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Steppin’ Up And Steppin’ Out How to Take and Defend Depositions in a Civil Case

Presented by Matthew Jensen

Written Materials by: Matthew S. Jensen, Christopher B. Turney,

Nate Lindsey and Patrick Murphy Rasmussen, Willis, Dickey & Moore, L.L.C.

Kansas City, Missouri

Table of Contents

Introduction ..................................................................................... 1

Fact Witnesses ................................................................................ 2

Damaging .................................................................................... 2

1. How do I schedule a deposition? ........................................... 2 2. How should I prepare for the deposition? ............................. 4

3. Who are you deposing? ......................................................... 8

4. Planning for adversity during the deposition. ....................... 9

5. Make sure to create a valuable record for trial. ................... 10

6. Developing trial testimony. ................................................. 12

7. A note about corporate representatives. .............................. 14

Defending .................................................................................. 16

1. Preparing for the deposition ................................................ 16 2. Defending the deposition ..................................................... 17 3. After the deposition ............................................................. 18

Expert Witnesses .......................................................................... 19

Damaging .................................................................................. 19

1. Missouri law on experts. ..................................................... 19 2. Know the expert’s field. ...................................................... 20 3. Explore the expert’s bias. .................................................... 21

Defending .................................................................................. 22

Conclusion ..................................................................................... 23

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Introduction

his section pertains to depositions and is organized in two primary sections: Fact Witnesses and Expert Witnesses. Under each primary section, there are two sub-sections that address damaging (cross-examining) and defending (producing) the case through each type of

witness. Litigation is a field in which art blends with science; preparation blends with split-second reactions; and varying personal style blends with formalistic principles. Accordingly, each attorney will develop his or her own hue in the spectra that distinguishes attorney styles. This paper is intended to highlight some commonly encountered situations that arise in depositions. Hopefully, the reader will be left with questions as to how he or she will handle such situations, how he or she will react, or how such situations will be avoided altogether.

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H O W T O T A K E A N D D E F E N D D E P O S I T I O N S I N A C I V I L C A S E

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Fact Witnesses

D A M A G I N G he primary purpose of cross-examination is to damage your opponent’s case by diluting its elements of proof or bolstering your evidence. In cross-examining fact witnesses, consider who you are deposing, plan for adversity during the deposition, develop a pre-deposition investigation plan,

and make sure you end up with a transcript that is valuable at trial. Although most of this section is written with the assumption that the deposition approach is that of a discovery/factual development exercise, Missouri depositions can also be used at trial in most circumstances. Accordingly, the end of this section describes some important considerations for trial testimony.

1. How do I schedule a deposition?

Before you get to the deposition, you must know how to get to the deposition. Refer to Mo. R. Civ. P. 57.03 with regard to scheduling a deposition. As referenced above, there are time limitations imposed in section (a).

If you wish to depose a party, Rule 57.03(b)(1) requires that you serve a Notice of Deposition and that you provide no less than seven (7) days’ notice,1 in writing, and to the proposed deponent, and every other party to the case. The notice must state the following:

- The time at which the deposition will be taken, - The place at which the deposition will be taken, - The name of the person to be deposed, and - The address of the person to be deposed.

Rule 57.03(b)(1) also refers to the situation in which you wish to depose a party and would like for that party to bring documents to the deposition. In this instance a

1 Pursuant to Mo. R. Civ. P. 57.03(b)(2), the court may for cause shown enlarge or shorten the time for taking a deposition. Mo.R.Civ.P. 57.03(a) also imposes additional limits such as: (1) plaintiff may not, without leave of court, take a deposition prior to 30 days after service of the summons and petition against a defendant (unless the defendant has also served a notice of taking deposition and/or sought his or her own discovery); (2) a non-party witness may be compelled to testify if served with a subpoena under Rule 57.09; and (3) the deposition of an incarcerated person may only be taken with leave of court and under such terms as the court orders.

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Consider who you are deposing

Plan for adversity

Develop a pre-deposition

investigation plan


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Notice of Deposition Duces Tecum must be served on the party deponent and it, in addition to the foregoing requirements, must include a designation of materials to be produced. This designation may either be attached as an exhibit to the Notice of Deposition or included in the actual Notice of Deposition. The Notice must follow the procedure in Rule 58.01.

Rule 58.01 permits any party to serve on any other party a request to produce items such as documents, electronic records, or a request to inspect, copy, test, and/or sample tangible things that are in the possession of the party upon whom the request is served. If you decide to attach a Request for Production of Documents and Things to the Notice of Deposition, any such items must be in the possession, custody, or control of the party you wish to depose, assuming that they fall within the discovery rules of Rule 56.01(b)(1)—“any matter, not privileged, that is relevant to the subject matter involved in the pending action.”

In addition to requesting documents from a party by accompanying the request to a Notice of Deposition, the Missouri Rules also afford a party the ability to both depose and obtain documents from a non-party.

Rule 57.09 governs the procedures for subpoenaing a non-party witness. The subpoena may be served on the non-party by a sheriff, sheriff’s deputy, or any other person who is not a party and is not less than 18 years of age. Rule 57.09(d)(1-2). Service is accomplished by delivering a copy of the subpoena to the person and by tendering fees and mileage the witness would have been entitled to receive for attending court pursuant to the subpoena. Rule 57.09(d). A subpoena to a non-party witness shall:

- Be issued by the officer or person before whom depositions may be taken or by the clerk of the court in which the civil action is pending,

- State the name of the court and the style of the civil action, - State the name, address, and telephone number of all attorneys of record

and self-represented parties, and - Command each person to whom it is directed to attend and give

testimony at a time and place therein specified.

