Seven Cardinal Sins Experienced Lawyers Make in Deposing the Opposing Party
By MICHAEL MAGGIANO, ESQ.
When I started out as a lawyer, I was thrown into the pit like all too many of us, wished luck and was told basically to figure things out for myself. So at depositions, in multiparty cases, I “figured out” that I would coast a bit and follow the lead of the “experienced lawyer.” I had a very interesting but disappointing revelation. The experienced lawyer seemed as bad as I was. I began to see lackluster performance by so-called “Pros” time and again. What was going on? Could this also be my fate forever – doomed to mediocrity?
It was not until I second chaired a few trials and started trying my own that I began to understand what a deposition is really to be about and how it should be approached.
I realized that learning the litigation process kind of works in reverse. You really can not get a handle on what discovery is all about until you see how it successfully or unsuccessfully fits into the trial of a case.
I also realized that my “experienced” colleagues looked more like firemen running to put out fires rather than semantic specialists performing oral surgery. They rushed to deps with only a yellow pad and pen in hand and no surgical tools at all.
Shouldn’t there be a plan I asked. Do we have a goal? What is my point? What is the purpose of this deposition? What do we want to accomplish with this witness? What have we learned of this witness already? What has the witness previously said or wrote in the past that is relevant to our case? What must we learn and what admissions or concessions must we establish.
Just going fishing didn’t make sense. And even in fishing, you know what you are fishing for, what rod, reel, line and lure to use. Even in fishing you have a plan. No I wasn’t even seeing that.
The trial winners knew that the careful planning, taking and artful using of depositions greatly impacted on the outcome of the case. This isn’t something you cast upon an associate and it isn’t something you just think about at the last minute.
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Planning, Preparation and Purpose. Here are the keys I realized. Even the best are as bad as me if they don’t follow the program and rush in, trying to overpower and take control by pyrotechnics. But if I planned, and prepared and I established a purpose, I could be better than them on any given day despite my lack of experience.
Here is what I have learned from my friend, John Romano who identifies the seven cardinal sins of discovery in the following way:
1. S.O.B. Dilemma
S.O.B. = “Short of Breath.” This is the sin of laziness. It deals with a lawyer’s failure to prepare with intensity. Some lawyers push on and on and on regarding a given point in a deposition, while others simply give up almost immediately before getting to the crux of the matter. Don’t ever give up. Don’t let a witness get away with giving you a vague answer. Make the witness be specific.
Proper and adequate discovery requires tremendous work, effort and preparation. This work, effort and preparation comes most often in the form of being in great “condition” in terms of your mental readiness, much the same as a marathon runner must be in great condition. The marathon runner who quickly becomes “short of breath” is really no marathon runner at all.
2. L.M.P.D.I. Syndrome
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L.M.P.D.I. = “Let my Paralegal do it.” Delegation is good. It is important. It is necessary. Tragically, some lawyers want to delegate virtually everything just because others may be available to do it. Paralegals and lawyers have their places and their responsibilities. Never give a lawyerly responsibility to a paralegal just because you do not want to do it yourself.
For example, a paralegal should not be the one to prepare a witness for testimony at trial — that is the duty and responsibility of the lawyer. A paralegal should not prepare a witness for deposition, as that is the duty and responsibility of the lawyer. Don’t assign a paralegal to go with your expert to “the scene” and conduct activities there — go yourself and be there with the expert. Too many lawyers are falling into the trap of turning over so many of their responsibilities and duties to others.
Improper delegation is a trap you are setting for yourself. Be careful!
3. Goal Depletion
This is the failure to set goals. Every case in litigation should have specific goals set, and every case in litigation should have a specific, detailed and written “discovery plan.”
Anticipation is what I refer to as “fantasy anticipation.” It is where a lawyer sits back during the discovery phase of litigation and anticipates that things are just going to “fall into place.” Reality dictates that it probably won’t happen that way and that it is totally inappropriate for a quality trial lawyer to so anticipate.
* Never anticipate luck.
* Never anticipate a weak opposition.
