USE OF DEPOSITIONS

Prepared and Presented by:

Christine L. Mast Hawkins and Parnell, LLP

4000 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 30308-3243

(404) 614-7542 cmast@hplegal.com

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Use of Depositions

A. Strategies

1. The Rules

While O.C.G.A. § 9-11-30 and § 9-11-31 govern the taking of depositions both

live and by written questions, O.C.G.A. § 9-11-32 addresses the actual use of depositions

in court proceedings. In general, the Georgia Civil Practice Act allows the use of a

deposition at trial, a hearing of a motion or any interlocutory proceeding just as if the

witness was testifying live in court. There are two important caveats: first, the party

against whom the deposition is used must have been present or represented at the taking

of the deposition or have had reasonable notice that it was being taken; and second, the

testimony must be admissible under the rules of evidence. O.C.G.A. § 9-11-32(a) and

(b).

These additional provisions apply:

any party can use any deposition for impeachment

any party can use the deposition of any adverse party or its corporate

representative for any purpose

any party can use a nonparty deposition for any purpose IF the witness is:

• dead

• out of the county

• unable to testify because he is too old, sick, infirm or in prison

• a member of the General Assembly and the session will conflict with trial

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OR if

• the offering party cannot procure the witness’s attendance by subpoena

• the witness’s attendance would pose manifest inconvenience to the public

or third persons because of his occupation or business.

§ 9-11-32(a)(3). However, use of a deposition, even when the witness is available to

testify, is within the discretion of the court. O.C.G.A. § 9-11-32(a)(4).

Most depositions are taken for discovery, rather than with a specific use in mind.

Often, however, a potential use will make itself clear during a deposition. Thus,

deposition questions should always be asked in a form that will be acceptable by the

Court if and when the deposition is tendered, because the utility of the deposition will be

limited by the admissibility of the testimony taken.

When you introduce a deposition into evidence, except in impeachment or

contradiction, you are making the witness your own, regardless of whether or not you

took the deposition. O.C.G.A. § 9-11-32(c). You are entitled to lead the opposing party

or an adverse witness only. When deposing a non-party witness, then, you must

establish that the witness is adverse in order to lead, or you must restrict yourself to direct

questioning. This becomes especially important when it is time to admit the testimony in

court. If you lead a non-adverse witness in the face of objections by opposing counsel,

none of the testimony you elicit through those leading questions will be admissible in

your case when you attempt to use it at a hearing or at trial.

Custom in Georgia is to agree to a stipulation reserving all objections except those

going to the form of the question or the responsiveness of the answer until the time of

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first use of the deposition. This stipulation addresses problems that can be corrected at

the time of the deposition. If they are not asserted at the deposition, they are waived.

Haynes v. McCambry, 203 Ga. App. 464 (1992). Typically, attorneys will hold other

objections unless it is strategically beneficial to make them during the deposition.

Nevertheless, when it comes time to offer into evidence the testimony at depositions,

numerous other objections may be voiced that can have significant impact on the

admissibility of all or parts of your depositions.

O.C.G.A. § 9-11-32 provides that deposition testimony may be excluded upon

any basis that would require exclusion if the witness were testifying live. Testimony can,

therefore, be limited on grounds such as relevance, competency, hearsay, or any other

objection that properly could be made to preclude admissibility of evidence.

2. Planning The Case With Depositions

While you are planning your discovery blueprint, you are not always able to

discern all the potential uses your depositions may have. Some uses, such as discovery

motions or motions in limine, may not become obvious until during or even after the

depositions are concluded, once the attorneys have had an opportunity to examine the

depositions and other discovery and fit the puzzle pieces together.

Depositions can and should be planned with motions for summary judgment in

mind. Though it is not uncommon for angles of a dispositive argument to be developed

or eliminated through depositions, it is most effective to plan and outline your depositions

after you have identified the primary dispositive arguments, whether for the plaintiff or

defense. This type of planning can impact the order of the depositions you take and the

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organization of the questioning of an individual witness. Strategy considerations include

how educated the witnesses and opposing party are about the potentially dispositive

arguments, the role which non-party versus opposing party testimony will play, or

whether settlement is possible or desirable prior to a determinative motion. At a

minimum, you must develop your prima facie case by getting the facts from the witnesses

who have them to support or defeat the elements of your cause of action or defenses.

