HOW TO TAKE A PERCIPIENT WITNESS DEPOSITION
I.
UNDERSTAND THE PURPOSE OF THE DEPOSITION YOU ARE TAKING
A deposition seeks to discover all relevant facts known to the witness, both favorable and
unfavorable to the party taking the deposition. This information can then be used for a wide
variety of purposes, including evaluating the need for additional discovery, evaluating the case
for settlement purposes, and preparing cross-examination of adverse witnesses prior to trial. In
addition, depositions frequently produce testimony which will actually be read into evidence at
trial. A party-witness's deposition testimony may be used for all purposes at trial. For example,
you may want to use deposition testimony to impeach a party-witness’ trial testimony.
impeachment. Moreover, there may be occasions where a witness will not be appearing at trial,
because, e.g., the witness is out of the jurisdictional reach of a trial subpoena, and the purpose of
the deposition is to elicit testimony to be used in lieu of live testimony at trial. You should know
and understand the purpose for which the deposition testimony will be used before you take the
deposition.
II.
COMPARISON WITH OTHER DISCOVERY DEVICES AND PRO’S/CON’S OF
DEPOSITIONS
Live depositions contrast sharply with "paper" discovery techniques--interrogatories,
requests for admissions and depositions on written interrogatories. Comparative factors are:
1.
Depositions are better for obtaining a particular witness's recollection of
complicated facts, such as a course of dealing between parties, including meetings, telephone
conversations, correspondence and business decisions. Depositions are more spontaneous, and
are less subject to control and manipulation by opposing counsel.
2.
Interrogatories (and requests for admission) may be better for establishing
undisputed facts, e.g., corporate status and ownership, monies loaned, contracts made, etc.
Interrogatories may also be helpful in revealing the opposition's contentions on issues of ultimate
fact, or even issues at law.
3.
Depositions are more efficient tools for impeachment at trial, because they
commit a witness to a specific version of the facts.
4.
Depositions are expensive for both sides (court reporter fees, LiveNote if used,
videographer if the deposition is videotaped, attorney time, witness time). But, so are
interrogatories if answers are inadequate, and motions to compel must be made.
5.
Depositions give counsel an opportunity to evaluate adverse trial witnesses in
terms of their credibility, appearance, temperament, demeanor, likelihood of eliciting sympathy,
etc.
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III.
DECIDING WHOM TO DEPOSE
Depositions should be part of an overall discovery plan. The particular discovery devices
to be used, e.g., interrogatories, requests for document production, requests for admissions, as
well as depositions, and the order or sequence in which they are employed, must be carefully
considered based on the circumstances of the particular case. Frequently, it is helpful to obtain a
substantial document production from the opposing party near the outset of the litigation before
taking any depositions. In other cases, however, it may be better to take immediate depositions
of key witnesses, e.g., non-party witnesses with helpful testimony to provide, before they move
away, die, forget the relevant facts, etc.
The order of depositions must be carefully considered, although again generalizations are
almost impossible. Sometimes it is effective to establish a solid factual case through relatively
neutral, non-party witnesses prior to taking the deposition of the opposing party. In other cases,
however, an early, thorough deposition of the opposing party can be highly effective and may
even motivate the other party to consider engaging in early settlement discussions.
IV.
PRIORITY IN TAKING DEPOSITIONS
Check to see if there is any rule in your jurisdiction establishing time priority in taking
depositions based on notice. In California there is not, however, there are rules under both state
and federal law that prohibit the plaintiff from noticing a deposition within 20 days of service of
the summons and complaint without first obtaining a court order. Although there may be no
formal rule providing priority based on notice, the first party to notice a deposition will typically
be given priority, i.e., another party will not be allowed to receive the notice of deposition, then
"sandwich in" other depositions prior to the noticed deposition. Courts make exceptions to this
practice, however, where there is a particular need for a more prompt deposition of a particular
witness, or where the notice period is unduly long.
V.
PREPARING FOR THE DEPOSITION
Thorough deposition preparation is key. The steps to prepare for taking a deposition
should include:
A.
