effective depositions in california 0001

8/14/2019 Effective Depositions in California 0001

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Tak in g A n d Defen d in gE f fec t i ve . Depos i t i o n sIn Ca l i f o rn i a

Los Angeles, CAOctober 27, 2000

Presented by:Jeffrey A. RosenfeldTroop SteuberPasich Reddick &Tobey LLP

Thomas J. McOermott, Jr.,Shanks and Herbert. .. Marshall G. Mintz

Kelly Lytton Mintz &Vann LLPStephenH, TurnerCarlson; Messer & Turner

Lorman Education ServicesP.O. Box 509Eau Claire,' WI 54702-0509

. Phone: 715/833-3940 Fax: 715/833-3944. E-mail address:[email protected] site: www.lorman.com


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TAKING THE DEPOSITIONBY THOMAS J . Me DERMOTT, JR.

Set forth below are general suggestions for taking the deposition. Theseare not applicable to all depositions, but should be considered when taking alldepositions and used as appropriate.

1. Use video.Know your court reporter and know that he or she is capable.Limit the sessions to the business day, ~., 9:30 a.m. to 5:00 p.m.and take as many days as you need.Have all the documents to be used previously reviewed, havesufficient copies for all persons at the deposition including thedeponent and the court reporter, have the documents in order forintroduction, all before the deposition commences.Know what you intend to prove through this witness before youstart.Have your client, expert, etc., present when they may be of help(which is usually).Write out the areas in which you intend to question; whereappropriate, write out the answers that you want to get. Neverwrite out the questions.

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State on the record if the other lawyer is coaching. For example:"Please stop shaking your head indicating 'no,' M r. Plaintiffscounsel. Let the witness testify."Don't accept non-responsive answers. Repeat the question untilyou 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 himto court.If opposing counsel starts to "clarify" the record, let him. Then askfollow-up questions. You want to get information and you want toknow the position your opponent will take at trial. If the lawyer isprepared to state the position he's going to take at trial, you shouldlet him.The "silver bullet" and what to do about.Stipulate that the deposition may be used without signature.


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EXPERT DEPOSITIONSBY THOMAS J. Me DERMOTT, JR.

A . General:From a substantive standpoint, expert depositions are just like any other

deposition, except that they may be mO~7difficult to take because the deponentordinarily is more skilled in the subject matter than the lawyer, because thedeponent is probably a professional witness, because the deponent is intent onmaking 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 expertdepositions may be controlled by state or federal rules of civil procedure, by localrules or by court order. It is absolutely essential that the procedures for the timingof expert depositions and expert reports be researched in the jurisdiction in whichone is appearing. The rules differ dramatically and are constantly changing.

Generally, in state court, the expert designation is later than in federalcourt (in state court, 15 days before trial if following c.c.P . 2034), and in statecourt there may be only the necessity of naming the witness with a short statementwritten by the lawyer as to what the expert's testimony will cover. In federalcourt, generally, expert reports must be exchanged and the reports must becomprehensive and signed by the expert. Some federal courts use these reports asthe testimony of the expert. No direct testimony is allowed. The opposing partymay cross-examine the expert on the report~


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B. Use of Expert ReDorts. Files and Curriculum Vitaes:Obtain the expert's report, including the expert's entire file, by subpoena,

as early as possible before the deposition. Also subpoena the expert's curriculumvitae (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 previouslytestified (he/she will probably say there)s no such list).

Mark and authenticate all of these documents at the deposition.C. Consultant as Expert:

A person with particular expertise who is retained to aid in litigation is aconsultant. He does not become an expert until designated as such. While aconsultant, the work and comments of the consultant are protected by theattorney-client and work-product privileges. Once the consultant is designated anexpert, the privileges are waived and all communications, both oral and inwriting, between the consultant (now expert) and the lawyers, clients, etc., aresubject to discovery. Although you may only take the deposition of a designatedexpert, you will be able to inquire into all information exchanged since he/she wasfirst retained as a consultant. Failure of an expert to disclose what he intends totestify to may preclude the expert from testifying at trial. Kennemur v. State ofCalifornia, (1982) 133 Cal.App. 3d. 907.D. Taking the Deposition of an EXDert:

1. Generally, the taking of the deposition of an expert should proceedwith the same intensity, curiosity and follow-through as the deposition of anywitness. There are, however, certain special approaches that may be effective.


