C h a p t e r 1

Discovery
Practice and Procedure

DEAN STEVE EASTON: It is my honor to assist The Professional Education

Group in bringing Irving Younger's presentations on trial advocacy to a new
generation of lawyers. The following chapter covers discovery. In this seminar
Professor Younger challenges us to think about why we use certain discovery
devices and how to use them effectively. He tells us that we should keep in
mind the goal we are attempting to achieve when we use the discovery pro-
cess. Everything he says in that regard is just as valid today as it was when he
recorded this seminar in 1986.
Of course, we’ve changed some of the discovery rules in the time since 1986
because, quite frankly, we are always changing the discovery rules. So there
have been several changes to Rules 26 to 37 of the Federal Rules of Civil Proce-
dure. Also, keep in mind that every time the Federal Rules of Civil Procedure are
changed, some of the states adopt some of those changes and some of the states
do not adopt those changes.Therefore, if you are litigating a case in state court,
you are going to want to make reference to the state discovery rules to determine
what the status of those rules is and what your discovery options are.
We will focus on the federal rules, as Professor Younger does. I will not men-
tion in this preview every single change in Rules 26 to 37, i.e., the discovery
rules of the Federal Rules of Civil Procedure. But I do want to mention changes
in those discovery provisions that Professor Younger mentions in the seminar
that you are about to see. We will take them in the order that Professor Younger
will mention them.
First, the scope of discovery language in Rule 26(b) was changed so that
the rule now says that we are allowed to discover unprivileged matters “rel-
evant to any party's claim or defense.” With regard to the timing of discovery

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issues that Professor Younger discusses—i.e., who gets to do discovery first

and whether both parties are allowed to conduct simultaneous discovery—
there have been a couple of pretty significant changes. In 1993 the automatic
disclosure provisions of Rule 26(a) were added to the Federal Rules of Civil
Procedure so that now, as you know if you litigate federal cases, you have an
obligation to provide certain information even before your opponent issues a
discovery request. Rule 26(d) has also been amended to provide that in most
cases there is a moratorium on discovery until the initial automatic disclosure
period is complete.
Professor Younger mentions that depositions, while a very valuable discov-
ery device, have the disadvantage of being a very time-consuming discovery
device. There has been a change in the Federal Rules that is significant with
regard to the consumption of time. Rule 30(d)(1) now provides a time limit of
one day of seven hours and, of course, provides that that time limit can be
extended by a court order or by a stipulation between the parties.
With regard to expert witnesses, there has been a significant expansion of
the discovery beyond that which existed before 1993 with the standard expert
witness interrogatory and the response to that interrogatory. After 1993's
adoption of the automatic disclosure provisions, we are now required in civil
cases to identify individuals who will present expert testimony at trial. Also,
under Rule 26(a)(2) those expert witnesses, in most instances, are required to
file a report that includes a notation of the data or other information consid-
ered by the witness in forming her opinions.
Professor Younger also discusses protective orders. For the current law
regarding protective orders, refer to subsections (b)(2) and (c) of Rule 26. With
regard to discovery conferences, Rule 26(f) now usually requires the opposing
parties to meet to attempt to identify whether this is a case that can be settled
and to set a discovery schedule early in the discovery process.
Professor Younger notes that, at the time of his presentation, several courts
were adopting limits on the numbers of interrogatories. Now, Rule 33(a) has
been amended to provide a standard limit to the number of interrogatories
of 25, “including all discreet subparts.” That limit applies in the absence of a
written stipulation of the parties or a court order to the contrary. The insur-
ance information that Professor Younger suggests that we attempt to acquire
through interrogatories is now part of that automatically disclosed informa-
tion under Rule 26(a)(1)(A). Finally, the option to produce business records in
response to an interrogatory is now found in Rule 33(d).

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 Discovery 5

IRVING YOUNGER: Well, the subject, ladies and gentlemen, is discov-

ery. And whenever one talks about discovery, it is important to know
the viewpoint of the person doing the talking. And so I’d better begin by
telling you what mine is. Now, you’re all familiar with the phenomenon
of the litigating lawyer. That is the lawyer who undertakes to represent
clients in litigation business, but always sublimely confident that no law-
suit handled by that lawyer will ever go to trial. There will be a settlement
or some other disposition short of a trial. And for that lawyer, I think it’s
fair to say, discovery is the objective. Discovery is what the enterprise
is all about because that lawyer, at least in my experience and as I have
observed the phenomenon, will engage in discovery virtually in a mind-
less manner, taking depositions of everybody on the landscape simply for
the sake of taking those depositions, serving interrogatories, conducting
discovery and inspection. Every once in a while, simply for a change of
pace, making a motion or two, to the end that ultimately the other side
has had enough, throws in the towel, and the case will be settled.
Well, that’s the litigating lawyer. More power to him or her, but that’s
not yours truly. Yours truly, ladies and gentlemen, regards himself as a
trial lawyer and for a trial lawyer, the objective is the actual trial of the
lawsuit, be it state, federal, civil, criminal, protracted and complicated,
or fairly short and relatively simple. The trial is the end and everything
else is a means calculated to achieve that end or to make the end occur
in a more efficient and aesthetically satisfactory way. From the view-
point of a trial lawyer then, which I now trust is clear, is my viewpoint,
discovery is not something to be engaged in automatically or unthink-
ingly. Discovery is a means to achieving an objective. And so as with
everything else, you first must know your objective and then you can
calculate the means to see whether the means is reasonably likely to
achieve the objective that you have in mind. Well, there is the view-
point. Let me leave it at that. I trust it will be reasonably clear, albeit
implicit, in everything else that I have to say in the course of the day.
Let’s begin with the scope of discovery under the Federal Rules of
Civil Procedure and their analogues in the states and essentially that

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means all of the states. And there’s really very little to be said about it,
precisely because, unlike what you would gather from simply looking at
the language of Rule 26(b)(1) of the Rules of Civil Procedure, the scope
of discovery as that language has been construed by the courts is wide
open. We all remember from law school, and in this instance, what
we were taught in law school is quite true. You may discover anything
that would be evidence at the trial or that is likely to lead to evidence,
which means that so long as you’re pretty good at making arguments
and showing the judge how things are connected with other things,
anything is discoverable, with exceptions to be sure. Exceptions with
respect to the evidentiary privileges, to work product and the like, which
we will come to in due course.
But I think from the standpoint of the working lawyer the scope of
discovery is an issue not worth thinking about. Discovery is wide open.
Anything can be discovered, with exceptional situations, of course,
where you’ve got a kind of immunity from discovery, and beyond that
the working lawyer will say to himself or herself, “What is the purpose
of discovery?” Granted that you can discover virtually anything that’s out
there. What is the purpose of discovery? And it seems to me in reflecting
on this question, ladies and gentlemen, that there are three big purposes
to discovery. Now, obviously, the purpose that will be involved at any par-
ticular moment will depend upon the circumstances of the case, what
stage of your discovery program you are at, and the like.
But looking at the picture as a whole, you’ve got three big purposes.
And let me identify what they are. First, classically, stated most fre-
quently, the purpose of discovery is to discover, to get information about
the case and, most importantly, information that you do not already
have, to find out things about this case that are not already known to
you. And far be it from me to dispute the proposition that that is one of
the purposes of discovery. But in my experience as a trial lawyer, that
is one of the less important purposes of discovery. In my experience as
a trial lawyer, more important than that purpose is the one I will men-
tion now—a second purpose of discovery. It’s not normal to talk about
this, but any lawyer who has engaged in civil litigation is aware that this

