Deposition Presentation for Will County Bar Association Civil - - PDF document

Deposition Presentation for Will County Bar Association Civil Litigation Committee Seminar for January 19, 2012.

Roman R. Okrei 200 W. 11th Street Lockport, IL 60441 (815) 834-9410

Caveat: The comments and statements contained herein, including the cynicism, are those of the author only. No discredit should be cast upon the Civil Litigation Committee of the Will County Bar Association by my comments. 1. Purposes of a discovery deposition: There are four reasons for taking discovery depositions: (1) find out what happened; (2) size up the deponent; (3) see if there is an impeachment; and (4) admissions by a party, as these are admissible at trial. Also see Supreme Court Rule 212 for Purposes for Which a Discovery Deposition May Be Used (impeachment, admissions by a party, admissible if an exception to hearsay and as an affidavit in pleadings). 2. Types of depositions in Illinois State Court: Unlike Federal Court, Illinois has both discovery and evidence depositions. In an evidence deposition the examination shall be the same as though the deponent were testifying at the trial. Rule 206(c)(3). Therefore, you make all of your objections at the evidence deposition. If you are calling the witness you cannot lead the witness (other than an adverse or hostile witness). This presentation will not be focusing on Evidence Depositions, but suffice it to say that if it is an Evidence Deposition the notice must so state, all objections must be made at the time of the deposition that could be cured at that time, and you should assume that you are in front of the jury or judge while the questions and answers are taking place. 3. Scope and manner of deposition: Rule 206 (c)(1) provides the scope and manner of taking the deposition. It is simple. You ask questions and do not give speeches or your opinions about matters. Nothing more is to be done. You ask questions as if cross-examining the witness. No speeches. Examples: “Sir, I represent the badly injured person who was wrongfully injured by this no good son of a bitch whom we are suing, and I’m going to ask you questions at this deposition about what happened, okay?” That is improper. “Miss, I represent the poor doctor who is sued for malpractice by this person who claims, allegedly, that the good doctor was a malpracticing physician. I couldn’t talk to you before

1

because of the rules, which I always follow, so let me ask you some questions, okay?” Improper. Simply ask your questions of the deponent and do not give a speech. Remember, Rule 206(c) governs this and provides: (1) The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules. The deponent may be questioned by any party as if under cross- examination. For an attorney to give his or her version of what occurred or what the case is about exceeds the scope of Rule 206(c) and is improper. As an aside, if you as the attorney are questioned by the opposing counsel during a deposition about something that occurred, that is not the place for such questioning while on the

• record. I generally ask to go off the record for such exchanges, as dialog between the attorneys
• n the record is not the purpose of a deposition. That exceeds the scope of Rule 206 (c).

4. How far can questions go? Some questions seem to be in left field. If the questions are relevant to the issues in the case, or may lead to relevant information then you have free rein. Monier v. Chamberlain, 35 Ill 2d 351 (1966). As an example, in an injury case an attorney may ask if a plaintiff made an application for life insurance. This could lead to relevant information because a physical may have been required by the life insurance company wherein the plaintiff may have said that he or she was healthy and had no physical problems. Also remember that just because you can ask the question does not mean that you have to. Many of these matters are trivial that no one cares about, but attorneys often feel compelled to ask them anyway. 5. How do you notice up a deposition? Rule 206(a) states that you simply send notice for a party’s deposition to everyone of record at a reasonable time in advance of the deposition (or an officer, director or employee of a party). If it is a non-party witness, you must serve a subpoena (if not by agreement) with seven day’s notice by certified or registered mail, including the payment of the fee plus mileage. Rule 204(a)(2). Personal service of a subpoena is also always good. In addition to the Clerk of the Court issuing subpoenas, attorneys can now issue subpoenas. Rule 204(a). 6. Fees for the deposition: Believe it or not, but the fees are still $20.00 and .20 cents per mile (except for doctors). 735 ILCS 35/4.3. Physicians get paid a reasonable fee, and unless it is a paid expert physician, the party asking for the deposition pays the fee. Rule 204(c). Chiropractors count as physicians for the purpose of the fee rule. Montes v. Mai, 398 Ill. App. 3d 424 (First Dist. 2010). If it is your paid expert giving opinion testimony, you pay the freight when the other side wants your expert’s dep.

