On February 22, 2012 Assemblyman Mike Gatto  introduced Assembly Bill 1875 which would add §2025.290 to the California Code of Civil Procedure. If the bill is passed it would limit the time to take a deposition. The proposed new section would read:  

Unless otherwise stipulated to or ordered by the court, a deposition is limited to one day of seven hours. The court shall allow additional time if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.                  

 

This is the exact language used by Rule 30 of the Federal Rules of Civil Procedure  titled “Depositions by Oral Examination”. 

Before you react, realize that seven hours of  deposition testimony in one day is a lot of actual testimony time.  It would take the following schedule to complete a seven hour deposition in one day.

Should this Bill be passed?  

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Everyone is looking for opportunities to save costs these days in litigation. Many attorneys are choosing to take depositions telephonically so as to incur travel costs and to save travel time. Here are some ideas on how to make the telephonic deposition go smoothly.

2. If because of scheduling conflicts, or whatever reason, the court reporter is not with the witness have a notary public swear in the witness onsite. Sometimes attorneys ask a court reporter to swear a witness in over the phone. This is not considered to be legal or proper. The court reporter has no real idea who is sitting at the other end of the line.

3. Advice to reporters (especially if there are multiple people on the line): Rather than writing down each person’s information, including address and phone number(s), just get the attorney’s full name and website. IT is much easier to look up the attorneys and create your appearance page(s) from a website than from scribbling down information over a phone.

4. Court reporters, speak up if you are not understanding something, can’t hear, or don’t know who is speaking. Before the depositions starts, make a statement, for example, "Please identify yourself before your speak. There are multiple voices, and it is difficult to differentiate between them." If someone starts speaking, and you are not sure who it is, you may interrupt with, "Excuse me. Who is speaking?" After a while, people will get the hang of it.

5. If possible, get a service list before the deposition begins and start inputting your appearance page or get a copy and check off names. You will need to know who the different participants are.

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Evidence Code §722(b) (pdf) makes admissible income earned by forensic experts on the specific case being tried. The expert’s annual income, or percentage of income, earned over the years doing forensic work is also relevant and admissible to question the credibility of the particular expert by showing bias. (Ev. C. §780(f) (pdf); CACI 5003) In the recurring instance where a retained expert will not produce documents in deposition that evidence past and present income earned in testifying, counsel should refer to Stony Brook I Homeowner’s Assoc. v. Sup. Ct. (2000) 84 Cal.App. 4th 691 (pdf). While Stony Brook does not permit unfettered access to an expert’s potential bias, it does support discovery into numerical estimates of defense and plaintiff-related work (e.g., including exams, reports and deposition and court testimony) and a numerical estimate of the amount of income generated from that defense and plaintiff-related litigation. In Stony Brook, the Appellate Court commanded the doctor to produce such records for the previous three years even if it took a third party to assist in compiling the information. Id. at pp. 698-700.

The final tactical decision in preparing to impeach a witness is when to do it. The witness will be on the defensive and likely after you have successfully attacked credibility, so consider eliciting facts supporting your case beforehand. However, because impeachment is such a powerful tool, you may want to consider it early on in cross-examination to place the witness into your control.

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Impeachment by character evidence is the use of a personal trait to impair credibility. There are essentially four methods to impeach using character evidence: defects in perception, defects in recollection, felony convictions and past misconduct.

Defects in perception are based upon personal impressions of an occurrence. The witness should be examined on their opportunity and capacity to perceive. (See Ev. C. §780(c),(d) (pdf)) Because perception varies amongst every one of us, it is important to establish that with the witness. The reasons for the variance in perception should be established. For example, the variance comes from physical location during the relevant event, the quick and unexpected nature of the event, vision acuity, attentiveness and effects of medication. Other factors affecting perception can be influences imparted on the witness by others such as an attorney, investigator or a party. Impressions may vary from the witness’ desire for a particular outcome. Over time, the desire turns into belief and the belief becomes misguided perception. Unconscious partisanship affects perceptions as does a desire to please the court, a party or the police. Exposing these tendencies may be very difficult, but you should at least accept that they may be present. The cross-examiner must search for and expose these tendencies while balancing the risk of being perceived as a bully.

