A reminder about depositions and the Multnomah County guidelines

May 2010
By By Judge Marilyn Litzenberger, Multnomah County Circuit Court.

Judges often have occasion to read deposition excerpts submitted in support of motions or when offered at trial. When doing so, it is not uncommon to observe attorneys straying outside the boundaries of the deposition guidelines published by the bench and bar nearly 20 years ago. Those 1992 guidelines deserve dusting off and repeating once again, if for no reason other than to inform new lawyers (and remind more experienced lawyers) that they exist and were published to address reoccurring instances of "bad faith" deposition techniques that still exist in today's practice.

First, as is the case during trial, speaking objections are not permitted during discovery or perpetuation depositions. When an attorney offers more than the legal grounds for the objection, there is a risk of contaminating the answers given by the witness or suggesting how the trier of fact should consider the evidence about to be offered through the witness. Both are improper uses of objections.

Second, there is no need or reason to respond to the objection stated, other than to rephrase the question asked. In fact, the objection should be thought of as an invitation to correct an alleged defect in the question. For example, the objection might signal that an inadequate foundation has been laid for a witness to respond to the question asked. The questioner can then step back and ask the witness the foundational questions needed to establish that the witness is competent to answer the question or that the witness has the experience and training needed to provide a reliable answer to the question.

If the questioning attorney ignores the opportunity to cure the objectionable defect in his question, then he is taking a risk that his question and the witness' answer will be excluded at trial. This is true whether the deposition was to perpetuate testimony for trial or taken during discovery. Remember, discovery depositions may become trial testimony if the witness becomes unavailable for trial due to death, illness or some other unexpected event.

Finally, the only permissible bases for instructing a witness not to answer during a deposition are: (a) the question asked invades a privacy right recognized by statute or the constitution; (b) the answer would reveal a privileged communication or disclose work product; or (c) the question amounts to harassment of the witness.

If a deposition is being conducted using "bad faith deposition techniques" either because the witness is being harassed by the questioning attorney or being coached by speaking objections or instructed not to answer without a proper basis for that instruction, the deposition may be suspended briefly for the purpose of contacting the court to present an oral motion to limit the deposition or to instruct the witness to answer. Alternatively, the parties can continue the deposition and subsequently file a motion to compel answers to the questions or a motion for a protective order so that the objections will be resolved prior to trial.

What are foundation questions and why do they matter anyway?

There is an art to asking deposition questions that will further your client's case. It is important, however, not to overlook the importance of asking the witness the foundational questions necessary to insure the witness's answers will be admissible at trial on in support of a motion for a summary judgment. Remember, a deposition answer is an out-of-court statement that cannot be offered for the truth of the matter asserted unless you have laid the proper foundation to exclude it from the definition of hearsay or to establish it fits within an exception to the hearsay rule. Educate yourself on what questions are needed to achieve this purpose. There are many resources on this subject in the Multnomah Law Library. One such reference is Evidentiary Foundations by Edward J. Imwinkelried.

Another reminder: Don't forget to mention Rule 403

Speaking of objections, do not forget, as many lawyers do, to couple an objection based on relevancy with an objection under Rule 403. The threshold for relevancy is very low, but Rule 403 allows the court to weigh the probative value of the evidence against its prejudicial effect. Think of it as getting a second bite out of the apple.

Likewise, while a party offering propensity evidence under Rule 404 may be able to articulate an alternative reason the evidence should be admitted, Rule 403 can provide a separate basis for excluding the evidence. If the evidence is particularly prejudicial, be sure to ask the court to make "403 findings" on the record to avoid a remand directing the court to do so after your appeal.

The rules of evidence serve the purpose of insuring that inherently reliable evidence will be admitted and inherently unreliable evidence will be excluded. The rules are part of the tool box that all trial lawyers should bring with them to court.

Finally: Jury instructions - discuss them early and often with your trial judge

Jury instructions can be key to winning your case, so give careful thought to them when outlining your trial strategy and preparing for the first day of trial. The uniform instructions may suffice for a routine negligence case arising out of a motor vehicle accident, but most other civil cases require special instructions or at least modifications to the uniform instructions. Be prepared to discuss your proposed jury instructions and to state any objections you have to another party's proposed instructions in a preliminary conference with your trial judge before voir dire.

As a general rule, if your opening remarks include a discussion of the burden of proof or what you and your opponent must prove during the trial, be sure you have requested those instructions and discussed them with your trial judge. The court may wish to instruct the jury regarding some of the claims and defenses in the case prior to your opening statements. In any case, the court will be better informed of the legal issues if you identify the instructions that you are requesting at the outset and provide your judge with the statutes and cases supporting those proposed instructions.

Remember, jury instructions can create legal error in your case and be the basis for reversing an otherwise favorable verdict, so make sure your trial judge is well informed and has sufficient time to read and consider your instructions.