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is one of the aims that you seek to accomplish when you indulge in
discovery—not to find out what you don’t already know, but to find out
what the other side already knows so that you are prepared to deal with
it when the case is reached for trial.
So first you want to find out about the case, find out what you don’t
already know. Second, you want to find out what the other side knows.
And now, third, you use discovery to prepare for trial, to streamline the
case, to marshal the proof, so that when finally you do try the case it
goes in smoothly, efficiently, with minimum effort, and with maximum
persuasiveness.
And it seems to me that under the general heading of preparing for
trial there are three principal goals that you will seek to achieve. First,
you will want to pin the other side down to its position. The other side
has a position on any one of the issues in the case. The other side’s
position is not necessarily favorable to you, but you want to be sure
that it doesn’t change between now and then so that whatever you are
presently told their position will be is exactly the position that you will
need to attack at the time of trial. Call that pinning down or freezing the
other side.
Second, you will engage in discovery so as to preserve testimony, hav-
ing in mind that people die, leave the jurisdiction, or otherwise become
unavailable for testimony at trial. Well, it’s now, time present. The trial will
take place in time future, months or years away. Let’s take the testimony
now, in such a form that we can use it at the time of trial.
And, finally, under the general heading of preparing for trial, increas-
ingly important in these days when so much civil litigation will involve
large amounts of documentary evidence. As you all know, the manipu-
lation of documents in the courtroom is not intellectually difficult. It
does not challenge the rational faculties, but it requires a certain cho-
reography which every trial lawyer fairly quickly masters. But that cho-
reography is very boring to a jury. There is nobody listening to me who
does not know the footsteps necessary to bring it about, for example,
that a document is received in evidence under the business entries or
business records exception to the rule against hearsay. But to lay that

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particular foundation time and time again in the course of a trial is to

drive a jury insane with tedium and generally it is to your disadvantage
to drive a jury insane with tedium. You want to keep a jury just as enter-
tained as you possibly can in the course of a trial. Granted, that’s dif-
ficult in most civil lawsuits, but for heaven sakes, don’t make it harder
than it has to be. And it’s harder than it has to be when you go through
this choreography involving documents in front of the jury. Most of it
can be finessed and it can be finessed by adept use of discovery. So
under the general heading of preparation for trial, in addition to pinning
down or freezing the other side, in addition to perpetuating testimony
that may otherwise become unavailable when the case is reached for
trial, you’ve got the authentication of documents and the marshaling of
the evidence generally to the end that your presentation in front of that
jury be as smooth and as entertaining as you can possibly make it.
Now, no matter what the nature of the case, no discovery ought to
be indulged in a haphazard or miscellaneous fashion. Just as you try
a case in accordance with a plan, so you must conduct discovery in
accordance with a plan. And all too many lawyers, in my experience,
do not. They conduct discovery with a plan that’s nothing more focused
than sort of pulling the trigger on a shotgun and hoping that the pellets
hit a target out there. To continue the analogy to weapons, I think that
discovery ought to be a rifle, not a shotgun, and you take careful aim
at your target and you hit that target right in the bull’s eye. You can’t hit
the target in the bull’s eye if you don’t know what the target is and you
won’t know what the target is unless you have devised a plan for the
conduct of discovery in this case.
In devising that plan, the following factors are to be considered.
Now, obviously, I can’t tell you what the plan ought to be. There’s no
recipe that’s going to give you the plan of discovery in the next lawsuit
for which you become responsible. Everything will depend upon the
circumstances of the case and the issues presented. But in working
out your plan for discovery, these five factors will play a part.
First, expense. Now, for a very few lawyers that is an unimportant
factor. Indeed, it’s a factor that may not need to be considered at all.

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And that applies to the fortunate few who have clients with bottom-
less pocketbooks, who are involved in lawsuits where, as the saying
goes, the company is on the line. I suppose in those rare cases you
don’t have to consider expense. One thinks of the statement of the
chairman of the board of IBM some years ago when IBM was engaged
in all kinds of company-threatening litigation and he announced at the
annual meeting of stockholders that the budget for legal affairs this year
has been without limit and it has already been exceeded. Well, if you
have the good fortune to represent that kind of client in that kind of law-
suit, I guess you needn’t consider expense. But for the rest of us, the
great unwashed, expense is a factor and an important one. Discovery is
always expensive in that it’s never free and then within discovery there
are the less expensive discovery devices, the more expensive discov-
ery devices and, surely, expense is a factor to be considered.
Second—delay. Meaning for the most part, the delay that is the
inevitable consequence of the discovery that you conduct. Now, we
all understand that it’s possible for the other side to conduct discovery
for the illegitimate purpose of frustrating and delaying you. And we’ll
talk about that at the very end and there are things that you may be
able to do to prevent that from happening. Assuming good faith all
around, remember that all discovery takes time. And so if you decide
to conduct ten depositions, it’s going to take at least whatever, 90
days, 120 days, six months to conduct those depositions. And those
are 90 days, 120 days, or six months when you’re not in line wait-
ing to be tried, when the case cannot be tried because you’re still
in the discovery phase. That factor of delay may be very important
in some cases and, as a matter of fact, it may be that the factor of
delay can be turned to your advantage in that if you’ve got an oppo-
nent who is a litigating lawyer, who assumes that in civil litigation
what you do is engage in discovery and you keep engaging in discov-
ery until finally the case is settled, maybe the thing to do the instant
the pleadings are complete is to say to your opponent, “I’m ready
for trial. I don’t need a single deposition. I have no interrogatories for
you whatsoever. What I want is a trial. I am ready to pick the jury at

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2 o’clock this afternoon.” Your opponent will be prostrate, absolutely

prostrate, because what is now looming before your opponent is the
possibility that he or she may have to try a case. He’s never done that.
He doesn’t know how to do it. And it’s at that point that you may dis-
cover that you suddenly have a settlement on favorable terms offered
to you.
Next, and here it gets to be a little bit subtler. But the fact that it’s
subtle doesn’t mean that it should be overlooked. In addition to expense,
in addition to delay, remember that just about every single time you con-
duct discovery, no matter the nature of the discovery you conduct, you
may be finding out about the case, but simultaneously you are telling
the other side something about your case. You are tipping your hand. To
some extent you are showing the cards that you are holding. At a depo-
sition, for example, a deposition on all questions, one out of every two
questions will communicate something about your familiarity with the
case to the other side. Well, you want to take that into account. Is that a
risk that’s worth running? There’s got to be a way to quantify it, to put a
value on it. You put a value on it and you throw it into the balance along
with the other factors that we’ve mentioned.
Next, and this is one that litigating lawyers almost never consider,
though it’s really a matter of common sense. You’ve got a purpose in
conducting this particular piece of discovery, there’s something you
want to accomplish in this deposition, there’s something you want to
accomplish by serving this set of interrogatories. Ask yourself, what is
the likelihood of accomplishing that purpose? And if the likelihood of
accomplishing that purpose is very low, well, of course, that becomes a
very important factor militating against conducting this particular piece
of discovery. So what is the likelihood of success, of achieving what it
is that you want to achieve with this item of discovery?
I've given you four factors—and now the fifth. And the fifth is one
that, as competent and effective counsel for your client, you owe
it to your client to think about and, if need be, discuss with the cli-
ent. Remember that there will be occasions—not always—but there