On the other hand, there are motions that develop due to deposition testimony

without any planning at all. For example, the opposing party or witness may

unexpectedly say something that could support a dispositive motion. Alternatively, you

may encounter testimony that builds upon prior written discovery or comes up for the

first time which raises the necessity of attempting to preclude the evidence or testimony

as the case moves forward. This may indicate the need to compel additional discovery

with court intervention, either in written form or in a reconvened deposition to respond to

questions to which answers were refused. Motions in limine may also become necessary

based upon depositions of parties or nonparty witnesses.

B. Use of Depositions in Motions

Depositions are paramount for discovering facts and preparing for trial. But once

the depositions are taken, various motions may be supported or opposed with depositions.

1. Motions to Compel/Protective Orders

Motions to compel sometimes follow depositions. Where a deponent refuses to

respond to questions upon his counsel’s objection and instruction not to answer, the

transcript containing the questions and the refusal to respond will be the centerpiece of a

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motion to compel the answers in a reconvened deposition. Using the deposition

transcript, you can show the court the road down which you are headed and why the

information is discoverable (though not necessarily admissible itself).

Depositions are also useful tools in establishing the basis for a motion to compel

documents. See e.g. Savannah College of Art and Design v. Sch. of Visual Arts, 270 Ga.

791 (1999). It is not uncommon for counsel to learn during a deposition that additional

documents exist which have not been produced, whether intentionally or inadvertently.

Exploring fully in your depositions the efforts made by the opposition to uncover

documents sought in discovery will bolster a motion to compel the production of those

documents if the party refuses to supplement voluntarily.

Most often, counsel will anticipate that a sensitive yet irrelevant area of

questioning may be encountered in an upcoming deposition, and seek a protective order

in advance of the depositions to preclude it. Sometimes, we simply have not anticipated

every possible basis for a protective order ahead of time. One such situation presents

itself when opposing counsel’s questioning in a deposition raises a topic that is not

relevant or reasonably calculated to lead to the discovery of admissible evidence, though

it may not go far enough in the deposition to necessitate court intervention at the time.

However, the identification of a problem area may warrant a motion to preclude future

depositions, especially of your client, from including examination in the off-limits area

(such as questioning related to trade secrets or income).

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On the other side, as the deposing counsel, you may encounter opposition in a

deposition when delving into certain areas. Advance motions for protective order

seeking direction from the court on the scope of questioning are appropriate.

Transcripts from depositions previously taken can provide support or opposition

for a motion for protective order. For example, defending counsel has an opportunity to

object to the questioning in the deposition and to state his position as to the basis on the

record. Likewise, counsel taking the deposition can place into the record the questions

that sufficiently make clear the basis or reason that the questioning is appropriate for this

or future witnesses. Additionally, counsel can provide an on the record factual

explanation of how the area of questioning is important to the case or could lead to

admissible evidence. The testimony itself may also provide the necessary background for

a motion for protective order.

2. Motion for Summary Judgment

Depositions are very frequently used to support or to oppose a motion for

summary judgment. O.C.G.A. § 9-11-56(f) and Rule 56(f) of the Federal Rules of Civil

Procedure provide a party responding to a motion brought early in the discovery period

an opportunity to take depositions or obtain affidavits in order to respond. Though

depositions taken under these circumstances are specifically for the purpose of

responding to the summary judgment motion, these depositions are still the only

opportunity to discover all the facts the witnesses know, so the depositions should not be

limited to the areas covered in the summary judgment motion. You may want to employ

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cross-examination techniques to address the specific evidence supporting the motion, but

for the remaining subject areas, more open questions will probably still be preferred.

The likelihood of success of a motion for summary judgment depends almost

exclusively on the quality of the depositions that have been taken during discovery.

Ideally, you will have examined the causes of action and defenses sufficiently in the

deposition planning stage and obtained the necessary facts, admissions and other

concessions to position your client to make a successful motion for summary judgment.

