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.