In the past 10 years, the discovery practice in civil litigation has grown enormously. Courts and commentators have criticized this expanded discovery practice as becoming its own legal sub-industry. Depositions are a major part of this process. With settlements in civil cases at over 90 percent of the cases filed, many view the deposition process as merely a billing opportunity before the serious bargaining begins.
This column offers a critical and hopefully a fresh look at the deposition process, and how if done well, it can benefit the savvy litigator in the act of advocacy, in the best sense of that term. My questions are directed to Dennis R. Suplee of Schnader Harrison Segal & Lewis in Philadelphia, a recognized expert in depositions. He is the co-author of “The Deposition Handbook,” Fifth Edition, recently published by Aspen Law & Business.
Q: What will be the hot issues going forward in deposition practice?
A: One will be whether counsel may use video clips of deposition testimony in opening statements to the jury. Philadelphia attorneys Bob Mongeluzzi and David Kwass, among others, have been pushing the idea that counsel should be permitted to do so. The argument for allowing such use is that it’s like counsel reading a short excerpt of a deposition transcript, which most judges would allow. Indeed, some argue, playing an excerpt of a video deposition is more accurate because the jurors will hear the witness, not counsel, speaking his own words. Moreover, it has the benefit of helping jurors to pay attention, a desirable thing at every stage of a trial.
The counterargument is that the opening is supposed to be a description of the evidence to be presented, not the testimony itself. If the montage of deposition testimony is skillfully selected and presented, the opening can have more the feel of a damning “60 Minutes” episode than a description of evidence to come. My own view is that, for that reason, judges should not allow video depositions to be used in openings. It will be interested to see how things play out over the next several years.
Q: What are the hardest parts of deposition practice?
A: Preparing the witness to testify and then defending him at the deposition.
It’s much easier to be the interrogator than the defending lawyer. The interrogator can prepare for the deposition without any concern as to what somebody else on his side of the table might say. And, once the deposition starts, he controls completely what happens on his side of the table. He decides what questions to ask, how to word each question, what answers to pursue. And if he screws up a question, he can withdraw it and reword it.
By contrast, preparing a witness to testify is a very daunting task. You must educate him as to how a deposition works, review the principal fact issues on which he has knowledge, find out what he knows (and doesn’t), give him some idea of what questions are likely to be asked and how they may be worded, work with him to give the best truthful answer, and prepare him to stand his ground (assuming his answers have been truthful) if pressed by opposing counsel. Above all, you need to give the witness confidence that he can do a good job, even if there are harmful admissions he must make if asked.
If the defender has not done a thorough job of preparing the witness, it’s too late to make corrections at the deposition, particularly given the limitations in the rules on speaking objections and instructions not to answer.
Q: Can less experienced lawyers learn deposition practice from a book? Isn’t getting into the fray and taking and defending depositions the only way to learn?
A: While there’s no substitute for firsthand experience, I think the main value of the handbook is that it describes the real-life experiences of many litigators in a wide variety of circumstances. We can all learn from hearing about how some other litigator handled, well or badly, some dicey situation.
I don’t claim to have some unique insight into the process. About half of what’s in the handbook I learned from my colleagues at Schnader; my opponents taught me the other half, and that half was very expensive.
Q: Where do we stand when it comes to civility in deposition practice?
A: I like to think things are getting better. Although there’s a tendency to think fondly of “the good old days,” I know of one instance back then when a prominent lawyer in town threatened to turn the table on top of the interrogator if he did not move on to a new subject. The interrogator did not move on so the defending lawyer, true to his word, turned the table on top of him. The two later became fast friends. In another case, a senior lawyer in one of the city’s biggest firms threatened to give his young opponent “a knuckle sandwich” if he did not stop making speaking objections. When the younger lawyer filed a motion for sanctions, Judge Stanley Greenberg nipped things in the bud by calling both counsel in and directing that things be resolved through an apology and a handshake. …
I try to get along with my opponents and, generally speaking, they try to get along with me. If both sides strike that tone before the first deposition in the case starts, things should go smoothly. And, if you find yourself confronted with the utterly uncivil opponent who refuses to be reasonable, keep in mind Bernie Smalley’s advice that “it is turning the other cheek that will win the day.” I subscribe to that view; I wish I could say I had always lived up to it.
