2014 - Volume 40 Litigation, No. 4

Back to List

Reprinted with permission from the American Bar Association, The Journal of the Section of Litigation.

You would be hard-pressed today to find any seasoned litigator who does not tell you how litigation has changed for the worse. There’s more than just sentimentality and “good-ol’-days” wistfulness in their complaints. Contemporary litigation has become nastier and more ruthless. And particularly as administered by some headline-grabbing federal judges, discovery of electronically stored information (ESI) has given everyone from clients to young associates considerable heartburn. In fact, ESI is now almost universally understood as a kind of litigation curse. How else might you describe the huge costs and terrible burdens that have necessarily resulted from the process of collecting, sorting, reviewing, and producing such material?

Maybe as a great benefit? The ESI discovery process is a pain, no question. It has taken over litigation in a way not seen since modern discovery itself burst on the scene, turning the limited productions of yesteryear into such a wide-open, free-wheeling affair. Clients are miserable, litigation “consultants” are crawling all over the discovery process, and spoliation motions are a prominent and decidedly ugly feature of contemporary practice. But amidst it all, ESI discovery has provided advantages perhaps less well observed. It has made much of the discovery process irrelevant, or at least easier and better, not worse. And no place has the impact been greater than on depositions. Among other things, it has allowed them to be taken backwards.

How’s that? Depositions? Backwards? Depositions would seem to be one of the parts of the discovery process least affected by the advent of ESI. What’s different? And what difference does the difference make? This takes some explaining, not least because many litigators, particularly those of the old-school variety, seem not to have noticed that anything has changed. And too many of their younger colleagues, being schooled in the old, mostly outdated tactics, don’t know of the change either. To see what’s really going on, we need to go back to first principles.

Discovery Today

Discovery, you might recall, is first and foremost a process for the parties in a case to find out what happened. Who said or did what to whom, when, and with what results? What did people know and when did they know it? The original idea behind the discovery process was that if both parties knew all the facts, they would be better equipped to take the case to trial or perhaps settle the case along the way. From the individual party’s standpoint, the goal was an exhaustive understanding of the facts, ensuring that the event record was complete and there were no surprises thereafter. In this respect, the discovery process used to be a little bit like walking into a pitch-dark room and, through trial and error, building an exact diagram of where all the furniture was. You might have been assisted by a few documents, which could shed light on the matter by providing some limited information regarding where this or that piece of furniture was. If you did it right, you could eventually provide a pretty complete picture of the layout, however fearful you might still be about tripping over an unnoticed footstool or banging your shins on a misplaced coffee table.

The most significant effect ESI has had is to make much of this process no longer necessary. Once you have completed the agony of collecting, reviewing, and producing ESI, not to mention viewing what has been produced to you by your adversary, you almost always have a near-complete record day-to-day or even moment-to-moment of the events at issue. The lights in the room are on. You know who did what, said what, and, sometimes even, thought what, not to mention who had to pick up milk on the way home or bought a new car or had special plans for the weekend. There may still be a few unnoticed footstools around, of course, some of which may have to be detected using traditional discovery sources, such as depositions themselves. But many uncertainties can be dealt with through reasonable surmises, without the need for a deposition. There is also some risk of misunderstanding what you see, and it is prudent to use a little time in the depositions to confirm your understanding. But all of these issues existed in the past to a greater or lesser degree after the laborious old-time discovery process was completed. Now you know before the beginning of the depositions what used to be known only at the end.

This is no small potatoes. The traditional deposition examination is, or should now be, a thing of the past. Consider what preparing and taking a deposition used to be like. If you put together and “chroned” all relevant documents, you had some idea of what happened, though it was a little like listening to a 1930s radio broadcast. Lots of static and huge gaps in the transmission. As a result, much of your deposition consisted of clarifying and filling in what was missing. If one document told you what happened on the first Monday of a critical fortnight period, the next might not appear until 10 days later. The questioning often involved finding out what the witness knew about the intervening days and events and, once discovered, closing her off from further testimony:

Q: Now, Ms. Jones, between March 3 when you wrote this to my client and March 13 when he responded, did you have any other communications with him?
A: Just one conversation on March 10.
Q: Please tell me about that [examination on the March 10 conversation]. Between March 3 and March 13, did you and my client have any communication besides the March 10 conversation?
A: No.
Q: Are you aware of anyone else who did?
A: No.

Ugh!! What a bore. But it was all a necessary bore nonetheless. You had to complete the story. This made depositions long and mind-numbingly tedious to boot, as examiners went through document after document and gap after gap over, potentially, days of testimony.

Today this part of the process is, for the most part, no longer necessary. Emails fill almost all the gaps right away. This sometimes happens indirectly because the emails refer to the critical steps in the drama. Or more often directly. So many conversations take place through emails today that they are the principal part of the drama themselves. To be sure, some questions in a deposition are still advisable to reassure you there is nothing the email record omits, not to mention that your sense of the overall record is the right one. There are also follow-up questions suggested by nearly every conversation. But these questions are simpler and shorter, given how much you already know. And, for certain, the old stack of chroned documents is, or should be, a thing of the past.

