In civil business trials, the parties, and witnesses with information within the broad scope of discovery, may be subjected to pretrial “depositions” – oral examinations under oath taken prior to trial. The “person” deposed may be a natural person or an organization. Cal. Civ. Proc. Code § 2025.010; FRCP R.30. While courts impose a presumptive time limitation on depositions, often seven hours – FRCP R.30(d)(1), Cal. Civ. Proc. Code § 2025.290(a) – those limits have exceptions, the parties may be reluctant to go to court to enforce the limitations, and the judge can grant relief under the circumstances.
Where a witness’s testimony is needed and they cannot be compelled to attend the trial, it will be necessary to conduct a full direct and cross-examination, as the deposition testimony is the only means by which that witness’s testimony will be received at trial. However, when the other side’s witnesses can be compelled to attend trial, practitioners should trim their depositions to learn only that which they do not already know and avoid telegraphing how they will try the case.
Who has not received a deposition notice scheduling the witness for a given date and each day thereafter until completed? Too many practitioners want to, or feel they need to, ask every conceivable question, including previewing their cross-examination at trial and even arguing their pet theories with the witness. Cynically, some may be motivated to meet their billing quotas.
These practices not only needlessly add to the cost of already expensive litigation but have the downside of educating witnesses and opposing counsel on how you will try the case, giving the other side an opportunity to improve their position and foreclosing the element of surprise that would otherwise work in your favor.
I encourage business trial lawyers to limit their depositions to find out what the witness will say where the answer is not known in advance and otherwise keep their powder dry for trial.
Unless you are trying to reveal a weakness to the other side for settlement purposes, don’t ask a question to which you already know the answer. If you have information prejudicial to the other side’s case nailed down by an exhibit, confront the witness with the information for the first time at trial and watch them flounder, rather than get the satisfaction of engaging in that confrontation in the deposition, only to find that by trial they have found a way to improve their response.
In the bad old days, litigators would obtain the other side’s communications only if the person took the time to have a letter typed, correct errors, sign the final version and put the letter in snail mail. These days people tend to blurt out unfiltered thoughts through electronic media – email, text and online messaging platforms – where the words or often preserved for later discovery. By the time lawyers are hired, people polish their recollections and theories to fit the litigation objective, but this may contradict what they earlier said in electronic form. Lawyers should correctly demand that all electronically stored information (“ESI”) be produced in native form. Then, save them for trial. Let the witness flounder before the judge or jury when shown electronic messages that contradict their polished trial theories. Why give the witness a rehearsal in deposition and allow them to improve their response at trial?
Why spend deposition time asking the witness if Exhibit X is a true and correct copy of his/her communication? Take the communications you may introduce at trial and attach them to a written request to admit that the documents are genuine. Cal. Civ. Proc. Code § 2033.010; FRCP R.36. If the communications are authentic, this should yield a stipulation to their admissibility at trial, even without authenticating testimony.
Only ask about the exhibit if the witness makes an unclear reference and you want to confirm what they intended. Don’t spend deposition time asking the witness to confirm what the document plainly says. If at trial the witness tries to evade what the document displayed in the courtroom clearly says, they will look terrible.
Sometimes the witness can be impeached with an exhibit that a third party can authenticate or with information that will be hard to refute at trial. In that case, there would be little reason to preview that impeachment material in a deposition.
Depositions provide the opposing party with an opportunity to learn one’s case theories and better prepare their witnesses for trial. Expert witnesses charge for their time, walk away from the deposition with a rehearsal and arrive at trial better prepared to respond to your questions. Experts are often required to disclose their prior testimony and publications, providing ample impeachment material, obtainable without giving the expert a deposition rehearsal.
If the other side is not clear on what theories you will adduce at trial, over-deposing the witnesses may telegraph the direction in which you are headed and allow opposing counsel to adjust their direction at trial.
In pretrial depositions lawyers should be comfortable nailing down the facts they do not know, hip pocketing cross-examination materials that the witness will have difficulty denying and saving their conclusions for closing arguments and trial briefs. Keeping one’s powder dry for trial is where the battle will be won.