When Reviewing Deposition Why Do Counsel Need to Be Present
Ten Rules for Depositions: Must-Know Prove Rules for Constructive Examinations
"If you don't know where y'all are going, you'll cease up someplace else." - Yogi Berra
When it comes to effective depositions, the examining attorney must main a handful of skills to ensure he or she is discovering new and necessary facts, exhausting (and pinning down) the witness' memory, and succinctly capturing central admissions. Our online Depositions Skills Clinic takes a shut look at these problems and unpacks real-life examples of famous (and some infamous) depositions to illustrate what these skills look like in practice.
In improver to degradation tactics, a deposition admission is worthless unless it is anopen-door admission. Also oftentimes, practitioners make the fault of assertive that the rules of prove is something to consider if or when the instance goes to trial. This is a mistake. A degradation transcript used to support a motion for summary judgment is useless if a key admission is buried in a meandering back-and-forth between the witness and examining attorney. And information technology's less than useless if the admission is inadmissible because the examining attorney failed to consider potential evidentiary hurdles. Mastering the rules of evidence is admittedly necessary for effective advocacy, and Evidence 101 is a nifty place to start. For now, here are x must-know rules for effective depositions.
Rule 1: Witness Competency (i.east., Personal Noesis)
California Evidence Code section 702 provides that with percipient witnesses, "the testimony of a witness concerning a detail matter is inadmissible unless he has personal knowledge of the matter." Before a witness can testify about a matter, there must be a foundation showing the witness' personal cognition. The importance of personal knowledge is regularly underappreciated. Yard nowing something to be true is different fromassertive it to exist true.
Take planet earth. Most witnesses will not hesitate to adjure, if asked, that the earth is round. Anybody knows that. Only if asked to identify what personal knowledge supports their knowledge, almost witnesses come up upwards short. They may accept been told the globe was round in school (hearsay) or read about it in books (more hearsay). They have probably seen photos of earth taken from infinite. But without ever having been in infinite, those witnesses are incompetent to authenticate the pictures.
The globe example is absolutely dizzy (the roundness of earth is unlikely to exist litigated anytime soon). But it does illustrate the susceptibility of witnesses and lawyers accepting or bold personal knowledge when it may not exist. Equally the examining attorney, it is therefore useful to pin downwards both (one) what the witness knows, and (two)howthe witness acquired such knowledge.
As the defending chaser, it is equally important to be on the lookout for testimony being offered without an acceptable foundation. If a witness is unavailable at trial, at that place is a adventure that incompetent testimony volition be admitted because the trial court will conclude that objections related to foundation should accept been fabricated at deposition. California Lawmaking of Ceremonious Procedure section 2025.460(b) provides as follows:
Errors and irregularities of any kind occurring at the oral test thatmight be cured if promptly presented are waived unless a specific objection to them is timely made during the deposition. These errors and irregularities include, just are not express to, those relating to ...the course of any question or answer....
Like California, the general dominion in federal cases is that objections should only exist to the class of the question. Fed. R. Civ. P. 32(d)(3). Practitioners are thus cautioned that "[i]f you intend to use degradation testimony at trial (and you usually do),phrase your questions to avoid all noun objections—i.due east., hearsay, no foundation, conclusions, etc. Otherwise, you may find you have conducted an expensive discovery procedure that does you little good in the long run." O'Connell & Stevenson,Fed. Practice Guide: Fed. Civil Procedure Before Trial (The Rutter Group 2017) ¶ 11:1558.
But there is an important exception to the general rule of form-but objections. As i treatise explains:
However—and this is an of import "however"—even [other] objection[s]must be fabricated at the depositionif the evidentiary defect presented past the question can exist cured at the degradation. Likewise many lawyers believe that they need to object only as to the form of a question, and that all objections regarding the question's substance are preserved.... [A]southward a defender you may demand to object to the competency of a witness, to questions that seek inadmissible opinion or conclusion (for instance, when a lay witness is asked for a legal conclusion), and to questions thatlack foundation or are speculative....
Hecht, Henry Fifty.,Effective Depositions 354 (2nd ed. 2010) (emphasis in original).
