Focusing the Deposition: Using your goals to guide your deposition techniquesAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 79, No. 7 (JULY 1993), pp. 84-85Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27833082 .

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EBBE LITIGATION

Focusing the Deposition

Using your goals to guide your deposition techniques BY JAMES W. McELHANEY

Most of us learned how to take depositions by watching other law yers do it. The problem is, we were

usually watching lawyers who did not have a clear plan of what they wanted to accomplish or how to go about doing it.

The result is that thousands of lawyers mimic the mediocrity of their

mentors. So what ought to be inter esting episodes of witness examina tion often turn into endless days (and sometimes weeks) of unstructured interrogation.

Most depositions lack focus. And if you try telling that to a lawyer who is taking one, you are likely to get the standard response?"this is dis covery"?as if that were an excuse for a rambling, disjointed examination that seems to take forever.

But there are some simple prin ciples that make the whole business

more productive and (believe it or not) more fun.

Know as many of the perti nent facts as you can before you take the deposition.

Maybe it would have been bet ter if the drafters of the Federal Rules of Civil Procedure had never said that depositions were part of discovery in the first place, because the truth is, a deposition is a poor way to learn what a case is all about. You will save a lot of time, money and pain if you learn as much as you can through formal discovery before you start putting witnesses under oath.

Go to the scene. Study the pictures. Read the correspondence. Talk to your clients. Do everything you can to get educated before you start formal discovery.

When you do start, do not begin with depositions unless you must. Start with written interrogatories to get names, addresses, telephone num bers, product names and production dates?"hard" data?information no one can argue about. This is the kind of information that will help you decide which witnesses you want to

James W. McElhaney, the Jo seph C. Hostetler Professor of Trial Practice and Advocacy at Case West ern Reserve University School of Law, is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

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depose and which documents you want to request.

But don't use interrogatories as a substitute for depositions. When you use interrogatories to ask about conversations or other "soft" infor mation, you are asking for a discov ery war that will add months or years to the life of the case.

Next get the documents. Study them to sharpen your understanding of the case, and to decide which witnesses you are going to depose and what you are going to ask them.

Learn as much as you can about the witness before you take the deposition.

You need to know to whom you will be talking before you walk into the deposition room?it will affect everything you do. One of the easiest ways to miss something big is to go to the deposition cold.

Know what kind of deposition you are going to take.

As far as the rules are con cerned, a deposition is a deposition. But as far as you are concerned, every one is different?and what you do depends on what you want to accomplish.

1. Testing the witness and the lawyers.

Nearly every deposition involves evaluating the witness. You want to know how she holds up under fire. Does she have a short temper? Is she likely to lose her cool in the stress of

a trial? How credible does she seem? Does she make the facts seem simple and clear, or fuzzy and complex? Is she the kind of person the jury is likely to identify with?

This is essential information. These are the,kinds of questions that are answered by your personal obser vation?not by reading the cold tran script.

And while you are testing and evaluating the witness (and her law yer), the other side is testing and evaluating you. Wanting to see how witnesses and lawyers respond is one reason why some litigants refuse to even discuss settlement until all the parties and the principal witnesses have been deposed.

2. Getting information. No matter how much you do

before the deposition, there are al ways some facts you do not know until you ask the questions at the deposition.

How do you ask those questions? Not by leading or browbeating the witness.

Ask open-ended questions that invite explanations. Ask the witness to help you understand the facts. Of course it takes time before this will produce results. After all the pre deposition preparation the witness went through, it may take 20 min utes or half an hour before he is relaxed enough so you can ask him important questions. And if there is

84 ABA JOURNAL / JULY 1993 ILLUSTRATION BY BILL BRANDON

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Now and then in any deposition you should take a mental step backward and assess where you are and what has been established.

any need for getting tough with the witness, do it later?after you have your information.

Through all of this, keep your mind on the record. As Steve Miller of Cleveland says, "The only usable product of the deposition is the tran script. What seems so powerfully implicit in the deposition room goes away unless you make it explicit on the record. Lawyers who brag about surgically rearranging a witness in a

deposition are usually disappointed when they read the transcript."

3. Building your case. When you are learning the facts

you ask open-ended questions and encourage the witness to talk. It's different when you know the facts and want to nail them down. Then you do the talking?very carefully? so the witness must agree with what you say. You break the story into simple facts and put them to the witness one at a time. Systemati cally, you take away his weasel words. It requires persistence and strength of character to do it well, but it can be worth the effort.

