Chapter 1

CHAPTE R 1Deposition Procedures and StrategiesI. HOW TO USE THIS BOOK A. Chapter Organization §1:01 Overview of Substantive Law §1:02 Sample Deposition Outlines §1:03 A Note on Scope B. Bonus Information §1:10 Practice Tips and Forms §1:11 Specialized Deposition Outlines §1:12 Practice Tips Relating to TrialII. PURPOSES AND USES OF DEPOSITIONSA. Depositions as a Discovery Tool§1:20 The Scope of Depositions§1:21§1:22 Purposes of Depositions When You Shouldn’t Take a DepositionB. Depositions as a Settlement Tool §1:30 Using Depositions to Encourage Settlement§1:31 Practice Tip: Stay on the OffensiveC. Depositions as a Trial Tool§1:40 The Use of Depositions at TrialIII. PREPARING FOR DEPOSITIONSA. Depositions as Part of an Overall Discovery Plan §1:50 Reviewing the Case §1:51 Establishing Goals§1:52 Preparing an Outline§1:53 §1:52.1 Practice Tip: When Making a Deposition Outline, Should You Write Out Every Question? Practice Tip: Ten Things to Cover in Every DepositionB. Preparing the Documents §1:60 Choosing the Documents to Use§1:61 Preparing the DocumentsC. Other Pre-Deposition Tasks§1:70 Where to Conduct the Deposition§1:71 The Deposition Notice§1:72 The Court ReporterD. Some Special Situations §1:80 Telephone Depositions§1:81 Video Depositions§1:82 Second-Chairing Depositions§1:83 Practice Tip: Controlling Abusive Counsel With Video Depositions§1:84 Practice Tip: Use Exhibits Regularly During Video Depositions 1-45

Deposition Checklists and Strategies 1-46IV. TYPICAL DEPOSITION PROCEDURES A. Starting Depositions §1:90 How to Begin a Deposition §1:91 Practice Tip: “The Usual Stipulations” §1:92 The Role of the Court Reporter §1:93 Practice Tip: Treating Court Reporters Right B. Questioning During Deposition §1:100 Preliminary Questions §1:101 Practice Tip: Always Ask the Standard Preliminary Questions §1:102 Practice Tip: Mixing It Up §1:103 Basic Questioning Technique §1:103.1 Practice Tip: Watch Out for Negatives in Leading Questions §1:103.2 Practice Tip: The Anatomy of the Perfect Deposition Question §1:104 Questions by Opposing Counsel C. Ending Depositions §1:110 How to End a Deposition §1:111 Practice Tip: Can You “Wing It” at a Deposition? D. After the Deposition §1:120 Following Up on the Transcript §1:121 Practice Tip: Critiquing Your Own Performance §1:122 Practice Tip: Motions in Limine §1:123 Practice Tip: The Witness Can’t Outsmart You at a Deposition §1:124 Trial-Planning Steps to Take After a Deposition Has EndedV. OTHER DEPOSITION TECHNIQUES A. Handling Documents §1:130 Handling Documents at a Deposition §1:131 Practice Tip: “The Document Speaks for Itself” B. Situations You Might Encounter §1:140 The Uncooperative Witness §1:141 Practice Tip: Impeachment Nuggets §1:142 The Forgetful Witness §1:142.1 Practice Tip: Assume the Witness Is Lying §1:143 The Witness Who Talks Too Much §1:144 Practice Tip: Asking Follow-Up Questions §1:145 The Witness Who Talks Too Little §1:145.1 The Witness Who Answers “I Don’t Know” §1:146 The Difficult Opposing Counsel §1:147 Practice Tip: How to Spot Liars—Ask for the Story in ReverseVI. OBJECTIONS AT DEPOSITIONS A. Handling Objections §1:160 Handling Objections: Overview §1:161 Ignoring the Objection §1:162 Asking for the Basis of an Objection §1:163 Rephrasing the Question §1:164 Seeking Judicial Intervention §1:165 How Deposition Objections Are Ruled on Before Trial B. Types of Objections §1:170 Objections to Form §1:170.1 Practice Tip: Leading Questions in Federal-Court Depositions

1-47 Deposition Procedures and Strategies§1:171 Objections to Foundation§1:172 Objections Relating to Relevancy§1:173 Objections Based on Privilege§1:174 Other Objections§1:175 Practice Tip: Speaking Objections and How to Stop ThemVII. EXPERT DEPOSITIONSA. Before the Deposition §1:180 Written Discovery of Defense Expert Opinions §1:181 Sample OutlinesB. Goals of Expert Depositions §1:190 Overview§1:191 Discover Every Opinion of the Opposing Expert§1:192 Discover the Factual Basis for All Opinions§1:193 Practice Tip: Attempting to Strike the Expert§1:194 Learn About the Opposing Expert’s Qualifications§1:195 Obtain Admissions to Use to Support Your Case§1:196 Explore All Sources of Bias§1:197 Lay a Foundation for Your Demonstrative EvidenceC. How to Prepare for Expert Depositions §1:210 Overview§1:211 Reviewing the File§1:212 Practice Tip: Review the Pattern Jury Instructions§1:213 Gathering the Key Documents§1:214 Familiarize Yourself With Government Standards§1:215 Studying the Expert’s CV and Report§1:216 Practice Tip: Five Ways to Hit Home Runs With an Expert’s CV §1:216.1 Practice Tip: Pay Attention to the Dates on the Expert’s CV§1:217 Conducting Other Research About the Expert§1:218 §1:217.1 Practice Tip: Preparing for Expert Depositions by Looking Ahead to the Cross-§1:219 Examination at Trial Consult With Your Own Expert Practice Tip: Privilege and ExpertsD. Expert Deposition Strategies §1:230 Using Texts in the Deposition §1:231 Questioning Techniques §1:232 Practice Tip: “Why Is That?” and Other Follow-Up Questions That Never Fail §1:232.1 Practice Tip: The Use in Depositions of Tone of Voice and Body Language§1:233 Should You Cross-Examine the Expert During His Deposition?§1:234 Caution: Time Limits on Depositions§1:235 Practice Tip: What to Do When You Arrive for an Expert’s Deposition§1:236 Practice Tip: What to Do When the Defendant Buries You With Experts§1:237 Other Practice Tips Elsewhere in the BookVIII. ADVANCED DEPOSITION TECHNIQUES A. Managing the Witness §1:250 Get the Witness Acting Like a Normal Person §1:251 Make the Witness Feel at Home §1:251.1 Practice Tip: Improve Your Deposition Technique by Reviewing Your Transcripts §1:252 Make Sure You Get the Real Answer

Deposition Checklists and Strategies 1-48 §1:253 Know When to Give Up §1:254 Practice Tip: How to Cross-Examine at Trial With Inconsistent Statements B. Asserting Control Over the Witness §1:260 Assert Your Right to Ask Questions §1:261 Control the Order of the Questioning §1:262 Control the Speed of the Questioning §1:262.1 Practice Tip: Asserting Control With the “Unresponsive” Objection §1:263 Be Confident About Your Abilities §1:264 Practice Tip: Make Your Depositions ShorterIX. FURTHER AIDS FOR READING AND NAVIGATING THE BOOK A. Focusing on Particular Aspects of Deposition Practice §1:270 How to Personalize the Book to Improve Your Depositions B. Navigating the Book’s Practice Tips §1:280 Practice Tips Organized by Theme

1-49 Deposition Procedures and Strategies §1:12I. HOW TO USE THIS BOOK • §4:234 Practice Tip: Asserting Control Over the Witness. A. Chapter Organization • §5:11 Practice Tip: Explaining Medical Mal- §1:01 Overview of Substantive Law practice Cases to the Client. To put the sample depositions contained withinthis book into a realistic legal framework, each chapter • §6:46 Practice Tip: Screening Employmentbegins with a summary of the substantive law at issue Cases.in the depositions. In the chapter on premises liability, for example, • §6:62 Practice Tip: Consider the Use of a Cor-you’ll find a number of sections about the law of prem- porate Representative Deposition on Electronicises liability, with an analysis of the duty owed by the Discovery Issues.defendant in a typical case and a consideration of spe-cial cases such as municipalities and children. §1:11 Specialized Deposition Outlines Also included in the introductory section of each Throughout the book, you’ll find sample deposi-chapter is an analysis of common defenses. tions for specialized witnesses such as experts, cor- porate representatives, and treating physicians. These §1:02 Sample Deposition Outlines sample depositions can be applied to causes of action Following the overview of substantive law, each other than the one that’s the subject of the chapter inchapter contains at least two full-length sampledeposition which the sample depositions happen to appear.outlines based on real-life situations you might encounter Experts:in your practice. These sample depositions contain exten- • Ch. 2 Vehicular-Liability, V. Sample Deposi-sive questions and answers broken down into sections.The sample questions are easy to mix and match for use tion: The Defendant’s Accident Reconstructionin your own practice. You’ll also find commentary about Expert.particular questions and answers. • Ch. 4 Products Liability, IV. Sample Deposi- At the conclusion of each chapter are additional tion: Defendant’s Causation Expert in a Defec-bonus outlines that you can use for still other situations. tive Drug Case.These bonus outlines are called “thumbnails” and con- • Ch. 4 Products Liability, V. Sample Deposi-tain themes and issues rather than question-and-answer tion: Defendant’s Expert Economist in a Prod-dialogue. ucts Liability Lawsuit. • Ch. 7 Insurance Coverage Disputes, IV. Sample §1:03 A Note on Scope Deposition: Defendant’s Roofing Expert in a This book is primarily for lawyers representing Property Damage Case.plaintiffs. The sample depositions are those the plain- • Ch. 8 Breach of Contract, IV. Sample Depo-tiff in a case would most likely take. Although each sition: Defendant’s Accounting Expert in achapter contains a section describing the depositions Breach of Contract Case.a defendant is likely to take, these depositions are notbroken down into question-and-answer dialogue. Even Corporate Representatives:so, many of the tips in this book will be helpful for • Ch. 4 Products Liability, III. Sample Depo-defending these depositions, including V. Objections atDepositions. You can also find useful tips for defend- sition: Corporate Designee—Design anding depositions in Ashley Lipson’s Guerrilla Discovery Testing.(James Publishing 2005). • Ch. 7 Insurance Coverage Disputes, III. Sam- ple Deposition: Corporate Designee in a Health [§§1:04-1:09 Reserved] Insurance Denial Case. Treating Physicians: B. Bonus Information • Ch. 3 Premises Liability, IV. Sample Deposi- tion: Plaintiff’s Treating Physician (Preserva- §1:10 Practice Tips and Forms tion Deposition). Each chapter features sample forms and practice • Ch. 5 Medical Malpractice, V. Sample Deposi-tips. Examples: tion #3: Treating Physician. • §4:181 Practice Tip: Five Keys for Deposing §1:12 Practice Tips Relating to Trial Experts in Products-Liability Cases. Although this book deals primarily with deposi- tions, it also includes many practice tips relating to trial preparation and trial. Some of these are: • §1:124 Trial-Planning Steps to Take After a Deposition Has Ended.

§1:20 Deposition Checklists and Strategies 1-50 • §1:165 How Depositions Objections Are Ruled the witness tries to change his or her testimony on Before Trial. at trial, the witness’s deposition can be used for impeachment. • §1:217.1 Practice Tip: Preparing for Expert • Obtaining Admissions. Sometimes the facts Depositions by Looking Ahead to the Cross- about which the witness testifies can be used as Examination at Trial. admissions. In most jurisdictions, this will be true when you depose the defendant or, in the • §1:254 Practice Tip: How to Cross-Examine at case of a corporate defendant, someone who Trial With Inconsistent Statements. can bind the defendant. In the context of depo- sitions, the term “admission” can also mean • §3:250.1 Practice Tip: Motivating Yourself for any fact you obtain from the witness that tends Trial: Start a Trial Notebook Early. to undermine the witness’s story and bolster yours. See, e.g., §6:170 Practice Tip: Getting • §3:254 Practice Tip: Are You Ready for Trial? Assent to Principles With Which the Witness A Checklist. Cannot Disagree. • Authenticating Documents. As you work up • §3:262 Practice Tip: Who Should Read the a case, you should always be thinking about Deposition at Trial? how you will get the documents you plan to use at trial into evidence. One of the first steps • §3:273 Practice Tip: Impress the Jury, But Do is the authentication of the documents. While It Quickly. authentication can often be accomplished by stipulation or with requests for admission, you • §3:287 Practice Tip: Introduce Scientific can also ask witnesses directly about founda- Terms Slowly. tional elements such as the genuineness of a document. • §7:160.1 Practice Tip: A Method of Organiz- • Supporting Motions. Many types of motions can ing a Trial Notebook. be supported by testimony you obtain at deposi- tions. Often deposition testimony is more per- • §7:163 Practice Tip: An Alternative Method of suasive than affidavits, since the witness will be Organizing a Trial Notebook. subject to cross-examination by your opponent, which is not true of affidavits. [§§1:13-1:19 Reserved] §1:22 When You Shouldn’t Take aII. PURPOSES AND USES OF Deposition DEPOSITIONS If a witness is friendly to you and is not controlled A. Depositions as a Discovery Tool by the defendant, you might be able to find out what the witness has to say through informal means, for example, §1:20 The Scope of Depositions by talking to the witness on the telephone or in person. The scope of inquiry during depositions is just asbroad, but no broader, than every other type of discov- If you take a deposition when informal discoveryery device. You may ask about both relevant facts and is available, you are giving the other side the benefit offacts that though not strictly relevant, might lead to the learning about the witness’s testimony at the same timediscovery of admissible information. you do. Often this can be a strategic mistake. As a practical matter, the scope of depositions isbroad enough to encompass any question that does not Even if you decide not to take a deposition, youimpinge on a privilege and is not designed primarily to might still want to pin the witness down by means of aharass the witness. See VI. Objections at Depositions written statement.(§§1:770 et seq.) For more tips on determining when you shouldn’t §1:21 Purposes of Depositions take a deposition, see §2:62 Practice Tip: Learn to Do Depositions can serve many purposes. Here are Informal Discovery; and §3.81 Practice Tip: Not Everysome of the most common: Potential Witness Needs to Be Deposed. • Gathering Facts. Depositions are a natural exten- [§§1:23-1:29 Reserved] sion of written discovery. Written discovery will help you to identify which persons should be deposed; the depositions will allow you to find out what those witnesses know. • Freezing Testimony. Deposing a witness gives you a preview of a witness’s testimony at trial. It also locks the witness into one set of facts. If

1-51 Deposition Procedures and Strategies §1:51 B. Depositions as a Settlement Tool • To Read in Place of Live Testimony. Not every deposition can be read in the place of live tes- §1:30 Using Depositions to Encourage timony. Consult the rules of your jurisdiction. Settlement Generally, the witness must be unavailable because of illness or death or because the wit- Depositions that go well for you strengthen your ness cannot be subpoenaed. Still other rulessettlement position. In taking a deposition, you are apply if you want to read depositions that weremaking a written record of what the testimony is likely taken in another case.to be at trial. The more favorable the facts you developin your depositions, the more powerful the leverage you Since there are many ways to use depositions at trial,have against the other side in settlement. all of which might affect your deposition strategies, you should periodically review the rules governing the use of Your settlement position also comes into play when depositions at trial in your own jurisdiction. Even better,deciding whether to preview your cross-examination make it a habit to review these rules as an integral part ofof a witness during a discovery deposition. Consider a your preparation for any deposition.deposition of your opponent’s expert. If it is too late foryour opponent to designate additional experts, you will [§§1:41-1:49 Reserved]strengthen your hand considerably by destroying theexpert’s testimony in a deposition. III. PREPARING FOR DEPOSITIONS If you decide to take this approach, however, you A. Depositions as Part of an Overallalso risk giving your opponent a preview of your cross- Discovery Planexamination if the deposition does not go as well as youexpected. See §1:233 Should You Cross-Examine the §1:50 Reviewing the CaseExpert During His Deposition? Deposition preparation should begin with a review of the case file. Pay attention to the pleadings, interroga- §1:31 Practice Tip: Stay on the Offensive tory answers, case documents, and previous depositions. One of the best ways to strengthen your settlement Find out all you can about the role that the witnessposture is to constantly stay on the offensive. Make sure played in the events giving rise to the litigation. Seethe defendant is frequently responding to your moves in also §5:61 Practice Tip: Thinking in Reverse About thethe litigation rather than the other way around. Staying Witnesses; and §8:63 Practice Tip: Identifying the Wit-on top of your case also allows you to press for the ear- nesses You’ll Depose During Discovery.liest possible trial date, which is often another catalyst While conducting your review, jot down your ideasfor settlement. for areas of inquiry you will want to cover. These “big- picture” issues, when rearranged into a logical pattern, [§§1:32-1:39 Reserved] will become the basis for your deposition outline. The other chapters in this book have deposition-prep- C. Depositions as a Trial Tool aration tips tailored to specific areas of the law. See, e.g., Ch. 4 Products Liability, §4:182 Deposition Preparation. §1:40 The Use of Depositions at Trial Here are some of the most common uses for deposi- §1:51 Establishing Goalstions at trial: In establishing goals for your depositions, think • To Impeach. If a deposition is conducted about why you are taking the deposition. Are you trying to find out what the witness knows and learn new facts correctly, the witness will be locked into a about the case? Are you trying to pin down the witness single story about the pertinent facts. If the on important issues? Do you want to obtain testimony witness testifies differently at trial, the witness that will help you prove your case at trial? can be impeached with his or her deposition If you always think about what you want to accom- testimony. plish before you begin a deposition, you will gain • To Refresh a Witness’s Recollection. Nearly two important advantages: first, your outline will be anything can be used to refresh a witness’s recol- designed with a specific purpose in mind; second, you lection, and depositions are no exception. will have an easier time gauging the success of your • To Read as an Admission. If testimony quali- deposition after it is over. fies as an admission under the rules of your jurisdiction, you can read the admissions out loud during your part of the case.

