45 / 60
Y O U N G L A W Y E R S J O U R N A L
CBA RECORD
45
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.
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
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