A thorough review and analysis of all legal and factual issues in the case, based
on the best information available to the deposing attorney at the time of the deposition.
Preparation of an outline of all issues of fact and law of the case can be helpful in planning
deposition questions.
B.
Counsel should try to foresee the likely factual areas of which the particular
deponent will have knowledge. Once these areas have been identified, the deposing attorney can
develop questions relating to specific possible facts, both helpful and harmful to the case, using
the issue outline and the pleadings.
C.
The documents are key. Counsel should review and identify the important
documents they want to question a witness about. The documents enable you to pin a witness
down as to a timeline. They may refresh a witness’ recollection or make it difficult for the
reluctant or non-cooperative witness to employ the oft-used “I don’t recall” response to critical
areas of questioning.
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D.
Preparation of written deposition questions. The practice of attorneys varies
widely as to the detail in which deposition questions are set down in writing prior to the
deposition. Some counsel find a literal writing out of each proposed deposition question to be
helpful, while others might find that process to be rigid and make it difficult to “follow” the
witness where his/her testimony might lead. Others work from a written, detailed outline,
without the specific language of each question. However, no attorney should commence a
deposition without extensive written preparation. Even attorneys who work from outlines of
questions, rather than verbatim questions, should consider precise formulations of particularly
critical questions.
VI.
SCHEDULING THE DEPOSITION; SECURING ATTENDANCE OF THE
WITNESS.
A.
You need to review the rules of your jurisdiction as to the particulars of noticing a
witness’s deposition. Under California law, a notice of deposition must contain the information
specified by Cal. Code of Civ. Proc. §2025.220, and counsel must provide at least 10 days
notice, pursuant to Cal. Code of Civ. Proc. §2025.270. (Extended by 5 days pursuant to
§1013(a) if served by mail).
B.
Place of Taking. The deposition may be taken in the county of the deponent's
residence or within 75 miles of this residence or, if the deponent is a party, in the county where
the action is pending if it is within 150 miles of the party's residence, pursuant to Cal. Code of
Civ. Proc. §2025.250(a). If a court order is obtained under 2025.260, a more distant location
may be used.
C.
A deposition notice, without a subpoena, is sufficient to compel attendance of a
party or an "officer, director or managing agent" of party. Cal. Code of Civ. Proc. §2025.280(a).
Notice may also require production at the deposition of documents by a party or "officer, director
or managing agent" of a party; a subpoena is not required.
D.
Subpoenas are required to compel attendance of nonparty witnesses. Cal. Code of
Civ. Proc. §§1985 et seq. Statewide service of process is allowed on California residents, but
subject to the rules in §2025.250(a) limiting the place of deposition.
E.
Depositions are frequently scheduled "by stipulation," i.e., by written or verbal
agreement among counsel as to the scheduling of the deposition. Such stipulations are helpful in
arranging for mutually convenient times and places for the deposition. The deposing counsel
should normally arrange, however, for a notice of deposition to be served (if deponent is a party)
or a subpoena to be served (if deponent is a non-party) in order to be assured that the deposition
will in fact take place as planned.
F.
Who may attend the deposition? The rules may vary by jurisdiction. Some states
have rules which permit a protective order to be issued to exclude third parties from attending.
(Cal. Code of Civ. Proc. §2025.420(b)(12). Typically, the accepted practice appears to be for all
counsel of record to attend, the witness, witness's counsel, any party (or a representative of a
corporate party). Frequently, however, the parties agree to allow other persons to attend, e.g.,
experts, where there is a mutual interest in so doing. It may be wise, strategically, to suggest that
your client not attend certain depositions, e.g., if your client is a prone to making extraneous or
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comments which could be construed as damaging admissions to opposing counsel during a break
in the deposition.
VII.
TAKING THE DEPOSITION
A.
Failure of the Witness to Appear.
At the time the deposition is scheduled to commence, the court reporter (and
videographer if you are videotaping the deposition) should be "set up" and ready to proceed with
the deposition. If the witness fails to appear, counsel should recite the facts concerning the nonappearance into the record. For example:
"This deposition was scheduled pursuant to notice, a copy of which
I now hand to the reporter to mark as Exhibit A for identification.
