In a deposition, one lawyer gets to ask witnesses that are either neutral or for the other side questions about the subject matter of the case. I am going to focus on “fact witnesses” for this post and leave discussion of “expert witnesses” to a subsequent post. In this post I’m also going to focus on taking depositions and come back later to writing about defending depositions.
Depositions can be sort of boring; but every once in a while, they get exciting. While I was in private practice, for example, I represented an industrial company. My client’s neighbor was alleging that my client was causing noxious odors, and it was suing for an injunction based on nuisance. One day I was defending depositions of five of my client’s employees. One purpose of a deposition is to find evidence to impeach the credibility of witnesses for the other side. A felony conviction can be used for impeachment. So, for each of the starting four employees the other lawyer asked the standard question whether the witness had been convicted of a felony. Each answered “no.” In preparing the fifth witness, however, I learned that he had been convicted of second degree murder. Needless to say, I was quite nonplussed, and I went into the deposition expecting a big show that this witness was a terrible person and should be impeached. But the lawyer did not ask the felony question and the information never came out. This shows that you never fully know what to expect in a deposition. He just forgot to ask the question that one last time.
A great deal of strategy and planning goes in to taking and defending depositions. More than I can reasonably put in one post. My purpose here is to take a perspective on depositions that explains what to expect in taking depositions. I will also tell some more war stories to give examples of deposition practice.
What is a Deposition?
The Federal Rules of Civil Procedure provide for several types of depositions. It is possible, for example, to take a deposition to perpetuate the testimony of an ill person and use his or her testimony as trial testimony. My focus, however, is going to be on the standard discovery deposition. In such a deposition the witness (usually from the other side) takes the same oath for truthfulness that they would at trial. The lawyer taking the deposition then asks questions, which the witness answers.. All objections are retained until the deposition is used at trial, other than objections to the form of a question.
Depositions used to be unpleasant things when I started practice. Many objections were made as “speaking objections” By that I mean the objecting lawyer explained the objection in a way that told the witness what to answer or not to answer at all. This resulted in a lot of fighting between lawyers. Courts have been mostly successful in abolishing the speaking objection so that an objection from a defending lawyer would go something like “objection, the question is leading.”
Although depositions can, as discussed below, be used in court and are subject to evidentiary rules, the judge rarely attends a deposition. This leaves the lawyers to work out their disputes, or in more extreme circumstances the parties can call the the judge for instructions. But one warning, judges hate discovery disputes. Another warning: depositions are taken under the same oath that would apply during trial. That means lying in a deposition is perjury. Lies can also be used to discredit (“impeach”) trial testimony. Always tell the truth in a deposition, even if it hurts.
Questions and answers in a deposition are normally taken down by a court reporter, but other possibilities exist. For example, some depositions are recorded on video. The witness should always treat the deposition as a solemn occasion and behave accordingly. Conversations with opposing counsel off the record are especially discouraged.
6 Reasons for Taking a Deposition
A lawyer should not depose a witness without good reason. Only then will the lawyer be able to use the deposition to advance the story of the client’s case. Without a strong central core, a deposition is bound to collapse into a disorganized and useless mess. The following six reasons should be weighed before deciding whether to depose a particular witness. They will also help organize the deposition.
The facts (i.e evidence) to be discovered in the deposition will help and support the client’s story. It is important to tie the witness down so that those facts will not be contradicted on summary judgment, and they will come out clearly if there is a trial.
The witness may have evidence that will lead to other relevant and helpful sources of information. This purpose may justify a deposition even where the witness does not have otherwise helpful testimony.
The witness probably will testify in a way that undermines the client’s story or that will significantly advance the opponent’s story. This is information that is important to know to either rebut or impeach the witness at trial.
The lawyer needs the testimony to set the evidence up for impeachment at trial. Remember my murder story at the beginning of this post.
The lawyer needs the testimony to understand the opponent’s story and what the opponent intends to argue at trial.
The lawyer needs the testimony in order to move for summary judgment, or defend from a motion for summary judgment by creating an issue of fact.
I’m sure that I’m forgetting some reasons for taking a deposition. The important point, though, is good reasons must exist in the particular case to justify the deposition. Without reasons that the lawyer can articulate, the deposition is bound to fail.
Should Your Lawyer Take the Deposition?
Considering the reasons for a deposition discussed in the last section, it is always open whether a deposition is justified. The lawyer, with the client’s input, should, for example, consider whether an informal interview of a witness would work as well as a deposition. This would be true if the lawyer is just searching for background facts and does not believe he or she will have to impeach the witness or may call that witness for his or her own case. Written declarations can always be used if the witness is willing and they need to provide sworn testimony. This is especially true on summary judgment.
The reason I added this section to this post is that depositions are expensive. Lawyer time, court reporter, transcription, etc., all add up. Many times it will be obvious that a deposition is necessary. But often the lawyer and client should go through a cost benefit analysis when a deposition might be helpful but not necessary.
Usually witnesses take their oath seriously, and they try to tell the truth, at least as they see it. But every once in awhile lawyers run into trouble witnesses, who will do anything to avoid answering questions. I thought a few examples might make my point, or at least be entertaining. The first example is of a belligerent witness, and how I dealt with him. The second addresses the fear that the mafia can put in witnesses and in you. And the “joy” of deposing a made man in the mafia. Finally, I illustrate how a witness who is acting in bad faith can prevent a meaningful deposition, and I offer some suggestions how to deal with the situation.