Rule 57.09(a)(1-4). Note that any person who, without adequate excuse, fails to obey a subpoena served upon him or her may be held in contempt of court. Rule 57.09(f).

Rule 58.02 governs the procedures for requesting documents or things from a non-party. In order to obligate a non-party to produce documents or things, one must issue a subpoena on the non-party. The subpoena must be:

- Issued by the clerk of the court in which the action is pending, - State the name of the court and the style of the civil action, and


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- State the name, address, and telephone number of all attorneys of record and self-represented parties.

Rule 58.02(a)(3)(A-C). Note that the subpoena must be served on the non-party at least ten (10) days prior to the time specified for compliance and must be served upon every party as if it were a pleading. Rule 58.02(b). The non-party must appear at the location specified, unless all parties agree to waive the appearance. Such an agreement may only be achieved if the party responsible for issuing the subpoena obtains the agreement of all parties, advises the non-party, in writing, of the agreement, and copies to all attorneys of record and self-represented parties the written agreement. In this instance, the subpoenaed party shall produce the documents and things to the party serving the subpoena, “who shall then offer to all other parties the opportunity to inspect or copy the subpoenaed items.” Rule 58.02(d). Remember that, without an agreement, the subpoenaed items must be produced at the place, date, and time specified in the subpoena. Id. If you prefer that a deposition be videotaped, it is important to refer to Rule 57.03(c)(1). The Rule permits videotaped depositions, but imposes additional requirements. The Notice of Deposition must state:

- That the deposition is to be videotaped, and - The name, address, and employer of the recording technician.

Rule 57.03(c)(1). If other counsel notices a deposition that you would like to have videotaped, Rule 57.03(c)(1) dictates that you must serve notice on the opposing party and deponent that the deposition will be videotaped. This notice must be served not less than three (3) days prior to the date already designated and must include all of the above-listed requirements. It is also very important to know that Missouri specifically states that “[a] party may attend a deposition by telephone.” Rule 57.03(b)(1). Most commonly, a Notice of Deposition will include a statement by the noticing party that if any other party wishes to take the deposition by telephone, that the noticing party be informed and the party wishing to take the deposition by telephone make arrangements with a court reporting service to have the appropriate equipment available.

2. How should I prepare for the deposition?

Adequate preparation for a deposition is critical. If you are deposing the plaintiff, defendant, or any other fact witness, you will want to be well aware of what that witness is likely to say. There are many ways to prepare for your deposition, including background research on the witness’s employment history, residential history, prior encounters with criminal and/or civil courts, review of prior discovery and pleadings in this case and other cases, bankruptcy filings, and even relationships with other parties in the case.


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In this day and age of social media, it cannot be understated how important even “Google-ing” your witness may lead to important information you need to know when walking into the deposition room. In one case, Boy Scout leaders made a hand-held video of one of them knocking over a rock formation in a state park in Utah. While certainly incriminating of the act of vandalism itself, the individual in the video had also recently filed a personal injury lawsuit for an unrelated injury claiming that he was suffering from “serious, permanent and debilitating injuries.”

One must be careful to not step over the line when investigating an individual before their deposition. Certainly obtaining information that is publicly available or they themselves have made public should not be a problem. Creating a false Facebook page and “friending” them to penetrate an otherwise invitation only setting is probably out of bounds.

If you represent a company when you take the deposition of a fact witness, it is essential to know your company, the general corporate history (good and bad), and its products or services. Having only a simple general knowledge of what a product manufacturer made can put you in a sticky situation—you may not even know that what the witness is saying impacts your client. Do your homework.

Another question you should answer before going into the deposition is, “What is a win?” What goals are you trying to accomplish with this witness? A good place to start is asking yourself, “What elements of proof must I establish through this witness?” Look at the Petition to determine what cause(s) of action the plaintiff is alleging. As a plaintiff’s lawyer, you need to map out your case and know which witnesses are going to fill in which gaps in your case, so you have all elements of all causes of action covered by at least one witness. As defense counsel, your job is to evaluate the witnesses presented by the plaintiff and determine how you can knock holes in each of their testimony to avoid allowing the plaintiff to establish all elements of his causes of action. Make sure that you evaluate the relevant case law to determine the necessary elements in the pertinent jurisdiction, because law school can cover only so many jurisdictional nuances.

Besides determining the appropriate legal arguments and elements of proof to establish through a witness, you can also damage a witness through your pre-deposition fact investigation. Consider the following real-life example2 of the importance of pre-deposition fact investigation:

Q: Okay. And when you were freelancing for this time period in Georgia between the time of Sunny Properties and Moonlight, did you keep track of your income on a monthly or annual basis?

2 To preserve anonymity, names and background facts have been changed in each real-life example presented in these written materials as well as the CLE presentation.


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A: Not necessarily. I mean, I would – again, I would write it into my log book what I brought in. But I can tell you, it was – it was very little comparatively.

Q: Okay. A: Yeah. I had one primary client in Atlanta that I worked on. The

rest of the time, I actually managed a – it’s like a toy store online through eBay.

Q: Oh, okay. A: So – Q: You are Steel Guy 31064, aren’t you? A: That’s correct. Q: You are him. A: That’s – that’s interesting that you know that.