* Never anticipate that anything in litigation will go your way without your first giving it a 110% effort.
* Never anticipate…..
5. Arena Teloscopy
This deadly sin involves failing to think ahead about where you will ultimately travel to in your case. All too often, lawyers ask questions and get answers during depositions that may look nice and sound nice to the lawyer, but which won’t make one darn bit of difference to a judge or a jury at any time in the future.
Remember during the discovery phase of your case that your ultimate goal is to prepare everything with a view towards winning your case at trial.
Gunslingers in the Wild West all seemed to wear their holsters in a different way and prepare for their duels differently. History has taught us that most of them were so caught up with their own egos that they simply got into the habit of “winging it” at the time of battle.
“Winging it” is a sin. Although all great trial lawyers must know how to improvise and argue extemporaneously, these great trial lawyers also must be thoroughly prepared on every point and anticipate everything wrong that might happen so as to be able to combat that problem or confront that issue.
“Holstering” has to do not only with position and placement of the holster, but also with the product that will fit into the holster — namely, a weapon– and how the Wild West gunslinger might utilize that weapon. When you think of “Holstering,” think of it in terms of your preparation with intensity on every single detail of the case.
L.O.C.S. = “Long Organization/Cerebration Short.” Don’t be long on organization and short on cerebration.
Some lawyers go into discovery and ultimately into trial with tremendous organization and administrative skills, yet they have not done the proper “cerebration” on all of the issues in the case. Although that lawyer’s case may “look great” and “sound great” and “feel great,” it may not “mean great” to the truer of fact and, therefore, you lose — and that ain’t great!
To avoid this, brainstorm on every issue with your partners, colleagues, experts and others. Play the devil’s advocate on the issues. Cerebrate, cerebrate, cerebrate.
If there is anything in Mr. Romano’s words that sounds familiar then sit right where you are and let’s cerebrate together on how to PREPARE for a winning deposition. Here are seven do’s and don’ts which logically flow from John’s analysis of the Seven Cardinal Sins.
I. The Plan. What is the basis of the plan. From the Plaintiff’s standpoint, long before counsel readies for depositions, long before suit is instituted , you have embarked upon informal presuit investigation and research. Your investigators have interviewed every possible witness, perhaps even the defendants and their employees. You have gone up and down the paper trail. You have visited the scene, whether it be an auto accident, construction accident, toxic exposure or products case. You have adequately evaluated the physical and documentary evidence to the extent possible, presuit. You have reviewed the applicable law, substantive and procedural, you have reviewed the applicable science or discipline involved in the case. You have therefore retained the appropriate experts and learned all you can from them up to this point..
You have thus embarked on building your model to see if it will fly. Your law and science says yes based on the facts uncovered and so you institute suit. It is the Law that makes facts significant and it is indeed the Law that makes other facts insignificant. Know your law. Know your facts.
Carefully you draft your various counts of your complaint. Think about the law and what you can prove and what you yet need to prove. Your deposition questions have relevance only in how they tend to lead to the revelation of facts that establish or negate the claims made in the complaint or those set out in the responding pleadings.
Now as you approach the deposition phase, you review answers to interrogatories, responses to Demands for Production, your investigation file and the needs of your experts and you determine who you wish to depose and why.
You must now more than ever harness that magnificent analytical tool called your brain. The organizational tool best used to formulate, organize, and centralize your thoughts is the Deposition Notebook. “Don’t leave home with out it.”
I always have on hand an inventory of Depo Notebooks which are simply three ring notebook binders with twelve dividers labeled as follows:
1. Goal/Plan Why do you need this deposition? Is there something else that you need to find out and you believe based on other discovery that it can be assisted through this witness?
Are there weaknesses in your opponent’s case, his evidence, his claims or legal, medical or science theories as applied to the facts which you can effectively bring out through the deposition?
Are there other witnesses who are yet to be identified?
Is it your goal to limit the impact of this witness on a particular point. Are you looking for closure? Do you want to ice witness testimony as some prosecutor’s say.