Further, depositions will provide the backbone of the motion. Most, if not all, of

the facts included in the statement of undisputed facts will be extracted from the

deposition testimony. Georgia law dictates that summary judgment shall be granted if

“the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” O.C.G.A. § 9-11-

56(c). Similarly, under Rule 56 of the Federal Rules, the court will consider depositions

along with affidavits, pleadings, admissions, and interrogatory responses in ruling on a

summary judgment.

The nonmoving party is given the benefit of all inferences. Burnette Ford v.

Hayes, 227 Ga. 551 (1971). Where contradictions occur between a party’s testimony in

deposition or in affidavits, generally the testimony will be construed against the party.

Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (1986). Thus, if you have been

able to catch the opposing party offering contradictory testimony during his deposition,

you will get the benefit of the favorable testimony. Similarly, if a party attempts to defeat

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a summary judgment by contradicting prior testimony with an affidavit, only the

testimony favorable to the movant is considered. Id.; see also CSX Transportation Inc. v.

Belcher, 276 Ga. 522 (2003).

Pursuant to the Georgia Civil Practice Act, you can support your motion with any

form of testimony. O.C.G.A. § 9-11-56. You can submit affidavits to supplement your

client’s testimony in deposition, if the necessary information was not brought out by the

questioning of your client. However, since the burden is on the movant, you must be

careful not to contradict any deposition testimony without adequate reasonable

explanation for the change. You may also submit depositions taken of a party in another

lawsuit. Mitchell v. Southern Gen’l Ins. Co., 194 Ga. App. 218 (1990). In addition, you

may rely upon hearing or trial transcripts and depositions of witnesses in other civil or

criminal proceedings. Abalene Pest Control Svc., Inc. v. Orkin Exterminating Co., Inc.,

196 Ga. App. 463, 466 (1990). Since no evidence need be established by live testimony

at the summary judgment stage, the accessibility of a witness to testify at trial is no

concern. Id.

Though courts generally give the same weight to sworn testimony regardless of

form, many attorneys believe that it is more effective to rely on deposition testimony as

opposed to affidavits, even if the deposition testimony does not provide perfectly phrased

“sound bites.” Typically, you are relegated to sworn testimony, interrogatory responses

and other written discovery responses for the opposing party’s testimony, as it is unlikely

that you will have affidavits from the opposing party. With your own client, however,

you may need to provide some affidavit testimony to establish certain legally relevant

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facts if your client was not given an opportunity to tell his story in the deposition. This is

where some advance planning and preparation for your client’s deposition is helpful.

Counseling your client to “volunteer” certain points at appropriate times during his

deposition can give his testimony that much more impact at motion time.

Testimony from non-party witnesses also may be presented through depositions

or affidavits in support of a motion. Strategy may dictate that you keep a friendly witness

to yourself until you submit his affidavit along with your motion for maximum impact.

Alternatively, since you most likely have had to disclose the identity of all such witnesses

during discovery, they may have been noticed for depositions by the opposing side. If

that occurs, and depending upon your overall litigation strategy and goals, you may want

to question the witness fully to obtain all the necessary testimony needed to support your

anticipated motion for summary judgment. On the other hand, you might choose to defer

questioning and obtain an affidavit when the time comes. You must weigh the element of

surprise against the impact of deposition versus affidavit testimony and the possible

impact the testimony may have on the earlier resolution of the case.

If you opt for deposition testimony, preparation of friendly witnesses should be

done. Any resistance encountered on the part of the witness in setting up a deposition is a

good indication that you should depose rather than wait and count on an affidavit. If you

do not question a “friendly” witness during his deposition, and he later refuses to

cooperate with you, you have lost your opportunity to obtain that testimony.

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C. Use of Depositions at Trial

Even before trial, litigators will use depositions heavily in trial preparation.

Depositions should be used to prepare both the trial attorneys as well as the witnesses you

intend to call. Deposition abstracts or summaries, and the deposition transcripts

themselves, are invaluable for preparing cross-examination questioning of both your and

the opposing witnesses. The deposition testimony will provide most of the questions that

you will ask opposing witnesses. Some attorneys adhere strictly to the questions asked in

the depositions. Others will enhance the questioning with slight changes in the wording

of the questions. Most will, at a minimum, reorganize the questioning to maximize its

impact upon the jury. Preparing annotations to page and line will help you quickly locate

the deposition question in case a witness varies from the testimony in a material way.

