Taking And Defending

Effective. Depositions
In··California

Los Angeles, CA
October 27, 2000

Presented by:
Jeffrey A. Rosenfeld
Troop SteuberPasich Reddick & Tobey LLP
Thomas J. McOermott, Jr.
,Shanks and Herbert
. .

. Marshall G. Mintz
Kelly Lytton Mintz & Vann LLP
StephenH, Turner
Carlson; Messer & Turner

Lorman Education Services

P.O. Box 509
Eau Claire,' WI 54702-0509
. Phone: 715/833-3940 • Fax: 715/833-3944
. E-mail address:·ceinfo@lorman.com
Web site: www.lorman.com
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I TAKING THE DEPOSITION

I BY THOMAS J. Me DERMOTT, JR.

I Set forth below are general suggestions for taking the deposition. These

I are not applicable to all depositions, but should be considered when taking all

depositions and used as appropriate.

I 1. Use video.

2. Know your court reporter and know that he or she is capable.

3. Limit the sessions to the business day, ~., 9:30 a.m. to 5:00 p.m.

I and take as many days as you need.

1 4. Have all the documents to be used previously reviewed, have

sufficient copies for all persons at the deposition including the

I deponent and the court reporter, have the documents in order for

I introduction, all before the deposition commences.

5. Know what you intend to prove through this witness before you
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I 6. Have your client, expert, etc., present when they may be of help

(which is usually).
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7. Write out the areas in which you intend to question; where

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, appropriate, write out the answers that you want to get. Never

write out the questions.

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8. Always introduce yourself on the record and identify the party or I
parties that you represent.
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9. Always be polite and professional.

10. . Remember that you want the witness to talk, not be intimidated I
into not talking. (The opposite of cross-examination at trial.)
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Make your questions copversational, not confrontational. When
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you must be confrontational, save it to the end of the deposition;' I

11. Depose the big shots early, the workers later.
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12. Don't take notes or do anything else that will distract you from

listening to the answer.

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13. Listen to the answer. I
14. LISTEN TO THE ANSWER.

15. Ask your next question off the last answer, not off your outline.
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16. Follow up, follow through, follow on. In other words, explore I
with further questions every aspect of the witness's answer until

you understand it, you learn something new, or you get what you
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want. I
17. Listen to the objections. Reframe the question if it is ambiguous,
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compound or subject to some other objection as to form. An

objection as to form is the one objection that will hurt you at trial. I
18. Identify references on the record. For example, if the witness says:
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"This was our deal." You respond: ''The witness is pointing at

Exhibit 31." I
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I 19. State on the record if the other lawyer is coaching. For example:

I "Please stop shaking your head indicating 'no,' Mr. Plaintiffs

counsel. Let the witness testify."

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20. Don't accept non-responsive answers. Repeat the question until

I you get a responsive answer.

21. Don't argue with opposing counsel. Just keep asking questions. If
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the opposing counsel instructs the witness not to answer, take him

to court.

22. If opposing counsel starts to "clarify" the record, let him. Then ask

follow-up questions. You want to get information and you want to

I know the position your opponent will take at trial. If the lawyer is

I prepared to state the position he's going to take at trial, you should

let him.
I 23. The "silver bullet" and what to do about.

I 24. Stipulate that the deposition may be used without signature.

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EXPERT DEPOSITIONS

BY THOMAS J. Me DERMOTT, JR.

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A. General:

I From a substantive standpoint, expert depositions are just like any other

I; deposition, except that they may be mO~7difficult to take because the deponent

ordinarily is more skilled in the subject matter than the lawyer, because the

I deponent is probably a professional witness, because the deponent is intent on

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making certain points, and because the deponent will not hesitate to obfuscate.

Therefore, more preparation is generally necessary to take expert depositions.

From a procedural standpoint, the timing and number of expert

I depositions may be controlled by state or federal rules of civil procedure, by local

rules or by court order. It is absolutely essential that the procedures for the timing
I of expert depositions and expert reports be researched in the jurisdiction in which

one is appearing. The rules differ dramatically and are constantly changing.

