Not all lawyers come out of law school with training and experience in conducting depositions. Even seasoned litigators can speak to the frustration of going back to a deposition transcript when preparing motions or for trial and seeing that the question and answer were not quite as they hoped they would be. The litigator might inadvertently give the opposing party’s witness room to “explain away an answer,” because the lawyer did not make the witness commit; or make a question almost useless at trial, because it reads poorly and will not make sense to a jury. Deposing experts presents even greater challenges.
This article gives tips for conducting effective depositions, of both lay witnesses and experts. Although aimed at new lawyers, the tips also will be useful refreshers for more experienced attorneys.
Tips for Deposing a Lay Witness
Start a deposition by explaining the process to the witness. Tell the witness that if he does not understand a question, he should tell you, and, if he does not, you will assume that he understands the questions. This may not seem important during the deposition, but it is extremely important if you use the testimony in a brief or when you try the case. If you do not have this agreement from the witness at the beginning of the deposition and you attempt to impeach him at trial, he can say that he misunderstood the question or did not know what you meant by a certain word or otherwise try to distance himself from the previous answer. The opposition’s attorney might make the same claim if you make a motion in limine to exclude evidence or move for summary judgment.
Always be professional and courteous. Do not be drawn into emotional responses. As you respond, remember that a jury and judge may review the transcript or watch the video. Behave in a manner that will seem appropriate to both.
Use an outline so you do not forget anything, but do not tie yourself to it. Write your own outline. You can use a generic version to help generate your outline, but be specific. The process will help you understand the case and force you to prepare adequately. Think. What do you want to accomplish by taking the deposition? What information do you need from this witness?
Kara M. Burgos, Marquette 1995, is a partner with Moen Sheehan Meyer Ltd., La Crosse, representing plaintiffs and defendants in areas including civil, family, and business law. She also is chair of the District 5 committee of the Office of Lawyer Regulation and a La Crosse County court commissioner.
Andrew Hebl, Michigan State 2008 summa cum laude, is an associate with Boardman & Clark LLP, Madison, focusing on representing insurance companies and their insureds in the defense of liability claims. He also litigates claims involving insurance coverage and bad faith and other business disputes. He is chief editor of the Wisconsin Civil Trial Journal.
Eric Ryberg, U.W. 2006, is a shareholder in the Madison office of Habush Habush & Rottier S.C.® He practices personal injury law.
This article is based on the authors’ presentation made at the May 2013 PINNACLE Litigation, Dispute Resolution, and Appellate Practice Institute.
Do not, however, handcuff yourself to your outline. Your outline should be your safety net, not your script. Often, attorneys are so anxious to follow their outlines they fail to pick up on good lines of inquiry. One way to avoid this is to segregate your outline into sections as opposed to a continuous document. Obviously, those sections will depend on the subject of the lawsuit. For a personal injury case, the sections might include ones pertaining to people to whom the witness has spoken, what the witness was told and by whom, and so on. Each category should itself be a separate outline.
Be curious. The law allows you to seek information that is reasonably calculated to lead to the discovery of admissible evidence. You should take advantage of this broad standard by being curious and creative in your questions. If the case involves a job or industry with which you are not familiar, you should ask questions to educate yourself. In particular, be curious about background information. Even if an area does not seem likely to be a source of significant information, you often will be surprised at what you can learn.
Listen to the witness. This is a crucial aspect of taking a deposition. You must always listen to the witness and ask follow-up questions based on what the witness says. Witnesses will sometimes give new or surprising information that you were not anticipating. You must be willing to be diverted from the next question on your outline so that you can, if necessary, follow the witness’s lead to a new subject or area of information. The deposition offers you the opportunity to learn new facts that may be good or bad for your case. It is much better to discover surprises at deposition than at trial.
Make sure you get the sound bite. Typically, a significant portion of a deposition will not be useful for trial. You should try to gain a few good admissions or concessions that you can use at trial. This is particularly true when deposing an adverse party. Ideally, you want to have a question and answer on the transcript that you can repeat at trial and use to impeach the witness if necessary. If the witness muddies the answer with qualifying information, you should restate the question to get a clean and clear answer.