In addition to cross-examination use, you should use depositions to prepare your

own witnesses for both direct and cross-examination at trial. Provide each witness a copy

of his deposition in advance of the trial and instruct him to review it carefully. Be sure

your witnesses understand that they should avoid deviating from their deposition

testimony at trial and the ramifications of doing so.

Specific depositions can be taken at any time for use at trial, even after discovery

has closed. Preservation or “evidentiary” depositions, as most Georgia attorneys refer to

them, can be particularly useful if a witness is ill or plans to move or travel around the

time of the trial. Often, attorneys will take evidentiary depositions of any out of state

witnesses, sometimes back to back with the discovery depositions, to save expense.

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Here are some suggestions to consider when you are the deposing attorney:

• Consider videotaping the deposition.

• If videotaping, go over demeanor, tone and dress, the same as you would if

the witness was to testify live.

• Prepare your witness if possible. Role play and rehearse potential cross-

examination. Suggest ways to improve the answers. Remember that your

conference may not be privileged.

• Be sure your questions are understandable and clear. Avoid objectionable

questions. Write out your questions and rehearse them.

• Include background information to bolster the credibility of the witness,

especially if the witness is neutral.

• Use preliminary questions to demonstrate that a witness is adverse before

using leading questions.

• Think about necessary visual aids which may aid the witness in conveying the

theme of his testimony to the jury.

• Anticipate objections and prepare to address them on the record. Unlike a

discovery deposition, you must rephrase if the objection is valid or if it might

be sustained, because you will not be able to ask it again unless the witness is

present at trial.

Keep these additional considerations in mind for defending an evidentiary

deposition:

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• Most attorneys do not notice friendly witnesses for depositions. Assume that

if such a witness is deposed, it will be used for trial.

• Utilize other sources, such as internet-based public databases, to try to

determine what the witness knows and to what the witness may testify.

• Use the deposition for discovery and preservation of testimony. First,

determine the helpful testimony. Then use additional questions to emphasize

that helpful testimony.

• Be prepared to object just as you would at trial. All curable objections must

be made on the record.

Once you are in trial preparation mode, you must prepare trial depositions for

presentation to the jury. This will mean editing the deposition down to the material you

need and obtaining rulings from the judge on any objections. Normally, objections to

deposition testimony are addressed in pretrial conference. Objections to unavailability

usually are addressed in pretrial conference as well.

Under the Uniform Rules of Superior Court, evidentiary depositions, and any

other depositions which you intend to use at trial, for any substantive purpose, must be

designated in your pretrial order. Before the trial, the portions of the depositions that you

desire to present to the jury should be redacted and any objections addressed by the court.

U.S.C.R. 7.2(18).

1. Testimony of Absent Witnesses

While attorneys prefer to present their evidence through live testimony, there are

times when a witness will be unavailable. Testimony of an unavailable witness may be

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offered via deposition. Both O.C.G.A. § 9-11-32(a)(3) and Rule 804 of the Federal Rules

of Evidence guide the use of depositions in this situation. Questions about the witness’s

availability normally have already been addressed and decided by the court during the

pretrial proceedings.

Reading the transcript of an entire deposition into the record during trial is

ineffective. Jurors often find it extremely tiresome, and even boring, to have an attorney

read a long deposition transcript in open court. If you must read portions of a deposition

to the jury, you should consider having a person who fits the role of the witness sit in the

witness box and read the part of the witness. Usually, an associate, paralegal or secretary

can fill the role. You are not required to read the whole deposition and you should not do

so. If the witness were live, you would never ask every single question that you asked in

the deposition. Rather, you should select the portions of the deposition which are

favorable to your case along with questions and answers necessary to give context to your

questioning. You are not restricted to the order of those excerpts. Instead, arrange the

selected portions in a manner most suitable to the presentation of your case.

When you have read all of your selected excerpts from the deposition, the other

side may read in additional parts of the deposition as cross-examination, as he sees fit.

