Make the most of company-employee depositions: to get the best results from this routine part of discovery in products cases, ask questions that are anything but routine.

On September 6, 2000, Connie Peters started her 1993 Oldsmobile Cutlass in her driveway, just as she had every morning in the seven years since she had bought the car. What happened immediately after that changed the lives of the Peters family forever.

Connie was alone in the car, and there were no witnesses, but the events of that morning are undisputed. The Cutlass accelerated in reverse down the driveway, across the street, and through a neighbor's yard before striking a tree more than 120 feet from where it started. The car hit the tree with such force that Peters's left arm was severed above the elbow and her skull was fractured in several places.

After striking the tree, the car continued moving backward, turning back in the direction of Peters's home. It traveled again through the neighbor's yard, across the street, up an incline, and into a one-foot-high landscaped area before stopping nearly 100 feet from the tree.

Peters's husband, who heard the noise of the collision from inside the house, ran outside and found his wife at the wheel. She has been in a persistent vegetative state since the accident.

When my firm was hired to represent the Peters family, my colleagues and I realized our first job was to find out what made the car behave as it did. It had no history of mechanical problems, and there were no observable defects in the accelerator, cruise control, or throttle. Soon, only two possible explanations remained: Either Peters had depressed the accelerator, or the cruise control had suddenly engaged on its own.

The automotive industry's standard response in cases like this is that all sudden-acceleration accidents are caused by driver error. But two years of discovery produced overwhelming evidence that the cruise-control theory was the right one.

During a two-week trial we introduced this evidence, which consisted of the accident facts (as analyzed by accident reconstructionists for both sides) ; evidence of other similar incidents, including 200 customer complaints of sudden acceleration; company documents; and testimony from General Motors (GM) engineers. The cumulative weight of this evidence proved that sudden-acceleration events can occur as a result of inadvertent activation of the throttle by the cruise control and that in this case it had been caused by an electrical fault.

After deliberating for two hours, the jury returned a verdict for the plaintiffs, which included damages for Peters's personal injuries and her husband's loss of consortium. The jury also assessed punitive damages against GM based on its finding that the defendant knew of the potential for activation of the throttle by the cruise control and yet did nothing to determine what caused the problem or fix it.

A key factor in the plaintiffs' victory was the testimony of GM engineers who worked in the company's cruise-control department before Peters's car was made. Of course, deposing company witnesses is a routine part of discovery in products liability cases. But plaintiff counsel who approach these depositions as mere fact-finding missions lose an opportunity to elicit testimony that can be especially persuasive to a jury.

A strategy

During the course of a lengthy products trial, the jury will hear testimony from a number of witnesses discussing the allegedly detective product. Expert witnesses for both sides will offer opinions regarding the product's design and manufacture. Company employees may be the only witnesses who testify about the product and are not "professional witnesses." Their testimony tends to carry far more credibility than an expert's because they have not been hired to testify.

Because of the importance of this testimony, it is critical to employ a strategy during discovery to maximize the effect of company-employee depositions. One way to accomplish this is to place potential witnesses in one of two categories.

One group includes employees--often corporate representatives--who are best used to discover information that could help your client's case. Questions for these witnesses should be tailored to the specific areas of inquiry outlined in the deposition notice. Of course, the more specific you are in describing an area of inquiry; the more beneficial the deposition is likely to be.

A corporate representative will usually have experience testifying, which makes it more likely that his or her deposition will be best used for discovery purposes. It is a good idea to take these depositions as early as possible so you have time to conduct additional discovery to follow up on any answers that require more investigation.

The other group comprises company employees who are not corporate representatives. Their depositions serve an entirely different purpose. They should be conducted with the jury, not discovery, in mind. They will typically involve a narrow area of inquiry, focusing on the employee's involvement in and knowledge of events directly related to the alleged defect. They may involve knowledge of testing that showed the product was susceptible to failure, or alternative designs considered by the manufacturer.

These depositions will generally be conducted late in discovery, after you have obtained all necessary documents and developed anticipated themes for trial. Rather than asking open-ended questions to elicit discovery information, you should conduct this deposition as you would a cross-examination, with the goal of making the most persuasive case to the jury.

Often, it is impossible to determine before a deposition whether a certain witness's primary function should be to provide discovery information, to be cross-examined for trial, or both. As the deposition proceeds, a witness you thought might be useful only for information may make a critical admission.

On the other hand, a witness you thought would provide favorable testimony when cross-examined might provide an explanation consistent with the defense theory. In that case, you may need to change course aim begin asking open-ended questions to learn the full basis for the explanation. Another witness may provide the admissions you need or provide a different explanation consistent with your themes.

Why is it necessary to choose one purpose over the other? Why can't you simply ask as many questions as you want and hope that something good happens during the examination? Because a 30-minute deposition that emphasizes a limited number of admissions is more persuasive than a 5-hour deposition that contains admissions buried in the middle. And your ability to edit a deposition to include only those portions you want may be limited by your jurisdiction or the court's rulings.

For example, you may try to enter into evidence only one page of a 40-page deposition, but the court may allow your opponent to designate how much of the deposition he or she wants entered into evidence. Experienced counsel will designate everything in the hope that your points will be lost on the jury. In all likelihood, they will.

An example

In the Peters's case, we learned during document discovery that in the early 1990s, engineers in GM's cruise control Center of Expertise (COE) had proposed a company-wide policy to eliminate systems in which a single electrical fault could activate a vehicle's throttle. At the same time, other cruise engineers were recommending that the company change the cruise-control system in all vehicles so that a series of electrical impulses was required to activate the throttle. The first reason given for the change: The current system was subject to a single electrical fault activating the throttle.