The purpose may be to have the witness explain your opponent’s documents and records previously disclosed yet not fully understood. Or you wish to obtain acknowledgments or admissions of certain facts, physical and documentary evidence.
The purpose may be to commit an adverse or expert witness to specific opinions, or facts, set up the witness for impeachment, prior or subsequent inconsistent statements, establish his or her lack of expertise, limitations, lack of knowledge of the facts and explore avenues of agreement with your experts.
2. Legal Research: Here you should place the case law or statutory law that supports and/or enables the questioning planned. It always establishes control at a deposition when you meet an objection to a key question or a line of questions with the case or statute that supports you. The blank look of your obstreperous adversary almost makes you want to shout out “I gotcha.” But the rules of civility and propriety dictate that you simply move on, now unobstructed in your questioning.
3. Medical/Scientific Literature Search: Here you place your homework that you have thoroughly reviewed with your experts and from which you have carefully drafted questions to (a) test the witnesses knowledge; (b) obtain agreements; © develop impeachment testimony; (d) establish what literature the witness considers authoritative or at least useful and helpful in his field. Should the opposition in any discovery form make reference to literature, standards, references or codes, they should also be thoroughly digested and set out here in addition to your Liability or Defense Expert Notebook.
4. Articles/ Research Authored by the Witness: Along with the results of your search you will place your analysis or that of your expert regarding it.
5. Expert Reports and CV. Place a clean and a marked up copy of the report and curriculum vitae here. Also place any memos regarding its contents and its relationship or disrelationship to other discovery here.
6. Prior Reports. Place a clean and marked up copies of each report along with analysis and comments memo. I highlight reports using a color code depending on the type of report being analyzed. For example input data is in yellow, tests highlighted in blue, opinions highlighted in green, contradictory statements or findings are underlined in red.
7. Prior Witness Deposition. Next to it or them you will place your outline and analysis with comments.
8. Prior Trial Testimony. Also place with it your outline and analysis with comments. Make sure that it is properly identified and authenticated by the court reporter.
9. Prior Statements of the Party/Witness: The statement may be in the form of a written or oral statement to the police, a statement heard by or made to an eye witness, a hand written statement, an ICC report, an interview with your investigator, a statement from another proceeding (municipal or traffic court, related litigation or administrative proceedings). It may be a formal directive or standard adopted by and binding the corporate defendant. It may be a lease agreement or patent information as the case may be. The point here is that you must “get the book” on the witness before rather than after the deposition.
10. Deposition Question Outline. Don’t be married to deposition form books but also don’t reinvent the wheel. Form books are a helpful beginning. You may also have established helpful outlines from prior cases which should be clearly set up in appropriate directories of forms in your office computer system which you will rework, refine and modify in each case.
As you develop your outline on this case, you will cross reference certain questions to the exhibits or other testimony already in the case.
Be long on preparation but follow the KIS approach in drafting your questions – keep it simple.
Be like Hemingway: Slash away so you say the most with the least. Slash at the length of each question so they sound and read crystal clear and will invite a like response. Asking rambling imprecise questions will only invite long harassing editorial objections. Even if you get a response, it will undoubtedly be equally vague and not responsive. And should you get the response that you were looking for, the judge at trial may take it all away from you anyway. Remember that “Long” is a great virtue in legs, cigars and sailboats but not in deposition or trial questions.
Draft questions such that you know in advance what to do with the answers received. Save the shot gun and get out the scalpel. This is not target practice. Rather, you are designing or limiting the parameters of your opponents case and setting up yours. You are preparing for the Summary Judgment motion, yours or theirs; you are preparing data that supports your theory or rather theme of the case; you are setting up to win at trial. You do not do this by Holstering or winging it.
You are also developing headlines to show the jury in blow ups. Often I am looking for questions and answers that are suitable for framing – statements important to jury persuasion. What are the questions that will elicit answers that have jury appeal. Obtain agreements and concessions in simple straightforward language that jurors will relate to. This is not a private battle you are bringing on behalf of your expert against their expert or key witnesses. Your audience is not a body of scientists, physicians or engineers but plain folk moved by plain talk that supports the theme of your case in a logical and also a visceral way.
