Welcome, my name is Frank Ramos. I'm an attorney in Miami and today we're gonna be talking about getting what you need at depositions. Just to give a little background about who I am and what I do, I'm an attorney in Miami. I work at Clarke Silverglate, and I've been at the firm for almost 25 years. I've been practicing almost just as long. I practice in the areas of commercial employment and products litigation, mostly on the defense side, and I have taken probably over 1,000 depositions in my career, and today we're gonna be talking about how to get what you want and what you need in depositions, so, let's talk, generally, about depositions and some general information about them, and I think, sometimes we overlook what the purpose of a deposition is. A lot of attorneys think a deposition is primarily, if not solely, to get information, to find out what a witness knows about your case, and that's true, that is one of the reasons you depose someone. You wanna find out what he or she has to say about your case, good or bad, but there's a lot more to it, and I think, in order to really appreciate what you have and the opportunity you have, when you take a deposition, is that it's not only for information gathering, it's an opportunity to advance your themes, support your case when at trial, and that is the prism to which you should see, and evaluate, and consider how to do depositions. Your purpose is not only to procure information and to learn what a witness has to say, but to develop their testimony in such a way that it helps your case and undermines theirs. You are there much more than simply to gather information. You are there to gather and procure admissions, support your case theme and theory, and find ways in how this specific witness fits into your overall case strategy and helps advance your case or, possibly, undermines the other side, and that's what we all need to look at and consider when we are considering taking a deposition, and so, before you schedule your first deposition, you have to ask yourself a certain number of questions, and you have to ask yourself about that regarding each and every witness. One, what information does this witness have? How does this witness help or hurt my case? What information or evidence they have? What documents have they have in their possession? What documents were sent to received by them, or that they signed, that they filled out, that they completed? What physical evidence do they possess potentially, and how does all of that play into the case? Because you need to understand how this individual puzzle piece, this witness, fits into your overall puzzle, and that's really important to appreciate. Each witness has a role, some of them are larger than others, some are more prominent than others, and you have to appreciate how this puzzle piece fits into the overall theme or puzzle of your case. Your, then, question is, is this witness hostile? Is this an opposing party? Is this a third-party that has some sort of relationship or has some sort of understanding with the opposing party? Is there some other reason that this witness may be hostile? Maybe this witness doesn't like your client, this witness has an ax to grind, this witness has some other issues, so, and again, if they're hostile, how cooperative are they gonna be? Is this somebody who's going to support your case or undermine it? Is this someone going to give you full, elaborate answers or only answer, "Yes, or, "No?" Is this a witness who is going to really listen and accurately and fully answer your questions or is it gonna be like pulling teeth? And a very important question you have to ask is, is he represented by counsel, or is she represented by counsel? And the reason for that is that we have ethical obligations to witnesses, and we'll talk about this in a little greater detail coming ahead in the next hour, or so, but, obviously, you can't talk to represented witnesses, you can't interview them. They have a right to counsel, and so, my first question with any witness is, after introducing myself and explaining who I am, is I ask them, are they represented by counsel? Obviously, I don't reach out and talk to the opposing party or the opposing party's experts, but if it's a third-party witness, I'm going to figure out if they're represented. Often, they're not. Often, under most circumstances, independent witnesses are not represented, and sometimes you ask that question, and they may ask, "Should I be represented?" And you let them know, like, "That's totally up to you. I have certain ethical obligation to find out. I can't speak to represented witnesses if we don't have to have this conversation, but if you feel comfortable, and you don't need counsel, we can go ahead," and then I asked whether I can take that person's declaration or sworn statement, because, often, when you talk to a witness, especially, a fact witness to an incident or an accident, and you know I'm talking somewhat about accidents and P.I. cases, but this applies equally to employment matters and commercial matters. People will have a better memory, the closer they are to the incident in question, and so, I'll ask them what they have to say and if it's helpful or supports my case, I may ask them to either sign a declaration, or an affidavit, or some sort of sworn statement, or I may actually have a court reporter come and tape their sworn statement, because, what they have to say is really important. I'm not sure if they'll be available later. I'm concerned that they may change their story if they speak to the other side, and so, I'm laying the foundation to ensure that the testimony they share with me remains accurate and remains the same throughout, and one of my bigger questions I'm asking myself is, what admissions can I secure from this witness? What can I get him or her to say that helps my case or hurts the other side's cases? Again, when you look at the scope of a deposition and what you're trying to accomplish, yes, you're trying to find out what a witness has to say, but often you find that out by just talking to him or her. Once you get a witness under oath, and you get them to swear, and you record or take down their testimony vis-a-vis a court reporter, it is part of the case file. It's part of the court file and whatever they say will either help or hurt your case, but it will live on for the duration of the matter, and so, you are trying to get snippets, trying to get sound bites, trying to get certain words or phrases down by this witness that helps your case, and so, again, leading from admissions, how do I get this person to either bolster my case themes or undermine my deponent's case themes? And I know that this specific presentation is not on case themes, it's on depositions, but they are very much related. When you initially get any case, you have to determine early on what your theory of the case is, and what your theme or themes are, and that's organic. That will change possibly with time as you develop additional information, you gather more evidence, and you speak with additional witnesses, your case themes and theories may evolve, and that's certainly fine, but I think you have to approach each case from the onset and ask yourself, what is the theme of this case and what is the theory of this case? And then, once you have that as a paradigm for your matter, you have to ask yourself, how does a witness either bolster or undermine my theme, or themes, and how does it bolster or undermine the other side's themes? Another thing about deposing a witness, will this witness be available at trial? Maybe you need to preserve a witness's testimony. Maybe you don't want a certain witness testimony to be preserved and you don't wanna preserve it. Will you be preserving bad testimony? Is certainly a question. Deposition is really the worst time to find out bad facts about your case. If you do your due diligence about a case, and even if you can't interview a witness directly, you may have a sense