Reinventing Depositions

Boris Feldman is a partner at Wilson Sonsini Goodrich & Rosati. This post reflects only his views, not those of his law firm or clients.

The Covid Crisis will affect every aspect of litigation. Growing familiarity with video-conferenced hearings likely will lead to the elimination of wasteful status-conference calendars, in which scores of lawyers sit around a courtroom for hours waiting for a 10-minute appearance to update the court on developments in a particular case. Courtroom automation, largely limited thus far to fancier projectors and displays, will adopt efficient technologies used in everyday business interactions.

This is the right time for the legal profession—and the business community more broadly—to reinvent depositions. Like many of the discovery rules adopted in the 1930’s and ’40’s, depositions had a noble objective: to eliminate trial by surprise. The theory was: give both sides full information, and the case will either be settled earlier or be tried more efficiently.

Like so many well-intentioned reforms, this one failed miserably. Depositions are one of the few forms of punishment not regulated under the Eighth Amendment. The entire structure and incentives are Goldbergian (Rube, not Arthur): lawyers on both sides are paid by the minute; there is no neutral present to prevent abuse or waste of time; surprise and wearing-down are the names of the game. Review a random sampling of depo transcripts, and your reaction will not be pride in our profession.

Depending on the evolution of the Covid bug, people may be less keen going forward on to spend days in a conference room with strangers. Rather than just moving the same old problems onto Zoom Depos, here are some modest thoughts about how to improve the entire process.

No Depositions Without a Roadmap for All

Although the Federal Rules of Civil Procedures (and many state rules of court) encourage interactive planning of depositions and other discovery between the sides, that process itself often becomes another opportunity for gamesmanship. Before either side can notice a single deposition, the parties should have to set forth, in effect, a “business model” for their deposition campaign: which witnesses, on which topics, in what order. If they can agree, great. If not, the court (or a discovery czar, more on that below) should resolve these issues at the outset of the process. A litigator’s natural answer when probed about which witnesses will of course answer, “it depends.” But requiring an overall deposition roadmap, with safety valves, will sharpen the thinking on both sides.

For the rare case that actually will proceed to trial, the system should provide that each party may depose trial witnesses listed by the other side who have not been deposed. This will incentivize each party not to swamp the other with absurdly long witness lists. It will also give a party comfort that if it missed someone during the normal deposition process, it can catch up at the end.

More, but Shorter, Depositions

Boris’s Third Law of Litigation: “all depositions are too long.” Somewhere along the way, the modus operandi developed to burn fuel for hours in a deposition. Get the witness comfortable. Or drowsy. “And then where did you study after your bar mitzvah?” Hope that they forget all the soundbites they came into the deposition prepared to spout. Save the real questions until the last hour.

This is stupid, for all concerned. Implementing the other procedures set forth below, we should target 3 hours as the norm for a deposition. The Deposition Arbiter (more below) can extend that by another hour if needed. Beyond that, go to the court. By way of reference, in most of my cases, I try to set witness interviews for one hour. If you’re efficient, you can get most of the information in that time and then follow up with targeted questions.

The quid for this quo should be a larger number of depositions. In complex cases, the parties rarely limit themselves to 10 each. Often, there are more than 10 parties on a side. So at the outset of the planning process, the parties should try to agree on the presumptive number. Failing that, the Deposition Arbiter decides—subject to revisiting later for good cause. Perhaps if the depositions are shorter and more business-like, litigators will come to tolerate larger numbers of them in a case.

Documents and Topics in Advance

A meaningful business meeting rarely occurs without an agenda. The more detailed the agenda, the more productive and efficient the meeting. Why not the same for depositions? In developing the overall deposition plan, the topics necessarily will be more general for each witness. As the deposition approaches, the party taking the deposition should be encouraged to provide greater detail for each topic. To the extent that disputes about the deposition arise, burdens should vary in inverse proportion to the degree of specificity. For example, “circumstances surrounding the creation of the business relationship” would be entitled to less deference or weight than “discuss the negotiations and proposals by each side regarding what would constitute a material adverse change.”

In addition to topics, the party taking the deposition should be required to provide the opponent in advance with a set of the documents to shown to the deponent. These should be separated into those provided solely for authentication purposes, versus those that will be accompanied by substantive questions. No doubt some jokers will list thousands of documents to frustrate this process. The Deposition Arbiter can respond by telling that joker to pick the 10 best and limit the examination to those.

