The Deposition
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 Deposition testimony under oath not only protects the litigants from trial by ambush but also elicits powerful testimonial evidence which frequently determines the outcome of any case. The decision to push a case to trial or to settle a case is typically made after the parties (and their expert witnesses) have been deposed.
Mr. Wolfstone is well versed in trial law and has personally conducted a multitude of discovery depositions since he was first admitted to the practice of law in 1972.
Depositions preserve testimony when parties or witnesses may not survive (or otherwise who may become unavailable) prior to the trial date; help to support or defend Summary Judgment motions; lock in truthful testimony for witnesses who might be tempted to change or "improve" their story as the litigation progresses; help to lay a foundation to support or undermine the credibility of witnesses or parties; clarify the meaning or significance of documents; and serve to educate claims adjusters about the wisdom of settlement.
A conscientious lawyer will always prepare his client in advance of the deposition and will always conduct a post mortem after his client's deposition. Each and every deponent is instructed to tell the truth and not to speculate, to listen carefully to the questions, and to answer questions concisely without volunteering information. The attorney-client privilege and work-product doctrine need careful explanation when the client is prepared to testify.
A Real Curve Ball
At the beginning of the deposition (and after his or her identification), the deponent will probably be asked, "Are you represented by counsel today?" and "Did you meet with your lawyer before coming to this deposition today?" and "What documents did you review?" Nota Bene: Here is a real curve ball that inexperienced lawyers don't see coming until it has crossed the plate. The examining lawyer asks about documents reviewed in preparation for the deposition. The questions about preparation become more specific and more detailed. Then the examining lawyer requests production of the identified documents. Indeed, these documents are now identified as documents that "refreshed the witness's recollection." Take a look at FRE 612 and FRCP 30(c). Your adverse party is entitled to have the "writing" (which had been used to refresh memory) produced for inspection and cross examination.
The Catchall Question
The catchall question must be answered truthfully but carefully since it might be intended (1) to stimulate an impulsive and loquacious deponent to talk incessantly and (2) to close doors. The lawyer who is conducting the deposition may ask broad catchall questions that are designed to open up a dialogue between the lawyer and the deponent. However, a thoughtful witness is also entitled to ask for clarification when confronted with a catchall question: "Please be more specific. Please give me the context. Please give me the date, time, place and circumstance." One of the lawyer's early questions might be: "You were there so just tell me the whole story from beginning to end?" Similarly, near the end of the deposition, the lawyer may ask: "Is there anything else you haven't told me?" If the witness has additional information responsive to the question, s/he must answer accordingly. However, the witness should be wary of closing the door by simply answering that s/he doesn't know. Of course, if s/he is certain that s/he doesn't have any other or further information or observations, then it may be appropriate to close the door. Prepare the witness by stressing that "your duty to testify truthfully does not require you to volunteer information." It is permissible to ask the interragator for specific questions; it is permissible to say that you will supplement your answer later if something is discovered after the deposition; and it is permissible to qualify your testimony by answering to the best of your recollection. Advice for the attorney who is interrogating the deponent: If you frame a question with, "Do you recall ..." then don't be surprised if the deponent answers, "Gee, I don't recall."
Counsel, You Are Coaching
Coaching a witness is not permitted during a deposition, however, opposing counsel might attempt coaching with speaking objections or clarifying objections. Also, the interjection "if you know" or "don't speculate" or "you may answer if you understand the question" during questioning can suggest an answer or just impede the flow of the deposition. Lawyer/witness conferences or so-called "off the record" conferences can also constitute improper coaching.
In a seminal case, Hall v. Clifton Precision, 150 F.R.D. 525, 530 (E.D. Pa. 1993), Judge Gawthrop held that lawyers are not permitted to state on the record their interpretations of questions because the lawyer's interpretations are irrelevant and often suggest a desired answer. If the witness needs interpretation, the witness, not her lawyer, should ask for interpretation.
Don't Answer That Question
Perphaps the most powerful weapon that an attorney can utilize at a deposition is to "instruct my client not to answer the question." The lawyer who improperly resorts to that weapon can face harsh sanctions if a judge finds that s/he has abused this instruction (e.g., imposing costs for reconvening the deposition, awarding damages, vacating a Summary Judgment, or striking the Answer to the Complaint and Declaring a Default). Indeed, there are only three circumstances where an instruction not to answer may be given. Afterall, the deposition examination is required to proceed subject to any objection which the trial court judge or motion calender judge or perhaps a court commissioner can rule upon after the deposition. FRCP 30(c)(2).