[If deposition is taken pursuant to stipulation, recite the terms of
the stipulation or give a copy of the written stipulation to reporter.]
As provided in the notice, the deposition was to commence at 9
a.m. today, May 16, 2017. The court reporter and all counsel were
present and prepared to proceed with the deposition at that time.
Mr. Stevens, the deponent, however, was not present and has not
yet appeared. It is now 9:26 a.m. At 9:25 a.m. I checked my
email, voicemail, with my assistant, and the firm’s receptionist,
and no calls have been received today from Mr. Stevens. [Recite
similar facts concerning the witness's attorney.)"
B.
The Warning or Admonition.
At the outset, counsel typically explains the deposition process to the witness. For
example:
"Ms. Smith, at the risk of repeating what your counsel may already
have told you, I would like to explain a few things about the nature
of this proceeding. Although we are gathered informally in this
law office, this proceeding has all the dignity and solemnity of an
actual court proceeding. The testimony that you will give today is,
as you know, under oath and subject to all the penalties of perjury
under California law. My questions and your answers, together
with any questions or comments by other counsel, will be taken
down by the court reporter and later transcribed into booklet form.
You will then be required to read the transcript and sign it under
penalty of perjury. Before signing, you will have the opportunity
to make any changes in the transcript you believe are necessary to
make it accurate, but be advised that the lawyers may comment on
any such changes at trial, so it is important for you to be as
complete and accurate as possible in answering my questions
today.
If you do not hear or understand any of my questions, please tell
me, and I will either repeat the question or ask the court reporter to
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read it for you. If you answer my questions I will assume that you
both heard the question and understood it.
I may ask you today about events that may have occurred several
years ago. If you have an actual present recollection of matters
called for by my questions, even if that recollection is faint, please
give us that recollection. If, however, you simply do not recall,
please say so, since we would not want you to merely guess or
speculate in your answers. I am sure your own counsel would not
want you to do so, either. I will be asking you about meetings and
conversations you attended. In answering, if you recall the exact
words used by anyone please testify to that recollection. If, as
often is the case, you do not recall exact words but do recall the
gist or substance of what was said, please give us your recollection
in this regard. If, however, you simply have no recollection of
either the exact words or the substance of what was said, please
say so, because you are not being asked to guess or speculate as to
any fact at this deposition.
"Do you have any questions about the deposition process before
we proceed?"
Some counsel also ask whether the witness is under any physical or mental impairment or
taken any medication, drugs, alcoholic beverages or other substances which would impede the
witness's ability to hear, understand, recall or answer the questions.
C.
Preliminary Questions.
After the Admonition, counsel generally ask for certain background information or
preliminary questions such as:
1.
Full name, residence address, business address, occupation, past residence
addresses (if pertinent), past business and business addresses (if pertinent).
2.
Educational background (in greater or lesser detail, depending on whether the
witness's knowledge, sophistication, expertise is an issue).
3.
Occupational history, including names of employers, duties and various jobs,
relevant licenses, and any other occupational information relevant to the witness's credibility or
stature in the particular case. The questions should include the witness's job (including titles and
duties) for any party to the case.
4.
Relationship with parties to the case. Frequently it is worth establishing at the
outset that the witness is related to a party, e.g., plaintiff's wife or a former business partner of
the defendant.
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5.
Consider also asking:
"Q.
Have you reviewed any documents in preparation for your
deposition today? (Opposing counsel may object as work product,
if review of documents was a part of preparing the witness to
testify.)
Q.
Other than your lawyers, have you spoken to anyone about
the subject of this lawsuit in preparation for your deposition today?
[If so, ask who, what was said, etc., (except for privileged
communications).]
D.
Basic Methods of Questioning--Chronological and Subject Matter.
The pure chronological approach starts with the first relevant event known to the witness
and proceeds to exhaust, in as near to chronological order as the witness can manage, the
witness's recollection of all relevant facts. The pure subject matter approach, on the other hand,
focuses on one legal or factual issue, exhausts the witness's recollection of it, then moves on to
another such issue, e.g., in a fraud case the questioner might focus separately on the making of
all alleged representations, the plaintiff's reliance on them, the falsity of the representations, facts
indicating defendant's fraudulent intent, and damages.