or find out, generally, what he or she has to say based on documents he or she has created, or signed, or testimony of other witnesses that discussed or summarized conversations they had with the witness you're considering, and just generally depending on the relationship the witness has with either your client or the other client, you'll have some general sense of, or some understanding of what this witness is gonna say and whether it's gonna be good or bad, and, again, if you're gonna preserve bad testimony, there's gonna be a good reason for it. Maybe there's a specific admission that witness has to procure, and there's some other baggage that comes with that admission, and you just have to deal with that, and can you use this witness to show how weak the other side's case is or probably even force it into early settlement? I think we've all been in a situation or certain circumstances where there's a specific witness that we wanna bring up and sometimes we have that witness be the first witness to be to be deposed, because he or she's integral to one storyline or completely undermines the other storyline. Say, for example, an auto accident where one witness says the light was green, the other says it was red, and then you have a third, independent completely unbiased witness who's just walking his or her dog and confirms that the light was either red or green, and gets on the record, and testifies to that, he or she's unshakeable, he has no bias or relationship with either party, and he or she is adamant that the light was either red or green, and, therefore, the side that is on the opposite side, we'll have to seriously consider whether or not they wanna proceed with this matter, or they wanna settle, and, quite frankly, now, does a witness help me win? At the beginning of each case, theme, theory, you also have to define a win for your client along with him or her assisting you to define what a win is, so, your clients have to help you define and think through what a win is, and you look through every witness, and say, "Does this help me win the case or does it prevent me from winning the case?" And sometimes you have to have witnesses that you know are gonna hurt your case, but you wanna be the one conducting the deposition. You don't want them to have a free ride by answering a lot of helpful questions by the other side, and you've talked to this witness or you have a general sense that this witness is going to hurt your case, and going to actually damage your case, and you want to limit the damage, you wanna limit the collateral damage this witness may cause, and so, you've spoken to that witness, you understand what they're gonna say, you haven't tampered with the witness in any way, the testimony would generally be unfavorable, but then you think through, how I can limit this testimony? How can I take the sting out of it through his or her own words, so that what could potentially be a very bad witness is not a terrible witness, it's an okay witness, or it's not someone who creates a fatal blow to your case. It may be a a shot of some sort, but not as serious as you would otherwise consider, and if it's unfavorable, maybe there's a way you can undermine it by your cross-examination, and so, I talked about this briefly before the pre-deposition interview. It is my view that if you can interview or speak to a witness before deposing them, you must do that. I think it is bordering on malpractice to take somebody's deposition and not speak to them before, if you can. Again, if it is ethical and permissible, you should interview witnesses before deposing them. Often, you'll discover information that will greatly impact how you deposed them. At times, we don't depose them at all. You'll sit down and you'll speak with a witness, and you'll learn more about the case, and maybe that witness you thought would be very favorable was not favorable. Maybe the witness that you thought was unfavorable turns out to be very favorable. That witness may have a document or piece of evidence that is integral to your case, that witness may shed lighted information that completely changes how you view the case, and you don't wanna be surprised at a deposition, or at least you try to avoid being surprised, and a great way of avoiding it is to speak to a witness and figure out, before they they say anything under oath, exactly what they're gonna say, and that's really important. Early in my career, I didn't really appreciate how important or significant that was. Sometimes I would take depositions and be surprised that a witness said this or that, and go back to my partner, and say, "Well, didn't you talk to 'em?" And, honestly, very early on, it never even occurred to me I could do that, or what the ethical obligations are, but, by the way, each state has their own rules on your interaction with potential witnesses. I am from Miami, Florida. Our rules are generally permissible in terms of speaking to independent witnesses as long as they're not represented, your state may be different. Also, if you're speaking with somebody at a company and your sitting at a company trying to speak with somebody, there are different rules about who you can speak to, and who you cannot speak to, and my recommendation is, if you're going to interview a witness, is that you bring someone with you, or if you don't do it by phone, you have somebody else present, so that you have some corroborating evidence about was said. You may consider recording the interview and you'll get permission to record the entire interview, either on your phone, you can do it by video if you'd like. Maybe you can get a transcript later, but you wanna make it sure that there isn't any misunderstanding. Sometimes witnesses can mistake things, and sometimes they will lie. They will say that you said or did something when you met with them, when you clearly didn't, and it becomes a he said, she said situation, and to avoid that, maybe recording the interview from beginning to end is the best way of approaching it, and so, before your deposition, remember to avoid surprises at trial. You'll be asking all the questions you would ask at trial. You want your trial cross-examination completed at deposition, so, it's to lock in the witness. The whole point of a deposition, or at least one of the points is that you have a roadmap for that witness's testimony at trial, and so, you're gonna ask all the questions you would ask at trial, and maybe even some more. You'll probably go beyond that. It's just, at trial, you don't wanna ask the ultimate question. In deposition, you may, you may wanna ask the ultimate question and see what answer you get, but you wanna make sure that you have a transcript in place with the questions and answers you want, so that you have an outline you can use, and that each line in that outline can be tied back to the testimony provided by that witness, so, if that that witness somehow changes his or her story on the stand, you can point to page a line and impeach that witness, and so, knowing that you're going to treat the deposition as if it were a trial examination may affect when you depose a witness, and whether you depose him or her at all. It says, again, if you're gonna treat it as trial, this is, in fact, discovery. It is in part, but, ultimately, at a trial, when you think about the examinations that you take, whether they're direct or cross-examinations, you're not there to learn anything. At the time of trial, you already know what the witness is gonna say and you're going to ask questions you know the answers to, and so, the whole point of a deposition is to get all the questions and all the answers asked and answered, so that you have a roadmap for the trial, and, for a given witness, you may not wanna preserve a given witness' deposition or you may not want to show your hand when it comes to your themes in earlier depositions, and, again, a lot of this is playing a game of chess, you're trying to think through what witnesses