#2 Pretrial Agreements – Depositions Procedures

Deposition DesignationsDepositions Will Be Taken by Agreement and Will Be Limited in Number and Length.

Some counsel try to gain an advantage by unilaterally noticing depositions or by overstrategizing the issue of whose witnesses will be deposed first.  These issues tend to waste time while having no impact on the outcome of a case.

The parties should agree at the beginning of the case that depositions will be taken by agreement, with no unilateral deposition notices.  Moreover, the parties should agree to alternate witnesses – plaintiffs’ witness first, defendants’ second, plaintiffs’ third, defendants’ fourth etc.

Lawyers tend to take too many depositions and spend too long with each witness.  In a typical commercial case, 99% of deposition testimony ends up on the cutting room floor by the time of trial.  There rarely are more than a handful of truly important witnesses in any case.  And there is almost never a need to spend more than six hours questioning a witness.  So, we typically propose at the beginning of the case that the parties agree to limit themselves to ten depositions each, with each deposition no more than three hours in length.

Many jurisdictions are moving towards limiting deposition length.  In the late 1990’s, Texas changed its rules to adopt a limit of six hours of questioning per side.  The result has been more efficient and more focused litigation. But even six hours is unnecessarily long for most witnesses.  For most witnesses, there simply is no reason to question them for more than half a day.

No Objections at Depositions.

Many jurisdictions are moving towards rules that prohibit counsel from asserting deposition objections other than privilege objections and “objection, form.”  These rules have had the very positive effect of cutting down on speaking objections.  Speaking objections waste time, frustrate the questioner, make litigation more contentious, and make the witness and his counsel look bad.

We like to go one step beyond the limitations in the rules.  At the beginning of the case, the parties should agree that at depositions, all objections to relevance, lack of foundation, non-responsiveness, speculation, or to the form of the question will be reserved until trial.  There will be no reason for the defending lawyer to say anything other than to advise the client to assert a privilege or to adjourn the deposition because the questioner is improperly harassing the witness.  If counsel violate this agreement, the other side can play counsel’s comments or objections to the jury at trial.

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