Discovery Depositions

• Author: Leonard Bucklin
• Pages: 137-192

40-1 (Rev. 6, 6/10)

40. Discovery Depositions

This chapter is devoted to discovery deposi-

tion 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,

e.g., Chapter 47 (Bodily Injury), Chapter 60

(Motor Vehicle Accidents), Chapter 61 (Premises

Liability), Chapter 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 information

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 deposition. 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 together 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) deposition

checklist for drivers, that “building block”

form also works for deposing passengers or

other witnesses. Therefore, a defense attorney

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, construction, 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 con-

struction defect, but not bodily injury, you

start with the same premises liability checklist

(which addresses design, construction, super-

vision, and control) as you used in the prem-

ises 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 exam-

ple, in preparing the defendant for his/her

deposition in a premises case, you use the lia-

bility checklist to review probable questions

with your defendant client, but do not need

(hence do not add) the bodily injury building

block checklist in your depo prep session.

L TIP. When you begin building a new

trial notebook, immediately place behind

the “Their Witnesses” tab divider one

copy of the liability checklist for the dep-

ositions 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 per-

sonal injuries involved, also insert a BI

deposition checklist. Again you only need

one copy, no matter in how many deposi-

tions 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 dep-

osition checklists will help alert you to

facts or law you need to investigate. Later,

when you start to build a deposition out-

line for a particular deponent, the build-

ing 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 wit-

ness 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 wit-

ness, 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 deposition 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 sub-

ject 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 depo-

sition checklist, think about the settlement

negotiations that are going to occur later in the

case. Most cases are settled, not tried. There-

fore, 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 ques-

tion which ordinarily does not produce an

admissible answer but which has emotional

value on the settlement negotiation. (For exam-

ple: by defense counsel, “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 coun-

sel, “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?

LTIP.You’ll be surprised how often an

end-with question that you thought

would only have impact on settlement

§40.2 BUILDING TRIAL NOTEBOOKS 40-2

produces 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 hesitate to ask an end-with ques-

tion that has emotional value for settle-

ment even though the witness is not

legally qualified to give an answer.

Sometimes you want your end-with ques-

tions to demonstrate to the adverse negotiator

the nature of the witness (e.g., “a good man,” or

“will fall apart at trial,” or “tells about her hus-

band with tears in her eyes that will affect the

jury”). If that is what you want to demonstrate,

the final questions you ask will be geared to

bringing that quality to the fore. On the other

hand, instead of the nature of the witness, you

may want to pound home the theme of your

story. If that is what you want to demonstrate,

the final question you ask will be geared to

bring that theme to the fore. For example: “You

are telling us that no one — absolutely no one

— in the Ajax Company warned you there was

going to be an explosion?”

Your pre-planned “end-with” block of ques-

tions is not the only choice of the endings you

can consider using during the deposition. If the

deponent is a friendly witness and your adver-

sary is taking the deposition, sometimes the

most effective end-with question set is not to

cover the same ground your adversary has

dealt with in the deposition. Instead, use the

last few questions to make a new, meaningful

point with which you know the friendly wit-

ness will agree (e.g., “Fred, Mr. Jamieson did

not ask you about the brakes on the car. Would

you tell us why you know his client’s car brakes

were not working properly?”).

When the deposed witness is hostile or oth-

erwise uncontrollable, you may not want to

gamble with an end-with block about some-

thing not previously covered in the deposition.

In such a situation, you may decide on the spot

not to use your pre-planned final building

block. Or suppose, more likely, that before the

deposition you really do not know what should

be your final point. In those instances, you need

a safe, tried, and true “standard best ending.”

A standard best ending for most deposi-

tions.

For a standard method of “finishing the dep-

osition on a strong note,” you can use the fol-

lowing short building block. It is an easy build-

ing block to construct.

1. During the deposition, constantly

assess whether what the deponent has

just said is possibly the best item

(favoring you) in the deposition.

2. Make a note of it.

3. At the end of the deposition — if you

do not have a new better point to inject

— ask a few more questions about the

one best point already made.

Step 1, constantly assess, is just that. During

the deposition, you constantly must assess

whether what the deponent has just said is pos-

sibly the best item in the deposition. What has

just been said might not be great, but is it the

most helpful statement this witness has made

so far in the deposition? If it is, you want to end

the deposition with it. If you haven’t heard any-

thing in the deposition that will help you, still

almost always you can ask a question that

repeats a minor point that does not affirma-

tively hurt your version of the facts (e.g., “There

was a stop sign at that corner?” or, “John Smith

was hurt in the car crash, wasn’t he?”).

If the witness is friendly to you, you still have

to constantly assess whether what has just been

said by the witness would be a better “end-

with” than your previously planned final build-

ing block. Indeed, you must be alert about what

the adverse attorney has not asked. Whether the

adverse attorney’s failure to inquire about a

point is intentional or unintentional, consider

the value to your casting aside your previous

assessment of what should be repeated as your

“end-with” and instead asking the friendly wit-

ness about the factual or opinion point which

was not inquired about by your adversary.

Step 2, to make a note as you go along in the

deposition, seems obvious. If you do not make

a note of any testimony that has occurred dur-

ing the deposition that might be your “best

item from this witness,” you are not going to

be able to use it quickly, and be able to state it

40-3 DISCOVERY DEPOSITIONS §40.2

(Rev. 6, 6/10)