Building your case is something you should usually do at the end of the deposition, not at the start. If you begin with a stiff cross-examination of the witness, you will have a hard time getting him to respond to open ended questions later on. Why should he relax and open up when he knows that you are his enemy?

4. Testing your theory. When you take the deposition of

the other side's expert, the first job is usually to find out what the witness is going to say at trial. You want to

figure out your opponent's theory of the case as well as find its weak spots and contradictions, if you can.

But some lawyers like to do more. They want to get double-duty out of the other side's expert by using him as a testing ground for their own

theory of the case. It can be a helpful thing to do. Approached carefully, you can get a feeling for how much respect the opposing expert has for the ideas that underpin your case.

But as David Malone of Wash ington, D.C., points out, there can be a serious cost. Using the deposition to test your theory of the case neces

sarily involves educating your oppo nent about your basic trial strategy. And even if the expert cannot shoot your case down now, you can count

on his doing a better job by the time of trial.

5. Boxing the witness. It is the stuff nightmares are

made of. You are cross-examining the opponent's expert:

Q. But doctor, you didn't say anything about the possibility of peritonitis in your deposition, did you?

A. That's because you didn't ask.

There it is. The hole you leave unplugged turns out to be the most attractive escape hatch for the wit ness. That is why containment? boxing the witness?is one of the most important deposition techniques.

Boxing the witness is a two-step process. The first step is to measure the contents?the second is to build the box around it.

Measuring the contents?learn

ing what the witness does and doesn't know?involves more than just ask ing open-ended questions. It means

asking follow-up questions, explor ing what the witness hasn't said as

well as what he has said. It is one of the reason why writing out your questions in advance almost guaran tees disaster?it tends to cut off follow-up questions.

And there is more. Jean Mac lean Snyder of Chicago says, "A deposition is one time when you can ask a witness 'why?' In fact, it's a

great question in a deposition. If there is a good answer to 'why?' you

might as well know what it is. And if there isn't a good answer, then that can devastate the other side at trial."

The next step is building the box. The point is to establish that the witness has gone to the end of the line on every inquiry?that there is

nothing left. And the technique is never to do this by implication, but always to make it explicit. "Is there anything else that happened?" "Are there any other theories for analyz ing why this loss took place?" 'What facts would change your opinion?" "Was anyone else there?" "Do you remember anything else about this transaction?" "Is there anything that would refresh your recollection?"

6. Evidence. As far as the rules of procedure

are concerned, you can use any depo sition to prove facts at trial. But using the typical deposition is one of the worst possible ways to prove anything. The questions are usually long, rambling and unartfully put. The answers often miss the point, or are fragmented, hesitant and incom plete. Sometimes they are deliberately misleading. When you are busy dig ging to find what is there, you are not

thinking about how to explain it all

to someone else.

That is why an "evidence depo sition" should be done entirely differ ently from a "discovery deposition."

Now the entire examination is outlined and practiced before you get there?just like in trial. Keep it short, simple and interesting. Use exhibits that can be put in front of the jury when the deposition is read (or shown) during the trial. Think of the court reporter as the jury. Is everything it needs to know in the record?

Understanding the importance of evidence depositions explains why periodically you need to do some of that in discovery depositions. Every now and then in any deposition you should take a mental step backward and assess where you are and what has been established. Pick out the essential points, clean them off with the brush of plain English, and restate them to the witness so that he agrees you've got them all straight. Those are the points you will pull out if you have to use the discovery deposition at trial.

7. Settlement. Some depositions are taken not

because any facts are in doubt, but because they can encourage settle ment. There are chief executives of some companies who know their hands were in the cookie jar, but who are convinced that no mere lawyer could ever pin it on them. There are doctors who know they botched the operation but who insist that any settlement would be morally wrong. And sometimes your own clients cling to unrealistic expectations until they have had to answer questions under oath. A settlement deposition can be useful.

But be careful. Do not use set tlement as an excuse for brow beating and bullyragging the wit ness, the other party, or his lawyer.

And if the other side does it to you, don't put up with it. Randi McGinn from Albuquerque has a

simple way to deal with abuse from lawyers?three strikes and they're out. The first time the other lawyer raises her voice or stands over the witness, McGinn objects and reads what the other lawyer did into the record. The second time it happens,

McGinn makes her record again and warns the opposition that it won't be tolerated anymore.

The third time, McGinn and her witness walk out?headed for the court to get an order.

It works.

ABA JOURNAL/JULY 1993 85

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