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Treat Your Depositions as a Trial

By William S. Bailey

INTRODUCTION: THE "FUNNEL" METHOD AND ITS LIMITATIONS

The conventional wisdom would have us treat all depositions as a funnel, beginning with broad open-ended questions and gradually narrowing the inquiry to specifics. While there is nothing wrong with this approach if the deposition is only used for purpose of evidence gathering, the often rambling nature of a traditional deposition makes it ill-suited for use at trial. CR 32 provides that any part or all of a deposition may be used against any party who is present or represented at the taking of the deposition, or who had reasonable notice of it. It is a relatively common experience that a witness who has been deposed is unavailable for the trial of a matter. If so, "The funnel" method of taking depositions makes them deadly dull to the ears of the jury. While attorneys often seek to remedy this by selecting key questions and answers, this editing process is often undone by the opposition under CR 32(a)(4):

If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.

In cases I have handled where a witness is unavailable and the deposition is used, my opposition has invariably demanded that we "Read the whole thing." Most trial judges do not want to get into a minutia of lawyer objections, and going through the deposition line by line. Thus, what usually happens is the whole deposition is read to the jury. The net effect of this is that you might as well not read the deposition at all, if you have not asked a very tight set of lively and engaging questions that will hold the jurors' interest. If the broad inquiry of the funnel method is used, you will have most jurors tuning out by about the third page.

This was impressed upon me early on in my legal career, when I worked for the Labor & Industries Division of the Office of the Attorney General. In workers' comp. cases which were handled by this division, depositions of medical witnesses were often taken which then substituted for live testimony before the Board of Industrial Insurance Appeals. In cases that were appealed de novo from the Board to superior court, the entire administrative transcript was then read to the jury. No live witnesses were used. The Judge and the jury uniformly considered this process of reading transcripts to be excruciating. Shortly after I began work at the Attorney General's Office, I ran into a superior court judge on the street. He knew that I had gone to the Attorney General's Office and asked me what division. When I told him Labor & Industries, he visibly winced and said, "Oh, does that involve that horrible reading of the record?"