to depose in what order, when to show your hand, as to themes and theories in order to get a witness to maybe parrot some sort of catchphrase, or cliche, or statement, or theme that you have. It's not uncommon when I start a case, I may have a certain catchphrase that I really want to use with a jury. I feel that a certain catchphrase, or a certain term, or a certain cliche, maybe, it is what resonates and encapsulates my story that I wanna share with him, and I tried to get certain witnesses to parrot. I may get a witness to say that exact same phrase, and there was a case I had a number of years ago where we wanted to talk about the captain of the ship, the captain of the ship was a theme we wanted to use, and it was a medical malpractice case, and we wanna talk about the main surgeon as the captain of the ship, and we had most witnesses use that phrase, and we had them say it again at trial, and we used it both in our opening and our closes, and it was very important to have everybody parrot or repeat that phraseology, and so, if you answer these earlier questions, you'll figure out who to depose in terms of the questions we were asking ourselves, what they bring to the table, and what they have to ask, and you use that as sort of a prism through which you decide, who am I gonna depose? And before you start your first deposition in a case, I suggest you think out or think through all the witnesses you wanna depose in terms of categories. Usually, it's liability or damages, maybe you play your experts, and then, you determine from that potential pool of witnesses who you wish to depose and what order you wanna to depose them, and that will ensure that, early on, you secure the testimony you need, and that may useful in later depositions, perhaps, deboxing later witnesses or favorably affect their testimony. Now I think the default, in most cases, now I do, like I said earlier, mostly defense work. and it's mostly defense work. I typically know which witnesses I will be deposing. It typically starts with the plaintiff, then it will be other fact witnesses that have information about the liability, possible causation issues. In a personal injury case, I may depose one or more of the treating physicians, that generally goes later in the case, and then, there's the experts, and sometimes the treating physicians, often, they're other types of experts that might be an expert regarding a prior, it might be an expert regarding human factors, or something else along those lines, and so, I'll sit down, and I will come up with a list of witnesses, who to depose and in what order, I will figure out how each witness leads to the next, how one witness's testimony may affect future testimony, what exhibits I need for each witness, and how what one says almost acts like a domino effect. If I get one witness to say X, I might get the next witness to say Y, and so on, and so forth, and so, instead of having this shotgun approach where you just run out, and you start taking depositions, or maybe you're in a case, it's a multi-party case, and someone else is just taking depositions, and you're unclear as to why, or when, or how they're doing it, I strongly recommend, in a multi-party case where you're on side of the V, where you're one of several parties that you sit down and collectively agree on who's gonna be deposed in what order, and who's gonna take the lead, and so forth, but if it's just you, if it's just you on one side of the V, write down the witnesses you wanna depose, determine what order, what you want to ask, and what exhibits you want to use, and also, for purposes of settlement discussions, at some point, you're probably gonna mediate the case. In Florida, all our cases are ordered or sent to mediation, and, sooner or later, we're gonna have to mediate the case, and depositions are expensive, even if you do them by Zoom, as it's become more common these days. You don't have to actually travel to them. Deposition transcripts are a lot, and, if it's a significant deposition that's gonna run several hours, or maybe run more than one day, you're gonna be spending a lot of money, because, ultimately, you're gonna need a transcript to use that in some context or another, so, you're gonna have to decide, "Okay, if I'm gonna have mediation, what do I need in hand? What witnesses do I need to have them deposed in order to be in a position to properly mediate this case? I just finished the mediation a couple days ago, and I think both sides agreed that we were gonna do all the fact witnesses related to this incident, this pedestrian automobile accident case, so, we deposed the pedestrian, the driver, we deposed the witnesses who came onto the scene afterward, the EMT, and the officers who came out with body cams. We had all of them deposed and then we agreed to depose each other's liability expert. Each had a different story as to how the accident happened, and then we further agreed that all the causation and damages experts, all the doctors, all the providers, all the ones who are gonna put a number on the board, we were gonna wait until after mediation, because you have to pay experts per the hour. You have to get ready for these depositions. It takes a long time to prepare for an expert deposition. So, we agreed we were gonna do that later, and, ultimately, we settled, and we saved the client time and money on both sides. Fewer costs for the plaintiff's side and certainly fewer costs and attorney's fees for us, and so, as I was speaking about who to depose and I touched upon this, generally, as defense counsel, and I've handled a number of product liability cases, for example. I would do, typically, the following, I would depose the plaintiff, I would depose the liability witnesses, damages witnesses, including the treating physicians and experts, and so, once I know I have these four categories, then I decide who I'm gonna depose in each category and in what order. The plaintiff is the obvious one. Generally, he or she's the first one. I go first. Sometimes I'll take a liability witness out of order, because he or she may not be available, or she may not be around, he or she may actually have such explosive testimony that I don't even need to have to depose the plaintiff. I'm gonna have this witness go put them on the oath, have them cross-examined by the other side, and have them tell their story. I've had a number of cases where an independent third-party witness provide independent testimony that completely blew up the other side and they dismissed the case, and so, it doesn't always happen. It actually rarely happens, to be perfectly honest and transparent, but that may be one of the reasons why I take things in order, and damages witnesses, no matter who you're deposing, if it's a physician, at least in Florida, we're paying them their typical hourly rate, and sometimes it's not only a treating physician, perhaps, it's a nurse practitioner, perhaps, it's a physical therapist or a chiropractor, maybe it's somebody at a doctor's office who had a lot of interactions with the plaintiff who may have made certain admissions, and then, experts. Experts are typically for the end, because experts are relying on the testimony of fact witnesses, so, they typically want to know what all the fact witnesses have to say. They typically charge a generous hourly rate, and they generally charge you a lot of time to spend on reviewing the complete file and reaching their opinions, and so, often, we put them at the end both, because logistically they deserve to be at the end until they are a huge cost or expense, and if we can avoid taking, or at least putting off their depositions until we have a better sense of what the case is worth, and when we can settle it, we typically do that, and then, in terms of order of witnesses, I spoke generally about the categories. Let's take an example. For example, let's say there are five relevant treating physicians I wanna depose, and once physician's testimony may favorably affect