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As we get ready to start a major trial, we have gone back to read the depositions taken years ago. And as we read them, we are reminded of the old Chinese proverb: “If you don’t know where you are going, you will be lost when you get there.” Luckily, it appears that our opponents are far more lost than we are, but there is blame enough to go around, and we suspect that we are not the only lawyers who have reviewed a transcript and wished we had known better where we were going when we were taking and defending those depositions. DISCOVERY DEPOSITIONS AREN’T SIMPLY FOR DISCOVERY Something like 95 percent of civil cases never make it to trial, so a like number of deposition transcripts probably are never critically reviewed. That is a blessing, as most of those transcripts would not stand up well to scrutiny. Why not? Simple — most transcripts don’t live up to their potential. Because we have been provided with the right to take depositions as part of the discovery rules, we are lulled into thinking that depositions are discovery tools. So, we think, when we take a deposition, we want to discover facts with a broad brush and cull out the pearls later; when we defend a deposition, we want to prepare our witness to clam up, to keep the pearls hidden from view, to say as little as possible. This is wrong. If you think of depositions merely as discovery, you do not know where you are going — to trial — and you will be lost once you get there. Enough — more than enough — has been written on how to prepare witnesses for depositions. But of course, the commentators don’t always dispense uniform advice. Professor James McElhaney suggests that you create a well-thought-out standard list of do’s and don’ts to give to all deponents in aid of your personalized preparation of the witness. “You will do a better job with the basics if you put it in writing and on tape, rather than making it something you do every time from rote memory.” “Preparing Witnesses For Depositions,” 78 A.B.A.J. 84 (June 1992). But Professor Janeen Kerper thinks differently. Working from the Zen notion that when the student is ready the teacher will appear, she counsels, “[T]he lawyer should not give the witness a list of do’s and don’ts; she should wait for the opportunity to teach the witness a rule when that rule will solve an immediate problem.” “Preparing a Witness For Deposition,” 24 Litigation 11 (1998). So although the experts disagree on the best way to do it, there is nevertheless plenty of advice out there on how to prepare your witnesses for depositions. You can find articles by law school ethics professors, which tend to focus on ethical questions; you can find articles by litigation consultants, which tend to suggest the use of consultants and technology such as video preparation; you can find articles by evidence professors, which tend to focus on the preservation of objections. Everybody has a list of preparation points. Advice on how to prepare the witness abounds; it fairly teems. But the literature is scant on how you should go about preparing yourself. So the problem is not that we do not know how to prepare our witnesses. The problem is that we do not know how to prepare ourselves. We do not think through carefully enough where we intend to go with a deposition, and too often, we are surprised to find that we are lost when we get to trial. The most common mistake made by lawyers taking depositions is that they limit themselves to discovery; they do not think of how they might actually use the transcript at trial. Lawyers defending depositions often make a bigger mistake: They consider how the transcript may be used against them — although, too frequently, they do not consider it well — but they ignore the fact that they might someday need to use the transcript affirmatively. There are two sides to the case; for each side, the witness either will or will not show up and testify at trial. So there are only four scenarios: (1) Your witness appears at trial. (2) Your witness is a no-show. (3) Your adverse witness appears at trial. (4) Your adverse witness is a no-show. So what do you do? If scenario No. 1 comes to pass — your witness shows up to testify in the trial — your goal is that the deposition transcript never be used because it contains nothing impeaching. But in each of the other scenarios, your goal is to have a transcript that you can use affirmatively — to offer testimony helpful to your case in the case of the no-shows and to impeach the adverse witnesses who do show up. You will not reach any of those goals if you are in passive discovery mode during the deposition. You have to be thinking ahead to the trial. BE PREPARED TO CORRECT ERRORS AND PLUG HOLES In Illinois, where we practice, witnesses are not permitted to make substantive modifications to their deposition transcripts. Under Illinois Supreme Court Rule 207, the only change a witness can make to a transcript is to correct a stenographic error. We like that procedure because it saves us from possible sloppiness. Some lawyers, more familiar with Federal Rule of Civil Procedure 30, which permits witnesses to review transcripts and make changes, both technical and substantive, use that latitude as a crutch. There is no need to be careful at the deposition, they reason, because the witness can review the testimony carefully in print at a later date. But there are some obvious problems with that approach. If the witness is lazy or unavailable, the changes may never be made. Even if they are made, the original transcript stands and will still have impeachment value. Far better to get it right the first time than to rely on the ability to change things later. Many lawyers make it a standard practice never to ask their own witness a question at a deposition. Why should you, they reason, ask anything that might give your opponent a preview of your strategy, especially when you will have ample