Deposing witnesses: a discovery worth making.

Early one Saturday morning two associates met in our firm's conference room to prepare for a deposition the following Monday morning. The case was a contract dispute over the ownership of an office building and involved one of the firm's principal clients.

The associates were mxiouslv poring over a stack of documents when one of the senior partners in the litigation department wandered in. The associates explained that the central issue in the case was whether the parties had intended to enter into a binding contract or a nonbinding letter of intent. They felt the Monday morning deposition might resolve some of the essential factual issues in the dispute.

"Who's being deposed?" the partner asked. The associates responded that the deponent was the broker who had brought the parties together and structured the deal.

"He's a very important witness," one said.

The partner listened as the associates said that they had not telephoned the broker and requested a meeting. He was so potentially valuable as a witness they had decided to treat him carefully, just as they would an opposing party. They had to admit they did not know just how neutral he was or whether he might be friendly to their cause.

"You may have made a big mistake in noticing the broker's deposition," the partner said. "Noticing a deposition should not be an automatic discovery approach." In many cases, he explained, there are some better ways to develop testimony.

These are hectic times for trial lawyers. We tend to approach depositions too casually, failing to focus on the purpose of specific depositions, the suitability of various examination techniques, who should and should not be deposed, and whether a properly witnessed interview will provide adequate protection. These questions require early and careful attention when devising a discovery plan.

Depositions are the single most important discovery tool available to litigators. Unfortunately, the power and effectiveness of depositions have led to their overuse. Although we generally understand that depositions arc not the best approach for every witness, we do not always apply that knowledge in everyday practice.

Purpose and Method

The purpose of a deposition substantially controls the method of examination and the general approach to a deponent. A deposition may be taken wholly or in part for discovery purposes, to perpetuate testimony, or for a combination of these.

When taking a deposition to perpetuate testimony, entirely different considerations apply than when doing so for purposes of discovery. And these considerations apply both to the question of whether to depose and the strategy to be used. The examination style for both noticing and defending counsel is very different when taking depositions to perpetuate testimony rather than to advance discovery.

These different strategies highlight the importance of focusing ahead of time on the nature and purpose of the deposition. It is easy to focus on strategy when the situation is clear-cut. But we tend not to in borderline situations, particularly when all the relevant circumstances are not immediately obvious.

This often occurs because the witness's situation or attitude is not thoroughly understood, and no attempt has been made to interview the witness. Depositions often fall somewhere between the basic discovery deposition and the deposition to perpetuate testimony. In those situations, you must be flexible to achieve the best results. Keep in mind the basic principles, and use them in your game plan.

Thorough preparation is the key to any successful examination. Before taking a discovery deposition, you should familiarize yourself with all important documents and interview all witnesses who know about the case. Before the deposition, prepare an outline of the lines of questioning you anticipate. Whether the outline is organized by subject area or follows a more chronological order depends in large part on the case.

In my experience a deposition is frequently more successful if the examination is conducted by subject area. In all instances, however, the outline should serve only as a guide.

You should depart from the outline when necessary to follow up on the witness's responses. Pay careful attention to the responses and body language. Relentless pursuit of further areas of inquiry is essential. Don't waste time writing out questions for use at deposition. They are distracting and inhibit a free-flowing dialogue with the witness.

Your general approach should be friendly. You should exude a genuine interest in learning the witness's view of the case. Although the witness will have been trained to give only limited answers and to be generally guarded, the witness may open up if you are sincere.

A good tactic is to pretend you know little about the case and ask the witness to explain the situation for you. If you are lucky enough to get the witness talking, don't make the mistake of interrupting to clarify something. You risk terminating a flow of valuable information.

You will have ample time to follow up after the witness finishes answering.

To disarm the witness, some attorneys like to switch topics. They will leave a subject in midstream and return to it later. This strategy works well if you can pull it off without getting lost and omitting entire fines of inquiry.

One technique I have found helpful is to conduct the first part of the deposition from an outline without referring to any documents. During this phase which may take up more than half the total time, I conduct a general examination of the witness.

