Depositions are usually the most important part of litigation. A single deposition can, and often does, make or break a case.
WHAT IS A DEPOSITION?
A deposition is a proceeding in which a witness is required to appear and answer questions. Before the questioning begins, a court reporter generally administers an oath under which the witness must swear (or otherwise affirm) that he will tell the truth. The attorneys for the parties then take turns questioning the witness, and the court reporter makes a record of the witness’s testimony, usually stenographically.
WHO WILL BE PRESENT AT THE DEPOSITION?
There are usually at least four people present at every deposition. They include: (1) the witness; (2) the court reporter; (3) the plaintiff’s lawyer; and, (4) the defendant’s lawyer. In addition, the rules of civil procedure allow for the parties themselves to attend depositions, and it is not uncommon for parties to do so, especially for depositions of important witnesses.
If there is a large number of parties and lawyers involved in the case, then the size of the crowd at depositions can become quite large — sometimes filling up large board rooms.
WHAT IF THE WITNESS LIES?
It is a crime to give false testimony in a deposition. A lying witness is subject to both civil and criminal penalties. Of course the question is, how do you prove it? The answer is that you prove it like you would prove any other fact — with evidence. Therefore, you must marshall the evidence that supports your claim or accusation.
The evidence that a witness has lied may consist of inconsistent or contradictory statements by the witness. It may also consist of documentary proof or statements by other witnesses that expose the lie.
If you have the proof that the witness lied, you have several options. You may submit the proof to law enforcement and press for criminal prosecution. You may submit the proof to the judge, and request sanctions of various types against the witness and/or the party that may have suborned perjury. But regardless of whether you pursue any of the aforementioned options, you will almost certainly want to use that proof to expose the witness as a liar to the whole world in general and to the factfinder in your case in particular. In other words, you are going to expose and embarrass the liar right in front of the jury, and then allow the jury to swing the sword of justice.
WHAT IF THE WITNESS SAYS HE CANNOT REMEMBER?
I could fill volumes of books with my analysis of witness recall and candor. But for now, it will suffice to say that witnesses are people, and people store their memories in their brains, and human brains are not computers, and you should not expect people to be able to access their memories the way that computers access data. I do not expect witnesses to have perfect recall. In fact, I find witnesses with perfect-seeming recall to be quite suspicious.
If a witness claims not to remember, then I test that claim through my cross-examination. If a witness seems to be honestly unable to remember, then I do not accuse the witness of lying — that would be counterproductive; however, I may argue that the witness is unreliable because of his weak memory. But if the witness’s claim of non-remembrance does not hold up to my cross-examination, then I attack the witness just as I would for any other lie he might tell in the manner described above.
HOW LONG IS A DEPOSITION?
Under the Arizona Rules of Civil Procedure, the presumptive time limit for any single deposition is 4 hours. Four hours is plenty of time for most depositions where the witness’s testimony has a narrow scope. For example, absent some unusual circumstances, it should not take more than four hours to depose a non-party eyewitness to a car accident.
On the other hand, 4 hours may not be sufficient to depose a witness if the subject of his testimony is complex or the scope of his testimony is broad. In some cases, it might reasonably take several days to complete the deposition of a witness. In such cases, the presumptive time limit may be overridden by agreement of the parties or by order of the court upon a party’s motion.
A major factor affecting the duration of the deposition is the witness’s candor. When the witness gives honest straightforward answers, the deposition can be completed quickly. But sometimes depositions take much longer than expected because the witness gives evasive or non-responsive answers to questions. I call this tactic filibustering because these witnesses sound just like politicians trying to distract their audience from the truth by filling the room with words that are meaningless at best, but which sometimes veer into outright deception.
HOW MANY DEPOSITIONS WILL THERE BE?
The Arizona Rules of Civil Procedure do explicitly limit the number of depositions that may be taken, but they do impose limits as to who can be deposed, and how many combined total of hours that may be spent in deposition.
WHO CAN BE DEPOSED?
The parties can be deposed as a matter of right, and so can their expert witnesses. But non-party-witnesses are only subject to deposition by agreement of the parties or by order of the court upon a party’s motion. For example, suppose our case involved a truck accident in an intersection where the plaintiff alleged that the defendant truck driver ran the red light, but the defendant truck driver says the plaintiff ran the red light. Let’s also suppose that there was an eyewitness (we’ll call her “Edith”) who saw the whole thing. Edith would not be subject to deposition as a matter of right because she is not a party to the lawsuit, but Edith’s testimony would clearly be relevant and vitally important to the case. If either the plaintiff or the defendant wanted to depose Edith, the court would certainly allow it under these circumstances. Since the lawyers for the parties would know that the judge would not want to be bothered with matters the parties should be able to agree upon themselves, the lawyers would almost certainly stipulate that Edith could be deposed without either party ever having to file a motion with the court. Either party would have the power to serve Edith with a subpoena that would legally command her to appear and give deposition testimony.