Generally, in state court, the expert designation is later than in federal

I court (in state court, 15 days before trial if following c.c.P. 2034), and in state

court there may be only the necessity of naming the witness with a short statement

written by the lawyer as to what the expert's testimony will cover. In federal
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court, generally, expert reports must be exchanged and the reports must be

I comprehensive and signed by the expert. Some federal courts use these reports as

I the testimony of the expert. No direct testimony is allowed. The opposing party

may cross-examine the expert on the report~

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B. Use of Expert ReDorts. Files and Curriculum Vitaes: I
Obtain the expert's report, including the expert's entire file, by subpoena,
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as early as possible before the deposition. Also subpoena the expert's curriculum

vitae (he/she will have onej.jhe list of articles which the expert has published

(he/she may have one), and the list of cases in which the expert has previously
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testified (he/she will probably say there)s no such list).

Mark and authenticate all of these documents at the deposition.

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C. Consultant as Expert: 11
A person with particular expertise who is retained to aid in litigation is a

consultant. He does not become an expert until designated as such. While a

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consultant, the work and comments of the consultant are protected by the I)
attorney-client and work-product privileges. Once the consultant is designated an

expert, the privileges are waived and all communications, both oral and in
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writing, between the consultant (now expert) and the lawyers, clients, etc., are 11
subject to discovery. Although you may only take the deposition of a designated
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expert, you will be able to inquire into all information exchanged since he/she was

first retained as a consultant. Failure of an expert to disclose what he intends to II

testify to may preclude the expert from testifying at trial. Kennemur v. State of
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California, (1982) 133 Cal.App. 3d. 907.

D. Taking the Deposition of an EXDert:

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1. Generally, the taking of the deposition of an expert should proceed

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with the same intensity, curiosity and follow-through as the deposition of any

witness. There are, however, certain special approaches that may be effective.

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2. The curriculum vitae and employment history of the expert should

be subject to intense inquiry. The aim is to establish that, perhaps, this witness is

not qualified to testify in this specific area. (If you develop the possibility, then it

should be brought out at trial, If you are unable to develop a weakness in the

I expert's qualifications, then at trial you may attempt to "stipulate the expert as

I qualified - no need for counsel to estaqrsh that." Experienced lawyers will, of

course, insist on putting on their own expert's qualifications in some detail, but

I inexperienced lawyers may not.)

I 3. The list of published articles should be identified and marked.

Then the witness should be asked if he/she would wish to retract, or revise,
I anything in the published articles. If you have obtained and read the witness's

I articles before the deposition, you may want to inquire. There is almost always

something in the articles, particularly if the witness has published extensively,

I that will contradict what the witness is now trying to establish. Usually, however,

I this line of testimony must be saved for trial because the articles are unavailable

I prior to the deposition.

4. Testimony in previous cases should be examined carefully. Does

I the witness regularly represent plaintiffs or defendants? How many times has the

I witness testified? If you can establish that this is a professional witness, it may

help. But it may not. He/she is a professional witness because he/she is good.

I Also inquire as to whether he/she has ever failed to qualify as a witness in any

I case. Aparticularly effective question is: "What percentage of your income is

derived from trial consultation and testimony?"

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5. Has the witness brought his complete file? If not, what is missing? I
Did the witness prepare drafts? Where are they? Did counsel instruct him to
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leave something in his office or to destroy something? What was the data that the

witness used? Where is it? Identify and mark the file in its entirety.
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6. Explore all contacts with counsel and with counsel's client, both
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written and oral. Explore all discoveIJ{ and writings between the expert's

colleagues, either those who work with him or outsiders. Ask for all notes made
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at any meeting. I
7. There are many ways to get into the substance of an expert's

testimony. One effective way is as follows:

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Question: Do you intend to render an opinion or opinions at I
trial in this case?

Answer: Yes.
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Question: Please state that opinion or opinions? I
Answer: Yah da da .... yah da da ....
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Question: As to your first opinion, upon what facts to you

base that opinion? I

Answer: Yah da da .... yah da da ....
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Ouestion: Where did you obtain those facts?

Answer: Yah da da .... yah da da ....

