Most business cases settle prior to trial. For this reason, the near exclusive opportunity to examine witnesses occurs during pretrial depositions. This is a procedure whereby witnesses who may testify at trial can be required beforehand to answer questions under oath. Previously these were held in a law firm conference room; often now they occur as a videoconference. No judge or jury is present
I think when a pretrial deposition is the only available opportunity to examine witnesses for most lawyers, the process is overused. Too many depositions are taken. Too many questions are asked. Too many documents introduced.
There are just a few key objectives in pretrial depositions: 1) find out the witnesses’ answers to the toughest questions, where those answers cannot be known in advance; 2) elicit admissions that can be used in a pretrial motion or as a soundbite at trial; and 3) authenticate how the witness communicated, including emails, text, electronic messages, and social media.
Beyond those core objectives, I think much time is wasted asking questions on immaterial topics, introducing too many exhibits and confronting witnesses with the contents of writings that cannot be legitimately disputed.
Depositions can presumptively last seven hours. Often lawyers use all seven hours, if not agree to continue for days. My view is, if you can accomplish your objectives in three hours, then take three hours, and go to lunch.
Here are some common mistakes.
Most lawyers are trained to take a deposition chronologically, starting with background, then only getting to the key disputes several hours into the day. Usually no one cares about the witnesses’ major in college, or work history starting from the cashier job at Tower Records in 1974.
Prior to the deposition, the other side may have spent an hour giving the client a stock deposition preparation session, but they may not have workshopped answers to the toughest questions. Right when the deposition starts is the prime time to ask the twelve toughest questions in the case. Follow up with short questions. Why? Why not? What did you do next? Get the witness talking about the hardest areas, right from the start. I have received many candid and useful answers in the first hour of deposition.
At the mid-morning break the witnesses’ lawyer will start beating them up and teaching them the party line, which will occur again at the lunch hour. By the afternoon the witness may be repeating the party line with glazed eyes. Get to the good stuff before the lawyers can turn the witness into a parrot.
Authenticating how the witness communicated electronically is essential, or you are not trying cases in the New Millenia. Confirm the email addresses they have used. Do they text? What carrier do they use? Do they use electronic messaging, such as Slack, SnapChat, Wickr, WhatsApp? Where do they post on social media? The purpose is to learn every avenue to discover what the witness said in public, and to know whether the other side is searching for and producing all relevant communications. The electronic communications often have valuable unscripted communications, made long before the parties lawyered up and start spouting themes polished by counsel. The purpose is to authenticate the witnesses’ accounts in advance, so when you show them their stupid Facebook posts at trial, they cannot say the account was faked.
The lawyer may have discovered these communications before the deposition and have a stack of two hundred exhibits ready to go. If an important communication is vague or begs a follow up question that is not answered by another document, that may justify marking the document as an exhibit and asking questions. But if the point is simply to authenticate the document, or show the witness they said X, why bother? There are other ways to authenticate a stack of writings, such as pretrial requests for admission or by testimony of friendly witnesses at trial. Say the witness said one thing in that critical first hour, and the attorney has an electronic document that destroys that testimony. The temptation is to introduce the document and confront the witness with the contradiction. But if the document can be authenticated other than through the deposition, and the words are clear, why telegraph your cross-examination? Consider hip-pocketing the exhibit, then have the jury watch the witness realize the contradiction for the first time while in the hot seat.
Whether one is trying a case before a jury, judge or arbitrator, there are only so many key points and key documents. Trial preparation is a constant process of focusing and trimming. The same is true with pretrial deposition. Ask the key questions, authenticate the means of communication, mark documents as exhibits only where they beg follow up questions, and close. You will be happier with the results and have more free time.