However, under circumstances noted in O.C.G.A. § 9-11-32(a)(5), the opposing side may

be allowed to read, or have you read, additional selected portions immediately following

the excerpt that you have read when the jury in fairness should consider both parts

together. This is known as the “fairness doctrine” and is a significant difference between

live and deposition cross-examination.

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Requiring the reading of relevant portions of a deposition during opposing party’s

questioning is not the equivalent of offering your own evidence. In fact, if you assert the

fairness doctrine successfully and, as a matter of convenience, read certain testimony to

the jury in compliance with the Court’s fairness doctrine ruling, the testimony you have

read is nonetheless considered evidence of the opposing party. On occasion, plaintiff’s

counsel, through use of depositions in trial, gives the defense the opportunity to utilize

the fairness doctrine to bring out all of his evidence so that the defense may rest after the

close of the plaintiff’s case.

Preparing for such an opportunity can provide a major tactical advantage for

defendants: the defense is entitled to close last if no defensive evidence is offered. See

U.S.C.R. 13.4; Kia Motors American, Inc. v. Range, 2005 Ga. App. LEXIS 1092, 2005

Fulton County D. Rep. 3085 (Oct. 3, 2005) (overruling Georgia Pipe Co. v. Lawler, 262

Ga. App. 22 (2003) and holding that no announcement of request to close is required by a

defendant if no evidence is presented); Thico Plan, Inc. v. Ashkouti, 171 Ga. App.

536 (1984)(holding that denial of this right is error requiring reversal of the case); see

also, Wm. Alsberg & Co. v. Harper Mfg. Co., 28 Ga. App. 367, 368 (1922). Where one

party introduces part of a deposition, an adverse party has not "introduced evidence" so as

to give up his right to opening and closing argument by exercising his right to introduce

other, relevant parts of the deposition. However, the portion of the deposition the defense

requests to be read during the plaintiff’s case must be relevant to those parts of the

deposition submitted by the plaintiff. Note that the defense may not be entitled to close if

the same is done with live witnesses.

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2. Source of Admissions

Admissions by a party or a party representative are admissible through deposition.

Deposition testimony of a party, an officer, director or managing agent of a party or a

30(b)(6) corporate designee can be used as an admission, and will not be treated as

hearsay. For plaintiff’s counsel, deposition admissions may allow you to forego calling

the opposing party on cross during your case in chief. Keep in mind that pursuant to the

fairness doctrine, reading deposition excerpts for this purpose will allow the opposing

party to read related portions of testimony that ought to be considered by the jury,

together with your selected portion. This may diffuse the impact of the admissions if the

additional questioning weakens the “sound bite.” If you call the opposing party on cross

in the plaintiff’s case, then the defendant will not have the benefit of immediately

defending the admission with the softening testimony except to the extent he is

explaining the answer given.

3. Basis for Proffer

When you attempt to admit testimony and are thwarted by objections, a proffer is

necessary to convince the judge that the evidence is admissible and for preservation of

the record for appeal if testimony is not allowed. There are two ways to make a proffer.

First, you may simply explain to the judge what you expect the witness to testify.

Obviously, this is the least desirable method. A second, more effective proffer technique

is to have the witness testify outside the presence of the jury. This will require that the

jury leave the courtroom for some period of time. To avoid this, sometimes you may be

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able to show the judge exactly what the testimony will be, or at least give a flavor for

where you are headed, by showing him an excerpt from a deposition transcript.

4. Refreshing Recollection

Though you may use anything to refresh a witness’s recollection, deposition

transcripts are often used. Over time, memories fade and depositions have been taken

closer to the events testified about, sometimes years closer. At trial, you need to establish

the necessary foundation to refresh recollection, namely that the witness cannot recall the

answer and that the deposition might help refresh his recollection. The deposition itself

is never tendered into evidence.

The deposition may even be used as evidence if the witness simply cannot

remember the answer to the question and cannot be refreshed. A witness's testimony at

his deposition is properly admissible under O.C.G.A. § 9-11-32(a)(1), particularly if he

has difficulty with his memory at the time of trial and concedes the deposition was closer

in time to the events in question. Lawson v. Athens Auto Supply & Elec., Inc., 200 Ga.

