not volunteer information.
11. Don't worry about looking stupid… Ask the other attorney to rephrase the question, if you don't understand the question.
12. Be wary of "box questions" that try to limit you by the words "never, always, none and ever". There are almost always exceptions.
Sometimes, less is more. Keep it simple.
If you try cases long enough, you are going to eventually lose a few. You need to look at losses as an opportunity to improve. Quite honestly you should learn more from your loses, than your victories. If your are allowed, you should speak with the jurors and see what they thought was important. You need to check the case and consider:
1. Jury Voir Dire: Was a juror biased against your case? Could you have formulated a better question to uncover this bias and possibly exclude the juror. Were there a problem with your case you could have raised in voir dire to find out who could not treat the evidence fairly?
2. Prejudicial Evidence or Arguments: Did the other side present irrelevant evidence or improper arguments? Even if your objection is sustained, it is often difficult to “unring” that bell. You may be able to head off such arguments or evidence in the future through an motion in limine excluding such evidence or argument. It might also uncover problem evidence.
3. Were There Surprises: Perhaps the opposing party hit you with evidence you missed. Next time you may be able to head off such problems by doing what your opponent would likely do in investigating the case. You may need to comprehensively collect and check medical records more carefully and prepare a medical chronology to refresh your client’s memory before questions are incorrectly answered in interrogatories or depositions. Or perhaps, there are other lawsuits, claims or even criminal convictions your client failed to tell you about in advance of discovery and their deposition. You may want to hire a private investigator to do a preliminary background check of your client or just do a Google search of your client’s name to see what you might uncover. You may want your client to give you access to their social media sites to check for potential problems. Better yet, you can educate your client early on about the importance of being completely honest with you. There are few problems that cannot be dealt with if you know about them. It’s the problems you don’t know about that can kill you. I always tell a client that: “You don’t want to take a good case, try to make it a great case (through exaggeration or lying) and turn it into a bad case.”
4. Witness Preparation: Did you adequately prepare your witnesses or client to testify. Good testimony requires that you and your client be on the same page. You need to adequately prepare your client or witness for any landmines that exist and perhaps bring up the problems yourself in voir dire, opening and/or on direct examination to blunt the damaging evidence’s impact. Video-taping a mock testimony session and allowing your client or witness to critique their own performance can work wonders as well.
5. Additional Evidence: Was there a witness you needed to call? Lay-medical witnesses to paint a before and after picture can go a long way in corroborating your client’s testimony that they were injured in this incident and not from some other event or condition. Was there an expert whose testimony might have covered a gap or question in your case? Could a photograph, diagram or model have made your presentation clearer or answered a juror’s doubt?
6. Jury Instructions: Were there jury instructions needed to address points of law pivotal to your case and the jury’s understanding of those issues? Don’t take the easy way out and rely simply on pattern jury instructions. Review the case-law and formulate your on instructions on nuanced points of law that are difficult for the jury to understand and apply to your case.
7. Strategy: Was there something you could have handled better? Was there a better analogy or argument you could have used to make your point or address your weaknesses? Was your overall view of the case cohesive and persuasive. Was your order of witnesses correct? There are a number of great resources available to you from books about famous trials, closing arguments and trial advocacy. Don’t reinvent the wheel. Learn from other’s experience what works and what doesn’t. Seek out a mentor and pick their brain. See my earlier post on Fireside Reading for the Trial Attorney.
I hope the thoughts outline above help you in critiquing your “failures” and turning them into an opportunity for improvement and growth as an advocate.