A Potted Plant? Eh, Not So Much.

Two blawg posts last week caught my eye. Both discussed preparing and defending witnesses at deposition. At the Lawyerist, Chris Bradley talked about his experiences defending a client in his first judgment-debtor examination. His title for the piece, which I mistakenly took to be ironic, was: How To Defend A Deposition: Just Show up. The other post, by Philly Law Blog blogger Jordan Rushie, took the assignment more seriously, and provided better guidance, likely because he has more experience. In his post, Rushie credited Max Kennerly with the notion that “[i]f you prepare your witness properly [for deposition], you should be able to just be a potted plant.”

Let me say first that I’m not sure whether Max Kennerly ever made that statement. It sounds pretty good, provided you don’t, as Jordan Rushie fortunately did not, take it completely at face value. What concerns me is that young lawyers reading Bradley’s post at the Lawyerist and contemplating Kennerly’s remark, might mistakenly conclude that adequately preparing your client or witness for deposition is enough. Or nearly enough.

It’s not enough. Or nearly enough.

I agree that preparing your client or witness is surely the single most important part of your job in defending the deposition. Clients or witnesses who have never been though litigation are quite literally astonished when I suggest that we spend a half or full day preparing for their deposition. And that’s often not enough. I once spent three full days preparing a sexual harassment defendant for his deposition–and I was still unsatisfied with the result. So yes, Max Kennerly is right that witness preparation is the first priority.

But even if you spent a full week preparing the witness (yes, we do spend weeks preparing certain key witnesses, particularly if they do not speak English or the subject matter is particularly complex), your job is not done. There is your responsibility to “preserve the record” meaning making objections when questions are not technically correct. Jordan Rushie got that right.

But, in my humble view, adequately preparing the witness and interposing appropriate objections is still not enough.

My goal at every stage of the proceedings in a lawsuit is control. I’m not so naive that I think I can actually control very much. There are about a thousand things in every lawsuit that are simply beyond my control, the top of the list being the judge. But that doesn’t mean I don’t try to control every single nuance as best as I can. I’m a control freak. Control. Control. Control.

When I present a witness for his or her deposition, I am being forced to relinquish control over a very important aspect of the process. In civil litigation, at least in my experience, depositions and documents win or lose a case. There’s very little I can do about bad paper. If there’s a bad document out there and my opposition has properly asked for it, and it’s not privileged, then I’ve got to produce it and we’re stuck with the consequences.

Depositions are different. Unlike bad documents, depositions don’t just exist. A deposition is more of a process. Even when we’re done preparing and I object whenever necessary, my opponent still must ask the right question and get a damaging answer before the evidence comes into existence. That’s a big leap, and I want to make it as difficult as possible to cross that chasm. And I’m not talking here about inappropriate objections, improper instructions not to answer, or being a difficult jackass, or other ethically-challenged conduct. But I do want my opponent to know I’m listening closely, to every word, and I’m not going to make it any easier for him/her than I absolutely have to. Otherwise, what am I getting paid hundreds of dollars an hour to do? A well-trained monkey can object when questions are “vague and ambiguous.”† I think our role is bigger than that.

I learned pretty early that you want to create a “tight” environment from the start. By this, I mean that, even if I generally have an extremely cordial relationship with my opponent (and I usually do), I don’t want him or her to think that this particular deposition is going to be easy or fun. I want him or her to feel that our time on the record is “borrowed time,” that he/she is taking up my client/witness’s extremely valuable time, that we’re inconvenienced, that his/her goal should be to finish up as quickly as possible. It’s been my experience that, in most instances, this results in a shorter deposition. Shorter deposition = less chance of damaging testimony from my client/witness = a good thing.