Rule 2: Document Authentication
Authenticating documents is elementary, usually taking but a matter of seconds, and nonetheless attorneys routinely bungle the practise. This can cause large problems at summary judgment or trial. In a past trial, the parties fiercely disputed the relevance of a document. Our trial team filed a motilityin limine to exclude it, which the court denied in a lengthy order. Merely because the court ruled onrelevanceonly, it did not decideadmissibility.The court recognized that the threshold upshot of foundation remained: "The court finds that the ... [m]emorandum that discusses [defendant's] response to the email may be admitted into prove,assuming a proper foundation[is laid]...." (Italics added).
During trial, the plaintiff'due south lawyer failed to consider the importance of authenticating the document. He failed to practice and so during depositions and, when he tried to acknowledge (and publish) the certificate during trial, he did and so with a witness lacking personal knowledge of its creation.
The certificate was never admitted into bear witness. Only it could have. When considering authentication, California Evidence Code 1400 requires "(a) the introduction of show sufficient to sustain a finding that [the writing] is what the proponent of the evidence claims it is[,] or (b) the establishment of such facts past any other ways provided by law." This means that the proponent must produce enough bear witness tosupport a finding by apreponderanceof the evidence.People v. Herrera, 83 Cal. App. 4th 46, 61 (2000). To be clear, the judge does non need to determine if the document is, in fact, authentic. He or she just needs to decide if there is sufficient prove thatthe jury could conclude the writing is authentic.As long as the proponent's show would support a finding of authenticity, the writing is open-door. The fact that conflicting inferences can be fatigued regarding actuality goes to the weight of evidence, not its admissibility.See e.yard.,McCallister 5. George, 73 Cal. App. 3d 258, 262 (1977).
Like testimonial evidence, a certificate can be authenticated by anyone who saw the writing made or executed, including a subscribing witness. Cal. Evid. Code § 1413. Testimony from a percipient witness, speaking from personal noesis as to the execution of a writing, is sufficient.People v. Estrada, 93 Cal. App. 3d 76, 100 (1979).
Merely first-hand cognition is not the only way to authenticate a document. Testify Code sections 1410 through 1421 list diverse methods of authentication of documents, and these methods are not exclusive. "California courts have never considered the listing set forth in the Show Code sections 1410-1421 as precluding reliance upon other ways of authentication."People v. Olguin, 31 Cal. App. 4th 1355, 1372 (1994). "Circumstantial prove, content and location are all valid means of authentication."People v. Gibson, 90 Cal. App. quaternary 371, 383 (2001).
Rule 3: Business Records Exception
Trustworthinessis the rationale behind the concern records exception (and many other hearsay exceptions). If a concern relies on sure records in its solar day-to-day operations, they are likely trustworthy enough to exist used in court. On the other manus, if a record was specifically created for a party's use in litigation, it is understandablylesstrustworthy.
For both the proponent and opponent of a business concern record's admission, the commencement step is understanding the foundational requirements of this hearsay exception:
1271. Evidence of a writing made as a record of an human action, condition, or event is not made inadmissible by the hearsay rule when offered to prove the deed, status, or event if:
(a) The writing was made in the regular course of a business;
(b) The writing was made at or near the time of the human action, condition, or event;
(c) The custodian or other qualified witness testifies to its identity and the mode of its training; and
(d) The sources of data and method and time of preparation were such as to indicate its trustworthiness.
Cal. Evid. Code § 1271.
A mutual misstep is ignoring the opening language of Section 1271. The threshold requirement is that the writing record an "human action, condition or event." A writing that purports to record only adeterminationdoes not qualify.
People v. Reyes, 12 Cal. 3d 486 (1974) illustrates this point:
[A] conclusion is neither an act, condition or event; it may or may non be based upon conditions, acts or events observed by the person drawing the decision; information technology may or may not exist founded upon audio reason; the person who has formed the decision recorded may or may non be qualified to form it and testify to it. Whether the decision is based upon observation of an act, condition or event or upon sound reason or whether the person forming information technology is qualified to form it and show to information technology can only exist established past the examination of that political party nether adjuration....
