By Alan Hoffman on December 4, 2017
A previous post discussed preparing witnesses for their depositions. After a witness has been prepared for deposition it is the lawyer’s job to protect the witness, the client, and the record—a task that has many challenges, perils and pitfalls, but particularly so in products cases which often involve complicated design, risk-benefit, “safety” and warnings issues. Here are some suggestions for product lawyers and witnesses.
Never agree to a deposition at a client’s office. The potential for distraction, compromise of client information, and demands that the witness search for documents and information during the deposition outweighs any possible benefit. If the witness is ill or indisposed, postpone the deposition. Such contingencies must be anticipated, and accommodated.
Lights, Camera . . .
If a video recording will be made, only the witness’s face and shoulders appear on screen, and all distracting items should be out of sight to the camera.
The witness should dress comfortably but appropriately. Business casual is usually fine. The video image is all that a judge or jury may ever see, and appearance influences credibility. A witness who looks like a bum rarely impresses a jury or a judge. And remember—everything is on the record, unless the reporter stops and the videographer turns off the camera.
Are We Having Fun Yet?
The witness should be as comfortable and relaxed as possible—calm, but alert. Depositions are not social occasions, and small talk should be avoided when other lawyers are present. Colloquy with other lawyers, on or off the record, should be courteous and professional.
Lengthy “speaking objections” are disfavored as time wasters and a device to coach the witness on how to answer. Federal Rule 30(c)(2) states, “An objection must be stated concisely in a nonargumentative and nonsuggestive manner.” State rules and practice vary widely, but stating what is problematic about a question, “concisely in a nonargumentative and nonsuggestive matter” is not difficult. Objections to the form of a question as assumptive, calling for speculation, or calling for an opinion or conclusion for which a foundation is lacking are proper, and do not constitute “coaching.”
Normally the witness must answer all questions, subject to objections. But there are important exceptions. The lawyer should instruct the witness not to answer a question calling for privileged matters. The lawyer must be alert to the possibility that an answer that could disclose privileged matter and ensure that the witness does not answer. It may be possible to rephrase a question to avoid privileged matter; otherwise the witness should not answer. And a witness should not be required to answer questions calling for irrelevant personal information unrelated to the issues in the case.
In corporate or organizational witness depositions have the deposition notice marked as an exhibit, and put on the record the topics about which the witness is designated to testify on behalf of the organization. It is appropriate to object to questions that go beyond them, and the answers should not bind the entity.
Taking a Break
Recess the deposition if the witness is not feeling well or having difficulty. If the facts have been misstated, assess whether the error can be corrected on the record. Review the facts and what is in the record. The lawyer should object and instruct the witness not to answer questions about “what did you discuss with your lawyer?” during breaks. The attorney–client privilege is not waived by conferring with a witness off the record during a deposition.
Here Comes the Judge
Courts have broad—but not unlimited—discretion in policing lawyers’ actions in depositions. Rule 30(d)(2) says that courts may impose “an appropriate sanction” on a person who “impedes, delays, or frustrates the fair examination of a deponent.” Make every effort to avoid forcing a judge or magistrate to decide such issues.
Read and Sign
Ensure that the transcript is free from transcription errors and factual errors in the testimony. Do not waive reading and signature when the deposition is concluded. Review the transcript carefully and make sure that all errors are corrected.
Preparing and defending depositions is much more challenging than taking them. The rules of engagement are less than clear, and are fraught with ethical perils. Difficult judgment calls often must be made in the heat of battle, with little opportunity for careful consideration, and at risk of sanctions for error.