What Corporate Counsel Need to Know About Managing Deposition Costs

Taking lots of depositions may also be a way to give young associates training in examination techniques in a no-harm, no-foul situation where they get to take the “less important” witnesses. But I personally question how this does the trick other than allowing a young lawyer to get over the yips of asking a witness questions. Presumably a good trial practice course can provide this experience, and more. Afterwards, the associate can conduct meaningful depositions.

Why Do It?

In most instances, taking every deposition under the sun results from practicing out of fear. For outside counsel it is the fear of a surprise witness coming out of the blue in an affidavit in connection with a summary judgment motion or worse yet at trial. For in-house counsel it is the fear of countermanding the recommendations of their outside counsel ' the litigation expert. And so the spiral goes. Outside counsel profess a fear that also provides them with more legal work ' how convenient. And in-house counsel avoids making hard decisions ' deferring to outside counsel as the experts.

But as we all know, the practice of defensive medicine has caused medical costs to balloon. The same is true for choosing whom you depose when it is based upon fear.

Not being surprised is a valid concern, but deposing everyone connected with the facts is not the answer. Why? Because doing so results in numerous meaningless depositions being taken and allows one to avoid focusing, early on, on what their case is about and what they need to do to get it prepared properly.

Avoiding Wasteful Practices

Not only does this wasteful practice unnecessarily increase litigation costs, in many instances it is a bad litigation strategy. In short, one does not need to, and should not, depose every possible witness in order to avoid being surprised.

Rather, what is required is a focus on what your case is about, how it may look at trial, how you want it to look at trial, and what you need to do in order to get there. Most lawyers do not engage in this all-important analysis until after discovery is completed. Their refrain? “How can I know what my case is going to look like until discovery is completed and every witness is deposed?” The lazy approach, a lame contention and a very bad practice.

Rule No. 1 in developing a deposition program ' you must have a clear conceptualization of what you want your case in chief to look like at trial and you also must anticipate what you believe the other side's case is going to look like. If you don't, then you are on a rudderless ship that will flounder aimlessly through discovery. How can you possibly know what to ask if you don't have a clue to: 1) what you want your case to look like at trial; and 2) what you believe the other side's case is going to look like?

Only with a clear idea of what each side's case is going to look like at trial can you develop a meaningful deposition program: to develop your best-case story and anticipate the other side's best-case story (See “Meaningful Litigation Plans,” by Stewart Weltman. The Corporate Counselor, September, 2008].

Who Is Your Witness?

The next step is to place potential deposition witnesses into various categories. These are:

• Witnesses controlled by the other side whom you believe are going to be key for you and whom you need to depose prior to trial;
• Witnesses whom you believe are going to be key witnesses for the other side and whom the other side will be able to bring to trial;
• Witnesses currently controlled by you who provide needed testimony and who for whatever reason may not be available at trial;
• Third-party witnesses who are within the trial subpoena jurisdiction of the court and who may testify either favorably or unfavorably for your case;
• Third-party witnesses who are not within the trial subpoena jurisdiction of the court or otherwise not available at trial and who may testify either favorably or unfavorably for your case; and
• Witnesses currently controlled by you who provide needed testimony and who will be available at trial.

Once you have placed witnesses into their respective categories, you will have a roadmap of who may be deposed. The next step is to critically analyze on a witness-by-witness basis why and whether you need to depose a particular witness ' the basic decisional approaches that one needs to take in order to develop a meaningful deposition program designed to get your case properly prepared for summary judgment and trial.

Before addressing the categories, here is an approach that should be used for every potential witness. Operate under the presumption that no depositions should be taken and that the person asserting that a deposition should be taken must do so by clear and convincing evidence.