Another way I create a “tight” environment is by interposing a fairly stiff objection early in the deposition. By early I mean in the first 20-30 minutes. This signals to my opponent that I’m listening, and that I don’t intend to put up with any baloney. I do try to avoid speaking objections, because they’re unprofessional. On the other hand, if I need to say additional words to fully state the objection or my nonspeaking objections aren’t getting anywhere, then I’ll say what needs to be said. Again, while it may be my opponent’s deposition, I’m going to retain as much control as I can.

I also want to dictate when we take breaks. At least every hour. I don’t want my witness getting fatigued, hungry, exhausted or even comfortable. When he/she gets comfortable, that’s exactly when the filters in his/her brain start to shut off and the damaging evidence is created.

I’m also not above verbally bitch-slapping scolding any opposing counsel who gets too high-handed with my client. Again, I’m not getting paid several hundreds of dollars an hour to sit back and watch some unprofessional lawyer abuse my client. I’ve come to believe that civility really is best 99.9% of the time. But, if an opponent is abusing my client with his/her examination, I have two choices: I can terminate the deposition or I can push back a bit. If I give some push back, perhaps we can alter the course and finish the deposition without bothering the judge. If I terminate the deposition, motion practice is sure to follow and this is costly, and the judge might not see things my way.

We sometimes walk a fine line when defending depositions. I don’t want to be obstructionist, or an asshole. But when we’re on the record, my job is to do everything ethically within my power to prevent that record from containing evidence that is damaging to my client’s case and/or helpful to my opposition. I respectfully disagree with the notion that this obligation is satisfied by “just showing up” or even by just making objections.

†I mean no disrespect to monkeys, trained or otherwise.

Why It’s Critical To Get A Stipulation To Go “Off The Record” In Deposition

When Alec Baldwin retires we’ll look back over his career, appreciate his different “periods,” and argue over when he shined most brightly. I’ll be torn between the current Alec Baldwin, a mischevious clown with serious acting and comedy chops, and an earlier, completely different Baldwin, handsome, hardened, narcissistic–kind of an asshole, really–that we see in Glengarry Glen Ross, The Juror, and Malice, from which this clip is pulled. I personally find his monologue in the opening minutes of Glengarry Glen Ross to be the most compelling (“Coffee is for closers!”), though he’s damn funny on 30 Rock.

This excerpt, though, is useful because it illustrates two points when defending a witness at deposition. First, if you can’t control your client sufficiently to prevent him or her from saying “I am God” at the wrong time, then look into another line of work. More technically, though, the clip illustrates the importance of securing a stipulation among all counsel to go “off the record,” meaning that the stenographer will no longer record testimony or colloquy. In the movie, one of the lawyers tells the reporter to stop reporting, and that seems sufficient. And I’ve found it usually is sufficient for one of the attorneys to say “off the record” or something similar. But, technically, an actual stipulation is required. See, Schwarzer, Tashima & Wagstaffe, Cal. Prac. Guid: Fed. Civ. Pro. Before Trial (The Rutter Group 2013), §11:1567, p.11-208. If you think you’re off the record, make sure the reporter’s hands aren’t moving, or your client’s declaration of divinity, or other gaffe, could become a bone of contention in the case.

A Tough Time, Those First Couple of Years

I was really impressed by a recent post at Philly Law Blog, in which Jordan Rushie discusses a humbling experience he had early in his law practice. What was so great about the post (and I highly recommend it, as well as the blog generally) was Rushie’s brave willingness to expose the kind of judgmentally-impoverished immaturity most of us have when we first start out. I bet many of us who have graduated into our second, third or fourth decade of practice could, if we were brave enough and our memory was up to it, recall an instance where we used similarly poor judgment.

I can’t speak for doctors or other professionals, but I know the first couple of years practicing law can be a challenging time. I think it stems largely from the following: when we start out (1) we’ve invested 3 years and a pile of money to get a degree which suggests we know what we were doing; (2) our employers and/or clients hire and (hopefully) pay us because we’re supposed to know what we’re doing; (3) the professional and ethical obligations imposed on us are premised on the assumption that we know what we’re doing, BUT (4) we don’t really know what we’re doing. When we get into a situation we’re unprepared to handle, we want so badly not to admit or show that we don’t know what to do, we often punt. While it works sometimes, other times punting can get us into a predicament that’s embarrassing, or worse.

