Trial by Proxy: Taking and Defending Depositions
November 14, 2006
Published by IP Litigator
November/December 2006
Because such a large percentage of cases now get resolved before trial, in many instances depositions provide the only opportunity for an attorney to actually confront a witness and conduct a meaningful and effective cross-examination. As a discovery tool, depositions serve three essential purposes: (1) to gather information; (2) to obtain potentially useful admissions; and (3) to box in a potential witness and thus limit what he or she will be able to testify to if there is a trial. In order to improve the likelihood of taking a successful deposition, this article discusses how to prepare and take depositions not only of fact witnesses, but also of experts and business entities. The article also provides hints on effective ways defend a deposition.
Preparing to Take a Deposition
No matter whom the deponent or what the subject matter, the key to taking a productive deposition is thorough preparation. By the time of the deposition, the examining attorney should know the subject matter and underlying documents better than the witness. In a case that raises technological or intellectual property issues, preparation assumes even greater importance. Technology actions require a lawyer not only to become familiar with the case subject matter, but also to learn the often complex and difficult technological principles.
Deposition preparation begins with a discovery plan. Because evidence uncovered during depositions frequently will make or break a case, a discovery plan should be constructed to maximize the effectiveness of the depositions. Early in the case, the litigation team-client decision-makers and outside counsel should identify the probable important issues, determine what evidence on those issues can be obtained from the client, and form a discovery plan for obtaining necessary evidence from the opponent and third parties. In most cases, the first step of a discovery plan is to obtain all potentially relevant documents from the other side, as well as from third parties and public sources. Carefully drafted, targeted interrogatories can be used to identify potential witnesses and segregate specific facts; because the Federal Rules of Civil Procedure limit each side to 25 interrogatories, however, it is important not to squander interrogatories by using them to attempt to get information that can be obtained through other discovery devices.
Once all available documents and materials have been gathered from discovery and other sources, they should be meticulously scoured for information that can form the foundation for potential areas of questioning in depositions. Use documents to identify potential deponents and to develop questions for witnesses, focusing on admissions and other statements in the documents. The accumulation of information in documents may be the single most important aspect of deposition preparation, as documents often provide a wealth of data which, when employed strategically, can be used to trap a witness or box him or her in.
Most examining attorneys prepare a deposition outline of one kind or another, although the length and level of detail of such outlines vary greatly. Some lawyers draft a bare-bones outline that minimally lists the broad topics to be covered in the deposition, At the other extreme, some attorneys create long, detailed outlines that set forth word-for-word every question the attorney expects to ask, plus all possible follow-ups that might be pursued depending on how the witness answers each foundational question, so that the outline takes on the appearance of an intricate flow chart. Whether long or short, simple or detailed, the purpose of a deposition outline is to provide a structure for the examining attorney and a checklist to ensure that he or she covers everything. There is no best way to create or use an outline; an attorney should adopt an approach that works best for him or her.
Finally, one of the basics of preparing for a deposition involves sending out the deposition notice. The examining attorney must make tactical decisions on where the deposition take place (not in a location in which the witness will feel comfortable), the date and starting time of the deposition (which usually involves some coordination between the parties) and whether to videotape the deposition (more and more, the answer is yes).
Preparing to Defend a Deposition
Preparing to defend a deposition is essentially the mirror image of preparing to take a deposition. To effectively prepare a witness, the attorney needs to become at least as familiar with the subject matter, and in an IP case, with the technology, as with the witness. As with the preparation to take a deposition, documents play an important role in the preparation of a witness. The defending attorney should look at every document that the witness may have seen and identify those that may be important. Before the deposition, the witness should then be shown and asked about each important document. A word of caution, however. To the extent a document is used to refresh a witness's testimony, it may have to be produced to the other side; therefore, do not show a witness a privileged document unless producing it will not create a problem.
Role playing forms an important part of deposition preparation, particularly if the witness has little or no experience as a deponent. Attorneys who have taken or sat in on numerous depositions sometimes lose sight of the fact that it is an unfamiliar, intimidating and unsettling environment for most people. It is, therefore, crucial to use the preparation session to try to put the deponent at ease with the setting. When possible, conduct the preparation session in a law firm conference room similar to the one in which the deposition will take place. Explain the function of the court reporter and the Kabuki-like protocols of a deposition. Most importantly, ask the witness questions similar to those he or she will likely face at the actual deposition. Probe the witness for weaknesses, show him or her potentially difficult documents and work with the witness to formulate answers. Care must be taken not to overstep boundaries; it is the witness who must ultimately answer the questions, not the lawyer, and while the attorney can help the witness articulate and shape answers, he or she should not "feed" answers to the witness. If a witness does not remember a particular event, the attorney can use documents and other testimony to attempt to refresh the witness's recollection, but should not tell the witness what his or her recollection should be.
