Preparing for Your First Deposition

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01Nov2010

Preparing for Your First Deposition

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By George T. Williams, Cutting Edge Training

“It” happened.  You have been named as Defendant in a civil rights lawsuit in either state or federal court resulting from a force response incident.  You were served with the lawsuit some time ago.  You have met with your civil attorney (who may or may not work for your jurisdiction’s Attorney’s Office).  You likely have already been required to respond to Interrogatories (written questions answered under oath), and have now been notified that your deposition will be taken at a date not too far in the future.  You may have been subpoenaed.  Like most officers, you figure, “No big deal…I testify in criminal and traffic court all the time.”

This attitude and belief will likely cost you and your agency dearly in your upcoming trial.  While officers have been taught that a “trial” is the pinnacle of the officer’s efforts as a witness in a criminal proceeding, the same is not true in a civil trial.  Your case, and the possible adverse award by the jury against you and your agency, will rise or fall on both your trial performance and deposition.

A deposition is testimony given under oath in an informal setting.  Depos are primarily conducted at one of the attorney’s offices.  Generally, the only persons present are the opposing attorneys, the plaintiff(s), the defendant officer(s), and a court reporter.  Some will be videotaped with a professional videographer present.  DO NOT LET THIS INFORMAL SETTING FOOL YOU—everything you say will be presented to the jury in some way, and always in a manner that is advantageous to the attorney using your testimony to influence the jury to his or her version of the events.

Formally, depositions are part of the discovery process.  The reality is the depo is an opportunity for the opposing attorney to ask any question on practically any topic related to the case, your job, education, training, and even your prior employment.  It is a fishing expedition that is governed by the rules of evidence, including objections by your attorney (you are required to answer even though there is an objection—unless you are directed by your attorney not to answer).  You will likely be questioned detail by detail, as the minutiae of the case is explored and examined.  While improper and cumulative, Plaintiff’s attorney will likely ask you the same question over and over again, over the repeated objections of your attorney.

Every word of your resulting deposition testimony will be scrutinized by Plaintiffs and their highly paid experts for inconsistencies and omissions from your previous testimony (your written report(s) and/or oral interview(s)).  You will likely be asked the same questions in your civil trial, and your previous testimonies and reports will be compared to the answers given in front of the jury.  This is an attempt to impeach you, making it appear that your inconsistencies are a result of your being untruthful.

Like you, jurors hate liars.  The Plaintiff’s attorney will do everything possible to make it appear that you are not telling the truth, are evasive, and not consistent.  If you give an opening through sloppy reporting or deposition testimony, the opposing attorney may be able to seize an advantage.  If it happens, the jury will likely turn on you, providing a huge judgment to the Plaintiff, and a big payday for his/her attorney.

photoAs a defendant officer, it is vital to understand this fact:  As a police specialist—a skilled investigator and first responder, capable with your force tools and firearms—you are a competent officer on the street.  But as a defendant, you are no longer on the street—you are in the “legal” domain where the attorney is more highly skilled at what he or she does in that courtroom than you are.  As a Defendant walking into a deposition, it is to your benefit to assiduously prepare for your testimony.  Flippantly believing that you will “handle” the deposition based on your normal criminal witness expertise often results, at best, in a lackluster performance that does not assist your defense.  At worst, your testimony at deposition will lose the case for you, even though you did a good job during the incident.  Fair or not, that is the reality of the civil arena.

Preparing for your deposition depends minimally upon three factors.  First, understand the overall theory of the plaintiffs and how they will attack your testimony. Second, know your policy, force laws, and training.  Last, know the facts of the case as you perceived them at the time, and understand the difference between the testimony you are used to, and the very different world of your new role as “defendant” in a civil case.

PREPARATION:  Plaintiff’s theory

Some police civil defense attorneys are incredibly good.  Some are plainly incompetent.  Most are average attorneys.  If you are represented by a good attorney, you will be extensively briefed about what to expect and where the Plaintiff will likely focus his attack.  If not, there are ways of gleaning what the thrust of the opposing attorney’s questions will be.