This was exactly what our expert witness believed occurred in Peters's vehicle and caused the accident. The COE was attempting to resolve the problem by requiring a design policy that would effectively eliminate it. Another set of engineers wanted to address the problem directly by making a change in system components.

At the heart of the issue was Marshall Meads, an engineer and the head of the COE when the policy change was recommended. His name surfaced as one of the engineers who recommended the policy regarding electrical faults. Although it was clear from the documents that such a recommendation had been made, it was unclear what action had been taken. Also unclear was why the COE engineers were concerned. No supporting documentation that shed any light on these issues was produced.

The Meads deposition began with some preliminary questions regarding his background to qualify him as a GM authority on cruise-control systems. At this point, we knew that he had made an important recommendation, one that seemed related to a safety concern, but we were not sure whether he would provide primarily discovery information or admissions.

We then asked him questions to establish the time frame of his involvement with GM cruise controls, to make sure it predated the manufacture of Peters's car. We did not ask him where he went to college, how many degrees he had, or how many departments he worked in--this information was not important. Once a witness testifies that he or she had authority regarding the design or manufacture of the product in your case during the relevant time period, you can move on.

Following these brief background questions and a few to determine the extent of Meads's preparation time with defense attorneys, we turned to the documents. When he was asked what had raised his concern about electrical faults activating the throttle, he said:

   At our Center of Expertise meetings, we
   could hot-wire and duplicate some of these
   failures ... at very low speed ... and we made
   sure that everybody that ... had anything to
   do with cruise experienced what it would be
   like to be sitting in a parking lot and drop
   this thing into gear and have the cruise take
   off on you.... This was something we didn't
   want to happen to us. We sure didn't want it
   to happen to our young teenage drivers,
   and it's absolutely unacceptable to have my
   60-, 70-year-old lather experience this thing....
   We just weren't going to tolerate it.

He then confirmed that this defect--a single-point electrical fault activating the throttle--had been discovered in the late 1980s. This testimony contradicted GM's repeated assertions that there was no real-world threat of sudden acceleration that could be attributed to the cruise-control system.

Meads went on to testify that safety was one of the reasons the COE made the proposal. He also conceded that the cruise system in Peters's vehicle would not have met his proposed standard because it was susceptible to activation by a single electrical fault.

Meads made all of these admissions within the span of 10 minutes. Next, we asked him about GM's response to the COE proposal. He said:

   When we made that presentation to the
   electrical group, we ran into some real beehives,
   and there was a lot of nonsupport....
   We made one presentation to the power-train
   group, and I'd say within a month or
   two later just a courtesy presentation was
   made to that electrical group. And ... they
   did a hatchet job on us.

Sometimes a witness provides a wonderful catch phrase--like "hatchet job'--that you might never come up with on your own. At trial, we referred to this phrase at every opportunity. It became part of the case theme: that GM had no intention of addressing the problem and instead wanted to conceal the problem by refusing to acknowledge it.

At that point, the deposition had lasted only 36 minutes. There was no reason to go any further. We were able to obtain the additional discovery necessary from documents and depositions of other engineers. We accomplished what we wanted to, in a format that would keep the jury's attention at trial. GM's lawyers did not ask one question at the deposition.

Meads did not testify at trial, but his deposition testimony proved to be the last word on the proposal to eliminate electrical faults in cruise controls at General Motors. It provided us with ammunition for every phase of the trial--opening statement, direct examination of our expert, cross-examination of defense experts, and closing argument.

In practice

It is impossible to strictly adhere to a set of rules when taking depositions. Yon must use your best judgment in deciding what questions to ask and how to ask them in each situation you face. However, some general guidelines may be helpful:

Always know exactly why you are taking the deposition. If more attorneys followed this rule, there would be a lot fewer depositions. The goal of discovery in a products liability case should be to prepare a persuasive case for trial, not to learn every nuance of the product's design and manufacture. If you do not know why you are taking a deposition, you may want to reconsider your decision to do so.

Avoid questions that do not make an impact. One of the most difficult challenges for a trial lawyer is to not ask a question. A deposition that blindly follows an outline with no consideration of its effect on the,jury misses the point. If a question is unnecessary to lay a foundation or has no cross-examination impact, it is usually better to simply leave it out.

Make the best use of technology. Modern technology has vastly improved the presentation of depositions at trial, merging audio and visual techniques lot impact. You should find a videographer who has experience working with sophisticated document cameras and presenters. This technology allows you to display the deposition document on a screen at trial while you question the witness about it.

Be prepared, but be flexible. Preparation is one of the keys to a good deposition. Equally important is the ability to change a line of questioning based on the witness's answers and demeanor. For example, you might learn early on that a witness whom you had hoped to cross-examine has a lot of experience testifying and is unlikely to make admissions. When this happens, switch gears and broaden the deposition.

Yet while thorough preparation and skilled presentation are essential, the value of a deposition is determined by how the deponent responds to your questions. Most successful depositions are less a product of brilliant lawyering than of witnesses who openly and honestly discuss the issues you have uncovered during discovery.

In products cases, the most helpful depositions are often given by company employees. Don't make the mistake of using these witnesses only as fonts of discovery information. Instead, keep your eye on the ultimate goal--jury persuasion--and keep your cross-examination skills sharp.

MARK J. EVANS is a partner with Langdon, Emison, Kuhlman & Evans in Lexington, Missouri.