According to FRCP 30(c)(2), the only three circumstances when an instruction not to answer may be given are: (1) to preserve a privilege, (2) to enforce a limitation directed by the court, or (3) to present a motion under FRCP 30(d)(3) for a protective order against an examination conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. While the Rules previously specified that instructions not to answer could be given to enforce limitations "on evidence," the Rules were amended in 2000 to delete references to "evidence." Once again, you are well advised to review the advisory committee's notes with the 2000 amendments commenting on what is now FRCP 30(c)(2).
A milder form of that abusive weapon can be, "Asked and answered" coupled with a refusal to answer the pending question. In fact, there is no rule of evidence which prohibits asking the same question more than once. This objection would only be valid when the same question is asked so often that it becomes cumulative, burdensome or repititious to the point that the witness is being harassed. See FRE 403, FRE 611(a)(2)-(3), FRCP 26(b)(1)-(2), 26(c).
When The Tide Goes Out,
You See Who Is Swimming Naked
Professor Henry L. Hecht, Berkeley Law School, who also served as a Special Prosecutor on the Watergate Special Prosecution Team (1973-1976), has made short shrift of several form objections which often turn out to have little or no validity:
The Question is Leading
The Question is Ambiguous
The Question is Argumentative
The Question calls for Speculation
The Question is Compound or Complex
The Question is Vague or Unintelligible
The Question calls for a Narrative Response
The Question has been Asked and Answered
The Question Assumes Facts Not in Evidence
The Question Mischaracterizes Prior Testimony
Mr. Wolfstone would be happy to flesh out a proper response to each of these objections when they are used for obstructionistic purposes. Sadly, some overachieving lawyers see the deposition as a struggle for control and convert the experience into a turf battle. If you appear at a deposition without competent and experienced counsel at your side, then you will pay dearly for your mistaken belief that retaining an attorney was not necessary.
Legal Authority for Sanctions
Motions for Sanctions against problematic counsel should be carefully planned. FRCP 30(c)(2) requires objections in a deposition to be "stated concisely in a nonargumentative and nonsuggestive manner." When you encounter an obstreperous lawyer who persists in peppering the record with obstructionistic "speaking and clarifying objections and interjections," you may ultimately resort to filing a motion for terms. White and Saltman offer three sources of legal authority for supporting your motion.
First and foremost, you should use FRCP 30 to deal with counsel's misconduct. Before the 1993 amendments, your only approach to dealing with the difficult adversary would have been a FRCP 37(a) motion. Now, as amended, FRCP 30(d) provides a separate basis for terms against the offending lawyer.
Second, 28 U.S.C. Section 1927 imposes liability for excess costs caused by counsel acting in bad faith including discovery abuse. This applies to any unreasonable and vexatious multiplication of proceedings. This statue is designed to sanction any misconduct that Rule 11 does not reach.
Third, the court can award sanctions based on the court's inherent authority. The courts must have the means to manage their affairs and achieve an orderly disposition of their calanders. As the Supreme Court stated in Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991), "Because of their very potency, inherent powers must be exercised with restraint and discretion ... A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process." See, e.g., Unique Concepts, 115 F.R.D. 292, at 293-294 (S.D.N.Y. 1987) (awarding sanctions under Section 1927 and the court's inherent power against a defending lawyer whose "conduct was harassing, wasteful, vexatious and ruined the usefulness of the ... deposition.") Be sure to comply with the local rules that require the parties to meet and confer in good faith before filing a discovery motion. The judge is likely to require a showing that the misconduct was egregious in nature and stamped with bad faith.
Frye v. United States,
293 F. 1013 (D.C. Cir. 1923)
Daubert v. Merrell Dow Pha.,
509 U.S. 579 (1993)
Any scientific expert testimony must face the Frye-Daubert test for admissibility which is now embeded in FRE 702 and FRE 402. All federal courts and forty state courts apply the Daubert standard. The forty states have either adopted the Daubert guidelines in their entirety or some version of Daubert guidelines. Seven states adhere to the Frye standard.
The Frye standard derives from a case that dealt with the admissability of lie detector test results and held that scientfic testimony must be "deduced from a well recognized principle or discovery and must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014 (D.C. Cir. 1923).