how the other physicians perceive the issue of causation, I'll depose 'em first. For example, I may have a case where the physicians who treated a plaintiff after the accident relate the accident and the injuries to that accident. They basically find that somebody has been seriously injured and they believe that the symptoms that they're expressing, and the issues they're contending with are related to the accident, but it may turn out that that plaintiff has a lifelong family position, and that person has a very exhaustive set of medical records, which include a number of pre-existing accidents and injuries where they are describing the same pain, the same limitations, the same issues, and that doctor will go on the record, and say, "Well, I don't know what's happened since the accident," or maybe he does, "But I've been seeing this patient for the last 20 years, and these are his conditions and symptoms, and things that he's struggled with, and the things you're complaining about now, or he's complaining about now are consistent with all these prior injuries," and then I would take that transcript, I would order to get that transcript, and I would confront the doctors who are treating him for this case, and share with them this testimony, and say, "Are you familiar with Dr. So-and-So? He's been treating your patient for a number of years before this accident? And this doctor under oath has testified that the complaints that the plaintiff is making in this case, she or he has been making them for, not only years, but decades in the past, and that they're not necessarily related to this case, but related to a prior accident, or accidents, injuries, and so forth, and given that, they may very well decide, "Okay, well, I was under the impression that this accident caused her injuries, but having heard this testimony, or having read the testimony of this other witness, Doctor, I've changed my mind," and keep in mind the limits we place on the number of depositions you take. Typically, the default is 10 depositions for most cases. You may get fewer, you may get more depending on the type of case, and based on the case management order and by local practice, or by your own client. Your client may not want you to depose a bunch of witnesses. Again, they're very expensive, so, don't ever assume you can take an endless number of depositions. There are a bunch of factors, both internal and external that are gonna limit who you depose, and when, and so forth, so, early on, you need to get your clients buy-in, and figure out, okay, these are the witnesses we wanna depose. and this is what we expect they're going to say, or at least these are the topics and field they're going to address or cover, and having said that, then we are going to decide on a number. We're gonna agree on taking five depositions, eight depositions, six depositions. We're gonna agree to do 'em in this order, and we're gonna proceed accordingly. We're gonna try to take a deposition this month, and a couple more next month, and so forth, and along the continuum, we're gonna set mediation and see what happens, and so, once you've decided who you're gonna depose, then you have to do your due diligence, and so, I've decided on deposing, let's say, a fact witness, and I've decided to depose him, because that person may know a lot about the case, and so, I'll find out, was he previously deposed? And, if so, I'll try to secure the deposition. They give a sworn statement, or sign a declaration, or affidavit regarding this case. I'm gonna try to secure them. It's not uncommon for either side to hire private investigators or third-parties who go out and do a canvas of witnesses, take statements, and then procure these statements, and they may either give them or not give em over to the witnesses, which you should keep that in mind. Has this witness been involved in prior lawsuits? I'm gonna secure the docket sheet. Have they been involved in personal bankruptcy or corporate bankruptcy, a divorce, or foreclosure? You may secure those docket sheets. Are they on social media? I'm gonna do a Facebook, LinkedIn, Instagram, I'm gonna do whatever search I can. Do they have any sort of website footprint? I'm gonna search Google, Google Scholar, or Google Blogs, Google Plus, and Google Images, whatever's out there to see what is possibly available. Do they have a criminal record? Those are easily curable these days. Any corporate records, any public filings? Does the person have a public CV or an online profile? Do they have some sort of website with the company or do they have a blog? I'm gonna try to find out everything I can about a given witness, and you just never know what you'll find, and how it'll affect your case, and how it may be relevant. Maybe those corporate records may show some relationship between this witness and the other party. Perhaps, something in the CV may suggest some sort of expertise or information that may be relevant to your case, so, I try to find out everything I can, and I often find that the deponent's website or that person's company's website has a treasure trove of admissions you can use to advance your case. Think about your own law firm, for example, or if you're in house, think about your company, and the type of information that is available on your website, and in terms of your mission, and your vision, and your values based on who you are and what you do. There might be a whole host of things representing who you are, and your company, and there's maybe tidbits there that can be used to help or bolster your theme. For example, like I said, I'm often on the defense side, and on the defense side, I'll often look at my client's website, and I'll see if there's anything regarding the standard of care or discussing what's appropriate behavior, and what isn't, because in all likelihood, if the other side's doing their homework, they're going to find that out, and so, if it's a witness I'm deposing, I'm gonna look up his personal or her personal website, their corporate or business website, and I'm gonna see if there's anything there, even if it's a little snippet in some representation made on some page, whether on their personal page, or on the main page, or some other page that can help my case in some way, and, really, you're trying to find out everything you can. You're acting as your own private investigator and you're trying to find out as much information as you can about witness, so, go beyond websites. You wanna find anything and everything you can before you depose a witness, prior sworn testimony, whether in this case or another, you can pull up a docket sheet, you can see if the witness was noticed for deposition, you can see if their deposition testimony was filed, if you're in federal court, you can probably get that for free or for some nominal amount through PACER. Another great place is through Westlaw or Lexis. They have a lot of the lawsuits, and dockets, and documents there as well, and what's interesting about prior testimony, even though you're in a deposition, not at a trial, nothing prohibits you or prevents you from impeaching a witness at deposition. You don't typically see that as often. You'll be deposing a witness for the first time, but if you have a witness who... And certainly this is the case with experts, for example, where they've given many depositions, maybe the same or similar issues, and they've gone on the record to testify about a given topic or matter. You can ask them if they remember giving a deposition in a given case, addressing a specific topic, and then confront them with their own testimony, and impeach them with it, which I've done with a fair amount of success in the past. Speaking of experts, especially, with experts, a good place to start is prior deposition transcripts. There are lots of online services that warehouse and catalog them, and we'll sell them to you for a fee. Perhaps, your voluntary bar association has an expert deposition bank, most likely online, where