In using the chronological approach, it is sometimes helpful to divide the history into
"phases," e.g., in a construction case, divide into (1) pre-contract negotiations; (2) contract
signing; (3) commencement of construction; (4) construction; (5) cessation of construction; (6)
pre-litigation and (7) post-litigation. In other cases, there may be one or two critical events, e.g.,
the sending of the notice of rescission or the rejection of the goods, and the witness may be asked
questions concerning all events happening before the key date, then all events happening after
the key date. Clearly, the chronological and subject matter approaches may be combined, e.g.,
by asking the witness about all claimed contract breaches in chronological order.
Particularly where the witness is believed to be lying or manipulating the truth, it may be
useful to use both chronological and subject matter approaches, making it more difficult for the
witness to tell the same story twice.
E.
Basic Questioning Principles.
1.
Finding out the good and the bad. It is axiomatic that depositions, as part of the
"discovery" process, should attempt to discovery both strengths and weaknesses in the client's
case. There is a natural tendency, however, upon eliciting damaging facts, to focus only on the
bright spots. It is far better to discover the "worst" at a deposition (when settlement still may be
possible) than during a trial, when the client may not only be disappointed at losing, but
understandably upset that the attorney had not been aware of the damaging evidence. As with
any general rule, however, exceptions may exist. Where the witness will almost certainly not
testify at the trial (e.g., she is on her death bed in a foreign jurisdiction) but can testify at a
deposition to certain helpful facts, it may be wise to ask limited questions designed to elicit those
facts. There may be other cases where an excessively creative emphasis on the "bad" evidence
may suggest facts or theories to the opposing counsel which otherwise would have been
overlooked.
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2.
Rapport with the witness. Techniques for eliciting the "best" testimony from a
particular witness vary depending on the attorney's style and personality. In general, however, it
is helpful to establish a businesslike, but friendly, rapport between the questioner and the
deponent. To accomplish this, the witness should be treated courteously and not badgered or
belittled. A rapport can be built up during the earlier portion of the deposition while relatively
neutral matters are covered, such as the admonition, background questioning and other "nonsensitive" matters. This rapport with the witness is helpful in obtaining complete and truthful
answers when the critical factual areas are reached later in the deposition.
3.
Insisting on a responsive answer. Courtesy of the witness does not mean settling
for vague, incomplete and non-responsive answers. A difficult skill for beginning questioners to
master is forcing oneself to listen to the answer and decide whether the answer is truly
responsive so that the questioner may proceed to the next question or that the answer does not
truly respond to the question and the questioner must insist on a further, responsive answer. (The
use of LiveNote, where counsel can review the testimony as it is elicited, may be helpful in
determining whether you have what you need.) An example of being persistent in questioning to
obtain a responsive answer:
"Q.
Mr. Smith, in the May 14 conversation with Mr. Jones at
the XYZ Corporation offices, did you ever tell Mr. Jones, in
substance, that he was released from the contract?
A.
Why would I say a thing like that?
Q.
Mr. Smith, I am seeking your best present recollection of
whether or not you said that to Mr. Jones, in substance, and your
answer was not responsive to that question. Let me ask it again:
[question repeated].
A.
I had no reason to say anything about that.
Q.
Mr. Smith, I believe you have still not answered the
question. Let me ask the reporter to reread it for you. [reporter
rereads question]
A.
Not exactly.
Q.
What did you say to Mr. Jones on the subject of a release
from the contract?
A.
I don't recall.
Q.
Do you have a recollection that you did not tell Mr. Jones
at that time that he was released from the contract?
A.
I don't recall.
Q.
You have no recollection one way or another on this
subject?
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A.
I have no recollection one way or the other."
4.
Committing the witness to a version of the facts. In taking a successful
deposition, the questioner must not only elicit facts, but must get the witness committed to a set
of facts which the witness cannot vary at trial without suffering impeachment. To do this,
questions must be asked to make it apparent from the record that the witness's recollection on a
particular subject has been exhausted. Examples are:
"Q.