In the second part, I review the documents with the witness. To a great extent, the documents cover the same ground but from a different perspective. Examining the witness before introducing exhibits is valuable because the witness's recollections of the facts in the case are not limited by the documentary evidence. Another benefit of this approach is that it permits two passes at the facts and helps to avoid the possibility, of missing a valuable line of inquiry.

Relying on documentary evidence can also bog you down. Remember, documents can become a crutch. You may get so involved in them that you fail to develop the full story and pick up on other important areas of inquiry.

From the witness's perspective, documents can be threatening. Some examiners brandish them like weapons, forcing the witness to agree with what's been written. A witness who feels threatened this way may become inhibited and less forthcoming. Exploring the case without documentary evidence puts the examination on a more relaxed and informal footing.

Opposing Counsel

Effectively dealing with opposing counsel in a deposition is an art that requires knowledge of human relations and diplomacy. You must size up your opponent. If you treat him or her respectfully, there will be far fewer problems moving ahead with the examination.

An objection to the way a question is asked, if the objection is well founded, should be met with a rephrased question. Instructions not to answer should be calmly negotiated. Efforts to defuse conflict by offering to approach the subject in a different way often prove successful.

Remember, your opponent is a human being who wants to look good in front of the client. Often this is more important than the legal basis of the objection. Allow your opponent to save face. With calm and creative approaches to conflict, courtroom battles can be avoided.

These approaches obviously will not be effective with a committed obstructionist. The technique here is to proceed with the examination without losing your temper. Develop a good record, and take it to court.

The 1993 amendments to Rule 30 of the Federal Rules of Civil Procedure should help alleviate this problem. Objections must now be stated in a nonargumentative and nonsuggestive manner. These changes should limit the so-called speaking objections that have been so distracting and time-consuming. Instructions not to answer should also be less of a problem now that Rule 30 strictly limits their use essentially to that of preserving privilege.

There is a great deal of gamesmanship and adversarial taunting in depositions. These tactics can seem amusing or silly to a veteran attorney but may be annoying or disturbing to inexperienced counsel. The techniques are designed to unnerve the examining attorney or limit or terminate the examination. If we learn what these tactics are and recognize their real purpose, we can discourage their use.

These tactics include suggesting that examining counsel is wasting everyone's valuable time by asking how much longer the deposition will last, pretending to be bored or yawning, and repeatedly glancing at a wristwatch or clock.

You should challenge these actions on the record and request that they stop. They arc seldom serious enough to be brought to the court's attention, but we all should be aware that there are a few lawyers who persist in playing these games.

Nonparty Witnesses

Depositions are time-consuming for litigators and costly for the client. More important, there are witnesses whose depositions we definitely should not take, even though they may be important to our case. Deposing a witness who is apt to support our position, for example, is a strategic blunder. Lawyers know instinctively that they do not need to depose their own party witnesses. But deciding whether to take a nonparty witness's deposition is more troublesome.

In almost every case, relatively neutral third parties possess information relevant to the litigation. Without their testimony it would be difficult to present the case at trial. Nonparty witnesses with no stake in the litigation usually make the most effective witnesses because they can relate the facts objectively. How their testimony is developed is very important.

When determining whether to depose a nonparty witness, you must consider the extent of the witness's knowledge, the relative significance of his or her testimony, whether the witness will be friendly or hostile to the plaintiff, and whether the witness is within the trial court's subpoena power.

As a general rule, there is no reason to depose a friendly witness who is within the court's subpoena power. But there are very good reasons not to. It is important that a friendly witness not be confined to testimony previously elicited in a deposition. As the case proceeds toward trial, the witness may recall additional facts, particularly as other issues emerge. Without a deposition, you are free to elicit this testimony at trial with no fear of impeachment.

On the other hand, deposing a friendly witness early can diminish the power of the testimony by making the witness more vulnerable on cross. Also, there is no need to have the testimony recorded under oath because the witness is unlikely to recant it at trial.