Outraged, the aggressive litigator may object: “but why should I let my adversary prepare on these documents in advance of the deposition?” One answer is that the whole point of the discovery regime created by the Federal Rules of Civil Procedure was to eliminate trial by surprise; there is no reason to think that Judge Clark meant to replace it with deposition by surprise. Moreover, the reality is that most deponents already prepare for those key documents—along with scores of others that won’t be used, contributing to the huge waste that the deposition prep process has become.

Opening Statement on Designated Topics

In efficient bench trials, direct testimony is of replaced by a written statement of the witness, followed by live cross-examination. Depositions should follow a similar tack. Let’s say that Topic One in the deposition notice is “Parties involved in negotiating the contract.” The deponent should begin by saying what he knows about that topic. The examining party will then proceed. If the deponent is a smart aleck and says “there were a lot of people wearing suits,” then the Deposition Arbiter can poke him or even extend the deposition.

This proposal is based on my actual experiences in a handful of depositions with seasoned litigators, and a serious witness. I said to the party taking the deposition: “let him begin by telling you what he knows about the subject of the litigation, then you can follow up.” The witness did. The other lawyer then followed up. We were finished by lunch.

No Objections

So many depositions degenerate into bickering between the lawyers, while the businessman-deponent sits there disgusted by the process. Let’s get rid of objections. Adopt a rule that all objections are preserved until a party seeks to use the testimony in any filing or at trial. The only permissible objection should be an instruction not to answer because of a privilege. If the questioner is harassing the deponent, then the Deposition Arbiter can step in. If things get out of control, then the deponent’s counsel should terminate the deposition and take the matter to court.

No Videographer or Reporter

Well, I probably won’t get any more Christmas gifts from reporting services, but by and large having videographers and court-reporters at depositions magnifies the expense and slows everything down needlessly. This will become even more true as depositions, post- Covid, move online in many instances. Use an online service that records the deposition. Mechanized transcription works pretty well already. If a party needs to submit testimony to the court, the parties can pay for a transcript then or just stipulate to what was said. The SEC already does this at many depositions. Even a number of courts have moved to tape recordings instead of stenographers.

The Deposition Arbiter

Have I mentioned “the Deposition Arbiter”? In my mind, this is key to fixing the deposition process. The system should not allow lawyers to go at it, for days, with no official present. Do you have any doubt that if depositions occurred in court, before the judge handling the case, they would occur with far fewer abuses and in a fraction of the time? A judge would not tolerate even a portion of what goes on in many depositions. It is not realistic to impose that burden on courts. Instead, courts need to approve a bullpen of lawyers (or former judges) who are willing to perform this role. The pay needs to be shared by the parties. Compensation should not be based on the length of the deposition—that would just add another party getting paid more the longer the depo lasts. There is no one formula that will be right for all types of cases and for all courts. That is the beauty of federalism and decentralization. Let a thousand flowers bloom. The Arbiter may play little role in some depositions, a key role in others. But the very tenor of a deposition will change with a neutral in the room.

Loser Pays

For due process purposes, there needs to be recourse to a real judge. Decisions made during the course of the deposition, or in deciding scope of topics, inclusivity of documents, and the like, must ultimately be reviewable by the court. The standard should be “clearly erroneous.” The incentive not to raise such disputes lightly should be an absolute loser-pays rule. No elaborate balancing test; no objective versus subjective analysis. The loser pays. So think through the importance and validity of your objections before you file an appeal.

Applicability Varies with Complexity of the Case

One size rarely fits all. At the initial case management conference, the parties should discuss with the court how these deposition procedures should or should not apply to the particular matter. But the fact that these rules won’t work well in every case does not mean that we should abandon attempts to ameliorate the most common abuses in the vast majority of lawsuits.

How to Implement?

Experimentation is a good thing. Much of what I’ve proposed can be implemented initially in experimental mode. Judges in specific matters can try out different techniques. Individual courts can alter rules of court to permit such discretion. A judge can modify her general order for types of cases or for a particular case. Experienced litigators no doubt will be able to come up with additional enhancements.

One of the challenges in implementing any of these proposals is that depositions generally are not the court’s problem. Judges rarely get involved. What goes on is largely invisible to them. It may be hard to get judges to pay attention to the waste that characterizes the modern deposition without a concerted campaign by the business community.

Ultimately, after a period of experimentation, amendment of the Federal Rules of Civil Procedure or of state rules of court will be appropriate. But make no mistake about it: these fundamental changes in how depositions happen will face strong opposition from lawyers familiar with, and comfortable with, the current system. Judges will need to force litigants to adapt. The hope is that, after a period of transition, we lawyers collectively will have improved upon one of the worst facets of the modern litigation process.

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