§1:52 Deposition Checklists and Strategies 1-52 §1:52 Preparing an Outline §1:53 Practice Tip: Ten Things to Cover in Every Deposition When you are first learning to take depositions,your outlines should contain a lot of detail. Creating a Almost all the sample deposition outlines in thisdetailed outline will ensure that you cover everything book cover the following ten topics. When preparing anyou want to cover. It will also give you greater confi- outline, consider all of these subject areas:dence about the deposition, which will help to reducethe anxiety that often accompanies a lawyer’s first • The standard preliminary questions.depositions. • How the witness prepared for the deposition. • What your client has said or written about the A deposition outline can contain not only issuesand topics, but actual questions. Just remember never to issues in the case.become overly wedded to an outline. To follow up prop- • What the witness you are deposing has said orerly on the witness’s answers, you have to look awayfrom your outline and listen carefully to the answer. written about the issues in the case.Rather than relying on pre-written questions, you have • What other witnesses have said or writtento learn to follow up spontaneously based on the wit-ness’s last answer. about the issues in the case. • Conversations the witness has had about the As you become more comfortable with the deposi-tion process, your outlines might include only a check- incident, the lawsuit, or the deposition.list of topics you want to cover. These topics can be • Other witnesses to the incident or event at issue.arranged a number of ways, based on the needs of your • The witness’s relationship to the parties andparticular deposition: chronologically, by topic, or bycause of action. Sometimes you may even want to pro- other witnesses in the case.ceed in a completely random fashion to keep the witness • Convictions (unless the witness’s testimonyand his or her lawyers on their toes. helps you). Most of the sample outlines in this book are • Admissions or other testimony that will help toarranged chronologically, but can easily be rearrangedby topic. bolster your case. §1:52.1 Practice Tip: When Making a [§§1:54-1:59 Reserved] Deposition Outline, Should You Write Out Every Question? B. Preparing the Documents The more deposition experience you have, the less §1:60 Choosing the Documentsyou’ll want to script out deposition questions ahead of to Usetime. But should you anyway? As you review the file to prepare for the deposition, At the least, you should think seriously about what mark any documents that the witness generated, signed, oryou want to accomplish in each deposition, and you received. This group of documents will become a prelimi-should come up with a plan for achieving these goals. nary set of possible deposition exhibits.This will include a list of topics and sub-topics you wantto cover with the witness, much like the “thumbnail out- There will also be some documents that the witnesslines” that can be found throughout this book. didn’t create, sign, or receive that you will want to ask about. Place these into a separate group of possible exhib- While you are putting together your thumbnail its. An example is a document listing unfamiliar namesoutline, there is certainly nothing wrong with scripting that you want the witness to identify.out some of the questions you’ll be asking. A principlebenefit of this approach is that it will help you to better §1:61 Preparing the Documentsvisualize the deposition process before it happens. Preparing the documents you plan to use is easy. After you have chosen the documents, put them in the Just remember to be flexible enough to set your order you think you are most likely to use them at thescripted questions aside at the real deposition when the deposition. Then make two sets of copies: one for thewitness wants to take you off on a tangent that needs to witness and one for the opposing lawyer. Clip each setbe explored. of copies together with a paper clip. At the deposition, the exhibit sticker will go on the copy that you hand to the witness. Once you’ve started the deposition, you might decide to use the exhibits in a different order than you prepared in advance. Be ready to locate the documents you want to use from anywhere in the stack. [§§1:62-1:69 Reserved]

1-53 Deposition Procedures and Strategies §1:82 C. Other Pre-Deposition Tasks bon copy the court reporting service on the notice itself, which is a useful tip to remember. §1:70 Where to Conduct the Deposition As long as there is room for the witness, lawyers, [§§1:73-1:79 Reserved]and court reporter to sit without being cramped, thelocation of a deposition is not terribly important. Here D. Some Special Situationsare some general rules to keep in mind: • Most commonly, depositions are conducted in §1:80 Telephone Depositions The term “telephone deposition” is used loosely the office of one of the lawyers working on the to describe any deposition in which one or more of the case. lawyers is not physically present with the witness but is • When the witness is a doctor, the deposition connected by telephone. will almost always take place at the doctor’s In many jurisdictions, lawyers can attend deposi- office. tions by telephone with the agreement of the opposing • If a deposition takes place out of town, it can lawyer. Before you do it yourself, however, think twice. be scheduled in a hotel conference room, a While you might save on travel costs, you are giving up court reporter’s office, or the office of a lawyer an opportunity to evaluate the witness in person. Tele- unconnected with the case. phone depositions also make it hard to show the witness Some lawyers place strategic importance on the documents. It is also possible that your opposing lawyerlocation of a deposition. Most lawyers insist, for will give the witness non-verbal cues that you will notexample, that the deposition of their own client be taken be able to see.at their office rather than at the office of the opposing For the same reasons that you should not attendlawyer. Such an arrangement, which is meant to make a deposition by telephone when you do not have to, itthe client feel at ease, can easily be worked out by is often all right to agree when your opposing counselagreement. wants to attend by telephone. §1:71 The Deposition Notice §1:81 Video Depositions A deposition notice is usually a short, one-page Except for the presence of a video camera, a videodocument that contains the following information: deposition is conducted just like any other deposition. • The identity of the witness being deposed. A court reporter is still needed to records the testimony • The location of the deposition. stenographically. A written transcript is necessary even • The date and time of the deposition. though the camera creates an audio-visual recording of The lawyer who prepares and sends the notice is the the deposition.one who is “taking” the deposition. That is the lawyer During a video deposition, the camera is operatedwho will start the questioning. by a videographer who will keep it trained on the wit- The rules of your jurisdiction will determine the ness. To record the sound, the witness and the lawyersprecise form of the required deposition notice. If the usually wear lapel microphones.deposition notice is for a corporate representative depo- There are a few strategic points to make about asition, it will also contain a list of topics about which the video deposition. If your client is being deposed, you willwitness will be expected to testify. For an example, see have to pay attention to the way he or she is dressed. YouCh. 3 Premises Liability, Form 3:04 Deposition Notice will also have to prepare the witness for the way he orfor a Corporate Representative in a Slip-and-Fall Case she will look on camera. For example, while long pauses[Illinois Rules]. to consider an answer are not recorded in a written tran- If the witness is not controlled by the defendant and script, they are visible on a video deposition. So is rudeis not appearing voluntarily, you will have to compel the behavior, which is why video depositions are often rec-witness’s attendance with a deposition subpoena. Consult ommended as a way of controlling abusive behavior bythe rules of your local jurisdiction. an opposing lawyer. See §1:83 Practice Tip: Controlling Abusive Counsel With Video Depositions. §1:72 The Court Reporter If you are the one noticing the deposition, it will be §1:82 Second-Chairing Depositionsyour responsibility to make sure there is a court reporter The “second-chair” in a deposition is a lawyerpresent. Your secretary will probably keep you from for- who assists the lawyer taking the deposition. Usuallygetting to hire a court reporter, which is a good thing—it the second-chair helps to plan the topics to cover at theis quite embarrassing when it happens. Some lawyers car-

§1:83 Deposition Checklists and Strategies 1-54deposition and then handles the documents. The second- IV. TYPICAL DEPOSITIONchair lawyer may also take notes and suggest follow-up PROCEDURESquestions. A. Starting Depositions While acting as second-chair at a deposition is agood way to learn the deposition-taking process, do not §1:90 How to Begin a Depositioncount on the opportunity. A second-chair is usually over-kill except in very large, document intensive cases. Even if it is your first time, beginning a deposition is easy. Here is what you should do, step by step: §1:83 Practice Tip: Controlling Abusive Counsel With Video Depositions • On the day of the deposition, arrive early and stake out your ground. The court reporter will There are a few obvious reasons to consider video probably sit at the head of the table. You can sitdepositions. If the witness won’t be present at trial, to the court reporter’s right or left. The witnessyou can use a video deposition rather than reading the will sit directly across from you.transcript out loud. A videotaped deposition can also bemore impressive as a vehicle for impeachment than a • If the court reporter is there already and youpaper transcript. Some judges will even allow portions are waiting for the witness or the other lawyer,of videotaped depositions to be played during opening you can have the court reporter pre-mark yourand closing. deposition exhibits. Another use for video is to control abusive counsel. • Once everyone is assembled, ask if they are allThe presence of a video camera will often cause your ready to start the deposition. Then say to the courtabusive opponent to keep his mouth closed, even if he’s reporter, “Go ahead and swear the witness.”apt to be irrational when the camera’s not there. He’llstill make objections when appropriate, but they’re At this point, the court reporter will administer anlikely to be made in a much more even tone of voice, oath to the deponent. After that, you can dig into yourwithout all the histrionics. outline with the standard opening question, “Please state your name for the record,” or, if you want to sound like The next time you’re matched up against one of an old pro, “Tell us your name, please.”your jurisdiction’s savage beasts, think about videotap-ing the deposition. §1:91 Practice Tip: “The Usual Stipulations” §1:84 Practice Tip: Use Exhibits Regularly During Video Sometimes you will be faced with a situation in Depositions which your opposing counsel asks whether “the usual stipulations” will apply to your deposition. In other You can create a more interesting and visually- cases, the court reporter will ask at the beginning ofcompelling videotaped deposition by showing the wit- a deposition, “Can I note that this deposition is beingness an exhibit every so often. When you are preparing taken according to the usual stipulations?”for trial, set up the video playback to display the exhibiton the screen as the witness is being questioned about Just what are “the usual stipulations”? The answerit. This will break up the monotonous screen-shot of is that it depends. The usual stipulations vary fromthe witness, which becomes tedious after ten or fifteen jurisdiction to jurisdiction, and might even vary withinminutes. jurisdictions according to the local practice. Source: Mike Rogers, “Practice makes perfect The usual stipulations might include agreementsvisual presentations.” Trial, June, 2009. based on the jurisdiction’s procedural rules—for exam- ple, that all objections except those as to form are [§§1:85-1:189 Reserved] waived. The usual stipulations might also include agree- ments based on years of local practice—for example, that depositions, despite a rule to the contrary, need not ever be filed with the court. Since the phrase “the usual stipulations” is always ambiguous, you should never agree that the usual stipu- lations will apply to your deposition. With this said, it is okay to make agreements about the rules that will govern your deposition. Just make sure you understand exactly what you are agreeing to. If the opposing lawyer asks for a stipulation, make him or her spell out exactly what he or she is proposing on the

1-55 Deposition Procedures and Strategies §1:101record. Only then should you make your decision about B. Questioning During Depositionwhether or not you can agree to it. §1:100 Preliminary Questions §1:92 The Role of the Court Reporter The court reporter is responsible for “swearing Most lawyers begin depositions with a series ofthe witness”—that is, administering an oath to the wit- preliminary questions that vary from lawyer to lawyer,ness to tell the truth. Once the deposition begins, the but which generally go something like this:court reporter transcribes the proceedings and, if asked,attaches exhibit stickers to your exhibits. Q: Have you ever had your deposition taken You can make life easier for the court reporter by before?following these tips: • Do not allow witnesses to answer before you Q: You understand you are under oath? Q: And that means sworn to tell the truth? have finished your question. It is difficult for Q: And even though we are in an informal setting the court reporter to transcribe the proceedings if the participants are talking over one another. here in this office, your answers have the same • If you read from an exhibit, do not read so force and effect as if we were in a courtroom fast that the court reporter has difficulty taking with a judge and a jury? down what you say. Q: Are you prepared to answer my questions • During breaks, provide the court reporter with today? the spellings of any difficult names. Q: There’s nothing that will prevent you from giv- • If you do not want something on the record, ing me your full attention? remember to say, “Off the record.” Don’t begin Q: You aren’t taking any medications or suffering talking until the court reporter stops typing. from any illness that will prevent you from This way, if you get into a dispute with the understanding my questions or answering them opposing lawyer about what is on or off the fully? record, you do not have to worry about the Q: If you don’t understand one of my questions, court reporter taking down something you did will you let me know? not want recorded. Q: If you need to take a break at any time, tell me, and we’ll take a break. Is that okay? §1:93 Practice Tip: Treating Court You will find standard preliminary questions like Reporters Right these at the beginning of this book’s sample outlines. One reason for using the standard preliminary questions An article titled “What court reporters want” from is to put the deponent at ease right from the start. Butthe Illinois Bar Journal contains these tips from a court more importantly, they will help you later if you need toreporter: impeach the witness with his or her prior testimony. For more on this point, see §1:101. • Fax the case caption to the court reporter in advance of the deposition; §1:101 Practice Tip: Always Ask the Standard Preliminary Questions • When you arrive at the deposition, give the reporter a business card with a notation as to While the standard preliminary questions do not which party you represent; have to come at the very beginning of a deposition, you should not skip them altogether. The importance of • Speak slowly and clearly, especially when the preliminary questions becomes evident if you view reading from a document, when your natural them from the point of view of the lawyer trying to tendency is to speed up; impeach the witness at a later date. • Make an extra set of exhibit copies for the Some of the preliminary questions cut off avenues reporter; that might otherwise be available for backpedaling when the witness tries to change his or her answer, e.g., • Don’t speak over others, and advise the depo- “I didn’t understand your question” or “I didn’t know I nent to do the same; was under oath.” • Don’t cheat the reporter by providing a copy of You can also use the answers to the prelimi- the transcript to your opponent in exchange for nary questions when you are laying a foundation for splitting the costs. impeachment, e.g., “And at your deposition, you knew you were under oath, didn’t you?” . . . “And sworn toSource: “What court reporters want,” Illinois Bar Jour- tell the truth?” . . . “And you told me you were preparednal, page 514, October 2007. to give me your full attention?” . . . “And we agreed that [§§1:94-1:99 Reserved]

§1:102 Deposition Checklists and Strategies 1-56if you didn’t understand one of my questions, you would §1:103.1 Practice Tip: Watch Out forlet me know?” Negatives in Leading Questions The form and style of impeachment varies from Leading questions should be short and to the point.lawyer to lawyer, but the general idea is the same. Do They should also be phrased as a positive, not a nega-not skip the preliminary questions. tive. Beware the following common error, which will result in frequent follow-up questions: §1:102 Practice Tip: Mixing It Up Q: It was 2:10 p.m., is that not correct? The preliminary questions do not necessarily have to A: “Yes.”come right at the beginning of a deposition. Since both thelawyer and the witness will expect you to begin witheasy Q: That was a true statement?topics, you can often gain a tactical advantage by heading A: “Yes.”straight into an important issue. It’s that pesky negative that causes the problem. A Try mixing up your deposition outline by begin- better approach would be:ning with “Can you tell us your name please for therecord,” then jump to a topic that you would normally Q: It was 2:10 p.m., correct? —or—cover later in the deposition. Later, you can circle back Q: It was 2:10 p.m.?to complete the preliminary questions at your leisure. The last example is often the best alternative. It’s simple, direct, and unambiguous. §1:103 Basic Questioning Technique §1:103.2 Practice Tip: The Anatomy of Here are some things to keep in mind about phras- the Perfect Deposition Questioning questions at depositions: The perfect deposition question has the following • If you are trying to get information, ask open- characteristics: ended questions. • It’s short — it contains no unnecessary words; • If you are trying to pin a witness down, ask • It’s clear — it contains no ambiguities and is leading questions. susceptible to only a single meaning; • Whether open-ended or leading, keep your • It’s self-contained — its meaning can be ascer- questions short. tained with reference to the one single ques- • Try to make each question self-contained, so tion, standing alone; that you can understand it without reference to • It’s free of pronouns like “he,” “she,” or “they” other questions; this means don’t use pronouns — otherwise, it would violate the rule just such as “he,” “they,” or “it.” above; • It’s plain — it contains simple words as • Speak in complete sentences. opposed to complex, difficult ones; and If you mess up after you have started a question, • It’s a single question — it contains only onesimply say “strike that” and start over. Another method question, not two or three.of starting over is to say to the witness, “I’m going to Why should you care about making your depositionstart over. Okay?” This way, after the witness answers questions better? Questions that are ambiguous, confus-“yes,” your corrected question will start on a new line ing, or hard to understand will lead to answers that willof the deposition transcript. be that much easier for the deposition witness to evade if The sample depositions in these books con- that turns out to be what the witness wants to do.tain thousands of examples of appropriately-phrased Asking simple, clear, and direct deposition ques-deposition questions. You can also learn about basic tions is a skill that can be practiced and learned, ideallyquestioning technique simply by reviewing deposition by reviewing deposition transcripts — your own andtranscripts, both your own and those taken by other those of others — and asking yourself how the questionslawyers. can be improved. For other tips about questioning technique, see V.B.Situations You Might Encounter (§§1:140 et seq.). See §1:104 Questions by Opposing Counselalso §3:142 Practice Tip: Know Why You Are AskingEach Question; §3:161 Practice Tip: Open-Ended Ques- After you have finished questioning the witness,tions to Set the Stage; and §4:162 Practice Tip: “Who your opposing counsel will have an opportunity to askDoes Know?” questions. If any of these questions are objectionable, it is up to you to object at the appropriate time—that is, after the question but before the answer. See generally VI. Objections at Depositions (§§1:160 et seq.).

