Take yourself back a moment to 1978. Gas was 63 cents a gallon, the Dow was 805, the Camp David Accord was signed hopefully bringing an end to the troubles in the Middle East, the television series “Dallas” premiered, and I recorded and played back my first, and among the very first video depositions in Texas.
The deponent was Ed Stinnette. He was suffering from a rare cancer caused by medications he was given as a child. His lawyer was afraid that he would not live until his case could be heard. Ed passed away before trial. The jury was riveted by the recording of his testimony.
My next video deposition was of a back doctor. The deposition was three and a half hours long. We played it back in its entirety. Half the jury slept through half the deposition; the rest slept through most of it. After a couple more experiences like that one, I started asking the attorneys if they had considered editing.
The use of videotaped depositions was so new that there were no rules governing how that would be accomplished. Most rules only stated that a video deposition could be used “in the same manner as a written transcript”. In the vernacular, “edited” meant “changed”. The best that most attorneys wanted to do was to play back only their direct or cross-examination, again in its entirety. Post-production editing was out of the question.
We’ve come a long way since then, but still face the same problem. How do you keep the attention of the finder of fact during the playback of a deposition? The subject has been studied by media experts, social scientists, and trial consultants. With their studies and Haynes and Boones Trial Services consultants, we’ll explore the possibilities.
First make perfect rice.
I asked a Japanese chef how he made such great sushi. He said “First, make perfect rice.” It may sound like an over- simplification to tell you to start by taking a good deposition, but it is axiomatic that the best final product starts with the best ingredients. Everyone will have their own style of taking a deposition but there are certain characteristics that most will share, and some common practices that make the ultimate presentation ineffective.
I discussed with a HaynesBoone litigation partner with significant experience what you needed to know, and do, to have that perfect rice.
First, ask yourself “Why are you taking the deposition?”
Partner. Before any other consideration you need to know the purpose of the deposition. If you don’t establish that before you start, all you will have is a bunch of pages showing an exercise in wanderlust.
Ric. By “purpose”, you mean questions like is the case likely to go to trial? Will this witness be live at trial, or is the deposition likely to be your only opportunity for examination? Do you have an idea of what the witness has to say or is this pure discovery?
Partner. Those are some of the questions to ask of yourself. Also, thought should be given as to whether this is your witness or theirs? Are you going to use this deposition for trial, for settlement, or possibly an MSJ? Each of those demands a different approach. The essential question you need to ask is “What do you hope to accomplish?”
Ric. For today, let’s say you intend to use this in trial. Among all the depositions I’ve examined, it seems they fall into a couple of main categories. They come across as either an interrogation or a dialogue. The nature of a recorded deposition to be played back for the factfinder is that you are only playing back portions of what was recorded. Does that require a particular thinking while you are taking the deposition?
Partner. Neither the dialogue nor the interrogation form of a deposition gives you exactly what you want. You’ll be playing short clips, sound bites. If you are cross examining and the witness will be in trial, you need those sound bites for impeachment. You can’t impeach one answer with two pages of explanation and 5 questions. That sound bite applies to a direct examination presentation too. You want to move smoothly from one thought to the next without multiple pages of dialogue that isn’t terribly focused.
Ric. Studies show that the factfinder is probably only going to recall small bits of the video you play. The more time you spend laying the predicate before you get to the salient facts, the more likely they will lose focus. Sam Baxter once explained to me that a trial lawyer wants to tell the jury everything he knows, but all the jury wants to know is “Who shot Bob?”
Partner. No argument with Sam but the predicate facts may be important for the testimony to be admissible so thought needs to be given as to how to pay the predicate succinctly.
How are you taking the deposition?
Partner. There are different types of depositions, fact witness, expert witness, discovery, and they can be taken in direct or cross. We can’t go into all the different techniques in this forum but there are some common guidelines. Whether it is an expert, your guy, their guy hostile or friendly you want to establish the perimeter of a person’s knowledge, what they know, and what they don’t know. That way you’ve got them in a corral. Then you approach specific points that either will support your case or prevent them from being effective in the case against you. In trial then you can keep them in the corral with the gate locked.
Ric. We’ve been talking about what you want to get from the witness. What can you tell me about, not just what you want to accomplish but, how you go about it.
Partner. Beyond, hopefully, skillful questions, when I am asking questions, I’m mindful of the fact that I’m on stage too. While the jury can’t see me, they hear my voice. They hear whether or not I’m conducting myself as a professional. Courtesy and a respectful attitude are always important components when you are taking a deposition. That is especially important with a hostile witness. If the factfinder sees hostility or obfuscation from the witness they are a little more forgiving when you drill down a little harder. Sometimes your questions can be more telling than the answers.
Ric. What about your dealings with opposing counsel, particularly one that is disrespectful or discourteous?
Partner. Usually if I hear that kind of attitude it is a pretty clear signal that I’m getting somewhere. It means they are trying to throw me off my stride. If I lose my bearing with them it will probably show in my next question to the witness. When the deposition is edited the objections and colloquy disappear. What remains, and what the jury hears is my changed attitude. The audience will respond to that too.
Ric. I want to touch on some of the mechanics now. When you prepare for a deposition do you go in with an outline or with a list of questions?
Partner. Yes, and yes. With direct examination of a witness I am working with it is going to be a structured outline. I want to go from a to b to c, walking through the story. If it’s a hostile witness I have a topical outline to build that corral we were talking about earlier. In fact I write and rewrite that outline until I know it inside out. I keep it with me to make sure I don’t miss anything. There are always going to be some technical, or technically worded questions that have to come out right when I ask them. Those I’ll write out. If I’m working with documents, I’ll have a marked up copy so I’ll be able to zero in on just what I need to ask.
Ric. Both of those are preferable to what you described earlier as an exercise in wanderlust. I’ve seen problems with both approaches. An outline may give you a false sense of completeness. Like, “I’ve checked off every jot and tittle, so I’m done.” With a list of questions I’ve seen particularly younger attorneys be so focused on moving from one question in their logical progression to the next, that they forget to listen and respond to the answers.
Partner. Both of those are examples of not being prepared. You can’t over-prepare for the deposition. As I said I try to know what I need to get. If something comes up that is outside the corral, some maverick fact, I will expand the outline to rope it in. If I ask a question and the answer leads me someplace else, I’ll follow that, until I can circle back around.
Ric. Thank you Sir. We’ve only touched on the high points of taking the deposition. Maybe we can come back to this discussion again. I guess the next question is now that we’ve got the basic material, how do we make it interesting.
Partner. That is where I have come to rely on you and your team. The trial attorneys will go through the deposition and cull out what we need to put before the court. I will know what I want, and what is important to the case. This is where I start asking you questions.
Ric. And we’re getting close to the bottom of the page. I guess we’ll pick this up in the next installment.