Deciding Who To Depose (part 2)

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01Dec2008

Deciding Who To Depose (part 2)

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By Stewart Weltman, Esq.

who to deposeIn Part I of “Deciding Who to Depose” I discussed why a blunderbuss approach to creating a deposition program is inadvisable – both because of litigation costs and litigation strategy.  This article is about the basic decisional approaches that one needs to take in order to develop a meaningful deposition program designed to get your case properly prepared for summary judgment and trial.

In my prior article, I ended by discussing the six main categories into which witnesses can be placed.  I will now address each category.  But before addressing the categories here is an approach that should be used for every potential witness.   One of my good friends [and one of the finest trial lawyers in the country that I know] relayed to me a very interesting approach that he takes – he operates under the presumption that no depositions should be taken and that the person asserting that a deposition should be taken must do so by clear and convincing evidence.

A high burden to say the least but its spirit is dead on. Depositions should only be taken when absolutely needed.  In any event, regardless of what burden you adopt in deciding whether to depose someone, here are some threshold questions that must be asked about every potential witness:

  1. how will the witness’ testimony further the ball in our preparation for summary judgment and trial?
  2. are there other means of establishing what this witness is going to say – e.g. via the written documents, a declaration/affidavit?
  3. what are the key questions we intend to ask and what do we believe will be the witness’ answers?
  4. will asking these questions and receiving the anticipated answers help in our preparation for summary judgment or trial or are we better off waiting until trial to ask these questions?

Now to the discussion of the various witness categories I previously noted in my prior post:

1. witnesses controlled by the other side that you believe are going to be key witnesses for the presentation of your case in chief;

What are the key characteristics of this witness? First off, someone controlled by the other side means that they either are a current employee or they are a former employee who has indicated that they are going to be represented by counsel for the other side. They are key to your case because either (1) they were a witness to some event or occurrence that is important to your case and there is something that boxes them into having to provide testimony favorable to your side [e.g. documentation – either a signed statement or other document authored by them] or (2) they have authored documents that contain key admissions helpful to your case.

With this sort of witness, you should start with the presumption that you want to first meet this witness when you walk up to cross-examine them on the witness stand at trial.  This is particularly so if you can obtain a stipulation from the opposing side that the documents you are interested in were authored by this witness, are authentic and are business records.  Such stipulations are routinely agreed to.

Having said that, there are counter arguments, however, for taking this witness’ deposition.   One of the paramount ones is that you might want to find out, prior to trial, what this witness intends to say about a particular document or documents.  In other words, rather than rip them to shreds with your best cross examination during their deposition, you might conduct an examination calculated to draw out what they intend to say about the document.  In this way, you can better prepare your trial cross exam.  But again it must be emphasized that the purpose of the deposition is only so you can develop a better cross exam at trial – not to use up your best cross exam during the deposition.

If there are no boxing documents but you know that the witness has material knowledge about the events involved in your case and you believe, for whatever reason, that they may recount the event in some fashion that is favorable to your case, then it is probably best that you do depose them to find out what they are going to say. Again, I would not use the deposition to conduct a cross-examination but approach the deposition with the attitude that you just want to find out what they are going to say. If during the course of conducting the deposition you are presented with an opportunity to nail their testimony into a corner that is favorable to you, then you can choose to pounce on it. But I would not approach such depositions with this expectation.

2. witnesses who you believe are going to be key witnesses for the other side and which the other side will be able to bring to trial;

I would only consider deposing those witnesses under this category whom you believe are going to be doing the heavy lifting for the other side’s case. But once you determine who these are I believe that you should depose them only because you need to find out what the other side’s case is going to be about. Again, with these witnesses your only objective should be to find out what it is that they are going to say and stretching them to their furthest limits in terms of what and how they are willing to say it.

3. witnesses currently controlled by you who provide needed testimony and who for whatever reason may not be available at trial;

Quite obviously, witnesses under this category must be deposed by you. I would prepare them for their deposition just as you would a witness at trial. I would also recommend that it be video taped. Video tape is the only way to go these days in presenting deposition testimony at trial. Since this deposition is presumably going to be shown to the jury, you should prepare an examination outline in an expository fashion in the same manner as you would if you were conducting their direct examination at trial. Prepare the witness for their cross examination too just as if you were going to defend their deposition.

4. third party witnesses who are within the subpoena jurisdiction of the court and who may testify either favorably or unfavorably for your case;

For third party witnesses who are within the subpoena jurisdiction of the court and who may provide favorable testimony for your side, it would be preferable to obtain a sworn statement rather than deposing them. If they have counsel, sometimes their counsel can get in the way of obtaining an acceptable statement that is close to what they would say under oath. In such situations you may have to depose them in order to lock in their testimony before trial. Whether you take their deposition or take your chances at trial are judgment calls that are fact specific to the witness and what they may have to say. For third party witnesses that may provide unfavorable testimony and who are within the subpoena jurisdiction of the court, you should treat their deposition like a witness under category no. 2 above. You want to find out what they have to say so that you can prepare for cross examination at trial.

5. third party witnesses who are not within the subpoena jurisdiction of the court or otherwise not available at trial and who may testify either favorably or unfavorably for your case;

For those third party witnesses outside the subpoena jurisdiction who may provide favorable testimony, you need to depose them in a similar fashion to those in category no. 3 above. For third party witnesses outside the subpoena jurisdiction who may provide unfavorable testimony and who will not be available for trial this is a dicey proposition. If you are pretty sure that they will not voluntarily come to trial then don’t depose them – unless of course your opponent notices up their deposition. If there is a reasonable chance that they will be willing to come to trial, then you need to treat them like a witness under category no. 2.

6. witnesses currently controlled by you who provide needed testimony and who will be available at trial. No need to depose them at all- unless there are health issues in which case they then come under category no. 3 favorable witnesses.

I believe this covers most witness situations. Happy hunting.

About the Author:

Over the last 28 years, Stewart Weltman has been a lead and trial counsel in numerous complex litigation matters for both plaintiffs and defendants, ranging from antitrust, accounting malpractice, legal malpractice, securities fraud, patent issues, contract actions, and consumer fraud.

Mr. Weltman was a partner with the nationally known plaintiffs’ complex litigation firm, Cohen Milstein Hausfeld & Toll P.L.L.C.. In January 2007, Mr. Weltman formed the Weltman Law Firm.

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