1-57 Deposition Procedures and Strategies §1:120 When your opposing counsel is finished with his or §1:111 Practice Tip: Can You “Wing It”her initial round of questions, you can follow-up with at a Deposition?questions of your own. The opportunity for questioningpasses back and forth in this matter until both sides say Can you wing it at a deposition? Undoubtedly, you“no further questions.” can. When depositions don’t give you butterflies any- more, it can give you some pleasure to know that you In some jurisdictions, the scope of additional ques- can step into a conference room and conduct a completetions will be limited to the matters that came up in the deposition barely giving a thought to preparation.preceding round of questions. What are the dangers of winging it? While style [§§1:105-1:109 Reserved] over substance can get lots of lawyers through depo- sitions, “winging it” is never a good idea. If you are C. Ending Depositions merely going through the motions, which is the whole point of winging it, you are not adding value to the §1:110 How to End a Deposition case. It’s not a good way to lay the foundation for trial When do you know when to end a deposition? You or settlement.end a deposition when you have asked all the questionsyou want to ask. Before winging your next deposition, here are some Do not let your opposing lawyer pressure you into questions to ask yourself:ending the deposition before you’re ready to end it.When you think you are finished, ask to take a break. • What are the goals of the deposition? Are youLook over your deposition outline to make sure you merely gathering information or can you alsohave not skipped anything you want to ask. Look over get helpful admissions from the witness? Howyour notes to make sure you have properly followed up do you plan to achieve your goals?on all the witness’s answers. When you are conducting this review, be methodi- • Do you plan to exhaust the witness’s memorycal. Take your time. It is probably the only opportunity on certain issues? Which ones? Why theseyou will have to question the witness, so do not end the issues and not others? When you are finished,deposition until you’re ready to end it. will the witness really be pinned down, or have When you know you are ready to complete the you left some doors open for him to wiggledeposition, say, “No further questions.” If the other law- through later?yer does not have any questions either, the deposition iscomplete. For more information, see §1:104 Questions • Have you reviewed the pleadings? If not, whyby Opposing Counsel. not? Have you looked at the discovery respons- When the deposition is finished, the witness will es and documents? Which ones do you plan tohave to be advised about the procedures for either read- use at the deposition, and why?ing and signing the deposition or “waiving signature.”If the witness is represented, his or her own lawyer • How is the witness going to fit into your planwill advise about signature. If this task falls to you, say for trial? Have you even thought about trial?something like this: How will the witness support or detract from your legal claims or defenses? The questions and answers today will be typed up by the court reporter into a deposition transcript. • How can you use the deposition in motions You have the right to read the deposition and before trial? Have you thought about the ways review the answers. In the alternative, you can you’ll use the deposition in other depositions? also rely on the accuracy of the court reporter to Have you thought about the ways you’ll use have taken down everything you said, in which the deposition at trial? case you can waive the requirement of signature. No matter how memorable your deposition style, See also §3:231 Practice Tip: What to Do at the End there’s simply no substitute for thoughtful preparation.of the Deposition. [§§1:112-1:119 Reserved] D. After the Deposition §1:120 Following Up on the Transcript Following the deposition, the court reporter prepares the transcript. In most cases, the original is mailed to the lawyer who noticed the deposition. The other lawyers get copies. After you receive the deposition, you can have it abstracted for your case file. See §2:65 Practice Tip: Abstract Depositions as You Go.

§1:121 Deposition Checklists and Strategies 1-58 §1:121 Practice Tip: Critiquing Your Own to evade, mislead, or lie, which isn’t outsmarting you Performance at all—it’s getting the witness in deeper if he’s caught. It is always helpful to ask yourself after each depo- If the witness lies, he’s likely to be caught. Oncesition how you could have improved your performance. the deposition ends, the discovery phase of your caseWhen depositions become not only a means of prepar- continues. Unlike cross-examination, which comes ating your case for trial, but also an opportunity for learn- the end of the case, you’ll have plenty of opportunity toing, you will hone your deposition skills much more test the truthfulness of a witness’s deposition answers asrapidly than the average lawyer. the case continues. Some lawyers keep a running tally of their own §1:124 Trial-Planning Steps to Take Afterself-criticisms, which they review when preparing for a Deposition Has Endedthe next deposition. It’s a great way to stay focused onyour goal of getting beyond the basics. While you’ll often want to proceed to the next case after a deposition has been concluded, the better practice Another useful exercise is to critique the perfor- is to use your recent gearing-up for the deposition as amance of your opposing lawyer. You will find yourself springboard for some trial preparation. Consider takingpicking up tricks and techniques that you can easily add the following steps:to your own deposition repertoire. In a memo to the file, assess the witness’s perfor- §1:122 Practice Tip: Motions in Limine mance with an eye to how that witness might perform at trial. This memo will go into the “witnesses” section A motion in limine is a motion asking the trial court of your trial notebook. Be sure to start a trial notebookfor a pretrial ruling that certain evidence is not admissi- early in a case. Not only will this make your pre-trialble. The same motion can also be used to obtain a pretrial discovery work more efficient, but it will also keep youruling that certain evidence can be used. motivated to keep planning for trial. Typically, a motion in limine is presented just Think about how the witness’s testimony can bebefore the trial begins. It might consist of a long list of used to establish the items you need to prove at trial. Asfacts that you think the defense should not be allowed noted in §5:06 Practice Tip: Jury Instructions, in think-to bring into evidence—facts or argument about third- ing about proof, remember to consult the jurisdiction-party insurance, for example, or facts about a preexist- approved jury instructions for the claims at issue ining injury to another part of the body that you think is your case.irrelevant to issues in the trial. Turn your deposition outline into a witness outline You can make your motions in limine better—and for trial. The new outline also goes into your trial note-save time preparing them—by keeping a list of points book in the “witnesses” section.to include at the conclusion of every deposition. Thisidea works well because it is during depositions that Think about whether the deposition raised anyyou get a preview of the facts that the defendant wants disputed evidentiary points or evidentiary theories thatto present at trial. Keeping a running tally of the points you will want to keep from the jury. Update your draftfor your motion in limine as discovery proceeds is far motion in limine as explained in §1:122 Practice Tip:more efficient than trying to review the entire file in the Motions in Limine.week before trial. Copy the exhibits you used at the deposition and §1:123 Practice Tip: The Witness Can’t note your impressions as to how they helped or hurt Outsmart You at a Deposition your case. The exhibits and notes go into your trial note- book or some alternative pre-trial storage area. Can a witness “outsmart” the lawyer who is askingquestions at a deposition? If you like to take notes for opening and closing as pre-trial discovery progresses, make any new notes It can certainly happen during a trial, especially suggested by the deposition and put them in your trialduring cross-examination. But a deposition is different notebook.than cross-examination. Create a deposition summary as soon as you get Assuming the goal of your deposition is one of the the transcript back, perhaps using the method describedcommon ones—finding out what the witness knows, in §2:65 Practice Tip: Abstract Depositions as Youlearning about the other side’s defenses, obtaining Go. Add citations to the witness’s trial outline asadmissions, and so on—then you are not cross-exam- appropriate.ining, but just trying to get information. This usuallymeans there won’t be any opportunity for the witness to Various factors endemic to modern litigation“outsmart” you. Instead, there will only be opportunities encourage us to think of depositions as one-time, isolated events: the fact that lower-level associates often take

1-59 Deposition Procedures and Strategies §1:141depositions but don’t try the case; the long period of time Q: “The corporate management team thinks thatfrom deposition to trial; the fact that many cases settle. five copy machines will be sufficient for our purposes.” Did I read that correctly? But depositions aren’t one-time, isolated events.They are an integral part of trial preparation and should Q: Do you agree with that statement?be designed as part of an all-encompassing trial plan. [§§1:132-1:139 Reserved] [§§1:125-1:129 Reserved] B. Situations You Might EncounterV. OTHER DEPOSITION TECHNIQUES §1:140 The Uncooperative Witness Every so often, you will encounter a witness who is A. Handling Documents not intimidated in the slightest by the deposition process and who wants to demonstrate this fact by being rude §1:130 Handling Documents at a or flippant. Initially, you should ignore this behavior— Deposition refuse to take the bait, as it were—and see whether the witness becomes more cooperative on realizing that When you are ready to use a document, hand it these antics will not become a shortcut to having toto the court reporter to be marked with a deposition answer the questions.exhibit. Remember not to say anything when the court When a question is answered flippantly, simplyreporter is placing the exhibit sticker on the document: ask the question again. “I’m sorry, but I don’t think youwith only one set of hands, the court reporter will not be answered fully. Let me ask the question again.”able to record what you are saying. If this does not work, there are other approaches. If the witness is represented by counsel, you can call a Next hand a copy of the exhibit (or the exhibit itself break and have a quick conference with the opposingif you don’t have a copy) to the opposing lawyer. This lawyer. Ask if he or she could step in and control theis courtesy that will allow the opposing lawyer to follow witness. Often, the other lawyer is embarrassed by thealong without having to look over the witness’s shoulder. conduct, and will welcome the opportunity to remindThe exhibit should then be handed to the witness. Ask the his or her client to answer appropriately. If the otherwitness to identify it. Any of the following questions will lawyer does not want to do this, you can do it yourself:serve this purpose: Tell the witness on the record that since his or her con- duct would not be appropriate in a courtroom, it is also Q: I’m handing you what’s been marked Exhibit not appropriate in a deposition. Tell the witness that if X. Can you identify that document for the he or she does not show the lawyers and court reporter record? sufficient courtesy—if the witness refuses to respect the process—you will have to stop the deposition to get the Q: I’m handing you what’s been marked Exhibit judge involved. When you return, it might be at the wit- X. Can you tell me what it is? ness’s own cost. Some witnesses—doctors, for example—are very Q: I’m handing you what’s been marked Exhibit aware of the time the deposition is taking. Sometimes it X. Is that a letter from John Smith to Sally helps to remind the uncooperative witness that the depo- Jones dated March 13, 2006? sition will take much longer if he or she fails to give you straight answers to your questions. See §1:262 Control After the witness answers, you can ask further the Speed of the Questioning.questions about the document. Remember to refer to it Here’s a final tip: if you suspect ahead of time thatby its exhibit number so that the record is clear. the witness will be uncooperative, conduct a video depo- sition. The presence of a video camera often keeps even §1:131 Practice Tip: “The Document the most demanding witnesses inline. Speaks for Itself” As a last resort, you can seek court involvement. See §1:164 Seeking Judicial Intervention. If you ask a witness about a document, your oppos-ing counsel may say, “Objection, the document speaks §1:141 Practice Tip: Impeachment Nuggetsfor itself.” In most jurisdictions, this is an objection An impeachment nugget is a question and answer inwithout substance, so you can carry on by asking the a deposition about a single fact that can be easily used atwitness to answer over the objection. If you want to have a witness comment on a pas-sage in a document, one way to do it is like this: Q: Mr. Witness, I’m going to read the second sen- tence on page 2 of Exhibit 1. Do you see that sentence?

§1:142 Deposition Checklists and Strategies 1-60trial to impeach a witness who tries to change his or her • Demonstrate that even though the witnessstory. A very simple example: claims he or she cannot remember details about the event that are important to issues in the Q: The light was green, correct? case, the witness can recall insignificant details A: “Yes.” about the same event. If you think in terms of impeachment nuggets as • Demonstrate that even though the witnessyou are taking a deposition, it will help you maintain a claims he or she cannot remember detailsclean transcript whenever you are doing the important about the event at issue, the witness has a clearwork of pinning the witness down about key facts. You recollection of other events that happened longwill remember, for example, to confine your question to before.a single, simple fact. • Establish a pattern of “I don’t remember” You will also remember to keep repeating the ques- answers clustered only around the event that istion until the witness gives you a straight answer without most critical to the issues in the case.extraneous information. In the example above, if the wit-ness answered, “Yes, and I thought it was about to turn Keep in mind that if the witness claims he or sheyellow,” it would be appropriate to say, “I’m going to ask cannot remember, you can use this answer to take theagain. The light was green, correct?” witness out completely as a witness in the case on the particular issue. If done properly, the witness’s “for- When the witness responds “yes,” then stops, you getfulness” will allow you to present your own uncon-have an impeachment nugget for trial. tradicted testimony on the issue. In order to do this, however, you have to pin down the forgetful witness by §1:142 The Forgetful Witness asking questions that would make it difficult for the wit- ness to claim later that he or she suddenly remembered You will be able to spot the forgetful witness by the the answer.number of times he or she answers “I don’t remember”to your questions. If true, this is an appropriate response. For example, to preclude the possibility that theBut when the witness does remember, it’s not; then the witness will claim later that he or she remembered thewitness is telling you a lie. answer after reviewing documents about the issue, ask the witness during the deposition whether there are any Based on the witness’s answers to your other ques- documents you can show him or her that would refreshtions, you will be able to sense whether the witness is his or her recollection. When the witness answerstelling you the truth about his or her inability to remem- no, this will close the door on this route to a newly-ber. If you think the witness is credible, you can try to refreshed recollection.refresh his or her recollection with documents or bytelling the witness how other witnesses have testified. §1:142.1 Practice Tip: Assume the Witness Is Lying Try this approach: “Mr. Witness, I’ll represent toyou that Mr. Clearly testified under oath that you were There are a number of ways a witness can try topresent at the meeting, sitting just to his right, and that fool you at a deposition. Here are just a few:you stopped the meeting during the discussion, stoodup, and said you disagreed with the board’s resolution. • The witness can knowingly make a false state-Does that refresh your recollection as to whether you ment. “The light was green,” he might say,were at the meeting?” when he knows it was red. Another way to refresh a witness’s recollection is • The witness can state he doesn’t know theby moving on to other questions concerning the same answer to your question when, in fact, heissue, then circling back to the topics that the witness knows very well.was having trouble remembering. You can also ask thewitness directly if there is anything you could show him • The witness can say “I don’t remember,”or her that would refresh his or her recollection about when, in fact, he does remember.the event. • The witness can give one of the words in your What if the witness is lying to you? While you can- question a meaning he knows is false, so thatnot force a witness to give you the answer that you want, he can answer your question in a way thatyou can use the witness’s claims of forgetfulness to call seems to be accurate, though it really isn’t. “Itthe witness’s credibility into question—not only on the depends on what the meaning of the word isquestions that he or she does not remember, but on the is,” said one famous deponent.rest of the testimony as well. For some more tips about recognizing lies by wit- To challenge the witness’s credibility, try the fol- nesses see §1:252 Make Sure You Get the Real Answer.lowing approaches: If you think the witness is trying to fool you, don’t be

1-61 Deposition Procedures and Strategies §1:145bashful about circling around and starting the line of Once you have enough experience forming succinctquestions from a new angle. Just because the witness is deposition questions on the fly, you can change yoursworn to tell the truth, it doesn’t mean he’s really going deposition outlines so that they only contain a list ofto do it. topics. This way, the process of asking good follow-up questions will happen naturally. §1:143 The Witness Who Talks Too Much §1:145 The Witness Who Talks Too Little Generally, it is not a problem if a witness talks toomuch; it probably means he or she is not only answering Witnesses who have been told by their lawyersyour questions, but volunteering information that might “don’t volunteer” sometimes become unwilling tobe helpful to your case. There are, however, three issues answer any question at all. You will recognize this typethat might arise in this situation: of witness by the way they seem to cut off their answers in mid-phrase, saying something like “and then we,” • The witness might be refusing to answer your and then stopping. leading questions with a yes or no answer. This is a problem that is easily handled by drawing • The witness might be adding information not out full answers with another question. “And then you called for by the question because he or she what?” You can also ask open-ended questions (“Tell thinks it is damaging to your case. me what you remember about the collision?”), teasing out the full story with follow-up questions like, “What • The witness might be rambling on about issues happened next?” that are not relevant to the case in an attempt to stall you. Handling the witness who talks too little is really a process of retraining the witness to forget his or There are two tools you can use to address these her lawyer’s warnings not to volunteer information.situations. One of them is to simply ask the question It usually takes only a few minutes of prodding withagain—over and over, if necessary. Say something like, simple follow-up questions before the witness starts“Thank you, but that’s not what I asked you. Let me ask acting like a normal person again. For more sug-the question again. At the time of the collision, were your gestions, see §1:250 Get the Witness Acting Like aheadlights on?” Continue to repeat the question until the Normal Person.witness answers the question succinctly, giving you an“impeachment nugget” as described above in §1:141 §1:145.1 The Witness Who Answers “IPractice Tip: Impeachment Nuggets. Don’t Know” In most jurisdictions, you can also move to strike When a witness answers “I don’t know” in anon-responsive answers by saying, “I move to strike deposition, it’s not necessarily your cue to move onthat answer as non-responsive. Here’s the question to another topic. Say that you’ve just asked Mr. Jonesagain . . . .” Since many witnesses think there might be what happened in a meeting on October 5. Mr. Jonessome personal penalty attached to having their answers responds that he doesn’t know. If you already have astricken, this can be quite an effective tool for control- version of the October 5 meeting you want to presentling witnesses. through other witnesses, you might be happy that Mr. Jones’s claimed lack of knowledge will prevent him In rare cases in which the witness refuses to answer from giving a different account.your questions, you might have to seek judicial interven-tion. See §1:164 Seeking Judicial Intervention Or will it? At trial, Mr. Jones might remember October 5 and dodge your attempt at impeachment by §1:144 Practice Tip: Asking Follow-Up saying that following the deposition, he refreshed his Questions recollection by talking to others who were there or by reviewing documents. Creating an outline is the most efficient way of for-malizing your preparation for a deposition. But be care- It’s one reason why you can’t always stop at the “Iful: deposition outlines can pose a hazard if you become don’t know.” Ask the witness whether he knew oncetoo fixated on following them word for word. There are and now can’t remember, or whether he was never incountless stories of inexperienced lawyers who are so a position to know. Follow up accordingly. If he wastimid about straying from their outlines that they fail to never in a position to know, pin him down as to why,follow up on a witness’s answers when something help- which will probably eliminate him as a witness concern-ful is volunteered. ing the events of October 5. If he was once in a position to know, ask what he could do to refresh his recollection The solution is simple: consider your outline mere- of events, then consider doing those things yourself—ly a starting point or a checklist, and then be flexibleenough to respond to the witness’s answers with appro-priate follow-up questions.

