Tips for Making Deposition Testimony Look as Good as it Sounds
by Christy L. Wollin
Recently, an appellate court disregarded crucial deposition testimony that, if considered, would have required reversal of a no-evidence summary judgment. Although the witness testified that the defendant committed the exact act at issue, the court refused to give any weight to it because the witness referred to the defendant simply as “he” and the surrounding testimony the court of appeals concluded that it was insufficient to demonstrate exactly who “he” was.
As an appellate attorney who often assists trial attorneys with summary judgment proceedings, I frequently read and have to cite to deposition testimony in briefing. Below are a few of the most common issues, as well as some simple suggestions on how to avoid them.
1. The Pervasive Problem of Personal Pronouns (and Other Vague References)
As demonstrated above, pronouns can prove problematic when attempting to cite deposition testimony, but the “‘he’ who” issue is not limited to pronouns. Similar problems can arise when multiple parties with similar names are involved in litigation. Witnesses testify using the names that are familiar to them: “John was drunk that night.” The witness, the attorneys, the parties, and everyone present at the deposition may know that “John” is John Sr., because John Jr. always goes by “Johnny,” but the reader does not. Unless these references are given context, crucial testimony could be useless.
This problem is easily solved with a clarifying question immediately following the testimony. Even when the reference is explained elsewhere in the deposition testimony, it is still a good idea to ask a clarifying question. That way, the reference and the explanation are contained in one, easily-citable quote:
A. John was visibly drunk that night.
Q. And by “John,” do you mean John Jr. or Sr.?
2. Working with Exhibits
After a witness identifies a deposition exhibit, avoid referring to it thereafter only by number. Rather, ask the witness to re-identify the exhibit every time he delivers critical testimony. Similarly, instead of allowing the deponent to testify generally about the contents of an exhibit, have the deponent read the relevant portions of the exhibit into the record, and then identify the exhibit by document title and number. These practices reduce the need for the reader to stop and find the exhibit, thereby keeping the reader’s focus exactly where it should be—on your argument.
Also, when preparing deposition excerpts, be sure to include the portion of the testimony where the witness authenticates exhibits, especially when faced with potential evidentiary deadlines, like summary judgment proceedings. That way, if the other side lodges any evidentiary objections, the evidence needed to support admissibility is already in the record.
3. Always Support Opinions and Legal Conclusions with Factual Testimony
The key to admissible opinion or legal conclusion testimony is factual support. A simple statement like “I had a contract with Mrs. Jones” is not evidence by itself, because it is a legal conclusion (requiring an understanding of the legal requirements for formation of contract). To avoid these problems, every time a deponent expresses an opinion or conclusion, immediately ask about the factual basis:
A. I had a contract with Mrs. Jones.
Q. Why do you believe you had a contract?
A. Because we agreed that she would sell me the car for $10,000 in cash.
The same is true for expert testimony. In order to elicit expert testimony sufficient to serve as evidence of a legal concept, like gross negligence, the deposer must ensure that the testimony reflects the applicable standard and factual elements supporting that standard:
Q. The law says that someone is grossly negligent if [EXPLAIN STANDARD]. Is it your expert opinion the XYZ Restaurant was grossly negligent?
A. Yes it is.
Q. Please explain what XYZ did to cause you to form that opinion.
A. XYZ failed to . . .
These suggestions may seem overly simplistic, but they are also often overlooked. It is common for even very skilled attorney to guide a deposition witness toward perfect testimony, only to unwittingly stop just short of the goal. By making these suggested practices a habit, a trial attorney will find that his or her deposition quotations are strong and the testimony transfers smoothly into briefing without an abundance of contextual citations. Your appellate attorney will thank you.
Christy L. Wollin is an attorney at Kelly, Durham & Pittard L.L.P. She can be reached at firstname.lastname@example.org.