TOTAL DEPOSITION HOURS
Under the Arizona Rules of Civil Procedure, cases get assigned to one of three tiers based upon a combination of factors, including their complexity and the amount of damages in dispute. Each side in a Tier 1 case is permitted 5 total hours of fact witness depositions. Ariz. R. Civ. P. 26.2(f). Each side in a Tier 2 case is permitted 15 total hours of fact witness depositions. Id. Each side in a Tier 3 case is permitted 30 total hours of fact witness depositions. Id.
WHERE ARE DEPOSITIONS CONDUCTED?
Depositions are usually conducted in the conference room of the attorney who “noticed” (i.e. initiated and scheduled) the deposition. Sometimes depositions are conducted in the office of the court reporter, in the conference room of a hotel or in the office of an expert witness. Depositions are not conducted at court.
Fortunately, the rules of civil procedure allow for depositions to be taken by remote means using audio and video conferencing technology. These types of remote or virtual depositions are becoming increasingly common. In fact, as I am writing this article, the world in the midst of a coronavirus pandemic that is forcing everyone, including litigants and lawyers, to undertake dramatic social distancing precautions. Because of that, the vast majority of recent depositions, and those that are scheduled to occur in the near future are being conducted by remote means. There are advantages and disadvantages of remote depositions to both sides.
WHAT IS ALLOWED IN A DEPOSITION?
Depositions are a form of discovery, and the scope of discovery is limited as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Ariz. R. Civ. P. 26(b)(1)
As you can see, the rule defining the scope of discovery is complicated, which often makes applying the rule difficult. When applying the rule to facts of any particular case, there is usually room for argument on multiple sides of any given issue. The difficulty of applying the rule is compounded in the context of a deposition because the judge is not present to make rulings on the application of the rule.
Attorneys are allowed to examine deposition within the scope of discovery, but there is often disagreement as to how that general rule applies in a particular situation. Occasionally the attorneys will attempt to call the judge during a deposition to get a ruling on a particular issue, but judges are generally unavailable to take those calls because they are busy managing the rest of their caseload. So what often happens in these situations is that the attorneys make their arguments to one another while they are “on the record” (i.e., the court report is transcribing their arguments), and then they can submit those arguments to the judge later.
As for the ongoing deposition, the attorneys usually agree to continue the deposition, to whatever extent that is possible, while reserving the right to reopen the deposition as to those issues that are the subject of dispute pending a resolution from the judge.
I have created numerous other blog posts and videos regarding issues that frequently arise in depositions that you can find by browsing through this website.
WHY ARE DEPOSITIONS SO IMPORTANT?
Cases are usually won or lost in depositions because very few cases actually go to trial. About 99% of cases end up settling at some point before trial. As I explained in this article, litigants base their settlement decisions on their expectations as to trial results. Depositions play a significant role in shaping those expectations because they offer a preview of how a trial might turn out. Depositions give the litigants a great opportunity to assess the following important issues:
- Is the plaintiff likable?
- Is the defendant likable?
- Are the witnesses credible?
- Is there anything in this case that is heartbreaking?
- Is there anything in this case that is outrageous?
- How good are the lawyers?
HOW TO PREPARE FOR A DEPOSITION
Preparing to have your deposition taken involves much more than simply resolving to tell the truth. I have created numerous videos and blog posts dealing with this subject, which you can find by browsing through this website. For now, here is a handy deposition preparation checklist:
- There will probably be just a few critical events upon which the lawyers will focus their questions. Talk to your lawyer, and identify the critical events you are likely to be asked about.
- Visualize the critical events.
- Consider what you know about the critical events.
- Consider the limits of your knowledge about the critical events.
- Practice describing critical events.
- Practice answering questions about the critical events.
- You may have certain habits, customs, procedures, or opinions that may explain certain of your perceptions, beliefs, or actions that are relevant to the case. Talk to your attorney to try to identify such habits, customs, procedures, or opinions, and practice explaining them.
- Practice answering questions posed to you about the same subject, but in various ways.
- Practice dealing with tricky, angry, and manipulative questions.
- Practice answering the questions you are hoping the other side does not ask you about.
- Practice pausing before you answer.
- Practice making sure you understand the question before you answer it.
- Practice responding to the question asked, and only the question asked.
- Practice brevity.
- Practice not taking offense to questions.
- Do not argue.
- Prepare yourself to stay strong throughout the duration of the deposition.
- Practice asking to take a break.
- Review documents, photographs, and recordings that are likely to be used in the deposition.
- Talk to your attorney about how to handle exhibits.
- Talk to your attorney about what to do when objections are made.
- Practice answering questions about your basic personal background, even if they do not seem particularly relevant to the case.
- Make sure you know the deposition location, and where to park, etc. Arrive at least 15 minutes early.
- Do not share what you and your attorney communicated to each other.
- Do not guess. Practice answering questions without including guesses.
- Practice recognizing the limits of your knowledge.
- Practice answering “I do not know” when appropriate.
- Practice dealing with follow-up questions that are likely to be asked when you say you do not know something.
- Be truthful.
The philosophies, strategies, and tactics I’ve outlined above are the principles that guide our actions at Cluff Injury Lawyers. I’ve outlined them pedagogically to help anyone who wants to better understand these principles or improve their skills in utilizing them.
Author: Brigham Cluff