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2. The curriculum vitae and employment history of the expert shouldbe subject to intense inquiry. The aim is to establish that, perhaps, this witness isnot qualified to testify in this specific area. (If you develop the possibility, then itshould be brought out at trial, If you are unable to develop a weakness in theexpert's qualifications, then at trial you may attempt to "stipulate the expert asqualified - no need for counsel to estaqrsh that." Experienced lawyers will, ofcourse, insist on putting on their own expert's qualifications in some detail, butinexperienced lawyers may not.)

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,anything in the published articles. If you have obtained and read the witness'sarticles before the deposition, you may want to inquire. There is almost alwayssomething in the articles, particularly if the witness has published extensively,

that will contradict what the witness is now trying to establish. Usually, however,this line of testimony must be saved for trial because the articles are unavailableprior to the deposition.

4. Testimony in previous cases should be examined carefully. Doesthe witness regularly represent plaintiffs or defendants? How many times has thewitness testified? If you can establish that this is a professional witness, it mayhelp. But it may not. He/she is a professional witness because he/she is good.Also inquire as to whether he/she has ever failed to qualify as a witness in anycase. Aparticularly effective question is: "What percentage of your income isderived from trial consultation and testimony?"


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5. Has the witness brought his complete file? If not, what is missing?Did the witness prepare drafts? Where are they? Did counsel instruct him to

leave something in his office or to destroy something? What was the data that thewitness used? Where is it? Identify and mark the file in its entirety.

6. Explore all contacts with counsel and with counsel's client, bothwritten and oral. Explore all discoveIJ{ and writings between the expert'scolleagues, either those who work with him or outsiders. Ask for all notes madeat any meeting.

7. There are many ways to get into the substance of an expert'stestimony. One effective way is as follows:

Question: Do you intend to render an opinion or opinions attrial in this case?

Answer:

Question:Answer:Question:

Answer:Ouestion:Answer:Question:

Yes.

Please state that opinion or opinions?Yah da da .... yah da da ....As to your first opinion, upon what facts to youbase that opinion?Yah da da .... yah da da ....Where did you obtain those facts?Yah da da .... yah da da ....If the facts were slightly different as follows ,would it cause you to modify your opinion in anyway?


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

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

2. The expert can draft his/her own report.3. The expert will be timely in preparation.4. The expert can communicate effectively.5. The expert can teach.6. The expert's work product will be protected and not discovered.7. The expert needs no preparation for his/her deposition.8. You don't need an expert.9. The best way to use an expert is through a hypothetical.10. Experts should only "wash."

F. Tips to Avoid the Above Misunderstandin2:s:1. Emphasize over and over at the time the expert is first hired as a

consultant that the expert is to put nothing in writing until first speaking with you.2. Work with the expert to draft a report. In many instances, the

lawyer drafts the report himself. This is not particularly recommended becauseopposing counsel has a right to inquire into who wrote the report. However, theexpert's report, although accurate, very likely will not emphasize the materialsthat you wish to bring out in support of your case.


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'l 753. Be in constant communication with your expert to ensure that the

research, experimentation and documentation are moving forward in a timelymanner.

4. Select your expert carefully at the beginning. Communicationskills are essential and are lacking in many experts.

5. Try to find an expert whp:knows how to teach. You may not needa Ph.D. You may be better off with an MS who has the ability to communicate.'

6. Everything the expert communicates to you and everything youcommunicate to the expert will be discovered. It does not matter whether it's oralor in writing. Be extraordinarily careful in the communications.

7. Experts probably need more preparation for their depositions thanany other witness. Depending upon their experience, they mayor may notunderstand the process or be able to respond properly to it. In any event, no

matter how good the expert, he or she needs guidance with regard to points youare trying to make to win your case.

8. In most commercial litigation, an expert can be extraordinarilyhelpful. An expert is the only witness who can give a narrative answer withoutobjection. An expert is the only witness who can incorporate both facts andopinion to reach a conclusion as to what actually happened in a case. You shouldnever forego an expert where it is possible to use one.

9. Juries do not appreciate hypothetical questions. Try to avoid them.There is no need for an expert to testify hypothetically since there should be twoalternate 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 expertneed only comment on these two sets of facts.

10. Experts never "wash." One expert will always be perceived by thejury as the best. Ensure that. your expert is the best. The perception of the bestgenerally comes from the jury's belief that the expert is communicating withthem. The fact that the expert is a Nobel, laureate will have no impact if the expert

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cannot teach.


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DOCUMENT DEPOSITIONS WITHOUT NECESSITY OF APPEARANCE OFDEPONENT

.. . " .BY THOMAS J. MC DERMOTT, JR.

