In a previous post, we wrote about developing trial themes early. In this post, we explore the importance of using depositions to support that trial theme.
In ANDA cases, particularly those with multiple defendants, we have noticed a trend. Attorneys are not taking the time to adequately prepare for depositions or to think strategically about their goals. Often, depositions are attended by associates with little deposition or trial experience. The result is often a one-dimensional deposition in which the witness is asked questions merely to illicit facts. A deposition that focuses merely on discovering facts misses important opportunities to prepare the case for trial.
There is an old adage: “never ask a question that you do not know the answer to.” There is nothing worse than asking a question on cross examination and being stung by an unexpected response. Seasoned trial attorneys limit their cross examination questions to those that they know the answer to. If the witness does not provide that answer, they can easily show that the witness is fabricating, exaggerating or advocating excessively. One of the best ways to know what a witness will say on cross examination is to take a deposition designed to support the case theme and the questions that will be asked at trial. Many attorneys fail to use a deposition in this way.
Depositions provide an opportunity for attorneys to accomplish many tasks. A skillful questioner will try to accomplish all of them.
The first task that can be accomplished is to discover facts. A deposition should start there, but it should not end there.
A deposition also can be used to limit a witness’s recollection and the areas of testimony. It is important to close off potential areas of trial testimony with a series of questions designed specifically to do that. Although they may seem wasteful and spurious, these questions actually are very helpful in preventing surprises at trial.
A deposition also can be used to lay the foundation for the admissibility of documentary evidence. This is often overlooked until right before trial. If the proper foundation for the admissibility of important documents has not been laid, there is a risk that important documents will be excluded from trial.
A deposition also allows an attorney to explore topics in more detail. This is an advanced form of the “discovery” deposition noted above. A careful questioner should listen to the answers and ask follow up questions to delve deeper into areas of interest or equivocation. If a topic is particularly important, the questioner should ask additional follow up questions until all the information has been elicited or any ambiguity has been cleared up.
Finally, a deposition can be used to support cross examination at trial. With the case’s theme firmly in mind, an attorney can develop a series of questions designed to illicit that story (or a portion of it) from the witness. In a successful cross examination, an attorney uses his opponent’s witnesses to tell his story and to advance his theme.
It is very tempting to lower litigation costs by not allowing your team to prepare fully for depositions or to save costs by staffing them with less experienced, less expensive attorneys. This may not be a winning strategy in the long run, however. Not taking an effective deposition can severely restrict a trial attorney’s ability to cross examine and/or limit damaging testimony at trial.