Fury Bailey - Personal Injury - Wrongful Death Attorneys

DEPOSITION TECHNIQUES

By William S. Bailey

Fury Bailey

710 – 10 th Avenue East

P.O. Box 20397

Seattle , WA 98102

(206) 726-6600

billb@furybailey.com

INTRODUCTION

Used to full advantage, depositions are the single most effective form of discovery under the civil rules. This is true for a multitude of reasons:

•Face-to-face contact with key witnesses, evaluating their credibility and persuasiveness as well as the content of their testimony.

•A chance to test out documents and exhibits on witnesses to see how much good they will do.

•Learn how far you can push witnesses on important issues, honing cross-examination strategy for trial.

•Possibility of unguarded or spontaneous admissions that would never happen in written discovery.

•Find leads on other sources of information.

•If depositions are taken early, a greater opportunity to expose weaknesses and inconsistencies, in that the opposition often hasn't refined its case strategy as much as later on.

Depositions are also a form of enforced discipline on preparing for trial, as taking them requires you to think critically about your case. All the written discovery and documents must be reviewed prior to the depositions, with an attempt to formulate legal theories and themes that best advance your client's position. Effective depositions also require a lawyer to think about and generate exhibits that will help in gaining leverage over a witness.

THE PURPOSES OF A DEPOSITION

In their book, The Effective Deposition , Malone & Hoffman set forth the following purposes of taking a deposition:

•Gathering information

•What are the facts?

•How did the events occur?

•To confirm what you know.

•Confirm what the other side knows.

•To determine existence of other witnesses

•To determine existence of other documents

•Building and refining legal and factual theories

•Foundation for expert opinions

•Foundation for motions practice

•Basis for requests for admissions

•Preparation for trial

•Find out weaknesses in your case

•Find out flaws in the opponent's case

•Lock in testimony

•Preserve evidence for trial

•Evaluate credibility of witnesses

•Evaluate effectiveness of opposing counsel

•Evaluate completeness and accuracy of interrogatory answers

DO A COMPLETE INVESTIGATION BEFORE YOUR DEPOSITIONS

A deposition's usefulness greatly depends on the quality of the investigation that precedes it. An investigator working for a lawyer can provide critical information through witness interviews, done either by telephone or in person. In light of the Washington Supreme Court's decision in Wright v. Group Health Hospital , 103 Wn.2d 192 (1984), a lawyer or his/her investigator can have ex-parte communication with non-managing agent employees of a party opponent prior to a deposition. Beyond this, eyewitnesses to an event are often willing to cooperate and give a complete statement to an investigator. Besides investigators, research specialists can also go to available databases and gather background material pertinent to a deposition. No matter what outside resources are used, the more the lawyer figures out in advance, the more focused and effective depositions will be.

THE IMPORTANCE OF PLANNING

I put a great deal of time into planning every deposition that I take, equal to or greater than any cross-examination of a critical witness at trial. This invariably involves a conference with my law partner, Steve Fury, in which we brainstorm about all the information that might be obtained in the deposition, based upon:

1. Legal theories.

2. Potential themes.

3. Key points.

•  Case-related documents.

•  Opinions of our experts.

•  Written discovery responses of our opponent.

These discovery brainstorming sessions allow me to crystallize my thinking for each witness and what information might be obtained from each one. I take careful notes and have them transcribed for later use. Eventually I will come up with a definite plan for each witness, writing down as many specific questions I can think of to ask. This is an accumulative process. Every question I think of leads to others.

PRESENTING YOUR OWN WITNESS'S TESTIMONY AT A DEPOSITION NOTED BY YOUR OPPONENT

In a firm where I worked previously, one of the lawyers had a policy of never asking his client or forensic expert any questions at a discovery deposition noted by the defense. He thought it was risky to volunteer anything in advance of trial. This conservative approach can miss an opportunity to do a "dry run" of your case. I have used depositions noted by the other side to test the strength of my own witnesses' testimony, particularly if the other side has not touched on particular strong points in my case.

For example, in Frye v. Searle , a product liability case, I used the defendant's deposition of my client as an opportunity to discuss her expectations of safety as a consumer of Searle's products. The defense lawyer did not like this one little bit. I had spent a great deal of time preparing my client prior to the deposition talking about the consumer expectations test in Washington, getting her to articulate how she relied on the defendant to have tested its products prior to placing them on the market. While this was not a deposition that I expected to be read at trial, since my client would be available to testify, it did give her the chance to get familiar with and express our liability theories, as well as experience in standing up to defense cross-examination.

