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Depositions are much more common than trials in litigation today. Not only are the vast majority of cases settled, but many others are resolved by alternate dispute resolution. Most associates take depositions long before they ever get to try a case. Under the New Jersey Rules of Evidence, a deposition inquiry is proper if it “appears reasonably calculated to lead to the discovery of admissible evidence.” R. 4:10-2(a). Thus, the rules of relevancy that apply at trial are greatly relaxed in a deposition. Cross-examination “need not be limited to the subject matter of the examination in chief.” R. 4:14-3(a). A party’s deposition may be used at trial by an adverse party “for any purpose” — including as a N.J.R.E. 803(b)1 admission. R. 4:16-1(b). In addition, “Any deposition may be used … for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Rules of Evidence.” R. 4:16-1(a). SHOULD THE WITNESS BE DEPOSED? Taking a deposition of a witness is often a tactical error. Litigators must first ask themselves whether there is a reason to do so, and whether the purpose of the deposition can be accomplished in a more effective or efficient way. Investigation, including obtaining a signed statement from the witness, is often preferable to deposing the person and thus to giving your adversary an opportunity to cross-examine. Depositions can inappropriately memorialize harmful testimony. Also, the deposition of an adverse witness may provide the witness and adverse counsel an opportunity to see the weaknesses in the witness’s testimony and to plan on how to overcome those weaknesses at trial. If you decide the witness should be deposed, keep in mind that the five principal reasons for taking a deposition are to: (1) learn new facts and potentially to lead you to further investigation or discovery, as well as permitting you to better evaluate your case for settlement purposes; (2) determine the witness’s version of the facts, and, if an expert, the expert’s opinion, and to pin down and limit the witness to that version; (3) make the witness’s testimony available for trial in the event of the witness’s unavailability (sometimes called a “de bene esse ” deposition); (4) size up the witness and develop a relationship with the witness that will be beneficial to you at trial; and (5) develop information for use in attacking the witness’s credibility at trial. If your question does not serve one of those purposes, you probably shouldn’t be asking it at all. PREPARATION The examining lawyer must be intimately familiar with every paper in the file before commencing the deposition, including: the witness’s prior statements; whether written or oral, appearing in investigation; the witness’s background information and writings; and positions a witness has taken in a pleading, in prior testimony or affidavit. The lawyer must assimilate all exhibits, reports or documents that bear on the witness’s position. If a party witness has answered interrogatories or requests to admit, the examining lawyer must be well aware of the witness’s response to each item. A notice to a party to produce documents and things (R. 4:14-2(d) and R. 4:18-1) must be made returnable sufficiently in advance of the deponent’s testimony to give the examining lawyer adequate time to become familiar with each item. The notice and any subpoena duces tecum for the deposition should include a request that the witness produce all writings, documents, photographs, diagrams and other things that the witness has reviewed in preparation for the deposition testimony. If the deponent is an expert, the expert should be asked to produce all materials relating to facts and data reviewed in connection with forming an opinion [but see limitations in regard to "trial preparation materials" in R. 4:10-2 (d)(1)], and all “learned treatises” that he may identify as “reliable authorities” at trial. See N.J.R.E.803 (c) (18). All items produced should be premarked before the testimony commences, and it should be made clear which item was produced in response to each Request to Produce. Because lawyers often fail to tell their clients to produce documents at depositions, it is wise to serve the adverse party deponent with a subpoena duces tecum requiring the production of the items enumerated in the notice to take the deposition. R. 4:14-7. This is absolutely necessary to assure the presence of documents and things you want to examine. The subpoena should be served sufficiently in advance to permit the witness to comply (at least 10 days before the proceeding. R. 4:14-7(c)) and a copy should be served upon your adversaries. If at the deposition you request the furnishing of further items post-deposition, make a list of such items, and follow up with a letter to opposing counsel when you return to your office, or it’s unlikely the items will ever appear. TIME, PLACE AND COURT REPORTER Depositions are usually taken after the party has answered interrogatories so that the examiner can better prepare areas of inquiry. But there are times when the deposition should go before. The lawyer-client consultation required to prepare answers to interrogatories will, of necessity, result in some preparation of the party for questions that will be posed in a deposition. Not