Leave well enough alone. If the witness gives the clean answer you want, move on. You may want to jump ahead to a different portion of your outline to distance yourself from the area you just covered. You should avoid giving the witness the opportunity to take back the answer or modify the answer and undo what you established on the record.
Do not save all your cards for trial. Cases are settling instead of going to trial at a much higher rate than in the past. The deposing lawyer must consider whether the deposition should be used as a tool not only to determine what the witness intends to say at trial and how he will come off as a witness but also, in the case of a plaintiff’s deposition, to educate the plaintiff about weaknesses of his claim. This can temper the plaintiff’s expectations and encourage earlier settlement.
For example, you can confront a plaintiff with medical or employment records that clearly demonstrate the case is not as strong as the plaintiff may think. Often, the plaintiff is not even aware of these records. Further, for defense counsel frequently the biggest obstacles to settlement are the plaintiff’s unrealistic expectations. The sooner those expectations can be blunted, such as by confronting the plaintiff at deposition, the sooner a case that is almost certainly going to settle anyway can be settled.
Admittedly, there is tension between using a deposition only as a tool for trial and using a deposition as a tool to promote earlier settlement at less expense. Tipping off the plaintiff regarding defense strategy by confrontation with important records during deposition may give the plaintiff an opportunity to be better prepared to explain at trial. However, given the rate at which cases settle, in most instances holding things back is more likely to prolong litigation unnecessarily.
Sometimes ask an adverse witness leading questions. As a general matter, especially when deposing a party, the lawyer should ask open-ended questions to ensure that the universe of possible testimony at trial is being covered. That is, the lawyer wants to make sure that he or she knows everything that will or could be said at trial.
Sometimes, however, one is best served by asking leading questions. This is especially so when deposing a lay fact witness who may be hostile on liability but cannot dispute certain basic propositions. Use of self-serving, leading questions, to which the witness cannot respond except by answering yes or no, as opposed to open-ended questions for which the answer is not known and might be harmful, can be helpful to get the sound bite you need to control the witness’s testimony at trial.
Define the areas of the witness’s testimony. You can cover a lot at a deposition, but if you are not organized, you can miss a lot, too. Typically, you should have a game plan to break down the witness’s testimony by topics. Then, within each topic, begin with very broad questions and get progressively more and more specific.
For example, in an injury case, the lawyer may begin a particular portion of the deposition by asking the plaintiff to identify all injuries related to the accident. Then, the lawyer should have the plaintiff identify ongoing injuries versus those that have healed. The attorney should ask the plaintiff to describe each injury in ever-increasing detail until all information has been exposed. Then the lawyer should move on to the next injury and repeat.
It is important to ensure that you have covered everything, by ending with a catchall question such as, “Is there anything about how this injury has affected your life that you have not already mentioned?” The same goes for liability questions. That way, you will avoid missing any important details and being blindsided at trial.
For a lay fact witness, it is important for the lawyer to define the areas of testimony to find out what the witness saw and did not see and to rule in the witness for use on certain topics and to rule out the witness for other topics. By defining the areas of testimony, the lawyer will be able to identify how to use the witness at trial and which topics to avoid discussing altogether.
Make the witness answer the question. You are the attorney in charge of the deposition. You have the power to ask the questions and, except in circumstances in which an answer is privileged, the right to get an answer. Do not bully the witness, but be firm.
Tell your side of the story. Avoid the temptation to be so relieved when opposing counsel has finished that you blurt out “no questions.” There is nothing worse than sitting in trial and having the other side play a video deposition of a witness of whom you did not ask a single question.
Do not be afraid to object. You are taking or defending a deposition to serve your client’s best interests. If it is required, then you should object, but do not misuse objections to harass or intimidate the opposing attorney or witness.
Do not be deterred by objections. With the exception of questions to which privilege objections are made, the witness still must answer. If the objection is to the form of the question and you are going for a sound bite, you should ask what is wrong with the form. You may be able to correct a problem with the question and preserve your sound bite. The opposing lawyer could also be objecting to deter you from an area with sensitive or useful information, so you should persist with your questions, and make the witness answer. Do not let opposing counsel coach the witness with speaking objections.
