McElhaney on Litigation
You May Not Realize You Fell in Until You’re Getting Devoured at Trial
Posted Sep 24, 2006 3:08 AM CST
By James W. McElhaney
Angus was opening a box of world-class ginger snaps to go with his cup of dark mountain roast when I walked into his office. “Have some,” he said, “and take a look at these letters.”
I’m concerned about some of the traps I see lurking in the minefields of discovery. Whenever I take a deposition--whether it’s a party or just one of the other side’s witnesses--at some point it always seems that the witness is not telling the truth.
Sometimes it’s just a whiff of mendacity, like taking a position that’s a little inconsistent with something else he said. Other times, there’s the pungent odor of a lie when his testimony totally contradicts what he said before.
Some witnesses even adopt the “Enron defense” --“Nothing happened.”
In my cases that means “What contract? There was no contract” or “no disagreement,” “no phone call,” “no email,” “no accident,” “no theft,” “no fire,” “no injury”--you name it.
The problem is, I’m never sure how or even whether to confront the witness during the deposition. Is it better to do it now, or should I wait until trial? No matter which choice I make, I can see it coming back to bite me.
On the one hand, I’d like to see how the deponent responds to pressure and challenge. On the other hand, I don’t want my attack to point out the problem to the witness and the other lawyer, giving them the chance to prepare a response before trial, explaining away the inconsistency.
But if I lie low and don’t say anything, doesn’t that leave the field even more wide open for a plausible excuse if my opponent spots the problem?
I’m sure there’s no bright line rule--like “Always confront” or “Never confront”--but I would appreciate any guidance you could give me on how to keep from stumbling into a trap.
Wondering in Waukegan
Before we come to confronting a witness with an inconsistency or improbability, there are some other deposition traps to avoid.
The biggest is the failure to prepare. Always review the pleadings, the law and all of the documents before every deposition. The more you know before you start asking questions, the more you’ll learn when you do.
Still, the seductive lure of superficial preparation seems powerful. Countless lawyers say, “I’m on my way to take a deposition and find out what this case is all about.” Do that, and you won’t even know how trapped you are until you find yourself being eaten alive in trial. Even then, most lawyers blame the witnesses or the other lawyers (never themselves) for the disaster.
Second, come to the deposition with all the documents you need labeled and organized. Like my father used to say, “If you can’t find something, it’s the same as not having it.”
Know Where You’re Going
Third, write out your goals--what you want to accomplish with this witness--at least a day or two before you take the deposition. Like Yogi Berra said, “If you don’t know where you’re going, when you get there you’ll be lost.”
Here is a list of some important goals:
• Nail down what you already know.
• Find out who knows key information and where it is.
• Preserve testimony.
• Get essential documents explained.
• Develop a prima facie case.
• Block a claim or defense.
• Lock in the witness to prevent later “creativity.”
• Learn the witness’s perspective--his point of view.
• Get each expert’s resumé well before the deposition.
• Get the bases for the expert’s opinion.
• Locate and develop impeachment material.
• Develop the basis for an injunction or temporary restraining order.
• Always ask what the witness was told or shown in preparation for the deposition.
• Always ask the witness whether he brought any notes or instructions with him to the deposition--and ask to see them.
• Evaluate the witness and the other lawyers.
Next, watch out for little procedural snares--like the “usual stipulations.” One problem is, nobody knows what they are. But the usual stipulation that’s always there says, “All evidence objections are reserved except those that go to the form of the question.”
That is a subtle--but important--change from the Federal Rules of Civil Procedure and those in almost every state. Those rules reserve all evidence objections except those that could be “obviated or removed” if made at the time. In other words, if the problem is fixable at the deposition, the objection is waived if it’s not made then.
What’s the difference between the two? More things can be fixed at the time than just the form of a question--such as not laying the proper foundation for an opinion. Agreeing to the usual stipulations preserves more of the opponent’s objections.
Next, don’t waive the requirement that the witness read and sign the deposition. It makes it a lot easier for the witness to claim, “I never said that!” when you try to impeach him at trial. Remember: A deposition is more than preliminary information. It’s also trial testimony.
On to some helpful deposition techniques. First, turn your traditional boilerplate instructions into a series of questions--and get an audible response from the witness to each one. Say, for example, “I am going to ask you some questions about the subject of this lawsuit. Do you understand that?” “You have taken an oath to tell the truth. Do you understand that?” And “If you don’t understand a question, will you tell me?”
Preliminary questions like these help set the tone for the entire deposition, making it clear who’s in charge.
Next, think of a deposition as reverse cross examination. You should only ask yes or no questions on cross. But in a deposition, you should ask open-ended questions that invite the witness to explain what happened. In cross-examination, you should never ask,
“Why?” In depositions, you should always ask, “Why?”
And regularly violate the rules of evidence. Ask for opinions, hearsay, conversations and even rumors. After all, they are “reasonably calculated to lead to the discovery of admissible evidence.”
When you get a mushy answer that sounds like the witness is trying to dodge the subject, increase the pressure: “Is that the best you can do? You’re the head of human resources, aren’t you? Haven’t you talked to the chief of operations about this? What did she say?” And when the witness claims he doesn’t know something you are sure he does, ask a whole series of uncomfortable questions like, “Did you once know?” “Who did you tell?” “Who would know the answer to this question?” “Where would he be?” “Could you have written a memorandum about this?” “Who would have it?” “Where would you look?” And, “If your life depended on finding the answer to this question tomorrow morning, who would you ask?”
On to the question of whether to confront the witness you are sure is lying.
To start with, in nine cases out of 10, the deposition is the only trial your client is going to get. That means the value of your case is going to be measured by you and your opponent based on what you both think a judge or jury would do.
If the witness is the defendant doctor in the case who is obviously guilty of malpractice but insists he will never agree to a settlement, your job may be to give him a serious exposure to cross examination that will help him change his mind.
On the other hand, if the witness is not a party, but a marginally competent expert, exposing his short comings will just result in your opponent getting a better witness before trial.
Basically, you want to test every witness to see how she holds up to serious cross examination questioning. Use short, leading yesorno questions, and when the witness starts to weasel, say, “Pardon me, Ms. Reynolds, but does that mean you didn’t talk to the accountant about this problem?”
Or when you confront the head of a company on its poor economic performance, go ahead and say, “What grade would you give your sales department for those five years?” You’d be surprised how often you’ll get a powerful admission.
Cut Off Avenues Of Escape
On the other hand, when a witness gives an absurd answer, one of the best things you can do is nail it down rather than laugh at it or expose its flaws. Then you do what’s called “boxing the witness,” which is cutting off every avenue of escape that comes to mind. And if some other roadblocks occur to you during a coffee break, return to the subject and nail them down, too.
Finally, there are lots of times you’ll get great answers in nearly incomprehensible language. If that happens, come back to it in a few minutes and say, “Now let me see if I’ve got this straight,” and you tell the story in simple language so the witness has to say,
“Yes, that’s right.” That explanation--on page 145 of the deposition--is the one you’ll use in trial, not the witness’s tangled words on page 117. But all of this is different from surprising the witness with information the other side doesn’t realize you have or revealing facts they simply don’t know. There are some things you save for trial.
“What do you think?” said Angus.
“Great ginger snaps,” I said. “Mind if I use these letters in my column?”
I am grateful to Jeannine Chanes, Esq., of New York City for her contribution to this article. -- JWMcE
James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.