This is compounded by opposing counsel who, if they have any experience at all, will figure out pretty quick that we are brand new and don’t really know what we’re doing. Some will exploit this.

My first deposition was a classic example. I was a first year lawyer, working at an insurance defense firm. While not nearly as prestigious (or well-paying) as BigLaw firms, starting your career representing insured clients in a variety of cases has tremendous value as a training exercise. While you’re not litigating Apple vs. Samsung, you generally get the chance to take depositions, argue motions, handle arbitrations, mediations and settlement conferences–in short, lawyering–from your very first day.

I had sat through a couple of depositions taken by partners in the firm–because God knows you’re not taught deposition skills in law school–and then let loose to take my first deposition of a third-party witness in a fender-bender case. It was so hokey, I think we took the depo at the witness’s home. In any event, I got there first and waited on the doorstep for my opponent to arrive. She did, and seemed friendly enough at first. She had a harried appearance, in her mid-late 40s. I must have looked really green, because pretty early in the conversation she asked “Is this your first deposition?” What was I going to do? Lie? Get offended? Tell her it was none of her business?

The court reporter arrived and swore in the witness. I did fine through the admonitions. But once I started getting to the meat of the testimony my opponent quickly adopted this habit of interjecting, either when she thought my question wasn’t clear or good enough, or to “clear something up” after the witness responded. She never objected to my questions, just went through and “fixed” them as we went along. Of course she fixed them in a way that rendered useless any testimony that might have been useful to my client. I remember thinking at the time that this didn’t seem right, that it wasn’t how the depositions I’d watched had gone, but I didn’t have the balls (at the time) to shut her up.

In the end the transcript of the deposition was pretty useless for purposes of my client’s defense. But it wasn’t the end of the world. If the carrier paid $8,900 to settle the case instead of $8,500 because we didn’t have a great third-party witness deposition to use at trial, it didn’t seem to bother the partner who’d sent me on the depo. He just laughed when I talked to him about it. He said, “Next time, tell her it’s your dime and she’ll get her turn.”

When The Deposition Party Is Over . . .

Every once in a while I get a glimpse into the way another lawyer or firm practices their craft and I have something like an epiphany. I realize there’s a vastly better way to do something, and it makes me want to kick myself because I didn’t realize it sooner. I was privy this week to some work product from a lawyer representing a co-defendant and I had one of these moments.

By way of background, I have long despised the practice of summarizing depositions. When I finish taking a deposition, the last thing I want to immediately do is revisit the details. I’m not sure why, but I usually just want to get on with my life. Then, the next day–which is the very latest possible time that you should try to summarize a deposition from notes and memory–I’m even less interested in summarizing a depo. Not only do I just hate doing it, I’ve actually given the issue a bit of thought and concluded that, in most instances, it does not bring a lot of value to have someone bill several hundred dollars an hour to “summarize” anything, deposition testimony included. That’s why when I am engaged by a client that does not require a summary, I usually keep the reporting of the event to two sentences or less. Later, as we near trial, I find a sensibly written* page/line index is useful if there is a 5% or greater chance the witness will be called to testify. But a summary of what I just heard has always seemed like a painful waste of time.

Well, like I said, I’ve had an epiphany and changed my mind. The summaries I learned to write as a young associate were these kind of narratives: what kind of witness did they make and what did they say. The summary that made me change my tune had 3 distinguishing characteristics.

