McElhaney on Litigation

Focusing a Deposition

Marshall Logan, the managing partner of Simmons & Archuleta, waylaid Angus on his way into Zapata’s Chili House.

“Angus!” he said, grabbing his sleeve. “They told me this is where I’d find you. I’ve got a serious problem coming up on Tuesday, and I need your help. Bad.”

“Will it stop the next war if we talk about it now, out here on the street?” said Angus. Marshall smiled. “It can wait till after lunch,” he said.

“Good,” said Angus. “Tuesday is green chili-cheese enchilada day. Why don’t you join Jimmy and me?”

After lunch, Marshall explained the problem. “I’ve got a deposition I want you to read. It was taken by one of our young partners. And our client’s CEO—who attended the deposition—is very unhappy with the way it went.

“Here are the pleadings and the deposition. I’ll pay you whatever you want to read it and evaluate how well you feel it was done. And I promised our client’s CEO I wouldn’t tell you what he said about it until after you’ve finished reading it.”

Angus grinned. “How can I turn down an intriguing offer like that? I’ll read it tonight and we’ll talk about it tomorrow.”

Angus Disagrees

At 8 on Wednesday, Marshall was waiting for Angus when he walked in the door. We went straight to the conference room.

“Should I start out with the CEO’s reaction?” said Marshall.

“No,” said Angus. “Let me guess. He said your young partner was too wimpy. Too accommodating. Didn’t send the message that your firm knows how to beat the meanest dogs in town.”

“Do you agree?” said Marshall.

“Not at all,” said Angus. “But you do have a serious client problem. How do you feel about the deposition?”

“I thought it was excellent,” said Marshall. “First-rate. That’s why I wanted you to read it—to see if you agree with my evaluation.”

“Now I think you have two problems,” said Angus, “because I disagree with that, too. “While your young partner’s self-control and professional behavior were fine, I think it was a distinctly second-rate deposition, taken by a lawyer who was only vaguely familiar with the case and had not thought through what he was supposed to accomplish. He was unprepared and unfocused.”

Marshall looked shocked. “What are you talking about?” he said. “He was supposed to go to the deposition and educate himself. Learn what he could about the case. That’s just what he did.”

“We disagree again,” said Angus. “I know you’re a corporate lawyer and not a trial lawyer, but this is your client, and you’re seriously concerned with the way things are going. So let me talk about trial preparation.

“The single most important truth about discovery is, the more you know before a deposition, the more you will learn when you do it. Sure, there are jackleg lawyers and corner cutters who don’t know what the case is about until they’re halfway through trial—but that’s not your firm.”

Marshall nodded soberly.

“Here you are, representing the plaintiff in a $12 million construction case,” said Angus. “The deponent is the defendant’s CEO, and the defendant has joined three subcontractors, blaming them for what went wrong. Even if the defendant’s CEO is just a figurehead, shouldn’t the head of your trial team have put a more experienced lawyer in charge of this deposition?”

“That’s another problem,” said Marshall. “This lawyer is the younger brother of the head of our litigation department.”

“Which is why you were hoping I’d say the deposition was OK?” said Angus. Marshall nodded again.

“So let me give you a laundry list of problems with this deposition,” said Angus, “and I’ll leave it up to you to decide what to do with it.

“First, your lawyer apparently didn’t know anything about the deponent—or his background in other cases—and he certainly didn’t find anything out about him in this deposition.

“And you want to test him. See how he holds up under pressure. Hit him with a string of tight yes-or-no questions. Not to get facts, but to evaluate how he behaves. This CEO is reputed to have a terrible temper. It would have been extremely useful to find out what lights his fuse but that wasn’t done. Whether you do this at the beginning, the end or the middle is up to you, but it ought to be done sometime with a witness like this.

“Second, get information. Most of what this deponent said was vague and indefinite. No matter how much you know before the deposition, there are facts you don’t know. Think of a discovery deposition—and there are other kinds—as reverse cross-examination. Don’t lead. Ask open-ended questions. The forbidden ‘why question’ on cross examination is one of the best you can ask in a deposition.”

An Irresistible Approach

“Ask the witness to help you understand the facts. Even carefully trained expert witnesses who have been told that you are not their friend and to give you as little information as possible find it difficult to resist the request for help.

“Break the rules of evidence. There is a difference between discovery depositions and evidence depositions, even though only the Illinois rules actually say so, as far as I know. They require notice to the opponent if you intend to use a deposition as a substitute for live testimony.

“But in a discovery deposition, you don’t have to worry about whether the information is admissible. So ask for hearsay. Ask for opinions. Ask for the name of someone who might know the answer to your question. All these—and more—are ‘reasonably calculated to lead to the discovery of admissible evidence,’ as Rule 26(b)(1) of the Federal Rules of Civil Procedure puts it.

“That’s exactly where you want to take everything you can: to a definite, yes or no, admissible answer. And the problem with this deposition is that the lawyer kept letting the witness get away with saying ‘I don’t know’ to things he obviously knew or should have known.”

“But what can you do about that?” said Marshall.

“Have a list of questions that you put to the witness every time he tries to dodge by saying ‘I don’t know,’ ” said Angus.

• Did you once know the answer?

• Who did you tell?

• Who might you have talked to about this?

• Could you have written a memorandum about this?

• Where would it be?

• Who did you send it to?

• What other documents might have this information?

• What have you heard about this matter?

• Where did you hear it?

• Who might know where to find this information?

• Where would that person be?

• If your life actually depended on finding this information tomorrow morning, where would you look? Who would you ask?

• Do you understand that if you find the answer to this question or remember what it is, you should bring it to our attention?

“That’s impressive,” said Marshall.

“It’s easy if you’ve got that list in front of you,” said Angus. “Finally, to really have a focused deposition, you should go through a list of possible goals and pick out the ones you want to pursue with this witness. This list is based in part on The Art and the Law of Depositions, a course book and audiotape set by John E. Moye of Denver that was published in 1994 by the Professional Education Group but is now out of print.”

• Learn essential facts.

• Nail down what you already know.

• Find out what the witness was shown and told in preparation for the deposition.

• Get and explain documents.

• Find out who knows the facts.

• Locate missing witnesses.

• Find impeachment material.

• Develop a prima facie case.

• Block a claim or defense.

• Set up a motion for a summary judgment.

• Develop the basis for an injunction or temporary restraining order.

• Preserve testimony.

• Lock in the witness to prevent future “creativity.”

• Evaluate the witness.

• Evaluate the lawyers on the other side.

• Show the opposing lawyers that their cheap tricks don’t faze you.

• Show the other lawyers you are actually getting ready for trial.

“Angus,” said Marshall, “that’s tremendous. Would you be willing to present an advanced course on discovery for our firm?”

“I think you’d better work that out with the head of your litigation department,” said Angus.

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.

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