2

7. Where can the dep be taken? The deposition, unless otherwise agreed to, should be taken in the county where the deponent resides. If it is a party’s deposition, the deposition can be taken in the county where the suit is filed. So, for example, if you filed a case in St. Clair County, but your plaintiff lives in Will County, you can be compelled to bring your client to St. Clair County for his or her deposition. Rule 203. If your expert is from out of state, he or she cannot be compelled to come to Illinois for their deposition (absent a court order for special circumstances), but as stated in paragraph 6, you pay the expert’s bill for his or her time. 8. Can you subpoena an out-of-state witness with an Illinois subpoena? You can, but it won’t do you much good, as it would not be valid. Illinois does not have jurisdiction to compel the appearance of an out-of-state witness in Illinois for a deposition, or even a deposition in the home state without following the rules in that state. Lee v. Hyster Co. 156 IllApp. 3d 214, 509 N.E. 586, (1st Dist 1987). Hill v. Thomas B. Jeffery Co. 292 Ill 490 (1920). 9. Can you use the discovery deposition at trial if there was no evidence deposition? Sometimes, but don’t count on it. Rule 212 (a)(5) provides, even if it is a party’s deposition, effective January 1, 2011, as follows: (5) upon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is neither not a controlled expert witness nor a party, the deponent’s evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties (emphasis added). This Rule 212 (a)(5) is not a “Gimmee”. It should be rarely used, as the court understands that if every attorney anticipated that each discovery deposition could be used at trial there would be an undue burden placed on the entire civil discovery system. Attorneys would be

• bjecting to leading questions with every question asked, and all objections would have to be

made at the time of the discovery deposition. We have not seen much use of it, and it is doubtful that this is something that will often occur. We still have evidence depositions, hence the courts may be reluctant to start allowing parties to use discovery depositions in their entirety at trial. If you think that a witness may not be around for trial, take an evidence deposition. 10. Objections at discovery depositions: Unfortunately too many attorneys are not familiar with Rule 206(c)(3). Objections at depositions shall be concise, stating the exact legal nature of the objection. That means that you cannot make speaking objections, yet we hear them far too

• ften. For an attorney to interject that he or she does not understand the question, which is

usually coaching the witness, is improper. For the attorney to “object to the form of the question” when you are about to hit a home run is improper if done for the purpose of coaching the witness or your client (unless the form is truly improper). What is an improper “form” of the question? Let’s look.

3

“Did you drive or fly home after you heard the news?” Improper form. “Did you stab or shoot Ethel after you talked to her?” Improper form. “Did you drive home after you heard the news?” Proper. “Did you fly home after you talked to her?” Proper. “Did you stab Ethel after you talked to her?” Proper. “Did you shoot Ethel after you talked to her?” Proper. How about other objections? As a personal matter, “asked and answered” drives me

• crazy. Rule 206(c) states that, “The deponent may be questioned by any party as if under cross

examination”. You can ask a question two or three times under cross examination, but you cannot become abusive. I would love for someone to show me a case on this if you think that I am wrong. I will also thank you for clearing this up for me. 11. Can a witness refuse to answer a question? Of course. If any matter is protected by a privilege the deponent does not have to answer it. Also, if the questions appear to be in bad faith