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will be occasions when the conduct of discovery will have conse-

quences for the client apart from this lawsuit. What I called in the out-
line non-litigation consequences. Ask yourself whether there will be
any such consequences. If so, what will they be? And discuss them
with your client and that becomes a factor to be weighed along with
the others, with all of the others. For example, taking discovery may
elicit the interest of governmental agencies. It may end up in the
newspapers. It may raise the likelihood of a stockholder suit against
the corporation. That’s what I mean by non-litigation consequences—
consequences apart from having an impact upon this particular lawsuit.
All of those are factors to be weighed. Let me end where I began. The
way in which you weigh them I cannot lay down in general. Obviously,
there’s no recipe that gives you a pat answer in any particular case.
Let’s move along to a subject which is no longer center burner, but
if you will forgive the autobiographic note, when I began to learn the
business of litigation, the business of trying cases, a fairly long time
ago, this was a very controversial subject. It is no longer controversial
because the Federal Rules have been amended since then to resolve
the problem. But there are many states in which the statute or the rule
is in the form in which you would have found it in the Federal Rules 30
some odd years ago and in those states this is a live matter and so let
me spend no more than, let’s say, five minutes on it.
This is the subject of priority. That is a term lawyers and judges have
applied to an issue that does not appear anywhere in the Federal Rules
explicitly and it never appeared in the Federal Rules explicitly. This was
something invented by lawyers and ultimately approved by judges. The
word priority connoted the question “Who goes first with respect to dis-
covery?” And as it came to be construed in the federal cases before the
amendment to the Federal Rules of Civil Procedure, the answer to the
question “Who goes first?” included the idea that whoever went first
continued discovery to a conclusion before the other side could start.
So that priority was a very substantial factor in the pretrial maneuvering
that’s part of every piece of civil litigation. Because if the plaintiff or the

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defendant had priority, it meant that the plaintiff or the defendant could
start his discovery and continue it to a conclusion before the opposing
litigant, the defendant or the plaintiff, could start his discovery.
Now it worked this way under the rules before they were amended,
the Federal Rules before they were amended. And I talk about it, I
repeat, because in many states this will be the practice still, to this very
day. The judges engrafted on to the Rules of Civil Procedure a judge-
made rule as follows. Priority went to that litigant who first demanded
discovery and since typically you demanded discovery by serving a
notice of oral deposition, in most cases the rule meant whoever serves
the first notice of deposition establishes priority. Observe that the trig-
ger event is not taking the deposition, it is serving a notice of deposi-
tion before the other side serves a notice of deposition. So first in time
meant first in right.
You will recall, if you’re old enough to have practiced in those days,
and as a matter of fact, it is still part of the Federal Rules, though it no
longer gives you priority, that the rules with respect to depositions and
notices of deposition are so devised so as to give a defendant an auto-
matic head start. Remember, a defendant may serve a notice of deposi-
tion immediately upon being served with the summons and complaint.
Whereas a plaintiff may not serve a notice of deposition for a period
of time set forth in the rule unless you get leave of the court and that
leave is not very easy to get. The defendant has no requirement of get-
ting leave of the court, the defendant can go at once. So that under the
old practice it used to be said that it was malpractice for a lawyer rep-
resenting the defendant in a piece of civil litigation not to have priority.
Because to have priority, all you needed to do was serve the first notice
of deposition. You could schedule a deposition for two years away, so
long as the notice went out right now. That established your priority and
it meant that you could keep at it and keep at it until you were finished
and the other side couldn’t even get started.
Well, the ways in which tough and imaginative counsel could use pri-
ority need not be spread upon the record by me. They’re clear, I’m sure,
to your imagination. This was an enormous advantage. But remember, it

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was an advantage that derived from a rule that was invented by judges.
There was nothing in the Federal Rules of Civil Procedure that said first
in time, first in right. Federal judges said first in time, first in right.
Along about 1960 or ’61 this matter came to the attention of the
Advisory Committee that keeps continuing oversight on the Fed-
eral Rules of Civil Procedure. And then along about the mid- or late-
1960s, the Advisory Committee saw to it that the Federal Rules of
Civil Procedure were amended in the way that you will read today in
Rule 26(d). Now, I’m not going to read it to you, but in summary and
paraphrase, this is what it says. There is no rule of priority. Nobody
gets to go first in the sense of starting and continuing until you’re all
complete and only then may the other side begin. Instead, the rule
under 26(d) is that either side may go first and you proceed alternately.
And if there’s a dispute about what that means, the judge will specify
two weeks for you, two weeks for you or three weeks for you, three
weeks for you—whatever makes sense in the circumstances—so that
each side gets to conduct its discovery essentially simultaneously with
the discovery conducted by the other side. So under the Federal Rules
of Civil Procedure, the concept of priority is no longer important. But, I
repeat, in many states it still is and we can move along.
We can move along, ladies and gentlemen, to an aspect of discov-
ery that, in my experience, many lawyers pay no attention to what-
soever. And in ignoring this aspect of discovery, it seems to me that
these lawyers do themselves and their clients a disservice because
this is an aspect of discovery that is potentially enormously fruitful. It
is always fairly inexpensive, requiring only an expenditure on the part
of the lawyer of that rarest of commodities, energy, and perhaps a little
bit of imagination. And, best of all, you indulge in this kind of discov-
ery without telling the other side. And ex parte or private discovery is,
of course, enormously advantageous. This is what I call in the outline
informal discovery. And by informal discovery, I mean discovery apart
from what is available under the Federal Rules of Civil Procedure. Dis-
covery that you carry out on your own. Now, you may not be able to
perpetuate testimony by informal discovery, but it’s a wonderful way to

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find out about the case, absolutely wonderful. Far better than anything
you can do under the Federal Rules of Civil Procedure. It’s far better
than anything you can do using the formal discovery devices.
So let me spend a fair amount of time discussing these informal
modes of discovery and if any of this is new to you, if it proves useful
to you in your practice, please use it. I will be delighted and chances are
you will be that much ahead of your opponent because chances are that
your opponent is doing nothing with respect to informal discovery.
To begin with, there is the kind of investigation that a lawyer con-
ducts on his or her own. And if not necessarily with the lawyer out
there walking the sidewalks, the investigation is being conducted by
investigative types working on behalf of the lawyer. Investigation. And
investigation may involve a number of things. First, and I suppose most
importantly, it will involve interviewing potential witnesses. Now, that’s
kind of self-evident. Many of you who are listening or looking will say,
well, obviously, you go out and you try to interview potential witnesses.
We didn’t need to be told that, I grant you. Most lawyers don’t need to
be told that it’s important to interview potential witnesses, but I have
found that many lawyers seem to be unaware that there is a technique
to the interviewing of potential witnesses. There is a right way to do it
and because the right way to do it has much to commend it, I urge you,
if you don’t already find yourself a master of the right way of interview-
ing witnesses, to make yourself a master of this technique. Here’s how
I would state that technique.
First, you’ve got to move fast. Immediately after the occurrence of
the event which is probably going to engender the lawsuit, you’ve got
to move fast to talk to potential witnesses. And if you can’t move fast
enough to talk to everybody, talk to the witnesses in approximately
the order of their importance, so that you make sure you reach the
important potential witnesses early. Get to them on the first day. Then
the next most important witnesses on the next day, et cetera, so that
if there’s any potential witness you don’t get to talk to, it is a potential
witness whose importance is fairly low down in the scale. And the
reason for that is this and this is just one of the truths of human nature