First, the “summary” part was in bullet, not narrative, form. It wasn’t a long, time-consuming rumination about what kind of witness the deponent will likely make at trial because she has excessive facial hair, or tends to drool, or whatever. Instead, it was punchy and to-the-point. Something like: “Retired nurse. Late 60s. Smart. Detail-oriented.” The information conveyed by the deponent was described this way, too. It probably took the lawyer 10-15 minutes to lay out these details, maybe less if he dictated it.

The second component was how to deal with the witness if she testifies at trial. In this instance, it was a witness of whom we are theoretically afraid. So the lawyer laid out 2-3 points that distinguishes what she said from the facts of our case, and an additional point about how some of what she said is subject to exclusion as hearsay. The real genius of this approach is that it might trigger follow-up that could be missed otherwise. For example, if the witness went out on a limb about something that could easily be proven wrong by a photograph or a subpoenaed record, you should note this and go ahead and assign the follow-up (at least in a perfect world).

Finally, the third component of the summary was a short opinion about the impact of the testimony. It could be as brief as “Problematic for our defense because . . . .” Or something more detailed, if time and inclination permits. The point is that it’s something that could be dictated or written in a half hour or less at the end of the day before you tuck yourself into that first 12 oz. vodka martini.

Because this format is shorter, tighter and more user-friendly, the recipient of the summary will probably be grateful, too. I can tell you my best writing never found its way into a deposition summary–I save that for you, my loyal readers.

And while we’re on the topic of what to do when you’ve completed the deposition, another is to immediately draft written follow-up discovery, or at least make a to-do list of the additional work that needs doing. Most of the time a witness–at least an important one–will open a door that you hadn’t really considered before. Follow up here is critical and, like the details of a dream, easily forgotten if not at least noted right away.

*A sensibly written page/line deposition index is something I might cover in another post, if I run out of marginally interesting things to write about. I know I’m pushing the envelope with this post about deposition summaries, which is why I included the racy picture.

Why And How You Should Get “Surgical” With Your Discovery

(I so wanted to accompany this post with a still photo from the scene in Training Day in which Denzel Washington, wielding a sawed-off shotgun, tells Ethan Hawke’s character, “You know I’m surgical with this bitch!” Sadly, I couldn’t find a good still from that scene, so I used this lame stock photo instead.)

I’m a big proponent of serving written discovery that is “surgical,” that is, as narrowly drawn to fit the facts of the case as I can make it. Why? First, because I am a lawyer, my time is expensive. I don’t like to waste my client’s money writing discovery that is not likely to yield anything of value. But it’s not just that.

Drafting and serving unfocused and overly broad discovery will lead, in most instances, only to objections (“Overbroad!”) and, even if there are substantive responses, chances are they’ll be weak and of little value. As I’ve earlier written, you and your client should almost always “go to the mat” if necessary to obtain complete discovery responses. This means time spent reviewing the crappy objections and responses, writing one of those spectacularly painful “meet and confer” letters, getting a spectacularly painful letter in response, possibly writing another and/or having an unpleasant telephone call, followed by a motion which you may or may not win because the discovery was crappy and overly broad in the first place. All of this is time-consuming and, therefore, expensive for your client. In most jurisdictions, moreover, the court has discretion to force the party who loses a discovery motion (which could be you) to pay the other side’s attorney’s fees. Ouch!

A second reason I try to make my discovery surgical relates to how I want to be viewed by my opponent. While there are certain times when, for strategic reasons, I want my opponent to view me as unsophisticated and/or unprepared, I usually desire to instill the opposition impression. Nothing shows I haven’t a clue more clearly than 100 unfocused interrogatories, most of which skirt the real issues in the case. On the other hand, well drafted discovery shows not only that you know how to practice law, but also that you know what facts will win or lose the case. If your opponent happens also to know what she is doing, she will take you more seriously throughout the case, including at important times like when you are mediating or discussing settlement. If, on the other hand, your opponent is a lawyer who has gotten in over his head, recognizing that you know what you are doing will make him that much more eager to resolve the case before trial. Fear of submitting a case to judge or jury can be huge leverage.