Have you now testified to everything you can recall being
said in substance by any of the persons present at the meeting of
May 21st?
A.
Yes."
OR:
“Q.
Have you now testified to each representation plaintiff
made to you which you believe was not true?
A.
Yes.
Q.
Do you recall anything else that plaintiff said to you which
you believe was untrue?
A.
No."
OR:
“Q.
Was the letter of April 14 the only document you received
from the plaintiff before you signed the agreement?
A.
Yes."
Sometimes the witness may be pinned down even further by questions such as:
“Q.
You have testified that you do not recall what Mr. Smith
said to you at the June 1 meeting. Is that correct.
A.
Yes.
Q.
Do you know of any way in which your recollection might
be refreshed on that subject?
A.
No.
Q.
Did you take any notes of what was said at that meeting?
A.
No.
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Q.
Did you prepare any memoranda or other document at any
time setting forth any of the substance of what was said at that
meeting?
A.
No.
Q.
In other words, you cannot think of anything you could do
from which your recollection could be refreshed?
A.
No."
The question: "Is there anything which could refresh your recollection" is a two-edged
sword, however, since the witness may then "think" of documents or other things (probably not
present at the deposition) from which his recollection might be refreshed. It is a judgment call
whether it is better to ask that question directly at the deposition or let his "I don't recall" answer
stand.
5.
Making a Clear Record. It is important to avoid vague identifying terms such as
"that document" or "the meeting." Some questioners, having initially identified a meeting
precisely, e.g., a meeting between A and B for lunch on May 15 at Jimmy's, will in other parts of
the deposition use loose language such as "the meeting." At the time of the deposition, all
counsel and the witness may understand which meeting is referred to, but when the deposition is
read later at trial the meaning may not be so clear. It may be preferable to keep on referring to
the meeting as "the May 15 luncheon meeting at Jimmy's," even if it sounds a bit awkward, so
that there will be no doubt what is referred to. Similarly, a letter marked Exhibit 1 for
identification at the deposition, should be referred to throughout as "Exhibit 1" or "the letter
marked Exhibit 1" rather than "the letter" or "that document." All documents shown to the
witness at the deposition should, of course, be marked for identification as an exhibit and made a
part of the deposition.
F.
Questions About Conversations and Documents.
1.
Conversations. When a witness identifies a meeting or conversation, he should
routinely be asked:
WHERE did the conversation take place?
WHO was present at the conversation?
WHEN did the conversation take place?
HOW LONG did the conversation last?
WHAT was said by each person present?
Sometimes it may be appropriate to ask "why" or "for what purpose" was the meeting
held. It should also be established whether a conversation was in person or by telephone. In
addition to the open ended "what was said" question, it is usually necessary to ask the witness a
number of specific, subject matter questions. Examples:
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"Q.
as anything said at the July 15 meeting about terminating
the contract?
OR
Q.
Did Mr. Green say anything at the meeting?
Sometimes it is helpful to get the witness to say "who was to do what" upon conclusion
of the meeting. Example:
"Q.
How did the meeting conclude?
A.
Mr. Berman said he would write up a contract containing
our agreement and send it to us to look over.”
Questions about conversations should conclude with the question which "pins the witness
down" as follows:
"Q.
Have you now told me everything you can recall regarding
what was said by each person at the July 15th meeting.
A.
Yes."
2.
Documents. Before questioning the deponent about a document, hand the
document to the reporter, have it marked as an exhibit for identification and show the original
exhibit or a copy of it to the witness and counsel to read. (Generally, copies of all documents
marked as exhibits should be provided to all counsel, so that they may follow the questioning
about the document; this avoids needless delays while a single exhibit is passed around the room
for each counsel to read separately.)
Questions about a document made an exhibit to the deposition may include:
(a)
Who caused the document to be prepared?
(b)
When was it prepared?
(c)
To whom was the document sent?
(d)
Who signed the document?
(e)
For what purpose was the document prepared?
(f)
Describe all conversations about the document.