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that you’ve got to be aware of if you’re going to try lawsuits. Even

though the witness is, in the eyes of the law, a disinterested person, a
third person, a mere bystander who has no involvement, no personal
involvement in this lawsuit whatsoever, it is in the nature of that form
of human nature that manifests itself among Americans to want to root
for one side or another.
Every one of us has run into that in our own lives. You know, you’re
off in a strange city and you have business tomorrow morning, but this
evening you’re free. What are you going to do? Sometimes you go to
the movies, sometimes you watch television, sometimes you go to bed
early, but sometimes you may go to the ballpark to watch a ball game.
And even though the two teams are totally unrelated to the team you
normally root for, you will recall that, as you sit there watching the game,
you choose one side or the other and you root for that team. It just adds
to the enjoyment with which you watch the athletic contest. It’s part of
what I’ve said is human nature as it manifests itself in Americans.
You want the witnesses to root for your side because, even though
I do not for one moment suggest that witnesses deliberately alter their
testimony to help one side or the other, there’s so much that’s beneath
the level of consciousness that will work in your favor if the witness
is rooting for you. And you know for whom the witness will root? The
witness will root for the side that first talks to him or her because the
witness has no reason to root for one side or the other, so automati-
cally the witness will come out on the side whose representative first
talks to him. And that is why you do your best to speak to potential
witnesses early and, if you have to make a choice, talk to the important
witnesses. Leave the unimportant ones alone because in talking to the
important ones, chances are you enlist their sympathies, they are root-
ing for you from the beginning.
Next, if you’re going to go to the trouble of talking to anyone, get
some kind of record of the conversation. Now, the nature of the record
will depend upon how you like to do it and who the person is you’re
talking to. The person may be willing to give you a written statement.
Get it. The person may be willing to look over and initial a statement

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that you write out based upon what the witness has told you. Do it
that way. Some people are willing to talk into the microphone of a tape
recorder. Do it that way. But make sure that there is a record of what
was said. The reasons for that are perfectly obvious. People being what
they are and litigation being the high pressure process that it is, people
may change their minds about things, their recollections may fail, all
kinds of things may go wrong. You want that statement.
Next, do not neglect, when you talk to a potential witness, to ask
a question, in essence, as follows: “Do you know of anybody else
who knows about this matter?” Use the witness to lead you to other
witnesses.
Next—this may prove invaluable to some of you. It has proved
invaluable to me from time to time and I’m much in the debt of the
lawyer, whose name I cannot remember, who taught it to me when I
was a youngster, just starting out. Remembering that you’re talking to
people who will be witnesses in a civil trial, that trial is going to take
place years from now, literally, assuming that the case is going to be
tried in any urban jurisdiction these days. The state of the calendars is
such that you’ve got to count on a delay that is measured in years, not
months or weeks. That being so, you’ve got to concern yourself with
the problem of the witness who moves. Never mind the witness who
dies or who otherwise disappears from off the face of the earth, but
the witness who simply moves. How do you track him down? Here’s
how to track him down. Sometime in the course of your conversation
with that witness, ask the witness—of course, you’ve asked for the
witness’ address and telephone number, but if the witness has moved
that may not help you. Ask the witness for the name, address, and
telephone number of somebody close to the witness. If it’s a young
person with living parents, get the name, address, and phone number
of his parents. If it’s an older person with children who are living inde-
pendently, get the name, address, and phone number of the children.
And do you see how you use it? If five years from now you need that
witness and it turns out that the witness has moved away, you have
the name, address, and phone number of someone else whom you

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can get hold of who will, in all probability, know where the witness
now is to be found. Right? So much for interviewing witnesses. Not
that we’ve exhausted that little subject, but we’ve got so much to talk
about, we must move along.
Next, in addition to examining witnesses, remember that many law-
suits, perhaps more than half, involve some particular physical location.
I present it to you as an axiom of trial practice. You will never try a case
involving a physical location where you have not, yourself, examined
the location. Go and look at the intersection where the cars collided.
Go and look at the branch bank where something took place that is the
subject matter of the lawsuit. Whatever the physical location, go and
examine it yourself.
Apart from examining it, I suggest that you do the following. The
first couple of times you do it, you feel a little silly, but then you kind of
get into the swing of it and you feel kind of professional doing it. First,
where there is any question involving distances and angles, measure
those distances and angles yourself. Now, you may have a professional
investigator do it in addition, but do it yourself to make it part of you
so that you understand in way that you can never lose how the dimen-
sions work out and how things are related physically to other things.
Next, consider the possibility of taking photographs. Given the ease
of use, the cheapness of Polaroid photography these days, you can
always have a Polaroid camera in your briefcase when you go out to
look at a scene and do not hesitate to take photographs. But if you are
measuring or if you are taking photographs in circumstances where
there is any possibility at all that your measurements or your photo-
graphs may actually function as evidence when the case is tried, in
short, you’re not doing this just to educate yourself, but you’re out
there a day or two after the accident happened and your photographs
may be important as demonstrating how the foliage obscured the side-
lines at this intersection or something of that kind. You must anticipate
that possibility and, if there is that possibility, take someone with you
so that if it does become necessary to prove the measurements or the
photographs at the time of trial, there is a foundation witness other

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than yourself. If you have to be the foundation witness, first, there’s

a chance that it may be improper for you to try the case and that, of
course, is a tragedy. And, second, even if it’s technically proper for you
to try the case, it is awkward to be a witness to however inconsequen-
tial a thing as taking measurements or a photograph and then having
to be counsel in the case. You’re a witness or you’re a counsel and my
advice is don’t let the two categories overlap and you’ll prevent it from
overlapping if you take somebody with you so that person is in a posi-
tion to testify to the measurements or to the photographs.
And, finally, if you pick up anything at the scene, you know, a loose
nail, a fragment of something, bear in mind that that may have to be
offered in evidence at the trial and to offer it in evidence, you’re prob-
ably going to have to prove the chain of custody. This is something that
all policemen and FBI agents learn in the course of their training. You
have to teach it to yourself and it’s not very difficult. If you pick up a
fragment, a nail or the like, let me give you the following suggestion. It
is not the only way to do it, but it’s a neat and efficient way to do it.
Assuming you have somebody with you, reach into your briefcase
and out of it take a blank envelope. A supply of blank envelopes should
always be in a lawyer’s briefcase. Put the nail, the fragment of wood,
whatever it may be, into that envelope and seal it. Then have your
potential foundation witness sign it and date it by writing across the
sealed flap, his name and the date. Two or three questions at the time
of trial will then be enough to get this object into evidence, because
actually you don’t really need the chain of custody. It’s in the sealed
envelope, that makes it unique in the sense that there’s only one such
envelope in the world containing such a fragment and in it will go. It’s
a little bit beyond our jurisdiction to run through the questions that you
would ask of the witness at the trial. Leave it that you have done the
necessary to set that witness up so that the witness will be able to
answer those simple questions and the object that you found upon
investigating the scene will be received in evidence.
Now, that’s not the end of investigation. Investigation includes talk-
ing to witnesses, it includes examining the scene and, third, though

