CBA Record

Y O U N G L A W Y E R S J O U R N A L

very low towards the end of the deposi- tion–this translates to a tired and (pos- sibly) ornery person during the last hour of testimony. If he has not had anything to drink during the deposition, the witness may be slightly dehydrated and physically uncomfortable. (Note to attorneys defend- ing a deposition—keep some candy bars in your brief case, and make sure that there is water for your witness before you go on the record). A “hangry” witness is more likely to forget the deposition preparation than a witness who is calm and comfortable. Similarly, a tired witness is less likely to pay attention to the call of the question and volunteer information. If you’re taking the deposition and you want to get some admissions, consider leaving the appropri- ate questions until the end of the day, when the witness is more likely to give you what you want. Prepare your witness. Even witnesses who have been deposed before are anxious about the experience. The key to success- fully defending a deposition—particularly the deposition of a nervous witness—is preparation. Tell the witness why she is being deposed. Tell her what to expect both in terms of potential questions, and in terms of how the deposition will proceed. You will be surprised how helpful inexpe- rienced witnesses find this latter advice. Instruct your witness as how to conduct herself during the deposition. First and foremost remind her to be honest: some- times witnesses labor under the incorrect impression that they should lie to help counsel’s theory of the case. Not only is this highly unethical, but there is almost always a document that can expose any lie. And a lie exposed is always more damaging than the truth. Reminding a witness to be truthful can also help put the witness at ease. It is a lot easier to tell the truth the first time than to remember the details of a lie. Being truthful, however, does not mean volunteering information, nor does it mean doing anything to help opposing counsel do his job. Giving true, complete, but short

If you’re defending a deposition, it behooves you to remind your witness that opposing counsel is not on her side. While the Illinois and federal rules governing discovery severely limit what counsel can say and do during the deposition, counsel is not without options. Consider taking a restroom break every hour or so. Object to objectionable questions. (Do not, however, engage in obstructionist tactics.) Make sure your witness remains hydrated. And absolutely do not allow opposing counsel to establish a level of rapport and comfort that comes with using first names. Corporations are people, my friend. Consider the case where a witness—let’s call him Tom—testifies that he has no knowledge of a particular subject; however, Tom recommends that you talk to his col- league, Richard. Yet under oath, Richard says that he knows nothing about the topic, and suggests that you talk to Harry. Remember that each deposition you take is very expensive. What’s counsel to do? Rule 206(a)(1) of the Illinois Supreme Court and Rule 30(b)(6) of the Federal Rules of Civil Procedure allow a party to depose an entity. First, counsel identifies the topic or topics of the deposition. Then, it is the entity’s responsibility to designate a witness to testify on behalf of the organiza- tion about the designated topics. In other words, counsel taking the deposition tells the deponent the topics for the deposition and the deponent then finds someone knowledgeable, saving time and money. So, rather than deal with the run-around, learn to love corporate personhood and make the other side do the hard work of getting you the information you need. Time is on your side. Deposing some- one is forcing them to have a three-hour conversation with you where you can pick at every word they say, and where you do not have to allow them to dodge an evasive answer. After about 45 minutes, many wit- nesses start to show signs of fatigue. If the witness did not eat before the deposition, chances are that his blood sugar is running

in time and treasure. For example, consider a garden variety discovery deposition in Illinois state court, limited to three hours by operation of Rule 206. To take that deposition effectively, counsel is going to need to do some homework: he is going to need to first think about how the witness fits into the case, and then review relevant documents, answers to relevant interroga- tories, and any other discovery issued. We cannot emphasize this last point enough. If you do not know the documents, requests to admit, and answers to interrogatories backward and forward before deposing a witness, you are leaving some of your cli- ent’s money on the proverbial table. Given the expense of taking even a short deposition, it behooves counsel to under- stand why he is going through all of that time and trouble. How does the deposition fit into the overall discovery plan? There are several reasons to take a deposition, finding out what a witness knows about a particular topic being only the most basic. Depositions are also useful for obtaining admissions for use in support of a dis- positive motion, for example, for laying foundations for the admission of certain documents, or for clarifying ambiguities in prior discovery answers. If you do not know why you are deposing a particular witness, you are wasting your client’s time and money. Don’t let counsel call your client by first name. The old proverb says that you catch more flies with honey than you do with vinegar. This proverb applies to the deposition process. You can get more of what you want from a witness by being polite than you would ever get by being rude, or by being a bully—politeness should never be confused with weakness. Invite the witness to address you by your first name. Ask the witness if you can use her first name. Make the experience as conversational and natural as possible. This means use plain English and not legalspeak when talking to a non–lawyer. Try to make the witness forget that anything she says can be used against her at trial.

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