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Preparing for Your First Civil Trial, Part Two: Depositions

By Jennifer L. Saulino, Maureen R. Knight, and LaQuita S. Wornor

Depositions have always been an important tool of discovery, and like other discovery tools, you should think about your trial themes and strategies when deciding whom to depose and what to ask. Increasingly, videotaping depositions has become standard practice. And these recorded depositions are also increasingly used in lieu of trial testimony altogether—particularly in mass torts and other large, complex cases. But even in small cases, if they are not used as the full testimony, snippets of video may be used for impeachment purposes.

Thanks to the widespread use of video, taking depositions—even during the earliest stages of discovery in what is likely to be a multiyear discovery process—should be viewed at least in part as taking trial testimony. And, on the flip side, it is equally important to prepare your side’s witnesses with an eye toward what your opponent will want to use at trial.

In the most basic sense, there are two kinds of depositions: discovery depositions and trial depositions. Some court rules provide different parameters for these two types of depositions, such as time allowed for questioning and other particulars. Regardless of which kind of deposition you are taking, however, you should consider whether or how it might be used at trial.

In your earliest stages of preparing for the deposition, ask yourself which category more accurately describes the deposition: are you taking this deposition to discover information the witness knows and to establish the limits of the witness’s potential trial testimony, or are you taking this deposition because the person is likely to be unavailable at trial and you plan to use the deposition in lieu of live testimony?

Discovery Depositions
If you are taking a discovery deposition, your questioning should be more open-ended, and you will need to spend more time following leads the witness provides just to see where you end up. Your purpose is to learn what the witness knows and does not know. If the witness then testifies at trial, you know what she will say. And if she testifies differently at trial, you will have the deposition testimony to rein her in on cross-examination.

In addition to the obvious goal of obtaining as much information as possible, depositions are a sneak-preview of how the witness will perform at trial. Depositions are invaluable for observing and noting witness tendencies, habits, demeanor, credibility, likeability, and the countless other traits that will affect whether or not this individual, in the minds of the jury, will help or hurt your case.

If you are accompanied by a lawyer or paralegal (or even the client), he or she need not use his time feverishly documenting the witness’s testimony. That’s what the court reporter is for. Rather, have him note nonverbal actions or responses that are not captured by the court reporter—eye contact, body language, nervous habits, believability, fingers crossed. Even in videotaped depositions, those kinds of reactions from someone observing live can be invaluable a few months (or a few years) down the road when you are considering which witnesses to call live or which videotape testimony to designate for trial.

Trial Depositions
If you are taking a trial deposition, you should handle the witness like you would in a live trial. Your questioning should be more leading, suggestive, and focused. It should address the issues you need the witness to address at trial, and it should stray no further. You should be mindful of asking questions that will require the witness to make the points you need the witness to make while preventing opportunities for the witness to expound in an open-ended and unfocused way that muddies your line of reasoning. And you should be prepared with documents and testimony of other witnesses to corral the witness if she tries to stray into ambiguity.

Just as the witness in a video deposition must be mindful of his physical appearance and demeanor and cognizant of the juries’ ultimate impression of both, you as the lawyer must also. Conduct yourself as you would at trial, ensuring that your questioning or tone could not be perceived as disrespectful or bullying—you too must be likeable. But don’t worry; the video likely won’t capture your appearance, so save your best suit for trial.

In either kind of deposition, consider how key pieces of testimony will be relayed to the jury. If you get a response that could be critical to your case but you and the witness took a circuitous route to it, recap in a summary question so that the question and answer set will be clean and clear if it is read or shown to the jury.

For example, it is possible that, to impeach a witness on a key point, you will need to refer to snippets that reside on dozens of different pages of the deposition transcript. (“Can you please read to the jury your testimony found at lines 12 and 13 on page 24; lines 4 though 7 on page 29; lines 18 and 19 on page 33; and . . .”) These types of situations should be avoided whenever possible. Summarizing the testimony will be equally useful in making summary judgment arguments.

At any deposition, you are without the watchful eye of the judge and the role of objections is far more limited. Think through the rules as they relate in particular to your deposition. For instance, if you are taking a trial deposition and hear an objection to the form of your question, consider whether you need to reword the question to make certain the judge will allow the question and answer to be shown to the jury. If you hear foundational objections, consider whether you need to lay more foundation with the witness to ensure the testimony will be admitted. In other words, resist the urge to tune out and utterly ignore the incessant annoying objections interjected by feisty opposing counsel, particularly during crucial areas of questioning.

Witness Availability
Also, get in the habit of asking every deposition witness—no matter which type—his or her availability for trial (particularly if it is a date certain), residential address, work address, and contact information (including mobile phone number). Even if you are assuming this to be a trial deposition, make sure you have this information in case you end up arguing over whether the witness can be available for trial. Consider whether you may have to serve a trial subpoena and, if so, ask about the witness’s general weekly schedule or routine.

Deposition transcripts will be essential at trial, regardless of the type of deposition. Trial deposition transcripts might be read into evidence, or videotape pieces may be played in lieu of live testimony. Discovery deposition transcripts or tapes are critical to preparing witness outlines, both for direct and for cross-examination. They can also be used for impeachment for either kind of witness, so review deposition transcripts and tapes immediately when they arrive.

Exhibits and Summaries
Establish a practice of electronically organizing your depositions and hyperlinking deposition exhibits as soon as they are available. After all, deposition exhibits are fertile ground for trial exhibits. If your case has more than a few depositions and may span over several years, also make a practice of creating deposition digests or summaries in a standard format immediately following the deposition.

If you use a standardized format, summaries will assist you later in making judgments among witnesses who have testified about similar topics. These summaries should, therefore, include a section addressing the attorney’s opinions of any benefits or drawbacks of the witness as a trial witness so that a year or two later you have the immediate impressions to draw from. These practices may seem tedious and unnecessary in the middle of the discovery process, but you will thank yourself shortly before trial.

Witness Preparation
On the other side of the coin, keep all of these tips in mind when you are preparing your witnesses to testify in deposition. Figure out which kind of deposition your opponent’s questioning will most resemble, and practice that kind of questioning with the witness. If you think your opponent is likely to try to use the testimony as trial testimony, prepare yourself to meet with your witness as though you planned to take his or her deposition yourself, and then roll-play cross examinations of the most troubling topics.

Help your witness to understand that he or she need not answer open-ended questions by anticipating the questions that might be asked or should be asked. He or she should only answer the actual question asked and wait for the follow-up question. If your opponent notices a videotaped deposition, regardless of which type it is likely to be, explain to the witness all of the appearance points you would discuss with a live witness: attire, demeanor, eye-contact, confidence, politeness, and other factors likely to stand out to the jury when they are deciding whether your witness’s testimony should be given weight.

Previously: "Where and How to Begin."

Jennifer L. Saulino is with Covington & Burling LLP, Maureen R. Knight is with Constangy Brooks & Smitth LLP, and LaQuita S. Wornor is with Frost Brown Todd LLC.

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