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this need not be done at the very beginning, it involves exploring the
literature or the clerk’s offices for other cases in point. And by other
cases in point, I mean your client is being sued by Mr. Plaintiff. Has Mr.
Plaintiff ever sued anybody else? Especially has he ever sued anybody
on a claim similar to this one? You represent the plaintiff and you’re
suing the defendant. Has the defendant ever been sued on claims sim-
ilar to this one? Don’t stop there. You have an opposing counsel. Has
counsel made a specialty of cases of this kind? Chances are there will
be an expert on the other side. Can you find any cases in which the
other side’s expert has testified?
Now, finding other cases is sometimes very difficult. Finding them
may ultimately turn out to be a matter of luck more than anything else,
but make the effort. Go to the clerk’s office, look at the index of plain-
tiffs and defendants. Talk to other lawyers, pick up whatever informa-
tion is on the grapevine. Get all of the information that you possibly
can on other cases in point. And you see that in point means a number
of things and let’s move along. An aspect of investigation which I tell
you, even though it’s unduly personal, perhaps, I’ve found to be enor-
mously useful and I made it an invariable part of my discovery program,
because my discovery programs always included informal discovery
and that’s what we’re considering now. As soon as the other side is
represented, I made it my business to talk to opposing counsel, early
in the game. This is not talking to opposing counsel on the morning of
the trial. I mean, talk to opposing counsel a couple of days after the
complaint and answer have been served on the defendant. Opposing
counsel will give you a call. He says, “I’m going to be representing
the defendant. How about giving me an extra two weeks to answer?”
“Sure,” say you. I mean, you always say yes. But I will also add, if it’s
somebody I don’t know, “Why don’t we have lunch one of these days?
Let’s talk things over.” The answer from opposing counsel is always,
“Yeah, let’s have lunch,” because he thinks I want to settle it. I don’t
want to settle it, I want to engage in informal discovery.
And it is amazing how frequently you will get all kinds of information
about the case by talking to opposing counsel. If you talk to him in a

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special way—and it’s not to go beyond these four walls because this
is highly confidential information. You know how you talk to opposing
counsel? Don’t say anything. Just sit there with your mouth shut, right?
Most of us have been brought up by our mothers to be made very
uncomfortable by silence. You know, at the Thanksgiving dinner table,
you’ve got eight or twelve people and everybody’s buzz, buzz, buzz-
ing, and then suddenly, by accident, there’s a moment where nobody’s
talking? You know, there’s that second of silence and you know what
happens. After one or two seconds, all twelve people at the table start
to talk at once. Everybody is anxious to cover that silence; it’s just part
of the way we’ve been brought up. Silence is embarrassing.
I’ve made most use of this business of talking to opposing counsel
in the days when I was primarily a criminal lawyer, not a civil lawyer.
That means you have no discovery whatsoever. I discovered the best
discovery you can have as defense counsel was to call the prosecutor
up and go to his office. And you walk in and you introduce yourself and
he’s sitting there thinking, oh boy, here it comes, guilty plea, my name’s
going to be in the newspapers, et cetera. And after you shake his hand
and introduce yourself and give him your card and your telephone num-
ber, sit down and look at him. And within five seconds he’s going to
start to talk because he can’t stand the silence. And what’s he going to
talk about except the case? And it’s amazing what he will tell you about
the case, usually unaware that he’s telling you. And if that kind of thing
doesn’t work, well, then you draw him out a little bit. If it’s a civil lawsuit,
you’re not going to go to his office. You know, one side is not going to
want to go to the other side’s office, so you meet on neutral ground. You
meet at a local coffee shop or restaurant and you get the conversation
going and, after a while, turn it to this case and you say nothing. Let the
other fellow do the talking and I guarantee it will be absolutely extraordi-
nary to you how much information you pick up about that case. So much
for the kind of investigation that you, the lawyer, may conduct. By no
means is it so much for other types of informal discovery.
Let me run through a kind of a checklist of the possibilities with
respect to informal discovery and remember, ladies and gentlemen,

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the utility of a checklist. You don’t have to invent the wheel every time
you go out. The checklist gives you the universe of possibilities. Well,
accept it as such and from this universe of possibilities, select those
one or more items which make sense given the circumstances of your
case. So you don’t do any of these things unthinkingly, but whatever
you do, you draw from this list, right? The checklist of possibilities for
informal investigation.
Assume that your opponent in this lawsuit is a corporation. If it is a
corporation of any size, it will have a public relations department. And
when you call that public relations department and say, “Will you please
send me all the press releases you’ve issued for the last year and put
me on your mailing list to get all press releases still to be issued,” they
will fall all over themselves to send you the press releases. Remember,
they’re not confidential documents by definition, they’re documents
issued to the outside world. There’s nothing improper in asking for
them. There may be something a little unintelligent in the corporation
blithely sending them out in that matter, but it’s hardly improper. And in
those press releases, you may discover useful information.
Next, the opposing litigant may be a business or a businessman
involved in a particular kind of activity and those involved in that activity
may have a trade association. One of the purposes of trade associa-
tions is to issue literature about the trade. It’s all available to the public.
You are a member of the public. Get that literature. Just ask the trade
association for it. It will give you a picture of the trade, which will be
useful as background and it may also supply information that is specifi-
cally relevant to your lawsuit.
Next, especially if you work in the product liability field, pay careful
attention because this may prove to be a gold mine and most lawyers in
product liability work or otherwise don’t use it. If you’re in the product
liability field your lawsuit, by definition, involves a product that allegedly
miscarried in some way. More often than not, by which I mean more
than one time out of two, that product is the subject of a patent or
a patent application. Get it. Get the patent or the patent application.
Remember, the patent or the patent application contains the inventor’s

