Deposition Preparation

Robert J. Franco | Franco Moroney Buenik

Depositions are probably the worst experience faced by those in the construction industry. Apart from the annoyance and distraction, people do not like sitting in an office answering questions.

A deposition is a formal legal proceeding. It is neither a “statement,” nor an “interview.” Before the deposition begins, you will be sworn to tell the truth by the court reporter, who is a notary public authorized to administer oaths.

One or more of the other lawyers in the case has requested your deposition. The typical purpose for taking a deposition are: 1) to prove something through the witness’ testimony; 2) to evaluate the opposing party as regards his credibility, appearance and demeanor; 3) to educate oneself about the opposing party’s position on the facts; and 4) to lay a foundation for impeachment at trial. The last item requires some explanation.

If you answer a certain question in a certain way at your deposition, you will be expected to answer it the same way at the trial. If you do not, the jury will probably conclude: 1) that you lied during the deposition, 2) you are lying at trial, or 3) you are not a reliable witness because you “changed your story” from one time to another. Therefore, you must take great care to ensure that each answer you give is accurate, since you will have committed to that answer, right or wrong. However, if you realize during the deposition that any answer you have given is inaccurate, correct the error immediately. If you realize an error after the deposition has been completed, you should notify your lawyer immediately.

The deposition proceeds on questions and answers. After you are sworn, one of the other attorneys, usually opposing counsel, will begin to ask you questions. After he has completed his questioning, each of the other attorneys in attendance is entitled to question you as well. After all the attorneys have finished their questions, the deposition is concluded. Thereafter, the court reporter, with the aid of a computer, will have all of the questions and answers transcribed into a booklet or transcript. The attorneys usually do purchase copies of the deposition transcript for their own use. Your attorney will likely purchase a copy of your deposition transcript and will make it available to you.

Your deposition will probably be taken in the conference room or library of the office of one of the attorneys who are involved in the lawsuit. The people who are usually present during the deposition are the witness, the court reporter and the attorneys for all the parties. Anyone who is a party to the lawsuit is also entitled to be present, but is not required to be there. People who may be called to testify at trial who are not parties are generally not entitled to be present. If for any reason you would like for someone to be in attendance with you at the deposition in addition to me, advise your lawyer as this can often be arranged by agreement.

If any special preparation for the deposition is required other than a pre-deposition conference, your lawyer will advise you. Aside from this, the best preparation for your deposition is to relax, avoiding undue tension or anxiety about the deposition procedure.


The following advice is usually helpful to people who are about to give a deposition. This is general advice and is not tailored to apply to you or your case in particular. If there is something special about you or your case that requires attention, your lawyer will address this in the pre-deposition conference, where he will discuss the facts of your case and your anticipated testimony.


    You will be under oath and legally required to tell the truth. If you do otherwise, you will be guilty of perjury, which is a felony criminal offense. If you lie, this will probably be exposed by adverse counsel and the results will be disastrous for you. Moreover, telling the truth will relax you by making you comfortable in your testimony.

    If for any reason you do not understand the question, do not answer it. When confronted by a question you do not understand, you should say: “I do not understand the question,” or “Your question is too vague (or unclear, or ambiguous, or broad),” or “Your question is too long and complicated,” or “I don’t understand the words you are using,” or whatever similar response is appropriate under the circumstances. The lawyer will explain the question or rephrase the question as many times as necessary until you understand the question. You should never be embarrassed about having to respond to a question in this way.

    Once you answer the question, it will be assumed that you understood it. If you did not understand the question, it is inevitable that your answer will be wrong. When opposing counsel demonstrates at trial that the answer you gave during the deposition was wrong, as he probably will, your credibility will suffer.

    As part of this, you should seek to avoid overly broad questions, such as “tell me what happened here.” Do not be afraid of asking the questioning attorney what he means, to clarify his questions, or to break-up a compound or two-part question. Make the lawyer ask specific questions, and do not answer anything other than what is asked. Do not speculate what the interrogator is seeking. If you listen to the precise question being asked, and only listen to that question, you will be better served.

    Beware of questions which are stated in a strange manner. Consider the following: “Isn’t it true that you are not an OSHA trained safety inspector?” If it is true that you are not OSHA trained, is the answer “yes” (meaning you are not OSHA trained) or “no” (it is not true that you are not, not OSHA trained). In such instances, do not be afraid to clarify the question.

    At trial, if you are evasive, the jury will probably conclude that you have something to hide, or that you are fearful that direct answer to the question will prejudice you. Evasion equates with cunning or deceptiveness in the minds of most jurors. By contrast, direct answers, even those that may involve some sort of an admission on your part, will give the jury the impression that you are an honest, candid and fair person. The jury’s perception of you will almost certainly have an effect on the outcome of the case.