So that’s my spiel for why it makes sense to serve surgical discovery. What about the how? A couple of ideas. First, it should be no big mystery at the discovery stage what the major theories of liability or defenses will be. I recognize we often refine theories and defenses based upon what we learn in discovery, but the complaint and answer at least frame the case in a general way. I like to take the jury instructions for the theories and defenses and draft discovery that seeks facts (and documentary evidence) that will support or defeat each element of a cause of action or defense. I recognize this isn’t revolutionary, but it works.

In addition, I like to involve at least some of the expert witnesses who will ultimately consult and, potentially, testify on behalf of my client as early as I can in the case. By meeting with these experts earlier than later, I can understand the technical issues likely to be in dispute. I may involve the expert in drafting discovery requests that are likely to yield meaningful information. I recognize that involving an expert early in the case can be costly. On the other hand, early expert involvement can ultimately save your client money in lots of different ways, starting with drafting useful cost-effective discovery, and including explaining earlier than later how the case you and your client thinks is so good actually sucks on a technical level.

So, go on, be surgical with that . . . er . . . interrogatory.

Preparing Your Deponent For “Soundbite” Questions

Soundbite questions are a hallmark of depositions taken of Persons Most Knowledgeable (PMK aka Persons Most Qualified or PMQ) within an organization on certain topics.  Here are some examples:

“Does your company, manufacturer XYZ, have ethical considerations in the design of its products?”

“Does ABC Hospital care about the safety of its patients?”

“Was it important to your company that African-American employees not be harassed because of their race?”

Of course the answer to these door-openers is an enthusiastic Yes.  The problem is the inevitable follow-up:

“Then why didn’t you recall product 123 when you learned it was defective?”

“If you cared about preventing harassment, then why did you skip harassment training in 2011?”

These kinds of questions are intended to elicit soundbite responses that are, at best, only marginally relevant.  But they can leave a strong negative impression with the jury if they somehow get into evidence. You can object until you are blue in the face, and chances are slim that the colloquy ever gets read to a jury, but do you want to take that chance?  Even though I can’t anticipate every kind of soundbite question an opponent will ask my witness, I like to prepare her to recognize and effectively “manage” these questions. 

One of the best ways to limit bad PMK or PMQ deposition testimony is to make the witness really understand the scope of his or her intended examination.  For this purpose, I do not rely on the language of the deposition notice or subpoena.  Rather, I typically object to the deposition notice, which is inevitably overly broad or problematic for other reasons.  I then indicate, in the objection, that my client “will make a witness available who is knowledgable about . . .”  This gives me some measure of control over what is going to happen in the deposition.  For example, I never make a witness available to testify on ridiculously overbroad topics like “safety.” Rather, a notice asking for a witness on the “safety” of a product will get an objection promising instead a witness who is prepared to testify about “design considerations” or “testing.”  If opposing counsel receives my objection and has a problem with it, I expect he/she will raise the issue and we will hash it out before the day of the deposition.  Failing that, I take the position that the language of my objection governs for purposes of scope. 

Now, this may seem strident.  However, if push comes to shove and we need to appear before the judge, (1) I have not conceded anything and there is an opportunity to fully brief my client’s position; and (2) the burden is on the party noticing the deposition to move to compel, rather than having the burden on my client in moving for a protective order.  As Denzel Washington points out, in Training Day, “The shit’s chess, it ain’t checkers.”

Since I have had some say in the scope of the witness’ examination, I want to make sure the witness knows the boundaries of this scope.  After explaining this, I reinforce it by asking a series of mock deposition questions that fall just inside or outside the scope.  This practice helps the witness feel comfortable asserting that the question is outside the scope of her deposition.  I also teach her to listen for my objection that the question is outside the scope.

