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Civil Litigation: Staying ready: An alternative approach to taking depositions

By: Special to The Daily Record , Aaron M. Griffin//September 26, 2022

Civil Litigation: Staying ready: An alternative approach to taking depositions

By: Special to The Daily Record , Aaron M. Griffin//September 26, 2022

Aaron Griffin

An attorney’s or client’s quick perusal of online practitioners’ guides will find that most of those who opine on best practices for depositions encourage a conversational approach to probe for information. This approach is half correct. I offer an alternative.

A deposition is an exhibition for trial. The score may not count in any classical sense. However, everyone remembers the strategies employed, personnel utilized, and schemes tested. A witness cannot hide from his answers given under oath at a deposition. The parties proceed with the consequences of each deposition.

A deposition is inherently information-seeking. This does not mean that an attorney should employ less precise and deferential implements than those that he must wield at trial despite what various commentaries and blogs may recommend to practitioners in business and commercial litigation.

There is a practical reality of business and commercial litigation. It is costly. Business and commercial litigators often must advise their clients to do the economical thing: settle before trial. This leaves unwhetted the tools of the trial trade for many. Some avoid their use entirely.

The decreased prevalence of trials on the business and commercial litigator’s schedule causes a period of adjustment for those who start their practice in public-interest law defending or prosecuting multiple trials a year. (That phase of adjustment is a topic for another time.) I manage only a handful of cases that likely will proceed to trial within a given year now by comparison.

I mention this change only to reinforce that those trial attorneys among regular practitioners in business and commercial litigation have a developed skillset that many resources advise them not to employ in the context where they most often have the opportunity: depositions. I expect to take only a couple of actions to judgment each year. I meanwhile participated in three depositions just last week in various capacities.

Treating a deposition as an unrefined, undisciplined information-seeking inquiry does not violate any law of ethics or logic, but it squanders an opportunity to hone a trial attorney’s craft.

The rules of a deposition are simple. A deposition suspends most of the rules of evidence applicable to trial. The only valid objection at a deposition, as clients quickly learn, is an objection as to the form of question. This quasi-relaxed evidentiary environment encourages atrophy.

Inquiring clients quickly ask what it means when either opposing counsel or you interject during the proceedings to say “objection,” “form,” “objection to form,” etc.

We then must confirm that the witness continues or must continue to answer the objected-to question absent invocation of privilege because the interjection merely preserves an objection if the questioning party attempts to rely upon the response at trial. Two questions remain: What are the effects of said objection? What is a valid form objection?

The effects are simple. The court reporter records the objection. A judge then must determine if there is a valid form objection that he or she wishes to sustain at trial to preclude use of the recorded answer if the questioning party seeks to introduce the answer at trial.

The questioning party is not precluded from asking a properly formed question to seek the same information even if the judge sustains the objection. The questioning party simply cannot use the answer to a judicially sustained form objection in a transcription.

The answer to what is a valid form question brings us full circle. An objection to form relates only to either the structure of the question asked or the line of questioning. A narrow class of objections constitute form objections. Valid form objections include an objection when a question is compound, requires speculation, lacks foundation, misstates prior testimony, attempts to convert a witness into a legal expert, or is vague.

Many practitioners defending a deposition will assert an objection to preserve a potential but tenuous objection or for strategic advantage to disrupt a line of questioning. Many practitioners conducting a deposition will ignore asserted objections without a second thought. This is a mistake.

There are those who object for gamesmanship. I do not deny that they are among our ranks. Considering the validity of each objection and determining the likelihood of a valid objection’s being sustained should inform how one proceeds after each objection.

One should resist the written encouragements to skirt the formalities of proper questions for trial to obtain answers in a less structured manner. Properly formed questions create a better record and reduce the risk of potential surprise at trial.

Foundation is one of the elements that most attorneys conducting a deposition neglect. What happens when a witness provides an unexpected, nonsensical answer when the attorney is forced to lay valid foundation before a line of questioning at trial? The judge and jury are waiting.

It is better to reveal the pitfalls and obstacles that one will face at trial as early as possible. A witness’s natural or coached obfuscation is better to confront before the trier of fact is present.

I recommend that practitioners make your questions concise, unconditional, founded, accurate, and precise even if it is not required at a deposition. It keeps one’s skills honed.

I close with a final word on objections. I see you. I hear you. An asked-and-answered objection is not a valid form objection. You and I both should know that.

We as attorneys like to talk (or write). The absence of the scrutinizing eyes of a judge or our peers leaves most attorneys unrestrained in conduct a deposition. Most take gross liberties to overly direct testimony with leading, unfounded questions.

It is as painful as it is necessary for some to learn that the witnesses, not the attorneys, are the possessors of facts that the attorneys must synthesize to an argument of truth. We then entrust a judge or jury ultimately to find truth.

Proper questions at every stage of litigation are how we arrive at reliable truth and keep ready our implements of excavation.

Aaron M. Griffin is an Associate in Underberg & Kessler LLP’s Litigation Practice Group. He focuses his practice in the areas of commercial litigation and public interest law.

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