App. 609 (1991).

5. Impeachment

Using a deposition transcript to impeach a witness is perhaps the most effective

use of a deposition transcript during trial. Any deposition may be used by any party for

the purpose of contradicting or impeaching the testimony of the deponent as a witness.

O.C.G.A. § 9-11-32(a)(1); see also James v. Tyler, 215 Ga. App. 479 (1994). Witnesses

may be impeached by contradictory statements made previously as to matters relevant to

the case. O.C.G.A. § 24-9-83. A prior inconsistent statement of a witness who takes the

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stand and is subject to cross-examination is admissible as substantive evidence and is not

limited in value only to impeachment purposes. Georgia Osteopathic Hosp., Inc. v.

O'Neal, 198 Ga. App. 770 (1991). If the evidence is not of the type ordinarily admissible

at trial, then it should be allowed only for the purpose of impeachment, not as substantive

evidence of the facts, and the jury should be so instructed. Shropshire v. State, 226 Ga.

App. 669 (1997). The rule is similar in federal court. Generally impeachment through

deposition will mean that the matters are substantive evidence as well as impeachment.

"When a witness admits unequivocally that he made a prior inconsistent or

contradictory statement, he has thereby impeached himself and it is not error to exclude

the prior written statement from evidence.” Thomason v. Genuine Parts Co., 156 Ga.

App. 599, 600 (1980); see also, Dickey v. State, 240 Ga. 634, 639 (1978); Pethel v.

Waters, 220 Ga. 543, 553 (1965); Howard v. Howard, 228 Ga. 760, 762 (1972). For

example, in Thomason, the plaintiff admitted his prior inconsistent statement with regard

to his speed near the time of the collision. At trial, he testified he was traveling

"approximately 35 [mph]," but admitted he had answered "Yes, sir" at the former trial in

reply to a leading question that he was traveling "35 to 40 miles per hour." The court

found that the prior statement relating to this issue was immaterial and should have been

excluded. Thomason v. Genuine Parts Co., 156 Ga. App. 599, 600 (1980).

A different rule applies where the witness does not own up to a prior inconsistent

statement. When a witness denies making a prior inconsistent statement, the prior

statement itself becomes admissible for purposes of impeachment. Dickey v. State, 240

Ga. 634, 639 (1978); Thomason v. Genuine Parts Co., 156 Ga. App. 599 (1980).

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Following is an abbreviated example of impeachment of a witness at trial:

Q: Ms. Brown, you testified earlier today that you saw the defendant’s

vehicle stop at the traffic light before it entered the intersection, did you

not?

A: Yes, I did.

Q: Isn’t the truth that the defendant’s car never stopped at the traffic light

before it entered the intersection?

A: No, that’s not true.

Q: Are you sure about that?

A: Absolutely.

Q: Ms. Brown, you remember meeting me a few months ago at your

deposition in this case?

A: Yes.

Q: You came there in response to a subpoena from the defendant’s attorney,

right?

A: Yes.

Q: And during that deposition the defendant’s lawyer and I asked you some

questions, didn’t we?

A: Correct.

Q: You swore to tell the truth that day, didn’t you?

A: Yes.

Q: And you did tell the truth, didn’t you?

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A: I did.

Q: I’m going to show you your deposition. Please look at page 34, line 23

where I asked you “Did you see the defendant’s Ford truck stop at the

traffic light before proceeding into the intersection?” and your answer was

“No, that truck just plowed right through the intersection without stopping

at the traffic light.” That was your answer, wasn’t it, Ms. Brown?

A: I suppose that is what I said that day.

Q: And you did not change that answer on your correction page, did you?

A: No, I didn’t.

While the jury may be permitted to hear the prior inconsistent statement in the

deposition transcript, the transcript itself is not submitted into evidence for the jury to

refer to in deliberations. “The jury heard the testimony from the witness stand but same

should not be unduly emphasized by giving the jury an opportunity to read them one or

more times after hearing them read in the courtroom, whereas oral testimony from the

stand is heard only once. Where any such papers are delivered to the jury over timely

objections, a new trial is in order.” Thomason v. Genuine Parts Co., 156 Ga. App. 599,

601 (1980)(citing Green, Ga. Law of Evidence, 206-207 § 87.1). The pages of the

transcript containing the prior inconsistent statement may not be submitted as

documentary evidence as they have no probative value except as testimony of the witness

in question.