This is a heavy burden, to say the least, but its spirit is dead on. Depositions should only be taken when absolutely needed. In any event, regardless of what burden you adopt in deciding whether to depose someone, here are some threshold questions that must be asked about every potential witness:

• How will the witness' testimony further the ball in your preparation for summary judgment or trial?
• Are there other means of establishing what this witness is going to say, e.g., via the written documents, a declaration/affidavit?
• What are the key questions you intend to ask and what do you believe will be the witness' answers?
• Will asking these questions and receiving the anticipated answers help in your preparation for summary judgment or trial or are you better off waiting until trial to ask these questions?

Breaking Down the Witness Categories

Now to the discussion of the various witness categories listed above:

1. Witnesses Controlled by the Other Side Whom You Believe Are Going to Be Key

What are the key characteristics of this witness? First off, someone controlled by the other side means that they either are a current employee or they are a former employee who has indicated that they are going to be represented by counsel for the other side. They are key to your case because either: 1) they were a witness to some event or occurrence that is important to your case and there is something that boxes them into having to provide testimony favorable to your side (e.g., documentation ' either a signed statement or other document authored by them); or 2) they have authored documents that contain key admissions helpful to your case.

With this sort of witness, you should start with the presumption that you want to first meet him when you walk up to cross-examine him on the witness stand at trial. This is particularly so if you can obtain a stipulation from the opposing side that the documents you are interested in were authored by this witness, are authentic and are business records. Such stipulations are routinely agreed to.

There are counter arguments, however, for taking this witness' deposition. One of the paramount ones is that you might want to find out, prior to trial, what this witness intends to say about a particular document or documents. In other words, rather than rip her to shreds with your best cross-examination during her deposition, you might conduct an examination calculated to draw out what she intends to say about the document. In this way, you can better prepare your trial cross-exam. But again it must be emphasized that the purpose of the deposition solely to assist you in developing a better cross-exam at trial ' not to use up your best cross-exam during the deposition.

If there are no boxed documents but you know that the witness has material knowledge about the events involved in your case and you believe, for whatever reason, that he may recount the event in some fashion that is favorable to your case, then it is probably best that you in fact depose him to find out what he is going to say. Again, I would not use the deposition to conduct a cross-examination, but approach the deposition with the attitude that you just want to find out what he is going to say. If during the course of conducting the deposition you are presented with an opportunity to nail his testimony into a corner that is favorable to you, then you can choose to pounce on it. But I would not approach such depositions with this expectation.

2. Witnesses Whom You Believe Are Going to be Key for the Other Side

I would only consider deposing witnesses under this category whom you believe are going to be doing the heavy lifting for the other side's case. But once you determine who they are, I believe that you should depose them only because you need to find out what the other side's case is going to be about. Again, with these witnesses your only objective should be to find out what it is that they are going to say and stretching them to their furthest limits in terms of what and how they are willing to say it.

3. Witnesses Controlled by You Who Provide Needed Testimony And May Not be Available at Trial

Quite obviously, witnesses under this category must be deposed by you. I would prepare them for their deposition just as you would a witness at trial. I would also recommend that it be video-taped. This is the only way to go these days in presenting deposition testimony at trial. Since this deposition is presumably going to be shown to the jury, you should prepare an examination outline in an expository fashion in the same manner as you would if you were conducting the direct examination at trial. Prepare the witness for cross-examination just as if you were going to defend his deposition.

4. Third-Party Witnesses Within the Subpoena Jurisdiction of the Court Who May Testify Either Way

For third-party witnesses who are within the subpoena jurisdiction of the court and who may provide favorable testimony for your side, it would be preferable to obtain a sworn statement rather than deposing them. If they have counsel, sometimes their counsel can get in the way of obtaining an acceptable statement that is close to what they would say under oath. In such situations you may have to depose them in order to lock in their testimony before trial. Whether you take their deposition or take your chances at trial are judgment calls that are fact-specific to the witness and what they may have to say. For third-party witnesses who may provide unfavorable testimony and who are within the subpoena jurisdiction of the court, you should treat their deposition like a witness under category no. 2 above. You want to find out what they have to say so that you can prepare for cross-examination at trial.