The Daubert standard supposedly enables a trial court judge to assess whether an expert witness’s scientific testimony is based on scientifically valid reasoning which can properly be applied to the facts at issue. The standard is applied after a Daubert motion to strike, a motion in limine, is filed before or during trial to exclude the presentation of unqualified evidence to the jury. The Daubert standard is procedural and, thus, applies retroactively.
Under the Daubert standard the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.
In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the Supreme Court clarified Daubert, holding that an appellate court may still review a trial court's decision to admit or exclude expert testimony. The standard of review for this inquiry is the abuse of discretion standard. In Kumho Tire Co. v. Carmichael 526 U.S. 137 (1999), the Supreme Court further clarified that the Daubert factors may apply to non-scientific testimony, meaning "the testimony of engineers and other experts who are not scientists."
As set forth in State v. Gregory, 158 Wash 2nd 759 (2006): "¶114 Washington has adopted the Frye test for evaluating the admissibility of new scientific evidence. The primary goal is to determine whether the evidence offered is based on established scientific methodology. Both the scientific theory underlying the evidence and the technique or methodology used to implement it must be generally accepted in the scientific community for evidence to be admissible under Frye. If there is a significant dispute among qualified scientists in the relevant scientific community, then the evidence may not be admitted, but scientific opinion need not be unanimous." (Citations Omitted)
The Court in Gregory goes on to say: "¶115 Once a methodology is accepted in the scientific community, then application of the science to a particular case is a matter of weight and admissibility under ER 702, which allows qualified expert witnesses to testify if scientific, technical, or other specialized knowledge will assist the trier of fact. ER 702." (Citations Omitted)
As a plaintiff's lawyer, I can advise that you should not simply state at the end of your expert's deposition that "We'll reserve our questions until the time of trial." Au Contraire! Instead, take the opportunity to walk your expert witness through direct testimony and put on the record further testimony about the critical issues: "testing" and "publication" and "peer review" and "standards controlling its operation" and "rate of error" and "wide spread acceptance within a relevant scientific community." This only takes 20 or 30 minutes, and you are now better prepared for the inevitable Daubert motion.
Disclosure of Experts
Testifying and Nontestifying
The rules on the disclosure of expert witnesses' opinions were not well settled until 1970 when the FRCP were amended. Further amendments have since been added. Take a careful look at the four categories of expert witnesses under FRCP 26(b)(4). In the case of testifying expert witnesses, the parties to the litigation are required to disclose any expert witness to be used at trial and the disclosure must be accompanied by a written report (whose contents are specified in the court rule) in accordance with the time limits specified in the court rule (or some other time frame stipulated or court ordered).
Nontestifying experts are treated differently: the opinions of experts who have been retained or specially employed (but who are not expected to be called as witnesses at trial) may be discovered on a showing of Exceptional Circumstances. Cost alone is generally not sufficient to satisfy this requirement. In the case of informally consulted experts (consulted in preparation for trial but not retained or specially employed), neither their identities nor their opinions are discoverable even if exceptional circumstances exist. See, e.g., Ager v. Jane C. Stormont Hosp. et al, 622 F.2d 496 at 501(10th Cir. 1980) See also, FRCP 26(b)(4)(B) Advisory Committee's note (1970).
It should be noted that Rule 26 Duty to Disclose is long and convoluted and should be carefully studied together with its underlying case law, and this brief discussion does not catalogue all of the rule's provisions or probe the refinements of any of them. Happy Reading!
Precedents Matter
Dual Court Reporters
The Lincoln Douglas Debates
If you anticipate that opposing counsel will be combative in a deposition, you are justified in bringing your own court reporter. If dual court reporters are present, two transcripts will be generated. Opposing counsel (who noted the deposition and who brought his own court reporter) will probably object and might ask for a preliminary court ruling on the propriety of having two court reporters in the same deposition. Here is your precedent: Abraham Lincoln and Senator Douglas each had his own transcriptionist, i.e., his own court reporter, thus generating two transcripts for the Lincoln Douglas Debates which were a stepping stone for Abraham Lincoln's election to the Presidency. Indeed, the two transcripts were similar but not identical - which is proof positive for the need for two separate transcriptionists. Robert R. Hitt was Mr. Lincoln's transcriptionist, and in later years, Mr. Hitt served as Assistant Secretary of State in the administrations of Presidents James Garfield and Chester A. Arthur. Robert R. Hitt was subsequently elected to the United States House of Representatives in 1882. These facts were researched and documented by author Dan Abrams in his C-SPAN interview (In Depth) on October 2, 2022.
