The deposition is a superior discovery device. It lays the foundation for establishing your claims and, handled correctly, it can be a secret weapon to advance your case to settlement and prepare you for trial. But a poorly executed deposition can devastate your case. You should prepare for possible disasters, know how to avoid disasters, and have a plan for getting out of them.
Preparation is key. First, take a look at what you want to happen in each of your depositions.
Determine the goal of the deposition. One of the worst deposition disasters can result from not knowing what you want at the outset. Whether you are deposing the opposing party or a third-party witness, determine your goal. A deposition’s aim is to discover what a witness knows, but consider what piece(s) of information you need from the witness. Is the witness to be deposed for causation, liability, or damages? Do you need to establish a duty? Is the deposition purely for fact-finding? Do you think you can obtain admissions? Can you learn about the other side’s defenses?
An effective way to establish this goal is to strip your case down to its elements and then identify what essential information the witness might have to support your claims. Similarly, if the law requires a consideration of factors or a balancing test related to your theory, be sure to cover each piece consecutively to maintain a clear record and create valuable testimony for your case. You need not outline every question, but you should outline the critical issues you need to cover. There really is no substitute for thoughtful preparation.
Prepare an outline. Creating an outline for your deposition ensures that you cover the critical points and allows you to organize the deposition in a way that will translate well for briefs, settlement videos, and trial. For example, if you are trying to establish the cause of a disease, organize your deposition to rule out other possible causes by asking the witness about each cause, one after the other, to continually narrow the possibilities. This creates a useful excerpt for future use and, assuming the deponent is not going to say exactly what you need him or her to say, you have narrowed the field by ruling out other potential causes in a concise manner.
Use the funnel technique. Once you have framed your goal, a technique to ensure that you achieve that goal is to pin down the witness; don’t leave doors open for the witness or the defense to wiggle through later. One way to guarantee this is to use a funnel technique, also called the “anything else” technique. On direct exam, ask witnesses broad questions (who, what, when, why, and how) and then ask them to explain their answers. Using the funnel technique, follow up to clarify the answers and then close the witness off. Begin with, “Describe the situation,” clarify that question with, “What do you mean?” and then close off the answer by asking: “What else?” or “Is that everything?” or “Anything else?”
A properly coached witness may evade being pinned down with responses such as, “That is all I remember at this time,” or “As I sit here today, I cannot recall anything else.” Despite this disclaimer, if you successfully funnel a witness and exhaust his or her responses, surprises at trial will be unlikely. Even if the witness left out important information, you obtain new leverage because the witness was given every opportunity to answer the question fully at the deposition but conveniently omitted important information.
Anticipate what your opponent wants. Remember that your opponent will be preparing for a deposition at the same time you are. The best way to prevent the deposition from getting in your “pre-disaster zone” is to anticipate what the defense wants from the deposition and where they might try to hurt you. Then you will be prepared for damage control.
For example, if the defense calls an eyewitness to an accident to say what she saw, gear your deposition toward establishing everything she did not see. Another approach is to confront the witness with difficult questions to prompt a reply that will weaken his or her position. For example, if you ask the witness in a fraud case if he is calling your client a liar and he replies that he is not, the posture of your case has been improved.
Think ahead to jury selection. Trial lawyers may feel that the number of trials is decreasing, but the jury plays an important role in your case even if you never end up in the courtroom. Do not underestimate the power of the jury even if you are sure that you will be able to settle your case. Ask yourself whether a deponent has any connection to the potential jury pool; recognizing the connection could be a small advantage in trial preparation. For example, Philadelphians are known for their passion for the city’s sports teams. In our practice, if a witness has a connection to Philadelphia athletics, we try to draw it out in the deposition. In-depth questioning is unnecessary because even a small point can go a long way in the eyes of a Philadelphia jury. Our firm also practices in New Jersey, where the connections of the jury pool might be the Jersey shore or the casinos. Whatever the connection, bring it out.
As a general matter, ask questions that humanize the witness and draw out his or her connection to the venue of the case. Jurors may connect with a witness who is likeable and familiar, therefore making the person more credible. The connection may also help your efforts to settle the case.
