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One of the black holes of litigation costs is discovery and, in particular, deposition costs. This article provides some guidance to in-house counsel as to how to better manage your outside counsel in limiting this money-draining wasteland. This boils down to a seemingly simple task ‘ deciding who should or should not be deposed.
Most lawyers look at the written discovery (interrogatory answers provided by the other side identifying who may have information about the facts and their document production) along with information provided to them by their client ‘ and then depose anyone who had any connection to the case whatsoever.
The etiology of this practice has in part to do with the fact that, for years, large firm/large client defense-oriented practitioners had virtually unlimited budgets that allowed them to leave no stone unturned. In turn, this became the fashion for all lawyers ‘ if it was good enough for the “big” law firms to leave no stone unturned, it must be a “best practice.”
Taking lots of depositions may also be a way to give young associates training in examination techniques in a no-harm, no-foul situation where they get to take the “less important” witnesses. But I personally question how this does the trick other than allowing a young lawyer to get over the yips of asking a witness questions. Presumably a good trial practice course can provide this experience, and more. Afterwards, the associate can conduct meaningful depositions.
Why Do It?
In most instances, taking every deposition under the sun results from practicing out of fear. For outside counsel it is the fear of a surprise witness coming out of the blue in an affidavit in connection with a summary judgment motion or worse yet at trial. For in-house counsel it is the fear of countermanding the recommendations of their outside counsel ‘ the litigation expert. And so the spiral goes. Outside counsel profess a fear that also provides them with more legal work ‘ how convenient. And in-house counsel avoids making hard decisions ‘ deferring to outside counsel as the experts.
But as we all know, the practice of defensive medicine has caused medical costs to balloon. The same is true for choosing whom you depose when it is based upon fear.
Not being surprised is a valid concern, but deposing everyone connected with the facts is not the answer. Why? Because doing so results in numerous meaningless depositions being taken and allows one to avoid focusing, early on, on what their case is about and what they need to do to get it prepared properly.
Avoiding Wasteful Practices
Not only does this wasteful practice unnecessarily increase litigation costs, in many instances it is a bad litigation strategy. In short, one does not need to, and should not, depose every possible witness in order to avoid being surprised.
Rather, what is required is a focus on what your case is about, how it may look at trial, how you want it to look at trial, and what you need to do in order to get there. Most lawyers do not engage in this all-important analysis until after discovery is completed. Their refrain? “How can I know what my case is going to look like until discovery is completed and every witness is deposed?” The lazy approach, a lame contention and a very bad practice.
Rule No. 1 in developing a deposition program ‘ you must have a clear conceptualization of what you want your case in chief to look like at trial and you also must anticipate what you believe the other side’s case is going to look like. If you don’t, then you are on a rudderless ship that will flounder aimlessly through discovery. How can you possibly know what to ask if you don’t have a clue to: 1) what you want your case to look like at trial; and 2) what you believe the other side’s case is going to look like?
Only with a clear idea of what each side’s case is going to look like at trial can you develop a meaningful deposition program: to develop your best-case story and anticipate the other side’s best-case story (See “Meaningful Litigation Plans,” by Stewart Weltman. The Corporate Counselor, September, 2008].
Who Is Your Witness?
The next step is to place potential deposition witnesses into various categories. These are:
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