KEEPING CONTROL AT DEPOSITION: A FEW TIPS By Paul Scoptur Why We Take Depositions We take depositions for a variety of reasons: to gather facts, evaluate a witness, pin down opinions, and to get sound bites for trial or settlement. In order to be sure that you have accomplished your goals, it is important to remember that the deposition is yours to take or yours to give away. Knowing that you have gotten what you came for is much better than reading the transcript months later only to find out that you have no idea what the answers mean or how you can use them. Here are just a few points for taking your next deposition. Should I Videotape? The answer is yes. In my view, the primary reason for videotaping is the power of non-verbal cues and communication. Two-minute pauses when a hard question is asked don t show up as two-minute pauses in a transcript. An odd facial gesture, a defeated shrug of the shoulders, or an eye roll doesn t show up in a transcript. To paraphrase a saying: a video clip is worth a thousand words. The second reason is witness availability. A witness that was available today may not be available tomorrow, and it is better to show a video than have someone read a transcript at trial. As boring as videos may be, reading transcripts are worse.
A third reason is to create video clips for use at trial. Got a crucial admission? Want to use it in opening statement or cross-examination? If you have the deposition on video, you can create clips to use in opening and for impeachment on cross. Again, video is much more effective than simply reading a transcript. A fourth reason is that using a camera is a control technique to be used on both the witness and defense counsel. A written transcript simply cannot catch the tone, voice inflection, and posturing of the defense counsel. A video can help keep everyone civil, and if they are not, it provides a much better record for the court than the written word. I have attached clips of videotaped depositions to motions to compel and have found that the court was receptive to watching them. In fact, judges seem to enjoy seeing the actual conduct, instead of hearing from two lawyers who have different views of what happened. Once, I attached a video clip of a lawyer who repeatedly instructed the defendant not to answer. After watching the video clip, the judge commented on the behavior and body language shown and granted significant sanctions. That would not have happened with out the video. Are You Sure that You are Both Talking About the Same Thing? I remember one time when as a young lawyer, I was so excited after taking a defense expert s deposition. Man, I thought I d killed him. This was despite the fact that he was a well known expert routinely hired by the defendants and a very difficult witness because he was a master at the float like a butterfly, sting like a bee technique. You all know this expert. He was adept at answering, or not answering, questions. The senior partner read the deposition and asked me to read it again. I had a feeling I maybe hadn t killed him after all. After reading the deposition I was at a loss: it wasn t anywhere near as good as I had thought. So we decided to take video clips of the deposition and
show them to a focus group to find out what potential jurors thought. I hadn t killed him. Even worse, they liked the witness. The problem was that many technical terms were not defined. So while I was talking about one thing, the witness could easily say that he was talking about something else. Because the witness and I were using different specialized terms interchangeably and without agreement on their meaning, the witness could simply argue later, and with credibility, that he had been misunderstood. This problem exists not only with terms of art, but everyday terms as well. Bill Clinton s statement, "I did not have sex with that woman, depended on the definition of sex. In a recent deposition, I asked a witness whether a truck driver was required to drive safely. The witness asked what safely meant. This can be resolved in a number of ways: ask the witness to define it, rely on a dictionary definition, or reach an agreement about the definition. I asked if he had children, he said yes. I asked if he ever told them to be safe, and he said yes. When I asked what he meant by that, he said, don t do anything that could cause a risk of injury. I asked if we could then use that as the definition of safely and he said yes. I was perfectly fine with that! One Fact, One Question Often, we want to throw everything into one question. This is a major mistake. I was recently reading an article by the Hon. Mark W. Bennett, a District Court Judge in Iowa. It was titled Traits of Great Trial Lawyers, and one of the traits was being a virtuoso cross-examiner. He listed several mistakes lawyers make on cross, such as failing to keep the question simple. The example he gives is: didn t you run the red light because you dropped your lit cigarette on the floor of your car as you were turning off your car radio? The witness could honestly answer no to the entire question if the cigarette wasn t lit, she d dropped it on her seat, or if she was turning the radio on and not off. Instead, you should break the question down into a one fact, one question
approach. Very simply, this principle tells us that each question should only cover one fact and should be a simple question. Compound questions are confusing because you cannot know which part of the question is being answered. The same holds true for questions that cover multiple points, have double negatives, or begin with phrases such as do you remember or do you know but then do not have follow up questions. Here is a another example of a bad question: You saw the blue car come around the corner and speed through the red light, crashing into the black car? Answer: Yes? Yes to what? Seeing the blue car? Seeing it speed? Come around the corner? Go through the red light? Crash into the black car? Instead, break the question down into one fact, one question in order to control the witness. You saw the blue car? It came around the corner? It was speeding? It went through the red light? It crashed into the black car? Now you have the witness locked in to each essential element of the meaningless compound question you wanted to ask before you read this article! Another technique is to use leading questions that declare the answer in the question. How do you feel about drinking? is an open-ended question that lets the deponent give an open-ended answer. Do you like to drink? is closer, but still gives the deponent room. However, You do like to drink, declares the answer for the deponent in the question. Also, you can control the word selection. For example, What did you see after the accident? allows the deponent to say what he wants and paint the picture his own way. You saw a man lying
in the road, is descriptive to a degree, but you saw a man hurled from the car, is better. By controlling the words, you control the picture the jury sees. The one fact, one question principle sounds easier than it is. In teaching deposition skills, I have seen many lawyers of all experience levels struggle to master this technique. One fact, one question assures that your questions are answered, there is no confusion about what is asked, and you can rely on the given answers at trial. This technique is very useful with witnesses that tend to give rambling answers as it helps focus them on the one point about which the question is directed. At one deposition in an auto defect product case, I was trying to get the witness recollection about the crash sequence but she kept giving long-winded, confusing answers. As I was able to narrow my inquiry to one fact, one question, she was able to tell me what she knew about each fact (which lane was the car in, which direction did it move, did you see brake lights, etc.), while knowing that she would have a chance to provide me with all of her knowledge in little pieces at a time. There are many more techniques that can be used to control witnesses: boxing in, restatement, summarization, and using rules and standards. These techniques will be addressed in later articles. To learn more about these techniques, read Advanced Depositions, Strategy and Practice by Paul Scoptur and Phillip Miller at trialguides.com.