In this post, we’re going to share three excellent deposition tips taken from a recent online presentation, How to Prepare for Your First (or 100th) Deposition, delivered by a pair of Miami-based litigators. Among many other topics, the two trial experts highlighted the need to prepare diligently for depositions, the usefulness of using post-deposition impressions for settlement purposes, and the value of videotaped images that add impact to deposition transcripts.
1. Compelling Exhibits During Remote Depositions
Preparation is the cornerstone supporting most effective depositions. This means preparation as far as the subject matter to be covered during the deposition and, in the case of a remote deposition, preparation leading to competence operating whatever hosting platform will be used.
Then there’s a third level of preparation: preparation to create the opportunity for the remote deposition to yield not just testimony but also compelling digital exhibits.
During the presentation, Michael E. Levine, a personal injury litigator with Stewart Tilghman Fox Bianchi & Cain P.A., in Miami, described a recent medical malpractice case in which he did just that. In advance of the deposition of the opposing party’s expert, Levine prepared by having a Zoom call with his own expert. The pair discussed the medical evidence in the case, particularly the expert’s explanation – using moving video images shared during the Zoom call – how an allegedly negligent cardiac catheterization procedure played a role in causing his client’s injuries.
Levine took notes and annotated with his expert’s comments portions of the video. Weeks later, during the remote deposition of the opposing party’s expert, he walked the opposing party’s expert through an unmarked version of the same cardiac catheterization video. Armed with the annotated screenshots and notes he had taken earlier sitting in his lap, Levine was able to recreate with the opposing party’s expert – merely by stepping through the information his own expert had given him – compelling exhibits supporting his theory of liability.
“It was one of the smoothest depositions that I’ve done over Zoom,” Levine said. “And it was also very effective because with mediation coming up, I’ve now got not just testimony but I also have pictures that are annotated with the doctor’s answers about them.”
Levine left the deposition with more than a transcript. He also had a persuasive set of exhibits, annotated with the expert’s testimony about them. This is where preparation can really make a big difference, he said.
2. Depositions Can Be a Springboard for Settlement
Most litigators enjoy the competitive aspects of their profession. They relish the sparring of trials and depositions, they enjoy the hunt for damaging information during pretrial discovery and they work hard to construct trial strategies they hope will lead to judgments for their clients.
Most clients, on the other hand, don’t enjoy litigation. They’d generally like to see cases end as efficiently and inexpensively as possible.
After some depositions, attorneys will leave the room with divergent views about the significance of the testimony they’ve just heard. According to presenter Marianne Curtis, a litigator with Berger Singerman LLP in Miami, one side might believe they’ve gotten what they need to win the case while attorneys on the other side might have failed to appreciate the implications of the witness’s testimony.
In those situations, Curtis said, the attorney who believes he or she has the advantage is faced with a choice: share the information with the opposing side in the hope of encouraging a settlement, or keep it close to the vest and spring it on the other side at trial.
Seeking an early settlement is going to be the best course of action in many cases, Curtis believes. She suggested drafting a post-deposition letter to opposing counsel that, in effect, previews the contents of a motion for summary judgment. The letter might touch on deposition testimony that the other side has overlooked and, in some situations, it might be all that’s necessary to avoid trial and bring the case to an early conclusion.
“We’re in the business of figuring out what is the most efficient, best result for our client,” she said. “Because the only people that like litigation and like the tussle and the fight are lawyers.”
3. Videotape Depositions Whenever You Can
In litigation pictures have immense value. They are among the most powerful types of evidence that can be presented to the factfinder. And in some depositions, there may be no “words on a page” at all that adequately capture the gravity of the deposition witness’s words.
Long pauses, fidgeting, and other suggestive body language will never appear on a deposition transcript. This is why litigators should strongly consider videotaping all critical depositions.
Levine recounted a deposition in a medical malpractice case in which he first had established with the witness – a nurse – that patients who have signs of an “acute abdomen” should, as a general proposition, be seen by a surgeon right away. Turning to the facts of the case at hand, he asked the nurse if his client’s wife showed signs of an acute abdomen. She replied yes. He asked if she told the doctor this fact. She replied no.
Levine next asked if she felt she should have informed the doctor. The nurse looked down, put her head in her hands, shook her head, and then – 28 seconds later – replied, “I don’t know.”
“It’s tough. It’s not pleasant,” Levine said. “But that’s why you videotape these things. Those are good answers on the transcript, but that video is very damaging.”
We write often on this blog about new technologies and deposition strategies that we hope will help litigators and advance the cause of efficient justice and client satisfaction, regardless of which side of litigation the reader happens to be on. Some of our most popular articles include:
- ABA Publishes Best Practices for Success in Remote Depositions
- Eight Ethical Pitfalls to Avoid at Your Next Deposition
- Effective Cross-Examination of Experts During Deposition
- Interstate Deposition Act Nearing Total Adoption Across Country
- Turning Deposition No-Shows to the Client’s Advantage
- Preventing Witness Coaching During a Remote Deposition
- Depose Witnesses Early or Risk Losing Their Testimony