§1:146 Deposition Checklists and Strategies 1-62for example, by showing him documents or telling him speaking objections, see §1:175 Practice Tip: Speakingwhat others have said. Objections and How to Stop Them. §1:146 The Difficult Opposing Counsel §1:147 Practice Tip: How to Spot Liars— There are a number of things your opposing counsel Ask for the Story in Reversemight do to rattle your concentration: improper objec-tions, loud sighs, rattling of a newspaper, etc. The best Psychologists at the University of Portsmouth inway to respond to this type of behavior is to ignore it. Great Britain devised a useful method for police detec-Focus on the deponent and your game plan and refuse tives to spot liars: ask the witness to repeat the story inthe opposing lawyer’s invitation to be drawn into an reverse.argument. In fact, you should simply pretend he or sheis not there, unless opposing counsel makes an objec- The idea is that a made-up story is difficult enoughtion to one of your questions that is worthy of your to remember in the right order. If asked to remember theconsideration. story in reverse, the witness is bound to make mistakes. As for objections, use the advice in the next sec-tion, V. Objections at Depositions, in deciding how to Will the technique work in depositions? Maybe so.respond. If objections are interposed merely to slow you Try it out in a case that involves both a central, key nar-down and become so intrusive that they are obstructing rative, like a car accident or a work injury, and a witnessyour ability to finish the deposition, consider seeking who has a strong motive to lie.court involvement. This is covered in §1:164 SeekingJudicial Intervention. [§§1:148-1:159 Reserved] You might also have to seek judicial interventionif your opponent is making speaking objections—that VI. OBJECTIONS AT DEPOSITIONSis, making an objection in such a way that it signalsan answer to the witness. Though court rules generally A. Handling Objectionsprohibit this behavior, it still goes on. If your opponentmakes a speaking objection, you should warn him or §1:160 Handling Objections: Overviewher right away that you will not tolerate it, as in the fol- In most jurisdictions, objections that do not involvelowing example. For more on speaking objections, see the form of a question do not have to be made on the§1:175 Practice Tip: Speaking Objections and How to record in order to be preserved. Form objections workStop Them. the other way: if they are not made during the deposi- tion, they are waived. This is because form objections, EXAMPLE: if they are valid, can often be fixed by rephrasing the Q: Before the collision occurred, did you see the question. brake lights on the car you collided with? A valid form objection that is not fixed and that is Opposing Counsel: Objection, form. That ques- sustained by a judge later can make the testimony you tion is confusing. The witness has already obtain impossible to use. For this reason, no matter how testified that the accident happened so quickly much you are concentrating on your questions, you also that he doesn’t remember everything that hap- have to concentrate on your opponent’s objections. The pened. Your question assumes that he remem- process works like this: bered everything. That’s my objection, but • Listen to the objection. Mr. Witness, subject to that, you can answer. • Decide whether it is valid. You: Wait, Mr. Witness. Counsel, that’s a speaking • If it is valid, decide whether or not to withdraw objection. It’s improper. Please don’t do it again. If you do, I’m going to stop this deposition and the objectionable question and ask another one. file a motion. • If it isn’t valid, instruct the witness that You should not have to tolerate speaking objec- he or she can answer the question over thetions. Most lawyers will stop once they know you are on objection.to them. If they do not, you have no choice but to assert While the process is simple enough, it requires youyour rights by seeking judicial intervention. For more on to be able to decide on the fly whether your opponent’s objections are valid. For this reason, handling objections can be difficult for inexperienced lawyers. There are further details about handling objections in the sections that follow. For more information about the merits of specific objections, see VI.B. Types of Objections.

1-63 Deposition Procedures and Strategies §1:165 §1:161 Ignoring the Objection On the other hand, you will sometimes be more As long as your opposing counsel has not instructed concerned with obtaining information than whetherthe witness not to answer, you are free to ignore your an objection will be sustained later. If you are merelyopponent’s objection. You do this by simply telling the trying to learn facts about the case, it might not matterwitness to answer over the other lawyer’s objection. At to you whether those facts are revealed in an admissi-some later point before or during trial, the judge will ble format. If this is the case, you can instruct the wit-make a ruling as to whether the objection was valid. ness to answer over the opposing lawyer’s objection. As mentioned in the previous section, you shouldbe very careful about ignoring your opponent’s form EXAMPLE:objections. If you’re planning to use the transcript at Q: What did you hear Mrs. Smith say about whattrial or for other purposes, you might lose the right if Mr. Jones was doing just before the accident?your opponent’s objection is sustained. Opposing Lawyer: Objection, calls for hearsay. §1:162 Asking for the Basis of an Q: You can answer. Objection A: “Mrs. Smith said that Mr. Jones was drinking heavily and had eight empty Sometimes, lawyers interpose form objections as a beer cans in the front seat.”subtle form of harassment or because they think a ques-tion might be objectionable but are not really sure. If §1:164 Seeking Judicial Interventionyou do not know what is wrong with the form of your In real-life situations, it is rare that you will have toquestion, ask your opponent to tell you. You are entitled stop a deposition in order to seek judicial intervention.to an opportunity to fix your question. Undoubtedly, however, you will have to threaten this step a time or two. If it turns out that your opponent cannot explain, it To make such threats effective, you should be thor-means he or she was just trying to harass you or is not oughly familiar with the procedures in your jurisdictionsure. Keep asking for the reason for the form objection for seeking judicial intervention. Get into the habit ofand chances are he or she will stop. reviewing the rules before every deposition until they become second nature. §1:163 Rephrasing the Question In most jurisdictions, the procedure for seeking judicial intervention is simple: you begin by calling a When faced with an objection, you always have the temporary halt to the deposition—that is, “continuing”option of withdrawing the question and rephrasing it in it—for the stated purpose of filing a motion. The rulesa way that is not objectionable. will describe when such a procedure can be appropri- ately used as well as the remedies available to you if a As stated in the previous sections, your transcript judge rules in your favor. For example, the rules mightcan be rendered unusable if your opponent’s form provide for a special master who will be appointed to sitobjections are valid and are sustained later by a judge. in the deposition and rule on objections as they occurAlways think about rephrasing the questions. in real time. There are risks involved in stopping a deposition to Once you hear your opponent say “objection, form,” get a judge involved. Having to file motions and briefsyou’ll often know right away what was wrong with the and get them argued will slow down the discovery pro-question. Often, it was just too wordy, making it vague. cess. In addition, if the judge does not agree that you hadSimplifying the question will usually take care of the form cause for continuing the deposition, you might be sanc-problem and is good practice anyway. Withdraw the ques- tioned by having to pay the other side’s costs, includingtion and ask a better one. You do not need to feel like this the witness’s travel expenses.is an admission of defeat: it is not. §1:165 How Deposition Objections Are If the objection is not to the form of the question, Ruled on Before Trialbut to something else, you may or may not be able todeal with the objection during the deposition. For exam- Objections made during depositions are typicallyple, an objection that your question lacks foundation ruled upon by the trial court either just before trial orcan be fixed by laying a proper foundation. See §1:171 sometime during trial at a time when the jury isn’tObjections to Foundation. present. Other questions, although proper as to form andfoundation, might be objectionable for other reasons.Objections to relevancy, say, or on the grounds of hear-say might not be able to be fixed just by rephrasing thequestion.

§1:170 Deposition Checklists and Strategies 1-64 In most courts, there is a procedure that ensures tions might not be permitted. See also §1:170.1the parties will work out as many of the objections as Practice Tip: Leading Questions in Federalpossible before the court gets involved. In federal court, Court Depositions.for example, each side typically designates the portions • The question is compound. “Did you go toof depositions it wants to use in its pre-trial package. the hospital following the collision and let theThe other side then states its objections to these desig- tow truck driver get your car?” contains twonations. Objections to the form of particular questions questions. A “yes” or “no” answer could mean(leading, vagueness, compound, etc.) will be stated different things.during the depositions; other evidentiary objections • The question is argumentative, that is, designed(hearsay, prejudicial, improper opinion, etc.) might not not to elicit information but to allow the ques-be raised until just before the trial. tioning lawyer to make a point about the testi- mony or evidence. “Do you really expect me to After the parties have tried to narrow the objections believe that?” is an example of an argumenta-as much as possible, the judge gets involved and will tive question.have to rule on the remaining objections, typically on • The question is unfair in that it presents anthe record while both sides are present to argue their either/or choice when there are other possibili-respective positions. ties. The question “Did you turn right or left?” presents a problem because it contains an As the court makes its rulings, the lawyers for both assumption that the witness did not go straightsides take careful notes so that properly edited deposition or stop or turn around. “Did you turn right?” istranscripts or videos can be prepared to present to the much better.jury. In a lengthy trial with many depositions, the court • The question is harassing because it is designedmight not take up the objections to a deposition until a more to intimidate the witness than to seektime shortly before the deposition will actually be used. information. If there is a trick to dealing with form objections, [§§1:166-1:169 Reserved] it is being able to quickly figure out what’s wrong with your question. See VI.A. Handling Objections (§§1:160 B. Types of Objections et seq.). §1:170 Objections to Form §1:170.1 Practice Tip: Leading Questions in Federal-Court Depositions Objections to form are the most common deposi-tion objections. Though the simple utterance “objection, Can lawyers ask leading questions in federal-courtform” can stand for many different types of objections, depositions?all indicate that the objecting lawyer thinks that therewas a problem with the way the question was asked. Under federal rules, the examination and cross-An objection to “form” is not a complaint about the examination of witnesses during depositions proceedstestimony called for by the question—as would be an “as permitted at trial.” Fed.R.Civ.P. 30(c). This meansobjection to, say, hearsay—but a complaint about the that the propriety of leading questions is determined justquestion itself. as it would be at trial. There are many potential problems with the form of The issue of leading questions at trial is the subjecta deposition question. Here are some examples: of Federal Rule of Evidence 611(c): • The question or one of the words in the ques- Leading questions should not be used on the tion is vague. “Would you agree with me that direct examination of a witness except as may the contract was a very long document” is be necessary to develop the witness’s testimony. vague because “very long” can mean many Ordinarily leading questions should be permitted things. “Would you agree that the contract was on cross-examination. When a party calls a hostile more than 60 pages long” is better. witness, an adverse party, or a witness identified with an adverse party, interrogation may be by • The question is confusing. If your question is leading questions. long and convoluted, there is probably some- thing wrong with the form. To determine whether leading questions are per- mitted at a federal-court deposition, ask yourself the • The question is leading. Leading questions are following questions: often permitted in depositions, but in some situations—for example, when you’re taking a deposition of one of your own witnesses to preserve the testimony for trial—leading ques-

1-65 Deposition Procedures and Strategies §1:172 • Is the leading question in direct or cross- • A witness who works as a surgeon—and who examination? The lawyer who noticed the has never worked for the government—is deposition and who starts asking questions asked to explain how the FDA goes about first is doing the direct examination; other approving drugs for marketing in the United lawyers will be cross-examining. Under Rule States. 611(c), leading questions are permitted during cross-examination. If the opposing lawyer makes a foundation objec- tion, you can ask the witness to answer despite the • If the leading question is begin asked in direct, objection. But if you think the objection is valid (or is there another permissible reason for it, such you are not sure because you do not know whether the as the development of the witness’s testimony witness has personal knowledge), you can address the or the fact that the witness is adverse to the objection by withdrawing the question and backing up a questioning lawyer? If not, leading questions few steps in order to ask the witness some questions to are impermissible under Rule 611(c). establish personal knowledge. In real-life practice, lawyers will ask leading ques- Here’s how this technique might play out in thetions during depositions even when they aren’t strictly examples above, assuming the following facts are true:permissible, waiting to see whether you object. When in the first, you would establish that the witness has anyou are the examining lawyer, you can take the same engineering degree and worked to design the assemblyapproach—ask leading questions when you want unless line at another auto manufacturer before going intoor until the other side objects. marketing; in the second, you would establish that the surgeon, while a graduate student, designed testing pro- An objection to a leading question is a form objec- tocols for pharmaceuticals that were then submitted totion that is waived unless it is made at the time the ques- the FDA for approval.tion is asked. See Fed.R.Civ.P. 32(d)(3)(A) (“Objectionsto the competency of a witness or to the competency, §1:172 Objections Relating to Relevancyrelevancy, or materiality of testimony are not waived Relevancy is defined as the tendency of a fact toby failure to make them before or during the taking of make an issue in the case more or less likely. The fed-the deposition, unless the ground of the objection is one eral rules define relevance like this:which might have been obviated or removed if presentedat that time”) (emphasis added). “Relevant evidence” means evidence having any tendency to make the existence of any fact that is §1:171 Objections to Foundation of consequence to the determination of the action more probable or less probable than it would be When a trial exhibit is met with an objection to without the evidence.“lack of foundation,” it means the objecting lawyerthinks that the proper foundation has not been estab- Fed.R.Civ.P. 403.lished for the use of the exhibit. Even though relevant, evidence can be excluded To lay the proper foundation for the use of a photo- if it is unnecessarily prejudicial, confusing, or cumula-graph, for example, a witness would have to testify that tive—in the language of the federal rules, if its “pro- the photograph is a true and accurate representation of bative value is substantially outweighed by the dangerthe thing that it depicts. See §7:245 Practice Tip: Foun- of unfair prejudice, confusion of the issues, or mis- leading the jury, or by considerations of undue delay, dation for the Admission of Photographs. Without this waste of time, or needless presentation of cumulativefoundation, the photograph cannot be used as evidence. evidence.” When the objection is that testimony lacks foun- During a deposition, the meaning of an objection dation, it generally means that the questioning lawyer that the question is “not relevant” or “prejudicial” ishas failed to establish that the witness has sufficient self-explanatory. In most jurisdictions, such objections personal knowledge to testify about the topic at hand. are unnecessary because they are “preserved” for a laterRather than saying “objection, foundation,” the object- time. Rather than having to be made on the record at theing lawyer might also in fact say, “Objection, lacks time the question is asked, the objection can be raisedpersonal knowledge.” with the judge at the time of the trial. EXAMPLES: • A witness from the defendant automaker’s marketing department—someone who has always worked in the marketing department— is asked to explain how cars are manufactured.