11. Deposition instructions
a. To the Reporter
(I) Exhibit List
(II) Document Request Log
b. To the Witness
The deposition is a formal proceeding with legal significance. Depending on your strategy, you may or may not wish a stipulation as to waiver of the right to review and sign a deposition. Under Rule 30 (e) the witness and the parties may waive examination and reading of the transcript by the witness and the parties may waive signing of the transcript by the witness. However you may very well prefer to use a deposition to impeach a witness and thus reading and reaffirming its contents by signing it will add greater impact to your impeachment scenario.
The timing of recesses should be dealt with at the outset or pursuant to a scheduling order
The method of handling of exhibits must be agreed upon and an organized method of marking should be established and followed through in subsequent depositions.
All too often the witness instructions almost become like the swearing in of the witness. We hear the words a thousand times but we never bother to listen to what is said. It becomes all mechanical by repetitive exposure. However, there may be something about your witness deposition that just is not routine. You may find that there are important words and phrases that have already been used in the case which are worthwhile to instruct the witness on at the outset.
12. Post Deposition Things To Do List and Follow up. How often do we come up with great ideas at a deposition and just let them sit in our notes never to be reviewed again until another deposition is scheduled or trial is approaching simply because we get caught up in other things as soon as we get back to the office or have to move on to another client’s matter. Defense attorneys have the carrier-imposed duty of dictating a dep summary. Plaintiff’s attorneys only have themselves to answer to( at least during the course of the litigation.) Making the completion of this section of the notebook SOP in your office is a must. From the deposition, you will develop a list of further witnesses to be deposed and documents to be produced. You may decide to bring in other experts or review further the issues of the case with your present experts or may now have the grist to bring the matter to expert review and reporting.
13. The Deposition Reading and Summary: If you preserve your deposition book and develop it into a trial book, here is where you place your manuscript of the deposition and your page and line summary of its contents. Again from here you will further determine the need for additional depositions, experts and discovery. Do not put off these post deposition practices and procedures. Your adversary may be hoping that you do.
Building a deposition notebook becomes the basis for the building of your trial notebooks. It becomes the rudder to your discovery ship that enables you to deliver a winning cargo of evidence at trial. Get in the habit of building your deposition notebooks early.
II. Do Not be Married to your Plan. Now that I dissected into its finite parts your approach to deposition planning and preparation, I must warn you not to be married to your outline. The deposition is a psychodynamic process. Listen to the Answers. Watch the body language of the witness. Be ready to go with the flow if it is in the direction favorable to your cause. In a recent case a leading expert that I had retained strongly disagreed on certain fine points raised in the defense expert report and wanted me to engage in a star wars deposition. As I began to approach the matter I realized I was losing sight of KIS. I went back to my basic game plan at the deposition realizing that I had a pretty honest witness who I could get considerable agreement from. By the end of the deposition, on many points, I had made him my witness.
Never get lead astray by your expert’s planning if it does not fit the KIS principle. You are the Trial Lawyer. You have the sense of what you can do with a particular witness and where you can take that witness. Keep your basic goals in mind but do not lose sight of opportunities because of rigidity to the Plan. All too many times great answers are just left without follow up. The examiner simply missed spotting the opportunity because his eye and mind were on the next question in the outline.