(g)
What action was taken in response to the document?
If the document is to be offered in evidence at trial based on the deponent's testimony, it
is essential that sufficient facts are obtained at the deposition to support admission at trial.
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Example: it is not sufficient in laying the foundation for admission of a document under the
business records exception to the hearsay rule to have the witness testify "this document is a
business record of ABC Corporation." Instead, the witness must testify to all factual elements
necessary to meet the requirements of §1271 of the California Evidence Code, which states:
"§1271. Business Record
Evidence of a writing made as a record of an act, condition,
or event is not made inadmissible by the hearsay rule when offered
to prove the act, condition, or event if:
(a)
business;
The writing was made in the regular course of a
(b)
The writing was made at or near the time of the act,
condition, or event;
(c)
The custodian or other qualified witness testifies to
its identity and the mode of its preparation; and
(d)
The sources of information and method and time of
preparation were such as to indicate its trustworthiness."
In asking a witness about a document not present at the deposition, be sure to obtain
enough facts to support a request for production, such as:
(a)
Please describe the document (e.g., letter,
memorandum, agreement).
(b)
Who caused the document to be written.
(c)
To whom was it sent?
(d)
Who signed the document?
(e)
When was it prepared?
(f)
What was the date of the document?
(g)
How many pages was the document?
(h)
Where is the original located?
(i)
Were there any copies, and if so, where are the
copies located?
(j)
Describe the location of the document with
specificity (e.g., in a brown folder marked "ABC Corporation"
located in a file cabinet next to my office desk at 895 6th Street,
Los Angeles, California).
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G.
Meeting Objections and Instructions Not to Answer.
1.
Relevancy Objections. Frequently the deponent's counsel will attempt to distract
or intimidate inexperienced counsel by making unfounded relevancy objections. Let deponent's
counsel know you are aware of the broad scope of examination under the "subject matter of the
action" and "reasonably calculated to lead to the discovery of admissible evidence" tests under
C.C.P. §2017.010.
What is the response when a deponent's lawyer says "Counsel, I am going to object to
that question unless you can explain to me the relevancy of the question." Frequently, deponent's
counsel is merely trying to discover his adversary's legal theories. In such cases, the best
response is:
"Counsel, you may register your objection. The question is clearly
relevant and I do not intend to debate the matter with you."
If the lawyer then instructs the witness not to answer, the questioner must make a
judgment as to the likely effect on opposing counsel of any explanation of relevancy. Under
today’s discovery standards, it is risky for opposing counsel to instruct a witness not to answer
based on relevancy grounds only, if the question does not invade the attorney client privilege.
Some deponent's lawyers will consider in good faith an explanation of relevancy and change
their position on the instruction not to answer. As to other lawyers, any explanation of relevancy
is a waste of time.
2.
Objections to Form of the Question. Objections to the form of the question, e.g.,
compound, leading and suggestive, etc., should be taken seriously by the questioner. If the
witness answers the question, admissibility of the testimony at trial may be destroyed if the court
concludes the form of the question was improper and was not rephrased in proper form by
counsel at the deposition. On the other hand, many objections to form are not well taken, e.g.,
objections to "leading" questions asked of an adverse witness, and the questioner may safely
persist no matter how many objections are registered.
3.
Privileged Communications. Questions about claimed confidential
communications among attorney-client, doctor-patient, frequently result in instructions not to
answer. When such an instruction is given, be sure to lay the proper foundation for possible
motion to compel answers. A sample:
"Q.
At the meeting on July 12 at your attorney's office, what
did you say to him?
Deponents' Counsel. That question clearly calls for privileged
attorney-client communications, and I instruct the witness not to
answer the question.
Q.
Mr. Green, do you refuse to answer the question based on
the advice of your counsel?
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A.
Yes."
Some questions concerning possible privileged communications are not improper, and
may be necessary to evaluate the claim of privilege, e.g., when did you first consult with your
attorney? This question does not call for a privileged communication and must be answered.
Similarly, the witness must answer questions such as "Who was present at the meeting in your
attorney's office on July 12?" (The answer to this question may reveal that the meeting was not
"confidential" and thus is discoverable.)