B. DEFECTS IN RECOLLECTION

The witness should also be examined on their capacity to recollect. (See Ev. C. § 780(c) (pdf)  Defects in recollection do not go to perception of the original events, but on events that have impacted the ability to recollect. Effective cross-examination will show that the witness cannot recall sufficient details of the event, thus harming their credibility. Questioning along these lines is most often seen as exposing the passage of time since the occurrence. Also, points of importance include the witness’ failure to make contemporaneous notes, there was no particular reason to commit the occurrence to memory, and there may be confusion of the occurrence with another similar incident.

C. FELONY CONVICTIONS

Felony convictions are admissible to attack credibility pursuant to Ev. Code 788 (pdf). Generally, the length of the sentence is not admissible. To get as much mileage out of the conviction as possible, have the witness agree that a felony is a crime punishable with death or by imprisonment in the State prison (Penal Code §17(a)) and obtain testimony of the reason for the conviction, date of conviction and the court location. The more time spent on the felony conviction, the better. Be prepared to argue against an Evid Code 352 (pdf) objection as to the probative value versus its prejudicial effect.

D. PAST MISCONDUCT

Evidence of specific instances of a witness’ conduct to prove a trait of character is inadmissible to attack the witness’ credibility. (Ev. C. §787) However, past misconduct is admissible to show the witness has motive, bias or other interest that might induce false testimony. Ev. C. § 780(f) (pdf))

Be sure to review the CACI instruction 107  before your deposition and cross-examination of the witness. You’ll be using that instruction during your closing, so be sure you are tailoring your cross to it.

NEXT: Impeaching the Expert Witness

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Perhaps the most effective and most frequently used form of impairing credibility is proof of a statement or conduct by the witness that is inconsistent with the trial testimony. (Ev. C. § 780(h) (pdf)) The inconsistency need not be a complete contradiction. The test is whether the prior statement is inconsistent in effect with the trial testimony. People v. Spencer (1969) 71 Cal.2d 933 (pdf), 941.

A. PRIOR INCONSISTENT STATEMENTS

The first step in impeachment by prior inconsistent statements is to ensure that the witness has committed to the new statement. Leave no escape. This can be achieved by doubling back and having the witness reiterate the new statement by your use of specific leading questions – do not paraphrase the witness’s new testimony. This precludes the witness from claiming that they misunderstood the question that lead to the new statement or that they simply misspoke. Next, lay foundation for the prior inconsistent statement being the most believable: have the witness confirm that they gave a prior statement, they may have written/signed a statement, they were trying to be accurate, their recollection of events was better back then, they were trying to be truthful, it was a sworn statement, etc. Then you must confront the witness with the prior statement – have them confirm that they gave the prior statement and their signature appears on it. Now is the time to bring it all together. Show the reasons that the witness has changed the testimony (e.g., they were contacted by an attorney, they spoke to a party, they became a party, etc.) Do not ask the witness for an explanation for the change. You have reached your goal.

B. INCONSISTENT CONDUCT

A witness’ conduct may also be shown to impeach. If a witness states that they have never acted in a certain manner and there is evidence that they have, their credibility will be impeached. An example in an auto case is a plaintiff testifying that they habitually wear a seat belt and did so in the subject collision, but subsequent subrosa surveillance shows that the witness was driving without being belted.

NEXT:   Impeaching the Witness with Character Evidence

George Ellard

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Cross-examination goals essentially boil down to 1) developing facts which support your case, 2) harm the defense case and 3) impair credibility. You must carefully analyze the first two goals before you decide to impair the credibility of a witness.

When the witness has harmed your case on direct examination, you should first consider cross-examination to elicit some helpful facts. This would entail a series of simple, short statements that the witness must agree upon. Such cross-examination may address corroboration of a time line, the weather at the time of the occurrence, persons present at the scene, laying foundation for documentary evidence, etc. While you do not want to give the harmful witness any more importance to the case than necessary, you may have to when the witness is the only source for the evidence.

If you determine that you can successfully challenge a harmful witness credibility (impeachment) you must first understand that the impeachment does not necessarily mean that all of the witness’ testimony will be determined to be unreliable. Rather, as stated in California Civil Jury Instruction 107, the jury remains the sole judge of witness believability:

Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened. People often forget things or make mistakes in what they remember. Also, two people may see the same event but remember it differently. You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony. 

However, if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said. On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest.”

The three most often used methods to impair witness credibility include prior inconsistent statements, character evidence and case-specific impeachment.