After preparing thoroughly for the deposition, consider these techniques to ward off an impending disaster.
Don’t be afraid to leave an issue open. The fatal flaw in many depositions comes when a lawyer tries to ask the ultimate question instead of leaving the issue open. Depositions very seldom have a Perry Mason moment. By leaving an issue open, you allow an argument to be made later for the conclusion that supports your position.
For example, if you are trying to establish your client’s medical condition by deposing the treating physician and you are not sure what he is going to say, establish your client’s symptoms, but do not ask the ultimate question. If the symptoms noted were a headache, dizziness, blurred vision, and facial droop, establish each symptom systematically and stop there. Asking the final question (“Doctor, because you testified to the existence of the preceding symptoms, what was your diagnosis?”) invites disaster unless you are absolutely sure what the doctor is going to say—and that it supports your position. As trial lawyers, we are not trained in other professions and must tread lightly in areas requiring different expertise.
Later, let your expert “tie a bow” around the treating physician’s deposition excerpt about the symptoms and drive the diagnosis home.
Take a break. When the going gets tough in a deposition, the tough take a break. Depositions can be long and grueling, but they are not marathons. When you find yourself with a difficult witness or dense questions, take a break to recharge. No harm can come from fresh air and a review of your notes to reorganize a deposition that may be going awry. When you return from the break, ask the witness if he or she consulted with his or her attorney. If so, introduce your next question with: “After consulting with your attorney. . . .”
Get out of a disaster
For situations when you do find yourself in a bind, here are some exit strategies. These pointers pertain directly to doctor depositions, but keep them in your arsenal for every deposition where you must discredit testimony that lacks credibility.
Discredit bad testimony. Bad testimony—that is, bad facts in testimony—may not be preventable, but it does not have to be disastrous. A treating physician might give a prognosis when he or she hasn’t seen the patient for several years, thus diminishing your client’s damages, or may testify about the cause of a disease or symptom based on information learned after the fact.
My firm deposed a pediatric cardiologist who had treated our minor client once as an infant. Despite not seeing the child in five years and the limited treatment he performed, the physician testified that the child’s expected prognosis was “excellent.” As the word “excellent” escaped the doctor’s lips, a smirk crept across defense counsel’s face. This testimony was not exactly helpful to our case, nor was it testimony the doctor was in the position to give. On redirect, five simple questions can discredit a physician’s prediction of an excellent prognosis:
Doctor, it was clear from your testimony that the last time you treated the minor was five years ago, correct?
It was also very clear that the only treatment you ever provided the minor was on that one date five years ago, correct?
You also testified that you have not seen the minor at all since that date five years ago, correct?
And you have no idea as to his current medical condition, or whether he underwent any additional treatment for his condition, do you?
And you have not had any contact with the minor or his parents since that date five years ago, have you?
“De-opinionize” the witness. Even when it is clear that a doctor is being deposed as a fact witness, you always run the risk that he or she will deliver an “expert opinion”—based on information he or she acquired after the fact—that might harm your case. This series of questions can help you avoid that situation. Assuming the answer to these questions is “no,” any earlier testimony of an excellent prognosis is refuted.
Do you realize that you’re here today to testify as a fact witness as to your care and treatment of my client?
You understand you have not been retained as an expert by either party in this litigation, correct?
During the time that you treated my client, did you formulate an opinion as to whether x was the cause of his condition?
Would it be accurate to state that you never considered one way or the other, at the time you treated my client, whether x was the cause of his condition?
At any time, have you reviewed any studies relating to x causing this condition?
At any time, have you reviewed any medical literature relating to x causing this condition?
Embrace the facts. Unfortunately, we cannot know everything about a case or a client. There will inevitably be facts we learn along the way that we wish weren’t there. For example, it isn’t helpful to the case if your client smoked heavily for two decades when you are making a claim for long life expectancy, but you still must deal with it. Have confidence in the rules of evidence and your persuasive power to embrace the facts as they are. Your ability to do so will establish your integrity—a lawyer’s best tool in practice and any deposition.
Adrianne Walvoord practices law in Philadelphia with Anapol Schwartz. She can be reached at firstname.lastname@example.org.