Noticing the deposition of a friendly witness also educates opposing counsel. It provides an early opportunity to cross-examine and possibly develop testimony that may hurt your case. Opposing counsel has much less chance to elicit unfavorable testimony in cross at trial than in the free-for-all atmosphere of discovery.

The strategy for unfriendly witnesses is just the opposite. You should generally to depose all unfriendly witness within the court's subpoena power. A free-ranging deposition allows you to examine the witness thoroughly on the relevant facts. This will preclude the witness from coming up within new evidence or surprise testimony at trial that is contrary to the deposition. In short, tie down unfriendly witness in every way possible at deposition.

Informal Interviews

As trial counsel, we often anguish over ether to depose m important neutral witness. We fear that although the witness may appear unbiased, he or she is not truly neutral - or that alliances may change as trial looms closer.

If opposing counsel has not noticed the witness's deposition, we also worry that the witness is friendly to the adversary. Often, we'll go ahead and notice the deposition, believing it to be the safer course. After all, we want a complete transcript of this important witness's testimony. But have we taken enough investigatory steps?

Too often the answer is no. We do not spend enough time interviewing a witness. If we did, deciding whether to depose the witness would be much easier.

Interviews of nonparty witnesses are often a reasonable alternative to depositions. Often, they will obviate the need for a deposition and put you in a better strategic position.

In addition to interviewing your own party witnesses, you should talk with all nonparty witnesses. If a witness is friendly to your client's case, the witness will usually be willing to meet with you and review the facts in detail. You will be able to question the witness fully and determine reliability without committing any statements to record.

Contact witnesses early in discovery. There is a real advantage to explaining your client's position to a nonparty witness before the opposition gets involved. Early contact can sometimes put the witness in your corner. You should not assume from discussions with your client or a review of the documents that the witness may be unfriendly and should be deposed. Nonparties have their own priorities. Placing a telephone call to a supposedly unfriendly witness will usually tell you if the witness will talk to you an perhaps provide valuable testimony.

If a witness has been interviewed before deposition, evidence of the interview will probably come out at the deposition, but witnesses tend to balk when they are unfairly accused of being biased. There is nothing improper in a witness's submitting to an interview with counsel for either party, and the witness should be advised of that at the conclusion of the interview.

If opposing counsel tries to make too much of your interview with the witness, the tactic will probably backfire. The benefits of interviewing far outweigh the risks of any possible harm. Even if the witness has nothing favorable to say, you will at least know that you do not want to take a deposition. You may also gain valuable information for cross hi the event opposing counsel calls the witness to testify.

It is always wise to bring an assistant when you interview. The assistant should be a nonpartner, preferably a litigation paralegal familiar with the case and skilled in note-taking. Then you can have your cake and eat it too. The witness's testimony is not hated by a deposition transcript. If the witness should contradict an earlier statement, you can impeach the witness with your assistant's notes.

You will be surprised at how often this happens. It is, of course, true that this type of impeachment is not nearly as effective as a deposition transcript would be. Therefore, the clearly unfriendly witness should always be deposed.

After determining that a witness should be interviewed, a further decision must be made - whether to obtain a formal, executed statement. As a general rule, these statements should be avoided because they can limit you.

They are advisable, however, when interviewing a cooperative witness whose loyalties may change. You should carefully weigh the loyalties of a witness when deciding whether to obtain a statement or rely solely on your interview notes.

Many of us have encountered a witness who is friendly for a short time after the event occurs but later becomes unfriendly because of a personal relationship to the parties involved. At the time of the incident, emotion may move the witness toward neutrality and away from natural loyalties. These dynamics are commonly found in criminal case investigations.

Experienced counsel will appreciate the witness's situation and be able to foresee the natural change in position that cm be expected. In this situation, it is critical to interview the person immediately and have an assistant with you. This is one time when a formal statement should be prepared and executed.

Witnesses at this early stage may be willing to make statements favorable to your client that they would not make a month or two later when their priorities have changed. Eventually, when a witness is deposed or testifies at trial, the witness's statement in the interview can be a valuable impeachment tool.