Fifth Amendment Privilege
"Proceeding Specific"
Deposition and Trial Are
"Separate Proceedings"
The Fifth Amendment Waiver is "Proceeding Specific," and depositions and trials are Separate Proceedings.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amendment V. The Fifth Amendment applies to both civil and criminal proceedings, and it protects parties and non- party witnesses alike. McCarthy v. Arndstein, 266 U.S. 34, 40 (1924). The privilege against self-incrimination afforded by the Amendment “must be accorded liberal construction in favor of the right it was intended to secure.” Hoffman v. United States, 341 U.S. 479, 486 (1951).
The Fifth Amendment privilege is not unlimited since a witness may lose its protection by disclosing information. A witness must claim the privilege to invoke its protection, Rogers v. United States, 340 U.S. 367, 370–71 (1951), and he or she “may not testify voluntarily about a subject and then invoke the privilege against self- incrimination when questioned about the details.” Mitchell v. United States, 526 U.S. 314, 321 (1999). Thus, we face the question whether a deposition and a trial are separate proceedings for Fifth Amendment purposes.
McCormick on Evidence states that, though dispute exists about waiver at different stages of one case, “[m]ost courts hold that testimony at a grand jury proceeding or other pretrial event or hearing does not preclude a witness from invoking the privilege at trial.” 1 McCormick on Evid., § 133 (8th Ed.)(citations omitted).
In State v. Roberts, the New Hampshire Supreme Court held that a deposition and trial were separate proceedings. 622 A.2d 1225, 1235–36 (N.H. 1993). The deposition testimony did not waive the privilege for purposes of trial. In criminal cases, the defendant’s preliminary examination is a separate proceeding from trial, and in civil cases, a pre-trial affidavit is separate from trial.
While the answer might vary from state to state and from circuit to circuit, a majority of jurisdictions conclude that a waiver at one hearing does not carry over to trial because the two are not part of the same proceeding. See, e.g., United States v. Miranti, 253 F.2d 135 (2d Cir. 1958), at 140 (collecting cases).
Once a deponent is cross-examined and the parties participating in the deposition each had an opportunity to elicit facts favorable to them, the waiver is finished and the deponent-witness may choose to assert a privilege anew at a different testimonial proceeding. Nota Bene: If the witness does re-assert the privilege at trial or other event, that new assertion does not affect the availability of the deposition testimony—it may well be admissible at trial regardless. See FRE 804 (providing that a witness who claims a privilege is unavailable and, thus, their prior hearsay testimony is admissible at trial); United States v. Toney, 599 F.2d 787, 789–90 (6th Cir. 1979) (concluding that a witness’s invocation of the Fifth Amendment privilege rendered him “unavailable” under Rule 804).
My best advice is this: consult with trial lawyers in your jurisdiction and research the issue thoroughly. See Fling Water Cases (Walters, et al v. Snyder, et al, RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 22a0236p.06,Argued: July 28, 2022, Decided and Filed: November 8, 2022 Before: MOORE, GRIFFIN, and THAPAR, Sixth Circuit Judges.
Attribution; Source; Reference
For ER read Evidence Rule (Wash)
For FRD read Federal Rules Decision
For FRE read Federal Rules of Evidence
For FRCP read Federal Rules of Civil Procedure
Warren Buffet: When The Tide Goes Out, You See ...
Dan Abrams, CSPAN (IN DEPTH), OCTOBER 22, 2022, Talk
TRIAL A GUIDE START TO FINISH, (Watts, Mcentire)(ABA 2020)
TRIAL A GUIDE START TO FINISH, (Watts, Mcentire)(ABA 2020)
EFFECTIVE DEPOSITIONS, Ch 19, R. Kennedy, (ABA 2nd ed 2010)
EFFECTIVE DEPOSITIONS, Ch 14, Gold, Hecht, (ABA 2nd ed 2010)
EFFECTIVE DEPOSITIONS, Ch 7, Palmer, Dodge, (ABA 2nd ed 2010)
EFFECTIVE DEPOSITIONS, Ch 15, White, Saltman, (ABA 2nd ed 2010)
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