we can download PDFs of transcripts. Every now and then, you may come across a deposition online, even Westlaw's gotten into the act, and will provide them for a fee. Maybe your firm has a deposition data bank. You may be part of some sort of exchange. You may belong to a group of attorneys, or you may have created a home group, maybe eight or 10 lawyers where you're constantly talking about experts. You're deposing the same experts and you've all agreed to share that information, and by the way, I really recommend that your firm start its own expert deposition data bank. If you are in a niche practice, you're probably deposing the same or similar experts with some frequency, and instead of each time having to go out and reinvent the wheel, and procure depositions, or past depositions, or testimony of that witness, do it yourself, and, again, coordinate with other lawyers of the law firms that are your same practice area that deposed the same type of experts and share transcripts. I often get requests for expert deposition transcripts. I make requests for expert deposition transcripts. Do others solid, do them a favor, and they'll do you one as well, and so, it's really important to get as much prior testimony as you can, so, once you have an expert's prior deposition or trial testimony, these are some of the things that I look for. Are there any discrepancies between the credentials he offered in the testimony and those in his CV? Has he offered opinions that contradict those in your case? Has he taken any position favorable to your case? How pliable a witness is he or she? Does he answer, "Yes," or, "No," to questions, or does he turn everything into a three page answer that will prove useless for cross-examination as you reference your expert in the current case, and if so, in what context? What basic principles or axioms does he agree with that you can build upon in your deposition and what skeletons were on Earth in his prior testimony? And so, you are using these depositions to procure information that you will use in your outline to depose this witness. There may be favorable opinions, there might be information about what his fees are, there might be information, the fact that a given expert has admitted on the record that he's been paid over $1 million in the last year. I was in a deposition I gave a number of years ago of an expert, or I took, I should say, and got that expert to admit that base between charges, and consulting, and everything else. He was making over $1 million a year as an expert, and funny enough, maybe years after that, I got a call from co-defense counsel who somehow came across that transcript, and showed how they did, and mentioned to me that, "I procured this information, they used it, and it really had helped them resolve the case on their terms," because I'd been able to call out some pretty good soundbites from the expert, and, ultimately, this other individual, years later, was able to use it to a very strong, positive effect, so, again, go through the deposition, something that you can do, something you can have someone else at your office do, or paralegal, you don't have to read the depositions line by line. You may find with certain experts, and, especially, ones that have been doing this for quite some time, they probably have dozens if not, perhaps, over 100 transcripts, so, look for ones that are more recent, because sometimes opinions evolve and it's perfectly fine. Look for depositions and cases factually similar to yours. Look for depositions taken by effective cross-examiners. Sometimes I'll just read a transcript and it's nothing more about, "Tell me about your opinion, tell me the foundation, your opinion," and it's short. It's not particularly effective. I'm trying to find transcripts from people who know what they're doing. They're trying to get admissions and they get admissions favorable to their case, and, ultimately, those admissions may be favorable to mine as well, and so, prior depositions often prove to be the most important tool of preparing for an expert deposition. Take the time to track them down and read them, and, yet, most of what you find will not be relevant in your case. Most of it won't be particularly helpful, but it will paint a picture of the witness. It will give you clues as to the type of witness you're dealing with, how he or she will testify, how cooperative they are, how obstinate they are, how agreeable they'll be. You're going to trade a mailable witness differently from a stubborn witness, and, if you know what type of witness you have going into the deposition, you can prepare your outline, and your approach, and your attitude accordingly. There are some experts who will fight tooth and nail on the most basic things, and there are some experts that will pretty much give away everything, and knowing who you're dealing with on the front end will really help out, so, we discuss how we all leave in our wake, our digital footprint, but we also have to leave behind our deposition footprint, our personal information and our statements, our opinions gathered online and elsewhere, forms of footprint, and the types of witness we will make at deposition. The more of the deposition footprint you can capture, the greater in focus will be your image of the type of deponent your witness will make. It'll be more than a blob of information. It'll have contours, it'll take shape, and you'll know what you're up against, so, when I use the phrase "deposition footprint," what I'm really saying is you're trying to procure any non-information you can, digitally or otherwise, for this witness in order to paint a fulsome and complete picture for you of what to expect in terms of the type of witness they will be, the type of information they will provide, and the quality of that information, and so, the next issue is questions for the witness, and you have to start thinking about the types of questions you're going to ask your witness, and most of us create an outline, which is understandable. When I create an outline, I don't list every question I can plan on asking. Typically, what I do is create topics and subtopics I want to cover. I have a list of exhibits I want to use in the order I want to use them in, and there may be specific questions I have, maybe very important admissions I want to get, and so, I may have a question or set of questions I've literally written out, but that is the exception, not the rule. For the most part, I just, generally, have an outline, and I have, along with that, written down my theme and theory, and the phrase or phrases I'm hoping to secure and admissions I'm hoping to gather, so, sort of as a cheat sheet of sorts that keeps me focused as the deposition goes forward, and, again, deposition, yes, to gather facts, but that's only the first level of the deposition. You are trying to make the deponent a conduit for your testimony, not their own. You're trying to get the deponent, as best as you can, to say what you want them to say. Kind of envision them as being sort of the dummy to you being the ventriloquist, and you are speaking, but they're actually saying the words. As best as you can, putting your words in the deponent's mouth, and you're ensuring that they are talking in terms of your themes and making admissions, and saying things to help you win, and so, you're not only directing the questions, but you're also directing the answers, and you're not only, simply asking questions, you're asking 'em in such a way to get the answers that you want, and remember, you're taking a deposition to advance your case themes and to accomplish that goal. I would suggest you take a few minutes and devise a list of themes you want to emphasize during the deposition. Figure it out, and literally write them down, and as I mentioned, I have a list and I keep it next to my outline, and it keeps me grounded. I know that I have certain themes I wanna focus on, certain theories I wanna develop, certain statements I