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American Bar Association

Trial Evidence Committee

What a Trial Lawyer Needs from a Deposition

By Kristine K. Meredith – February 9, 2015

 

We use depositions to gather information. We find out what the witness knows and doesn’t know, and generally we ask questions designed to educate ourselves about the case.

 

While a deposition is a discovery device, it also may play a critical role as evidence in trial. The deposition transcript may be read to a jury when a witness is outside the reach of a subpoena or otherwise unavailable. It may be used to impeach a witness who is on the stand. If the witness is a party or an authorized party representative, the transcript may be read to the jury as a party admission.

 

These two purposes of the deposition—gathering information and obtaining persuasive evidence for use at trial—are entirely different. Questions perfectly suited to gathering information may be of little value at trial. Keeping the different purposes in mind as you prepare for and take the deposition may make for a more useful transcript at trial.

 

In reviewing a deposition transcript, a trial lawyer is separating the wheat from the chaff. Testimony that the trial lawyer finds most useful typically follows certain types of questions:

 

Questions that are not technical. Questions that are steeped in the complexities of the case are seldom useful. In eliciting testimony for trial, avoid technical terms. If that’s not possible, try to limit the technical terms to one per question. Don’t justify a question laden with technical terms with the thought: “Well, we’ll just have to educate the jury about what all these terms mean.” It’s the trial lawyer’s job to make things as simple as possible, keeping the “education” that is necessary to a minimum. Every moment spent educating the jury is a moment that blunts the trial lawyer’s case.

 

Questions that don’t require context to understand. If one must read two pages of lead-in for the question or answer to make sense, then the testimony is of little value for either impeachment or for use as an admission. Lengthy pursuits make for dreadful reading. The trial attorney is looking for a simple, freestanding question followed by an answer that is equally freestanding. When the cat-and-mouse is unavoidable, consider restating the original question and getting the simple answer.

 

Questions uninterrupted by colloquy. Useful questions are free of colloquy. Do not allow the question and answer to become cluttered either by “clarifying” or by “amending” questions. If you want to change the question, ask an entirely new, freestanding question. Following is an example of how colloquy can destroy a question:


Q: Did you consider the fact that someone might be injured if the unit was not immediately replaced?

A: Then or now?

Q: Then.

A: You mean on May 16?

Q: Correct.

Defense Counsel: Are you talking about the unit that the witness inspected?

Q: Yes.

A: Yes.

 

Just re-ask the question to eliminate all the amendments to the question:

 

Q: When you inspected the unit on May 16, did you consider that someone might be injured if the unit was not immediately replaced?

 

Questions that are not argumentative or heavy-handed. Juries believe that the trial lawyer has Svengali-like powers and can get the witness to answer any way the lawyer wants. So the questions need to be simple, freestanding, and fair. Think of yourself not as Perry Mason. Think of yourself as a TV news reporter. The best reporters fade into the background because the questions are fair and easy to understand. They leave the focus on the witness. Concessions the lawyer obtains after roughing up a witness are useful for opposing summary judgment motions, but are less useful for trial.

 

Questions that are not cluttered with document handling deposition-speak. Exhibit formalities put the jury to sleep and the point of the question is lost. Again, good for motion practice but not good for the jury.


Not-So-Good Q: Referring now to a two-page document that I just handed you dated April 16, 2007, and bearing Bates stamp number dee-ee-eff-three-two-point-one; take a look at that and tell me whether you received it before you went into the meeting with Mr. Jones.

Better Q: You received Exhibit 17 before you met with Mr. Jones?

 

Questions that establish the “rules of the road.” Few things are easier to get from a witness, and more useful at trial, than the witness’s agreement in deposition as to the “rules of the road.” Of course, the trial lawyer can get such evidence elsewhere. But having the evidence come from the party’s mouth, rather than from the retained expert, helps immeasurably at trial. For example, the lawyer can prove at trial that an airline mechanic must follow the maintenance manual by several methods: the pertinent FAA regulations, the testimony from the plaintiff’s expert, the airline’s internal documentation, or even the testimony from the mechanic’s supervisor. But none of those methods is as useful as the mechanic responding affirmatively to the question “Do you agree that a mechanic must always follow the manual?”

 

Questions that let the witness speak. Some attorneys ask almost all their questions in leading format that calls for yes or no answers. Great for controlling the witness; not so great for impact at the time of trial. It is much better to get the witness to answer in his or her own words, when possible. When the witness uses his or her own words, the jury hears a confession rather than an agreement. For example:


Q: What color was the light when you entered the intersection?

A: The light was red.

 

The former has a stronger impact with the jury than the following:


Q: Would you agree with me that the light was red when you entered the intersection?

A: Yes.

 

If you know you can get the witness to tell the story you want, get it in his or her own words. Leading questions should be plan B.

 

Conclusion

In reviewing deposition testimony, the trial lawyer must cut through a lot of clutter to find useful admissions or impeachment testimony. Getting to the worthwhile testimony need not be frustrating or time consuming. Keeping in mind these tips and the potential uses at trial will result in testimony that is more helpful when the case goes to trial.


Keywords: litigation, trial evidence, deposition, transcript, trial, admissions, impeachment testimony


Kristine K. Meredith is with Danko Meredith in Redwood Shores, California.


 
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