When the witness realizes you have been researching him and his life, his testimony tends to stick a little closer to reality. Keep in mind that you have to be careful using information you find through background checks, internet research, and the like, because some witnesses (particularly non-party fact witnesses) may get upset or feel as if you are invading their privacy by knowing information about them that they have not shared with you. You should balance the chances of upsetting a critical witness with the value of getting the information on the record.

You can also damage a party fact witness through the use of its discovery responses, which emphasizes the importance of knowing the case file before stepping foot into the deposition. Information from discovery responses can often be used to box-in or impeach a witness. In the deposition, make sure to use sworn interrogatories to commit vague testimony:

Q: Okay. Yeah, I’m just realizing, I believe in your interrogatories you might have said November 4th of ’05. Would that be accurate?

A: That sounds close to it. Like I say, I can’t be specific, but… Q: Okay. Well, if that was – A: November of 2005 sounds about right. Q: Okay. If that was disclosed on interrogatories that you had

signed under oath, I’m assuming you would have looked at your calendar and come up with that?

A: Yes. Q: Okay. A: That’s correct.

Notice how the witness was originally hesitant: “I can’t be specific, but….” Then, the lawyer puts the witness in a difficult position when he asks if the witness’ interrogatory responses were accurate. The witness either has to admit that his


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deposition testimony is inaccurate or that his interrogatory responses were inaccurate.

Preparing for a deposition should also include drafting an outline of topics to cover during the deposition. Many attorneys prefer to use a “funnel-down” approach when deposing a witness. This approach begins with broad and sometimes open-ended questions. After the witness answers that set of questions for you, and you listen to his or her answers, continue to move on to more specific, properly-crafted, and narrowly-tailored sets of questions until you reach the question for which you really need the answer. The “funnel-down” approach also permits a deposing attorney to learn more about what the witness knows because the witness may be inclined to offer more information when you ask him or her the broad questions.

The act of listening to the witness’ answer to your question is essential. While an outline is a really good start to preparing for a deposition, do not plan to rely solely on your outline. Plan to ask a question, listen to the witness’ answer, and consider whether a follow-up question will help your client. The witness’s answer will often prompt a follow-up question. If you stick strictly to your outline, it is more than likely that you will later read the transcript and wish that you had asked a follow-up question. You must also listen to the witness’s answer because a witness often simply fails to answer the question you ask. If you disregard what the witness says just to get to the next question on your outline, you may very well miss the opportunity to ask that question again and get a real response. Additionally, you might miss the opportunity to move to strike any non-responsive testimony.

In sum, the best way to prepare for a fact witness deposition is to first, do your homework—research everything that might be even remotely relevant to that witness and the testimony he or she is likely to provide. Golden eggs and needles in haystacks do exist and just may save you and your client a lot of time and expense. Second, prepare an outline but be prepared to diverge from it, and even ditch it if it becomes more of a burden than a helpful tool. Be flexible and permit yourself to add follow-up or clarification questions when needed. Strict adherence to an outline may get you an answer to the questions typed on a few pieces of paper, but every case is different. The text of your outline will not magically change on its own based on the witness’s answers; your brain has to do that. Also remember that a witness’s answer may not actually be an answer to your question. So, ask your question and listen to the witness’s response. If you are satisfied with the witness’s response and convinced that it is now appropriate to move to the next question or “funnel-down” section, do so. Be cautious, however, that you get an answer and that you don’t miss your opportunity to strike a non-responsive answer.

The last piece of advice in preparing to take a deposition, whether it is your first or four-hundredth deposition, is that this is not a race. Nothing requires that you speed through your questions. Nothing prevents you from pausing to consider a witness’s answer, referring to a document, and/or crafting a follow-up question. You are entitled to a fair opportunity to examine the witness, so do not succumb to pressure


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from opposing counsel to “hurry up.” The goal of a deposition is to elicit all of the information a witness has with regard to your client and issues that may pertain to your client. Consideration should be given to thoroughness, not speeding through the deposition to catch a flight.

3. Who are you deposing? Typically, the first deposition a newly-licensed attorney will take is that of a fact witness. There are numerous types of fact witnesses, and chances are that you will eventually depose them all. The parties, themselves, are fact witnesses, and likely—although not always—the most important witnesses in this category. Other potential fact witnesses include family members, co-workers, friends, witnesses to an injury or accident, corporate representatives, and many more. In addition to the potential witnesses who have been identified to you by your client, you will want to serve discovery upon the other parties to determine all possible witnesses within their knowledge. The following is a sample interrogatory on this point:

Identify each person who allegedly possesses knowledge of relevant facts concerning the basis of this lawsuit. For each such person, please state:

a. Their name, address, and telephone number; b. A description of their knowledge; c. How they acquired such knowledge; and d. Their relationship to [party]. The above is only a guideline and will likely need to be tailored to the facts of your specific case. The basic idea is that you need to discover all of the possible witnesses to your case.

Once you have identified the potential witnesses, it is time to decide which witnesses you want to depose and in what order you want to depose them. In making these decisions, keep your Scheduling Order deadlines in mind. Specifically, there is often a separate deadline in a Scheduling Order for the Plaintiff’s deposition than for other fact witnesses’ depositions. In Missouri, “any party may take the testimony of any person, including a party, by deposition upon oral examination.” Rule 57.03(a). Therefore, either side in litigation may notice their own witnesses or an opposing party’s witnesses for deposition. If you anticipate that a witness is going to give testimony that is helpful to your case, notice the deposition yourself.