One of your first stops is to make an appointment with your agency’s risk manager.  These are individuals who manage risk for a living.  Your risk manager should be able to give you an overview of the case and where the Plaintiff’s attorney is focusing in your case.

The Plaintiff lays out their theory of the case in the Complaint.  There will be a fact pattern that is alleged to have occurred that will generally be very different than the facts you remember.  They will allege various failings and civil rights violations you committed during the arrest and subsequent force response.  They will likely allege that you knowingly had no probable cause or reasonable suspicion to contact the individual in the first place.  They will likely accuse of maliciousness and a deliberate disregard for the law and the rights of the plaintiff.

You will either laugh or be outraged, but these are the allegations you will be forced to deal with for the next couple of years of your life.  Sometimes the more outrageous the allegation, the more difficult it is to disprove (it is often easier to prove you did something, rather than prove you didn’t do some act).  Don’t be surprised if the allegations seem to change as the Plaintiff’s attorney discovers that the original story his client provided doesn’t jibe with the evidence.

These allegations will be the starting point in your proving your proper conduct and disproving their version of the “fact pattern.”  Once you understand how you will be attacked, you can begin to prepare your defense.  The Plaintiff gives you your blueprint.

PREPARATION: Policy, law, & training

Plaintiffs attorneys are getting better and better at their jobs—which is to take tax money away from your jurisdiction, and, if possible, out of your pocket (although relatively rare in the real world, “punitive damages” is where the officer is personally punished by the jury and required to pay out of pocket for malicious and/or extremely reckless behavior).  Hoping you will come up against an incompetent opposing attorney is not a realistic strategy.  Knowing how they will attack you and readying your defenses is.

It is to the Plaintiff’s benefit to portray you as incompetent and ill-trained (or even untrained).  Therefore, they will look for weaknesses in your job knowledge.  You will be asked questions about:

Force Policy.  Read, understand, and know your policy.  Know when can you respond with specific force tools—and any limitations.  You will be asked when you must report your force response to your supervisor, as well as when you are required to report.  Your being “conversational,” or able to easily discuss your agency’s policy requirements will assist you during the inevitable examination of your understanding of the policy.  If your policy requires you to employ “minimum force in order to minimize injuries” (a very poorly thought out policy provision), be able to explain why your actions were within policy.

Valid Core Transaction.  A “valid core transaction” is fancy lawyer-speak for “What was your legal basis for contacting the suspect?”  Whether the incident arose from a consensual contact, a detention (investigative, Terry frisk for weapons, or officer safety), or probable cause for arrest, every evaluation of your force response rests upon a legally sound basis for contact.  It is a fact specific, fact dependent analysis of why you were legally permitted to be doing what you were doing when you perceived the need to respond with force.  You shot the suspect because he pulled a gun and began firing at you?  No problem—completely justified…except, that is, if you were in the house without a warrant, without exigence, and with the consent of an obvious minor who let you in the house.  In this instance, you had no right to be there, and your claims of self-defense have no legal validity.  Your fundamental justification for contacting the individual must be legally sound and defensible.

The Plaintiff’s attorney will likely explore your training and expertise regarding:

  • What is required for a consensual contact?
  • What is required for a detention?
  • How were you trained that reasonable suspicion is defined?
  • What is necessary for an arrest?
  • How were you trained that probable cause is defined?

Knowing the key components and being able to provide all of the facts you depended upon at the time you contacted the offender will be the basis for the beginning of your justification of your force response.

Force Law.  You will be asked about your training in what is permitted by law regarding defense or control of the subject.  KNOW THE LAW—this is simply being professional.  Minimally, be conversational with the key components of Scott v. Harris (2007), Graham v. Connor (1989), and, if you shot someone as they were fleeing, Tennessee v. Garner (1994).  Also, know your state’s law(s) enabling you to respond with force, especially if it has different requirements regarding the force response.