Q: A few years ago, the American College of Trial Lawyers issued a “Report of its Task Force on Discovery” that received considerable notice. What did it have to say about depositions?
A: The key message of the report was that the cost of discovery in a case should be commensurate with the amount at issue, a seemingly obvious point that judges and lawyers often lose sight of in the interest of pursuing liberal discovery on both sides. In concrete terms, it means, for example, that it should not cost the parties collectively [or, worse yet, individually] $90,000 to prepare and try a case where the amount at issue is $100,000. So, maybe the court should allow each side only, say, three depositions in a given case. The report urges that judges impose appropriate limits on discovery, including depositions, in each case from the get-go. It makes good sense and has caused a lot of judges and lawyers to rethink the process.
Q: What do you say about the criticism that depositions are a largely pointless exercise and just a way for lawyers to run the meter until they decide it’s time to settle the case and go on to the next?
A: There is some validity to the criticism. But, for the most part, I don’t think the problem is lawyers cynically exploiting the system and their clients; rather, even good lawyers can get too much caught up in the battle, in trying to do a good job for their clients and thereby losing perspective on whether each of these proposed depositions is really necessary.
That’s why the idea, championed by the American College of Trial Lawyers and others, of judges taking an active role early on and placing appropriate limits on the number of depositions to be taken makes so much sense.
I don’t think that the fact that the case settled means that there was no point to taking the depositions. It may be just the opposite, that is, it may be that taking the depositions, so that each side got a chance to see how the other’s witnesses would perform and what they had to say, is what brought about the settlement.
Q: What is the current status of Judge Robert S. Gawthrop III’s 1993 opinion in Hall v. Clifton?
A: People tend to focus on the judge’s ruling that counsel cannot confer with his client during his deposition and forget that there were two other significant parts to the opinion. The first was that counsel should not direct a witness not to answer a question unless counsel has objected to the question on the ground that the answer was protected by a privilege or a limitation on evidence directed by the court. The second was that counsel should not make objections or statements that might suggest an answer to the witness, and that objections should be made succinctly, stating the basis for the objection and nothing more. Those two restrictions were incorporated into the Federal Rules of Civil Procedure in 1993 and 2000. To the extent that Hall influenced those rule changes, it can be said to have had a significant impact on modern deposition practice.
As to the no-conference-during-the-deposition rule, although the rule was widely applauded when first announced, there has been a sea change in thinking since then. For example, one prominent law school professor who wrote an article extolling Hall when it first appeared, but then wrote another in 2006 saying that she had reversed her view. Comparatively few judges follow that part of Hall today. Perhaps it might be said that, with the passage of time, Judge [R. Stanton] Wettick’s view in Acri [v. Golden Triangle Management Acceptance Co.] has largely prevailed.
Q: Any thoughts about expert depositions?
A: I’m happy to see that my opponent will be deposing my expert. More often than not, I think I learn more than my opponent does. That is, my expert and I typically walk away with a very good idea as to the lines of attack that my opponent will be taking at trial. And there are typically things that can be done to blunt those lines of attack if you know they are coming.
Conversely, even assuming I’m in federal court where there’s no need for leave of court to depose the other side’s expert, my inclination is to forgo the expert’s deposition (because I don’t want to educate my opponent or her expert as to what my likely lines of cross-examination will be at trial) unless there are compelling reasons to take the deposition.
Q: What’s your experience with depositions in arbitration, where you have no right to depositions without agreement of counsel or order of the panel?
A: Almost always counsel can work it out. I recently completed a very complicated commercial case with tens of millions of dollars at stake in which my opponent and I agreed that each side would get four one-day fact depositions. That worked out fine. In that kind of litigation, it is typically the internal documents that tell the story.
Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of “Eastern District Federal Practice Rules, Annotated” (Gann Law Books). He can be contacted by e-mail at [email protected]. Vaira has a blog devoted entirelyto Eastern District practice at http://petervaira.wordpress.com