Be prepared to use exhibits. In addition to planning what areas to cover with a witness, you should plan what exhibits you can use and how to use them. When deposing a party who was involved in an accident, you may want to use photographs of the accident scene to explore any issues involving lighting, vehicle damage, or road and weather conditions. It is often useful to use a map to identify where a witness was at the time of an accident or to establish a witness’s path of travel. Many jurors appreciate seeing visual aids at trial, so you should practice for trial by using them at the deposition.
There is no such thing as a stupid question. You are taking a deposition to gather information and to learn. Do not let a witness anger or intimidate you into not asking questions. As clichéd as it sounds, it is true that the only stupid question is the one you do not ask.
Calm Your Clients’ Jitters About Their Deposition
A deposition is an unfamiliar and intimidating experience for many people. Help your clients calm their nerves with the following tips and information.
What happens at a deposition?
Start by explaining that the client will be giving testimony under oath, that the client will be asked many questions, and that the answers will be recorded. The record will be sent to the attorneys representing both sides and to the court.
What is the purpose of a deposition?
Make sure the client understands all the possible purposes of the deposition, including (1) gathering facts and information about the case that will be made available to both sides, (2) giving the attorneys for both sides a chance to assess the client’s credibility, and (3) giving the attorneys a chance to look through the client’s testimony for statements or facts that inadvertently weaken your case or strengthen the opposing party’s case.
What will the clients have to do?
Dress appropriately. Advise clients to dress as neatly and carefully as they would for a business meeting or for church, and to contact you if they are uncertain about what to wear.
Maintain a good attitude. Tell clients to be polite, but not overly friendly, and to be relaxed and attentive to the proceedings. Remind them that if they get too tired to listen and respond carefully, they should ask for a break.
Keep in mind their responsibilities. Explain to clients that their three main responsibilities are to (1) listen carefully, (2) be sure they understand what is being asked of them, and (3) answer carefully.
The following guidelines will help clients meet these responsibilities and avoid mistakes.
How can clients avoid mistakes during depositions?
Stay within the limits of the question. Clients should give a complete answer to the question, but should not elaborate unnecessarily. Remind them that, if they’re thinking through the details of a question in order to give a simple answer, they should think silently rather than out loud.
Be forthright and truthful. Tell clients that even if they think an answer might harm their case, they should not be evasive. The facts will come out anyway, and a forthright answer will make them look better than an answer that hides or softens the facts.
Avoid guessing at the facts. When asked a question, most people want to give a helpful response. So remind clients that it is not helpful to their case if they let the opposing attorney lead them into guessing at an answer. A guess may result in an inconsistency that can later be used against them in court.
Understand the question. Tell clients that they should never guess at the meaning of a question if it hasn’t been asked clearly. Remind clients that they can always ask the meaning of any words they don’t know, or can ask to have a question explained or restated. Clients should never answer a question unless they’re certain they know what’s being asked.
Don’t advocate. Alert clients that the opposing attorney may ask questions that cause them to become angry or to want to defend themselves. Remind them that angry, defensive behavior doesn’t make a good impression, and that they should stay calm, listen carefully, and answer questions politely no matter how annoying they may seem.
Don’t try to win sympathy. Clients may be tempted to try to win sympathy during the deposition, especially when describing their injuries. Tell them that they should describe clearly any real pain or injury, but should not dwell on or exaggerate their suffering. Remind them that it’s the attorney’s job to develop the details of the case that will create sympathy for their side.
Be consistent in the facts. Ask clients to go over the facts of the case before the deposition to determine which ones they’re certain about, which ones aren’t quite clear, and whether any facts seem to contradict each other. If the facts don’t seem to fit together, tell them they should discuss this with you before the deposition.
Give full attention throughout the deposition. Tell your clients that, during the deposition, one attorney might object to something the other has said. Remind them that, although this might seem like a good time to relax, they should play close attention so they understand the problem and are prepared to answer when the deposition resumes.