§1:173 Deposition Checklists and Strategies 1-66 Despite being preserved, some lawyers make that could be asserted at trial could technically berelevancy objections anyway. Here are a few reasonswhy: asserted at a deposition. If you encounter an unusual objection and aren’t • To make sure the objection shows up on the record as a reminder to raise the issue with the sure how to handle it, you can do one of two things: judge later. • Ask the objecting lawyer to explain the basis • To intimidate the questioning lawyer or slow of the objection, so that you can try to cure it him or her down. during the deposition; or • To send a signal to the witness that the objecting • Bluff by asking the witness to answer over the lawyer does not think the answer will necessar- ily have anything to do with the case. objection, which will almost always be appro- If you are met with an objection based on rel- priate unless the objection is based on privi-evancy, you can instruct the witness to answer over theobjection, even though you should also remember to ask lege, in which case the lawyer will probablyyourself why the lawyer is raising the objection. instruct the witness not to answer. See §1:173 §1:173 Objections Based on Privilege The most common objection based on privilege Objections Based on Privilege.that you will hear at deposition is this one: “objection,calls for information protected by the attorney-client §1:175 Practice Tip: Speaking Objectionsprivilege.” and How to Objections based on other privileges are possible, Stop Thembut you are unlikely to encounter them very often.Other examples might be doctor-patient privilege or Though there are rules in most jurisdictions requir-accountant-client privilege. ing objections to be concise, this doesn’t mean some There is an important feature of objections based on lawyers won’t still try to make long-winded, ramblingprivilege: if the witness answers over the objection, theprivilege might be waived. This is why a lawyer who objections that suggest the answer to the deponent. Howwants to preserve the privilege will not allow a wit-ness to answer following the objection. Instead, he will do you prevent opposing counsel from coaching wit-instruct the witness not to answer. nesses with such “speaking objections”? Instructions not to answer a question are valid to pro-tect privilege, but lawyers sometimes instruct witnesses Examples of speaking objections are easy to comenot to answer for other reasons. Since you cannot force the by. “Objection, that question has been asked already,witness to answer, your possible responses to an instruc- and the witness already said no. Asked and answered.”tion not to answer are limited: first, you can argue with “Objection, vague. I don’t understand that question.your opposing counsel about the privilege in an attempt What do you mean by ‘epidemiology?’ Are you talkingto change counsel’s mind, or second, if this fails, you can only about statistically significant findings? Or not?”proceed with the deposition and file a motion to test the Even the common practice of telling the deponent, “Ifvalidity of the objections later. you know,” constitutes a speaking objection. If you decide to proceed with the deposition, itis good practice to make a record about the witness’s To shut down the speaking objections, you have torefusal to answer. First, ask the witness if he or she is, in speak up—loudly and with conviction—the first timefact, refusing to answer your question, and second, askthe witness if the witness is refusing because he or she the opposing counsel tries to amplify on simple objec-is following the lawyer’s advice. tions to form or foundation. Don’t be afraid to interrupt When the witness answers “yes” to both of thesequestions, you can proceed with the deposition. once the behavior starts. In fact, you should interrupt. §1:174 Other Objections By raising your voice and talking over opposing coun- sel, you’ll insure both that the reporter takes down what The previous sections covered the types of objec-tions you are mostly likely to hear during a deposition. you say and that the witness hears you rather than theThere might be others, however, since any objection opposing counsel. Try something like this: “Stop right there. You’ve made your objection. Anything else is a speaking objec- tion, and there aren’t going to be any speaking objec- tions today.” In most cases, this is all it takes to shut down the speaking objections before they start. There are excep- tions, of course—lawyers who will take your interrup- tion as an opportunity for a chest-thumping retort. Don’t take the bait by getting drawn into an argument. Simply wait for the next speaking objection and if it comes, tell the opposing lawyer that it’s now happened twice. If it happens again, you are going to end the deposition and seek a remedy with the court.

1-67 Deposition Procedures and Strategies §1:192 Your threat can’t be idle. As is good practice before • Ch. 7 Insurance Coverage Disputes, IV. Sam-any deposition begins, you should have already familiar- ple Deposition: Defendant’s Roofing Expert inized yourself with the rules applicable to the particular a Property Damage Case (§§7:150 et seq.).deposition for seeking court intervention. You probablywon’t need to do this, but you’ll feel better knowing the • Ch. 2 Vehicular Liability, V. Sample Deposi-circumstances under which speaking objections by your tion: The Defendant’s Accident Reconstructionopposing counsel will give you an opportunity to seek Expert (§§2:240 et seq.).the court’s help in shutting the practice down. • Ch. 4 Products Liability, V. Sample Deposi- For more about speaking objection, see §8:122 tion: Defendant’s Expert Economist in a Prod-Practice Tip: The “If You Know” Objection. ucts Liability Lawsuit (§§4:320 et seq.). [§§1:176-1:179 Reserved] [§§1:182-1:189 Reserved]VII. EXPERT DEPOSITIONS B. Goals of Expert Depositions A. Before the Deposition §1:190 Overview In your depositions of the opposing experts, you §1:180 Written Discovery of Defense will learn all you can about the experts’ opinions, the Expert Opinions manner in which they reached those opinions, the factu- al basis for the opinions, and the experts’ qualifications Written discovery of the defendant’s expert allows to hold those opinions.you to lay the groundwork for expert depositions well You will also ask questions designed to obtainbefore they happen. admissions that will help support your case, including admissions that will help support the theories your own The scope of written discovery of the opinions held expert will present at trial.by the defendant’s experts differs widely from juris- Last, you will ask questions relevant to the issue ofdiction to jurisdiction. You should make sure you are bias, such as the income the deponent receives from tes-familiar with the rules in your jurisdiction and with the tifying, and his allegiance, if any, to either the defendantcase law interpreting the rules. Plan to take advantage or to the “defense side” in general.of the rules to the fullest extent possible. You will want These goals are explored in more detail below.to know as much as possible about the following issuesbefore the deposition of each of the defendant’s experts: §1:191 Discover Every Opinion of the Opposing Expert • The subject matter of the expert’s testimony. • The expert’s opinions. It has been said that depositions of experts are easy, • The factual basis for those opinions. as long as you remember to ask the question, “What • The expert’s qualifications to give the opinions do you hold in this case?” and then be sure to follow-up. opinions. • The expert’s publications. Unfortunately, expert depositions are a little more • The expert’s past testimony. complicated than this. The good news is that experts are • The compensation the expert is receiving for not entitled to hide their opinions: when you ask about them, they have to tell you. Experts who try to dodge work on the case. your questions about their opinions run the risk of hav- You will follow up on each of these areas during ing their opinions barred at trial.your depositions of the defendant’s experts. Note: Not all jurisdictions permit expert deposi- §1:192 Discover the Factual Basis for Alltions. In some, consent of the opposing party or a court Opinionsorder may be required. Discovering the opposing expert’s opinions is only §1:181 Sample Outlines a starting point. The opinions are fairly meaningless This book contains four sample depositions of until you know whether they are based in fact.experts as follows: • Ch. 4 Products Liability, IV. Sample Deposi- Are the expert’s opinions based on the expert’s own professional experience? On the expert’s education? On tion: Defendant’s Causation Expert in a Defec- things that the expert has read? On tests that he or she tive Drug Case (§§4:170 et seq.). has performed? On the facts of the case? Which facts?

§1:193 Deposition Checklists and Strategies 1-68 Only by understanding the factual basis of the expert’s background. During the deposition, you’ll askexpert’s opinions can you later attempt to cast doubt on the expert about his or her qualifications to render thethem at trial. opinions the expert plans to give at trial. The questions in the deposition outlines that follow For example, you will explore whether the subjectwill also assist you in finding out whether the expert’s matter of the expert’s opinions are different, how-opinions are based on any factual assumptions that are ever subtly, from the expert’s real-life training andopen to question. If the factual assumptions on which experience:the expert’s opinions are based are changed, does thischange the opinions? At trial, you can demonstrate why • Is the expert a past fire chief who is now tes-the expert’s factual assumptions are wrong. tifying about determining the flash points of a chemical composition, though he has never Finally, the goal of discovering the factual basis actually tested for flash points?of the expert’s opinions also includes finding out howthe expert reached his or her opinions. Did the expert • Is the expert a non-invasive cardiologist whoreview the case documents? If so, which ones, and in is now testifying about heart surgery, evenhow much detail? Did the expert fail to review any of though she is not a surgeon?the case documents? How long did it take the expertto reach an opinion? Did the expert agree to serve as • Is the expert a toxicologist who has publishedan expert even before starting his or her review? Did extensively about the effects of one type ofthe expert perform any tests? Did the expert make any drug on the liver, but not the drug he is testify-models? And so on. ing about now? §1:193 Practice Tip: Attempting to Strike • Is the opinion the expert holds in your case an the Expert opinion she has never had to form in her actual work experience? In preparing and conducting your deposition of thedefendant’s expert, you should keep in mind that you During the deposition, you will obtain admis-might be able to do more than merely lay the groundwork sions from the expert about the expert’s inexperiencefor a strong cross at trial. If your deposition of the expert in certain areas, which you can use later to supportdemonstrates that the expert is not qualified to render the a motion to strike or to impeach the witness duringopinions he or she is testifying about, or that the opinions cross-examination.are unreliable, you might be able to have the expert’stestimony limited or stricken before trial. §1:195 Obtain Admissions to Use to Support Your Case A pre-trial attack by motion on the defendant’sexpert has become a very common litigation maneuver. As with the defense experts, your own expert willIf you win the motion, you might also be able to knock hold opinions based on certain factual assumptions he orout other parts of the defense. This will strengthen your she holds about the case. During your deposition of thesettlement position. defendant’s expert, see if the expert will support your own expert’s factual assumptions about the case. This Experts can be attacked because their opinions are will close off some of the avenues that the defendantunreliable, because their opinions are based on facts that might have used to attack the opinions of your ownare indisputably wrong, and because the expert does not expert.hold the opinions very strongly, i.e., he or she is engagingin speculation. You can also find out whether the opposing expert supports any of your expert’s opinions. If the defendant’s One disadvantage of a pre-trial attack on an expert is expert disagrees with your expert, find out why.that it allows the defendant to get a preview of your cross-examination. If you lose the motion, it will detract from There are still other admissions to get from thethe element of surprise during your cross-examination. defendant’s expert. Here are some examples:See §1:233 Should You Cross-Examine the Expert Dur-ing His Deposition. • Sometimes, an expert will admit that there is more than one reasonable view about the opin- §1:194 Learn About the Opposing ion he holds, i.e., that his colleagues in the pro- Expert’s Qualifications fession reasonably disagree with his position. In your preparation for the expert’s deposition, you • Find out whether the opposing expertwill learn about the expert’s qualifications from his or her knows your expert. See if she will admitCV and from the other research you will conduct into the that your expert is reputable, honest, and knowledgeable. • Find out whether the opposing expert will admit to the reliability and authoritativeness of

1-69 Deposition Procedures and Strategies §1:213 treatises or articles you plan to use in your own C. How to Prepare for Expert Depositions case. See also §2:327 Practice Tip: Testimony From the §1:210 OverviewExpert Supporting Your Theory of the Case. Your preparation for the deposition of the opposing party’s expert should include these basic steps: §1:196 Explore All Sources of Bias • Review the file. During your deposition of an opposing expert, you • Gather the key documents.will explore all the reasons that the expert might be • Familiarize yourself with applicable govern-biased towards the defendant in the case. Think aboutthese issues from the jury’s point of view: if they hear ment standards.the expert testify favorably for the defense, what things • Study the expert’s CV and reports.might make a reasonable juror discount the expert’s • Conduct other basic research about the expert.opinion? • Consult with your own expert. • That the expert is being paid $1000/hour, and These six steps are explained in greater detail in the following sections. so is likely to say anything if he’s paid enough? • That the expert always testifies for the defense, §1:211 Reviewing the File Especially when you are returning to a case that you and never for a plaintiff? have not worked on recently, it makes sense to review • That the expert has received something of the entire file. In preparing for an expert deposition, it is especially important to review the most recent com- value, such as research money, from the defen- plaint, which will describe the theories of the case; the dant in the past, or expects to in the future? most recent answer, which will describe the defenses; Questions about bias include inquiries about the witness statements; responses to written discovery; andmoney the expert is earning by working on the case, prior depositions.the expert’s past work for either the defendant or the For depositions involving medical issues or dam-defendant’s lawyers, the amount of money the expert ages, your client’s medical records will also be impor-earns each year as a professional consultant, testifier, or tant. Tab any documents you think might be useful inexpert, and whether the expert generally tends to testify preparing for the deposition.for defendants rather than plaintiffs. §1:212 Practice Tip: Review the Pattern §1:197 Lay a Foundation for Your Jury Instructions Demonstrative Evidence Most jurisdictions have pattern jury instructions. Demonstrative evidence such as charts, graphs, and By reviewing these frequently, you can easily remindsummaries will not be admitted at trial unless you have yourself what you will need to prove at trial, which willlaid a proper foundation. Usually this means showing also define the boundaries of your pre-trial discovery.that the demonstrative evidence is an accurate depictionof what it purports to represent. While this can often be In many states, the rulebook containing the patternaccomplished with testimony by the witness who will be instructions also contains a summary of the jurisdic-using the demonstrative evidence, you might be able to tion’s substantive law. Do not neglect this very usefuldo an end-run around the defendant’s objections to the resource.evidence by having the defendant’s expert admit to thefoundational elements for you. §1:213 Gathering the Key Documents During your file review, you will probably tab This is a variation on the theme of obtaining admis- certain documents that you want to use as exhibits dur-sions from the opposing expert. See §1:195 Obtain ing the opposing expert’s deposition. These documentsAdmissions to Use to Support Your Case. There are might include test reports, journal articles, and medicalsome strategic considerations to consider before tak- records that the expert relied on in forming his or hering this course. Sometimes, well-crafted demonstrative opinions. See §1:211 Reviewing the File, and §1:180exhibits will strengthen your hand in settlement negotia- Written Discovery of Defense Expert Opinions. Puttions. In other cases, you may not want your opponent these documents into a single folder as you prepare yourto see your demonstrative exhibits until the last possible deposition outline.moment, in order to obtain an element of surprise. [§§1:198-1:209 Reserved]

§1:214 Deposition Checklists and Strategies 1-70 §1:214 Familiarize Yourself With • Who is the expert beholden to? Many experts Government Standards list the companies or industries for which they’ve consulted. This might be evidence of Federal, state, and local governments have become bias. If there is a section concerning researchinvolved in many aspects of safety regulation. An exam- grants, remember to ask who sponsored or paidple is the Federal Hazardous Substances Act (15 U.S.C. for the grants.§§1261, et seq.) In pharmaceutical litigation, the regula-tions of the Food and Drug Administration (FDA) often • What real-life experience does the expert haveplay an important role. In preparing for depositions of in the subject matter of her opinions? Look foryour opposing experts, you should make sure to famil- discrepancies between what the expert actuallyiarize yourself with all applicable laws and regulations. does in her professional life and what she plans to testify about at trial. §1:215 Studying the Expert’s CV and Report • Has the expert made mistakes in his CV? Many expert CVs contain inaccuracies. Some During written discovery, you should have obtained are obvious on the face of the CV, but othersthe expert’s curriculum vitae (CV) and reports. See may need to be flushed out by means of other§1:180 Written Discovery of Defense Expert Opinions. research or questions at the deposition. InAlthough there is no standard format for an expert’s CV, either case, mistakes in the expert’s CV, espe- cially if they are major ones, will not reflect it usually includes, at a minimum, information about well on his credibility. the expert’s education and publishing history. This will give you a sense for whether the expert is • Are there exaggerations in the CV? Just as useful as mistakes are exaggerations. Has thequalified to testify about the opinions he or she plans to expert promoted herself to a position that shegive for the defendant. never really held? Does she list a number of publishing credits for which she was the tenth During the deposition, you use the CV when you author and really did little work? It is a normalare covering the expert’s qualifications. For other ways human tendency to exaggerate. If you canto use the expert’s CV, see the next section, §1:216 catch your expert in a pattern of exaggeration,Practice Tip: Five Ways to Hit Home Runs With an it will cast doubt on the reliability of the sub-Expert’s CV. stantive opinions she plans to testify about at trial. The expert’s report, if any, may or may not contain allthe opinions the expert will render at trial. In many juris- §1:216.1 Practice Tip: Pay Attention to thedictions, a report is not required. In others, a report will be Dates on the Expert’s CVrequired, but the expert might be allowed to supplement itwith new opinions during your deposition. When an expert’s CV attempts to summarize a long career, you can often get some good fodder for cross- Whatever the rule in your jurisdiction, you should examination by paying attention to the dates. Did thecarefully review any report prepared by your oppos- expert’s real-life work experience with the subject of hising experts. This is the single best way to preview the testimony end years before? Did it just begin? What wasexpert’s testimony. the date of the expert’s most recent publication? The date of the most recent publication on the topic about §1:216 Practice Tip: Five Ways to Hit Home which he’s testifying? Runs With an Expert’s CV Questions like these raise interesting topics for The expert’s CV can be very useful in preparing for cross-examination. At a recent trial, an expert washis or her deposition. If you learn to read it critically, cross-examined along these lines:you might be able to score some home runs during yourdeposition or cross-examination of the opposing expert. Q: You have a section in your CV titled Honors and Awards? Be sure to ask these five important questions aboutevery CV you read: Q: The last honor or award that’s listed is dated 1978? • What has the expert published? Look over the publications. The expert might have 300 pub- Q: You haven’t received any honors or awards lished articles, but if none of them deals with since 1978? the subject matter of his testimony, they do not matter. Also pay attention to the quality of the Q: That’s when you were teaching? But you publishers. Are the publications peer-reviewed? haven’t done any teaching in three decades? Are they reputable? Are any of the expert’s books or articles self-published?

