Discovery Depositions

• Author: Leonard Bucklin
• Pages: 436-468

Building

Trial Notebooks

Leonard Bucklin

DISCOVERY COLLECTION

James’ Best Materials

40-1

Chapter 40

Discovery Depositions

§40.1 Time-Saving Deposition Checklists: Building Blocks

§40.2 The Final Building Block

§40.2.01 Use the “Always Ask Block” of Deposition Questions

§40.2.02 Form: The “Always Ask Block” of Deposition Questions

§40.3 Deposition Objections — Valid and Invalid

§40.4 “Now Answer the Question!”

§40.5 Can You Talk to Your Witness During the Deposition?

§40.6 Those “Usual Preliminary Deposition Questions”

§40.7 Six Common Mistakes That Lawyers Make During a Deposition (and How to Prevent Them)

§40.8 Using Electronic Transcripts of Depositions

§40.9 Take a Deposition of the Organization (Not One Employee)

§40.10 Three Elements to Place in Every Notice of Taking the Deposition of an Organization

§40.11 Form: Notice of Plaintiff’s Deposition of Corporate Defendant

§40.12 [Reserved]

§40.13 [Reserved]

§40.14 Assets Examination Questions

§40.15 Deposition Checklist: Assets Examination Questions

§40.16 Form: Add-On to Notice of Deposition if Asking Questions About Assets

§40.17 Introducing Exhibits at Depositions; Asking for Specifics of Objections

§40.18 Changing the Deposition Answers of Your Witness

§40.1 DISCOVERY COLLECTION 40-2

This section is devoted to discovery deposition tips, strategies,

and forms that are applicable to most litigation liability issues.

Checklists, forms, and outlines that are devoted specifically to one

type of litigation issue are found in the applicable specific chapters

throughout this text and online, e.g., Section 47 (Bodily Injury), Sec-

tion 60 (Motor Vehicle Accidents), Section 61 (Premises Liability),

Section 62 (Liquor Liability).

§40.1 Time-Saving Deposition Checklists:

Building Blocks

Deposition checklists may save you more time over the years

than any other litigation tool. That is because the categories of infor-

mation you needed in a case in the past are much the same categories

of information you will need for a similar case in the future. It makes

sense to have standard checklists for the questions to ask in a depo-

sition. When you finish a case and are closing the file, think about

future cases, and avoid reinventing the wheel next year.

Use your form deposition checklists as “building blocks.” By

“building blocks,” I mean units, devoted to a liability issue or type

of witness or type of damage, that can be joined together as needed.

That’s better than having fewer but longer checklists that you always

have to edit severely. The building block method will take you less

time, and is more efficient in targeting the deponent with the right

questions. Using the building block method allows you to pull to-

gether a tailored checklist for a witness’s deposition.

This Power Litigation volume of Building Trial Notebooks has

checklists that fit the building block method. These building block

checklists can be configured according to the deponent and your

needs. As we point out in our motor vehicle accident (MVA) deposi-

tion checklist for drivers, that “building block” form also works for

deposing passengers or other witnesses. Therefore, a defense attor-

ney deposing a witness can use the MVA driver deposition checklist

as it stands, without the BI building block. For taking the deposition

of the injured plaintiff, combine the driver checklist with the bodily

injuries (BI) checklist. If it is a bodily injury slip and fall case, you

start with the deposition checklist addressing premises design, con-

struction, and control, then add the BI checklist, the same one you

used in your MVA case. On the other hand, if the case is a contract

dispute that is concerned with a construction defect, but not bodily

injury, you start with the same premises liability checklist (which

addresses design, construction, supervision, and control) as you used

in the premises BI case, but do not add the BI checklist. As case after

case goes by, you will become so accustomed to your building block

deposition checklists that they will become old friends that you can

use without much review before the actual deposition starts.

These same building block checklists (for building the questions

you will ask deponents) also can be used to prepare your own client

and witnesses for their depositions. The building blocks efficiently

give you advance warning of opposing counsel’s likely questions.