Many scheduling orders will specify by what certain date the parties must tender their fact witnesses and by what date the depositions of those fact witnesses must be completed. Again, be mindful of these dates—set reminders or make a case-specific calendar if needed. If you see that opposing counsel has tendered a fact witness for deposition, try to work with that attorney to identify a mutually acceptable date and


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time. It is not advisable or professional to send out a notice of deposition without attempting to establish mutually acceptable conditions.

4. Planning for adversity during the deposition. So, you’ve decided who you’re going to depose. You notice your deposition, and the big day is finally here. You put on your best suit and walk confidently into the conference room, greet the witness and opposing counsel, and sit down at the table. Then what? The number one rule of deposing a fact witness is to always respect your opponent. Quite simply, you should be polite and respectful to everyone in the room—the witness, opposing counsel, the court reporter, the videographer, and anyone else who may be present.

When some attorneys see a young, seemingly inexperienced associate at a deposition, they might implement intimidation tactics or aggressive techniques such as consistently objecting to every question asked or even yelling. Resist the urge to engage in a fight with opposing counsel on the record (or off the record, for that matter). If you encounter consistent objections, keep your focus on the witness and politely remind him that he or she may answer the question unless otherwise instructed. Remember that the court reporter is taking down everything that is said, and when the transcript comes back, you will typically appreciate taking the high road. Also, the legal community is relatively small, and word about your reputation will travel fast. You are solely in charge of shaping your reputation as an attorney who knows the rules and maintains his or her composure under pressure.

If you are met with an instruction by opposing counsel for the witness not to answer the question, implement the requirements of Rule 61(g). First, seek clarification from opposing counsel as to the basis for the instruction not to answer. Second, ask the witness if he plans to follow counsel’s instruction. Note, if the witness is not represented by opposing counsel (i.e., if the witness is not a party), then consider whether counsel has a right to instruct the witness at all. Third, decide whether you want to proceed with the deposition or if you want to adjourn the deposition and apply for an order to compel an answer.3 Note that Rule 61 contemplates an award of attorney fees, so be careful when adjourning a deposition and moving for relief.4

3 Rule 61.01(g) states that the attorney may choose either option.

4 If you ask a question and the witness either refuses to answer or is instructed not to answer, you may file a Motion for Protective Order, which would ask the court to determine whether or not the witness must answer or the privilege asserted and counsel’s instruction not to answer is proper. If your Motion is granted, and after a hearing, the court shall require the party or the advising attorney (or both) to pay you reasonable expenses incurred in obtaining the Order, including attorney’s fees. However, the court may also consider whether the non-answering party’s opposition was substantially justified and/or whether other circumstances make an award of expenses unjust. Rule 61.01(g). This Rule is a double-edged sword, however—it may work in your favor or it may cost you. So, it is important to use the instruction not to answer cautiously.


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Also be mindful of the privileges a fact witness and/or the witness’ attorney may assert during a deposition. In general, a deposing attorney may ask questions regarding any matter relevant to the pending litigation, to a claim or defense of the party seeking the discovery, or even to the claim or defense of another party. Rule 56.01(b)(1).5 Steer clear of questions asking what the witness and the witness’ attorney have already discussed, because you will almost assuredly hear the witness’s attorney instruct the witness not to answer as those communications are protected by the attorney-client privilege.6

However, also keep note of whether a fact witness is represented by counsel at the deposition. A fair question to ask is: “Mr. Smith, are you represented by counsel”? In the event that Mr. Smith is the plaintiff, the answer is probably “yes.” But what if Mr. Smith is a co-worker or witness to the event at issue in the case? Change the scenario to one in which Mr. Smith is this type of individual – if he is not represented by the plaintiff’s attorney at the deposition, then any communications he has had with that attorney and any other person regarding the event are not privileged and are probably discoverable so long as they comply with the Missouri Rules of Civil Procedure.

Ensure that you keep calm under pressure at a deposition, you have to do your homework ahead of time, as discussed above. Of course, you need to be familiar with the facts of the case, and more importantly, this specific witness’ role in the case. Ask yourself, “Why am I here?” What does this witness add to the litigation? The answer to this question will depend on the type of witness you are deposing. Consider less apparent uses for each witness, as well. For example, a family member witness who is designated to testify about damages might also know witnesses or co-workers who have pertinent information about the case. Knowing that you’ve done your homework prior to walking into the deposition room will likely boost your confidence, and your confidence should be reflected in your posture at the deposition.

5. Make sure to create a valuable record for trial. Three typical issues that often arise during fact witness depositions are: When do I stop? When do I trash my outline? When do I run away?

5 Review Rule 56.01(b)(1), which further states that there is no ground for an objection that any information sought will be inadmissible at trial so long as the information sought appears “reasonably calculated to lead to the discovery of admissible evidence.” Be prepared to argue how your question complies with this rule because this rule also imposes the burden of doing so on the party seeking discovery.

6 However, it is permissible to ask a witness what he or she has done, other than the communications the witness had with his or her attorney. For example, it is often acceptable to ask whether the witness spoke with a former co-worker and what that conversation entailed.


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Knowing when to stop is particularly important. Every lawyer can tell you stories of when he asked “one question too many.” This comes back to the necessity of knowing the elements of proof you must establish through this particular witness. Once you have established those elements, stop! Sometimes the best depositions are short depositions. If the witness quickly gives you the testimony you need, do not feel like you need to keep asking questions to make the deposition last all day.