If you shot someone in a standup gunfight (even if it is a “mistake of fact” shooting), know the “deadly force threshold” permitting you to respond with deadly force (“I had an objective and reasonable belief that my life and/or the life of others was in actual or imminent danger of death or serious physical injury based on the totality of the facts known to me at the time.”).  By the way, when asked, your intent in responding with deadly force was to “save” a life (yours or others)—NOT to “kill” the suspect!  While shooting to “stop” is proper and correct, it is more accurate to describe the deadly force response as the life-saving act it always is.

This ability to explain the laws regarding force response is simply seen by the jury as “fundamental job knowledge.”  Consider what your own response might be to a surgeon who doesn’t seem to understand the biological processes of the body or fumbled around trying to remember basic anatomy—chances are, you wouldn’t permit him to perform surgery on you.  In the same way, a police officer who cannot talk about the laws permitting him to hurt, injure, or employ deadly force against a suspect is seen as ignorant and untrained.  This is never pretty in front of a jury.

photoAdditionally, federal case law does not require officers to explore “lesser alternatives to force.”  You are required, based on the totality of the facts known to you at the time, to respond with objectively reasonable force.  Your job is to explain your actions to meet the “reasonable officer standard” (would another officer with similar training and experience, given similar circumstances, make the same decision or react in a similar manner as you did?).

Force tools.  You will be closely questioned about your training and knowledge about the weapons you carry—especially if that weapon was employed against the Plaintiff.  Knowing the make, model, caliber, maker of the ammunition, bullet type and weight, etc., will demonstrate a level of training and expertise with your equipment.  Again, drawing from other professions, imagine a carpenter who cannot discuss different tools and brands of tools used within his profession.

Recent problems in this regard is testimony regarding the Taser.  Many officers carry it.  They have a reasonable understanding of when to employ it and do a good job responding to suspect threat.  However, when asked to explain how the device functions, including specifics about voltage, who it is suggested through training that officers refrain from tasing, etc., many struggle through this or provide incorrect information.  For instance, one police officer testified that the Taser is intended to gain compliance, and refusal to comply immediately is resistance sufficient to be tased.  Another testified that he was trained that a Taser was impermissible to be used on a subject who is wet or in water (in a case where the subject was under the influence of drugs and profusely sweating).  Yet another testified that there was no data capture ability on M26 Tasers.  Each of these officers’ explanations of Taser operation and employment was incorrect, and each had problems during their testimony as a result—not because of their actions during the force response but a result of their explanations and the appearance of being unfamiliar with the tools of their profession.

Prior to the deposition, contact your agency trainer and set up a formal meeting to review everything about that force tool.  Know the specifications peculiar to that particular tool.  Knowing manufacturer, optimal distances, weight, maintenance requirements, etc., and answering every question confidently and correctly will create a disincentive to the Plaintiff’s attorney to continue to make you look well trained.  The result will be fewer questions about your job knowledge (since it is not in her best interest to demonstrate a knowledgeable, confident officer) and more about the incident and your actions and perceptions.

PREPARATION: Know the facts of the incident

Many officers wander into a deposition, thinking they are prepared to answer any questions that might come up simply because they skimmed their report “two weeks ago.”  Generally, this doesn’t work out well for them—remember, this is not criminal testimony.  You are the defendant, and are seen by the jury as someone with something to lose.  It is not unusual for a deposition to take four to seven hours in a case with an arrest involving a 20-second scuffle with injuries no greater than scrapes and a couple of bruises.  Remember, 55% of all federal civil rights lawsuits involve force no greater than control holds, takedowns, and handcuffing.  In these cases, the “injuries suffered by the Plaintiff” are often completely healed within 10 days.  And you will be required to fully justify all of your actions and statements at the scene like it was the biggest event that ever happened in the history of policing.

During your sworn testimony at deposition, a competent Plaintiff’s attorney will take you second-by-second, and sometimes microsecond-by-microsecond, through the incident.  This is an exhaustive and excruciating examination of the details as you believe them to be and why you believed you responded reasonably.