• r in any manner that unreasonably annoys, embarrasses or oppresses the deponent or a party,

the court can limit the examination and assess reasonable costs and fees against you. Rule 206(e). 12. Length of deposition: Three hours, regardless of the number of parties. Rule 206(d). As a practice pointer, don’t be a jerk. If there are multiple parties to a case, use common sense in trying to limit someone from asking questions beyond the three hour rule. Also remember that it is a round world. Use some professional courtesy. 13. What about changing deposition testimony after the deponent reads it? Rule 207(a) gives some nebulous guidance. The rule provides as follows: “and that corrections based on errors in reporting or transcription which the deponent desires to make will be entered upon the deposition with a statement by the deponent that the reporter erred in reporting or transcribing the answer or answers involved. The deponent may not otherwise change either the form or substance of his or her answers ... . After the deponent has examined the deposition, the officer shall enter upon it any changes the deponent desires to make, with the reasons the deponent gives for making them”. The committee comments to this section read, “This rule has been amended to permit "corrections" only under circumstances where the deponent believes the court reporter has inaccurately reported or transcribed an answer or

• answers. Testimony accurately reported and transcribed at a deposition may not be subsequently

revised by the deponent. No change is made regarding existing law as to the uses of deposition testimony at trial or hearing for impeachment, as an evidentiary or judicial admission, or for any

4

• ther permitted purpose. See Rule 212; Hansen v. Ruby Construction Co., 155 Ill. App. 3d 475,

480-82 (1st Dist. 1987); Caponi v. Larry's 66, 236 Ill. App. 3d 660, 665-67, 671-73 (2d Dist. 1992). It should be clear, this section isn’t clear. What if the deponent insists that he or she said “black” when the transcript shows “white”? What if the deponent insists that the court reporter got it wrong? Maybe that is why many court reporters also have tape recordings of the depositions. Just don’t play games. 14. Is a discovery deposition a public document? Not in my opinion. Discovery depositions do not get filed in court and are not available to the general public. An evidence deposition is different. Once an evidence deposition is filed in court it becomes public. The Rule does not specifically address this, but Rule 208(c) hints at this. The Rule reads that the court reporter, upon payment of a fee, shall provide a copy of the deposition to any party or to the deponent. Why does this come up? Because on occasion attorneys will learn of a witness or party giving a deposition in another case and will want to know what that person said. It is not a public document in my opinion. I would welcome other thoughts on this and would appreciate further feedback. If Rule 208(c) read, “anyone in the world can pay the court reporter for a copy

• f the deposition”, then I would change my mind, but as it stands, I believe that discovery

depositions are not public documents. 15. Practice Pointers: Many of us suffer from “insecurityitis”. We have to show everyone how smart we must be, because we think that the witness, the general public or opposing counsel expect us to be smart. I will go on record to admitting that I am not too smart. Most of my friends know this. So what is the point? Shut up during the deposition unless you really have something to say. The skilled attorneys know if another attorney knows what a person is talking about, who is insecure, and witnesses know it too. Don’t put on airs. As an example, I have had the pleasure of going to verdict in a medical negligence case with the now Honorable Robert Baron about twenty-five years ago. I truly respected his ability. Bob Baron was one of the best medical negligence defense attorneys in the State of Illinois. He would take a dep that might last twenty or thirty minutes. He knew where he was going and how to get there. He never talked just to show us how smart he was. He never tried to be smarter than he was (and he is smart). We can all learn from that. He knew how to listen, and if he didn’t know something he didn’t pretend that he did, which brings us to the next practice pointer. 16. Learn how to listen. Make your notes before the dep, but then put them aside until you finish examining the witness. Listen and follow where the witness wants to go, and not where you want to go. I still see attorneys looking at a legal pad for guidance during a dep. Put the damned pad away until you listen to the deponent’s answers. When the dep is nearly over, before you quit, then look at your notes. That is the time to cover the areas that you missed. Please practice listening. So many attorneys are worried that they have to steer the dep and don’t listen to the deponent. I am grateful that some of them are my opponents. You may be surprised what you can learn from a deponent if you just keep your mouth shut or admit that you don’t know the area that they are testifying to so that you can learn from them. Then again, if you are that smart and know the answers I apologize to you and wish that I had your insight.