    In most states, the only portion of your deposition which may be read to a jury is that testimony which is inconsistent with your trial testimony. With respect to direct answers, be advised that they make for very good impeachment. Narrative answers make for limited impeachment.

    Assume for example that a witness is testifying in a construction case involving a crane cable which broke due to overloading. Consider the impeachment effect of the different responses:

    Question: Isn’t it true that the cable failed due to your company overloading the crane, which caused the load to fall.

    Answer: Yes.

    As you can see, this response is very direct, and does not allow the witness any latitude. It admits to overloading and causation. Certainly, any attempt to retreat from this response at trial will subject the witness to excruciating impeachment. Instead, consider the following:

    Question: Isn’t it true that the cable failed due to your company overloading the crane, which caused the load to fall.

    Answer: Actually, the crane was not ours, but was leased from a different company which knew about the excessive live load on the crane, we did not actually know that information.

    The answers are similar, but the answers are stated much differently: the first answer having a far greater impeachment value. The second answer gives the witness latitude. Remember, short “yes” or “no” answers tie down the witness. Narrative responses do not. Yes or no answers should be avoided, as they provide for tight impeachment. Do not let a lawyer goad or intimidate you into making a “yes” or “no” answer. Answer the question asked in a short narrative.

    Always give the shortest and most direct answer possible that is truthful and accurate. Do not add anything, even if you think that doing so will be helpful to you position. Keep in mind that one of the reasons that opposing counsel is taking your deposition is to educate himself regarding your knowledge of the facts pertaining to the matters in dispute. Everything he learns at the deposition helps him prepare for trial, which information he will use against you.
    Therefore, you should make the lawyer earn the information he receives by requiring him to ask for information before you provide it to him.

    Your deposition will probably be your first opportunity to meet and confront opposing counsel. It is a natural human tendency to seek to convince the attorney for your adversary that your position is correct and his is incorrect. Therefore, you will have a natural tendency to volunteer information that you think is favorable to you in an effort to convince the attorney of the correctness of your position. However, the lawyer’s job is not to judge the merits of the controversy, but rather to advance the interests of his client. Therefore, no amount of persuasion by you will dissuade opposing counsel from his task. By telling him much about your position or your recollection, whether he asks you about them or not, will help him prepare to attack those points at the time of trial. If the interrogating attorney fails to ask you something that is important and, therefore, fails to find out about it prior to trial, your interests are advanced.

    Remember that the deposition should be cross-examination, where the answer is suggested. This represents adverse counsel’s opportunity to bring out the facts that are favorable to his side of the case. Do not be frustrated that you are seemingly deprived of an opportunity to talk about the things that are favorable to you. At the trial, you will have a full opportunity to tell your side of the story in answer to the direct examination by your own lawyer. You cannot and will not win your case at your deposition. However, you can lose your case at your deposition by volunteering information. DO NOT EDUCATE THE OPPOSING LAWYER.
  5. BE BRIEF.

    While your responses should be brief, the longer your answer, the more you will tend to volunteer information or say something that is likely to damage your position. However, do not sacrifice truthfulness or accuracy for brevity.

    A deposition transcript cannot measure time. Therefore, do not be concerned with taking your time in answering. Once the deposition is over, the transcript will not reflect the delay. However, this is not the case in video depositions where delays are recorded.

    In order to operate efficiently, our legal system must rely on facts, not guesswork. If you attempt to guess, your answer will almost certainly be wrong. Many times, a lawyer will ask a question already knowing the answer, hoping to trap you with an incorrect answer. If you guess, you will be accommodating him. By prodding you to give an answer that is nothing more than a guess, the lawyer will be in a position to discredit your entire testimony by proving that your answers were clearly wrong.

    Do not be embarrassed to say that you do not know or do not remember something. You are not required to know or remember any particular thing about your case. Do not let opposing counsel coerce you into guessing about something by acting as if it is incredible that you do not know or remember it.

    If a particular fact is important, remember that it can probably be proved through the testimony of some other witness, or by a document, or some other form of tangible evidence. Your testimony is only one part of the mosaic that will be assembled at the trial. It is not necessary, therefore, for you to know or remember everything that is pertinent to your case.

    Do not start the answer to any question with the words “I guess” or “I assume.” If you are guessing or assuming, you should be saying “I don’t know,” or “I don’t remember.” Do not assume or presume anything. Stick to the facts and let the jury supply the assumptions and presumptions.

    When the lawsuit involves a dynamic transaction, such as an automobile accident, there will inevitably be questions about your estimates of such matters as speed of the vehicles at various times, the time that elapsed between one event and another, the distance that a vehicle covered in a particular time frame, and the locations of various vehicles and other objects at various times. For some reason, people are particularly prone to guess about these things when they really have absolutely no basis for that testimony.