Unfortunately, while some examiners will walk away when the witness resists an invitation to give a soundbite, others are more persistent.  They will ask the same question over and over until they get a response, or slightly change the question until they get an answer they think is useful.  Preparing my witness for this kind of persistent examination requires consideration of my overall theme in the case.  For example, if my client made a single part that was incorporated into a larger product that is claimed to be defective, my theme might be that my client made the part according to a specification.  I teach the witness to restate this theme in a way that she finds comfortable, then help her to apply it in response to a variety of different questions.  Again, practice through hours of mock questioning is the only way to “train” my witness how to incorporate the theme into her responses.

The most important thing is to put my witness on notice that she is likely to be asked soundbite questions.  Since the questions can seem innocuous (“You care about safety, right?), and seasoned examiners know how to sandwich them in between more legitimate questions, it’s important for the witness to remain vigilant.

Driving McElhaney’s “Wedge” Between Your Opponent And Her Counsel

I’ve written about dealing with difficult or overly coaching counsel when trying to conduct a deposition.  Considering that the entire purpose for taking a deposition is to gather evidence, and a coaching or otherwise difficult opposing counsel can undermine this goal, this is an important issue.  Unsurprisingly, Professor McElhaney, in his excellent Litigation (aka the Bible), offers a wise strategy for dealing with these situations.  In a chapter entitled “Pit-Bull Depositions,” he discusses The Wedge.*  Because I cannot say it better, here’s a quote: “[T]he lawyer is coaching the witness because he is afraid of what the witness might say.  That means he has not adequately prepared the witness for the deposition.  It also means he is afraid you are getting close to something that might help your case or hurt his. . . . [T]here are probably better things to do than run to the judge when a lawyer coaches a witness during a deposition.  One of them is to drive a wedge between the lawyer and the witness.”  (Id. at 53.)

How to do this? Professor McElhaney suggests you change the dynamic of the deposition, so that the witness begins to see how her attorney is interrupting her and preventing her from telling her side of the story.  The witness will likely already be irritated that her lawyer did not adequately prepare her for the kinds of questions you are asking (or perhaps did not prepare her at all).  Capitalize on this dynamic by encouraging the witness to finish telling her story.  In addition to the above, I would add that a calm, prefatory response to the attorney might also be useful.  I’m thinking something along the lines of, “Counsel, you and I both know that what you’re doing is against the rules and making the deposition a miserable experience for your client.  That’s not my goal.  It’s also going to make this take much longer than necessary because I have to re-ask the question every time you do it.  Your client is entitled to tell her own version of the events, let her do it. We can hash through your technical objections later with the judge.”

This, of course, requires the examiner to maintain a calm, professional composure throughout.  Raising your voice, or even scowling will tend to reinforce the Us vs. Them dynamic and cause the witness to cling to her lawyer, regardless how poorly she was prepared for the deposition. 

*McElhaney credits New York lawyer Patricia Hynes for this strategy.  That either renders this post triple hearsay or I owe Ms. Hynes a royalty.

Why I Typically Flee The Running Objection

In case this term is foreign to you, a “running objection” is sometimes offered by a party taking a deposition (or during a hearing or trial) when it appears that they are going to repeatedly encounter the same or similar objection.  Here’s an example of how it would arise:

Examining Attorney: “Why did your supervisor finally decide you should receive discipline?”

Defending Attorney: “Objection, calls for speculation, lacks foundation.”

Examining Attorney: “Counsel, why don’t we just agree you’ll have a running objection, so you don’t have to keep interrupting?”

Defending Attorney: “Thanks for the offer, but I would prefer to address each question separately.”

There are probably a wide variety of reasons why attorneys offer running objections.  I’ve even done it.  First, on the surface they would seem to streamline the deposition process, saving both time and money, since each individual objection consumes time and transcript space.  Why not give/take a running objection and cut down on the interruptions, shorten the deposition and transcript?