NEXT: Witness Credibility and Prior Inconsistent Statements

OBJECTIONS TO DEPOSITION QUESTIONS

Objections to the form of questions are waived if not raised at the deposition. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:721 (citing C.C.P. §2025.460 (pdf)(b)). 

Instructing witness not to answer is improper unless objecting on grounds of privilege. CCP §2025.460 (pdf); Stewart v. Colonial Western Agency, Inc.(2001) 87 CA4th 1006 (pdf), 10015.

Speaking objections which counsel explains his rationale for the objection is improper as it is usually used as a tactic to give the deponent a heads up that the area of questioning is dangerous and how he should answer.  This is a form of "coaching" the witness and a protective order may need to be sought.  See CEB, California Civil Discovery Practice (4th ed. 2010) §6:100. 

     PROPER OBJECTIONS:

Calls for Contention:  Rifkind v. Superior Court (1994) 22 CA 4th 1255.

Irrelevant to the Subject matter: C.C.P. §2017.010 (pdf).

Calls for Legal Reasoning:   Sav-On Drugs v. Sup. Ct.(1975) 15 C3d 1 (pdf).

Calls for Narration or Lengthy Explanation

Calls for Speculation or Conjecture

Compound

Harassing and oppressive

Incomplete Hypothetical

Leading (if not an adverse witness)

Unintelligible

Vague and Ambiguous:  Deyo v. Kilbourne(1978) 84 CA 3d 771(pdf).

IMPROPER OBJECTIONS

Answer is known to propounding party:  Alpine Mut. Water Co. v. Sup. Ct.(1968) 259 CA2d 45 (pdf),54.

Argumentative:  C.C.P. §2017.010 (pdf).

Asked and answered:  Coy v. Sup. Ct. (1962) 58 C2d 210 (pdf),218.

Assumes facts not in evidence:  West Pico Furniture v. Sup. Ct. (1961) 56 C2d 407 (pdf),421.

Calls for conclusion:  C.C.P. §2017.010.

Insufficient foundation:  C.C.P. §2017.010.

Hearsay:  C.C.P. §2017.010.

Irrelevant to the issues:  C.C.P. §2017.010.

Calls for a narrative:  C.C.P. §2017.010.

Calls for an opinion:   C.C.P. §2017.010.

Oppressive:  Coy v. Sup. Ct. (1962) 58 C2d 210,218.

Lists of the objections can be found in Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial(TRG 2010) ¶8:721 et seq. and CEB, California Civil Discovery Practice (4th ed. 2010) §6.98.

OBJECTIONS ON THE CLAIM OF PRIVILEGE

You must state the privilege or it will be deemed waived.  See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:725 citing CCP§2025.460 (pdf)(a) and  International Insurance Co. v. Montrose Chemical Corp. of California(1991) 231 CA3d 1367 (pdf),1373.

ABSOLUTE PRIVILEGES

Attorney-Client:   Evid.Code §§950-962.

Confidential Marital Communications:   Evid.Code §§980- 987.

Clergy-Penitent:  Evid.Code §§1030-1034.

Defendant in Criminal Case:  Evid.Code §930.

Domestic Violence Counselor-Victim:  Evid.Code §§1037-1037.8.

Human Trafficking Caseworker-Victim:  Evid.Code §§1038-1038.2.

Official Information and Identity of Informer:  Evid.Code §§1040-1047.

Physician-Patient:  Evid.Code §§990-1007.

Political Vote:  Evid.Code §§1050.

Psychotherapist-Patient:  Evid.Code §§1010-1027.

Self Incrimination:  Evid.Code §§940.

Sexual Assault Counselor-Victim:  Evid.Code §§1035-1036.2.

Testify Against Spouse:  Evid.Code §§970-973.

QUALIFIED PROTECTIONS 

Disclosure may be compelled if the Court finds that the interests of justice in obtaining the information outweighs the protection.  See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:110.5 citing Gonzalez v. Superior Court (1995) 33 CA4th 1539, 1548.

Invasion of Privacy:  California Constitution Article 1 (pdf), Section 1.

Taxpayers Privilege  Rev. & Tax C. §19542 (pdf)See Schnabel v. Superior Court (1993) 5 C4th 704 and Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:112 - 124.6.

Trade Secret:  C.C.P. §2019.210 (pdf) and Evid.Code 1160-1063  Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:129.