For example, in preparing the defendant for his/her deposition in a

premises case, you use the liability checklist to review probable ques-

tions with your defendant client, but do not need (hence do not add)

the bodily injury building block checklist in your depo prep session.

TIP. When you begin building a new trial notebook, im-

mediately place behind the Their Witnesses tab divider one

copy of the liability checklist for the depositions of the fact

adverse witnesses. For example, in a motor vehicle case,

insert the MVA checklist for the deposition of a driver or

passenger. You only need one copy, no matter in how many

depositions it will be used. Likewise if there are personal inju-

ries involved, also insert a BI deposition checklist. Again you

only need one copy, no matter in how many depositions it will

be used. If the adverse driver is a trucker, also insert one copy

of the checklist for establishing the control of the company

employing the trucker, even though you will use the same

“control issues” checklist in several depositions. Right from

the start of the case, these deposition checklists will help alert

you to facts or law you need to investigate. Later, when you

start to build a deposition outline for a particular deponent,

the building block outlines are right there for you. If you have

your trial notebook you have what you need, no matter where

you are or how quickly you have to prepare for the deposition.

§40.2 The Final Building Block

What a jury hears first and last from a witness are likely to be

the most remembered parts of the testimony. Always assume that

the entire deposition transcript will be read into evidence (or the

entire deposition video played). That means the last testimony taken

in the deposition will be the last thing the jury hears. Even if only

parts of the deposition are used in the trial, the judge may require

you to “Start at the first page and go forward in page order of the

transcript, without skipping back and forth.” If the deponent is an

adverse witness, you do not want the deposition to end with the other

side’s story as a conclusion. Ending depositions on a high note for

your side is how you want the transcript to end.

There is no rule that says the order of your questions at a depo-

sition has to be logical or follow a particular order. Your questions

at the end of the deposition, after the other side and you have each

asked questions, do not have to be limited to the scope of what was

asked before. Nor do your questions have to be designed to elicit

admissible evidence; they only have to be colorable attempts to find

something that will lead you later to admissible evidence.

In short, you have not only the right, but the opportunity, to pick

and choose the subject and the questions with which you end your

questioning of the deponent. Don’t waste the opportunity.

Design your own “end-with” questions for each specific witness.

After you know who is being deposed, and you have finished

preparing your main deposition checklist, think about the settlement

negotiations that are going to occur later in the case. Most cases are

settled, not tried. Therefore, it is to your advantage that you end with

something that will affect settlement price favorably (or at least be

neutral on its effect on the settlement price.) Those are your “end-

with” questions, your final building blocks as you put together your

deposition checklist for the job at hand.

The settlement impact of the testimony of this particular witness

is a specific target that is easier for most attorneys to focus on than

the trial impact of the testimony. Trial is far away and complicated

by a number of “what if’s” that deter thinking quickly about the

true impact of the testimony of this one witness. Almost inevitably,

when you do get to trial, you will find that having built the end of

the deposition for settlement impact, you also built a favorable end

of the deposition for trial use.

For impact, you may want to ask a final question which ordinari-

ly does not produce an admissible answer but which has emotional

value on the settlement negotiation. (For example: by defense coun-

sel, “You said plaintiff Joseph walked into the dark room. Joseph

knew he was walking in the dark, not even looking out for himself,

didn’t he?”; by plaintiff’s counsel, “You said Joseph’s head injury

was visible to you right at the accident site. You knew Joseph was

hurt badly and in pain, didn’t you?

TIP. You’ll be surprised how often an end-with question

that you thought would only have impact on settlement pro-

duces evidence admissible at trial. Frequently your adversary

is starting to pack up his/her briefcase and doesn’t think it

worth the effort to object to end-with questions like the above.

Failure to object in the deposition to questions which have no

adequate foundation, or are otherwise objectionable because

of form, is a waiver of the objection at trial. So don’t hesi-

tate to ask an end-with question that has emotional value for

settlement even though the witness is not legally qualified to

give an answer.