Again, do not make the common mistake of rigidly adhering to your outline, but do create some type of outline or checklist simply to ensure that you have covered all of the elements of proof before concluding the deposition. Some lawyers write out every single question they plan to ask and the ideal answer to each question. Others write down only the topics they want to ask about. Most are somewhere in the middle. Every lawyer discovers through experience the most effective personal system. You will likely encounter witnesses with whom you end up simply trashing a carefully prepared outline. Sometimes the testimony just develops more or less favorably than your outline assumed it would develop. Regardless of the reason, you may have to ditch the outline and go where you can get the best testimony from this particular witness. In this situation, the key is to know your case and your elements of proof well enough to call an audible in the middle of your cross-examination.

Hopefully, you do not run into a situation where you feel like you need to run away from the deposition, but if so, take a deep breath and ask to go off the record. Take a few minutes to step outside and review your outline, review your notes, send an e-mail or make a phone call to other lawyers on the case, whatever you need to do to get back “in the zone.”

When creating a valuable record for trial, avoid leaving loose ends at the conclusion of a deposition. When you walk out of the deposition, you want to know that you have appropriately set up this witness for impeachment at trial. We have all heard how tough it is to “prove a negative.” Likewise, it is hard to impeach a negative at trial. Imagine a witness at trial who testifies that he earned extra income mowing lawns before the terrible automobile accident. He mentioned nothing about lawn mowing in his deposition. He did, however, discuss four jobs he held shortly before the accident. Impeaching his omission at trial would be difficult without a close-out question in the deposition. For example, in his deposition, a stellar young attorney had the foresight to ask, “Sir, you identified working at four restaurants before the accident. Did you have any other source of income besides those four restaurants?” Or, perhaps, “Sir, you discussed working at four restaurants before the accident; have we now discussed all sources of income you had immediately prior to the accident?” At trial, when the witness suddenly discusses the lawn mowing, the trial lawyer will have an opportunity to impeach that witness with the omission from either of these two questions.

Recall from your law school evidence class that prior inconsistent statements are an exception to the hearsay rule. Under the federal rules, a statement is not hearsay if


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“[t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” F.R.E. 801(d)(1)(A) (emphasis added). Besides getting the prior inconsistent statement into evidence, the significance of the statement being excluded from the hearsay rule is that it is admissible to prove the truth of the matter asserted. Similarly, Missouri case law allows a witness to be impeached at trial with a prior inconsistent statement. Aliff v. Cody, 26 S.W.3d 309, 317 (Mo. App. W.D. 2000) (“If a plaintiff wishes to impeach a defense witness with a prior inconsistent statement that is in writing, the plaintiff may impeach the witness with the statement directly on cross-examination.”). Therefore, the key when deposing a fact witness is to pin the witness down on the important facts so they cannot change their testimony at a subsequent deposition or at trial without being subject to impeachment.

6. Developing trial testimony. When deposing a witness in Missouri, keep in mind that the transcript might be read at trial for any purpose that is otherwise admissible. Accordingly, it is important to ask clear and concise questions that a juror can follow if the transcript is read into evidence at trial. Another important consideration is to know how to properly impeach a witness when the jury will see the testimony. Consider the following example of deposition testimony taken from a terminally-ill plaintiff, and the videotaped trial testimony taken a week later:

Deposition Testimony

Q: Do you have any reason to believe that mineral-based components were used in Wilford Widgets?

A: No. [Brief pause in testimony.] A. Other than bearings. Anything that moved raw materials through

the widget had mineral bearings in it. Videotaped Trial Testimony

Q: You don’t have any reason to believe that there were any mineral based components in any of the Wilford Widgets, do you?

A: If they had bearings, or if they came apart, they had bearings. Hmm, now what?

Q: Sir, you recall giving your discovery deposition; true? A: Yes.


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Q: We were sitting in this very room; true? A: Yes. Q: You took an oath to tell the truth? A: Yes. Q: You did tell the truth to the best of your ability; is that true? A: Yes. Q: Could you turn to page 32 in that discovery deposition transcript?

Let me know when you get there, sir. A: Okay. I’ve got 32. Q: Okay. On line 3, “Do you have any reason to believe that mineral

based components were used in Wilford’s Widgets?” Answer, “No.” Were you asked that question and did you give that answer?

A great set-up, but do you notice anything different from the original testimony? Uh-oh... Plaintiff’s Counsel: Excuse me, Counsel. You didn’t read the entire

answer. Would you please read the entire answer? Wilford’s Counsel: I am going to ask the question the way I think it

should be asked. Plaintiff’s Counsel: Sir, then I’m going to object to the form of the

question, because that’s an inappropriate use of a cross-examination. And not only that, you’re not reading the entire answer. And you’re asking him to give an answer based upon a partial answer.

Wilford’s Counsel: Okay. Your objection is noted. Plaintiff’s Counsel: As a matter of fact, I think it’s so improper I can’t

believe you’re even going forward in that way.

Completes the “impeachment”:

Q: (By Wilford’s Counsel) Did I read that right, sir? A: That part of it, yeah. Q: Thank you. A: What about lines 7-9? Plaintiff’s Counsel: We’ll – Mr. Plaintiff, we’ll complete that. We’ll

allow the jury to see exactly what he did.

Then, on re-direct...

Q: (By Plaintiff’s Counsel) Do you understand the word fairness? A: Yes. Q: What’s it mean to you? [Numerous objections.]