Work Product:  C.C.P. §2018.030 (pdf).

Have you ever been in a middle of a deposition and found yourself saying "OBJECTION!! There’s this case that says . . . " but you can’t quite remember what the name was, where you saw it or even where you might find it?  And, yet, it is right on point. Well, the following is a list of cases and statutes for depositions that you should keep in the back of your legal pad as they may come in handy.

My expert will not be ready to testify until your expert testifies. Besides you are the plaintiff and you have to go first!  

Heard this before?  I have and there are some significant problems with defense counsel’s position. 

Second, C.C.P. §2034.260.pdf(c)(4) requires that the attorney disclosing the expert state under penalty of perjury “that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial.”  In other words, counsel is swearing under penalty of perjury that the expert is ready to testify with his trial testimony.   

Third, there isn’t enough time to play games.  Pursuant to C.C.P. §2034.230 (pdf) (expert disclosure 50 days before trial), C.C.P. §2024.030 (pdf) (expert discovery closes 15 days before trial) and C.C.P. §2025.270 (pdf) (10 day deposition notice) you only have a 25 day window period in which to take all expert depositions and that includes Saturdays and Sundays.  If you exclude the weekends, you have less then 15 days.  This is assuming that you start noticing expert depositions on Day 50. 

And, finally, even if you notice the expert depositions on the last days when experts can be deposed you may have wasted your time if you haven’t checked whether or not the expert is available.  You could argue that they have been noticed for deposition and they must appear.  However, that makes for one hostile deposition.  More likely you are going to agree to reschedule past the close of expert discovery which will then interfere with your preparation for trial. 

Disclosing experts 50 days before trial and having only 25 days in which to take the depositions means you are going to have to work with counsel to get things done.  There are a few things that you can do prior to the expert disclosure that will make the last 50 days before trial a tad less stressful:  

1. If the case is expert driven or more than five experts are going to be taken, consider moving the expert disclosure from 50 days before trial to 75, 90 or even 150 days before trial.
2. Agree with opposing counsel to provide dates for each expert’s availability for deposition at the time of the expert disclosure.  This will give everyone the opportunity to set the expert deposition schedule as soon as possible, thus leaving time for trial preparation. 
3. Agree to shorten time on service of the Notice of Deposition so you can use the dates between Day 50 and Day 40 and, if necessary agree to schedule
4. Agree to allow a second deposition of your expert if your expert provides an updated report after hearing the opposing side’s expert’s testimony.
5. Agree to a discovery referee to schedule the depositions of the experts. 

If you are unable to work with opposing counsel in the scheduling of the expert’s deposition, get the court involved immediately as time is limited.   Do not be surprised if you are confronted with an angry judge as you should have worked this out.  So don’t be surprised with the court’s creative solutions such as:

Experts shall be deposed simultaneously;

Experts shall appear at ordered times by the court and will be disqualified if they don’t appear;

Experts' depositions shall be scheduled according to experts availability and that includes nights and weekends; or

Experts shall be taken on nights and weekends during trial.

Over the years friends and colleagues have called me up asking for a quick answer on a discovery question that they have. The phone call usually went like this “I want to get plaintiff’s phone records, how do I do that?” or “I forgot to disclose experts, am I too late?” or “They want to send my client to a psychiatrist. Can I object?” I know the answers to these questions which are “Yes,” “No” and “Yes.” However, to get the statutory authority, I rely on the charts I have prepared and published over the last 18 years. The California Civil Discovery--Charts for the Everyday Litigator " (pdf)  was recently updated and now available to you for download. 

Hope it helps!!

Attorneys easily spew out the objection “the information you are seeking is not relevant to the subject matter of the litigation” as easily as they say “Good morning.”  If you are the propounding party your reaction is probably to be to yell out “It is too relevant!” because it doesn’t even appear that the responding party actually thought it through before spewing out the objection.   But what exactly is relevancy?  It seems to be a nebulous term that invokes images of catching clouds with your hands or like Supreme Court Justice Potter Stewart’s definition of pornography “I know it when I see it”?

Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.             

However, this definition isn’t exactly helpful either.  Unfortunately, there is no bright line test to determine what is relevant.  Instead you must rely on numerous cases that bounce you from flipper to flipper like a pinball to get a sense as to what relevancy means for Discovery. 