The Belligerent Witness
As I said, most witnesses try to answer deposition questions fairly. Some require prying information out of them, but those usually eventually tell the whole truth, at least as they see it. But some witnesses, especially pro se witnesses, think the key to deposition practice is to be as belligerent and obnoxious as possible. And this can work to wear down the questioner. Things become so unpleasant that the questioning lawyer just wants to ask some questions, not get good answers, and pack up and leave.
While I was a Senior Assistant Attorney General I had a witness like this. We’ll call him Mr. Brown. Mr. Brown thought that it was his job to make things as unpleasant as possible. In a deposition, it is important to get the witness to agree that the questioner is asking questions in wording that is plain and ordinary English. One way to do this is to ask the witness whether he or she reads newspapers and then, when the answer is yes, tell them that the questions will have the same plain, ordinary meaning that newspaper language would be. I asked Mr. Brown whether he read newspapers. He refused to answer, saying it was not any of my business. I asked him whether he had ever ready any part of a newspaper, and he responded that it was none of my business. Things went downhill from there. Mr. Brown argued with me just about every question. But in the end, I forced him to answer the most important questions.
So, what should be done when faced with a witness like Mr. Brown? There are really two choices, neither of them very good. The first is to call the judge and explain that the witness is not answering questions in good faith. Sometimes a lecture from the judge will put the witness back on track. Second, the lawyer can get what he or she can from the deposition, and then move to compel answers to select deposition questions. This is the course I took with Mr. Brown because I wanted the judge to see the whole transcript of Mr. Brown’s bad faith before making a decision. And we did get good rulings from the judge. In the end, Mr. Brown was forced to answer the important questions.
The Scary (Mafia) Witnesses
We have all seen movies like the Godfather and Good Fellas. They show us just how scary organized crime can be. A horse head slipped into a movie executive’s bed comes to mind. As a lawyer I have only had one brush with the Mafia, and it shows just how difficult some depositions can get.
When I first arrived at Heller Ehrman early in my litigation career, I was first assigned to a civil RICO case where a kickback scheme was at issue. RICO is the Racketeer Influenced and Corrupt Organization Act, and the criminal part of the act has been used to decimate the Mafia. Although not often invoked, there is a civil component to RICO, and that is what we were asserting in our claims.
Although the kickback scheme had occurred in Oregon, many of the key witnesses were located in New Jersey. Many of those witnesses were members of the Mafia. I was assigned to do some depositions of those witnesses. Not something I looked forward to, and, in fact, most of them lied.
One witness, however, worked in the industry that we were looking at, and he was willing to talk to me. The night before the deposition he gave me a good deal of information in an interview. I hoped to get this information from him under oath in a deposition scheduled for the next day.
The next day, however, the witness claimed not to remember anything, and his lawyer was incredibly hostile. Someone had gotten to him over night. I got a few things in the deposition, but he was really frightened. Because I was not law enforcement it proved impossible to get him to testify. This is one example where spending time with a witness is a waste of time. And it was frightening to me too, because I did not know whether the Mafia would come after me.
L was the person who ran and benefited from the kickback scheme. He was a “made man” in the Mafia, but I don’t know for which family. L really did not want to have his deposition taken. He ducked service and refused to show up. Finally, however, with the help of a New York law firm, we were able to force him to testify. He was remarkably honest, and he admitted to the entire kickback scheme. But he said something that really worried me: “Why are you trying to interfere with my business.” I remembered the Godfather where Michael used the same kind of language and killed people. Then, L asked where we were staying, and the lawyer with me blurted out the location. I was not happy.
Obviously, I was not killed by the Mafia, but the experience did shake me. The example shows the need for persistence in pursuing you client’s interests. We eventually recovered one million dollars from L. I was glad the case was finished, but also proud for having hung in despite the concerns about L.
The “Forgetful” (Lying) Accountant
“I don’t know” and “I don’t remember” are perfectly fine deposition answers, so long as the witness really doesn’t know or knew at one time and forgot. You need to watch out, however, for the witness who is willing to use these answers strategically. A story should illustrate my point.
As a young associate I deposed an accountant that was a turnaround specialist. He had worked on the plaintiff’s company. Now you would suppose that someone with impeccable credentials would remember work that he had done less than a year before. But every answer was either I don’t know, or I don’t remember. He would not answer any question truthfully. This kind of witness is the most difficult in that it is almost impossible to prove that they’re lying. He completely flummoxed me. The deposition results were therefore useless. I knew he was lying but I couldn’t prove it. That’s why it’s important in any deposition to have documents sufficient to prove the witness should know the answer. (The documents he brought to the deposition were no more than scribblings on paper.) In addition, with any deposition you cannot have high expectations if you’re dealing with a sophisticated witness who is willing to lie.
Taking a deposition requires a great deal of preparation. Indeed, because of the cost of depositions, the first question should be whether a deposition is necessary at all. If a deposition is taken it should be done because it advances the client’s story in litigation. Some depositions can turn out to be quite frustrating, but usually witnesses are trying their best to tell the truth, and a deposition goes smoothly. in my next post I will discuss how to defend depositions and how to control their costs.
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