Depositions of corporate representatives can provide fodder for impeachment at

trial. As noted above, a deposition taken pursuant to O.C.G.A. § 9-11-30(b)(6) can be

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used for any purpose at trial. For example, if an entity presents a representative for

deposition who has insufficient knowledge of the subject of the lawsuit, and fails to

present a designee who has the requisite knowledge during discovery, you may be able to

impeach the testimony of other representatives who attempt to give different or greater

answers to questions at trial. You may even be able to preclude other witnesses from

offering any other testimony to supplement that given by the entity’s designee in

deposition. If all the answers at deposition were “I don’t know”, limiting the party to

those answers can be devastating.

Experts may be impeached through any avenue available to impeach lay

witnesses. Cross-examination of experts presents the opportunity for a few unique

impeachment techniques of its own. Unlike lay witnesses, experts can be impeached on

authoritative books or other publications, whether or not they have relied upon them in

forming their opinions. If the expert relied upon a treatise, you may read a contradictory

statement from the source. Even if he did not rely upon it, you may still impeach him

with a statement that contradicts his opinions if he agrees that the book is authoritative.

You should, therefore, thoroughly explore all of the reference materials relied upon and

those that are recognized in the field.

If you have laid the foundation in the expert’s deposition as to additional evidence

he would like to consider or more work he has considered performing, this can be an

opportunity for cross-examination at trial. Anything that you have been able to get the

opposing expert to admit might be helpful can be a sword if he has not followed through

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with those ideas. Similarly, you can highlight the failure of an expert to perform further

investigation, including interviewing witnesses, reading depositions, or conducting tests.

D. Use of Depositions for Settlement/Mediation

O.C.G.A. § 9-11-27(a) permits depositions before an action is commenced. Pre-

suit depositions are used sometimes when an important witness is in poor health and may

die before suit is brought and a deposition can be scheduled. “The purpose of the rule is

to preserve and perpetuate known testimony, not to provide prospective litigants with a

vehicle for the ascertainment of pre-complaint evidence.” Worley v. Worley, 161 Ga.

App. 44 (1982). However, such a deposition does allow a “look-see” of anticipated

evidence in a prospective lawsuit which can be useful in assessing claims and to explore

potential settlement before suit is filed. Where there is concern regarding the negative

impact of the filing of a lawsuit, such as undesirable media attention, pre-suit depositions

can increase the ability of parties to reach early settlements. While the statutory

procedure in O.C.G.A. § 9-11-27(a) may be utilized, prospective parties may prefer to

enter an informal agreement providing for the depositions, how they will be used, the

scope and timing, and other aspects. Such depositions are similar to sworn statements,

except that the lawyers for both prospective parties are present for the questioning.

Whether depositions are taken pre-suit or during formal discovery, deposition

testimony can be extremely useful in settlement negotiations and mediations as a way of

laying out the strengths of your case and the weaknesses of your opponent’s case.

Telling your opposition what the testimony is “expected to be” simply does not have the

impact that a carefully selected compilation of deposition excerpts or video clips can.

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Sample trial cross-examinations of the opposing party and certain witnesses which are

carefully selected to place emphasis on important parts of your case are particularly

effective for settlement conferences and mediations. New videotaping techniques match

the video to the transcript testimony and make preparing such packages easier than ever

before. Even when videotaped depositions are not available, identifying sound bites that

you will use in trial to highlight any compelling admissions or concessions you obtained

in depositions helps focus the opposition on the problems with their case.

Nothing forces you to wait to make use of deposition testimony until a formal

settlement conference or mediation. When you have completed a particularly successful

deposition of the opposing party, do not hesitate to strike while the iron is hot. A party

fresh out of the deposition chair may be more malleable than earlier or later in the

proceeding. If settlement is your goal, take the opportunity to engage in negotiations

immediately after a good deposition is completed.