The bottom line is that because most witnesses invariably experience tension and nervousness during a deposition, it is much harder for them to think clearly. It is not uncommon for a witness to "flub" a question he or she hears for the first time during the deposition because of nerves. The goal of any deposition preparation should thus be to ensure that such an occurrence never happens, or if it does, it does not happen with respect to important issues.
Taking a Deposition
The manner in which an attorney takes a deposition involves essentially two elements: (1) fundamentals and (2) style. The fundamentals relate to the asking of questions, the coverage of necessary topics, the use of documents, the management of time and, overall, the accomplishment of the purpose of the deposition. Style relates to the way in which the attorney accomplishes the fundamentals-the manner in which he or she interacts with the witness and the opposing attorney, deals with objections and generally comports him or herself. Mastering both is important to the effective taking of a deposition.
The fundamentals begin with making sure that the witness understands the deposition process, his or her rights obligations as a deponent and how and when the deposition transcript might be used. More essentially, however, they involve the diligent work of asking all of the necessary questions and eliciting the maximum amount of information from the witness. The goal is to wring every last bit of useful information from the witness. This is when the attorney's preparation proves invaluable. A well-constructed outline will assist the lawyer in covering the full range of topics. Whether or not to follow the outline rigorously or to use it sparingly is a judgment call to be made by the examining lawyer depending on his or her confidence level and the way in which the deposition is proceeding.
In a case involving complex technology where the witness is being examined in part on issues relating to the technology, it is critical to not only get information, but to get it in a form that will be useful and understandable to a judge or jury. This means making an extra effort to have the witness explain technological concepts in relatively common language. A hostile witness may try to confuse matters by speaking in technical jargon or answering questions with complicated or unfamiliar terms. The questioner must ask follow up questions that force the witness to use more recognizable language and should not abandon a particular subject until he or she is satisfied that the record is as clear as possible. Even when the subject turns to less technical areas, the liberal and well constructed employment of follow up questions is an essential part of taking a deposition. Thorough preparation is necessary to maximize the benefits of the session.
One final word on fundamentals: The Federal Rules of Civil Procedure limit the time for a deposition of any single witness to seven hours, exclusive of breaks. While this restriction can be extended for particularly important witnesses by either stipulation of the parties or court order, it will be in place for most witnesses. Therefore, the examining lawyer needs not only to ensure that he or she covers all of the desired material, but also to manage the deposition in such a way as to allow sufficient time to get to everything.
The style component of taking a deposition generally relates to the comportment of the attorney taking the deposition. Some lawyers try to project an aura of aggressiveness in order to intimidate the witness and the defending attorney. Others adopt a friendlier demeanor, perhaps for the purpose of making the witness feel more comfortable in the hope that a more comfortable witness will be more forthcoming or less guarded in answering questions. Of course, there is a wide range of approaches to employ in-between out and out aggression and cozying up to a witness. The style to use in a deposition depends on what the attorney feels most comfortable with and the circumstances of the deposition. For the most part, we are what we are, and it does not typically work well to try to adopt a different personality-a naturally aggressive person will not generally be as effective trying to be a friend to the witness. Nevertheless, circumstances may require a change in tactics: A lawyer who starts a deposition in friendly mode may have to become more aggressive if he or she is not getting the anticipated level of cooperation. As with most aspects of taking a deposition, a certain amount of flexibility and the ability to make changes on the fly are important.
The matter of style also comes into play in how to deal with the objections and behavior of the defending attorney. Should aggressive, hostile objections be met with an equally belligerent response? Should the examining attorney rephrase questions that draw an objection even if he or she believes the questions are proper? Perhaps most importantly, what should the examining lawyer do when confronted with an obstructionist on the other side whose conduct crosses the line and is intended to do nothing more than disrupt the deposition? Again, the manner of dealing with the defending attorney is a function of the examining lawyer's personality and the particular situation.