The questioner should be aware of the "conditional" and "absolute" statutory "work product"
privileges in California. Section 2018.020 provides:
“It is the policy of the state to do both of the following:
(a) Preserve the rights of attorneys to prepare cases for trial with
that degree of privacy necessary to encourage them to prepare their
cases thoroughly and to investigate not only the favorable but the
unfavorable aspects of such cases
(b) Prevent an attorney from taking undue advantage of his
adversary's industry or efforts."
Section 2018.030 of the Code of Civil Procedure then provides:
“(a) A writing that reflects an attorney’s impressions,
conclusions, opinions, or legal research or theories is not
discoverable under any circumstances.
(b)
The work product of an attorney, other than a writing
described in subdivision (a), is not discoverable unless the court
determines that denial of discovery will unfairly prejudice the
party seeking discovery in preparing that party’s claim or defense
or will result in an injustice.”
4.
The "Asked and Answered" Objection. Deponents' counsel frequently assert the
"asked and answered" objection. Consider the following:
"Q.
Mr. Black, at the July 15 meeting did you tell Ms.
Stevenson she was free to negotiate a deal with XYC Corporation?
A.
Objection, Counsel, asked and answered.
Q.
Counsel, as you must know, there is no rule of law
prohibiting me from asking a single question more than once at
this deposition. Indeed, that is a perfectly appropriate means of
testing this witness's recollection, unless repetition of the question
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becomes burdensome and harassing. Clearly, that has not occurred
in this deposition. Mr. Black, you may answer the question."
H.
Problem Witnesses and Problem Counsel.
1.
The "Day-Shortening" Witness. Some witnesses and counsel attempt to impede
discovery by "shortening" the deposition day. They arrive late, take long lunch breaks, and have
urgent business or personal commitments by 3:30 in the afternoon. Counsel taking the
deposition must, early on, impress on the witness and the witness's counsel that these tactics will
merely prolong the deposition and will not in any way deter the questioner from fully exploring
all relevant areas. Under Cal. Code of Civ. Proc. §2025.290(a), counsel is permitted “seven
hours of total testimony” which does not include lunch or other breaks. Usually, when the
deponent's counsel becomes convinced of the persistence and patience of the questioner, these
tactics will diminish.
2.
The "I Don't Recall" Witness. Sometimes a witness actually cannot recall certain
facts, and sometimes a witness "prefers" not to recall. In the latter case, the witness's lack of
recollection is accompanied by a very acute recollection of one or two specific facts favorable to
his position in the lawsuit. In these cases, the witness should be bombarded with many detailed
questions, which may suggest that both his lack of recollection and specific recollection are
feigned. Example:
"Q.
You signed the contract on January 12, 2006?
A.
Yes.
Q.
Did you have a conversation at that time?
A.
Yes.
Q.
Who was present?
A.
Plaintiff and me.
Q.
Where did the conversation take place?
A.
In my office.
Q.
How long was plaintiff in your office?
A.
About two hours.
Q.
What was said in the conversation?
A.
Plaintiff told me I was released from the contract.
Q.
What did you say?
A.
I don't remember.
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O.
What else did plaintiff say?
A.
I don't recall.
Q.
Do you recall if anything else was said about the contract?
A.
I don't recall.
Q.
Do you recall if you talked about anything other than the
contract?
A.
I don't remember.
Q.
Were any documents referred to at the meeting?
A.
I don't recall.
Q.
Do you recall if you were angry or spoke in angry tones or
loud tones?
A.
I don't recall.
Q.
Do you recall if plaintiff spoke in loud tones?
A.
I don't recall.
Q.
Have you told me everything you can recall that was said at
the conversation you and plaintiff had in your office on January 12,
2006?
A.
Yes.
3.
The "Testifying" Lawyer. Sometimes the deponent’s counsel tries to coach the
witness through objections or other miscellaneous comments. Example:
Q.
Did you meet with plaintiff of January 13?
Deponents' Counsel: Objection, that question has been asked and
answered, and besides, Counsel, it is clear from Exhibit 16 which
was just shown to the witness that the meeting was on January 17,
not January 13.