want to procure, and I'm always thinking about how this witness is going to help my case, and how will it hurt it? And thinking about the role of this witness, and the purpose of deposition, and how the themes play out through this witness, and so, I developed these big ideas in terms of what this witness is going to say, and based on my theme, and my theory, and what I hope this witness will accomplish, and how they'll advance my case, and undermine the other, and help me win, and help the other side lose. Based on all that, that's when I sit down and I actually write down the outline. It's through that process and figuring out, really, how I can get a witness to help me is when I sit down and I write my outline, and so, whenever I write my outline, I always have my list of themes right there, and a lot of times I'll do it on my screens. I have two screens, and my left screen will have my outline, and my right screen, well, I already have my themes, and theories, and catchphrases, and that will always be the cheat sheet that directs my testimony, and then, of course, in any case, you have to prove or disprove the prima facie case, and in order to do that, you have to know what that is, and so, in any case, when I first look at it, are the jury instructions. I wanna make sure I understand what instructions are going to be read to the jury, and, if there is no jury, what are the issues that the court will consider when evaluating for bench drop. In a court case, duty breach, causation, injury, who has the duty? What is that duty? What is the standard of care? How do you breach that standard of care? What are the potential affirmative defenses? I need to know all that up front, and so, I usually, at some point, write out the elements of the prima facie case in my deposition outline, and I have that there, so I know what I need to focus on and what I need to address, and there's that phrase, never ask a witness at trial questions you don't already know the answer to, and one of the reasons you take a deposition is to find out the answers to all the questions you intend to ask the trial. Not only should you know how a witness will answer your questions, you should know how he will answer your specific questions, and answer your specific lines of questioning. There should be none, whatsoever, surprises at trial. Everything you're gonna use, you have to get a deposition, and that's why it's important to really think through your theme and your theory early on in the case, because what I often see, and sometimes our firm will inherit matters from other firms and we get invited to participate almost on the eve of the trial, and I look at depositions, and I realize that they didn't know or didn't think through what the theme or theory was, and it's sort of the shotgun approach, and they pursue one line of questioning and abandoned it for another line of questioning, and there's no real cohesion around the questions that are being answered, so, always prepare your depositions, as if you're preparing your examination for trial. Ask the same questions and then some. Go through different lines of questions, see what works, and what doesn't, see what questions result in favorable responses, and which ones don't, so, at the end of maybe a 100, or even 200 page transcript, you may only use 30 pages of that in trial, but it will be a tight 30 pages, and it will have the exact questions and answers you want to share with the jury, and everything you ask to witness at trial should already be contained in a deposition transcript. In fact, the transcript will serve as a trial testimony transcript. All you will have to do is cut and paste the questions you asked in the deposition that resulted in favorable testimony. With a deposition in hand, you can represent to the jury in opening what a witness will say, and use it to impeach the witness if he tries to change his answers, and tries to contradict your representations to the jury. That's why a detailed, thorough deposition where you get the admissions you want is so important, because that is the foundation for a good trial testimony, and I've seen trial attorneys who don't have that try to get witnesses to make certain admissions in trial, and sometimes it works, but, often, it doesn't, and there's nothing to back up. There's no transcript to impeach a witness with and it's nothing more effective. It's almost Pavlovian where you can get a certain witness to... If you impeach them once and you think they've learned their lesson, by the time you've impeached them a second time, when you ask 'em a question, and you kind of go and you reach for your transcript, they realize that you have them against the ropes, and they're just making admissions, and I've seen certain lawyers, even when they don't have, necessarily, something to impeach a witness with after they've trained the witness to realize that they have to agree or they'll get impeached. They'll simply reach for the transcript. That witness may not remember a question. That question may not even have been asked., but just to avoid further embarrassment, they'll answer the question as direct. Now, deposing an opposing party, keep in mind that he's been trained by his attorney not to make admissions. His attorney has drilled into his head the importance of not making admissions that hurt his case and that help you. Your job is secure admissions, and you want him to agree with you. Of course, he doesn't wanna agree with you, so, there's inherent tension between what you want to do and what the deponent plans in doing, so, when drafting your deposition outline and deposition questions, appreciate this tension and be prepared for it. Put yourself in the deponent's shoes and see how you would try to wiggle out of answering those tough questions, and make the necessary adjustments to the questions you plan on asking, and the order you plan on asking them. In other words, there is going to be a tension between the admissions you wanna secure and the witness knowing, having been trained or prepped by their own attorney, of what you're gonna ask them. When I prepare witnesses for depositions, or I should say clients, every question, I anticipate the other side asking them, and then I go through with that witness, or my client, I should say, how best to answer those questions, and, often, I'm told that the preparation we go through is much more rigorous than the questions they had to deal with at a deposition, and I think that's a good indicator that you're doing your job when you're preparing your client, and just as you're preparing your client for a deposition, the other side is preparing their client, or presumably, they are, and they are ready to answer your tough questions, and so, you have to put yourself in the deponent's shoes. You have to ask yourself, "If I was trying to avoid this question, how would I avoid it? What type of answer would I give? How would I deflect, or move on, or do something to change the conversation? And knowing that, how am I gonna ask these questions, and avoid that from happening?" Let's talk about deposition outlines. Let's, first, talk about 'em for experts. When cross-examining an expert in deposition, get him to agree with basic assumptions, principles, and facts that are generally accepted by the others in their expert's field. You wanna lay a foundation. You want him or she or agree to the basics upon which you can get more substantive admissions, so, you search out federal regulations, national and industry standards, generally, you would recognize studies and reports, peer reviewed articles from related publications, and pull them from statements with which any reasonable expert should agree. You basically look at what's out there, you pick out sort of the no-brainer, the plain spoken, the bread and butter information, and then, confront the expert with that statement, and ask him if he agrees. If he agrees, then you have secured an admission, that may serve you well later in deposition