all lawyers adequately prepare their client for depositions, and the lack of interrogatory answers may therefore benefit the examiner. Furthermore, an early deposition may deprive the witness of knowledge of what other witnesses will say. The place of the deposition plays a role in the witness’s mindset. The witness may be less comfortable in the office of opposing counsel or in a courthouse conference room. The witness being deposed at the witness’s place of business is at a disadvantage in responding that in order to answer the question he’d have to consult a document “back at the office.” All such decisions by the party taking the deposition should be thought through, and not be “routine.” MANNER & MANNERS Discourtesy is never an option, but the degree of warmth engendered in the relationship between lawyer and witness is something that requires thought and planning. A polite introduction is always appropriate, but one’s manner with a young child is quite different from that with a corporate president, or an inmate at a correctional institution. You must determine what approach will best serve the client’s cause with the particular individual being examined. First names are rarely, if ever, appropriate, unless one is addressing a child of tender years. An overly considerate approach can make the witness more emotional. An especially cold demeanor may cause the witness to draw back and become more unwilling to concede anything at all. If the lawyer’s tone expresses disbelief, the effect may be to intimidate the witness. Asking questions that are invitations to the witness to avoid having to answer are disastrous, unless one wants the witness to deny knowledge. Thus, questions beginning with “If you know,” “Do you know,” “Do you recall,” or “Do you remember” are cues to the witness to answer that he doesn’t know, recall or remember. STIPULATIONS Stipulations regarding the deposition and its use should be put on the record before any question is put to the witness. You must know the applicable rule in the jurisdiction in regard to the reservation of objections to time of trial. In both New Jersey and the federal courts, substantive objections are preserved for trial. R. 14-3(c); R. 4:16-2; Fed.R.Civ.P. 30(c), 32(b) and 32(d)(3)(A). These include objections to the competency of a witness, or to the competency, relevancy, or materiality of testimony, unless the ground of the objection is one that might have been obviated or removed if presented at the deposition. R. 4:16-4(c)(1). However, objections as to the form of a question (including the fact the question is leading) are waived unless made before the objectionable question is answered, so the questioner may consider the objection and rephrase it in proper form. The same applies to objections that relate to privilege, a right to confidentiality, or “a limitation pursuant to a previously entered court order.” R. 4:14-3(c). It is doubtful that parties can stipulate to reserving such objections if not timely made at the deposition, despite R. 4:13. To reserve “all” objections, including those as to form, until trial deprives the questioner of being alerted to the opportunity to rephrase a question defective as to form. Thus, the question and answer may be excluded at trial, when the form could have been corrected at the deposition. For this reason, the examining attorney can refuse to stipulate to reserve form objections for trial and force the adversary to waive such objections if not made at the deposition. Likewise, be wary of the court reporter or adversary who asks, “Usual stipulations?” This often means that you agree to reserve all objections to the time of trial, and that you stipulate to waiving the witness’s right to read, “make changes in form or substance,” and sign the deposition transcript under the applicable rule. R. 4:14-5; Fed.R.Civ.P. 30(e). This right is limited in the New Jersey courts to instances where a noncertified court reporter takes the transcript. In the federal courts, this right exists only if “requested by the deponent or a party before completion of the deposition.” Most witnesses have never testified previously in a deposition. Even if the witness has done so, it is incumbent upon the examining lawyer to explain the procedure, out of fairness and to ensure that the witness will never have the opportunity to claim that the deponent didn’t understand what was going on at the deposition or that the testimony was under oath in a judicial proceeding. As to breaks, don’t suggest that witnesses tell you that they want to take one, unless you are aware that the witness has a health problem, such as diabetes, that would require a break. Rule 4:14-3(d) provides that depositions shall be taken “continuously and without adjournment.” Witness fatigue usually works in favor of the questioner. An unclear transcript is unforgivable. Questions should be grammatical, clear, sharp, short and simple. Multiple or compound questions, those that ask two or more separate things, produce useless answers. Likewise, references to documents without clear marking of the exhibit and area referred to are not usable at trial. Mark each exhibit for identification before showing it to the witness. If someone refers to a particular spot on a photo or diagram, mark