Questioning Counsel: I am entitled to get this witness's best
recollection concerning the facts of this case, Counsel, and I insist
that you stop interrupting with remarks which are clearly intended
to suggest the answer to the witness."
If such "answering" by the lawyer persists, questioning counsel must weigh the possible benefits
of having further discussions with deponent's counsel, either on or off the record, even more
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strenuously urging counsel to stop such tactics. In extreme cases, it may be necessary to
terminate the deposition and seek a protective order.
Sometimes such "answers" by deponents' counsel are reasonably helpful. In such cases,
you might ask the witness: “Did you hear what your counsel said?" [A: Yes.] "Has everything
your attorney said been absolutely accurate and do you adopt his it as your own testimony? [If
counsel objects to this procedure, suggest to him that he not answer the question, but let the
witness do his own testifying. Then ask the reporter to reread the original question and ask the
witness to answer it.]
4.
The Lawyer Who Tells the Questioner How to Frame the Questions. Some
deponents' counsel, as an intimidating tactic, do not object to questions, but instead make a
statement after the question which criticizes the way the question was framed and suggests that
the lawyer ask it in a different way, e.g., "Counsel, that question seems very confusing to me.
Why don't you ask it this way, etc." The questioning counsel, who has presumably thought
through very carefully the questions to be asked, should not yield to such tactics and rephrase the
question, but instead should insist on an answer to the question asked. When the interrupting
lawyer learns that such "suggestions" about reframing the question will have no effect on the
questioner, the interruptions will usually (but not always) diminish.
I.
Compelling Answers: Stipulation to Foundation.
1.
You cannot get a court order to compel a witness to answer a question
unless he has first refused to answer the question.
2.
Generally the foundation for a motion requires that the witness be
specifically asked if he refuses to answer the question. E.g.,
"Q.
Did you and your partner discuss the subject matter of this
lawsuit after the complaint was filed?
A.
I object on the grounds that it calls for a privileged
[communication] and I instruct the witness not to answer.
Q.
Did you hear what your attorney said?
A.
Yes.
Q.
Do you refuse to answer the question that I asked?
A.
Yes. On the advice of counsel."
Rather than pursue this elaborate procedure throughout the entire deposition, counsel
often enter into a stipulation as follows:
"Counsel: May we stipulate that every time you instruct the
witness not to answer a question, it will be deemed that I have
asked him to answer the question and that he has refused to answer
the question.
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A.
It is so stipulated."
The stipulation will enable the deposition to proceed quicker. Nonetheless, you should
compel the witness himself to refuse to answer for the first two or three times in order to impress
upon counsel the seriousness of refusing to answer the question. You may also want to suggest
that the witness has the right to answer the question even though counsel instructs him to refuse
to answer.
VIII. SIGNING THE DEPOSITION
Counsel should carefully examine the procedure for reading, correcting and signing of
the deposition prescribed in §2025.520 of the Code of Civil Procedure. In summary, it provides
for the court reporter to notify the deponent and counsel when the original deposition is available
for review. The deponent then has 30 days following notification to read, correct and sign the
deposition. If the witness does not do so, the deposition may be used as though it had been read,
corrected and signed by the deponent.
Frequently, counsel propose some type of "stipulation" to depart from the procedure
prescribed in §2025.520. Counsel should not enter into such ambiguous stipulations as "the
usual stipulation, counsel?" Where the parties wish to depart from §2025.520, a suggested
stipulation is:
"Let us stipulate that the court reporter, upon completing the
original transcript, will forward it to ___________ [counsel for the
witness] who will submit it to the witness for reading, correcting
and signing. The transcript will be read, corrected and signed by
the witness within 30 days after mailing by the court reporter.
[Counsel for the witness] will advise all counsel in writing within
10 days after any corrections are made in the transcript of the
precise nature of these corrections. If the deposition is not signed
within 30 days after mailing by the court reporter, copies of the
deposition may be used by all parties in this litigation for all
purposes as though the deposition had been read, corrected and
signed."
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