In today’s legal environment, we often hear the term “deposition lawyer” in reference to the decline in civil trials and the rise of settlements and pretrial disposition of cases on motions for summary judgment. The importance of depositions continues to increase for use in supporting and opposing dispositive pretrial motions. This raises numerous questions related to appeals. For example, when should a defending attorney ask questions at the end of a deposition to get favorable testimony on the record? When should an attorney use a video deposition to display a witness’s demeanor and credibility?
This post provides three deposition tips to make a case stronger for pre-trial disposition and, as a result, stronger for appeal.
Tip #1 Use the Magic Words
Before taking an important deposition in a case, research the causes of action involved to see if there are any “magic words” to use in deposition questioning. While it should not be necessary to use magic words to prove or disprove a case on appeal, it’s safer to use them than not. In drafting an appellate brief, think of the elements of a cause of action as a checklist. Tell the Court the items on the checklist and cite to the evidence in the record to satisfy each item. The same checklist should be used in preparing for and taking a deposition.
This tip will come in handy most often in expert depositions. For example, a plaintiff’s attorney taking a doctor’s deposition will use the phrase “to a reasonable degree of medical certainty” when asking the doctor whether the injuries claimed are caused by the defendant’s negligence. The doctor expert should testify that the injuries were “most probably” caused by the defendant’s negligence. Martasin v. Hilton Head Health Sys., 364 S.C. 430, 438, 613 S.E.2d 795, 800 (Ct. App. 2005) (“However, in determining whether particular evidence meets the ‘most probably’ test, it is not necessary that the testifying expert actually use the words ‘most probably.’”). While it is not absolutely necessary that the words “most probably” are used, it helps.
Products liability cases are another example. When deposing an expert, always ask causation-related questions in terms of “probability” and not “possibility.” Harris v. Rose’s Stores, Inc., 315 S.C. 344, 346, 433 S.E.2d 905, 907 (Ct. App. 1993) (“Causation based upon a possibility rather than a probability is not sufficient for a plaintiff to recover in a products liability case.”).
Do not underestimate the power of using the right words. An appellate court is usually reviewing only words on paper since it is limited to the material designated in the Record on Appeal. Make sure the words in the Record match the words in the applicable case law.
Tip #2 Consider Using Video Depositions
In South Carolina, use of video deposition is available in a civil case involving $100,000.00 or more, by court order, or for testimony of a treating physician or health care provider. Rules 30(h)-(i), SCRCP. Consider using a video deposition for a witness whose demeanor and credibility are important to the case. Reading a cold deposition or trial record provides no context for credibility, remorse, emotion, or pain. While an appellate court usually defers to the lower court for the credibility of a witness, there is support for the argument that an appellate court may make its own credibility conclusions if both it and the lower court viewed the same video. Macaulay v. Wachovia Bank of S.C., N.A., 351 S.C. 287, 296, 569 S.E.2d 371, 376 (Ct. App. 2002) (“Generally this Court defers to the probate court’s findings regarding credibility of the witnesses. However, Drawdy’s testimony at trial was presented through video deposition, which places us in an equal position to judge Drawdy’s credibility.”). Submit both the video and transcript, including any exhibits to the deposition, to the lower court so they may be properly included in the Record on Appeal.
Tip #3 Get the Deposition Testimony into the Record on Appeal
Make clear on the hearing record if a deposition transcript is handed to Court, including the specific pages if possible. Be sure to include any deposition exhibits in the Record on Appeal. This can be a great way to get something into the Record. Include the witness’s signature page confirming the deposition testimony or waiver of his signature under Rules 30(e) and 30(j)(3), SCRCP. This is useful if the opposing party submits any evidence contradictory to the deposition testimony because it allows an attorney to argue the witness testified as stated in the deposition transcript and approved that testimony as true and correct.
Simply listing a deposition designation in a pretrial document does not mean the designation went into evidence and should be part of the Record on Appeal. For deposition testimony to be properly included in the Record on Appeal, the trial record must indicate exactly what portions of each deposition were read into evidence. Many court reporters do not transcribe the deposition testimony but instead write something such as “(Portions of the deposition of Dr. John Smith were read to the jury.”). Give the court reporter the designations and ask her to include the designations in the trial transcript, specifying page and line numbers. Further, include the designation, counter-designation, and any objections as a court exhibit.
When considering what portions of a deposition to submit to the lower court and, ultimately, to the appellate court, consider the importance of context and always go back to a checklist of the elements of the causes of action in a case.