To prepare for any deposition in which you are a party:

  • Study—don’t just read—your reports, interview transcripts, and any information generated from the case that involves you.  Know the case from your perspective.
  • Study the Plaintiff(s)’s depositions, Citizen Complaint Forms, Plaintiff’s expert witness report, etc.  Knowing what the Plaintiff is contending will give you a real good idea of where the questioning will go.
  • Visit the scene and, if possible, at approximately the same time as the incident.  Note location of objects and structures, their relative distances and sizes, and lighting issues, if any.  If the incident took place inside an apartment still occupied by the Plaintiff, there are often empty apartments that are identical or mirror images to the actual location.
  • Be clear about the cardinal directions of the location.  Know that if Officer “A” was to your left, he actually was standing southeast of you.
  • Discuss your perceptions and memories of the event with your attorney.  The more you discuss it in a professional manner, the better your testimony will be.
  • Listen to the dispatch tape.  This will assist you in determining timing and affirming your memory of the sequence of events.
  • Get some sleep.  Working a midnight shift and then showing up at 09:00 hours to give testimony is not a good idea.  Ask to be excused from shift the night before any deposition and be fresh.

The Deposition Itself

Be early to the deposition.  Even though there is no judge present, any disrespect shown to the process will not bode well for you.  This is the first look that the Plaintiff’s attorney will have of you.  Think about it from her point of view.  The attorney will not get paid unless she wins the case—that’s about three to five months of income she’s betting on this case.  This is her first opportunity to evaluate you.  Go into the deposition in a clean, pressed uniform, shined shoes, fresh haircut, and organized (some attorneys will ask you to be in a suit and tie for all court proceedings).  Have a copy of the materials you reviewed with you, preferably in a briefcase and organized.  Present a professional image of the stand-up, honest cop that you are.  Your being squared away in your deposition may sway her against putting a lot more time into this case.  That’s a good thing for you.

Some opposing attorneys are polite and professional to defendant officers.  Others are incredibly nasty, rude, and condescending.  A few are simply bullies.  One has a practice of announcing once each deponent officer has been sworn in that he (the plaintiff’s attorney) wants to extend the “courtesy” to the officer of knowing that he will be turning over the officer’s sworn deposition to the US Prosecutor at the end of trial for investigation and possible prosecution for perjury.  He also states that he is proud that two officers are being tried for perjury as a result (it’s curious that he has said the same thing the same way at the beginning of officers’ depos for many years now, and it seems that the same two cops are perennially being tried for perjury).

Regardless of how the Plaintiff’s attorney treats you, you will be expected to act in the same manner as you perform your job in the field:  polite professionalism.  Professional answers, clear and concise, just the same as you will in court.  Being a smart-aleck and whipping out sarcastic answers may feel good or seem funny at the deposition, but that will change dramatically when your testimony is read word for word to the jury at trial.  Remember, if you cannot control your mouth—or your temper—during testimony, how can the jury trust that you were in control of your mouth and actions during your force response?

The issue of time and memory may arise in a civil trial.  It is not unusual for a deposition to be three or more years post-incident.  Your written report and/or audio-recorded oral interview contemporaneous to the incident may contain information and perceptions that you simply don’t remember at the present time.  The best testimony is always the truth:  “I don’t remember as I sit here today.  However, my written report contains that information.”  Refreshing your memory is part of the purpose in writing a report, and it is okay to have a human being’s memory that doesn’t recall the details of an event years later.

photo

Always be clear and comprehensive in your deposition testimony.  Many judges are limiting evidence at trial on the basis of that evidence not being a part of the officer’s “state of mind” at the time of the incident.  Generally, the basis for these exclusionary judgments are:

1.    The officer did not report that knowledge or fact in his first report, and/or;

2.    The officer did not testify to the knowledge of that fact in his deposition.

The importance of being comprehensive cannot be overemphasized.  Failing to document the belief or the objective signs of being under the influence of either narcotics or alcohol has resulted in key toxicology reports being excluded from the jury and any mention of the suspect/decedent’s being under the influence prohibited during testimony.  Imagine attempting to describe why you responded with force, including deadly force to stop an irrational assault, yet not being permitted to explain the basis of that out-of-control behavior because testimony is limited and evidence has been excluded by the court.  Frankly, it has resulted in many adverse judgments where the officer achieved reasonable conduct but was unable to prove it later at trial.  If you forgot or neglected to provide information in your report, ensure the information in your deposition is comprehensive and complete—hopefully the judge will permit all of the facts known to you at the time of the incident into evidence.