    Time lapses cause the most problems because people tend to grossly over-estimate time, speed and distance. For instance, witnesses will often say that they sat at a red light for five minutes. This is usually impossible. No traffic signal that is working properly will display a continuous red signal for more than about two minutes. Likewise, when asked a question such as “How long was it from the time you saw the other vehicle until the time of the collision?” people will sometimes respond “Thirty seconds,” or even “One minute.” It is rare that the correct answer to such a question will be more than a few seconds. Therefore, on any question involving a time, speed, distance, or location, you should be particularly cautious that your answer is an estimate and not a guess.

    If you allow yourself to become upset at your deposition, or if you argue with the opposing lawyer, you will focus more on jousting with the opposing lawyer than on the accuracy of your answer. The result will be that your answer will be imprecise, and may be a response that you later regret. Too, lawyers will often bait witnesses, as if they can rile you in a deposition, they believe they will attack and rile you at trial.

    In addition, lawyers generally write reports that summarize witness testimony. Included is a witness evaluation. If you make a poor witness, that will depreciate the effect and impact of your testimony, and will affect the settlement value of the case.

    A fact is something you know based upon personal, first-hand experience. A conclusion is something you have figured out based upon the factual knowledge which you have assembled. You should testify about the former, but you should avoid the latter. The reason for this is that there is a relatively large margin for error in any conclusion, since it is based on less-than-perfect personal knowledge about the facts. Although you may know certain facts that seem to lead to a particular conclusion, other witnesses may know many other facts which, when added to the facts you know, might lead to a completely different conclusion. If you testify to a conclusion you have drawn and it seems to be inconsistent with facts testified to by other witnesses who the jury chooses to believe, then your conclusion will be discredited and the accuracy of your entire testimony will be subject to doubt. You should restrict your testimony to facts about which you have personal knowledge and let the jury draw its own conclusions from all the testimony they hear.
    The purpose of a non-expert deposition is to discover facts, not conclusions or opinions.

    With certain limitations, all witnesses are permitted to testify about their opinions. However, you generally should not have or give an opinion unless you are an expert. It is much easier for a lawyer to attack opinion testimony than factual testimony. Therefore, you should be even more reluctant to volunteer your opinion than to volunteer facts.

    When you are asked for an opinion, the first decision you have to make is whether or not you have an opinion at all. You are not required to have an opinion about anything. If you do not have an opinion regarding the matter about which you are being asked, simply respond by saying that you do not have an opinion. It is difficult to form a reliable opinion on the spur of the moment during a deposition, when conditions are not usually ideal for a calm thought and deliberation. Therefore, do not be embarrassed to say that you do not have an opinion about something.

    If you do choose to express an opinion, or are an expert, pause briefly to think about the matter and assure yourself that the opinion you are about to give will be reliable and defensible. In order to be reliable, an opinion must be based upon:

    1) Adequate, detailed factual information, and

    2) Adequate education, training and/or experience in the area under discussion.

    If either one of these elements is lacking, you cannot express a reliable opinion and should decline to express one. The first part of this test is particularly important as regards hypothetical opinion questions. If you are asked to express an opinion based upon hypothetical facts, the first question you should ask yourself is whether you have been given sufficient factual information in the question to enable you to give a reliable opinion. If you give an opinion based upon broad, vague hypothetical facts, you will be making a great mistake. When confronted by a questions asking for your opinion, you may respond that you do not have an opinion if that is accurate. The question may not contain enough factual information for you to be able to base a reliable opinion on the facts at hand. The interrogating lawyer may then add additional hypothetical facts to his question. These additional facts may or may not make it possible for you to give an opinion. However, you should not be goaded into stating an opinion when you do not have an opinion.

    With respect to documents, do not interpret the writings of other people. You are incompetent to do so. However, you may be called upon to interpret your own writings.

    If opposing counsel can persuade you to agree that any particular work is “authoritative,” then he will be entitled to quote passages from it under the guise of asking you if you agree with those passages. What the lawyer is really doing, however, is reading to the jury out of the book in the hope that the jury will believe the statements contained therein. Of course, these quotations, taken out of context, will seem to support his position and to be contrary to yours. Unless the opposing lawyer can persuade you or some other witness who is knowledgeable in the topic at hand that the work is “authoritative,” he cannot proceed to read passages from the book. Therefore, you should never agree that any particular publication is “authoritative” unless you are thoroughly familiar with it and agree with virtually everything in it. Otherwise, you should say that you do not regard the work as “authoritative,” or are unable to make that statement.

    You should assume that you are being asked for your knowledge of the facts based upon personal, first-hand information, unless the question makes it obvious that you are being asked for second-hand information. For example, if you are asked what time of the day a particular automobile accident happened and you were not present when it happened, but you have read the police accident report which indicates that it happened at 2:00 p.m., do not give as your answer “2:00 p.m.” Rather, you should say “All I know about that is what I have read,” or “All I know about that is what I have been told.” If the lawyer then wants to pursue the matter, he will ask you what you have read or what you have heard. If you volunteer that information in the first instance, you are implying that you have personal knowledge about the matter under inquiry when you do not. This would be misleading; unnecessarily risking your credibility, since second-hand information often turns out to be wrong. If the second-hand information indeed is wrong, your testimony will have been erroneous.