Over the years, I have taken several formal statements from such witnesses. When the witness signs the statement, it is very satisfying. But think carefully before you obtain a formal written statement from a witness, and never do so in the case of a friendly witness.

De Bene Esse Depositions

Deposing a person who is beyond the trial court's subpoena power or will not be available as a witness at trial is often called a de bene esse deposition. Its purpose is not that of discovery but to ensure that the evidence md testimony will be available at trial.

These depositions assume that the witness will not voluntarily testify at trial for either side. So the testimony must be obtained by deposition to be read or played back on videotape at trial.

The mere fact that a witness resides beyond the court's subpoena power does not necessarily make for a de bene esse deposition. It may be clear to both sides that the witness will voluntarily appear at trial. In those circumstances, the deposition would proceed as a discovery deposition by the nonsponsoring attorney.

When the witness is favorable to your position and has not been deposed by your adversary, consider how much control you have over the witness and how confident you are the witness will voluntarily appear at trial. If you're not sure, and the witness is important, take the deposition and perpetuate the testimony.

If you are taking the deposition, you must be aware, however, that it may be used against your client at trial. Depending on the extent of the risk, you may want to employ some cross-examination as a counter punch.

Examining a witness in a de bene esse deposition is quite different from examining one in a discovery deposition, because you are presenting testimony and evidence rather than discovering evidence. The persistent focus should be on eliciting trial testimony.

You should know ahead of time what the witness will say and should elicit the testimony in an orderly and persuasive way. Do not attempt to explore all the facts of the case as you would in a discovery deposition. Present only the relevant facts that have already been disclosed in an informal witness interview.

Plan this deposition the same want you would prepare to examine a witness on direct at trial. Anticipate areas that your opponent will cover in cross or areas where the witness is weak. Then offset them appropriately in direct examination.

When taking a deposition to perpetuate testimony, remember that the testimony, will be read into the record at trial. Few things are as boring. Witness examination should be organized and brief to hold the jury's attention.

Depending on the importance of the testimony, you may want to videotape the deposition. This way the jury can observe the witness and determine credibility. The decision to videotape assumes that you have already met with the witness and weighed the benefits of having the jury see the witness.

Videotaped depositions are less boring than transcriptional readings, but they hardly compare with a live witness. Videotaped depositions must also be kept short and crisp to maintain juror interest.

If the witness has documents you need for deposition, obtain them in advance and review them with the witness during the predeposition interview. Explain the review will save time at deposition.

Make arrangements t6 give opposing counsel a copy of the documents promptly. Extending this courtesy avoids claims of surprise and a continuance at deposition while opposing counsel reads the documents. If the witness is reluctant tO give them, they can be subpoenaed before deposition under the 1991 amendments to Rule 45 of the Federal Rules.

The task of opposing counsel in a de bene esse deposition also differs from that in a discovery deposition. Opposing counsel will ask few, if any, questions in a typical discovery deposition. But in a de bene esse deposition, opposing counsel will ordinary vigorously cross-examine the witness to reduce the impact of testimony. Opposing counsel's job is to impeach the witness and bring out any inconsistencies in the testimony, just as in cross at trial.

Both friendly and unfriendly nonparty witnesses within the trial court's jurisdiction must be subpoenaed. Do not assume that serving a subpoena win antagonize a friendly witness. A witness often welcomes the inherent authority of a subpoena. The subpoena also shows the witness's employer that the witness must cooperate. The subpoena may also subliminally give the witness permission to help you with your case and eliminate any residual guilt associated with testifying. Witnesses should never be surprised by a subpoena, however. Tell them in advance it will be served and why.

Strategy

As the partner left the conference room, the associates wondered aloud what they would do. If the broker turned out to be a friendly witness, they would have put themselves in the hapless position of taking a deposition that would not serve their interests.

The associates began to map strategy to salvage the situation. They would conduct only a brief and superficial examination and turn the broker over to opposing counsel for cross-examination. The associates hoped that their opponent would fad to recognize the need to conduct a searching cross.

Even if noticing the deposition turned out to be a blunder, the associates still might be able to pull their chestnuts out of the fire. They were learning.