LIMITED EFFECTIVENESS OF DEPOSITIONS TAKEN BY THE "FUNNEL" METHOD IN TRIAL

Conventional trial advocacy training describes depositions as a funneling process, beginning with broad open-ended questions and gradually narrowing the inquiry to specifics. While there is nothing wrong with this approach if the deposition is only used for purpose of evidence gathering, the often rambling nature of a traditional deposition makes it ill-suited for later use at trial.

It is a relatively common experience that a witness who has been deposed is unavailable for trial. CR 32 provides that any part or all of a deposition may be used at trial against any party who is present or represented at the taking of the deposition, or who had reasonable notice of it.

Under these circumstances, the “funnel" method of taking depositions makes them deadly dull to the jury. While attorneys often seek to remedy this by severe editing, this process can be undone by the opposition under CR 32(a)(4):

If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.

The potentially torturous effect of reading entire depositions at trial was impressed upon me early in my legal career, when I worked for the Labor & Industries Division of the Office of the Attorney General. In the workers' compensation cases we handled, transcripts of medical witnesses were read to a jury. Shortly after I began this job, I ran into a superior court judge I knew on the street. When I told him about my new job, he visibly winced and said, "Oh, you're going to do that horrible reading of the record?" He left no doubt that this was an excruciating proposition for all concerned.

In subsequent cases where I have needed to substitute a deposition for an unavailable witness, opponents invariably demand that we "Read the whole thing." Since trial judges do not want to rule on a volume of line-by-line objections, the whole deposition usually ends up being read to the jury. Without a tight set of engaging questions and answers, reading a whole deposition kills juror attention quickly. In short, the funnel method is not an audience pleaser.

However, if a lawyer does treat the deposition as if it is for trial, it preserves the option of using it effectively in court. This is what happened in the Esparza case. A Canadian government safety official was deposed by the defendant to show that an allegedly defectively maintained manlift had been fully inspected a week prior to tipping over at Todd Shipyards. In fact, the defense did not know that the specific system implicated in the accident had not been inspected or tested. I made the deponent my witness, establishing the importance of crane safety and that the defendant had a responsibility to maintain the cranes it rented.

JURORS DON'T REMEMBER DEPOSITION TESTIMONY UNLESS IT IS ON VIDEO

When I left the AG's Office and went into private practice, I did a considerable number of asbestos product liability cases for a five-year period. In that litigation, it was common to read depositions to the jury of certain key witnesses taken in other asbestos cases under CR 32. These were not only long and unfocused, but without video. Even the most intelligent, attentive jurors had very little recall of them afterward. The lesson to me was that key depositions not only need to be more focused like trial testimony, but also preserved on videotape, "Just in case" the witness was unable to appear live at trial.

USE OF PROPS AT VIDEO DEPOSITIONS

Jurors tend to remember and be influenced by video depositions when they are visually appealing. For this reason, the use of props is highly recommended, in that this increases the entertainment value. This is particularly true when medical witnesses do not testify live at trial. Choreographing their perpetuation deposition testimony with props prevents the tedious and intolerable “talking head” syndrome.

You should meet with your medical or other expert witnesses prior to their perpetuation depositions to see what visuals, props or models can be used to make their testimony more interesting. For example, in Rogers v. Birkeland , Tacoma oral surgeon Mark Carlson helped me visualize the implications of my client's broken jaw and knocked out teeth from a severe auto crash. I had laser blow-ups ready of all the illustrations he had told me about in a pre-deposition conference which he used effectively on camera.

CONCLUSION

You never can tell when or how you will have to use a deposition in a case. While in some circumstances it is necessary to use the "funnel" approach in a deposition, proceeding from the general to the specific, advance planning and investigation often makes this unnecessary.

Any time you take the deposition of a witness, it is an opportunity to not only find out legally relevant information, confirm information already acquired, obtain admissions or preserve testimony, but also to do this in a way that will be effective in the event that this deposition is used at trial under CR 32. Do not miss the opportunity to choreograph any deposition with an eye toward maximizing its impact on the jury, particularly when you are preserving the trial testimony of an important witness. Always videotape depositions for this same reason.

Never forget the needs of your audience when you take a deposition. A jury will be influenced only by depositions done in a dramatic, concise “trial-like” manner.

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