This saves time and money, certainly. But its real impact is much greater. It should change deposition discovery altogether. Most immediately, many depositions can now be simply dispensed with. You no longer need to hear it from the witness’s mouth. You’ve got it from her keyboard instead. You need only trust that your cross-examination skills are solid enough to have a witness later confirm whatever the documents say is what really happened. You shouldn’t need a deposition to tie that down. Indeed, using the deposition to do that may be worse than useless. It may alert the witness and your adversary to documents they are not focused on or to a way of perceiving them they have yet to recognize.

But, most important, the new world of litigation should also change the character of the depositions you do take. No longer should you think of depositions as a mechanism for completing the story in a linear way, a forward-looking process. Instead, it is time to start thinking backwards. You don’t need to march forward seeking to know each step from A to Z. You already know that. Instead, it is due time for you to figure out what you intend to do later in the case with the record you have. As the deposition process begins, you should be pondering your summary judgment motion or your themes at trial, and looking backward from those vantage points to see what role the depositions can play. The key question is how can this deposition help? What statements or admissions can I elicit from this witness that will materially assist me at these later crossroads?

Keep a Top 10 List

Of course, some of this was always part of good deposition preparation and technique. The difference now is that you can do far more planning ahead of time. You don’t have to wait to see what the witness says about missing events to know what will help you later on. So your lines of inquiry can be more targeted to specific results. Particularly helpful will be the preparation of a top 10 list. Given what your argument will be on summary judgment and at trial, and in light of the facts, what 10 admissions or statements do you reasonably believe you can get the witness to make that will assist you at those later junctures? What are you going to want to show? How can this deposition help you show it? The bulk of the deposition planning should then go into this.

Some of your top 10 list will concern what will add power and flavor to your own argument. Are there ways the witness’s testimony can bolster what we already know? Of much greater concern will be those statements you can use to head off arguments your adversary will want to make in response. How will the witness try to quibble or explain away or rationalize? How will your adversary try to create an issue of fact? Or sow doubt that the facts are what they seem to be? The deposition can, if properly exploited, protect your case from all or many of these things.

You should always be clear which top 10 items are which, which are affirmative and which defensive. But most important is to be precise about what you want to and can accomplish. Top 10 points cannot be pie-in-the-sky. Every litigator dreams of the Perry Mason moment, the point at which the other side’s key witness, perhaps the plaintiff or defendant herself, admits she “did it” or that your client is right. The reality is these moments come almost never. They don’t belong on a top 10 list. They are too far removed from concrete discovery objectives. With limited exceptions, they are not appropriate for a deposition anyway. They are most powerful in a dispositive motion or trial. The deposition is there to bolster your case, not make it. And the points you need to make are less dramatic.

Support Powerful Evidence

One critical element of this process is that seldom will it cause you to use directly a really powerful document in the case, especially if it is favorable. In an earlier world of depositions, you might have wanted to know whose idea it was to write the document, how it was drafted, who received it, and what was done with it. Now almost all this information is available to you from the electronic data, including metadata and email. You can establish all of it without the help of the witness, and the only thing you have accomplished in showing the witness the document is alerting him to its existence or use. Maybe you can get some satisfaction, such as it is, from seeing him squirm. But this is hardly useful and often harmful. The document says what it says, and unless there was something obscure about it, you should pretty much leave it alone. Examining the deponent on it should seldom make your top 10 list.

So what should? Again, thinking about this powerful document, start backwards. You know how it fits and how you want to use it in your later activities. What can you do to make it stronger? Or more bulletproof? Can you get the witness to say things about the surrounding circumstances that will give the document additional force in your summary judgment motion or prevent him from weaseling out of it at trial?

Let’s say the document comprises some helpful handwritten notes. Ask yourself: What use do you want to make of them on summary judgment or at trial? How will your adversary try to neutralize them? In neither case will your first line of questioning involve showing the notes to the witness. There might be a series of general questions, at some remove from the document, about the witness’s note-taking practices, the cases in which she takes notes, how and why she preserves them, which she transcribes and which not, all to be able subsequently to bolster the credibility of the notes themselves. If you are careful, she may not have any idea what notes you are talking about or, perhaps if you are really clever, that you are talking about any notes at all. The goal is to get her to say things that allow you to use the notes to best effect when you use the notes in your motion or cross-examination at trial.