But I almost never accept the offer if I’m attending or defending a deposition.  Why? First, while I’m not interested in impeding the search for truth, I don’t view my job at a deposition to include making the examining attorney’s job an easy one.  If he/she asks a crappy question, it’s his/her fault, not mine.  If this results in repeated or even frequent objections, then he/she should hone his/her deposition skills.  It’s not my goal to interrupt the examiner’s flow–which is inevitable every time I make an objection–but it is an incidental benefit of objecting to protect the record.  If the examiner want’s to reduce the incidence of these interruptions, he/she should ask proper questions.

Second, the principal purpose of making an objection is to preserve the objection so the judge can later consider it and make a ruling if the deposition transcript is used at trial (or as evidence in another capacity, say in support of a motion for summary judgment).  The examiner has a choice, upon receiving the objection.  He/she can push forward (assuming there has been no instruction to the witness not to answer) and require the witness to respond.  Or, he/she can consider the objection, conclude it may have some merit and rephrase the question.  The benefit to me, as the attorney representing the witness, is that my witness will potentially get a proper question.  This is important where the objection to the question is that it is vague and ambiguous.  While such an objection may not be ultimately sustained by a trial judge, it might prompt the examiner to rephrase the question so that my witness is responding to a question that is less vague, less ambiguous. 

Finally, it can be cumbersome to obtain a ruling on a running objection.  For example, in the context of an all day deposition, imagine I accept the offer of a running objection at 11 am, which ends up on page 45 of the transcript.  The examiner continues to ask objectionable questions for the remainder of the day, but I stay mum based on the running objection.  Later, the case proceeds to trial or a motion for summary judgment is filed, and a bad, objectionable question from late in the day is about to see the light of day.  I want to obtain a ruling on the objection, but it becomes a cumbersome exercise, as I have to point the court back to a much earlier part of the transcript, where I obtained a running objection.

This is not to say that running objections are a bad idea.  I just prefer, if I am defending a deposition, to deal with each question individually.  If you do agree to a running objection, be sure to remain vigilant.  If a question is objectionable for an additional reason not addressed by the running objection, it is important to raise the additional objection or risk waiver.

Ok, You’re Limited In California To 7 Hours For Deposition, Now What?

I previously wrote that I disagreed with the proposal to amend the California Code of Civil Procedure to limit depositions to 7 hours.  Well, now we’re stuck with it.*  So, I thought I would explore strategies to deal effectively with this new rule.   I developed these strategies from trying to take effective plaintiff depositions in employment cases pending in Federal District court.  The Federal Rules of Civil Procedure have long limited depositions to 7 hours.  (Fortunately, the new California rule has a carve out for depositions in employment cases.)

As I said before, it seems to me that most depositions in most kinds of cases should be reasonably capable of completion in 7 hours or less.  This is probably a radical overgeneralization, but it’s been my experience that most witnesses don’t have more than 7 hours of relevant testimony in them.  For those other cases and witnesses, in which it will be hard to finish in that time, here are 5 strategies that should help: 

1.  Give yourself more time to prepare.  Like everything in litigation, preparation is the key to success.  If you typically spent a day preparing for an all-day deposition without the time limitation, spend a day and a half preparing now.  If you generally eschew using deposition outlines in favor of a “come what may” approach, consider making at least a rough outline of topics you absolutely must cover.  The alternative is to risk running short of time without having covered crucial topics.  The argument against using an outline is that, using an outline causes us not to listen carefully to responses; this can be overcome with effort.

2.  Don’t be wed to a chronological or other artificial order of topics–get what you absolutely need first.  Speaking personally, I generally have an order I use over and over in taking depositions.  It is one that follows logically from how I see the case.  This can be a problem, though, when time is limited.  Then I have to prioritize based on order of importance, rather than imposing a chronological or other more familiar order of topics.  If, for example, there’s an especially important affirmative defense available, I reorder my examination in order to cover what I need to invoke that defense at the beginning, even if it doesn’t seem to make sense.  (This has the collateral benefit of “throwing off” opposing counsel who expected you to begin at the beginning.  It’s fun to see them look confused.) 