If attorneys go too far in making objections or coaching the witness, the examining lawyer has to be ready and willing to involve the court when necessary. Many judges will make themselves available by phone so that issues that arise during the deposition can be resolved then and there. If the judge cannot be reached during a deposition, the lawyer must be sure to make a clear record of the other side's improper behavior so that there can be no question of what happened when the matter finally makes its way to court. In extreme circumstances, the examining lawyer can always resort to suspending the deposition until the court can decide the matter. Whatever style an attorney settles on, he or she cannot allow the defending attorney to hijack the deposition.
Defending a Deposition
The defense of a deposition is, likewise, a matter of fundamentals and style. The main fundamentals with respect to defending a deposition involve knowing when to object to questions, what objections to make, when to instruct the witness not to answer a question, and when and how to ask for a break. In order to properly apply these fundamentals, the defending lawyer needs to know the rules regarding objections and other behavior inside and out. The most basic rule is that only objections as to the form of a question need to be raised during the deposition; all others - relevance, hearsay, etc. - are preserved until trial (or a party attempts to use the deposition testimony to support or oppose a motion). As to instructions not to answer, the black letter rule is that an attorney should only instruct a witness not to answer a question if the answer would invade a privilege, although there are certainly other situations in which the instruction may be appropriate, such as to protect privacy or when the questioning gets too far afield.
The defending attorney's most important job is to protect the witness and make sure he or she does not get too flustered or angry. One way to accomplish this task is through objections. During deposition preparation, the attorney should instruct the witness to pay attention to objections and reflect on an objection before answering a question, such as by understanding not to speculate when the attorney objects that a question call for speculation. Another way is for the defending attorney to request a break when warranted. It is generally not appropriate to break in the middle of a pending question, but the defending lawyer should insist on a break when he or she believes it necessary to calm down a witness who is getting agitated.
The style employed in defending a deposition, as with that in taking a deposition, is a function of personality and circumstances. Some attorneys will object to practically every question, others will be more sparing in their objections. By the same token, some lawyers repeatedly make statements during the deposition - for the likely purpose of coaching the witness - while others say little other than the occasional objection. The lawyer has to make a judgment call about how active to be and whether his or her conduct will lead to a court involvement, and if so, whether the risk of court involvement and a possible adverse ruling is outweighed by the perceived benefits of acting in an aggressive manner. [Author's note: It is my experience that inappropriate, bellicose behavior almost never has the intended result, but in the end accomplishes nothing more than making the bad actor look ineffective and having him or her incur the wrath of the court.]
Depositions under FRCP 30(b)(6)
Perhaps one of the most effective tools created by the drafters of the discovery portions of the Federal Rules of Civil Procedure is the ability to take the deposition of an entity, rather than just of a person. The vehicle for taking this kind of deposition is Rule 30(b)(6), which provides that a party may notice the deposition of a corporation, partnership, government agency or other entity. According to Rule 30(b)(6), the deposition notice must state "with reasonable particularity the matters on which examination is requested." The party receiving the notice must then "designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify."
In other words, rather than requiring the party seeking a deposition to ascertain which individuals it thinks might have useful information on particular topics - and noticing and setting up the depositions for all of those witnesses - Rule 30(b)(6) permits a party to notice the deposition of the company and places the burden on the company of determining which individuals are best qualified to respond to questions on the designated subjects. If there is no one person in the organization who can respond to all topics on which testimony is requested, the company must make available however many individuals are necessary to respond all of the requested topics. It is the obligation of the company to ensure that a witness is made available to testify on each of the topics, unless after a reasonable search there is no one in the organization to address some of those subjects. Finally, in contrast to depositions of named individuals who have no obligation to prepare for the deposition, witnesses designated under Rule 30(b)(6) must do a reasonable amount of investigation to be prepared to cover the topics on which he or she has been put forward to testify.
The effective employment of Rule 30(bX6), particularly early in the discovery process, can yield a wealth of useful information in an efficient and in a cost-effective manner. Rule 30(b)(6) depositions should be a part of virtually every discovery plan.
Depositions of Third Party Witnesses
Most cases require the deposing of several witnesses who are not parties to the litigation. Depositions of third party witnesses differ from those of party witnesses in two important respects. First, while a party witness can be compelled to appear at a deposition by sending a notice to that party's attorney, a third party witness's attendance can only be compelled by hand serving a subpoena on the witness. Second, depending on where the witness is located in relation to the venue of the lawsuit, the deposition of a third party may be the only vehicle for obtaining that witness's testimony at trial.