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claims for the product and those claims may turn out to be marvelous
admissions, helpful to you in your suit against the product, the inventor
of the product, the distributor of the product.
Item D. If opposing litigant is in a particular business and you can
find other people in that business, find those people and talk to them
simply about the gossip in the trade. Gossip about the trade in general,
gossip about your opposing litigant in particular. It’s only gossip, but
remember, this is discovery and it may lead to other things which will
prove to be admissible in evidence.
Next—this is something that lawyers who are not familiar with the
workings of the world of academia need to be reminded of. From time
to time I find myself in that world and let me remind you that there are
an enormous number of graduate students at universities scattered
all across the country. They are desperate for topics for theses. And
those topics sometimes are very arcane, abstruse, kind of out of the
way. And sometimes those topics touch directly upon issues in your
case. There are indices to unpublished academic theses. Every time a
thesis is presented for a master’s degree or a doctor’s degree at any
American university, that thesis will be added to the index. The librar-
ian at the general library at your state university library or your local
public library in a large city, will be able to show you how to use that
index. And, often enough, to make it worth the expenditure of an hour
that it takes to go through the index, you will discover that someone
somewhere has written a thesis on a topic that overlaps the issue in
your case. And that thesis can then be obtained for you by your librar-
ian friend on inter-library loan. You read the thesis and you may find it
to be a compendium of marvelous information about your lawsuit, the
issues presented in the lawsuit and the like.
Next—remember that newspapers and magazines, not always but
frequently, put out an index to themselves. Most of us are familiar with
the index to the New York Times, a basic tool of historical research. Many
other newspapers and magazines publish such an index. A large number
of newspapers and magazines do not publish such an index, but main-
tain it for internal use. And if you ask in a nice way, you will be given

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access to that index, which is maintained for internal use. And in that
index, you may find news items that otherwise would slip right by and
those news items may prove to be useful. Related to the use of indices,
remember that journalists are an enormous fund of information. Some
of it is little above the level of gossip, some of it is absolutely gold.
Remember that in large cities major newspapers assign reporters to
a particular beat for a lengthy period of time. A paper like The New York
Times, for example, has reporters or one reporter, at least, who spends
all of his or her time covering the advertising business, another reporter
who spends all of his or her time covering the automobile business,
and the like. If you can establish friendly relations with such a reporter,
that reporter may prove to be a wonderful source of information.
Next, remember that many trades have a specialized newspaper
or magazine—what in the outline I call the trade press. And the trade
press will print items that do not appear in The New York Times or the Wall
Street Journal—items of very specialized interest within that trade, but it
may be of more than specialized interest in your lawsuit. So go through
the trade press and see what you can discover.
Next, if your opponent is a firm of very substantial dimensions,
chances are it has an in-house publication—a newspaper or magazine
put out solely for employees of the firm. It’s solely for employees of the
firm in the sense that you can’t subscribe to it or buy it on a newsstand,
but if you ask for it, you may be given copies of it. There may be copies
of it on file at the Securities and Exchange Commission, along with 8-Ks
and 10-Ks. Do what you can to get access to the in-house magazine and
go through it. Once again, you may find useful information there.
I’ve mentioned the 8-Ks and the 10-Ks. I’ll expand that. Any corpora-
tion whose stock is publicly held is under a legal obligation to disseminate
all kinds of information to that public—annual reports, 8-Ks, 10-Ks, press
releases, and the like. Remember that all of those documents are public
records. You need only make your way to the nearest library maintained
by a regional office of the Securities and Exchange Commission. You ask
for the materials for the ABC Corporation and you are given it. And you
go through it and who knows what you’re going to find in there.

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In a product liability case or any other case involving a particular prod-

uct, I think it is essential that you buy the product and play with it until
you have become as adept at using it as you possibly can be. This is the
equivalent of examining with your own eyes the physical location of any
lawsuit which involves a physical location. If the product involves a par-
ticular child’s doll, buy such a doll and play with it. Take it apart, put it back
together. Just see what happens to it when you do play with it. Make
yourself just as familiar with it as its manufacturer is going to be.
Next, many of you know more about it than I do, but I know enough
to be aware that there are now enormous databases in the computer,
databases which you get access to simply for the asking and upon
paying a fee, of course. Those databases may prove to be a productive
source of information. We all know about WestLaw and Lexis data-
bases of legal materials. But, remember, there is Nexis. Essentially,
everything that’s happening in the world is in the computer and if you
ask the right questions, you’ll come up with the answers and you may
come up with things that you didn’t know and that you might not oth-
erwise have been able to find out about.
Now, remember the various reports that are filed with government
agencies. Many of those reports are not available to you because, by
statute, they are confidential. But other such reports are not confiden-
tial and if the opposing litigant has been under a legal duty to file such
reports, get hold of them.
The next item may be peculiar to someone with my background. Let
me indulge in the luxury of taking a couple of minutes to tell you what
I mean by buffs and the like. The outline says cultivate court clerks,
buffs and the like. I began as a law student and as a lawyer in New York
City and, while New York City is sui generis, absolutely unique, there’s
no place in the world like it, it has many of the characteristics of other
large cities. And so what I’m about to describe to you may well be true
of your city, even though it is not New York City.
New York City has a substantial population of sober, retired, respect-
able people who live on their Social Security checks. And those checks
are not very large, as you know. It will pay the rent and it will buy

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groceries, but there isn’t much left over for entertainment. These peo-
ple have discovered that the best entertainment in New York City and I
mean New York City, including Broadway and Lincoln Center and all the
rest of it—the best entertainment in New York City is available for noth-
ing. It is available in the courthouses of New York City. And what these
people do is assemble every morning when the courts are open in a
little park outside the Federal and State Courthouse in downtown Man-
hattan, for example, and they decide what trial to go watch that day. If
there is a particularly glamorous trial underway, they’ll go to that trial.
If there is no particularly glamorous trial, they will follow interesting
lawyers. And if there are no interesting lawyers around that day, they
will go to good judges. We call them in New York the “buffs,” and they
are invaluable people to be friends with because they’re in court every
day and they accumulate all kinds of information about what’s going on
in the courthouse. Do you want to know whether the lawyer oppos-
ing you in this case has ever had a similar case before and you can’t
find it out in the clerk’s office? Go ask the buffs. They will know. The
other side is calling as an expert Dr. Jones and you wonder whether
Dr. Jones has ever testified as an expert in this kind of case before and
you can’t find out in any other way, go ask the buffs. They will know.
You wonder whether this judge is inclined to sustain objections on the
ground of leading questions. You know, that’s a ruling that depends on
the judge’s basal metabolism. Let me take the judge’s basal metabo-
lism and I’ll tell you how he’s going to rule on a leading question objec-
tion. But the judge won’t let me take his basal metabolism. I don’t have
to—go talk to the buffs. They will know. And if you’re nice about it, they
will tell you how this judge is inclined to rule on matters of this kind. So
I regard that as discovery, informal discovery to be sure.
I suppose everybody in this audience has reached that level of
sophistication where you know about FOIA, the Freedom of Informa-
tion Act and its state analogues, and you will take advantage of it. And
I don’t suppose there’s any firm in the country that handles civil litiga-
tion that does not use FOIA. The Federal FOIA is Section 552 of Title 5
of the United States Code, the Freedom of Information Act. Subject to