and at trial, and if he doesn't agree that he is showing himself to be unreasonable, this is something that's a very basic concept, basic premise, and he's fighting you on it, and so, sometimes I think the best thing in any question is, get the admission you want, but the second best thing is to not get what you want, to show a witness or an expert, a late witness or expert to basically fight you tooth and nail on the most obvious things, have them fight you that the Sun rises in the east and sets in the west, or whatever it might be. If they're fighting you on something that's so basic that it's common sense, then you're winning, and the more he disagrees with generally accepted statements, the more credibility that expert loses, and an important part of an expert deposition is to confront the expert with questions where, if he agrees with you, you win, and if he disagrees with you, you win. Find sources that provide you ready made questions that will pin down an expert, and pin down his opinions, and what I mean by that is find peer reviewed articles or books, find things that are authoritative in that expert's field. Maybe find something that expert has written himself. That's a really good approach. Find an article or book that expert's written where there is statements he has made that helped your case, and to agree, "Well, you wrote this, and you said this, and you still agree with this, you're not having changed your opinion since you wrote this," and later on, we revisit it when you're trying to deep dive deeper into an issue and remind him of his own statements, and once you've secure the admissions you're looking for, you can use them later in the deposition to limit or undermine his opinions, and once you've thought through everything you plan on asking, and how to ask it, take the time to prepare a detailed outline to use at the deposition. Divide the outline into sections with each section being a similar section you intend to use at trial, and what I typically do is I think through how I'm going to present testimony at trial, what are gonna be the topics and subtopics? And I make sure I may not ask those questions in the same order in deposition, but I'm gonna make sure I'm gonna follow through on all those topics at the very end, the admissions I want, and make sure that there isn't a single question or answer that hasn't been asked or answer that I'll need later. In fact, when preparing the deposition outline, pretend that it isn't a deposition at all you're preparing for. What you're really preparing for is the cross-examination of that witness. When you examine a witness at trial, you keep it short and sweet. When you cross-examine a witness, you ask short, direct questions and only allow a yes or no answer, you keep the witness on a tight leash, and you keep it interesting for the jury. You do the same in a deposition. In fact, you never know when that deposition you took, thinking it was merely a discovery deposition, will actually be read to the jury at trial, and so, my questions in deposition are short, and they're to the point. I ask one fact per question. I have each question built onto the next one. When I can, I lead a witness. You can lead the opposing party, a hostile witness, the opposing party's experts. You typically can't lead fact witnesses, but there's a caveat. What I typically do, because, in Florida, you have to preserve those types of objections at deposition, otherwise they're waived. I may try to lead a fact witness and I'll put the onus on the other side to object to my leading questions, and I'm surprised, often, that they don't. Often, they'll let me continue asking leading questions of a witness that I have no business leading, and they don't object, and now I have that testimony I can use at trial, and, again, remember there's a difference between opposing a favorable witness and a hostile witness, such as an opposing party and expert. Hostile witnesses, you can lead. other fact references, you can't, and so, keep that in mind. Don't assume that the other side is gonna let you lead a fact witness, and so, those questions have to be more typically open-ended, and so, how do you cross-examine a hostile witness? I keep my questions short, one fact per question. I ask questions whose answer is, "Yes," and I start with common sense questions that require a, "Yes," response, and if they say, "No," they're gonna look foolish. The next best thing to "yes" questions are "no" questions. Start your examination with your second strongest point. Consider always starting with the issue of bias, and with your strongest point, and with questions with which the witness must agree. Don't ask open-ended questions, and don't ask questions you can't control the answer to, and what I mean by that is that sometimes you'll ask a question, and it may not be open-ended, but there's a question where a witness or an expert will try to go on and on about. They've turned what should be a direct question into a very fairly large conversation piece, and so, very simple, and you, probably, have heard these rules, you probably follow a lot of these rules. These are basic cross-examination rules, and most of us follow, and so, again, it's one fact per question. I look at every question, and I'm asking myself, "Is this an atom sized question or is this a molecule sized question?" In other words, "Molecules are made up of atoms, can I break up this molecule into atom sized questions?" And I keep my questions as short as I can. I don't use big words, by the way, remember the whole point of these questions and answers is that, at some point, I may use them in front of a jury and I don't wanna come across as pompous, or use a term the jury may not understand, or come across as somebody who isn't an everyday person, and so, I'm avoiding $10 words, I'm avoiding very long-winded questions, I'm avoiding questions where a witness can try to ask for an explanation or suggest that they're not understanding it. My questions are as simple as they can be, and, again, I start with very basic things, things that they have to agree with. I get them into the habit of saying, "Yes, yes, yes." I get into a certain cadence. Also, as you can tell by now, I can talk pretty quickly. I try to ask questions in a rapid paced environment so that I get the witness not thinking about their answers, and just viscerally answering them. When I prepare a witness for a deposition, other than ensuring that they tell the truth, I always tell my witnesses, first and foremost, always tell the truth, and I tell 'em only answer the question being asked, but among one of the first things I tell them is to wait two seconds before answering any question, and that is so that they control the cadence of the questions and answers. I want the witness to be in control. I don't want the cross-examiner or the interrogator to be in control, and so, I practice with my clients to answer, to hear the question, one Mississippi, two Mississippi, and then answer the question, and that's from the first question about their name to the very last question about, "What do they wanna leave you with?" One Mississippi, two Mississippi, and knowing that, and I think that's one of the most integral pieces of advice you can give a client when opposing them. Knowing that, I purposely try to speed things up, I often drive court reporters crazy. I often drive witnesses crazy, or opposing counsels crazy, but if I can get them to quickly answer my questions so that they're just viscerally answering them one after another, one after another, at some point, I'm gonna get to some really core questions, the ones I'm trying to seek admissions for, and they are no longer in the habit of thinking about how to answer those questions, and they may viscerally answer a question in a way that's very helpful for me, and I'm just gonna keep moving on, and then the next three or four questions will come at such a rapid session. They may not even appreciate the admissions