In California Pretrial Practice & Forms, trial attorneys Don Rez and Bob Kane offer these tips and many more for taking and defending depositions.
1. Prepare the jury instructions now. You will gain an immense understanding of the case, and thus the information you need from your witnesses, if you prepare the jury instructions before taking depositions. Preparing jury instructions early in discovery forces you to look at the case from the jury’s point of view. You will be reminded of the elements of proof that will be required, and you can use that information to formulate your deposition themes and questions.
2. Interview the witness. Unless the witness is your direct opponent, you can certainly attempt to interview him, at least briefly, before the deposition. If the witness is a party or represented by counsel, call his attorney and ask if you can speak to the witness (with counsel) before the deposition takes place. If the witness is not a party and does not have counsel, call before the deposition and ask questions. What you learn before the deposition may completely change the direction of your questioning at the deposition.
3. Get the information before mentioning the document. Ask the witness questions about matters reflected in a document and exhaust the witness’s recollection of those matters before showing or even mentioning the document to the witness. This serves several purposes. First, it tests the extent of the witness’s un-refreshed memory, seeing what the witness actually recalls as opposed to what he can see on the printed page. Second, absent the need to tie a story or answer to the written text, the witness may offer what proves to be inconsistent testimony that may bear on a later credibility assessment. Third, if the witness finds that his memory is not as strong or accurate as he believed, this may fluster the witness, break his concentration, and cause him to doubt his recollection. If you intend to employ the technique, make an appropriate notation in your outline.
4. Obtain and review documents in advance. When you must request documents in the notice of deposition or subpoena, consider asking the witness’s attorney (or the witness, if pro se or an unrepresented non-party) to produce the requested documents or items a few days before the scheduled deposition date. Remind counsel or the witness that early production will allow you to review the materials beforehand instead of taking a break during the deposition to read each document. If the deponent or his lawyer understands that the participants will have to sit at the deposition location and wait while you review documents for the first time, he will more likely produce them in advance. And, with advance production, you avoid putting yourself under the gun at the deposition, having to examine documents and decide how to use them while the other participants wait.
5. Don’t ask for the witness’s handwritten notes in your subpoena duces tecum. If you really want to obtain handwritten notes used by witnesses to prepare themselves for deposition, do not ask for them in your subpoena duces tecum. If you do, it is likely that the witness won’t prepare any! Instead, wait for the deposition; ask about the existence of the documents, then follow-up the deposition with a request to produce the newly discovered materials.
6. Don’t improve your opponent’s deposition by objecting to the form of questions. Many deposition objections as to form are technically correct, but only serve to clean up and improve the deposition being taken by your adversary. For example, if you object to a question because of “lack of foundation” and your adversary then meticulously lays a foundation, he has substantially improved the value of a helpful response. The guiding principle is to interpose an appropriate objection at deposition if it will help your case by preventing an answer to an unfair question or changing the tempo of the deposition. Objecting because you can is often counterproductive.
About the Authors
Robert F. Kane practices civil trial and appellate litigation in San Francisco with his firm, Rockwell & Kane. He serves as Judge Pro Tem for the San Francisco Superior Court and is a member of various Superior Court Arbitration and Mediation Panels. He has also served as an Adjunct Professor of Law at the University of California, Hastings College of Law. He speaks frequently at seminars, has published numerous articles, and is active in pro bono work.
Donald G. Rez is a principal and founder of the San Diego law firm Sullivan, Lewin, Rez and Engel. He handles all types of commercial lawsuits and has been involved in complex and sophisticated multi-district litigation. He has served as an adjunct professor of law at California Western School of Law and has been on the faculty at NITA.