    If you need to speak with your lawyer, request a break. This is permissible, and is better than venturing into uncharted waters. Sometimes, the opposing lawyer will attempt to intimidate you by stating something to the effect that: “Let the record reflect that counsel and his client are meeting in the hall to discuss their answer to my last question.” However, that statement is not admissible, and will not come into evidence. It is an intimidation ploy, and cannot be used to prejudice you at trial.

    Generally speaking, the law permits opposing counsel great latitude in his cross-examination during a deposition. He is not required to confine his questions to those matters which are strictly relevant to the issues in the lawsuit. Anything that is “reasonably calculated to lead to the discovery of admissible evidence” is fair game during your deposition.

    The decision as to whether or not a particular question is proper is not yours, but rather is for the judge to decide. Therefore, you should not respond to a question by saying that you refuse to answer it, or that it is none of counsel’s business, or by asking what the question has to do with the lawsuit. All of these responses are likely to show that: 1) You are arrogant and rude; or 2) You have something to hide. Obviously, we do not want this.

    If a question is improper, your lawyer will object. If your lawyer does not say anything, you should assume that the question is a proper one that you must answer.

    Say “yes” and “no,” rather than “uh huh” and “uh uh.” It may be difficult for the court reporter (and the jury) to distinguish between “uh huh” and “uh uh.” You certainly want to be clear whether you meant “yes” or “no.” For the same reason, you should avoid “talking with your hands.” Unless your deposition is taken by video tape, the jury will not be able to see the hand motions you make as you testify. Therefore, you must express your testimony completely in words. When talking about a distance, for instance, say “It was six inches,” rather than holding up your hands six inches apart and saying “It was this far.” Similarly, if you are asked to identify and testify about exhibits, such as documents or photographs, always mention in your answers the exhibit number of the thing you are referring to, so that it will be clear to the jury who hears your testimony what document or thing you are talking about.

    The court reporter is unable to take stenographic notes when more than one person is talking at the same time. Therefore, you should let the lawyer completely finish his question before you begin your answer. Do not anticipate what the question will be and cut the lawyer off mid-sentence, even where it is perfectly clear from his first few words what he is going to ask. If you do interrupt, it will be necessary for the lawyer to stop you and start the question all over again. This will prolong the deposition, make the court reporter unhappy, and make your testimony difficult to follow.

    You should not attempt to answer any question that contains a statement or assumption of fact which you know or believe not to be true. The classic example of such a question is: “When did you stop beating your wife?” The question assumes that you have beaten your wife in the past. If this is not true, then you should say something like “I cannot answer that question the way you have asked it.” Do not, however, volunteer what the problem with the question is. If the lawyer wants to know that, he will ask you. If he does ask, your answer in this particular situation would be something like “The question assumes that I have beaten my wife in the past, which is not true.” If you attempt in the first instance to give a substantive answer to a question like “When did you stop beating your wife?” your answer will probably sound like a tacit admission that the statement or assumption of fact contained in the question is correct.

    While giving your deposition is not likely to be the most pleasant experience you will ever have, it need not be unpleasant either. Forget everything you have ever seen on television or in the movies. The other lawyers will not be permitted to abuse you, or argue with you. If your lawyer feels that you are being abused, he will terminate the deposition. The vast majority of attorneys treat the opposing party and witnesses with courtesy and respect.

    While hopefully attempting to follow all of the advice given herein, you should try to be yourself during the deposition. Do not attempt to put on an act or pretend to have knowledge or personal qualities that you do not have. Do not attempt to use words or phrases that do not come naturally to you. Remember that the primary audience at whom your testimony is aimed is the jury, which is composed of laymen. The jurors are neither judges nor lawyers and will not expect you to speak in Latin phrases or use any kind of special terminology. If you attempt to change your personality or your mode of expression just for the deposition, your testimony will appear stilted and awkward and, more importantly, it will lose the quality of genuineness which is required in order for your testimony to be credible. Within the bounds of good taste and common sense, you should express yourself in language that is usual and customary for you.

    You are entitled to a break in the deposition at any time and for any reason. If you need to go to the rest room, make a telephone call, or take care of any kind of personal business, do not hesitate to ask for a break. You will not be a good witness if your mind is on something other than the questions being asked. Take as many breaks as you need during the deposition.

    You should always ask for a break if you become mentally fatigued and begin to have trouble concentrating on the questions.

    Lawyers will often ask you to speculate. The short answer is that the lawyer placed you under oath to tell the truth about the facts you recall. Asking you to speculate asks you to go beyond the facts, and delve into the unknown. In essence, this calls for you to violate your oath and go beyond the facts.