they made, because they're already answering the next question, and by the time opposing counsel or the witness has figured out that they said something they shouldn't have, I'm already onto another topic, and so, these are ways of approaching depositions. Now it's difficult to provide guidance on what specific questions they asked. I provided you some overreaching concepts to apply when drafting your outline, but when it comes to any witness, there's certain questions I ask every case, and I let the witnesses know that. Have you ever been arrested or convicted? Have you testified in court, or given a deposition or sworn statement? What documents that you reviewed to prepare for the deposition? Other than your attorney, did you discuss with anyone that you were giving that deposition? Was anyone present when you met with your attorney? What else did you do to prepare for the deposition if you sent any written statements or you've given any recorded statements about this case? And who has any knowledge or information about this case? And these are sort of like the fact discovery types of questions you're asking. These aren't, necessarily... Perhaps, they could be admission based questions, but I'm really trying to find out what these witnesses know, what access to documents they have, what documents they review, or what relevant documents are out there. Who else may be a potential witness and what information has this witness shared with other parties that may be relevant? And I may not find out until I take the person's deposition, because I can get them to respond to my inquiries. They wouldn't sit down with an interview for me. I find out for the first time in deposition that there's certain documents they have, certain information they have access to, certain statements they've given, and by the way, when I have a witness that refuses to cooperate with me, especially, when they've cooperated with the other side, they've given the other side a statement, they won't talk to me, they've sat down with the other attorney, and they won't sit down with me. I'll spell that out in a deposition, and I'll say, "So and so, I gave you a call," and they're like, "Yes, you did." "And I called you three times and..." "You did." "And you never called me back." "Well, I didn't have time." "Well, so and so called, the opposing counsel." "Yes he did." "And you answered his questions." "Well, yes." "And so, you had time to answer their questions?" "Yes." "But you didn't have time to answer my questions." And so, I'm trying to lay the foundation of bias so that, again, I'm trying to speak to a witness, get all the information that they may have beforehand, and unless they're represented by counsel or some other extenuating circumstance, I generally can do that, and then the question is, not all witnesses are gonna be cooperative, and so, I made sure that if they're not, I put that on the record, so, some other things you'll wanna find out, have you ever been a party to a lawsuit, made an insurance claim? Did any of the parties make any statements? Have you ever filed for bankruptcy? What social networking sites do you belong to? What types of information do you post or share on those sites? What do you know about this case? What have you been told about this case? Do you know any of the parties? What do you know about them? Have you spoken to any of the parties about this case? Do you know any documents or do you have any related to this case, and if they don't remember, is there anything that would refresh your recollection, and what haven't we covered in the deposition? And so, with regards to any witness, I'm trying to determine if there's any bias either against me or for the other side, and if I establish that there is a bias, I'll try to determine whether or not the witness is hostile, because that would provide me... I'd basically lead the witness, either in deposition or at trial, trying to figure out what's motivating the witness, whether good or bad. What state do they have in the case? What state do they have with regards to the parties, or relationship? These are all, again, typical questions, and these questions are directed to learn more about the witness and his involvement in the case. Remember, when preparing your deposition outline, think about the theme, the prima facie case and cross-examination techniques. These broad concepts will help you frame your outline. As to the specific questions, review deposition outlines prepared by others at your firm, and similar cases that will provide you with insight as the types of questions being asked, and the order they're being asked, and I can't emphasize that enough. When you're preparing an outline for your deposition and you're preparing for a specific type of witness, maybe it's a plaintiff, maybe it's an expert, or a type of expert, odds are there are others at your firm that have prepared similar outlines. Now, of course, it depends on the size of your firm, whether how big or how small the types of cases you handle and whether this is a novel case to your firm or something you've all handled before, but early on in my career, and I do this less now, because I've taken so many depositions, but early on in my career, whenever I prepare for a deposition of a specific type of witness, I go through our database, and we've always had some sort of electronic database, and I'd find outlines that were similar. If I couldn't find them, I'd walk around the office, and say, "I'm taking this type of case and I need this type of information, and have you ever deposed this type of witness?" And they'll say, "Yes," or, "No," whatever it is, and I'll have it secured, and I'll review it, and I got into the habit where I started preparing standard deposition outlines that were not only compilationed or, sort of, what was best from these other outlines, but I did my own thing, and then my outlines became sort of the standard for the firm to use when certain types of witnesses were being deposed, and so, I recommend to you, if you're taking the same type of depositions over and over again, have a sort of standard outline to use for that type of witness, and that is going to be the outline that you start off with. It doesn't always have to be that way. Sometimes you can start from scratch, but when I depose plaintiffs, for example, in auto cases, I have a standard auto case plaintiff deposition outlined, and it's pretty long. It's something I compiled and comprised for a period of time and those two cases are the same, and we're using different exhibits, and different types of cases, but that's a good starting point. Get into the habit of creating standard deposition outlines for standard witnesses, and we're cooperating collaboratively with your firm or people on your team to see what should be asked, and it's a good way to discuss, why did you ask this or why do you plan asking that? Why do you have these questions in this order? What are you trying to accomplish? These are all types of things you can do, so that is sort of a summary of how to take a deposition. A lot of the information I talked about today, you can find in a free book I wrote, "the Associate's Handbook." You can download it on my website, miamimentor.com. It's M-I-A-M-I-M-E-N-T-O-R.com. It's a personal website. I've written over 20 books, almost all of them are free on the website, and the one that deals specifically with taking depositions, there's a chapter on that or two, and it's "the Associates Handbook." It's sort of a soup to nuts on trial practice, and I think you may find that helpful. If you ever wanna reach me, you can reach me through my personal website, miamimentor.com, or you can find me on LinkedIn. I have about 64,000 followers. You can message me or send me a contact and reach out to me there. I also have other resources there available. Thanks again, I appreciate you listening to me and I hope you found this helpful and that you use some of this information in your next deposition.