How can you tailor the information you provide in each case?
Opposing attorney. Give the client some tips on the opposing attorney’s style, for example, whether they are more likely to use rapid-fire questioning to rush the client into answering or to try to get the client to answer more fully than necessary by being disarmingly friendly.
Video. Tell the client whether the deposition will be video recorded and whether there are any special instructions related to the recording process.
Documents. Tell the client whether they should bring any needed documents to the deposition. Be sure they know not to bring documents without consulting you and that they understand that any documents they bring will be discoverable by the opposing attorney.
These tips and more are found in the PINNACLE Law Office Video titled “Preparing for Your Deposition.” The program is available in English and Spanish and includes a practice booklet with additional exercises that clients can work through independently. Visit www.wisbar.org/video or call (800) 728-7788 for more information.
Tips for Taking a Deposition of an Expert Witness
In many cases, expert depositions are crucial discovery events in the litigation. Often, a plaintiff’s case, or a portion of the case, cannot be established without expert testimony. Preparation and implementation of a well-thought-out plan to establish or rebut themes or evidence is key.
Begin by asking yourself, “what am I trying to achieve in taking this witness’s deposition?” There can be many purposes in conducting a deposition, but the paramount focus should be on establishing facts to support your theory of the case, whether you are representing the plaintiff or the defendant. Equally important is the deposition’s role in executing pretrial strategy, particularly with respect to motions in limine, summary judgment motions, and Daubert challenges.
Start preparing early. Plan to spend a lot of time preparing for an expert deposition. A lot. Read the expert’s report so much that you know it by heart.
Work with your expert. Set aside enough time to walk through an opposing expert’s report with your own expert.
Do not assume that a curriculum vitae is truthful. Use the Internet and other resources to confirm or disprove information in the expert’s resumé.
Get the expert’s prior deposition transcripts and ask others about the witness. Because many independent-medical-examination (IME) experts have testified before, you might be able to obtain useful information concerning bias by looking at an expert’s prior deposition transcripts. The prior transcripts will also give you a sense of how the witness will likely testify in your case. You might decide not to depose the expert if you have a significant amount of bias information from the prior depositions and you know from the expert’s report what he or she is going to say.
Know the medical records. When deposing a medical expert, it is essential that you know everything in the medical records. It can be useful to create a timeline to help remember and understand the records. You may be able to undermine the opposing expert if that expert has not reviewed all the records.
Elicit all the expert’s opinions and bases of opinions. Even if you do nothing else while deposing an expert witness, at least make sure you confirm that the expert has told you all his or her opinions about the case. If he or she then tries to testify to additional opinions at trial and you had expressly confirmed at the deposition that there were no other such opinions, the additional opinions later offered might be subject to exclusion. If you did not ask that catchall question at the deposition and cover all of the opinions the expert has, and the expert then renders at trial opinions you were not aware of, your case could be endangered.
Beyond that, with respect to each opinion the expert has, make sure you ask the expert to exhaustively identify all the bases for each. You must elicit that information so, among other things, your own expert will be able to identify points of criticism or disagreement. You also want to avoid being surprised. Ensure that you have covered all bases for each opinion by asking catchall questions such as “Are there any other bases for this opinion that you have not already mentioned?” Make sure you keep asking that question until the answer is a definitive “no.” Then move on.
Put the expert into a box. Sometimes experts are advocates for the parties that have retained them. These experts often are minimally credible, because they are unwilling to concede any point, even when the point is beyond dispute. These experts may be susceptible to being put “into a box” for purposes of cross-examination.
For example, sometimes a medical expert will refuse to acknowledge that an injury could have been caused by a certain type of trauma. If the expert can be pinned down on this point at deposition, and it turns out that the literature is actually full of support for the injury having been caused by exactly the thing that the expert refused to acknowledge, the expert will be in trouble. If the expert realizes the mistake, he or she may try to back out of those opinions, but the testimony will nevertheless likely lose credibility.