Id.,citing People v. Williams, 187 Cal. App. 2d 355, 365 (1960).
The next requirement is that the writing be made in the regular course of business. There are two important components to this requirement: (1) the business must routinely make a record of the act, status or event in question as function of its regularly-conducted business organization, and (2) the record must accept been made by someone with immediate knowledge or be based upon information obtained from someone who had a business duty to observe and report the facts recorded as part of his employment. I way to recall about this requirement is that the substance of the tape must be reliable; it cannot merely be the regurgitation of inadmissible hearsay—even if it is made in the regular grade of business concern.See e.thou.,Zanone 5. City of Whittier, 162 Cal. App. 4th 174 (2008).
The timeliness of the record ("writing was fabricated at or about the fourth dimension of the deed, condition, or event") is measured from the time of the act, status or event to the time the document is entered or recorded.Run across Aguimatang v. California State Lottery, 234 Cal. App. 3d 769 (1991) (documents were admissible because the "data" was entered at or near the time of the event, even though the records were not "printed" until much later). This timeliness requirement is once more tied to the idea that the tape be trustworthy. Only as memories fade with time, a certificate prepared long afterwards the act it is purporting to record is inherently untrustworthy.See east.g.,Prato-Morrison five. Doe, 103 Cal. App. 4th, 229 (2002).
The requirement that a witness adjure to both the record's identity and mode of preparation can cause unanticipated challenges for lawyers or witnesses unfamiliar with the details of Section 1271. The witness must be able to testify to the document's "identity and the fashion of its grooming[.]" As well often, witnesses will provide unchallenged and conclusory testimony that the document was made and kept "in the regular course of business." An attorney anticipating his or her opposition to the admissibility of the writing must not wait until trial to challenge it. A thorough cantankerous-examination to test the custodian's actual knowledge (or lack thereof) of the document's mode of preparation can lay an effective foundation for the document's exclusion.
Rule 4: Refreshed Recollection
"What documents did you review to prepare for your deposition?" It is among the most usually asked questions at the outset of depositions. And yet, whether the answer is permissible or privileged turns on a thorough agreement of the attorney piece of work-product doctrine and the evidentiary rules near documents used to refresh a witness' retentivity.
Kerns Construction Co. five. Superior Court, 266 Cal. App. second 405 (1968) examined the interplay between Evidence Code sections 771 (refreshed memory) and the attorney work-production doctrine. California Evidence Code section 771, subdivision (a) provides that, "if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to whatever matter nigh which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness apropos such matter shall exist stricken."
The plaintiff inKernsallegedly suffered an injury from a gas explosion. Kerns Construction Company (Kerns) was sued along with other co-defendants, and Kerns deposed a witness who worked for the gas visitor when the explosion occurred.Id. at 408. The witness testified to having prepared investigation and accident reports.Id. The witness further best-selling that he had "no memory ... contained of the reports."Id. However, when the deposing attorney requested the reports' production, the gas company refused on the footing it would violate the attorney-client privilege and piece of work-product doctrine.Id. at 408-09.
TheKernsCourt agreed the reports were protectable under the attorney-client privilege and work-product doctrine. But when the witness relied on them to provide degradation testimony, it presented a "conflict betwixt a liberal estimation required nether our own rules of discovery and the liberal structure in favor of the do of the chaser-client privilege."Id. at 412. The Court decided that whatsoever privileges were waived once the witness relied on them to provide testimony:
The witness had his reports, which he had previously prepared, in his possession at the time he testified and, additionally, made reference to them in order to respond questions propounded to him on the cross-examination. Having no independent memory from which he could answer the questions; having had the papers and documents produced by Gas Co.'due south attorney for the benefit and use of the witness; having used them to give the testimony he did give,information technology would be unconscionable to forbid the adverse party from seeing and obtaining copies of them. We conclude there was a waiver of any privilege which may have existed.
Id.at 410 (italics added).
