| by By Scott Bonesteel, Esq.
Depositions are a feature of the daily lives of those of us who claim to be ‘civil litigation attorneys’. For every lawsuit filed there is typically at least one deposition and perhaps hundreds taken. Of those lawsuits, statistics show that 95 percent or more settle without a trial. However, one of the most painful experiences is to find yourself at trial without the deposition testimony, either direct or in the form of potential impeachment, you need to support your client’s claim or defense.
Sometimes you can deal with it ‘on the fly’, as many of us have successfully done. (The ‘old-timers’ say they did it all the time, but don’t believe them—even if they did they would rather have not done so.) A better practice is to make sure you have the deposition testimony in a format where it can be used effectively at time of trial. Following are a few simple suggestions that can help ensure that should you find yourself in trial that those heavy deposition transcripts are there for something other than making your trial bag cumbersome.
“Keep it Simple”
One of the first things to keep in mind, both for the deposition process itself and for any potential trial use, is that the language that we use, as attorneys, is often the least effective for obtaining information or for making an impression at time of trial. Lawyers are certainly the focus of public scorn, warranted or not, for verbally deviating from the vernacular (see what I mean?), i.e., speaking in ‘legalese’ or generally obfuscating what is really simple. Certainly not something done consciously, simply the result of probably 19 years of our youth misspent in various schools. Avoiding this habit makes for an easier deposition process and generates a more useable transcript for trial.
A simple example is the use of the phrases ‘prior to’ or ‘subsequent to’. I cannot count the number of blank stares from deposition witnesses who simply did not know what that meant. Keep it simple: Say ‘before’ and ‘after’. Everyone knows what ‘Before the accident did you ever hurt that same arm?’ Even if your deponent is a college English professor, keep in mind that the juror(s) sitting on your case may not follow a timeline illustrated with ‘prior to’ and/or ‘subsequent to’.
Granted, certain depositions, particularly those involving experts or complex topics, may be peppered with terms that the layman juror will not be familiar with. If possible, get the experts to put their responses in ‘plain English’, or at the very least, to agree with your characterization of their testimony, such as “So when you refer to ‘coefficient of friction’, you mean whether or not the steps were too slippery to walk on, correct?” Any juror will understand that. In short, while you do not need to speak like you just got hit in the head with a rock, you can address almost any topic in clear, simple language.
Keep it Clean and Compact
Tracking testimony elicited during a deposition is sometimes akin to tracking a ball in a pachinko machine. Sometimes that is by design: We skip from topic to topic in an attempt to keep the deponent from providing us with ‘canned’ responses to questions asked in a particular, anticipated order. While this may be effective insofar as the deposition is being used as a discovery tool, it often makes it difficult to use the responses as effective impeachment at time of trial. In short, if you have to read three pages of deposition testimony to a jury to impeach the witness on her/his last answer on the stand, the jury will never track what is ‘inconsistent’ about the testimony. Accordingly, as best as is possible, strive to get the answer to your question in fairly compact format—best if no more than two or three questions will have to be read back. That way the jury can track the issue and see why it is ‘impeaching’.
In addition to compact, strive for clarity in your deposition questions so you have a ‘clean’ question and answer. While we are all trained to do so, in practice we often see questions that are so convoluted that they are, at worst, incomprehensible, or, at best, so complex that a witness on the stand can easily—and believably—claim that they did not understand the question when it was originally asked in the deposition. Compound questions are just as worthless and, even if counsel did not object during the deposition, many judges will still sustain a ‘compound’ objection at time of trial. If nothing else, even you may not know whether the “Yes” answer was to the first or second part of the question. Again, keep it simple and you will have a record that is useable at time of trial.
Don’t Beat a Dead Horse
One of the hardest things to do during the heat of a deposition is to move on once you have what you need. The difficulty is understandable: We are trying to follow an outline or a train of thought and it is sometimes difficult to realize that the two sentences just uttered by the person on the other side of the table (that table that everyone can ‘estimate how long it is’…) gets you what you needed. If you think you have it, stop. Most times you will be right. If nothing else, you can check the transcript with the reporter on a break later in the deposition. If you have what you needed, great. If not, you can re-visit the topic later in the deposition. However, nothing is worse than trying to nail the lid on that coffin and giving the deponent the chance to ‘fix’ his/her testimony and say ‘Now that I think about it, I think I actually could see the other car before the accident.’ If they are going to change their answer, make them do it on the transcript (where you can argue was done in consultation with their attorney) and where you still have the ability to use the original answer at time of trial.
Quick tip: Depositions usually go on for hours and many pages. If you want to check if you really did get what you need, wait a few minutes until a fairly innocuous question is answered and then ask the court reporter to mark that page. While it doesn’t always work with excellent counsel on the other side, it may give you a starting point to look for the answer you really are interested in, which should be within a page or two. If you remember the exact phrase or words used, most reporters can search the transcript for that language, so you may not need to ask for the transcript to be marked. (If you have ‘real time’ on your laptop, goody for you, you know whether or not you got the right answer.)
Taking depositions well is a difficult part of our profession. The learning curve is flat and we are all still on it. However, if you keep in mind that the transcript you are generating is something that may actually be used at some point down the line, you will become better at taking depositions and either you or your boss will be less frustrated trial attorneys.
Scott M. Bonesteel is a partner at Kring & Chung LLP. His practice focuses on the defense of civil litigation in the areas of personal injury, product liability and construction defect. He can be reached at (858)436-0268 or via e-mail at firstname.lastname@example.org.