1-71 Deposition Procedures and Strategies §1:217 §1:217 Conducting Other Research About §1:217.1 Practice Tip: Preparing for the Expert Expert Depositions by Looking Ahead to the Cross-Examination Your pre-deposition research about the opposing at Trialexpert should begin as soon as your learn his or her Your preparation for depositions will generally bename. Although the two prior sections discussed research much easier if you think about the ways the testimonybased on the expert’s CV, your research about the defen- will be used at trial. This tip applies to most pretrialdant’s expert should not be limited merely to reviewing discovery. It is almost never an end in itself, but some-the expert’s work history and list of publications. thing that will be used later in front of a jury. It is no Before every deposition, you should learn every- accident that the ins-and-outs of pretrial discovery often make more sense after a lawyer has witnessed something you can about your expert. Begin with the Inter-net. Using free sites, I once learned that an expert my actual trials. When trials are scarce, even reading trial transcripts helps.opponent had designated to give an opinion about theproper way to operate a paid blood-donation business The looking-ahead-to-trial tip can be especially useful for deposing your opponent’s experts. If youhad once had some problems himself at a blood dona-tion center he had run. When my opponent learned often rely on outlines prepared by other lawyers, thisabout this information (something he didn’t know him- method will also help you understand why it is impor-self), the case settled. tant to ask the questions lawyers typically ask when The next stop in your search should be the opposing deposing experts.expert’s own website. Compare what the expert says onhis or her website to the expert’s CV, looking for exag- How do you look ahead to trial? Even though everygerations, mistakes, and things that might have beenomitted from the CV. trial cross-examination differs in its particulars, most Sometimes an expert’s website will contain infor- cross-examinations of experts at trial cover the follow-mation about the subject of the expert’s opinion itself, ing points:for example, when a medical doctor who is testifying • Weaknesses in the expert’s qualifications orabout a particular drug has written about the drug. Imag- expertise to render the opinions he’s rendering.ine how useful it would be if an expert, though holdingan opinion that a particular drug is not dangerous, has • The expert’s lack of preparation to render the opinions he’s rendering.contradicted himself on his own website. If you have access to news databases such as • Bias. • Assumptions the expert is making that will bethose offered by Lexis and Westlaw, be sure to runa search on your expert’s name. You should also use disproved in your case.Lexis, Westlaw, or other case-law databases to search • Helpful testimony from the expert that sup-for your expert. Find out whether an appellate court ports your own case.has ever said anything negative about the expert or his Working from this list, it is easy to see some ofopinions. Has the expert been involved in any lawsuits the most important areas you will need to cover whenhimself? Finally, you should use your connections with other deposing the opposing expert. It is the material you will get in the deposition that will provide the fodder for thelawyers, or your privileges in lawyer organizations suchas the AAJ (formerly known as ATLA), to locate law- cross-examination. If you do the deposition right, you will know exactly what the expert is going to say aheadyers who have deposed the expert. These lawyers can tell of time, decreasing the risks of cross-examination.you about the expert or provide prior deposition and trialtestimony. Not only will the expert’s past testimony give Keeping the list above in mind, here is an outline ofyou an idea about how the witness answers questions, itwill also shed more insight on the expert’s background some of the most important points to cover when depos- ing an expert witness:and give you an opportunity to find out whether theexpert has ever given an opinion in another case that is • The expert’s qualifications and expertise (and lack thereof) in the particular area he’s testify-contrary to the one the expert is giving in yours. ing about. • What the witness has done (and has not done) in order to prepare himself to render an opinion. • The expert’s past work as an expert witness, especially for the side for which he’s testifying in your case, including the income generated from work as an expert witness.

§1:218 Deposition Checklists and Strategies 1-72 • All the expert’s opinions, his support for those D. Expert Deposition Strategies opinions, and the factual assumptions he’s making to reach those opinions. §1:230 Using Texts in the Deposition You can use textbooks and articles in your exami- • Points that you will be trying to prove or dem- nation of a defendant’s expert. This can be done very onstrate at trial that the expert you are deposing simply by marking the material as an exhibit, as in the will agree with. following example. §1:218 Consult With Your Own Expert EXAMPLE: Many experts have extensive experience with giving Q: Doctor, I’m handing you what I’ve markedtestimony. Take advantage of your own expert’s knowl- Exhibit #4. Is that a copy of an article fromedge by getting his or her help with your preparation. the Journal of Advanced Cardiology titledJust remember that none of your conversations with your “Effects of High Carbohydrate Diet on Car-expert should be considered privileged. See §1:219 Prac- diovascular Risk Factors”?tice Tip: Privilege and Experts. Q: Please turn to page 4, second paragraph, which While you should avoid using e-mail, you can begins, “In a meta-analysis. . . .” Do you seeschedule a face-to-face meeting or use the phone to that?talk about your preparation. Your expert can explain Q: I’m going to read that sentence. “In a well-difficult technical terms, suggest questions that will known meta-analysis of randomized con-undermine the opposing expert’s opinions, and list the trolled trials to assess the effects of high car-admissions your opposing expert might make that will bohydrate diets on cardiovascular risk factors,support your own expert’s theories. Wallace found that such diets were at least as You should also consider bringing your expert with effective as low-fat diets in inducing weightyou to the deposition of the defendant’s expert, particu- loss.” Did I read that correctly?larly if the subject matter is highly complex. Q: Do you agree with that statement? §1:219 Practice Tip: Privilege and Experts You might also question an expert about a textbook While there was once an argument that a work or articles to simply lay a foundation for the use of theproduct privilege might apply to some items given materials for cross-examination at trial. Generally, theto your expert—items that both revealed your litiga- foundation will require proof that the text is “authori-tion strategies and that the expert did not rely on to tative.” While you can also get this proof from yourform opinions—this is no longer the rule in most own experts, your cross-examination at trial will bejurisdictions. more compelling if the witness agrees that the work is Rather than trying to rely on privilege, the better authoritative.practice is to assume that anything you give to yourexpert will be subject to discovery by your opponent. §1:231 Questioning Techniques If you decide to write or e-mail experts, assume Three types of questions will dominate most ofyour opponent will eventually be reading the com- your deposition of the defendant’s expert:munication too. Many lawyers try not to write their • Open-ended questions that invite the witnessexperts at all, preferring instead to talk on the phoneor in person. to give a detailed response. Example: “Why Oral conversations with your expert are also subject do you believe that the warning label wasto discovery. Just as you should be careful about what adequate?”you write an expert, you should also be careful about • Close-out questions designed to pin down thewhat you say. witness. Example: “Other than the three rea- These rules, of course, also apply to your opponent. sons you’ve given me, is there any other reasonWhen you are deposing your opponent’s experts, always you believe the warning label was adequate?”ask about both written and oral communications. • Questions designed to memorialize helpful answers in a single “nugget” of information. [§§1:220-1:229 Reserved] Example: “The defendant could have printed the warning label in red lettering, is that correct?”

1-73 Deposition Procedures and Strategies §1:232 The expert depositions in this book use a mix of all “why is that,” it probably means that you have not fullythree types of questions. Generally speaking, you will use fleshed-out the basis for the witness’s testimony.the open-ended questions most frequently at the begin-ning of a new deposition topic. After the boundaries and Consider these other variations of “Why is that?parameters of the testimony have been established, you • What makes you so sure that . . . ?will ask the close-out questions to make it difficult for the • Can you explain why you think that . . . ?witness to change his or her testimony later. Meanwhile, • On what do you base your testimony that . . . ?at any time during the deposition, you can pause to get thewitnesses’ agreement, by means of leading questions, on §1:232.1 Practice Tip: The Use inanything that will help you in cross-examination or that Depositions of Tone of Voice andwill help as an admission. Body Language Your style of questioning will vary from witness While some witnesses are outright liars, seeto witness. Most lawyers like to put the witness at ease §1:142.1 Practice Tip: Assume the Witness Is Lying, aby being friendly and relaxed. In most depositions, this more common type of false testimony is overstatementtechnique works fine, and the questioning lawyer can and exaggeration. This type of “minor” falsification isconcentrate on getting the information needed rather than characteristic of the sort of casual, inexact way of speak-engaging in a battle of wits with the witness. ing that all of us regularly use in our everyday lives. It’s a way of speaking, however, that doesn’t translate well There are some exceptions, however: when used in a deposition or the courtroom. • Hostility from the witness should not always EXAMPLES: be ignored. Sometimes, a lawyer needs to fire “Before this car accident, I never suffered any medi- back. • An expert witness who is unprepared or who cal problems in my entire life.” lacks credibility can sometimes be prodded “It’s impossible to find last year’s e-mails.” to become completely unglued by questions posed in a sarcastic tone of voice or in a tone For a lawyer wishing to confront exaggeration and of unbelief. overstatement, it is sometimes hard to know how to • Some lawyers like to subtly intimidate a wit- respond. You cannot simply say, “I don’t believe you. ness by standing up or moving around the Please give me the real answer.” But you can do some- room during the deposition as the witness is thing very close. Or, at least, some experienced lawyers pinned to his or her seat. can. The trick has everything to do with body language No matter what style of questioning a lawyer and tone of voice.chooses to use, the overall goals of the depositionremain the same. This means that if you try to vary your How does it work? It is a matter of demonstrating astyle of questioning, you should know why you are complete lack of faith in the witness’s answer by, perhaps,doing it, and how it will help you accomplish the goals raising the eyebrows in a mock expression of disbelief.you set out to accomplish in the beginning. Then the lawyer repeats the witness’s last answer but gives it a special spin. “Mr. Smith, do you really mean to tell me §1:232 Practice Tip: “Why Is That?” and that . . .” or “Doctor, certainly you can’t mean that . . .” or Other Follow-Up Questions That “Mr. Jones, I’m certain I didn’t understand you correctly. Never Fail You mean to tell me that . . . .” One of the three types of questions listed in the A simpler alternative is to omit the preamble andprevious section was the open-ended question, that is, simply repeat the witness’s answer with the prerequisitea question that invites the witness to give a detailed disbelieving expression and tone of voice. “Smokingresponse. Often, the witness will give an answer that isn’t associated with lung cancer?”calls for a second open-ended question. One of the mostuseful of these is, “Why is that?” The approach can also be accomplished in a light- hearted manner. An experienced lawyer can sometimes Q: What do you think caused the tenderness in the cause an expert to become completely unglued at a shoulder? deposition simply by chuckling at his answers and A: “I think it was a case of adhesive capsulitis.” repeating the phrase, “C’mon doctor, it just can’t be the case that. . . .” Q: Why is that? The “why is that” question will help you to get to Some witnesses become defensive and dig in theirthe bottom of an issue. After all, any time you can ask heels at questions like these, but other witnesses are especially susceptible to the mocking approach. It is

§1:233 Deposition Checklists and Strategies 1-74an approach you should keep in mind when doing your for depositions. Oklahoma Stat. Section 12-3230. Theown depositions. Think of it as the “c’mon doctor” Illinois rules allow only three hours for a discovery depo-approach. Although experts seems more susceptible sition. Illinois Supreme Court Rule 206.to this treatment than fact witnesses—perhaps becauseexperts are more concerned about how other profes- If you think you will need more time for the deposi-sionals are assessing their credibility—the approach can tion than the rules allow, be sure to seek the appropriatework on all types of witnesses, assuming they are actu- relief from the court before the deposition begins.ally engaging in exaggeration or overstatement. §1:235 Practice Tip: What to Do When “Oh, c’mon, Mr. Witness. No medical problems in You Arrive for an Expert’syour entire life? Is that what you really mean to say?” Deposition Of course, questions like these can often be objec- Before the court reporter sets up and the deposi-tionable. They start to become argumentative pretty tion begins, you will often have an opportunity to askquickly. But it is easy to simply restate the question after opposing counsel if you can look through the itemsthe other side objects. Let the witness answer subject to that the witness has brought with him or her to thethe objection, then back up a step. This time the witness deposition. Although you will explore these materi-alswill know you’re on to him. “I’m going to ask my ques- during the deposition, you should try to get a looktion again. What medical problems did you have before before then.the accident?” This opportunity to preview the documents will Although it’s not always an easy technique to pull speed up the deposition when you ask questions aboutoff, the method described here can be a very effective the documents later. In addition, you might find some-way of coping with exaggeration and overstatement by thing you had not expected to see, and you can use thecertain witnesses. time remaining before the deposition begins to complete your preparation. §1:233 Should You Cross-Examine the Expert During His Deposition? In this initial review, pay particular attention to the correspondence between the expert and oppos- In most cases, you will not want to give the other ing counsel. You should also ask yourself if anythingside a preview of your cross-examination at trial by appears to be missing, such as billing records, otherconducting a cross-examination at the expert’s deposi- depositions the expert might have reviewed, or draftstion. This does not mean you should not be a fierce of reports.advocate. Rather, it means you should spend yourtime completing the goals you set for yourself at the §1:236 Practice Tip: What to Do Whenbeginning of the deposition: finding out what opinions the Defendant Buries You Withthe expert holds, then exploring the weaknesses in Expertsthese opinions. It is what will make your trial cross-examination effective. In large-damage cases, the defendant may take a scorched-earth approach to defending the case. In the Should you ever cross-examine at depositions? arena of experts, this means that your opposing counselSome experienced lawyers improve their pre-trial settle- might “over-designate” experts by listing many morement positions by giving their opponent a preview of experts than he or she would ever use at trial. My owntheir trial cross-examination during the deposition. experience also includes situations in which the defen-Sometimes these lawyers even render their opponent’s dant regularly included fifteen or twenty of its high-levelexpert completely useless at trial by exposing flaws in employees on its list of expert witnesses.his or her testimony during the deposition. While the tactic of over-designating experts to The trouble with this approach is that it’s risky. make it unclear which witnesses the defendant is reallyPreviewing your cross-examination during a deposition going to use is ethically questionable, the defense law-may help to prepare your opponent for trial. Even if you yer will defend his or her behavior by stating that he ormanage to destroy the expert completely, a crafty oppo- she is merely being “cautious” or “hasn’t yet decidednent can often find a way to designate another, setting which experts to use.”you back a step. Does the defense really hope that you will waste §1:234 Caution: Time Limits on your time and resources deposing every expert on Depositions the list? Obviously, this will also be costly for the defendant. More likely, the strategy is one part over- Some jurisdictions impose time limits on deposi- cautiousness, just like the defense lawyer said, and onetions. For example, the Oklahoma rules allow six hours part over-aggressiveness.

1-75 Deposition Procedures and Strategies §1:250 When it happens to you, you should meet the chal- • §4:311 Practice Tip: Using the Deposition tolenge head-on, keeping in mind that the defendant is Cross-Examine at Triallikely bluffing and does not want you to depose every- • §4:411 Practice Tip: Videotaping Expertone on the list. What should you do? If there’s still time, Depositionsyou can also over-designate experts yourself, which will • §7:201 Practice Tip: Deposing the “Unsophis-allow for some horse-trading with defense counsel as ticated” Expertyou both agree to whittle your lists to the experts you • §7:214 Practice Tip: Past Work for theeach really intend to use. Defendant If you cannot take this approach, send a letter to • §7:226 Practice Tip: The Expert’s Knowledgeyour opponent giving him or her an opportunity to and Understanding of Case-Related Factsremove some of the experts from the list, but in a set • §7:241 Practice Tip: Ask Simple Questions tonumber of days, after which you will seek intervention Identify Opinionsfrom the court. Include appropriate citations from your • §7:262 Practice Tip: Other Opinions From thejurisdiction showing that courts do not tolerate the strat- Expert Supporting Your Theory of the Caseegy of over-designation. Include cases dealing both with • §9:231 Practice Tip: Investigate the C.V.experts and with civility in litigation. Before the Deposition In the meantime, you should also ask for dates • §9:274 Practice Tip: Opinions the Expert Doeson which you can depose all the defendant’s experts. Not Plan to GiveSometimes just the nuisance of having to coordinate the • §9:280 Practice Tip: Neutralizing the Expertschedules will be enough to make the defendant change • §9:291 Practice Tip: Get the Expert’s Assent tohis or her tune, especially if the defense lawyer has beenkeeping in touch with the client, who may not agree to the Undisputable Facts Cross-references to complete sample expert deposi-expense of numerous depositions. tions can be found at §1:181 Sample Outlines. §1:237 Other Practice Tips Elsewhere in [§§1:238-1:249 Reserved] the Book VIII. ADVANCED DEPOSITION There are a number of other practice tips dealing TECHNIQUESwith expert depositions elsewhere in this book. Someexamples include: A. Managing the Witness • §2:315 Practice Tip: The Expert’s Knowledge §1:250 Get the Witness Acting Like a Normal Person and Understanding of Case-Related Facts • §2:327 Practice Tip: Testimony From the When you start a deposition, it is almost always the case that the witness—at least assuming he is represent- Expert Supporting Your Theory of the Case ed by a lawyer or has been prepared by one—is hesitant • §4:30 Practice Tip: Think About Experts From and tight-lipped. That is because he is thinking about the instructions his lawyer gave him just before the the Beginning deposition started: do nothing but answer the question • §4:181 Practice Tip: Five Keys for Deposing as restrictively as possible, then stop, and be sure never to volunteer anything. That’s the standard instruction to Experts in Products-Liability Cases witnesses. They almost all get it. • §4:222 Practice Tip: Establish the Role the Your goal is to get the witness to forget what his Defendant’s Lawyer Played in Assisting the lawyer has told him and to start acting like a normal Defendant’s Expert person again as soon as possible. It’s easier to do • §4:223 Practice Tip: How to Move Quickly than you might think. That’s because the lawyer has Through the Expert’s File instructed the witness to act in a way that isn’t natural. • §4:224 Practice Tip: Catch the Expert Unpre- In his natural habitat, the witness is a social creature. pared (by Finding out What He Hasn’t Read) He most likely responds to questions with more than • §4:234 Practice Tip: Asserting Control Over hesitant, mumbled one-word answers. He’s been doing it for years and years. It’s a habit that’s so ingrained in the Witness • §4:255 Practice Tip: What the Expert Did Not Do • §4:258 Practice Tip: E-Mails • §4:284 Practice Tip: Pinning Down the Expert • §4:303 Practice Tip: Obtain Assent to Learned Treatises