With respect to the piece of work-product privilege, the Courtroom explained "the privilege rested with the attorney and was waived past the chaser when he produced the reports to the witness upon which to premise his testimony. The attorney cannot reveal his work production, allow a witness to testify therefrom and then claim work product privilege to prevent the opposing party from viewing the document from which he testified."Id. at 411.
Rule v: Past Recollection Recorded
California Show Lawmaking department 1237 provides that "[e]vidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if [1] the statement would have been admissible if made by him while testifying, [2] the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and [3] the statement is contained in a writing which:
(1) Was made at a time when the fact recorded in the writing really occurred or was fresh in the witness' memory;
(2) Was made (i) by the witness himself or under his direction or (ii) past some other person for the purpose of recording the witness' statement at the time it was fabricated;
(3) Is offered after the witness testifies that the statement he fabricated was a true statement of such fact; and
(4) Is offered after the writing is authenticated equally an accurate record of the argument.
(b) The writing may be read into evidence, but the writing itself may non be received in testify unless offered by an agin party.
In practise, lawyers (and witnesses) often conflate the concepts of a witness' refreshed recollection with a witness' past recollection recorded. If a certificate merely refreshed the witness' memory, the content of the writing shouldnotbe read aloud (permit alone admitted). Instead, the witness should merely assert that his or her memory is refreshed and then show to what he or she remembers. If the retentiveness is not refreshed but the certificate constitutes a past recollection recorded, the chaser should (1) ask the requisite questions to meet the requirements of Section 1237, and (two) accept the witness read the writing into the record.
Rule vi: The Attorney-Client Privilege
The attorney-client privilege is absolute. Unlike other exclusions that can sometimes be outweighed past countervailing policies, evidence protected past the attorney-customer privilege may not be ordered regardless of relevance, necessity, or circumstances.Costco Wholesale Corp. five. Superior Court, 47 Cal. 4th 725, 732 (2009). And while the chaser-client privilege is sacrosanct, in that location can be a tendency for lawyers defending depositions to expand its application beyond its permissible telescopic. Lawyers may instruct clients to not answer questions most what steps were taken towait for a lawyer. Any questions about the where, when, or length of attorney-client meetings are often—and improperly—accounted off-limits past overzealous counsel.
When taking a deposition, it is essential to know what is and is not protected by the attorney-client privilege. California Evidence Code section 954 provides that "the customer ... has a privilege to turn down to disclose, and to preclude some other from disclosing, a confidential advice between a client and lawyer...."Come across also The states 5. Martin, 278 F. 3d 988, 999 - m (9th Cir. 2002).
With respect to timing, the privilege attaches upon the initial customer consultation and continues so long as the "holder" (i.e., the client) is in existence.David Welch Co. v. Erskine & Tully, 203 Cal. App. 3d 884, 891 (1988). Accordingly, and likewise because such conduct and communications do not fit inside Section 954, questions about what a party did to look for his or her lawyer are absolutely off-white game in a deposition.
Another commanded are of inquiry are questions that enquire for independent facts related to a privileged advice. While the substance of "confidential communications" are protected, "[t]he privilege does non protect 'independent facts related to a advice; that a advice took place, and the time, date and participants in the communication.'"two,022 Ranch LLC v. Superior Courtroom, 113 Cal. App. 4th 1377, 1388 (2003),citing Land Subcontract Fire & Cas. Co. v. Superior Courtroom, 54 Cal. App. fourth 625, 640 (1997).
Dominion 7: The Attorney Piece of work Production Doctrine
"What documents did y'all review to prepare for your deposition?" This question is asked at well-nigh every deposition, and it is—in many instances—objectionable. California Civil Procedure Code section 2018.010 codifies the attorney "work product" doctrine and specifies the conditions under which disclosure of an attorney'due south piece of work production may be compelled.McKesson HBOC, Inc. v. Superior Court, 115 Cal. App. 4th 1229, 1238 - 1239 (2004). The doctrine is designed to preserve a lawyer's right to prepare his or her case for trial without his or her adversary gaining access to the work. And then if a witness' chaser handpicks the documents to review before a deposition, does identifying such documents implicate the attorney work production doctrine?