The overriding philosophy of the Discovery Act is that discovery should be liberally construed in order to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf) at 391.  Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:71 citing Colonial Life & Accident Insurance Co. v. Superior Court (1982) 31 C3d 785,790 

“Relevant to the subject matter” is broader than relevancy to the issues which determines admissibility of evidence at trial. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:66 citing Bridgestone-Firestone Inc. v. Sup. Ct. (1992) 7 CA4th 1384 (pdf),1392  In fact, admissibility at trial is not the test.  See Davies v. Superior Court (1984) 36 C3d 291 (pdf),301.  You may discover heresay (Smith v. Superior Court (1961) 189 CA2d 6 (pdf),11 or inadmissible opinions and conclusions (Greyhound Corp. v. Superior Court, Supra at 391).   You may also discover irrelevant matters so long as their revelation may lead to the discovery of admissible evidence. Dodge, Warren & Peters Insurance Services, Inc. v. Riley (2003) 105 CA4th 1414 (pdf).  Remember that you are not limited to the pleadings as the pleadings can always be amended when you discover new facts or causes of action. Anti-Defamation League of B’nai B’rith v. Superior Court (1998) 67 CA4th 1072 (pdf).  The phrase “subject matter involved in the pending action has been defined to include not only the acts that constitute the cause of action, but also circumstances and physical facts which the action arises, including the property, contract, or other things in dispute.   See CEB California Civil Discovery Practice (2010) 4^th Ed 1:37 citing Darbee v. Superior Court (1962) 208 CA 2d 680 (pdf),688.  However, Weil and Brown said it best: “the scope of permissible discovery is one of reason, logic and common sense.”See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:67 

Hint: If you can articulate why you think this information might lead to the discovery of admissible evidence then you should be able to discover it. 

When I look back on this case,  I realize that the moment defense counsel used the word "Bitch" it became the turning point of the case. These two well-respected attorneys’ hostility toward one another drove the case. There were no more professional courtesies and the parties took extreme positions in their settlement negotiations. The case eventually went through a lengthy bench trial and appeal process that lasted years before plaintiff recovered an eight-figure judgement.

The moral of the story here is "you gotta know when to hold’em and know when to fold’em."  In other words, is your discovery battle worth it in the long run?  In this case, a simple, sincere apology could have put the case back on track, possibly leading to settlement and I may never have been appointed to wear the black and white striped shirt.  

A few months back I received an e-mail from a court reporter regarding a very unpleasant incident that occurred in a deposition. It went like this:

So...during questioning the attorneys were apparently getting to a very sensitive area of inquiry -- and [Attorney #1] had already argued with all of the other attorneys -- so, he stared me straight in the eye and said, "God damn it, when you're asked to read a question back, you don't just read a question, you read the answer also, do you hear me? Now I've got to object and say it's asked and answered when if you would just do your fucking job I wouldn't have to do so. When it happens again, you better read it the right way."

The court reporter advised me that she admonished the attorney for speaking her that way and left the room. She eventually went back in and finished the deposition.  

Besides the breach of Section 9 of the California State Bar Attorney Guidelines of Civility and Professionalism (pdf),  this was just plain stupid on the part of the attorney. His final outburst had come after he had constantly interrupted the witness, interjected himself while other attorneys were asking their questions and argued at the top of his lungs with numerous counsel. The transcript was a disaster. It would have been utterly useless in any motion for summary judgment and probably at trial. If it was used at trial, the words by Attorney #1 would come back to haunt him as you can bet opposing counsel made sure that  the Judge assigned to the case would know what happened.  Also, you know that opposing counsel would make every attempt to have that portion of the deposition read in front of the jury.

The moral of the story is that court reporters are the caretakers of the deposition. Their job is to accurately record all statements made in the deposition for later review by attorneys, judges and appeals courts. It does nobody any good if the court reporter can’t get down an accurate rendition of the deposition. So, at the beginning of the deposition, advise the court reporter and all parties in the room that the court reporter is the “Goddess of the Transcript” and she is to immediately tell you all when she can no longer get an accurate rendition of the deposition. If the yelling, hostility and abuse continues, then recess the deposition and go to court and get a protective order and/or request a referee be appointed to sit on the continued deposition. See C.C.P. §§2025.420 and 639(a)(5). Do it sooner than later because your goal is an accurate transcript.