§1:251 Deposition Checklists and Strategies 1-76the witness’s personality that you can have him acting know and he can take a break. See how nice you are? Iflike a regular person again in no time. the witness’s water glass is empty, ask him if he wants a refill. If the sun is in his eyes, ask if he wants to switch How do you do it? Just ask some open-ended ques- places with you.tions. Here’s an example: “Tell me about the car colli-sion, Mr. Smith.” Mr. Smith is going to look confused, Simple acts of kindness like these will go a longbecause you have just asked him to violate every one of way to relieving some of the witness’s nervous tension.his lawyer’s instructions about how to answer a ques- This is a good thing, since nervous tension will get intion. So be helpful. Say to Mr. Smith, “Just start at the the way of your deposition goals by causing the witnessbeginning.” When he gives you a couple of sentences, to clam up or to forget important details or to adopt athen stops, ask him, “What happened next?” It’s another defensive, combative tone.open-ended question. Do this for a couple of minutesand everything the witness’s lawyer told him about What you want is for the witness to relax. Remem-not volunteering information will be out the window, a ber? You want him to act like a normal person. Act likedistant memory. one yourself for a while and see whathappens. Before moving on to the next point, consider how §1:251.1 Practice Tip: Improve Yourthis advice is also useful when you are on the other side Deposition Technique byof the table: when you are the lawyer who’s instructing Reviewing Your Transcriptsthe witness not to volunteer information. Now you knowthat no matter how often you say it, the witness is sure to If you want to make sure you are following goodforget it. What should you do? Once the deposition has deposition technique, review your deposition transcriptsstarted, don’t let yourself sit back and become a potted for questioning style as well as content. Ask yourselfplant. Instead, try to be active. If you are defending a these questions:deposition and the witness, your client, starts to answera question that wasn’t asked, speak up. • Are your questions short and to the point? (See §1:103.2 Practice Tip: The Anatomy of the “That’s not the question,” you can say. “You’ve Perfect Deposition Question);got to pay attention to what’s being asked. Now, listento the question.” • Are you overusing pronouns? (See §6:166.1 Practice Tip: When Taking Depositions, If the witness answers a question and then keeps Beware of Pronoun Soup);talking, same thing. Speak up: “You’ve answered thequestion, Betty. You can stop. Wait for the next one.” • Are you following your outline too closely? (See §1:144 Practice Tip: Asking Follow-Up There are many situations like this in which remem- Questions);bering to stay active can become important to your cli-ent’s well-being. Just remind your clients ahead of time • Are you taking too long to complete a simplethat you are the good guy, and if you happen to get all deposition? (See §1:264 Practice Tip: Makeover them during the deposition, it is only because you Your Depositions Shorter and §3:142 Prac-are trying to help. tice Tip: Know Why You Are Asking Each Question); §1:251 Make the Witness Feel at Home • When asking leading questions, are you trip- Open-ended questions are one way for you to get ping over negatives? (See §1:103.1 Practicewitnesses to open up. Another method for managing the Tip: Watch Out for Negatives in Leadingwitness is to make him feel comfortable. It is a well- Questions);known deposition strategy: playing nice even when you • When you obtain good testimony from theare not feeling nice. witness, are you putting the information into Even though it is not the way to go in every deposi- “impeachment nuggets”? (See §1:141 Practice Tip: Impeachment Nuggets);tion, there usually is no reason for you to be unfriendly,at least at the beginning of a deposition. It is at the • Are you allowing your opponent to makebeginning of the deposition that your kindness will have speaking objections? (See §1:175 Practice Tip:the greatest effect. That is when the witness is most Speaking Objections and How to Stop Them);nervous, and will be correspondingly most grateful that and,you are not starting out like the fire-breathing lawyershe has seen in movies and on TV. • Have you covered all the important topics? (See §1:53 Practice Tip: Ten Things to Cover In your introductory questions, you will remind in Every Deposition).the witness that if he wants to take a break, just let you

1-77 Deposition Procedures and Strategies §1:253 §1:252 Make Sure You Get the Real of that. It implies that the witness has a recollection of Answer some sort. That is where you will head next. Sometimes it is hard getting an answer out of a “What recollection do you have of the meeting?” you’ll ask.witness. You hone in on a particular issue, start to dig a Sometimes a witness will repeat the question backlittle deeper, and suddenly the witness is fidgeting and to you in a way that will put you on notice that you are not asking the question the right way.pausing and hedging. All of a sudden, he is not even Q: Were you at the meeting?trying to answer the questions you are asking. A: “No, I wasn’t at the meeting.” Q: You were present at the meeting on August 14, Did you see the hedging? The answer implies that 2005, weren’t you? you are asking the question the wrong way. Dig a little A: “I was traveling a whole lot that month.” deeper and you will learn that the witness showed up after the meeting had ended, but was there with all the It’s an answer to a question that wasn’t asked. So players just the same.you start again. Remember that if your question contains a factual assumption that is not quite right, witnesses can and will Q: Let me try again. Were you present at the meet- take advantage of it. Some of them, however, will not be able to keep themselves from tipping you off as they ing at August 14, 2005? are doing it. A: “You know, I don’t remember what I did §1:253 Know When to Give Up that day.” Here is a tip that’s easy to remember but very hard to put into practice. There are certain people that, despite Do you give up at this point? Of course not. You your best efforts at asking questions, just do not makesay, “Thanks for that, but you’re still not answering my good witnesses. Maybe they have legitimate memoryquestion. I’m going to ask again. . .” problems, maybe their personalities are so combative that they cannot focus on your questions, maybe they And so on. Does this sort of hedging by a witness are determined to waste your time with long, rambling answers. It is these types of difficult witnesses that reallyever work? Every once in a while, it probably does. You make you earn your money as a lawyer. But do you really need to be earning your moneyhave to keep asking the question you want answered on these witnesses? When it seems impossible to pry information out of a particular witness, think about giv-until the witness answers it. Ask again and again. Usu- ing up. If there is another way to get the information you want, there might not be any reason to continue. Itally by the fifth or six time, the witness will start getting is not necessarily an admission that you’ve lost and thethe idea: there’s nowhere to hide. Sooner or later, he is witness has won. To the contrary, it might just be good lawyering.going to have to answer your questions. This tip will not always work, especially for impor- tant witnesses who might be appearing at trial. In this What if the witness is a particularly good evader? case, you will have to keep going to find out what theIn my example, the witness’s hedging was obvious. witness’s story is. But sometimes, the tip works won-Sometimes it isn’t. One thing you can say about depo- ders. Before you torture yourself in a way that makes you want to torture the witness, ask yourself if theresition witnesses: many of them are basically honest, is a good reason for raising your voice and throwingespecially when they’re under oath. Maybe that’s why your notebook other than to satisfy your own bloodlust. Despite what you read in the newspapers, bloodlustwhen they are employing the tactic of answering while really has no place in the litigation process. Sometimes it is best just to give up.not answering the question, they feel a little guilty atsome level about giving you an answer that is not com-pletely correct. It is this guilt that leads many witnessesto do something that will tip you off to their hedging.It’s like the “tell” of the poker player. If you watch forthese tells—these unconscious signs and signals—youwill be put be on notice that there is more to the answerthan what the witness is giving you. What should you watch for? Some witnesses mighttip you off non-verbally—there might be a hesitationin their answer, perhaps a glance towards the opposinglawyer or at the table, maybe an inability to look you inthe eye when answering. The more obvious examples are verbal. Be on thelookout for answers that seem complete but really arenot. Here is an example: Q: Were you at the meeting? A: “I don’t have a specific recollection ofthat.” What is the word that clues you in to the fact thatthe witness’s answer is incomplete? It is the word “spe-cific,” of course: I don’t have a specific recollection

§1:254 Deposition Checklists and Strategies 1-78 §1:254 Practice Tip: How to Cross- • The lawyer was there for every one of my questions? Examine at Trial With Inconsistent • You knew what the lawsuit was about? Statements • I brought up this topic at the deposition? • I asked you under oath, page 119, line 23 (hold If a witness tries to change his deposition testimony up transcript, read answer)?at trial, you can use his deposition testimony to impeach • That is what you told me?him. This is called impeaching with a “prior inconsistent • That is what you told me on the day you werestatement.” called? To impeach a witness at trial with a prior incon- • That is what you told me on the day you weresistent statement, first make sure that trial testimony is thinking about it? • That is what you told me on the day when youdirectly contradicted by the deposition testimony. Then knew you were there to answer questions?lock the witness into the position to be impeached. If • That is what you told me with your lawyeryou are sure you will be able to impeach the witness, right beside you? • And that is different than what you just toldyou can ask additional questions to lock him in and our jury?make it perfectly clear to the jury what you are attempt- • At the deposition, you said you would tell theing to impeach: “Q: You are certain that XYZ?” truth? The next step is to “validate” the deposition testi- • That truth is different than what you saidmony in a way that will establish that the impeaching today? Partial Source: Bartimus, James, “Cross-Examinationvehicle is too important to simply explain away: of the Defendant and Defense Medical Expert” (2005 • Your deposition in this case was taken on (state ATLA summer convention). the date)? [§§1:255-1:259 Reserved] • You recall having your deposition taken? • A court reporter was present at your deposition? B. Asserting Control Over the Witness • And the court reporter took down all the ques- §1:260 Assert Your Right to Ask tions and answers? Questions • Your attorney was with you? • Sitting right next to you? Many lawyers forget that they have a huge advan- • Before the deposition, you swore to tell the tage over opposing counsel and the witness from the moment the deposition starts: they are asking the ques- truth? tions, and the deponent has no choice but to answer. It • Did you tell the truth at your deposition? does not matter how important the witness is. He might After validating the deposition, you are ready to be a world-renowned cardiologist; she might be the CEO of a Fortune 100 company. Whoever the witnessoffer the impeaching deposition testimony. Ask whether is, he or she has no choice but to answer your questions.the witness remembers being asked “the following ques-tion and giving the following answer,” and then read the It means the witness cannot ask you questions. Of course, witnesses will try to do it anyway, and you willquestion and answer. The witness is now impeached. get to assert control again in choosing how to answer. Also, the basic steps of impeachment are the same; You can be abrupt, like a lot of lawyers are, and say, “I’m not under oath today, you are, and you are here toyou can vary the questions and answers according to answer my questions.”your own personal style and the effect you want to You can also choose to answer the witness’s ques- tions if you want. The witness is merely confused aboutachieve. For example, here are some other questions something and is asking you a question for clarification. There is certainly no rule that says you cannot answer.that you can use to validate the deposition testimony and You can, but the point is, it is your choice: you assert control by making that choice.heighten the drama of the impeachment: • You previously gave answers at a deposition? • You received a subpoena to attend? • That’s a court order to come and testify? • You had to come to our office and testify under oath? • You prepared for the deposition ahead of time? • You knew it was going to happen before you arrived? • You were not caught by surprise? • You came with your lawyer? • The same lawyer who is with you today? • The same lawyer who has been with you since this case began?

1-79 Deposition Procedures and Strategies §1:262 §1:261 Control the Order of the witness’s answer, then changing course on the fly in Questioning order to follow up with another, unplanned question. You have to be flexible despite your outlines. If the Most lawyers come into a deposition with an out- witness suggests a tangent, take the tangent. The outlineline. That’s just good practice. It shows you’ve thought is merely your rough, pre-deposition approximation ofabout what you want to accomplish at some point before what might happen in the deposition. Do not be afraidshowing up and simply pulling a blank legal pad out of to throw the planning out the window once you actuallyyour briefcase. get started. What exactly constitutes an outline is a different §1:262 Control the Speed of thequestion. It might be merely a list of topics you want to Questioningcover. Or it might be more than that—an entire list ofquestions from start to finish. Some lawyers do that too. There is a lawyer who has a favorite trick he usesEither way, there’s a big risk in having an outline, which when he is deposing a doctor who is not cooperating.is thinking that you have to follow it. Normally that means the doctor is attempting to evade his questions by answering questions that were not You don’t have to follow your outline. In fact, you asked or perhaps trying to stall by throwing out techni-shouldn’t follow it. If you do, you are not asserting cal scientific terms or jargon that is off the point.control—you are just following a predetermined script,written before you knew any of the witness’s answers. One thing about doctors is, they are always in aWhat you have to do instead is keep your goals in mind hurry. Confronted with an uncooperative doctor, thisand then be flexible enough to mix it up once you have lawyer I know tells the doctor, “That’s fine, if you wantarrived at the deposition. to play that game, that’s what we’ll do, but we’re going to be sitting here another three hours.” Then the lawyer There’s no ironclad rule that you have to proceed retreats back and begins asking additional follow upchronologically in a deposition, especially if it is a depo- questions about matters that have already been coveredsition for discovery purposes that is not likely to ever be and left behind.read to a jury. You can proceed chronologically, but youalso assert control by mixing things up. After all, when The message is clear: if you’re going to waste mythe witness was being prepared by the other lawyer, he time, I’m going to waste yours. Doctors are usuallyprobably predicted how you were going to proceed, and quick to get the point. The lawyer has asserted controlhis prediction was probably right. Lawyers are usually over the deposition.very predictable. They begin with the standard introduc-tory questions, then they go into background questions You can also assert control over a deposition byabout education and work history, then they ask next controlling the speed of the questioning. As the lawyerabout how the witness prepared for the deposition: all who is taking the deposition, you control the clock. Youthose preliminaries that are often just throat-clearing can control it not only by slowing it down but also byfor the good stuff, that is, the hard questions the witness speeding it up. Assert control over a witness by askingreally doesn’t want to answer. questions so fast that the witness does not have time to guess where you are headed next. Because you have Why not start with the hard questions? There’s no the advantage of asking the questions, asking questionsbetter way to catch the witness off guard and assert con- quickly is easy to do. It is a useful way of keeping thetrol over a deposition right from the start. Start first with witness off guard.one of the important issues. Later, you can circle backto the preliminaries. Right from the start, you will have Sometimes witnesses think that they can control thethe witness feeling a little uncomfortable, in addition to clock. Every once in a while, you will get a witness whoquestioning what his own lawyer has told him about the attempts a strategy of rambling on about something youdeposition. That’s important, since one of your jobs in have not asked. You have a choice: you can let the wit-asking questions is to get the witness to quickly forget ness ramble in the hope that he will volunteer somethingall those instructions his lawyer gave him about not useful. Or you can interrupt and ask a new question. Somevolunteering information and sticking only to one word lawyers think that they are prohibited from interruptinganswers. the witness, but that rule does not apply if the witness is answering a question that was not asked. Assert control by One more caution about outlines. Especially if they stopping the witness and asking a new question.are extensive, you run the risk of becoming so fixatedon getting through the outline that you fail to ask good Finally, you can control the clock by doing nothingfollow-up questions. Good follow-up questions are at all. When you think you are finished, for example,what a deposition is all about. To become an effective you can take all the time you want to look through yourexaminer, you have to master the art of listening to the notes and make sure you are finished. Since you control

§1:263 Deposition Checklists and Strategies 1-80the clock, do not let anyone rush you. If your opposing is pending. It is up to you to know these distinctions andlawyer tries it, ignore him. It is a strategy that works differences.every time. Not only should you take the time to plan for your §1:262.1 Practice Tip: Asserting Control depositions, but you should also figure out what you are With the “Unresponsive” Objection going to do if things do not go as planned. You should never go into a deposition, for example, without know- When a witness won’t answer your question direct- ing the procedure for obtaining the court’s interventionly, you should keep on track and ask the question again, should that become necessary. It almost never is, butlike this: you have to know the phrases and magic words to put on the record if you should need to start down that road. Thanks for that, but you didn’t answer my question. Did you supervise Mrs. Smith? In addition to knowing the rules, you should also Once the witness realizes you aren’t giving up, be willing to critique your own performance after everyyou’ll usually get a proper answer. Sometimes, though, deposition. For your first hundred or so depositions, youyou’ll have to increase the pressure with an “unrespon- should keep a list with the name of the case and the wit-sive” objection. ness, and you should make notes of the things you have Mr. Witness, your answer is not responsive learned and the mistakes you have made. You should to my question. I move to strike your answer. also pay close attention to the opposing lawyer. What [Pause.] Now I’ll ask the question again. Did strategies does he or she employ? Always be open- you supervise Mrs. Smith? minded enough to learn from lawyers who are more It’s not uncommon that witnesses will become experienced than you.unnerved when you “move to strike” their answer. Someimmediately become more cooperative. Even if they §1:264 Practice Tip: Make Yourfeel confident about the deposition process in general Depositions Shorter(doctors, for example), your motion to strike leavesthem standing on uncertain ground, possibly feeling Many depositions often go on much longer than isas if they risk suffering some personal sanction if they really necessary. Here are some suggestions for keepingcontinue to refuse to answer. depositions short. Although the “nonresponsive” objection can alsobe useful at trial, keep in mind that the objection—in • Don’t cover the same ground twice. It seemstrial or at depositions—can only be used by the ques- to happen fairly often that towards the end oftioning lawyer. As explained by Joseph M. McLaughlin a deposition, the questioner returns to topicsin an article in The Litigation Manual: Trial— that have already been adequately covered. Non-responsiveness is a problem between the You can make sure this doesn’t happen to youquestioner and the witness. It is none of the adversary’s by following an outline that has some logicalbusiness. In other words, the only person who can move method of organization, even if it’s knownto strike a nonresponsive answer is the person who put only to you.the question. See “Objectionable Objections,” Joseph M. • If you don’t know why you’re asking a question,McLaughlin, The Litigation Manual: Trial (ABA 1999). why bother? Keeping depositions as short asSee also McCormick on Evidence, p. 52 at 127, n.6 possible requires some preparation andplanning.(3d ed. 1984); People v. Sweeney, 46 Ill. App. 3d 858, Before you begin, be sure to understand what361 N.E.2d 344 (1977) (“The statement could only be you hope to accomplish during the deposition,stricken on a request from the questioning counsel, the how the deposition fits into the overall discoveryonly one who has standing to object to the nonrespon- plan, and how the deposition will be used at trial.sive nature of the witness’ remark”). • Omit the throat-clearing questions and get to §1:263 Be Confident About Your Abilities the point. Often, lawyers circle around and around for hours before they finally get to the How do you obtain confidence in taking deposi- key questions for which they noticed up thetions? Experience helps, but all that is really necessary deposition in the first place. If this describesis knowing the rules and procedures that govern your you, refer back to the previous paragraph: Whydeposition. These rules and procedures will differ, are you asking all those throat-clearing ques-depending on the court and jurisdiction where the case tions? Sometimes it helps to engage in the fun practice of beginning a deposition smack in the middle with the most difficult questions first. This strategy is guaranteed to catch both the opposing lawyer and the witness off guard, and in certain situations, it can be very effective.