The Federal Rules of Civil Procedure have made the task of subpoenaing a witness somewhat less complicated than it used to be, primarily because a subpoena no longer needs to be issued by the court, but can be issued by the attorney who requests the deposition. The rules still require that service of the subpoena on the witness be by hand, and that an appropriate witness fee accompany the subpoena. Care must be taken in setting up the deposition of a third party witness because a defect in the subpoena or in service removes the coercive effect of the subpoena. If the information from a third-party resides in a corporation, Federal Rule of Civil Procedure 30(b)(6) also applies to third parties, as well as to party companies. Pursuant to that rule, the subpoena to a corporation should name the corporation as the deponent and should list the topics to be covered. As with depositions of company-parties, the third party corporation is then obligated to provide witnesses to answer questions on the listed topics.
If the third party witness resides in a different state, or in some cases, in a different district, the witness cannot be compelled to appear at trial. In such situations, a deposition presents the only opportunity to obtain the witness's testimony. Both the examining attorney and the other attorney should comport themselves accordingly. The examining lawyer should organize his or her questions so that the examination will flow much like that of a witness at trial, rather than bounce from subject to subject as might be the case in a discovery deposition. Similarly, the other lawyer should be more precise about making objections, since there is a higher probability that the transcript will be used at trial and the lawyer does not want to appear in a bad light to the jury. Because the third party witness will not likely appear at trial, the deposition should almost certainly be videotaped, particularly for important witnesses.
Expert Depositions
The depositions of expert witnesses, especially technology experts, present unique challenges. First, no matter how familiar the examining lawyer becomes with the subject matter, the expert will know it much better. In addition, the expert is an advocate for the opposing party and thus will almost certainly be hostile and difficult. Many experts are "professional" witnesses who have had their depositions taken many times and, therefore, will be neither uncomfortable nor capable of being intimidated. Experts can also present problems for the defending attorneys, as they do not always take instructions well and may have a tendency to talk too much.
Because of the special challenges that accompany taking the deposition of the opponent's expert, thorough preparation may be even more important than depositions of percipient witnesses. Federal Rule of Civil Procedure 26(a)(2) requires a party to fully disclose the opinions of its experts and to provide its experts' reports to the other side, as do most court pretrial scheduling orders. Accordingly, before the deposition, the examining attorney will have access in advance to the full scope of the expert's opinions and must become intimately familiar with those opinions. The attorney should also request, and is entitled to, all documents and materials which form the basis of the expert's opinion, including correspondence between the expert and the other side's counsel. Once an expert is disclosed, the other attorney should perform an extensive search for papers published by the expert, testimony in other cases and anything else that may contain information on the expert's views. It is surprising how often an expert will have taken a position in an earlier case or in a paper that is inconsistent with his or her opinion in the pending case. Finally, the examining attorney's own expert should assist in the preparation for the deposition by explaining the opinion and suggesting areas of questioning, if not specific questions.
In examining the expert, the attorney must be conscious of reducing subjects to their simplest form and cannot let the expert obfuscate matters by using jargon or overly technical terms. The attorney should not be afraid to say: I don't understand, please explain that to me. In most cases, the attorney's own expert should attend the deposition and suggest areas of examination.
The duties of the attorney whose expert will be examined should prepare an expert for a deposition as he or she would prepare a percipient witness. The attorney is not representing the expert, however, so everything they discuss is a fair subject for examination. Thus, the attorney must be careful not to reveal privileged information or case strategy to the expert. Even though, the expert may have testified many times before, the attorney should nevertheless reinforce the basics of being a good witness.
The role of the non-examining attorney at an expert deposition is somewhat diminished. While he or she can and should make objections as to the form of a question, the attorney cannot instruct the witness not to answer a question because he or she does not represent the expert; the attorney can suggest that the witness not answer a question, but ultimately the expert must make the final decision. The attorney must also be very careful about discussions with the expert during breaks because those discussions would not be privileged and can be the subject of examination.
Conclusion
Taking an effective deposition is more science than art, in that it depends on preparation, hard work and diligence rather than intuition and instinct. A lawyer who thoroughly prepares for a deposition and conducts an examination with confidence and perseverance will succeed almost every time.