3.  Make a record that will support a motion for more time, if that becomes necessary.  You may need more than 7 hours regardless how you prepare and how smoothly the depo goes.  If this is the case, begin early creating a solid record to support judicial relief from the limit.   The new section, CCP 2025.209(a) includes this language: “The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.”  There’s a lot of room here.  Either “witness XYZ cannot be ‘fairly examine[d]‘ in 7 hours because . . ., ” or “as demonstrated in the transcript of the first session of her deposition, XYZ [or her lawyer] impeded and delayed the examination by . . . “   Videotape of the depo may help illustrate evasive responses, long delays or lengthy, meritless or talking objections.  In one case, we relied heavily on the videographer’s time-keeping records to show long delays.

4.  Resist the tendency to fight opposing counsel on the record.  As a reminder, taking a deposition need not be a contact sport.  This is especially true if you’re trying to get useful testimony and don’t have enough time.  Unreasonable objections or instructions not to respond should basically be ignored until after the deposition, when it’s time to “meet and confer” prior to filing a motion to compel responses to questions and/or a motion for more time.  Focus, don’t get distracted! 

5.  Go off the record whenever there’s going to be “dead air.”  If you hand a witness a document that will take a few minutes (or more) to read, go off the record while the witness reads it.  The same is true if you need to re-group or review your notes or a document between questions.  Just take a break. 

I hope these help.  Good luck.

Cal. Code of Civ. Proc. 2025.290 becomes effective Jan. 1, 2013.

On Timing of Contention Interrogatories

It used to be that I gave no real thought to when, in the course of a lawsuit, I would serve contention interrogatories.  Sometimes, I would serve them concurrently with my client’s answer to a complaint, just to get the discovery ball rolling.  But a couple of years ago a litigator whom I greatly respect gave me a tip I’ve found to be valuable, and which I’ll pass on here.  In a nutshell, the idea is to hold off propounding contention interrogatories, or requests for admission with corresponding interrogatories, until after completing the opposing party’s deposition.  This seems so obvious to me now that it’s hard to believe I didn’t intuitively follow the practice from the beginning. 

Contention interrogatories provide an excellent roadmap to the proponents case.  If I represent a plaintiff, my contention interrogatories will ask my opponent if and how they contend I will not be able to prove any essential element of my client’s case.  They may also ask what evidence my opponent has to meet his/her/its burden of proving essential elements of an affirmative defense.  If I represent a defendant, the interrogatories ask what facts and evidence my opponent has to prove his/her/its case (or to counter my client’s affirmative defenses). From viewing these interrogatories, my opponent should be able to get a pretty good idea where the contest(s) will be in the lawsuit.   

Assuming my opponent can walk and chew gum, he or she is not going to simply tender the interrogatories to his/her client, transcribe and serve the responses.  Either the attorney is going to work with his/her client to jointly draft responses, or he/she is simply going to write the responses and have the client sign a verification.  Either way, the interrogatories and responses are probably the best tool available for preparing his/her client when the time comes for deposition.

This is not to say that I do not serve any discovery before the deposition.  In fact, I think it’s important to serve a pretty comprehensive set of requests for production right at the outset.  Ideally, I’d like to have most or all of the relevant documents in-hand and reviewed prior to the deposition.  This is not always possible, but it’s a worthy goal.  I also see no problem serving discovery which asks the opposing party to identify all witnesses he/she/it believes will have knowledge of relevant facts (note that I do not limit the query to persons with knowledge of facts the opposing party “may use to support its claims or defenses” a la FRCP 26(a)(1)(A)(i)–I want to cast a broader net).  Unlike contention interrogatories, this discovery provides no roadmap whatsoever as to my client’s strategy in the case. 

Anyway, I hope this finds readers thinking “hey, that’s a pretty good idea.”