Chapter 12 Designing and Executing a Critical Witness Deposition

• Library: From the Trenches III: Pretrial Strategies for Success (ABA) (2018 Ed.)

Chapter 12 Designing and Executing a Critical Witness Deposition Raymond C. Lewis and John Jerry Glas

The most dangerous day for any trial lawyer is the day of a critical witness (discovery or trial perpetuation) deposition. You have not ramped-up for the deposition the way you would for trial. You have not combed through every medical record. You do not have the benefit of an opinion from your own expert. You do not have the benefit of a judge or jury to "feel" how the questioning is going. And, there's nobody there to help you. The partner you are working "with" either does not have time to help you or would laugh you out of the office if you asked for help with "depo prep."

No worries. We have been there. Truth be told, we are still there, learning more every day about designing and executing the perfect strategy for a critical witness deposition. But, what we have developed through deposition-and-error is a series of steps and decisions every lawyer should consider when deposing a critical witness. Right or wrong, it is our approach and it may help you.

First and foremost, do not sit down and start trying to compose the "perfect question" on the most important issue. Days will pass, seasons will change, and if, by some miracle, you word it perfectly, you are still not going to get the answer you want. Most deponents, especially expert witnesses, can see the "killer question" coming a mile away. So, save that step for last.

Pan back to the big picture. There is a finite number of "points" that the critical witness can make during the deposition, and you have to design and execute an effective strategy for addressing those points. Here are ten steps to complete when designing your overall deposition strategy:

1. Deponent Points. Make a list of every favorable and unfavorable fact, observation, memory, and opinion ("deponent points") the critical witness could offer at trial.
2. Definitions. Determine whether any deponent point or rebuttal point involves a key word that needs defining (especially for expert witnesses).
3. Assumptions. Determine whether a deponent point is based on an assumption and whether opposing counsel instructed the deponent to make that assumption.
4. Admissions. Identify every admission that the deponent must make based on the circumstances, the records, and prior statements by the deponent. When deposing an expert witness, always get the expert to admit they lack certain credentials and qualifications your expert possesses.
5. Rebuttal Points. Identify every fact or opinion you would want the jury to know about each favorable and unfavorable deponent point ("rebuttal points"). If necessary, add a column and write down every likely response or explanation ("responses") the deponent may offer to defend his or her original point, along with any rebuttal points you could use to combat those responses ("sur-rebuttal points").
6. Deposition Exhibits. Identify and make hard copies of every exhibit you would have to show the witness to support every favorable point, to establish every rebuttal point, and to counter likely responses. Decide the best way to present each exhibit during the deposition.
7. Demonstrative Exhibits. Prepare every demonstrative exhibits (timelines, charts, Styrofoam heads, models, etc.) that you will need to help jurors visualize favorable deponent points and rebuttal points.

Take a deep breath and clear your head. Now, get a soft drink, walk outside, call your mom, spouse, or significant other. Then, take the next three steps, which are the toughest.

8. Forks in the Road. Identify "forks in the road" where the witness could give one of two answers that would completely change your line of questioning. Be prepared for both answers in terms of deposition exhibits.
9. Decision Time. Decide whether to "raise or save" every rebuttal point during the deposition. Decide whether to "show or save" every document that undermines or rebuts the deponent's testimony. This is the eternal question of whether to show your hand during the deposition or wait for trial. 10. Make It Good TV. Decide whether to video the deposition and capture everything in real time. Decide how to make the deposition more entertaining and more memorable.