5. Third-Party Witnesses Who Are Not Within the Subpoena Jurisdiction of the Court or Not Available at Trial, Who May Testify Either Way

For those third-party witnesses outside the subpoena jurisdiction who may provide favorable testimony, you need to depose them in a similar fashion to those in category no. 3 above. For third-party witnesses outside the subpoena jurisdiction who may provide unfavorable testimony and who will not be available for trial, this is a dicey proposition. If you are pretty sure that they will not voluntarily come to trial, then don't depose them ' unless, of course, your opponent notices up their deposition. If there is a reasonable chance that they will be willing to come to trial, then you need to treat them like a witness under category no. 2.

6. Witnesses Controlled by You Who Provide Needed Testimony and Who Will Be Available at Trial

No need to depose them at all ' unless there are health issues, in which case they then come under the favorable witnesses category.

Conclusion

While the foregoing may seem a little technical at first and more practice-oriented (as opposed to in-house big picture) if you use this roadmap, you will be able to talk the talk with your outside counsel, have a better mastery of what is happening in your cases, and thus have a better ability to participate with and direct your outside counsel in the execution of your litigation plan. This, in turn, will better enable you to keep litigation costs under control.

Stewart Weltman is a principal in the Chicago-based law firm of Futterman Howard Ashley & Weltman, P.C. A member of this newsletter's Board of Editors, Weltman has been a lead trial counsel in numerous complex litigation matters for both plaintiffs and defendants. He has argued before the Illinois Appellate Court, the Seventh, Fifth and Federal Circuit Courts of Appeals. He has appeared before the United States Supreme Court as both counsel of record and as amicus counsel. For more information, please visit his Lean and Mean Litigation Blog (leanlitigation.typepad.com) or contact him at [email protected].

One of the black holes of litigation costs is discovery and, in particular, deposition costs. This article provides some guidance to in-house counsel as to how to better manage your outside counsel in limiting this money-draining wasteland. This boils down to a seemingly simple task ' deciding who should or should not be deposed.

Most lawyers look at the written discovery (interrogatory answers provided by the other side identifying who may have information about the facts and their document production) along with information provided to them by their client ' and then depose anyone who had any connection to the case whatsoever.

The etiology of this practice has in part to do with the fact that, for years, large firm/large client defense-oriented practitioners had virtually unlimited budgets that allowed them to leave no stone unturned. In turn, this became the fashion for all lawyers ' if it was good enough for the “big” law firms to leave no stone unturned, it must be a “best practice.”

Taking lots of depositions may also be a way to give young associates training in examination techniques in a no-harm, no-foul situation where they get to take the “less important” witnesses. But I personally question how this does the trick other than allowing a young lawyer to get over the yips of asking a witness questions. Presumably a good trial practice course can provide this experience, and more. Afterwards, the associate can conduct meaningful depositions.

Why Do It?

In most instances, taking every deposition under the sun results from practicing out of fear. For outside counsel it is the fear of a surprise witness coming out of the blue in an affidavit in connection with a summary judgment motion or worse yet at trial. For in-house counsel it is the fear of countermanding the recommendations of their outside counsel ' the litigation expert. And so the spiral goes. Outside counsel profess a fear that also provides them with more legal work ' how convenient. And in-house counsel avoids making hard decisions ' deferring to outside counsel as the experts.

But as we all know, the practice of defensive medicine has caused medical costs to balloon. The same is true for choosing whom you depose when it is based upon fear.

Not being surprised is a valid concern, but deposing everyone connected with the facts is not the answer. Why? Because doing so results in numerous meaningless depositions being taken and allows one to avoid focusing, early on, on what their case is about and what they need to do to get it prepared properly.

Avoiding Wasteful Practices

Not only does this wasteful practice unnecessarily increase litigation costs, in many instances it is a bad litigation strategy. In short, one does not need to, and should not, depose every possible witness in order to avoid being surprised.

Rather, what is required is a focus on what your case is about, how it may look at trial, how you want it to look at trial, and what you need to do in order to get there. Most lawyers do not engage in this all-important analysis until after discovery is completed. Their refrain? “How can I know what my case is going to look like until discovery is completed and every witness is deposed?” The lazy approach, a lame contention and a very bad practice.