5

17. What happens if you tell your client not to answer a question? It is proper to instruct your client not to answer a question if it is an area of privilege. For example, if the opposing counsel asks questions about conversations that the client had with you, that is objectionable under the attorney-client privilege. If the opposing counsel asked your client if they didn’t report income, there would be a right to tell the client to assert a privilege (but remember that in civil cases the assertion of a Fifth Amendment privilege can be brought up in court and an inference drawn from it, whereas that could never happen in a criminal case). If you instruct your client not to answer a question, the other side does not have to tell the court reporter “certify that question”, but you merely have to bring that question and the refusal to answer to the judge in a

• motion. Rule 219(a). Remember that you cannot tell someone not to answer on a lark, or you

could be subject to costs and reasonable attorney’s fees. Rule 219(b). Always try to work out the problem during the deposition. Be professional. 18. Telephone deps are allowed. Rule 206(h) provides for telephone deps. Just put it in the notice that it will be a telephonic dep and you can do it. 19. Tidbit regarding subpoenaed records: Although this doesn’t really relate to this speaking topic, when you subpoena records you are really asking for a deposition without oral questions under Rule 204 (a)(4). That is the Rule which allows the practice. 20. Who cannot be deposed? Your consultants who will not testify on your behalf or someone under a legal disability cannot be deposed unless there is a showing of unusual circumstances for which a court order is necessary. 21. Further suggestions: Since I am writing this and presenting this topic I wanted to add something else that may be of benefit to some. Sometimes it is better to make a person relax so that they will tell you more. Most people don’t open up in these situations. Acting the way an “attorney” acts can have a chilling effect on getting a person to feel comfortable and talk to you. It is all a matter of preference, but when I hear an attorney say “state your name”, instead of “please tell us who you are”, or, “for the record”, when it is obvious that there is a court reporter there, I know that I am getting too old. Whenever I hear, “Did you have occasion to…”, I wonder where the Christmas party or baptism is at. What “occasion”? How about, “Did you do so and so…?” Why do we think that we have to talk the way we think lawyers should talk? Isn’t it easier just to speak with the people as if they were at your kitchen table? Would you ever greet someone for the first time and ask them to “state your name”, or ask them “did you have occasion to see the other car?” Why not say “before” instead of “prior”, as many people do not know what “prior” means. Forgive my getting cynical, but why do so many of us talk that way and expect people to relate to us and share their thoughts? This practice pointer may help some of us. 21. Other practice pointers: Sometimes attorneys turn off a witness with their questions because of their unknowing insensitivity to others or because they are arrogant. I have heard

6

7

attorneys ask witnesses, “Did you go to college?” instead of asking, “How far did you go in school?”. You may embarrass someone without even knowing that you are doing it. If you are deposing a nurse you do not have to ask him or her if they graduated from college with a B.S., but just ask the person about their schooling for their professional degree. Attorneys can turn off a witness without even knowing it. Pay attention to the deponent. Do not talk down to people. Attorneys are not smarter than the general public, yet many believe that they are or should be. Many of us just had the opportunity to go to school where many others may not have had that chance for a variety of reasons. My dad was one of the smartest men I knew and only had two years of high school. Show respect for everyone (unless they deserve to be disrespected). 22. Go to You Tube and search for “Texas deposition” if you want a good laugh. 23. I am willing to run through practice depositions if the civil litigation committee will

• agree. We can do it at a regularly scheduled meeting for the committee for those who have not

had the chance to take depositions. 24. Conclusion: If anyone has any questions or comments please feel free to call. Many of us give out a lot of advice in order to help attorneys with less experience in certain areas. I regularly ask others for help and do not turn people away when they need a tad of input. Don’t feel embarrassed, as I am slower than most, but not afraid to say it. Thanks for listening. Roman R. Okrei