it in such a manner that one reading the transcript will know where that spot is. QUESTIONS AND ANSWERS No question should ever be asked in a deposition (or at trial) that does not have a significant potential for advancing the questioner’s case. Associates, fearful that the partner on the case will be critical if some question is not asked, often will ask a witness questions that cannot conceivably be relevant or lead to relevant information, or, even worse, can only produce a hurtful response. Also, try to ask questions in a manner that will make a playback of the transcript understandable to the trier of fact. Don’t jump around chronologically or illogically in such a way that the reading of the transcript will be confusing to the reader or listener. If the purpose of your question is to pin down an adverse witness, ask leading questions that compel affirmative (“yes”) answers. The leading question is a powerful device for controlling a witness. In a deposition it should be used against most adverse witnesses. See N.J.R.E. 611(c). The mere fact that you have chosen to depose a witness does not make the witness “your witness.” R. 4:16-3. Likewise, closed-ended questions are best when examining a witness who wants to sink your ship. On the other hand, if your purpose is to acquire information from the witness, open-ended questions are an effective mechanism to get the witness to volunteer extensive answers. Don’t be so rigid in your deposition plan that you fail to follow up on the witness’s answers. It is dangerous to write out your questions on an examination, because you tend to simply go to the next question, regardless of the answer to the last one. It is far better to just outline the areas that you want to cover. In addition, watch the witness for nonverbal clues as to whether the witness is being truthful and open. It is usually unwise to interrogate your own client in a deposition. If there’s something you’d like to learn from the client, ask it in your office or in the car on the ride home. However, if your adversary has stealthily left a misleading impression with his questioning, your “cross” may be necessary to provide the favorable witness the opportunity to correct that misimpression. This is one of those occasions when a “why” question is appropriate, since it is posed to a “friendly” witness. Some examiners have the bad habit of simply making a declaratory statement in an interrogative tone rather than asking a question. Ask questions; don’t make statements. Furthermore, make sure that each of your questions can stand alone, on its own. Try to avoid framing your questions in such a manner that in order to get a question and answer into evidence, the trial lawyer must first read pages of previous interrogation. UNAVAILABILITY A deposition of a nonparty ordinarily cannot be introduced at trial as substantive evidence unless the witness is unavailable or the court finds “exceptional circumstances … in the interest of justice” that justify its introduction. R. 4:16-1(c). Thus, if you want to offer the deposition as substantive evidence at trial, it’s a good idea to lay the foundation for unavailability at the deposition. Unavailability means that the “appearance of the witness cannot be obtained because of death, or other inability to testify, such as age, illness, infirmity or imprisonment or is out of state or because the party offering the deposition has been unable in the exercise of reasonable diligence to procure the witness’s attendance by subpoena,” so long as “the absence of the witness was not procured or caused by the offering party.” R. 4:16-1(c). The definition of “unavailable” is slightly different under Federal Rule of Civil Procedure 32(a)(3), partly due to the different subpoena jurisdiction of a federal court. Note, however, that in New Jersey, the videotaped deposition of a treating physician or of any expert witness taken for use at trial in lieu of live testimony may be used at trial regardless of whether or not the witness is available to testify. R. 4:14-9(e). THE OBSTREPEROUS ADVERSARY You should never permit an adversary to defeat your purposes in taking the deposition by improper conduct. Know the rules governing depositions. Rule 4:14-3(c) specifically provides that “No objection shall be expressed in language that suggests an answer to the deponent.” It also bars an attorney from instructing a witness not to answer a question “unless the basis of the objection is privilege, a right to confidentiality or a limitation pursuant to a previously entered court order.” See Fed.R.Civ.P. 30(d)(1). But what if your adversary violates these rules? First, you can terminate the deposition and apply to the court for sanctions, costs, and a direction to your adversary to cut it out. See R. 4:14-4. You can also request the appointment of a Master to supervise the continued deposition — at your adversary’s cost. See R, 4:41, and recently revised Fed.R.Civ.P. 53. If you have access by telephone conference call to the judge or a U. S. Magistrate Judge supervising discovery, you can get a ruling precluding such abusive conduct forthwith. Alternatively, you can continue the deposition and file a motion for sanctions and other relief afterwards. Bear in mind that the court can be asked to rule that the