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Q: What’s it mean to you? A: It would be fair on what you ask – Q: All right. With that understanding, the lawyer who is here for

Wilford Widgets asked you some questions. He was the one that showed you your deposition transcript. Do you remember that?

A: Yes. Q: All right. Let me put my glasses on, because I want to make sure I

get this right. When he read the answer for you, did he read the entire answer?

A: No. Q: Did he allow you to read the entire answer? A: No. Q: What part did he want you to read? A: He wanted me to read 37, line 3. Q: And what was that? A: “No.” Q: And if you were to read your complete answer, what else would

you have read? A: “Other than bearings. Anything that moved raw materials through

the widget – had bearings in it.” Q: Is that consistent with your testimony all throughout your

testimony here? A: Yes. In this example, the cross-examining attorney masterfully set-up the impeachment, but seemed to have overlooked the complete deposition testimony.7 This is an important example of how an impeachment can be extremely dangerous. If you are going to impeach a witness, you’re putting your credibility on the line. Don’t do it unless you are sure you will come out ahead and if you do proceed, make sure you have evaluated every potential outcome from the impeachment attempt.

7. A note about corporate representatives. The “corporate representative” witness is a unique type of fact witness. Rule 57.03(b)(4) provides the framework for the deposition of a corporate representative or agent:

A party may in the notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularly the matters on which examination is requested. In that event, the

7 Most great lawyers will suffer through an experience like the questioning attorney experienced here. The outstanding lawyers learn from such experiences and ensure measures are taken to prevent them in the future.


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organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This Rule 57.03(b)(4) does not preclude taking a deposition by any other procedure authorized in these rules.

“The purpose of deposing a corporate representative is not to uncover the representative’s personal knowledge or recollection of the events at issue. Instead, Rule 57.03(b)(4) required the representative to testify regarding the [corporate] Defendant’s knowledge of these matters.” State ex rel. Reif v. Jamison, 271 S.W.3d 549, 551 (Mo. banc 2008).

Corporate representatives can be all over the map in terms of their deposition experience. Particularly in smaller companies, this could be the corporate representative’s first deposition. Regardless, the easiest and most effective way to damage a corporate representative is with leading questions:

Q: And you also knew twenty years ago that particles, once they got loose in the air, they could wind up in a kitchen and wind up on somebody’s counter, their cooking space, and if those particles got in somebody’s digestive tract, that could cause infection and kill them?

A: Yes, sir. Q: So you were well aware of that before your company ever

performed this renovation; correct? A: Yes, sir. Q: And you also understood twenty years ago that once these particles

were loose in the atmosphere, that when they landed on a hard surface like a countertop, if someone didn’t know any better and they went to clean up the particles, they would stir them up and make it more likely that they ingested them?

A: Yes, sir. Q: And twenty years ago, you were also aware of the fact that once

these particles got loose in one part of the kitchen, they were likely to be carried by air currents or foot traffic to other parts of the building significant distances away from where the particulate was actually put into the environment?

A: Yes, sir. This lawyer just established corporate knowledge on his terms and effectively damaged this corporation in a matter of minutes. Chances are, the witness forgot he


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was there on behalf of the company in an environment where speculation is particularly forbidden. The opposing attorney did a nice job of couching the questions in simple, common-sense terms and concepts such that the corporate representative just accepted them as true. Did the corporation actually have knowledge of air current patterns or data about foot traffic carrying particulate from one area to another?

D E F E N D I N G efending your client’s deposition can be an infinitely more nerve-wracking experience than cross-examining a witness. When you are cross-examining a witness, you’re in control and you know where you are going with your questions. Conversely, defending a deposition is an

educated guessing game. Ideally, you will have discussed with your client all possible avenues of examination by opposing counsel.

1. Preparing for the deposition You will need to meet with your client for preparation before the deposition and be sure to afford enough time to make your client comfortable with the process. Keep in mind that such preparation is often subject to the attorney-client privilege; therefore, you may wish to instruct your client not to answer any questions from opposing counsel regarding preparation that necessarily involves intangible work product or attorney-client privileged information. (Note: there could be some dispute as to the discovery of materials that are not created within the attorney-client relationship, but that are used to refresh or educate the witness in preparation meetings.)

Begin by putting yourself in opposing counsel’s shoes. What does your opponent need to prove? What are the weak points of your case that are subject to exploitation by opposing counsel? These are the areas on which to focus your client’s preparation. Also consider what your opponent’s experts will see when reading your client’s transcript. What testimony will opposing counsel seek to get from your witness to send to their expert? What will opposing counsel do with your client’s transcript during an opening statement at trial?

One thing is certain, opposing counsel will use leading questions because they invite a simple yes or no response. In fact, some lawyers go so far as to specifically instruct a deponent to only answer yes or no. As the defending attorney, you should prepare your client for cross-examination in advance by reminding him that he is not bound to yes or no answers. Rather, he should give whatever answer he feels best answers the question. Sometimes that may be yes or no; sometimes it requires explanation. Other critical rules for preparing a witness are: (1) Listen to the question and answer only the question; (2) do not speculate or assume facts when

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giving an answer; and (3) you are ALWAYS on the record on the day of the deposition – even when you think you’re on a break.

2. Defending the deposition When defending a deposition, you will likely lodge objections to various questions asked by opposing counsel. These objections rarely result in much fanfare from either side. Generally, objectionable questions that do not infringe on privilege are answered at the deposition, to be taken up with the court at a later date. However, it may become necessary to instruct your client not to answer a question. The general discovery rule in Missouri is that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action.” Rule 56.01(b)(1). Therefore, if you believe a matter is privileged, you may wish to instruct your client not to answer. Make sure to understand Rule 61 before instructing your witness to not answer a question.