opportunity to ask your own questions later at trial? No matter how certain you are at the time of the deposition that your witness will appear live at trial to explain away problems, fill in gaps in testimony and offer the affirmative story that is critical to your case, there is no such thing as a sure thing. Friendly witnesses turn hostile; corporate employees move on to other jobs and other commitments; people become incapacitated. THE DEPOSITION TRANSCRIPT MAY BE YOUR BEST SHOT The deposition transcript may be the best — it may be the only — means by which you can present the testimony of your witness at trial, and if you are not prepared to make that transcript all it needs to be, you and your case will be lost when you do get to trial. We are not suggesting that you put on the entire direct examination of your witness during your opponent’s discovery. It is a judgment call — and a complex call at that — whether to tip your hand or to preserve affirmative testimony during the defense of a deposition. But don’t make that call by default without first thinking about it. If there is some critical fact that cannot be proved but for this witness, or if some substantial damage is done to this witness that can be fixed with a little rehabilitation, you had better be prepared to do it right away. In order to be in a position to judge whether to question your own witness during your opponent’s deposition, you have to know where the witness fits into your eventual trial plan. You cannot wait to formulate that plan until after discovery because by then it may be too late. When you take the deposition, however, you have no judgment-call dilemma; you just want the testimony, plain and simple. And you have all the material you want — but it is interspersed among 800 pages of transcript, one snippet at a time. Be prepared to sum up the highlights before you adjourn. You may draw an asked-and-answered objection, but you have nothing to lose and everything to gain if you can create a simple, coherent bit of testimony that can be read to the jury without substantial editing. TOO MANY LAWYERS FALL INTO THE ‘MICROCOSM TRAP’ The trap too many lawyers fall into is that they look at a deposition in microcosm, as a self-contained battle to be won or lost. If the only issue is the deposition, you win by making your witness as uncooperative and uncommunicative as possible; you win by disrupting your opponent’s flow and objecting to nearly every question. But in real life, you probably lose. We know lawyers who view the making of objections at depositions much the same way as dogs view objects dropped on the floor. The dog invariably snarfs up any target of opportunity on the theory that it might be food and, if it isn’t, it can always be spit out. Some lawyers invariably object to every question on the theory that the objection might, just possibly, be a good one, and it can always be withdrawn if it is not. But this tactic may have consequences. If the deposition is videotaped, the best the frequent objector can hope for is that one or two objections will be sustained; the rest will be edited out of the transcript. The effect is, from a video-impact perspective, a disaster. Your witness will not merely be subjected to whatever substantive impeachment is in the transcript, but the jury also will see what’s on the tape as it rolls. A question will be asked, there will be a break in the tape where your unsustained objection has been edited out, and the witness’s eyes invariably will go through some sort of shift as a result of that break. The net effect is that you will have created a record in which your witness looks like someone who can never give a direct answer to a direct question. Even with a standard transcript, what do you accomplish by impressing the judge with the conclusion that you make silly, improper objections? Be prepared to limit yourself to good objections. Lawyers who want to win the deposition battle and who do not think about the trial war frequently prepare their witnesses to be combative, wary and uncommunicative. The witness professes not to understand the most simple of terms; the witness argues with the examiner; the witness professes a total lack of recollection. All of these may feel good at the moment, and all of them will be devastating when used as impeachment at trial. The crutch of unprepared lawyers: vague witnesses It is the crutch of the unprepared lawyer to prepare witnesses to answer evasively and equivocally. A witness so prepared may not give up any major ground at the deposition, but the cost is having to explain those equivocations at trial. Deponents are not required by rule to do homework in preparation for a deposition — and many lawyers specifically prepare witnesses by telling them not to bone up on the facts. But if not required by rule, logic requires that deponents be fully prepared. A witness may not give up anything at the deposition by saying “I don’t know” or “I don’t recall” — but he or she will be hurt greatly when attempting at trial to convey confident knowledge in response to the same questions. The well-prepared lawyer must know what that witness may have to say at trial and must prepare witnesses to relate the full set of facts at the deposition. All the articles on preparing witnesses, all the lists of do’s and don’ts, all the advice, really come down to two basic rules for good witness preparation: Listen to the question, and answer it truthfully and completely. We add this third rule: Don’t presume to embark on witness preparation until you have prepared yourself. What is your trial strategy? What facts will you need to prove? What facts does this deponent have to sponsor? Where are you going? To trial. Be sure you know where you are when you get there. Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block. They can be reached at [email protected] jenner.comor [email protected].

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