deposition should be conducted with no one present except persons designated by the court. R. 4:10-3(e). VIDEOTAPED DEPOSITIONS If you decide you must take a de bene esse deposition of a witness who will probably be unavailable to testify at trial, it will often be videotaped. If the witness is a proposed expert or examining physician, R. 4:14-9(e) applies, and unavailability need not be shown at trial. Nonetheless, the party who notices the videotaped deposition of the expert is not precluded from calling the deponent at trial. New Jersey Rule 4:14-9 requires 30 days’ notice of a videotaped deposition, and that a discovery deposition of the witness by any party may be taken in the interim. If the witness is adverse (either lay or expert), such a discovery deposition is usually a good idea, to avoid surprise and to develop material for cross-examination. Because the de bene esse deposition is actual trial testimony, it must be treated as such. If possible, the lawyer who will try the case should take it. A stenographic transcript should be prepared, in addition to the video record. Objections are not reserved for trial as in other depositions if the deposition is of an expert or treating physician. Oddly enough, if the deponent is not an expert or a treating physician, all objections at a videotaped deposition other than those directed to form, privilege, confidentiality or previously obtained court order are reserved to the time of trial. This can create a nightmare for the editing of a videotaped deposition of a nonexpert before it is admitted for trial purposes. In the case of the expert witness, a party making objections at the deposition must move within 30 days of completion of the deposition for a hearing on the objections, so an edited tape can be made. It is suggested that even if the videotaped witness is not an expert, if you anticipate that the videotape will be offered at trial, a similar motion should be made, with subsequent editing. The alternative is chaos and a waste of time at trial when the tape is offered. DEPOSITIONS OF EXPERTS There are two distinct types of depositions of an expert: the discovery deposition, and the deposition taken for use as substantive evidence at trial. In the discovery deposition, the questioner seeks to find weaknesses in the expert’s armamentarium, such as lack of qualifications, failure to know all relevant facts, bias, and lack of knowledge of the field. One also tries to get the expert to lay out fully all his opinions on the matter and the basis for them and to pin down and limit the witness to those opinions, so no new ones can appear in the future. At the same time questioners try to avoid “flashing” future attacks that will be made at trial (or at the de bene esse deposition) so that the expert and opposing counsel are not educated as to how to prepare the witness for future cross-examination. For instance, one may decide not to confront the expert with a prior inconsistent statement at the discovery deposition – saving that for the de bene esse deposition or trial. In general, the discovery deposition should not be videotaped. Arrangements should be made for expedited production of a transcript, so it can be reviewed and used at the witness’s de bene esse deposition, if there is one. The de bene esse deposition (often videotaped) is quite a different matter. This is actual trial testimony and must be treated as such. Now the cross-examining attorney is adverse to the expert witness and wants to do all that he can to reduce his credibility and the believability of his opinion. The lawyer offering the expert has the opposite goals. The de bene esse deposition should usually be videotaped at the instance of the party offering the witness, so the jury will see and hear the expert’s testimony. All objections must be made during the proceeding. If the discovery deposition transcript is to be used against the witness, it must be used now, as the availability of the de bene esse deposition will eliminate a claim of “unavailability” at time of trial. The expert witness’s proponent will ask questions to establish qualifications, the basis for the opinion and the opinion itself. The cross-examiner should often seek voir dire examination on qualifications after the direct on qualifications, and before the witness begins his substantive testimony. As the judge may have this voir dire examination edited out of the tape, qualifications should be attacked again at the beginning of cross-examination. The cross-examiner should develop the cross exam just as at trial, dealing with qualifications, bias, credibility, the basis for the expert’s opinion, and the opinion itself, as appropriate. Bear in mind that an expert’s observations made in the past, including a physician’s opinions reached during treatment as to diagnosis, etiology of disease (causation) or prognosis, are not “opinion” testimony, but rather “facts” under New Jersey case law. Thus, although the witness is, in fact, an expert, you may depose him as to facts in his possession, even if your adversary has not offered the witness as an expert. Myron J. Bromberg is a partner at Porzio, Bromberg & Newman of Morristown, N.J. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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