In the deposition, as in trial, the opposing attorney is permitted to mislead you and to misquote the evidence during your questioning.  Be on your toes if the attorney begins any question with, “Isn’t it true that…” or “Do you agree that…”  It is almost assured that what follows will be a misrepresentation of the facts, your policy, and/or the law.  If it is not 100% accurate, NEVER agree with the attorney’s version.  Restate the question to include the facts, policy, or law as you know and have been trained.  Take charge of your testimony and do not permit the opposing attorney to put words in your mouth.

If you misstate something, or realize that your prior testimony in the deposition was incomplete, correct the record.  Interrupt the proceedings, explain that you need to add or change your testimony.  You will be given the chance.  If you need to change your testimony in a manner that contradicts your earlier testimony, explain the context of your understanding of the question at the time, and why you misunderstood or answered incorrectly.  Above all, get the record right before you leave.

Conclusion

In our society, it is important that limits to police power and behavior be monitored and enforced.  This process will not be pleasant for the men and women who protect the public by putting their lives on the line daily.  Many officers resent being grilled by attorneys who intentionally misrepresent the officer’s intentions and actions.  The civil process can scar officers and create life-long cynicism in otherwise good officers.  Preparing for this long, sometimes painful process can lessen the trauma and will increase the likelihood that the jury can be made to understand what actually happened and arrive at an informed verdict.

Plaintiffs’ attorneys are not supermen or superwomen.  Some are incredibly gifted at their craft.  Most are just average attorneys—more than a few are dolts.  They are litigating a case against you, and their every effort will be to make you appear to the jury to be untrained, incompetent, predatory, callous, and malicious.  Their clients, the “suspect-turned-defendant-turned plaintiff,” will tell a tale of official malfeasance and abuse that will likely be very different than the incident you remember.

Thinking that because you did a good job on the street and handled the incident within policy, law, and training that you will be automatically vindicated by the jury is a recipe for disaster.  While you are in control on the street, you will be well served to remember that you are the defendant and in the opposing attorney’s battle space.  This is their job, not yours.  They get paid only if they prevail in this case and convince the jury to award their client vast sums of taxpayer money.  If they can portray you as an out-of-control thug, the more likely they will get their payday.

You did the job on the street.  If you want to win the civil trial, you must be prepared to provide the best testimony of your life.  It will be too late after you have been served with the lawsuit to rewrite your first report to be as comprehensive as you will later wish it to be.  Your testimony in the criminal defendant’s trial will commonly be brief and not comprehensive.  By the way, transcripts of your testimony will likely be introduced into evidence in the civil trial.

Your first real opportunity to provide the whole story from your perception of the events will be your deposition.  The more thoroughly you prepare, the more likely the deposition will help you to accurately convey your case and prepare you for trial.

You did the job in the field.  Now do the job that’s required to prevail in the civil trial.

About the Author

Mr. Williams  is a Police Training Specialist and the Director of Training for CUTTING EDGE TRAINING, LLC, in Bellingham, Washington.  He has been a trainer of police overall since 1981 and a full-time trainer since 1987.

He is responsible for the development and presentation of unique and varied training programs to SWAT, patrol, K9, and Police Administrators, as well as certifying instructors in Defensive Tactics, impact weapons, and shooting.  His experience in training law enforcement ranges from police academies, through municipal and county agencies to the state and federal government level.  A SWAT tactics and weapons trainer, he has been a consultant to several dozen teams in the Western United States over two decades.  As a Police Training Specialist, he has personally trained officers from all 50 States and several U.S. Territories, as well officers from 14 foreign countries.

Mr. Williams is a California P.O.S.T.-certified Police Master Instructor and he has published a book, which is currently only available in electronic form, but soon will be in soft cover, entitled, “Preparing for Your Civil Deposition:  A Guide for the Law Enforcement Professional.”

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