But what if reviewing the documents refreshed the witness' memory. Every bit discussed earlier, Section 771 provides that writings that refresh a witness' memory must be produced at the request of the adverse party. A prior article closely examined the interplay betwixt the attorney work product doctrine and Section 771. Bottom line: To avoid objections (or, if defending, to avoid waiving work product protections), the question should be: "Did you review any documents that refreshed your memory prior to today's degradation?"
Dominion 8: Hearsay
Hearsay is an exclusionary rule with so many exceptions that merely memorizing the rules and their exceptions (and the elements of each exception) is—while necessary—not sufficient to apply the rule effectively during the quick pace of depositions or trial.
Because hearsay objections are reserved for trial, practitioners can make the mistake of failing to thoughtfully consider hearsay during depositions. And yet depositions are often the identify where parties tin can lay the proper groundwork to establish the applicability (or non-applicability) of an exception to the hearsay rule. Such testimony can be vitally of import both during trial as well as when the court considers diverse hearsay challenges inin limine motions. Across memory, litigators must have a organisation to quickly and accurately identifyobjectionablehearsay. Consider, for example, the post-obit:
Q Did you talk to anybody on Friday?
A Yes. I spoke with John on the phone.
Q What did John say?
A He said, "I'thou sick."
Before considering whether the to a higher place testimony might or might not be considered hearsay, knowing the rationale to exclude hearsay is helpful. We know that the "[t]he very nature of a trial is [the] search for truth."Zip v. Whiteside, 374 U.S. 157, 158 (1986). To get to the truth, lawyers have only one weapon: questions. "Cross-test is the greatest legal engine e'er invented for the discovery of truth."Lilly v. Virginia, 527 U.S. 116, 123 (1999). With these issues in heed, allow's consider the above example, not through a formal hearsay analysis, but rather through a lens emphasizing the importance of cross-test.
Suppose the case turned on whether John did or did not feel sick. How could the jury ascertain the truth? The jury would undoubtedly wish to hear from John. Had he called a medico? Did he take whatsoever medication? To decide whether John was indeed ill, cross-examination would be essential.
But suppose the case did not turn on whether John was sick, but information technology instead turned on whether the testifying witnesswas told John was sick. Suppose the testifying witness was a caretaker who was required (but failed) to drive to John's business firm the moment he or she learned that John felt sick. Rather than John's sickness (at the time of the call) beingness an effect, the result is whether the caretaker wastold that John felt ill. In this case, in that location would be no need to cross-examine John.
Practitioners are oft told that to recognize hearsay, they must clarify whether the out of court statement isoffered for the truth. If the value of the evidence turns on the credibility of someone who cannot be cross-examined, it is invariably a statement that is being offered for the truth of the matter asserted. In one case hearsay is recognized, the rule is simple: Hearsay is non admissible. Fed. R. Evid. 802; Cal. Evid. Code § 1200(b). And if that is the instance, information technology is important to quickly identify potential hearsay exceptions .
Rule 9: Character Evidence
Character evidence is like to hearsay in that there is a general rule of inadmissibility followed by then many exceptions that they oft gobble up the general rule. Simply what tin can brand grapheme evidence trickier is that even when information technology is admissible, in that location are specific rules near thetypeof prove that is allowed.
"Although the term 'grapheme' is non defined in the Evidence Code, information technology is generally described as 'the aggregate of a person'southward traits' and ways 'disposition' (i.e., the tendency to human activity in a certain manner nether given circumstances)."People v. Shoemaker, 135 Cal. App. 3d 442, 446-47 north.2 (1982),citingModel Code of Bear witness, rule 304, com. (1942).
Before examining the occasions when character evidenceis admissible, nosotros must kickoff distinguish character evidence from "habit or custom" evidence. While character bear witness is testify of a person'southwardpropensity or trendto act in a sure way, "[c]ustom or addiction involves a consistent, semi-automatic response to a repeated situation."Bowen five. Ryan, 163 Cal. App. 4th 916, 926 (2008). Dissimilar graphic symbol evidence, "[a]ny otherwise admissible show of habit or custom is admissible to prove bear on a specified occasion in conformity with the habit or custom." Cal. Evid. Code § 1105. Whether something is character evidence or habit evidence is a preliminary fact the trial judge decides. And the line between graphic symbol and habit evidence can be hard to discern.