Set up your cross-examination for trial, but do not give the expert a preview. In contrast to educating the plaintiff by showing him your cards, as discussed above, the deposing lawyer should generally hold back as much good trial material as possible with experts. All the good smoking guns should be saved for trial. Get opposing experts to say as many things as possible that are contradicted by the records, but do not tip them off to the fact they have done so.
At trial, experts will be less credible with the jury if they must explain away their incorrect deposition testimony. If you preview your cross-examination at the deposition, you will give the expert notice of your plans, and he or she will have the opportunity to prepare for your questions at trial – exactly what you do not want to have happen. Generally, depositions of experts are purely for purposes of fact gathering (if you do not know what they are going to say) and to set up your trial cross-examination. Do not try for more than that.
Test areas as to which the expert might support your case. Often, an expert – such as a treating doctor – who is not an outright advocate for the other side will concede points when appropriate. You should use these concessions to the extent possible to support your case. When an opposing expert is willing to render opinions favorable to your case, do not be afraid to make use of that testimony. Obviously, helpful opinions given by an opposing expert will be more valuable than if those opinions are coming from your own expert.
Ask an expert who and what is considered authoritative in the field. Find out which treatises or authors the expert considers to be authoritative in the field. You may be able to find information in the treatise or from one of the authors that contradicts the expert’s opinions. You may learn the expert considers your expert’s work to be authoritative, or that the expert considers a treatise in which your expert is published to be authoritative. This allows you to bolster your expert’s credibility through the opposing expert.
Do not let an expert push you around. Retained experts are notoriously difficult to control, particularly for a new lawyer. You must establish control early by making the expert answer your question. If the expert continues to offer an evasive nonanswer, you must redirect the expert to your question and make him or her answer it. You may need to object and then move to strike portions of the expert’s answer. If the expert refuses to answer a question, establish that on the record to set up a potential motion to strike the expert as a witness.
Be persistent. In addition to not letting an expert push you around, you must be persistent in following through with your line of questions. Do not let the expert move from a topic if you think it has not been sufficiently addressed. You are paying a significant amount for the deposition, so get your money’s worth. Ignore the expert’s (possibly feigned) exasperation, and ask your questions.
Figure out what you need for a Daubert challenge. Do your research and figure out what the applicable standards are for a Daubert challenge. Wisconsin Statutes section 907.02 adopts the U.S. Supreme Court standards for the admissibility of expert testimony set out in Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).
Expose the bias of a hired expert. If both parties have retained experts on a certain topic, you might not want to spend time exploring bias information, because the same can be used against your expert. However, if you have a nonretained expert such as a treating doctor and the defense has hired an IME doctor, you must obtain bias information. You should find out how much the expert has billed on the case and how much income the expert derives from IME work. You should explore the expert’s volume of IME work. You also should find out how often the expert testifies for plaintiffs and how often for defendants and how much work the expert has done for the opposing law firm, the insurance company, and the IME intermediary company.
Include a subpoena duces tecum. You need to know everything an expert reviewed and relied on for his or her opinions. You never know what you might find in the expert’s file materials.
Decide before the deposition how you will handle expert-related costs and commit the agreement to writing. The Wisconsin statutes are generally silent on allocation of costs, other than fees for subpoenaing witnesses, for expert-witness depositions. Many attorneys operate under local custom for allocating expert-related costs (such as “you pay to depose mine and I’ll pay to depose yours”), but attorneys may be unwilling to consent if they are unfamiliar with the custom or for other reasons, especially if they are not promptly informed of the custom. That said, always make sure you and opposing counsel are on the same page regarding the allocation of expert-related costs before depositions get underway, not afterward. Doing so can ensure that court involvement to resolve fee disputes is not needed.
Depositions may be the most important pretrial tool in evaluating and preparing for trial. Although they typically are taken in informal circumstances, their importance cannot be overstated. Taking the time to prepare properly for depositions and making sure you are familiar with all relevant rules will go a long way in serving your clients’ best interests. In simplest terms, one must critically evaluate which questions to ask, how to structure and format the questions, and whether to use evidentiary materials at the deposition or save them for trial.