When we complete these steps, we may prepare a chart to remind us of the specific definitions, assumptions, admissions, rebuttal points, and exhibits to explore with the witness for each deponent point. For example, if an orthopedic surgeon opined that a motor vehicle accident (MVA) on January 2, 2017, caused the plaintiff's herniated disc and lower back pain (LBP), a single row of a critical witness chart may look like this:

DEPONENT POINTS	DEFINITIONS	ASSUMPTIONS	ADMISSIONS	REBUTTAL POINTS	EXHIBITS
1-2-17 MVA Likely Caused Herniated Disc at L5-S1 & LBP	(1) Herniated; (2) Bulging; (3) Likely; (4) Reasonable Degree of Medical Certainty	(1) No LBP before MVA; (2) Immediate LBP after MVA; (3) MRI shows a herniated disc	(1) Did not examine plaintiff before MVA; (2) Did not review ER records; (3) Not aware of any MRIs prior to MVA	(1) Plaintiff went to chiro for LBP month before MVA; (2) No LBP noted at ER; (3) Identical MRI in 2016; (4) Defense expert says only bulging	(1) Chiro record for 12-1-17; (2) ER records; (3) 2016 MRI image; (4) Defense expert report

When you finish these ten steps, you will be ready to start typing (or dictating, writing, chiseling in stone) your questions. And, yes, that is much easier said than done. Which is why the rest of this chapter is dedicated to explaining some of the more difficult steps, and to identifying some of the best tricks we have used or seen during critical witness depositions.

Demand Definitions from Lay and Expert Witnesses

There are many reasons to start a critical deposition by asking a witness, especially an expert witness, to define their terms. Start by asking a lay witness "what do you mean by . . ." or "what do you consider . . . ." Start by asking an expert witness to close their file and answer some "basic" or "general" questions. If this is your first time deposing the expert, or if the expert is affable, consider saying, "let's start by defining certain key terms for the jury," or "may I begin by asking you to explain what you mean by . . . ." And if you are already familiar with the expert, or the situation is already confrontational, consider skipping the pleasantries and diving straight into the first question. Nothing rattles an expert like a lawyer who begins a deposition with "what is your definition of. . . ."

Use Definitions to Attack the Credibility of Experts

The best way to undermine an expert's credibility, and to challenge whether they are qualified to offer an expert opinion, is to test that expert's ability to define basic terms or concepts. Nothing knocks experts off their expert pedestal faster than watching them struggle to define terms, and nothing destroys the "wow" factor like watching them become defensive and difficult.

In preparation for a 2010 wrongful death (product liability) jury trial, we deposed the elected coroner, who was eager to offer his opinion on whether a conducted electrical weapon could directly induce ventricular fibrillation, even though he had no expertise in the field of cardiac electrophysiology. Rather than asking "are you an expert in cardiac electrophysiology," we started his videotaped deposition by asking basic electrical questions. The elected coroner quickly became frustrated and defensive, as the following excerpts from the first 18 pages confirm:

Q. Am I correct in saying that you cannot define ampere for us?
A. No.
Q. Okay. What is your definition of ampere ?
A. I don't have one. I'm not going to try to do that.
Q. What is your definition of coulomb?
A. I'm not going to try to define—to give you a definition of coulomb either.
Q. What is your definition of ohm?
A. I'm not going to do that.
Q. What is Ohm's law?
A. I'm not prepared to answer electrical engineering questions.
Q. I mean, do you know what Ohm's law is?
A. No, I do not.
* * *
Q. Okay. What is your definition of electricity?
A. It's a—I don't—I don't have a specific definition of my own of electricity. Q. One volt represents the amount of force required to do what? A. I—I—I'm not competent to answer that question for you.

The coroner's inability to define basic electrical concepts was so pronounced that the Louisiana Second Circuit Court of Appeal limited his testimony in the parallel (manslaughter) prosecution, and the district attorney chose not to call him during the criminal trial, which resulted in a jury verdict of "not guilty."

Nail Down Definitions Underlying Expert Opinions

Many experts are moving targets, and definitions are the best way to nail down their opinions. Ask the orthopedic surgeon to define "herniated disc" and "bulging disc" before you let them open their file and see what the MRI or CT scan of this particular plaintiff showed. We have had an orthopedic surgeon define a "herniated disc" as a bulging disc that causes pain and base his diagnosis on the plaintiff's saying the pain started after the accident. We also have had mechanical...