Once dealing with character show, one of the exceptions to the general rule of inadmissibility is when a person'southward character or a trait of his character is at upshot. Cal. Evid. Code § 1100. A person's character (or character trait) is typically an "ultimate fact in dispute" whenever that person's character is an issue nether the substantive constabulary or the pleadings in the instance.See Pugh v. See's Candies, Inc., 203 Cal. App. 3d 743, 757 (1988).Meet's Candiesinvolved an action for wrongful belch brought by a managerial employee.Id. at 748. During trial, there was testimony from See'due south employees, sometime employees, and business associates that the plaintiff was disrespectful to his superiors and subordinates, disloyal to the company, and uncooperative with other authoritative staff.Id. at 756. The Court of Appeal affirmed the admission of such character evidence because the plaintiff'due south "character or personality in the workplace was in issue under the substantive law and in the pleadings of the case."Id.at 757.
Once there is a determination that character or a character trait is relevant, Section 1100 provides that such character evidence can be in the "grade of an stance, evidence of reputation, and prove of specific instances of such person'due south comport."
Even if grapheme bear witness is not directly at issue in the case, subdivision (b) of Department 1101 provides a laundry list of instances in which character evidence can be admitted to testify somethingother than a person's propensity or disposition. Subdivision (b) provides as follows:
Nix in this department prohibits the admission of testify that a person committed alaw-breaking, civil incorrect, or other act when relevant to testify some fact (such asmotive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident....
Cal. Evid. Code § 1101(b) (italics added).
The final category in which character evidence can be admissible is when it goes to the witness' credibility. Show Lawmaking sections 780, subdivision (e), provides that, with respect to character show that tin can exist used to assail or support a witness' credibility, information technology is limited to the witness' "character for honesty or veracity or their opposites." Section 786 clarifies this limitation even further, providing that, "[east]vidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the brownie of a witness."
Character evidence tin can be difficult. For a more in-depth analysis, check out The Admissibility of Character Evidence: Demystifying the Rules and their Application .
Rule 10: Settlement Discussions
Attorneys often assume that any communication that encompasses a settlement offer, demand, or negotiation is automatically off-limits and privileged for all purposes. Only a shut reading of Section 1152 suggests the rule may be more than limited:
Evidence that a person has, in compromise or from humanitarian motives,furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, equally well as any conduct or statements made in negotiation thereof, isinadmissible to testify his or her liability for the loss or harm or whatever part of information technology.
Cal. Evid. Code § 1152(a).
Meanwhile, California Lawmaking of Ceremonious Procedure section 2017.010 provides the allowable scope of discovery:
Unless otherwise express past order of the courtroom in accordance with this title, any party may obtain discovery regarding any thing,non privileged, that is relevant to the field of study thing involved in the awaiting action or to the conclusion of any move fabricated in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of open-door prove.
The patently language of Sections 1152 makes no mention of settlement discussions existence "privileged." "The statutory protection afforded to offers of settlement does non elevate them to the status of privileged fabric."Covell v. Superior Court, 159 Cal. App. 3d 39, 42 (1984). The research must therefore turn on "whether settlement negotiations is 'relevant to the subject matter involved in the pending activity,' or 'appears reasonably calculated to lead to the discovery of admissible evidence.'"Id.A more in-depth discussion on this consequence can exist constitute here .
Determination
Depositions are the building blocks for successful litigation. But those blocks crumble if the testimony is objectionable. Mastering these ten rules can help ensure the admissibility of all facts gathered and admissions collected at your next degradation.
David Sugden is a shareholder at Call & Jensen in Newport Beach, California.
Join our customs!
Register for our complimentary resource of blog manufactures, course and event updates to receive a xx% off coupon.
Subscribe Now
Source: https://www.evidenceattrial.com/blog/depositionrules