The corporate representative witness is also a unique deposition to defend. Corporate representatives often do not realize the magnitude of their testimony. Remember, the witness’ transcript will not self-destruct if the witness does. Like all depositions, corporate representative transcripts live on forever—and attorneys are often able to access all of the corporation’s prior testimony. Unlike a typical fact witness whose testimony is relevant only in the present case, opposing counsel in future cases may attempt to resurrect a corporate representative’s testimony from prior litigation.

Before you produce a corporate representative for deposition, make sure you are well-versed in the relevant law. The first issue is determining which corporate representative(s) to produce for deposition. Sometimes the notice will specify particular representatives that the opposing party seeks to depose. “A top-level employee—like anyone else—should not be deposed unless the information sought is relevant, or reasonably calculated to lead to the discovery of admissible information.” State ex rel. Ford Motor Co. v. Messina, 71 S.W.3d 602, 607 (Mo. banc 2002), citing Rule 56.01(b)(1); State ex rel. Wilfong v. Schaeperkoetter, 933 S.W.2d 407, 410 (Mo. banc 1996). Even if the top-level employee has discoverable information, you are still entitled to move for a protective order on your client’s behalf. Messina, 71 S.W.2d at 607. “A protective order should issue if annoyance, oppression, and undue burden and expense outweigh the need for discovery. For top-level employee depositions, the court should consider: whether other methods of discovery have been pursued; the proponent’s need for discovery by top-level depositions; and the burden, expense, annoyance, and oppression to the organization and the proposed deponent.” Id. (internal citations omitted).

Also note that if your client is served with a Rule 57.03(b)(4) notice, you are typically obligated to designate a corporate representative to be deposed on each topic in the notice. State ex rel. Plank v. Koehr, 831 S.W.2d 926, 928 (Mo. banc 1992). “The rule clearly states that a corporation shall designate a person to be its


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representative. If the corporation believes the deposition should not go forth, its remedy is to file a motion for a protective order. It is not free to file a motion for protective order without concurrently designating a representative to testify on each of the subjects identified.” Id. (emphasis in original). One other issue that sometimes arises is whether corporate representatives are entitled to be present for proceedings in a case. Fischer v. MAJ Inv. Corp., 631 S.W.2d 902, 905 (Mo.App. E.D. 1982); State v. Premier Serv. Corp., 765 S.W.2d 653, 656 (Mo.App. E.D. 1989) (excluding the corporate representative from trial when he was not disclosed and where no evidence of the necessity of his presence was offered). Because the exclusion of a witness from trial is within the discretion of the trial court, the corporate representative has no affirmative right to be present. Counsel seeking to have their corporate representative present during trial must either disclose the corporate witness as essential to the case or show other good cause to the court for the corporate representative’s presence. See Id.

3. After the deposition Witnesses are afforded the opportunity to read and sign their transcripts. Though some witnesses do not want to take the time to do this, attorneys should encourage their clients to take that opportunity to clarify responses or correct transcription errors. When clarifying responses, the witness should understand that the attorneys might request a follow-up deposition and/or point out the clarifications at trial.


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Expert Witnesses

D A M A G I N G hen taking an expert witness deposition, you have two ultimate goals: (1) get good concessions that actually help your case, or (2) exclude or limit the expert’s testimony at trial. Books have been written on expert witness depositions, so this section should be taken as a general

overview.

1. Missouri law on experts. The definition of an expert witness is provided by § 490.065, RSMo.

In any civil action, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

So, an expert is a witness with specialized knowledge that will assist the trier of fact in understanding the evidence or determining a fact in issue in your case.

You can’t damage the other party’s expert if you don’t know he or she exists. Thankfully, the Missouri Rules allow you to serve discovery on the opposing party to determine who its experts are. The relevant Rule is 56.01(b)(4):

Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of Rule 56.01(b)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (A) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial by providing such expert’s name, address, occupation, place and employment and qualifications to give an opinion, or if such information is available on the expert’s curriculum vitae, such curriculum vitae may be attached to the interrogatory answers as a full response to such interrogator, and to state the general nature of the subject matter on which the expert is expected to testify, and the expert’s hourly deposition fee. (B) A party may discover through a deposition the facts and opinions to which the expert is expected to testify. Unless manifest

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injustice would result, the court shall require that the party seeking discovery from an expert pay the expert a reasonable hourly fee for the time such expert is deposed.

Rule 56.01(b)(4).8

The statute further provides that “[t]he facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and be otherwise reliable.” § 490.065(3), RSMo (emphasis added). This is one standard a court will use when determining whether an expert is actually an expert. In Missouri, a key method of damaging an expert witness is to establish that her opinions are based on assumptions instead of facts and data. See McGuire v. Seltsam, 138 S.W.3d 718, 722 (Mo. banc 2004).

2. Know the expert’s field. To properly depose an expert, you need to be the expert. One way that experts often try to intimidate or confuse attorneys on the opposite side is to talk “over their heads” by using scientific jargon and Ph.D.-level terminology. You must do your research to be able to speak intelligently with the expert witness. Similarly to the fact witness who realizes you have done background investigation on him or her, an expert witness can be grounded after the expert realizes you can hang with somebody in the expert’s field.

