Way back when I transitioned from work as a prosecutor in New York County to private civil litigation practice, one of the more difficult adjustments for me was taking and defending depositions. The difficulty was not the actual process, but the informality of the process compared to the formality of judge-supervised trial testimony. Although some rules apply to depositions in New York and federal practice, for the most part, no subject is off limits and almost anything is fair game.
Deposition and trial testimony are two very different animals. At a trial, the witness is first questioned by their own counsel and then cross examined by counsel from the other side. The purpose of trial testimony is for the litigants to present their narrative to the jury. Witnesses are prepared well in advance of trial for the questions they answer and for the anticipated cross examination. The testimony is limited by the Rules of Evidence and the cross examination is limited to the scope of what is presented by the witness testimony during the direct examination by their counsel. In other words, the witness is cross examined on the narrative they present within the limits of evidentiary rules. This entire process is supervised by a judge who rules on objections by both sides.
A deposition is much less structured. Depositions are part of the discovery process in state and federal litigation and are meant as an information gathering tool. More often, they are used by litigators to highlight inconsistencies and gaps in their adversaries’ narrative that may be useful in motion practice to get claims dismissed before trial or to undermine trial testimony later on in the process. Both state and federal rules allow for broad questioning during depositions, and objections, except in very limited circumstances, such as for privileged information, are not allowed. See, New York State Uniform Rules of Trial Courts, Part 221 – Uniform Rules For The Conduct Of Depositions; Federal Rules of Civil Procedure 30(c). The biggest difference, however, is that a deposition witness is not first questioned by their own counsel, nor does she get to put forth the narrative in a manner she chooses. Rather, the deposition witness is examined by counsel from the other side whose only objective is to undermine the witness’ narrative and credibility.
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This is a difficult concept to explain to most witnesses, even the savviest professional ones. It is even more difficult to help witnesses understand that the deposition is not their opportunity to set the record straight, convince the other side of the strength of their narrative, and win the case. This never happens. The way I deal with this is simple. If you have a strong claim, or if you are defending and you know that your adversary is unlikely to succeed on their claim, make sure your client gives up nothing at the deposition and don’t worry about what comes out when you depose the other side. Every litigator will tell you that the ideal deposition responses are simple: “Yes,” “No,” “I do not know,” and “I do not recall.” I tell my witnesses not to worry if a one-word answer seems misleading or feels like an incomplete answer. It is not their job to follow up. It’s the lawyer’s job to ask the right questions. If the other side does not follow up, that is their error. More importantly, I am generally not concerned about how the narrative unfolds at a deposition.
Simply put, I am not afraid of the truth. A good litigator must be prepared to deal with the narrative, no matter how it unfolds. This is particularly important for depositions, since it is nearly impossible for you to control the narrative when you are not asking the questions or, when questioning an adversary, you have not prepared the witness. What does this mean from a practical perspective? Don’t worry if the other side doesn’t follow up on a yes or no answer that needs further explanation. You can take care of this in an affidavit later during motion practice or on direct testimony at trial, if it gets that far. In some limited circumstances, though not always recommended, you can also question your own witness to clarify a point (the pro and cons of that would take a whole other post to explore). Bottom line, as long as your witness is telling the truth, you can work with whatever comes out. In all likelihood, there will be documents and other testimony to help clarify the point. On the flip side, if the other side is not truthful, there will likely be inconsistencies in their testimony and documents that contradict their narrative. Most importantly, there is the common-sense factor. If the narrative just does not make sense or fit in with the bigger picture, this can work to your advantage. Additionally, although almost any question is permissible at a deposition, not everything that comes out at the deposition will necessarily be admissible. The rules are tighter at trial and you cannot get summary judgment based on inadmissible evidence.
Your witnesses must be reassured that you are not afraid of the narrative, no matter how it comes out. Explain to them that their deposition answers should be truthful and concise, no matter what. You can deal with how the testimony sounds based on their concise answers to the adversary’s questions, no matter how good or bad. As a litigator, it is your job to present the facts in the best light possible for your client, regardless of how those facts have been characterized by the other side. There are many tools you can use to do this even after your adversary asks your client every irrelevant question he can think of during a deposition. You CAN handle the truth.
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Christine A. Rodriguez is of counsel to the firm Balestriere Fariello and successfully represents individuals and small businesses in all manner of employment discrimination, civil rights, criminal defense, civil litigation and commercial litigation matters. She also advises small businesses on all aspects of legal matters from contract to employee issues. You can reach her by email at christine. a. rodriguez@balestrierefariello. com.