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exceptions, governmental files are available to the public. And chances

are—by that I mean I suppose 7 or 8 times out of 10—there will be gov-
ernmental files directly bearing on the issues to be tried in your case.
Get hold of those files by making a FOIA request. Do it early because
the bureaucratic wheels turn kind of slowly and it takes a long time ’til
you get the information, but ultimately you will get the information and
you may find a treasure trove in those files. And, by the way, all you do
is pay the cost of Xeroxing. Ten cents a page and it’s yours. There’s no
fee beyond that.
Finally, on this checklist of loads of informal discovery, ladies and
gentlemen, is the use of credit reports and the like. It’s moderately
expensive to pull a Dun & Bradstreet or a profit report or something of
that kind. Remember, though, that your client may be a repository of
information about people in the community and the opposing litigant
may be a person in the community. In using a credit report or informa-
tion in your client’s file, you must be aware of the restrictions imposed
by the Fair Credit Reporting Act and similar statutes—statutes which
guarantee the privacy of people who are the subject1 of credit infor-
mation of one sort or another. The Houghton case, decided by the Third
Circuit a year and a half or so ago, holds in essence that when you use
credit information in connection with discovery in a lawsuit, that does
not raise issues under the Fair Credit Reporting Act. You are not sub-
ject to the restrictions of the Fair Credit Reporting Act. Well, that’s one
circuit and perhaps other circuits won’t follow it. In any event, act in a
dignified and professional, gentlemanly and civilized manner and, at a
minimum, you will not be subject to criticism and let’s move along.
Having spent as much time as we have on the informal discovery
devices, it’s only fair that we spend an equal or greater period of time
on the formal discovery devices, the devices given us by the Rules of
Civil Procedure for conducting discovery. Let’s talk about them. For
oral depositions, take a look at Rule 30 of the Federal Rules of Civil

1. Houghton v. New Jersey Manufacturers Insurance Co., 795 F.2d 1144 (3d Cir. 1986).

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Procedure and let me devote our precious time together to a consid-

eration of tactics and strategy and the kinds of purposes that a trial
lawyer will seek to achieve when he considers the question, “Should
a deposition be taken?”
In the outline, I raise the question, “Who should be deposed?” Now,
a litigating lawyer would say that the answer to that question is obvi-
ous—you depose everybody, everybody and his brother-in-law—and
then you’re certain to have deposed the few people whose depositions
you really need in this case. The trial lawyer would say no, at a mini-
mum, that’s too expensive. It also is going to take an awful lot of time.
You’re also going to tip your hand unduly and various other consider-
ations may leave you to carve out a program for taking depositions that
involves taking the deposition of many fewer people than are out there
as potential candidates.
Here are my rules of thumb for determining whose deposition should
be taken. First, always take the opposing party’s deposition, always.
That’s self-evident, I suppose. Second, if the person to be deposed
is a mere witness, a bystander, and you have every reason to believe
that that mere witness or bystander is friendly to your side, is rooting
for you, and that person is in reasonably good health, don’t take his
deposition. Why? You don’t need it. You already know that he’s on your
side. Remember, you interviewed him. You took a statement from him
as part of informal discovery. If you do take his deposition, you simply
tell the other side what he’s going to say, you tip your hand, and you
perpetuate his testimony. Since he’s in good health, there’s really not
much of a factor in perpetuating his testimony, that’s not something
to be concerned with. So mainly what you’ve done is tip your hand as
well as run up the bills, spend money needlessly, and the like. So I say
don’t take that person’s deposition.
Next, you’ve got a witness whom you have every reason to believe
is adverse to you, is against you for whatever reason, and that witness
is in bad health or advanced years. This may strike you as harsh, cynical,
or even comical, but I intend it to be taken in all seriousness because
that’s the spirit in which I give it to you. I would not take his deposition.

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I know he’s against me. So be it. In a general way I know what he’s
going to say. But if I take his deposition, I will have perpetuated his tes-
timony and since by definition he is in bad health or advanced years, I
don’t want to do that. If the other side is going to do it, let them do it.
Let them spend the money, not me.
Next, if you’ve got a witness who is adverse to you and who is in
good health and relatively young in years, take his deposition. You don’t
have to worry too much about perpetuating his testimony because
chances are he’s going to survive ’til the time of trial and now the
advantage tips in favor of knowing exactly what he’s going to say. Pin
him down so that you deal with it, but only with that at the time of
trial.
Next—and then this gets to be a little bit rough. It’s kind of close
to the bone. It touches the nerve. But civil litigation is frequently that
way. Of course, criminal litigation is almost always that way. Suppose
there’s a witness out there whom you have every reason to believe is
dishonest. The other side is going to call that witness. Take his deposi-
tion and take it early in the game, preferably before the depositions
of all of the other potential witnesses are taken. Do you see why? If
he is, indeed, the dishonest person that you think he is, if he under-
stands what other people have been saying in their depositions, he
will temper his testimony to accord with their version. But if you take
his deposition first, he has nothing against which to measure his own
testimony, he kind of gives it to you on the wing. He is flying blind and
I guarantee that the inconsistencies will be large in number and con-
siderable in extent—inconsistencies between his testimony and the
testimony you get from the other witnesses, all of whom are more or
less honest. But suppose this person, whom you have every reason to
believe is dishonest, is so situated that you must call him to the stand?
You wish you didn’t have to. You don’t want to sponsor his testimony
to the jury, but you have no choice. You’ve got to call him to the stand.
This may strike you as approaching even the cynical, but it’s true. If
you’re going to take that person’s deposition, take it at the end. Let
everybody else have been deposed so that this person has heard what

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their testimony is and he will temper his testimony to meet theirs. And
since, by definition, they are testifying essentially to the truth, they are
honest people, you will end up getting a more or less honest version
from this potentially dishonest witness.
Now, there are four or five rules of thumb for determining whose
deposition should be taken. But there are still factors to be worked
into the calculus before you can answer the question, let’s go ahead
with the deposition or let’s not go ahead with the deposition. There are
advantages and there are disadvantages to the taking of a deposition.
Let me tick off what seems to me to be the list of the six principal
advantages to the taking of a deposition.
First, and at least to my taste, to my way of thinking, this is prob-
ably the most important. When you take an oral deposition, you get
to observe the person being deposed—what in law school we called
demeanor. And I find that enormously important because it is a kind
of preview of the coming attraction that will play itself out when the
case is tried.
Next, an oral deposition is flexible, it is easy to follow things up. You
ask a question, you get an answer. That answer suggests other ques-
tions. You ask them right then and there.
Next, and here we begin to get a little bit subtle, I suppose. Remem-
ber my concern with tipping your hand, telling the other side some-
thing about what you know about the case that you’d rather not? If you
conduct an oral deposition it is easier than it is in connection with the
other discovery devices to conceal revealing questions. If you’ve got
a question that gives a great deal away, you conceal it or you do your
best to conceal it. You put it in with a lot of inconsequential questions.
You ask it in such a way so that you don’t flag its importance. You can’t
do that with any of the other discovery devices, but you can do it with
an oral deposition.
Next—I guess we’re up to number four. On an oral deposition, the
style, the tone, the substance of the questions can be adapted to the
witness. If the witness is a tough cookie who’s belligerent and who’s
against you, you can let him feel your steel at the deposition and he