Rule No. 1 in developing a deposition program ' you must have a clear conceptualization of what you want your case in chief to look like at trial and you also must anticipate what you believe the other side's case is going to look like. If you don't, then you are on a rudderless ship that will flounder aimlessly through discovery. How can you possibly know what to ask if you don't have a clue to: 1) what you want your case to look like at trial; and 2) what you believe the other side's case is going to look like?

Only with a clear idea of what each side's case is going to look like at trial can you develop a meaningful deposition program: to develop your best-case story and anticipate the other side's best-case story (See “Meaningful Litigation Plans,” by Stewart Weltman. The Corporate Counselor, September, 2008].

Who Is Your Witness?

The next step is to place potential deposition witnesses into various categories. These are:

• Witnesses controlled by the other side whom you believe are going to be key for you and whom you need to depose prior to trial;
• Witnesses whom you believe are going to be key witnesses for the other side and whom the other side will be able to bring to trial;
• Witnesses currently controlled by you who provide needed testimony and who for whatever reason may not be available at trial;
• Third-party witnesses who are within the trial subpoena jurisdiction of the court and who may testify either favorably or unfavorably for your case;
• Third-party witnesses who are not within the trial subpoena jurisdiction of the court or otherwise not available at trial and who may testify either favorably or unfavorably for your case; and
• Witnesses currently controlled by you who provide needed testimony and who will be available at trial.

Once you have placed witnesses into their respective categories, you will have a roadmap of who may be deposed. The next step is to critically analyze on a witness-by-witness basis why and whether you need to depose a particular witness ' the basic decisional approaches that one needs to take in order to develop a meaningful deposition program designed to get your case properly prepared for summary judgment and trial.

Before addressing the categories, here is an approach that should be used for every potential witness. Operate under the presumption that no depositions should be taken and that the person asserting that a deposition should be taken must do so by clear and convincing evidence.

This is a heavy burden, to say the least, but its spirit is dead on. Depositions should only be taken when absolutely needed. In any event, regardless of what burden you adopt in deciding whether to depose someone, here are some threshold questions that must be asked about every potential witness:

• How will the witness' testimony further the ball in your preparation for summary judgment or trial?
• Are there other means of establishing what this witness is going to say, e.g., via the written documents, a declaration/affidavit?
• What are the key questions you intend to ask and what do you believe will be the witness' answers?
• Will asking these questions and receiving the anticipated answers help in your preparation for summary judgment or trial or are you better off waiting until trial to ask these questions?

Breaking Down the Witness Categories

Now to the discussion of the various witness categories listed above:

1. Witnesses Controlled by the Other Side Whom You Believe Are Going to Be Key

What are the key characteristics of this witness? First off, someone controlled by the other side means that they either are a current employee or they are a former employee who has indicated that they are going to be represented by counsel for the other side. They are key to your case because either: 1) they were a witness to some event or occurrence that is important to your case and there is something that boxes them into having to provide testimony favorable to your side (e.g., documentation ' either a signed statement or other document authored by them); or 2) they have authored documents that contain key admissions helpful to your case.

With this sort of witness, you should start with the presumption that you want to first meet him when you walk up to cross-examine him on the witness stand at trial. This is particularly so if you can obtain a stipulation from the opposing side that the documents you are interested in were authored by this witness, are authentic and are business records. Such stipulations are routinely agreed to.

There are counter arguments, however, for taking this witness' deposition. One of the paramount ones is that you might want to find out, prior to trial, what this witness intends to say about a particular document or documents. In other words, rather than rip her to shreds with your best cross-examination during her deposition, you might conduct an examination calculated to draw out what she intends to say about the document. In this way, you can better prepare your trial cross-exam. But again it must be emphasized that the purpose of the deposition solely to assist you in developing a better cross-exam at trial ' not to use up your best cross-exam during the deposition.