    During the course of the deposition, your lawyer will likely voice objections, and will tell you if you should refuse to answer.

    If there is testimony elicited from you which is damaging to our case, your lawyer may ask you questions to clean-up or “rehabilitate” you and your testimony.

    Do not be surprised if you are asked about documents you produced as part of the written discovery process. You should be prepared to answer questions about the steps you took to identify documents responsive to the discovery request, the privilege log, and the documents produced. Generally, you should not answer any questions about documents unless the document is in front of you.
    You will also be asked about what you did to prepare for the deposition, including everything you reviewed, all of the people you spoke with, and other preparation. Your discussions with your lawyer are privileged and are not discoverable.

    At the conclusion of your deposition, you will be given the opportunity to declare your intent to read the transcript, checking for errors. This is called “reserving” signature. While you cannot change the substance of your testimony, you can note errors in the transcript.
    Alternatively, you may “waive” signature, and accept the transcript as it is written.

    If you have any questions about the nature or purposes of a deposition, or about any of the foregoing advice, please do not hesitate to ask them during the pre-deposition conference.
    In terms of deposition mechanics, the single most important points are for you to tell the truth, to listen to the question and to only answer what is asked. Above all else, ensure that you are relaxed

Don’t Cross The Line With Deposition Witnesses

Shari L. Klevens and Alanna Clair | Mondaq | October 4, 2018

Here are some tips for avoiding ethical issues and the possibility of sanctions in connection with depositions.

Most experienced litigators have at least one horror story of a deposition that went poorly. It usually starts with an opposing attorney with an ax to grind or one that is determined to prove to their client that they are an especially “zealous advocate.” However, attorneys can forget that, although depositions may be held in informal settings, the rules of decorum and professionalism still apply in full force.

Courts will not hesitate to sanction attorneys who engage in conduct during depositions that would never be tolerated in the courtroom. In particular, as reflected by a number of recent decisions in California, courts do not look kindly upon conduct that demonstrates a lack of respect for opposing counsel.

For example, in Claypole v. County of Monterey, No. 14-CV-02730-BLF at *4 (N.D. Cal. Jan. 12, 2016), the U.S. District Court for the Northern District of California sanctioned an attorney for advising opposing counsel that she should not raise her voice because “it’s not becoming of a woman or an attorney who is acting professionally under the rules of professional responsibility.”

While it is perhaps unsurprising that such an obviously sexist remark drew the court’s ire, other courts have imposed sanctions for “snarky” comments that may be somewhat commonplace in heated depositions but nonetheless are viewed by courts as being inconsistent with the level of civility expected from attorneys. In Lucas v. Breg, No. 3:15-CV-00258-BAS-NLS, at *2 (S.D. Cal. May 13, 2016), the U.S. District Court for the Southern District of California sanctioned an attorney for statements to opposing counsel during a deposition such as “shame on you,” “you know, someone apparently didn’t fill you in on who you’re dealing with here,” and “it appears you might be hallucinating by positing the possibility that the defendants are going to win this lawsuit.”

The resulting sanctions for such conduct can be severe and could  include an order requiring payment of opposing counsel’s fees or a monetary fine. For more severe conduct, a bar grievance may be possible. Below are some tips for avoiding ethical issues and the possibility of sanctions in connection with depositions.

Encourage Your Witness to Tell the Truth

A common source for the types of disputes that can lead to sanctions is an attorney’s improper preparation of the witness for the deposition. While preparing the witness for questions that will likely be asked during a deposition is certainly important, most attorneys recognize that “coaching” the witness is inappropriate.

Specifically, preparation that arguably assists the witness in fabricating responses to anticipated questions or implicitly suggests that the witness withhold or alter the truth may violate Rule 3.3 of the California Rules of Professional Conduct. This rule, which will become effective on Nov. 1 as part of the extensive revisions to the California Rules of Professional Conduct, provides that   a “lawyer shall not … offer evidence that the lawyer knows to be false.” Moreover, “if a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence, and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal,” unless disclosure would violate the lawyer’s duty to maintain confidentiality. The comments further specify that Rule 3.3 applies in ancillary proceedings, such as a deposition.

Accordingly, any coaching that crosses the line to the point where the attorney either advises the client to testify falsely or otherwise fails to dissuade the client from doing so may implicate Rule 3.3, depending on the circumstances.

Pay Attention to The Rules

Although uncivil conduct is generally regarded as wholly inappropriate in every court, jurisdictions can vary regarding whether a host of other conduct is permitted during a deposition. For example, the issue of whether an attorney can confer with the deponent can be a gray area, and some courts refuse to permit such conferences while a question is pending.

For guidance, attorneys can check their rules of civil procedure, local rules, or standing orders to confirm appropriate deposition conduct. For example, one of the most common issues is the use of “speaking objections,” which can be used to coach the deponent on how to answer certain questions or to provide information that essentially amounts to testimony being provided by the defending attorney.

