Fury Bailey - Personal Injury - Wrongful Death Attorneys

TREAT YOUR DEPOSITIONS AS A TRIAL

By William S. Bailey

Fury Bailey

710 – 10 th Avenue East

P.O. Box 20397

Seattle , WA 98102

(206) 726-6600

INTRODUCTION: THE "FUNNEL" METHOD AND ITS LIMITATIONS

The conventional wisdom would have us treat all depositions as a funnel, 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 use at trial. CR 32 provides that any part or all of a deposition may be used against any party who is present or represented at the taking of the deposition, or who had reasonable notice of it. It is a relatively common experience that a witness who has been deposed is unavailable for the trial of a matter. If so, "The funnel" method of taking depositions makes them deadly dull to the ears of the jury. While attorneys often seek to remedy this by selecting key questions and answers, this editing process is often 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.

In cases I have handled where a witness is unavailable and the deposition is used, my opposition has invariably demanded that we "Read the whole thing." Most trial judges do not want to get into a minutia of lawyer objections, and going through the deposition line by line. Thus, what usually happens is the whole deposition is read to the jury. The net effect of this is that you might as well not read the deposition at all, if you have not asked a very tight set of lively and engaging questions that will hold the jurors' interest. If the broad inquiry of the funnel method is used, you will have most jurors tuning out by about the third page.

This was impressed upon me early on in my legal career, when I worked for the Labor & Industries Division of the Office of the Attorney General. In workers' comp. cases which were handled by this division, depositions of medical witnesses were often taken which then substituted for live testimony before the Board of Industrial Insurance Appeals. In cases that were appealed de novo from the Board to superior court, the entire administrative transcript was then read to the jury. No live witnesses were used. The Judge and the jury uniformly considered this process of reading transcripts to be excruciating. Shortly after I began work at the Attorney General's Office, I ran into a superior court judge on the street. He knew that I had gone to the Attorney General's Office and asked me what division. When I told him Labor & Industries, he visibly winced and said, "Oh, does that involve that horrible reading of the record?"

JURORS DON'T REMEMBER DEPOSITION TESTIMONY

When I first 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 of certain key witnesses to the jury under CR 32 that had been taken in other asbestos cases in other jurisdictions. Part of the reason for this was that some of these individuals were deceased. Most of these transcripts were too long and too unfocused, taken under the traditional "funnel" method. I tried to edit them down to the essential core testimony that we needed, but the opposition always insisted that we "Read the whole deposition." As a result, in juror interviews at the conclusion of the asbestos products liability cases where these depositions were read, even the most intelligent, attentive jurors had very little if any recall of the depositions. This was a signal to me that key depositions needed to be taken in a more focused way like trial testimony and that key depositions needed to be videotaped "Just in case" the witness was unable to appear. This approach depends upon pre-deposition investigation and planning.

A deposition's usefulness for evidence gathering has been greatly overrated. An investigator working for a lawyer can often get better information through a witness interview, telephone or in person, than the lawyer can get at a deposition. In light of the Washington Supreme Court's decision in Wright v. Group Health Hospital , 103 Wn.2d 192 (1984), the lawyer even can have ex-parte communication with non-managing agent employees of a defendant. Beyond this, eyewitnesses to an event are often willing to cooperate and give a complete statement to an investigator. The less a lawyer has to use the deposition itself for finding out things that he/she doesn't already know, the more focused and effective that deposition can be.

THE IMPORTANCE OF PLANNING

I put a great deal of time into planning every deposition that I take. This invariably involves a conference with my law partner, Steve Fury, in which we brainstorm about all the information that might be obtained from any particular witness. These brainstorming sessions focus on:

1. Legal theories;

2. Potential themes;

3. Outline of key points to be established; and

4. Examination and review of all available documents.

I take careful notes during these discussions and later have these transcribed for use throughout the case. These conferences allow me to crystallize my thinking as to any particular witness and have a fairly good idea what information can be obtained from each witness. The attached memo from a past construction accident case brought against a general contractor, Vancil v. Land Recovery, Inc. , gives an idea of what work product comes out of my brainstorming sessions prior to a deposition.

Once I have discussed the themes and topics in a case with Steve Fury, I will then move on and come up with a definite strategy for each witness, writing down as many specific questions I can think of to ask each witness. This is an accumulative process -- for every question you think of, several other spin-off questions can pop up in your mind.

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

In one firm where I worked previously, one of the lawyers had a policy of never asking his client any questions at a discovery deposition noted by the defense. This philosophy usually applied to his experts and the lay witnesses as well. He figured it was too big a risk to plot out specific contentions of his case in the deposition. While this is a safe and conservative approach, it misses an opportunity to do a "dry run" of your case. I have always sought to use depositions noted by the other side as an opportunity to run our case up the flagpole outside the presence of a jury and see if anyone salutes it.

For example, in Frye v. Searle , a product liability case involving a defectively designed IUD, 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, as can be seen by his frequent objections in the attached transcript. I spent a great deal of time with my client prior to the deposition talking about the consumer expectations test and getting her to articulate how she relied on the defendant to have tested its products prior to placing them on the market for sale to the general public. While this is not a deposition that I would expect to be read at trial, since my client would be available and testify, it did have the beneficial effect of allowing my client to articulate her belief in the theories of our case, as well as to test her ability to stand up against vigorous cross-examination by the defense.

VIDEO DEPOSITIONS AND USE OF PROPS

Video depositions are highly recommended, in that this gives the jurors some demeanor evidence to go on. Jurors tend to remember and understand video depositions of the actual witness far more than when lawyers merely read transcripts of the witness's testimony. The presumption should be for most medical witnesses that they will not testify live in the trial.

You should meet with your medical or other expert witnesses prior to their depositions being taken and see what visuals come up props or models can be used to make their testimony more interesting. Combine all of these in the deposition so that the witness can interact with these visuals or props. For example, in Rogers v. Birkeland , I met with Tacoma oral surgeon Mark Carlson on several occasions to discuss the implications of my client's broken jaw and knocked out teeth from an accident where she was a passenger in defendant's car. When we took Dr. Carlson's deposition, I had laser blow-ups of all the illustrations he found useful in helping to explain his testimony. All of this was large enough for him to use it on camera in an effective manner. Choreographing the deposition testimony of medical witnesses keeps them from being "talking heads," which most jurors find boring and intolerable.

CONCLUSION

You never can tell when you will have to use a deposition at trial in lieu of live testimony. 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. In the event that the witness becomes unavailable and the deposition has to be read, depositions taken under the funnel method put jurors to sleep very quickly. You might as well not even bother to read them the deposition at all. They simply will not remember it.

If the lawyer does prepare for the deposition as if it were a trial, this creates a deposition which can be used effectively for all purposes. This was brought home to me recently when I tried the Esparza case. David Ruston was a government crane inspector up in Canada . Defendant took his deposition, attempting to show that the manlift that injured plaintiffs had been fully inspected prior to tipping over at Todd Shipyards on October 2, 1996 . In fact, Mr. Ruston never inspected or tested the system that actually failed on the manlift that tipped over.

This deposition was read to the jury to establish that the manlift that failed had not been tested in Canada and that welding performed on the boom of the manlift to repair cracks may have in fact damaged the electronic safety system designed to prevent a tip-over. The jury was able to understand why the evidence raised by this deposition because it was asked in a "trial-like" manner that anticipated the possible use of the deposition in the courtroom.

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 and obtain admissions, 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 this deposition with an eye toward maximizing its impact on the jury.

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