Here’s another example: A defendant’s case is dependent in part on disparaging a former employee as incompetent. You have a document, a letter of recommendation perhaps, in which the defendant praises her fulsomely. You can, in the deposition, confront him with the recommendation and ask him if it does in fact praise her. But this not only is asking him the obvious but also will elicit from him defensive statements such as “oh, this is just one of those recommendation letters where, you know, you exaggerate a little to help the person.” You might recover by asking, “But, Mr. Johnson, you didn’t lie in this recommendation, did you?” He will respond, “Well, not lie exactly, but you know how it goes, you do tend to say things that stretch a little.”

This is not helpful. You have the document. What you really want to do is not confront him with the document in his deposition at all. Instead, you want to use the document to maximum advantage later. Look backward from the trial to the deposition and add to your backward-looking top 10 list “underscore the reliability of the recommendation letter.” Then, in a context where the witness is not perhaps thinking about the letter, you can secure his agreement that “employee evaluations” are extremely important:

Q: You agree with me, Mr. Johnson, that as a manager it is
extremely important to evaluate your employees with great
care and accuracy.
A: Yes.
Q: And whenever you are writing an employee evaluation to
be used for official purposes you endeavor to be as accurate
as possible?
A: Yes.
Q: You would be very careful not to say anything in a written
evaluation of an employee that would be inaccurate, right?
A: Yes.
Q: You wouldn’t lie, would you?
A: Absolutely not.
Q: Or even stretch the truth?
A: No.
Q: That wouldn’t be fair to the employee, would it?
A: No.
Q: And as a company manager, you have the responsibility to ensure that official summaries of your employee’s performance are accurate?
A: Right.
Q: You wouldn’t want a third party who has the right to read an evaluation to get the wrong idea?
A: No.

You get the point. Best now to move on. There’s no need to show him the letter—which you will later call an “evaluation” at trial. You can now develop a dozen questions for trial where the witness will be unable to minimize what he said in the letter without being impeached. Note that, in the case where you’ve shown him the recommendation first, he is on his guard and the only thing you’ve accomplished is to get testimony that weakens the force of the document. Looking, instead, backward from trial, you have asked him questions such that he may not even know what you are referring to, and the testimony can only be helpful thereafter.

Of course, the better prepared the witness, the more creative you may need to be in drafting your line of attack. You may need to think of a context in which he is likely not to realize what document or idea you are setting up. The best questions are, as in cross-examination, those the witness cannot but answer the way you want. He will naturally do so, as logic dictates, if he does not know your reason for asking. This course is even more useful to avoid the perjurers out there, those who will answer in whatever way they believe is most helpful to them. If you approach the document obliquely, the prospective liar will have a hard time figuring out what is and what is not helpful.

There is further advantage to a backward-looking top 10 list of this kind. This is to help you know what not to ask, even apart from a killer document. For every item you add to the list, you need to ask yourself the “why” question. Why do you want this point? What will it add to your needs for summary judgment or trial? If, considering the point carefully, you cannot find a place for it there, chances are it is not a topic worthy of examination in the deposition.

Consider this example: An examiner, an intelligent young lawyer, has a group of documents, seemingly innocent, that he has nevertheless assembled in such a way as to portray the witness as acting from rather unsavory motives. Because of ESI discovery, he has all relevant materials, knows exactly what happened. Methodically in the deposition he trots out document after document and asks the witness to confirm the relationship between the documents and, through his questions, links them together in such a way as to paint the picture he wants. He has a nice neat package by the end of the examination.

But it’s a silly thing to do. He needed to ask himself why he was doing this. He never thought ahead to the summary judgment motion or trial and then looked backward to see what the deposition testimony could add. There was no admission to add to the top 10 list. Every document naturally required the answer the witness gave. The documents themselves were inescapable. All the examiner had done was alert his adversary to how he intended to use the documents later on, something the adversary could then anticipate and try to pull the teeth on in other ways. Had he approached the deposition in the backward-looking manner suggested, he either would not have asked questions about the documents at all or would have filled in some gap with a top 10 admission approached obliquely and secured quietly. Or he would have anticipated all the wiggle room and carefully closed it off in advance.

The only possible explanation for securing the deposition testimony he did was to demonstrate to the witness and his lawyer the way in which the documents could be used, so as to rattle them for purposes of settlement. But even using settlement as the vantage point and looking backward, it is easy to question whether such an examination will have any use. Much better to save such elements for trial.

The approach being recommended is really not very novel. It is part of the mantra of litigation technique generally that you write your closing argument as soon as possible and try thereafter to develop your case and the facts to support your spiel. And admissions and statements of the kind mentioned have always been part of taking depositions. What’s different now is that you really know all the key facts much earlier than previously, before the depositions are taken, so that you can put yourself at summary judgment, look backward, and tailor your questions to the argument you know you will later make. ESI has changed deposition strategy altogether, taking what was once a minor element and made it the major one, almost the only one. The striking thing is how long it is taking litigators to notice.

About Litigation Journal

Litigation, published quarterly, is the preeminent journal in the field of trial practice. The publication offers practical yet lively information on common problems and interests for the lawyers who try cases and the judges who decide them.