Such objections are generally improper in federal courts, as Federal Rule of Civil Procedure Rule 30(c)(2) provides that “an objection must be stated concisely in a nonargumentative and nonsuggestive manner.” State courts often similarly prohibit objections that go beyond simply stating the basis for the objection.

Another issue that might be addressed in the local rules (and that can lead to disputes) is the circumstances upon which an attorney may instruct the client not to answer a question. The most common basis for an instruction to the client not to answer is where the question seeks privileged information. However, there can be some variation as to other circumstances that may justify an instruction not to answer. For example, in addition to permitting instructions not to answer where privileged information is sought, the Los Angeles Superior Court’s “Guidelines for Civility in Litigation” provide that such an instruction can be made where the question is “manifestly irrelevant or calculated to harass.”

It is also important to remember that, even where an instruction not to answer is based on a privilege claim, the deponent may be required to answer questions relevant to the existence, extent, or waiver of the privilege, such as the date of the communication, who made the statement, to whom and in whose presence the statement was made, other persons to whom the contents of the statement have been disclosed, and the general subject matter of the statement, unless such information itself is privileged.

Even despite rules clearly prohibiting certain conduct at depositions, too many attorneys believe that the rules are merely “suggestions” or that there will be no adverse consequences to pushing the limit. However, as reflected by recent cases, attorneys that flout the rules do so at their own risk.


The Federal Rules – Who You can Bring with You to a Deposition

Daniel K. Johnson | Kilpatrick Townsend & Stockton LLP | April 24, 2018

One consideration during discovery is whether to request that other witnesses, besides the witness who is being deposed, be sequestered from that deposition. This is a particularly relevant consideration in construction disputes, which are often fact-intensive with dozens of witnesses and potential witnesses, from site foremen to project managers, who were involved in the project. While counsel may often agree that corporate representatives may be present at the deposition, the question is often asked: is there a rule of sequestration that is applicable to discovery?

Prior to the 1993 revisions of the Federal Rules of Civil Procedure, courts disagreed whether to automatically sequester witnesses upon a party’s request during discovery. Compare BCI Communication Systems, Inc. v. Bell Atlanticom Systems, Inc., 112 F.R.D. 154 (N.D. Ala. 1986) (holding that defendants were not entitled, as matter of right, to invoke the rule of sequestration during oral depositions, and the burden was on the parties seeking to invoke the rule of sequestration in an oral deposition to show good cause for exclusion), and Lumpkin v. Bi-Lo, Inc., 117 F.R.D. 451 (M.D. Ga. 1987) (finding that the Federal Rule of Evidence concerning sequestration of witnesses also applied to oral depositions so as to limit the number of witnesses that could be present at a deposition).

However, since the FRCP revisions, there is no automatic witness sequestration from depositions at the request of a party under the Federal Rules. Federal Rule of Evidence 615 does state that witnesses must be excluded at a party’s request, but according to Rule 30(c) of the Federal Rules of Civil Procedure, “[t]he examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615.” Thus, the exclusion rule from FRE 615 only applies at trial, and while courts may retain the authority to exclude witnesses from depositions under FRCP 26(c) by issuing a protective order “designating the persons who may be present while the discovery is conducted”, witnesses are not automatically excluded from federal court depositions at the request of a party.[1]

Generally, any party or representative of a party or witness with information relevant to the claims, including expert witnesses, can attend depositions, but they may also be excluded upon a specific showing that some harm or prejudice might occur to a party or the deponent through the disclosure of secret or sensitive information learned by virtue of their attendance and disseminated thereafter. See, e.g.Mangum v. Town of Holly Springs, No. 5:07-CV-425, 2009 WL 10689440, at *2 (E.D.N.C. Feb. 17, 2009) (citing Bell, but finding that plaintiff had shown good cause for the exclusion from the deposition of an individual representative of a non-party where no plausible reason for the attendance of such representative was provided in the face of plaintiff’s contention that defendant was inflating attendance at her deposition for the purpose of intimidating her).

However, the showing that some harm or prejudice might occur must be specific, as courts have generally declined to order sequestration of individuals from depositions based on “broad and conclusory” allegations that witnesses will tailor their testimony to conform to one another. In re Terra International, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (allegation that witnesses would be inclined to protect each other “through a sense of ‘camaraderie’” was insufficient to establish good cause to sequester witnesses). “A finding of good cause must be based on a particular factual demonstration of potential harm, not on conclusory statements.” Mansor v. JPMorgan Chase Bank, N.A., No. 12-10544, 2017 WL 4159935 (D. Mass. Sept. 19, 2017).

In conclusion, absent a specific showing that their attendance will cause some harm or prejudice, key members of your client’s project team can attend the federal court deposition of another witness.