Question: If the facts were slightly different as follows ,

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would it cause you to modify your opinion in any

way?
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an expert deposition in an area of relative complexity that you have your own I
expert present.
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E. The Top Ten Misunderstandings in Dealing with your Own Expert:

1. The expert will follow your instructions not to put anything in

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writing.
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2. The expert can draft his/her own report.

3. The expert will be timely in preparation.

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4. The expert can communicate effectively. I
5. The expert can teach.

6. The expert's work product will be protected and not discovered.

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7. The expert needs no preparation for his/her deposition. I
8. You don't need an expert.

9. The best way to use an expert is through a hypothetical.

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10. Experts should only "wash." I
F. Tips to Avoid the Above Misunderstandin2:s:

1. Emphasize over and over at the time the expert is first hired as a
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consultant that the expert is to put nothing in writing until first speaking with you. I
2. Work with the expert to draft a report. In many instances, the
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lawyer drafts the report himself. This is not particularly recommended because

opposing counsel has a right to inquire into who wrote the report. However, the I
expert's report, although accurate, very likely will not emphasize the materials
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that you wish to bring out in support of your case.
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il 3. Be in constant communication with your expert to ensure that the

'I research, experimentation and documentation are moving forward in a timely

I manner.

4. Select your expert carefully at the beginning. Communication

I skills are essential and are lacking in many experts.

I 5. Try to find an expert whp:knows how to teach. You may not need

a Ph.D. You may be better off with an MS who has the ability to communicate.'·

I 6. Everything the expert communicates to you and everything you

I communicate to the expert will be discovered. It does not matter whether it's oral

I- or in writing. Be extraordinarily careful in the communications.

7. Experts probably need more preparation for their depositions than

I any other witness. Depending upon their experience, they mayor may not

understand the process or be able to respond properly to it. In any event, no

I matter how good the expert, he or she needs guidance with regard to points you

I are trying to make to win your case.

8. In most commercial litigation, an expert can be extraordinarily

I helpful. An expert is the only witness who can give a narrative answer without

I objection. An expert is the only witness who can incorporate both facts and

I opinion to reach a conclusion as to what actually happened in a case. You should

never forego an expert where it is possible to use one.

I 9. Juries do not appreciate hypothetical questions. Try to avoid them.

I There is no need for an expert to testify hypothetically since there should be two

alternate series of facts in any case. One series of facts .is presented by the

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plaintiff and another series of facts is presented by the defendant. The expert
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need only comment on these two sets of facts.
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10. Experts never "wash." One expert will always be perceived by the

jury as the best. Ensure that. your expert is the best. The perception of the best
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generally comes from the jury's belief that the expert is communicating with II
them. The fact that the expert is a Nobel, laureate will have no impact if the expert

cannot teach.
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I DOCUMENT DEPOSITIONS WITHOUT NECESSITY OF APPEARANCE OF

:1 DEPONENT
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BY THOMAS J. MC DERMOTT, JR.
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il A typical notice of deposition aimed at obtaining documents will request

~I the appearance of some corporate empl~yee who is the custodian of the particular

documents desired. If the parties agree, the documents may be produced without

'I appearance by the custodian. This resembles an ordinary document production

,I and copies of the documents may even be delivered to your office without

appearance.
'I Under California Code of Civil Procedures, Section 2020 (Discovery from

I a Non-Party), one may choose to notice a document deposition either with or

without requiring the appearance of the custodian of records. The provisions are
,I detailed and should be reviewed; however, the principle difference is the cost in

I requiring the attendance of the custodian of records at the deposition.

Pros for DocumentDeposition Without Appearance of Witness:

I 1. Flexibility.

I 2. No time wasted of either lawyers or witnesses.

3. Convenience.
I Cons of Document Deposition Without Appearance of Witness:

I 1. You may want to question the custodian regarding the extent of

compliance. ~., are all the documents present, how are they organized, etc.
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2. You may want to use the custodian to authenticate the documents.

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3. You may want to use the custodian to establish that the documents I
qualify as business records and, therefore, are admissible.
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WHEN TO SEEK JUDICIAL INTERVENTION TO EXPEDITE THE

I DEPOSITION PROCESS

BY THOMAS 1. Me DERMon. JR.