If there are no boxed documents but you know that the witness has material knowledge about the events involved in your case and you believe, for whatever reason, that he may recount the event in some fashion that is favorable to your case, then it is probably best that you in fact depose him to find out what he is going to say. Again, I would not use the deposition to conduct a cross-examination, but approach the deposition with the attitude that you just want to find out what he is going to say. If during the course of conducting the deposition you are presented with an opportunity to nail his testimony into a corner that is favorable to you, then you can choose to pounce on it. But I would not approach such depositions with this expectation.

2. Witnesses Whom You Believe Are Going to be Key for the Other Side

I would only consider deposing witnesses under this category whom you believe are going to be doing the heavy lifting for the other side's case. But once you determine who they are, I believe that you should depose them only because you need to find out what the other side's case is going to be about. Again, with these witnesses your only objective should be to find out what it is that they are going to say and stretching them to their furthest limits in terms of what and how they are willing to say it.

3. Witnesses Controlled by You Who Provide Needed Testimony And May Not be Available at Trial

Quite obviously, witnesses under this category must be deposed by you. I would prepare them for their deposition just as you would a witness at trial. I would also recommend that it be video-taped. This is the only way to go these days in presenting deposition testimony at trial. Since this deposition is presumably going to be shown to the jury, you should prepare an examination outline in an expository fashion in the same manner as you would if you were conducting the direct examination at trial. Prepare the witness for cross-examination just as if you were going to defend his deposition.

4. Third-Party Witnesses Within the Subpoena Jurisdiction of the Court Who May Testify Either Way

For third-party witnesses who are within the subpoena jurisdiction of the court and who may provide favorable testimony for your side, it would be preferable to obtain a sworn statement rather than deposing them. If they have counsel, sometimes their counsel can get in the way of obtaining an acceptable statement that is close to what they would say under oath. In such situations you may have to depose them in order to lock in their testimony before trial. Whether you take their deposition or take your chances at trial are judgment calls that are fact-specific to the witness and what they may have to say. For third-party witnesses who may provide unfavorable testimony and who are within the subpoena jurisdiction of the court, you should treat their deposition like a witness under category no. 2 above. You want to find out what they have to say so that you can prepare for cross-examination at trial.

5. Third-Party Witnesses Who Are Not Within the Subpoena Jurisdiction of the Court or Not Available at Trial, Who May Testify Either Way

For those third-party witnesses outside the subpoena jurisdiction who may provide favorable testimony, you need to depose them in a similar fashion to those in category no. 3 above. For third-party witnesses outside the subpoena jurisdiction who may provide unfavorable testimony and who will not be available for trial, this is a dicey proposition. If you are pretty sure that they will not voluntarily come to trial, then don't depose them ' unless, of course, your opponent notices up their deposition. If there is a reasonable chance that they will be willing to come to trial, then you need to treat them like a witness under category no. 2.

6. Witnesses Controlled by You Who Provide Needed Testimony and Who Will Be Available at Trial

No need to depose them at all ' unless there are health issues, in which case they then come under the favorable witnesses category.

Conclusion

While the foregoing may seem a little technical at first and more practice-oriented (as opposed to in-house big picture) if you use this roadmap, you will be able to talk the talk with your outside counsel, have a better mastery of what is happening in your cases, and thus have a better ability to participate with and direct your outside counsel in the execution of your litigation plan. This, in turn, will better enable you to keep litigation costs under control.

Stewart Weltman is a principal in the Chicago-based law firm of Futterman Howard Ashley & Weltman, P.C. A member of this newsletter's Board of Editors, Weltman has been a lead trial counsel in numerous complex litigation matters for both plaintiffs and defendants. He has argued before the Illinois Appellate Court, the Seventh, Fifth and Federal Circuit Courts of Appeals. He has appeared before the United States Supreme Court as both counsel of record and as amicus counsel. For more information, please visit his Lean and Mean Litigation Blog (leanlitigation.typepad.com) or contact him at [email protected].