Tips for Adjusters Preparing for a Deposition

Denise Johnson | Claims Journal | March 22, 2018

Doug Wood, an attorney and member of the California-based law firm of Clark Hill, offered some tips for adjusters on preparing for a deposition during an interview with Claims Journal. Wood, presented on the subject at this year’s Combined Claims Conference held in Orange County, California.

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“There’s a lot more to testifying than just showing up and truthfully answering the questions that are being put to you,” Wood said. “In a small part, that’s because there’s a skilled lawyer sitting on the opposite side of the table whose job it is is to get you to say things that you wouldn’t ordinarily say if you and I were just sitting at the lunch counter having a conversation.”

There are several techniques that attorneys can use while engaging testimony.

“It’s just not as easy as showing up, raising your right hand, and telling the truth in response to the questions,” Wood said. “The fact of the matter is, the lawyer is there to manipulate you into saying things that harm your case and help their case. That’s the point of the exercise.”

According to Wood, witness prep is a bit like a ballplayer getting coached on skillsets.

“We work on the kinds of lawyer tactics that might be used, and try and equip witnesses with a tool for each of those tactics that will help them recognize the tactic that’s being used and then deal with it in an effective way so the truth, as they know it and believe it, actually ends up in the record as their testimony,” Wood explained.

Wood discussed the seven deadly sins of adjuster testimony.

“The first one is the ‘Baiting Game‘. Don’t take the bait. One of those human tendencies is to want to explain or to be defensive, or to be prodded into anger. Whenever a questioner can get the witness doing any of those things, instead of being calm and methodical and thoughtful, we lose our objectivity and we begin speaking with emotion instead of with calm logic,” Wood explained.

One technique to avoid baiting is to evaluate, formulate and articulate when responding, said Wood.

The second major sin is ‘Beware the Sound Bite’.

“I think one of the most famous ones we all know is, ‘If the glove don’t fit, you must acquit’. We all know that huge, months-long case got boiled down to that little sound bite,” said Wood. “Bad faith cases really are no different than that. The plaintiff’s lawyer is looking for some quippy little handle. Ideally, they get some witness to say it in a deposition.”

‘No Absolutes Unless Absolutely Certain’ is the third sin.

“Sometimes in life, something is as simple as a yes or a no. In the world of bad faith cases, it’s much more often about it depends on the circumstances and what the facts are. You talk about those kinds of qualifiers to make sure that the testimony we’re giving is truly accurate and not some absolute we’re going to get stuck with that harms us later,” said Wood.

‘Responsibility Trap’ is the fourth deadly sin.

“It’s really about the blame game to some degree and how a plaintiff’s lawyer might tend to exploit somebody lower in the food chain,” explained Wood. “To blame management or vice versa, in management to blame the people underneath them.”

Some ways to avoid this trap is to provide positive testimony, he said.

“That we’ve hired the right kind of experts. We’ve relied on those experts. We have a system in place for management consideration of claims, resolutions and the like,” said Wood.

‘Credibility’ is the fifth sin.

“Certainly, trial is really the battleground. It’s about who is more credible. Who is more worthy of my verdict is the question the jury is asking,” explained Wood.

There are techniques to enhance witness credibility and things that can detract from credibility.

Wood said the last two sins may be the most important: ‘Forks in the Road’ and the ‘List Question’.

“‘Forks in the Road’ are pretty easy. ‘Forks in the Road’ are in any given claim file evolution, there are critical decision points where you can go left, or you can go right. Do we assert a resolution of rights? Do we ask for an examination under oath? Do we want financial documents from the insured? Whatever it may be,” said Wood. “When you show up in your deposition, you can be pretty darn sure that the questions you’re going to be asked will include those critical ‘Forks in the Road’.”

Wood described the ‘List Question’ as any question that requires a list of items be provided to the questioner.

“They’re usually disguised. If I ask you why did you deny this claim? That’s a ‘List Question’, isn’t it? It’s really asking you, ‘Please tell me all the reasons why you denied this claim?’ That’s usually a pretty big answer,” Wood said. “Sitting in a deposition under pressure, it’s unlikely people off the top of their head are going to get that whole list because the claim file is big by the time you get to a denial, for example.”

One way to address the list question is by recalling the key items that ought to be part of the list, he said.

“Knowing that we’re not going to remember that whole list, we always want to end one of those ‘List Questions’ with what I call a ‘List Question Qualifier’. ‘Some the reasons we denied the claim were …’. ‘Some of the things we considered included …’. The goal of the questioning lawyer is to get you to that definitive list,” explained Wood. “If you try at trial to add to that list, ‘Oh, I forgot about X, Y, Z.’ in my world, out comes the red notebook and I whack the witness upside the head and impeach them. ‘Well, wait a minute. You raised your right hand and you swore to tell the truth, the whole truth, and nothing but the truth, just like you have today. You didn’t give us those additional things, did you?’ ‘Oh, by the way, did you talk to your lawyer between now and the time you gave that depo?’ That kind of credibility attack can be very harmful,” explained Wood.