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I Depositions in general are governed in California by the Code of Civil

c.c.P. Seq~ion 2025(i)

I Procedure, Section 2025(c). provides for protective

orders. These orders may be sought for at least fifteen directions as follows:

I 1. That the deposition not be taken at all.

I 2. That the deposition be taken at a different time.

3. That a videotape deposition of a treating or consulting physician or

D... of any expert witness, intended for possible use at trial under paragraph (4) of

subdivision (u), be postponed until the moving party has had an adequate

opportunity to prepare, by discovery deposition of the deponent, or other means,

for cross-examination.

4. That the deposition be taken at a place other than that specified in

the deposition notice, if it is within a distance permitted by subdivision (e).

5. That the deposition be taken only on certain specified terms and

conditions.

6. That the deponent's testimony be taken by written, instead of oral,

examination.

7. That the method of discovery be interrogatories to a party instead

I of an oral deposition.

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8. That the testimony be recorded in a manner different from that I
specified in the deposition notice.
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9. That certain matters not be inquired into.

10. That the scope of the examination be limited to certain matters.

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11. That all or certain of the writings or tangible things designated in
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the deposition notice not be produced, inspected, or copied.

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That designated persons, other than the parties to the action and ~..
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their officers and counsel, be excluded from attending the deposition. I
13. That a trade secret or other confidential research, development, or

commercial information not be disclosed or be disclosed only to specified persons

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or only in a specified way. I
14. That the parties simultaneously file specified documents enclosed

in sealed envelopes to be opened as directed by the court.

15. That the deposition be sealed and thereafter opened only on order I
of the court.

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Under federal rules, the same types of protective orders may be sought.

In general, judicial intervention is available in all courts where discovery

is being unreasonably impeded by any party, witness or lawyer. However, courts

resist hearing discovery disputes and, in particular, are resistant to intervening in

the deposition process. There are processes short of judicial intervention

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available, and courts will insists that these processes be followed first. For II
example, it there are repeated instructions not to answer, when such objection is

inappropriate, it would be best to first move the court on noticed motion to rule
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D on the specific questions or specific subject matters at issue. Once rulings are

D obtained that lines of questioning are not objectionable, then you should receive

B answers at a reconvened deposition. If the refusals continue, you may then have

grounds to request judicial intervention,

D It should also be noted that both state and federal courts require "meet and

D confer"sessions prior to bringing any discovery motions .

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Where lawyers are constantly objecting, surreptitiously coaching the ,.,.

D witness, generally acting obnoxious, or engaging in other inappropriate activity,

D the best device to cure this behavior is to videotape the deposition. If the behavior

is not modified, you can use the videotape to support your motion for judicial
IJ intervention.

IJ The levels of judicial intervention are:

(a) Normal discovery motions requesting that the deponent be ordered

IJ to answer specified questions.

IJ (b) Discovery motions to request instructions or general rules of

conduct or to request that answers be ordered in specific areas or in specific lines

IJ of questions.

II (c) Motions for sanctions based on inappropriate behavior by lawyers

or witnesses. Sanctions would usually be monetary, most often representing the

I cost of the wasted time and the cost of bringing the motion. However, sanctions

I can be as harsh as striking the defendant's answer if the conduct is so egregious as

I to prevent effective discovery or to destroy evidence.

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(d) Motions for judicial supervision of the deposition. This means a
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person designated by the judge will supervise the deposition on a full-time basis.

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It may be a magistrate judge, a special master, a retired judicial officer, etc. With

the exception of a federal magistrate judge, the parties will have to pay this

"Deposition Officer," usually at the rate of $300 to $400 an hour. The

"Deposition Officer" will have the power to instruct the witness to answer
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questions, to control the demeanor of the lawyers, and, in general, to require the.'
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same decorum that a judge would require in a courtroom in trial. Since this is a

non-judicial officer, theoretically, he or she does not have the authority to hold a

party in contempt for failure to comply with an order, but the "Deposition
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Officer" may recommend action by the judge who will almost always follow his I
appointee's recommendation.
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