Sometimes, the conventional wisdom is dangerously wrong.
Today’s conventional wisdom is this: “Never do any direct examination of your own witnesses at [discovery] depositions. These witnesses are under your control. If opposing counsel tries to use the deposition testimony against you in a motion, you’ll just get an affidavit from your witness and fix the problem. If opposing counsel tries to use the bad testimony against you at trial, you’ll just call the witness live at trial, and you’ll fix any issues with the testimony there. Doing direct examination during the deposition just gives opposing counsel advance notice of the way you’ll fix the testimony later.”
(Some folks will admit to an exception or two to this rule. If the witness said “yes” and meant “no,” then maybe you have to fix that on the record at the deposition. If the witness is 95 years old and has a bad cough, then maybe you should do a direct examination during the deposition. But those exceptions are typically few and far between.)
If you haven’t yet heard this conventional wisdom, then either (1) you’re not a litigator or (2) you haven’t yet defended your first deposition of a person under your control.
I’m here today to tell you why this conventional wisdom is often wrong. . . .
I first saw this conventional wisdom come back to haunt a client in a mass tort case.
The plaintiffs deposed everyone in sight, including scores of employees of the main corporate defendant. Defense counsel never asked a question on direct of the corporate witnesses, figuring that counsel could always call the witnesses at trial to fix any problems with the testimony.
But defense counsel, inexperienced at actually trying cases, hadn’t foreseen the trial dynamics. At trial, the plaintiffs play snippets of deposition testimony from 15 or 20 corporate employees. The witnesses don’t look great during those snippets, because it’s all cross-examination and there’s no direct examination to play to make the witnesses look good for a few minutes.
Can defense counsel call those 15 or 20 corporate employees live at trial to fix the problems with their deposition testimony? Theoretically, yes; practically, no. When trial is imminent, you’re searching for the very few strong corporate witnesses who can collectively present your whole case, look great while testifying, and present the smallest targets on cross. There typically won’t be 20 of those people; you may be looking at three or five and trying to figure out which of those you can do without.
At trial, you’ll become even more desperate to ditch witnesses: “We’re doing fine so far. There’s no reason to run extra risks. Each of our witnesses will just be a potential disaster waiting to happen. Can we do without Iago? Ophelia? All of ’em? What’s the smallest target we can present?”
All of a sudden, your decision not to have a few minutes of direct testimony in the can, videotaped at the deposition and ready to play, doesn’t look so smart. It turns out that you cannot call live at trial all of the witnesses under your control to fix the bad deposition testimony and, even if you could, you wouldn’t want to.
(Evidence purists may object here, saying that judges may not be required to let you play videotape of direct testimony after the other side plays some video of the cross. The technically correct evidentiary ruling may vary by jurisdiction and circumstances but, as a practical matter, many judges will permit you to play the direct, to let the jury hear all of the testimony from a single witness at a single time, and thus to aid the jury’s comprehension. In fact, opposing counsel may stipulate to this. In any event, you have no chance of playing a videotape that doesn’t exist; if videotaped testimony exists, you can start arguing.)
After I saw the conventional wisdom cause trouble early in my career, I always insisted that we ask a few minutes of direct testimony of witnesses under our control when we were defending mass torts. That strategy actually proved to have a secondary benefit: Plaintiffs’ counsel weren’t pleased when they realized that they’d get kicked in the teeth at the end of every deposition they took, and they seemingly became more selective in noticing depositions.
My unconventional thinking isn’t limited to the defense of mass torts. In any case involving lots of witnesses under your control — so that it will be impractical or unwise to bring all of those witnesses to testify live at trial — the received wisdom of asking no questions of your own witnesses at deposition may be dangerously wrong.
As outside counsel, turn my suggestion over in your mind. As in-house counsel, be sure that your lawyers aren’t following wisdom created decades ago, in an era of small cases, and mindlessly applying that thinking in today’s case, to which it may not apply.
Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at firstname.lastname@example.org.