III. Don’t Give Up. The opposition prepares its witnesses to give the party line no matter what. You ask a question and out comes an obvious prepared speech skirting past your question. Press your question. You are entitled to an answer to your question. Do not hesitate to move to strike if the answer is not responsive. If the witness persists in being evasive, or if you are confronted with an “I do not understand what you mean by…..”,.then ask the question another way. Keep it simple. You may even want to probe his education, training and experience if he persists in acting like he does not understand. Do not do this in an insulting, arrogant or argumentative tone however. Then go back to the simple point of your question framed in other words you may have gotten an agreement as to understanding or definition. If he continues, ask him to explain why he can not answer. Be calm. Do not lose your cool. Do not go for the bait designed to throw you off track. Approaching the question in different ways will demonstrate to the witness that you are not going away so easily. His answers may reveal his lack of credibility or a weakness in his own position that he wants removed from the question. You may again want to move into a related area and approach the issue through different questions and obtain answers that demonstrate his disingenuousness. Then bring him back to where he was and try again. When done calmly and correctly the witness usually hangs himself. You have certainly learned how to handle his lack of credibility before the jury and you may want to do it all again at trial so the jury can see how on very basic points the witness is totally evasive and uncooperative. His demeanor may mean even more to your case than the answers you were hoping for.
IV. Pigs Get Slaughtered. If you got what you want from a question, move on. Do not get greedy. The witness will catch on or his attorney will cue him thereby giving the witness an opportunity to retract or dilute an earlier answer. If you are working with your reporter, have a signal whereby the reporter will know to mark the notes. On a break, have that part read back to you. If it says what you need, you certainly do not need an echo. If the answer does not give you what you need then you really have to get the creative juices flowing to get back to that area and try a second time without losing ground.
V. Control Your Deposition. Do not let opposing counsel or the witness set you off track. Speaking objections must be dealt with swiftly as must coaching the witness. If you ask proper and simple questions, the obstructionist behavior will be so groundless that the opponent will withdraw when challenged. Correct form is correct form. Clear simple questions will win the day for you. Stick to the game plan. Do not lose your temper. This can affect both your discipline and your flexibility because your emotion will cloud your thinking and ability to listen. If your adversary is the quintessential pit bull, you already have the name and telephone number of the judge who is hearing deposition applications. Once you have made your record, do not hesitate to call. Keep in mind that judges hate these calls, so make sure that record looks good for you.
VI. Do not save a surprise for trial unless you are sure it will be a surprise and you will get the answer that you need. But generally the evidence will usually come out somewhere along the broad discovery process and your surprise will have fizzled. Nail down the defendant at the deposition when he does not have opportunity to think and prepare. If he tries to smooth out his testimony at trial, you have the deposition transcript to go back to. If the testimony is clearly inconsistent you now have two points, first that he gave the testimony favorable to your side at a previous time under oath and now he is being less than truthful before the jury. So by early confrontation, you now have a win-win scenario at trial if he tries to weasel out.
VII. A Deposition is not Cross-Examination at Trial. You should not ask only leading questions at a deposition. In some jurisdictions it may be considered improper as to form to ask leading questions at a deposition. That aside, leading questions are great for getting commitments but they do not serve the other purpose – getting discovery. Thus a deposition should be made up of leading and open-ended questions.
Do not hesitate to ask a question that you do not know the answer to at the deposition. By actually doing so at depositions, then at trial you will be properly armed and therefore able to actually adhere to the rule never ask a question to which you do not know the answer to. You can pick and choose the areas of cross examination from the deposition transcript and you will always be armed with the knowledge of the answer previously given.
Let the witness explain at a deposition. This is not trial. The answer may provide fruitful information for use at trial.
Stick to basics. A deposition is a formal proceeding. Act accordingly. Arrive early. Dress appropriately. Conduct yourself ethically and with appropriate professional demeanor. Do not be a stuffed shirt either. But the prepared, professional and authoritative lawyer will become the leader at the deposition. Being organized and well-structured demonstrates you as a leader. You do not have to be loud or try to intimidate. You will intimidate by your command of the facts and the questioning.
As you look back on this little monograph you will quickly realize that I have simply stuck to the knitting, laying out what works time and time again. There are no magic questions. There is no magic period, except that which comes from terribly hard work. When all is done in advance as outlined above, from the view point of the observer you will be performing magic, massaging and enhancing every opportunity, defusing every counter tactic. You will be in command, subtly but powerfully in command.
As far as winging it and relying on luck at a deposition remember the old fortune cookie – Luck happens when preparedness meets opportunity. So in that sense — Good Luck.