A ‘List Question Qualifier’ helps a witness stay out of the quagmire, Wood said.

Asking the Right Questions at the Expert’s Deposition to lay the foundation for your client’s Daubert Challenge

Rosario M. Vignali | Wilson Elser | October 2, 2017

Deposing your adversary’s liability expert is not only a chance to delve into the details of the expert’s opinions, but the deposition also presents a great opportunity for defense counsel to explore the sustainability of the expert’s opinions going forward. In the context of a products liability case, the plaintiff’s expert’s deposition, if used wisely, can set up an effective challenge to the expert’s proffered opinions under the Federal Rules and can result in the expert’s eventual disqualification. Perhaps nothing is more devastating to the Plaintiff’s case than the loss of his expert for all, or even part, of the case.

To review, and at the risk of oversimplification, Daubert v. Merrell Dow Pharmaceuticals (1992) and its progeny established the notion that our federal district trial courts should act as “gatekeepers” to assure that only sound expert testimony – that is, opinions that are the product of a valid scientific method – gets presented to a jury. Rule 702 requires the expert to be qualified by knowledge, skill, experience, training or education and further requires the opinions to be based upon sufficient facts and data. The expert is supposed to utilize a legitimate methodology to develop his or her theories. Thus, an examination of the purported expert’s qualifications, the facts and data upon which the opinions are grounded, and the expert’s methodology are ripe for a thorough examination during the expert’s deposition. What follows are suggestions regarding various lines of questioning that may effectively set up your adversary’s expert for the later Daubert challenge should you encounter an expert’s opinion that is the product of suspect qualifications, insufficient facts and data and/or speculative methodology.

In this multi-part blog series, we’ll focus first on the expert’s qualifications. Let’s take the case of an expert who has rendered opinions about the allegedly defective design of a power tool. Effective examination during his deposition may reveal that, in fact, the expert has never designed a power tool in his life, has never been involved professionally in the manufacturing of a power tool and, certainly, has never written any books, articles or treatises on the design of such a product. Further examination may show that the expert has never been involved in the formulation of an Operator’s Manual for a power tool (including its warnings/instructions) or its warning labels. Chances are that he has never been consulted by a real-life manufacturer on quality control or testing procedures. There’s even the chance, if not the likelihood, that the expert does not own a power tool and hasn’t used one in many years.

Experts like to tout their membership in various professional organizations as a way to buttress their claimed qualifications. By way of careful questioning, however, I often learn that membership in many of these professional organizations comes easily. For example, many of these so-called “professional” organizations only require that you fill out a form and send in a check for the dues − “VOILA,” you’re a member of the “XYZ Association of Widget Engineers.” Should one be impressed by mere membership in a myriad of such organizations?

Instead, in my experience I often have found that the purported expert has been an inactive member of the organization for many years and cannot even recall the last time that he or she has actually attended a meeting of the professional society. Even if active, it is often the case that the expert has never sat on any subcommittee that actually sets safety standards for any product, such as Underwriters Laboratories, the American Society for Testing and Materials and/or ANSI and has never partaken in the actual process of writing voluntary or mandatory design standards. It also is likely that the purported expert has never worked, or consulted, with the Consumer Product Safety Commission or OSHA – two government organizations with direct regulatory powers over many of the products we encounter in everyday life.

Many experts we encounter on the defense side of products liability cases, in order to showcase their purported expertise and experience, frequently mention that they have handled similar cases in the past. That may be true, but careful questioning (after some old-fashioned investigation) often will establish that the expert has been involved in, and given opinions of “defect” about, nearly every kind of product imaginable. The “A to Z” method of questioning is often used here: “Mr. Expert, you have rendered opinions before in a case involving an aerial lifts? Brake press? Crane? Drill?” – and so on. Done effectively, this kind of questioning shows the expert to be more of the “jack-of-all-trades” type with no real expertise in any particular area or discipline relevant to the case at hand.

Experts, of course, like to tout their extensive education and formal training in order to support the notion that he or she is qualified to render their opinions. Their CV will be riddled with many degrees from various educational institutions and they will undoubtedly have amassed a series of initials after their name – like Ph. D. or P.E. Closer examination during the deposition is warranted, however. In my experience, I have found experts with degrees in mechanical engineering trying to render opinions more appropriate for an electrical engineer, and vice-versa. They may have a degree in some relevant field of engineering, but not a license.  Sometimes they claim expertise in accident reconstruction but, upon further questioning, concede that the claim is based on in-field experience only and not through any formalized education or instruction.

In my next article, we’ll examine the next area of potential questioning to set up a successful Daubert challenge – these questions specifically targeting the “sufficient facts and data” upon which the expert’s opinions are supposed to based.

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