Just as you would not show up to a hearing without reading the relevant case law, you should not show up to depose an expert without reading the relevant literature. If the expert has published books or articles of his or her own on issues relevant to the litigation, it may be important to read these prior to the deposition. Note that one effective way to damage an expert is to point out that the expert’s articles have not been published in peer-reviewed literature. Using an expert’s own literature is an extremely effective method of cross-examination. For example:

Q: Now, you agree that one major limitation of PCM analysis is that the analyst cannot distinguish gypsum fibers from non-gypsum fibers, such as cellulose or talc, right?

A: Since you are reading from my book, it’s going to be hard for me to disagree with that.

Keep in mind that, in many jurisdictions, you can also cross-examine an expert by presenting the expert with authoritative literature or learned treatises that are consistent with your position.

8 See Rule 56.01(b)(5) for information regarding discovery of non-testifying experts.


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3. Explore the expert’s bias. Another common way of damaging an expert witness is to explore potential sources of bias. With all witnesses, “the extent and scope of cross-examination in a civil action is within the discretion of the trial court.” Callahan v. Cardinal Glennon Hosp., 863 S.W.2d, 852, 868-69 (Mo. banc 1993). “This is especially true for cross-examinations of expert witnesses. There is wide latitude to test qualifications, credibility, skill or knowledge, and value and accuracy of opinion. Further, the pecuniary interest, bias or prejudice of a witness is not collateral and can always been shown subject to the limitations imposed by the trial judge in his sound discretion. Basically, the jury is entitled to know information that might affect the credibility of the witness, the weight to give his testimony, and any relation he may have with parties interested in the outcome of the case.” Id. at 869 (internal quotations and citations omitted).

Some areas for potential cross-examination on an expert’s bias include hospital privileges, education, licensing, certifications, and experience. See Kinser v. Elkadi, 674 S.W.2d 226, 236 (Mo. App. S.D. 1984). You can also examine how the expert gets business. Check sources such as Experts.com, ExpertWitness.com, and Martindale-Hubbell to determine if the expert advertises his or her services. You can, and most likely should, also explore the expert’s monetary bias. Consider the following creative exploration of an expert’s monetary bias:

Q: Okay. In 2001 you made roughly $750,000 with regard to your litigation involvement?

A: Yes, sir. Q: Has that number gone up since 2001? A: It’s been steady. About $700,000. Q: Okay. I think that I might have seen your car out there. It is a black

German luxury sedan with the license plate – A: Please don’t put the license plate number on the record. Q: Okay. A: Yes. That’s my car. Q: It has to do with your profession? A: Yes.

The license plate in question described the expert’s profession, and the attorney happened to obtain a photograph of the car and license plate to be used at trial. Do you think that a jury might be less inclined to believe an expert making $750,000 per year, driving a six-figure automobile that is associated with that expert’s profession? Would it matter that the expert’s cash flow was derived from litigation work as opposed to real-world, hands-on work in the medical field? Bias can be an extremely powerful part of trial, so it must be creatively and thoroughly explored.


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D E F E N D I N G ike defending a fact witness deposition, defending an expert deposition can be a tense experience. Experts generally have professional lives outside the courtroom, so make certain that your expert maintains integrity and scientific accuracy in the methodology implemented and in the opinions

rendered. Remember that he or she will likely testify in other cases down the line, so know the expert’s limits and don’t stretch the expert out of their field of expertise. If you have documents or literature that may clarify the bases of the expert’s opinion, you might choose to explore the impact of those facts and data on their opinions. Just like lawyers, experts have reputations to uphold and scientific principles to defend. Speaking of reputations, you’ll need to decide whether to bring out your expert’s potential biases yourself or to leave that task to opposing counsel. If you bring out bias yourself, you can do it on your own terms and in an appropriate, complete context.

Remind your expert that it does not need to be an expert on every topic under the sun. You will likely have multiple experts to establish various facets of your case, so you don’t have to put all your eggs in one basket.

Just as you must become the expert you are deposing, you must also become the expert you are defending. Know your expert’s publications and look at its website. Anticipate the cross-examination your expert will face. Know the expert’s strengths and weaknesses. Remember that your expert is an expert in a particular field, often a science field, and it is counting on you to protect it in litigation. Even so, be wary of improperly instructing your expert not to answer a question. In McClelland v. Ozenberger, 805 S.W.2d 264, 270 (Mo. App. W.D. 1991)9, a defendant deposed plaintiff’s expert. “On the advice of plaintiff’s counsel, [the expert] declined to answer a number of questions in the deposition.” Id. The trial court ordered the doctor to answer the questions in a second deposition, and the court held that the defendant did not have to pay for the expert’s time in the second deposition. Id.

9 McClelland v. Ozenberger was overruled on other grounds in Brandt v. Pelican, 856 S.W.2d 658, 662 (Mo. banc 1993) (holding a plaintiff could not be granted a new trial because of his physician’s out-of-court disclosures of medical information).

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Conclusion Taking and defending depositions are often some of the most exciting tasks young lawyers perform. Depositions provide an opportunity for intimate involvement in a case and interaction with witnesses in a manner that directly impacts trial. Not only that, but when an attorney has prepared their outline and knows the case as well as anyone in the room, the results can drastically change the outcome of the case. But regardless of who the deponent is or what side of the case you are on, the consistent and crucial keys to any deposition, whether damaging or defending, is to thoroughly prepare and to always respect your opponent.

*Catapult image courtesy of Matt Banks and xedos4 at FreeDigitalPhotos.net.

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