A typical notice of deposition aimed at obtaining documents will requestthe appearance of some corporate empl~yee who is the custodian of the particulardocuments desired. If the parties agree, the documents may be produced withoutappearance by the custodian. This resembles an ordinary document productionand copies of the documents may even be delivered to your office withoutappearance.

Under California Code of Civil Procedures, Section 2020 (Discovery froma Non-Party), one may choose to notice a document deposition either with orwithout requiring the appearance of the custodian of records. The provisions aredetailed and should be reviewed; however, the principle difference is the cost inrequiring the attendance of the custodian of records at the deposition.

Pros for DocumentDeposition Without Appearance of Witness:1. Flexibility.2. No time wasted of either lawyers or witnesses.3. Convenience.Cons of Document Deposition Without Appearance of Witness:1. You may want to question the custodian regarding the extent of

compliance. ~., are all the documents present, how are they organized, etc.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 documentsqualify as business records and, therefore, are admissible.


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~ 83WHEN TO SEEK JUDICIAL INTERVENTION TO EXPEDITE THE

DEPOSITION PROCESSBY THOMAS 1. Me DERMon. JR.

Depositions in general are governed in California by the Code of CivilProcedure, Section 2025(c). c.c.P . Seq~ion 2025(i) provides for protectiveorders. These orders may be sought for at least fifteen directions as follows:

1. That the deposition not be taken at all.2. That the deposition be taken at a different time.3. That a videotape deposition of a treating or consulting physician or

of any expert witness, intended for possible use at trial under paragraph (4) ofsubdivision (u), be postponed until the moving party has had an adequateopportunity 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 inthe deposition notice, if it is within a distance permitted by subdivision (e).

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

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 insteadof an oral deposition.


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8. That the testimony be recorded in a manner different from thatspecified in the deposition notice.

9. That certain matters not be inquired into.10. That the scope of the examination be limited to certain matters.11. That all or certain of the writings or tangible things designated in

the deposition notice not be produced, inspected, or copied...\12. That designated persons, other than the parties to the action and ~.

their officers and counsel, be excluded from attending the deposition.13. That a trade secret or other confidential research, development, or

commercial information not be disclosed or be disclosed only to specified personsor only in a specified way.

14. That the parties simultaneously file specified documents enclosedin sealed envelopes to be opened as directed by the court.

15. That the deposition be sealed and thereafter opened only on orderof the court.

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, courtsresist hearing discovery disputes and, in particular, are resistant to intervening inthe deposition process. There are processes short of judicial interventionavailable, and courts will insists that these processes be followed first. Forexample, it there are repeated instructions not to answer, when such objection isinappropriate, it would be best to first move the court on noticed motion to rule


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on the specific questions or specific subject matters at issue. Once rulings areobtained that lines of questioning are not objectionable, then you should receiveanswers at a reconvened deposition. If the refusals continue, you may then havegrounds to request judicial intervention,

It should also be noted that both state and federal courts require "meet andconfer"sessions prior to bringing any discovery motions ..~:

Where lawyers are constantly objecting, surreptitiously coaching the ,.,.witness, generally acting obnoxious, or engaging in other inappropriate activity,the best device to cure this behavior is to videotape the deposition. If the behavioris not modified, you can use the videotape to support your motion for judicialintervention.

The levels of judicial intervention are:(a) Normal discovery motions requesting that the deponent be ordered

to answer specified questions.(b) Discovery motions to request instructions or general rules of

conduct or to request that answers be ordered in specific areas or in specific linesof questions.

(c) Motions for sanctions based on inappropriate behavior by lawyersor witnesses. Sanctions would usually be monetary, most often representing thecost of the wasted time and the cost of bringing the motion. However, sanctionscan be as harsh as striking the defendant's answer if the conduct is so egregious asto prevent effective discovery or to destroy evidence.


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(d) Motions for judicial supervision of the deposition. This means aperson designated by the judge will supervise the deposition on a full-time basis.It may be a magistrate judge, a special master, a retired judicial officer, etc. Withthe 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

. ~:questions, to control the demeanor of the lawyers, and, in general, to require the.'same decorum that a judge would require in a courtroom in trial. Since this is anon-judicial officer, theoretically, he or she does not have the authority to hold aparty in contempt for failure to comply with an order, but the "DepositionOfficer" may recommend action by the judge who will almost always follow hisappointee's recommendation.

effective depositions in california 0001

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