1-81 Deposition Procedures and Strategies §1:270 • Do you really need the deposition at all? • §6:166.1 Practice Tip: When Taking Here’s another great way of keeping deposi- tions short: cancel them if they’re not really Depositions, Beware of Pronoun Soup necessary. See §3.81 Practice Tip: Not Every • After reviewing these sections, see how they Potential Witness Needs to Be Deposed. are applied in a standard deposition outline Finally, know when to violate these rules. Thereare situations calling for very lengthy depositions, and such as the one contained in Chapter 2,if that’s the situation you’re in, so be it. But for the great “Deposition #1: Defendant Driver;”majority of depositions, two or three hours should be • Finally, review some of the real-life depo-sufficient. sition transcripts that appear in the book’s [§§1:265-1:269 Reserved] appendix.IX. FURTHER AIDS FOR READING If you want to learn about advanced deposition AND NAVIGATING THE BOOK techniques: A. Focusing on Particular Aspects of • First, read Section VIII of Chapter 1, titled Deposition Practice “Advanced Deposition Techniques.” This §1:270 How to Personalize the Book to Improve Your Depositions section includes information about manag- Deposition Checklists and Strategies was written ing witnesses and asserting control overwith different types of readers in mind, from beginnerto advanced. Although the book can be read straight witnesses;through, you can also mix and match the various sec- • Review some of the book’s more advancedtions to suit your own particular needs. practice tips, such as: Here are some of the different ways the book can • §1:141 Practice Tip: Impeachmentbe read selectively to hone your deposition skills inparticular areas: Nuggets • §1:142.1 Practice Tip: Assume the If you want to brush up on deposition basics: • First, read the opening sections of Chap- Witness Is Lying ter 1: Deposition Procedures and Strate- • §1:175 Practice Tip: Speaking Objec- gies, especially “II: Purposes and Uses of Depositions,” “III: Preparing for Deposi- tions and How to Stop Them tions,” and “IV: Typical Deposition Pro- • §1:217.1 Practice Tip: Preparing cedures;” • Don’t miss the information about some for Expert Depositions by Looking special situations, such as telephone depo- sitions and video depositions, which are Ahead to the Cross-Examination at included in “III: Preparing for Deposi- tions;” Trial • Review some of the book’s basic practice • §1:232.1 Practice Tip: The Use in tips, such as: • §1:101 Practice Tip: Always Ask Depositions of Tone of Voice and the Standard Preliminary Questions • §1:53 Practice Tip: Ten Things to Body Language Cover in Every Deposition • §1:264 Practice Tip: Make Your • §1:103.2 Practice Tip: The Anatomy of the Perfect Deposition Question Depositions Shorter • §3:161 Practice Tip: Open-Ended • §2:65 Practice Tip: Abstract Deposi- Questions to Set the Stage • §3:231 Practice Tip: What to Do at tions as You Go the End of the Deposition • §5:131.1 Practice Tip: Consider Ask- ing the Hardest Questions First • §6:163.1 Practice Tip: Don’t Give the Witness a Chance to “Dis-Remem- ber” an Event • Review the deposition outlines in a few of the book’s more complex cases, such as “Sample Deposition: Pharmaceutical Rep- resentative in a Product Liability Case,” from Chapter 4; • Finally, review some of the real-life depo- sition transcripts that appear in the book’s appendix. If you want to develop your skills for deposing experts: • First, read Section VII of Chapter 1, titled “Expert Depositions.” It covers all aspects of expert depositions, such as the goals of expert depositions, how to prepare for

§1:280 Deposition Checklists and Strategies 1-82 expert depositions, and advanced strategies [§§1:271-1:279 Reserved] for expert depositions; B. Navigating the Book’s Practice Tips • Read the book’s many practice tips per- §1:280 Practice Tips Organized by Theme taining to expert depositions. These appear A number of practice tips are contained throughout throughout the book and are listed in §1:295 this book. You can browse all the practice tips in the book’s main Table of Contents. You can also consult Practice Tips Organized by Theme; the list below, which groups some of the book’s practice • Review the many outlines for expert depo- tips by theme. sitions included in the book. You’ll find a Planning for the Deposition: list in §1:11 Specialized Deposition Out- • §1:52.1 Practice Tip: When Making a lines; Deposition Outline, Should You Write • Finally, review some of the real-life depo- Out Every Question? • §1:53 Practice Tip: Ten Things to Cover in sition transcripts that appear in the book’s Every Deposition appendix, which includes actual expert • §1:101 Practice Tip: Always Ask the Stan- depositions. dard Preliminary Questions • §1:102 Practice Tip: Mixing It UpIf you want to learn more about 30(b)(6) and • §1:111 Practice Tip: Can You “Wing It” at corporate-representative depositions: a Deposition? • First, review the outlines for corporate- • §1:264 Practice Tip: Make Your Deposi- representative depositions included in the tions Shorter • §5:282.1 Practice Tip: Using iPads at book, as follows: • Chapter 4, Products Liability, III. Depositions • §6:151.1 Practice Tip: What to Do With Sample Deposition: Corporate Desig- nee—Design and Testing; the Original Deposition • Chapter 7, Insurance Coverage Dis- • §6:254 Practice Tip: Depositions Out of putes, III. Sample Deposition: Corpo- Town • §9:124 Practice Tip: Fireworks? Save rate Designee in a Health Insurance Them for the End of the Deposition Denial Case; • §9:391 Practice Tip: Preparation and • Chapter 8, Consumer Protection and Length of Depositions Deceptive Trade Practices, III, Sample Asking Better Questions: Deposition: Corporate Designee in a • §1:103.1 Practice Tip: Watch Out for Consumer-Fraud Case; Negatives in Leading Questions • When reviewing the outlines, pay atten- • §1:103.2 Practice Tip: The Anatomy of tion to the introductory sections that dis- the Perfect Deposition Question • §1:141 Practice Tip: Impeachment Nug- cuss the timing, goals, and strategy of gets corporate-representative depositions; • §1:144 Practice Tip: Asking Follow-Up • Read the book’s practice tips pertaining to Questions corporate representative depositions, such • §1.251.1 Practice Tip: Improve Your as: Deposition Technique by Reviewing Your • §4:36 Practice Tip: Testing the Transcripts • §2:221.1 Practice Tip: The Four W’s Knowledge of Corporate Designees • §4:709 Practice Tip: How to Ask a Lead- • §4:162 Practice Tip: Who Does ing Question Know? • §6:166.1 Practice Tip: When Taking • §6:62 Practice Tip: Consider the Use of Depositions, Beware of Pronoun Soup a Corporate-Representative Deposition • §6:236 Practice Tip: Remember to Sum- on Electronic Discovery Issues marize • Finally, review the model deposition notic- • §6:250.1 Practice Tip: Types of Leading es for corporate representative depositions Questions (Forms 4:01, 4:02, 7:03, and 8:01).If you want to locate model forms: • Model forms appear at the end of each chapter and on Digital Access; • The easiest way to browse the forms is by reading the title of each form in the com- prehensive table of contents at the begin- ning of the book.

1-83 Deposition Procedures and Strategies §1:280 • §8:231 Practice Tip: Place Events in a • §9:312 Practice Tip: Distinguish Between Time Frame Custom and Legal Requirements • §9:342 Practice Tip: Question Length • §9:382 Practice Tip: One Fact at a Time • §9:362 Practice Tip: Discovering Conver- • §9:399 Practice Tip: Sometimes, You sations Have to Move On • §9:372 Practice Tip: To Keep Your Ques- • §9:432 Practice Tip: Learning What the tions Short, Listen to Your Questions Witness Doesn’t Know • §9:476 Practice Tip: Asking for a NumberObjections and Objecting: • §1:131 Practice Tip: “The Document Range Speaks for Itself” • §9:491 Practice Tip: Watch Out for Ambi- • §1:175 Practice Tip: Speaking Objections guity in the Witness’s Answers and How to Stop Them • §9:502 Practice Tip: Look Over the Docu- • §4:512 Practice Tip: Nasty Lawyer Tricks: ments Before Ending the Deposition Whispering Form Objections • §4:701 Practice Tip: Objecting During Preparing for Trial: • §1:122 Practice Tip: Motions in Limine Cross-Examination at a Preservation • §1:254 Practice Tip: How to Cross-Exam- Deposition ine at Trial With Inconsistent Statements • §8:122 Practice Tip: The “If You Know” • §2:323.1 Practice Tip: Planning Your Objection Trial Cross-Examination • §3:250.1 Practice Tip: Motivating YourselfDeposition Strategy: • §1:31 Practice Tip: Stay on the Offensive for Trial: Start a Trial Notebook Early • §1:84 Practice Tip: Use Exhibits Regu- • §3:254 Practice Tip: Are You Ready for larly During Video Depositions Trial? A Checklist • §1:147 Practice Tip: How to Spot Liars— • §3:262 Practice Tip: Who Should Read the Ask for the Story in Reverse Deposition at Trial? • §1:170.1 Practice Tip: Leading Questions • §4:595 Practice Tip: Testifying at Trial: in Federal Court Don’t Let Your Client Make These Disas- • §1:232.1 Practice Tip: The Use in Depo- trous Mistakes sitions of Tone of Voice and Body Lan- • §4:612 Practice Tip: Six Tips for Improv- guage Depositions ing Your Direct Examinations • §1:262.1 Practice Tip: Asserting Control • §4:625 Practice Tip: An Easy Way to Fix With the “Unresponsive” Objection a Leading Question • §3:142 Practice Tip: Know Why You Are • §4:652 Practice Tip: Using Your Trial Asking Each Question “Narrative” as a Principle of Selection • §3:322 Practice Tip: Know Your Opponent • §4:662 Practice Tip: “Please Tell the • §4:481 Practice Tip: The Preliminary Depo- Jury”: A Formula Guaranteed to Make sition Questions: Don’t Make a Speech • §4:491 Practice Tip: Dealing With the You Sound Pompous • §4:672 Practice Tip: Planning Your Direct Over-Prepared Witness • §4:522 Practice Tip: Common Deposition Examination by Considering Your Oppo- nent’s Cross-Examination Error: Repeating Yourself • §7:35 Practice Tip: Use Your Opponent’s • §5:131.1 Practice Tip: Consider Asking Interrogatory Answers at Trial the Hardest Questions First • §7:160.1 Practice Tip: A Method for Orga- • §5:133.1 Practice Tip: Arrive Early • §5:196 Practice Tip: Closing a Topic nizing a Trial Notebook • §6:211.1 Practice Tip: When the Witness • §7:163 Practice Tip: An Alternative Meth- Wants a Conference With His or Her od for Organizing a Trial Notebook Attorney Difficult Situations: • §6:232.1 Practice Tip: Asserting Control • §1:83 Practice Tip: Controlling Abusive by Remaining Confident Counsel With Video Depositions • §7:212.1 Practice Tip: Responding to Inci- • §5:112 Practice Tip: The Difficult Witness • §6:240.1 Practice Tip: Pursuing the Recal- vility in Litigation • §9:129.1 Practice Tip: Agreeing to Breaks citrant Witness • §8:171.1 Practice Tip: Asserting Control Suggested by Opposing Counsel by Repeating a Question

§1:280 Deposition Checklists and Strategies 1-84 • §8:212.1 Practice Tip: Witnesses Who • §4:252 Practice Tip: When and How Was Question Meanings of Words the Expert Retained • §4:255 Practice Tip: What the Expert DidElectronic Discovery: • §6:61 Practice Tip: Defining “Document” Not Do • §4:284 Practice Tip: Pinning Down the to Include Information in Electronic For- Expert mat • §4:383 Practice Tip: Always Check the • §6:62 Practice Tip: Consider the Use of a Web Corporate-Representative Deposition on • §4:411 Practice Tip: Videotaping Expert Electronic Discovery Issues Depositions • §6:73 Practice Tip: Discovery of E-Mails • §5:247.1 Practice Tip: Medical Terms for • §6:74 Practice Tip: Other Steps to Take the Court Reporter Where Electronic Information Is at Issue • §7:224.1 Practice Tip: Experts and Their • §6:75 Practice Tip: Advantages of Receiv- Communications ing Information in Electronic Format • §7:226 Practice Tip: The Expert’s Knowl- • §6:76 Practice Tip: Admissibility of edge and Understanding of Case-Related Employee E-Mails • §8:53 Practice Tip: Electronic Discovery Facts • §7:241 Practice Tip: Ask Simple Ques-Expert Depositions: • §1:193 Practice Tip: Attempting to Strike tions to Identify Opinions • §7:243.1 Practice Tip: Experts and Motion the Expert • §1:216 Practice Tip: Five Ways to Hit Practice • §7:262 Practice Tip: Other Opinions from Home Runs With an Expert’s CV • §1:216.1 Practice Tip: Pay Attention to the the Expert Supporting Your Theory of the Dates on the Expert’s CV Case • §1:217.1 Practice Tip: Preparing for • §9:220 Identifying the Expert’s File Mate- Expert Depositions by Looking Ahead to rials • §9:274 Practice Tip: Opinions the Expert the Cross-Examination at Trial • §1:219 Practice Tip: Privilege and Experts Does Not Plan to Give • §1:232 Practice Tip: “Why Is That?” and • §9:277.1 Practice Tip: Walking the Expert Other Follow-Up Questions That NeverFail Out on a Limb • §1:235 Practice Tip: What to Do When • §9:280 Practice Tip: Neutralizing the You Arrive for an Expert’s Deposition Expert • §1:236 Practice Tip: What to Do When the • §9:291 Practice Tip: Get the Expert’s Defendant Buries You With Experts Assent to Undisputable Facts • §2:272 Practice Tip: At Expert Deposi- Practice Tips Relating to the Substantive Law of tions, Set the Trap, Don’t Spring It • §2:290.1 Practice Tip: “What Is Your Role a Case: • §2:68 Practice Tip: How to Use Experts in in This Litigation?” • §2:327 Practice Tip: Testimony from the an Auto Case • §3:163.1 Practice Tip: Weather Reports in Expert Supporting Your Theory of the Ice and Snow Cases Case • §4:08 Practice Tip: Don’t Neglect an • §4:181 Practice Tip: Five Keys for Depos- Express Warranty Claim ing Experts in Products-Liability Cases • §5:11 Practice Tip: Explaining Medical • §4:222 Practice Tip: Establish the Role the Malpractice Cases to the Client Defendant’s Lawyer Played in Assisting • §6:46 Practice Tip: Screening Employ- the Defendant’s Expert • §4:223 Practice Tip: How to Move Quick- ment Cases ly Through the Expert’s File • §7:22 Practice Tip: What Is the Purpose of • §4:224 Practice Tip: Catch the Expert a Reservation of Rights Letter? Unprepared (by Finding Out What He • §8:03 Practice Tip: Does the Client’s Hasn’t Read) • §4:236 Practice Tip: Find Out About the Problem Involve Consumer Fraud? Authorities the Expert Consults