THE ART & SCIENCE OF A DEPOSITION
After being asked to write this article on depositions, I thought what an interesting topic for litigators that is seldom discussed. In the litigator’s arsenal of weapons, the deposition is a unique and often overlooked discovery device which can aide that litigator in numerous ways. This topic is vast and could easily take several articles to fully dissect the deposition. Unfortunately, this article, for brevity, will focus on general guidelines for the practitioner.
As in other areas of the practice of law, little if any time or course work in law school is devoted to taking or defending depositions. Early in practice, most of us are assigned some sort of preparation work for a deposition so as to aide a more senior attorney, and then tag along and observe how the deposition is run.
My first civil deposition was of a treating orthopedic surgeon, and I was accompanied by my senior partner who wanted to make sure I “didn’t screw up and embarrass” him as the two of them frequently played tennis together at their club. As if that wasn’t enough pressure to get it right, the doctor insisted the deposition be taken at the hospital where he performed surgery, and in the late evening after he was finished with his last surgical case. And, as if that wasn’t enough pressure, the deposition was going to be videotaped for later use in trial.
Despite the doctor and the senior partner’s obvious friendship, I insisted I be able to speak to the deponent prior to the start of the deposition. This infuriated the doctor who declared he had been deposed a “thousand times,” and he and I were off on the wrong foot. However, after my insistence, the doctor agreed and it was valuable as I showed the doctor his records and asked that he review them to refresh his memory of a surgery he had performed more than two years prior.
After the deposition, the senior partner slapped the doctor on the back and they shared a laugh together at my expense in some way. However, I remained certain that the deposition had gone extremely well; and, as proof an offer to settle soon followed.
As the title here suggests, a deposition is part art and part science. Most practitioners are versed in the science of a deposition such as the order of questioning and the areas of questioning the litigator feels is most germane to the case. Yet, the science of the deposition can be thought of akin to an architect’s drawings of a building. The practitioner needs to develop the skill of looking at the case on a macro level, much like a blue print, so as to figure out what witnesses need to be deposed and equally important the order in which those witnesses are deposed. In cases where there are numerous witnesses who need to be deposed, taking time to plan the order can prove extremely fruitful in searching for information.
In a case against a big-box retail membership club, there were hundreds of employees all of whom were potential witnesses and deponents. Figuring out the order became very important so as to gain the necessary information on the company’s policy of locking store employees inside the store at night.
Equally as important on the science end of the deposition is what, if any, exhibits will the deponent be shown or asked to identify. Care and thought needs to be brought to the deposition in asking a particular deponent questions involving records. During a deposition of an accident victim who had a known reputation in his community of being the neighborhood narcotics dealer, a very skilled practitioner presented the deponent with his tax returns. The practitioner went over the tax return in bitter detail despite the fact the deponent only reported a minimum income of less than $10,000.
Then the practitioner turned from the tax return and began a line of questioning about the deponent’s expenses; for example, the luxury car he drove and the expensive clothes he wore. At that point the deponent felt the “rope” get tight as the line of questioning turned to the difference between his known income and the deponent’s rather lavish lifestyle. When the numbers did not add up, the deponent asked for a break and left the building without ending the deposition.
Care and attention in depositions also include an element of art. After landing his aircraft on the Hudson River, Captain “Sully” Sullenberger was asked how he decided to land the US Airways A320 airbus on the river after hitting a flock of Canadian geese. Sully stated he studied the area of LaGuardia Airport and ran the scenario of hitting geese in his mind. He visualized having to bank the aircraft with little or no power and landing the aircraft on its belly in the water. That is the art of flying that comes with years of experience and thinking about possible scenarios requiring quick action before the emergency.
Creative thinking as an art form is just as valuable in a deposition. Generally, it starts with listening to the answer of the questions. Lawyers, especially newer ones, are so focused on the questions they have written in preparation of the deposition, they often forget to listen to the answer being given. On countless of occasions, important information is given to the attorney, but missed because that attorney is focused on the next question, so as appear to be prepared.
An answer given might open a whole different line of questioning. Much like Captain Sully, the practitioner needs to be prepared to go in a different direction in a moment’s notice and explore an area of facts not contemplated. I call this practice “Mining for Gold.” Exploring areas and listening to every answer patiently, all the while waiting for that nugget of gold the practitioner did not even envision.
While deposing a first year medical resident who was enrolled at a major university hospital system, the deponent was asked about the decision to inject a certain narcotic into a patient who later died. The resident was obviously nervous during questioning, and after going over the records she had produced, it was discovered she took it upon herself to inject what ended up being a lethal dose of pain medication. Here the art of breaking the questions down frame by frame and probing the deponent finally yielded the fact she was the doctor who took it upon herself to deliver the medication.
Finally, the deposition can be of immense value in evaluating the deponent as a potential witness in court. It casts a spotlight on the deponent which can give the practitioner insight as to how the deponent might act at trial in front of a jury. This can prove to be invaluable for both sides in trial preparation and for settlement.
Published Articles in: Friendly Passages, November/December 2014
Articles Written By:
EIGHMIE LAW FIRM, P.A.
Hugh J. Eighmie, II
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