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continues to feel it until the time of trial, so that he’s in a considerably

better temper when you get to the trial. On the other hand, if the wit-
ness is kind of hesitant, immature, perhaps lacking in emotional or
intellectual wherewithal, you can frame the question softly. Your tone
can be hospitable. You can adapt your style to the needs of the occa-
sion. You can’t do that with any of the other discovery devices.
Next—this is just an aspect of what I just said. With the oral deposi-
tion, the length can be adjusted. You strike gold right at the start, you
had planned to spend all day on this deposition, maybe the thing to do
is to stop it right then and there. You’ve spent an hour on it, but that
hour has been enormously productive, call it quits. Make a decision on
the spot to end the deposition. You can only do that with the oral depo-
sition. On the other hand, you’re taking the deposition of the chairman
of the board of the opposing company, a man who has risen to this
eminence for very good reason. He’s smart and he’s tough and he
doesn’t like you and your client. Take his deposition all day, you accom-
plish nothing. Take his deposition for five or six days in a row and by the
fifth or sixth day you are accomplishing something because fatigue is
working in your favor. So you can adjust the length in either direction.
And, finally, and again this may strike you as approaching the cynical,
but it’s important. In the oral deposition the participation of opposing
counsel is minimized. Opposing counsel is there and will play a part,
there’s no doubt about that. But opposing counsel does not answer the
questions. The witness answers the questions and that is an enormous
benefit. Draw the contrast—in case I forget to do it when we arrived at
the interrogatory—draw the contrast with the interrogatory. Who drafts
answers to interrogatories? Counsel drafts answers to interrogatories,
hence the possibilities for obfuscation, frustration, and delay are virtu-
ally infinite. But at the deposition it’s possible to accomplish something
because counsel can do only so much to obfuscate, frustrate, or delay.
Now, there are the advantages. Let me give you what, to my mind,
are the four principal disadvantages of the oral deposition and how you
balance them out will vary from case to case, of course. There’s no way
to say in advance how the balance ultimately will be stricken. First, and

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at least in my mind, maybe most important, the oral deposition is incred-

ibly expensive. It is expensive in the direct cost of what you have to pay
the stenographer and in the indirect cost of lawyer’s time, facilities, wit-
nesses’ time, and the rest. Second, an oral deposition is time consum-
ing. I don’t think I have ever heard of an oral deposition, even of the most
ordinary witness in the most straightforward kind of case, that took less
than half a day. That’s a lot of time. And the longest oral deposition I
know of—you’re not going to believe me, ladies and gentlemen, but it is
recorded in the Federal Reporters. The longest deposition I know of took
place in an antitrust case that was ultimately disposed of in the South-
ern District of New York. The plaintiff was deposed for nine-and-a-half
years. Nine-and-a-half years. Mmm hmm. And perhaps we’ll talk a little
bit about that when we get to discovery as a device for frustration and
delay. You will wonder what, in heaven’s name, they were asking him for
nine-and-a-half years. Remember, the scope of discovery is wide open—
anything that might lead to evidence. So, did you have a conversation
with X? Yes. When? Where? Was he wearing clothes? Well, of course he
was wearing clothes. Was he wearing a tie? Yeah, I guess so. Was it a
blue tie? I don’t remember. Let me try to help you. Was it a blue tie with
red dots? Was it a blue tie with yellow dots? You notice you can spend all
day on the tie and then tomorrow on the shirt. And before you know it,
it adds up to nine-and-a-half years and then the plaintiff died. Which I’m
sure is what the defendants wanted to accomplish from the beginning,
because at that point the case kind of went away. But that’s a story for
another occasion and perhaps not in circumstances so formal or august
as these. So, remember, a deposition is time consuming.
Third, a deposition by its nature preserves testimony. So that if
you take somebody’s deposition and that person dies or otherwise
becomes unavailable to testify at trial, the other side can put the tran-
script of that deposition into evidence. And that may hurt you. And if
you took the deposition, you, in fact, may have shot yourself in the
foot. You’re the one who injured yourself.
And, fourth, this is simply the other side of the coin of the first advan-
tage. You take a deposition of a witness who’s in your corner, you give

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the other side an opportunity to see that witness under fire. You give
the other side the advantage of observing the witness’s demeanor.
And I repeat that I think that that is a major advantage, therefore it is a
major disadvantage to give the other side that advantage.
All right, now we will assume that you’ve got a situation in which
you have considered these various factors, you have weighed them
just as carefully as you possibly can, and the balance is struck in favor
of taking the deposition. So be it. Let us turn now to the consideration
of technique—how to take a deposition. All right. Now, remember, we
assume you’re taking the deposition, not defending the deposition.
First and foremost, this is not just a clerical convenience that it’s num-
ber one, it is number one in importance. You must know your purpose
at every moment of the deposition. You must know exactly what you’re
trying to accomplish and that purpose may change from moment to
moment. But if I or somebody like me were to appear at your next
deposition and kind of stop the clock and tap you on the shoulder and
say, “Counselor, what are you trying to accomplish right now?” you
should be able to tell me. You should know what it is that you’re trying
to accomplish. And what you then do is adapt the means that you’re
going to use in view of the purpose that you seek to accomplish. Select
a means, calculate it to achieving that purpose. And in a while we’ll talk
about the way in which you actually couch questions in accordance
with the purpose that you seek to accomplish.
But second, under the general heading of preparation, you must
know the case. You can’t take depositions and only then figure out
what the case is all about, you’ve got to know pretty well what the case
is about because you can’t know what’s important at the deposition
unless you already know what the issues in this case are. And then,
finally, adapt your tone, your style, your pace, the substance, to what
it is you’re trying to accomplish to the personality of the witness and
to your feel of that particular moment. Some particular suggestions by
way of the technique of answering questions will be what we will talk
about in 10 or 15 minutes. But let’s move along and consider some
other matters that have to be considered right at the beginning.

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Starting the deposition is a challenge to craft insufficiently appreci-

ated by all too many lawyers. And, as a matter of fact, for the young-
ster—and remember, to be young or inexperienced is not a criticism,
that is a condition that all of us once were in. If you have yet to take
a deposition or have yet to take a large number of depositions, this
problem of beginning the deposition is a very considerable one. Let
me talk about some aspects of this problem. Now, obviously, the
United States consists of a lot of space. And no lawyer and certainly
not yours truly has taken a deposition in every part of the country.
But in every part of the country where I have taken a deposition, it
has always begun as follows. Whether I was deposing the defendant,
the plaintiff, or a third person, almost always opposing counsel would
begin by saying to me something like, “Mr. Younger, the usual stipula-
tions?” And I dare say that that is how depositions start in your neck
of the woods as well. Young lawyers and sometimes not-so-young
lawyers will unthinkingly reply yes or of course or certainly or some-
thing to that effect. That’s unthinking and, therefore, to be criticized.
It may be that it’s prudent to consent to the usual stipulations, but for
heaven’s sakes, think about it first.
Now, here are some things that you want to think about. To begin
with, what are the usual stipulations? Now, I’m glad to hear you
laugh, because I’m positive that if I were to ask three out of five
lawyers who blithely say, “Of course, the usual stipulations,” if I were
to say to them, “What are the usual stipulations?” they won’t know.
I’m sure that if I were to ask the lawyer who says, “Shall we have
the usual stipulations?” what are they, he won’t know. Try it the next
time you’re out there. When opposing counsel says, “Counselor, the
usual stipulations?” you can reply, “Well, probably, but first why don’t
you tick them off?” Suppose you’re on the receiving end of that? Your
opponent says to you, “Why don’t you mention the usual stipulations?”
you don’t know what they are. Shall I give you an easy way out? Turn
to the court reporter. Turn to the court reporter and say, “Perhaps you
would state the stipulations,” and the court reporter always knows
them, see. So it gets you out of this little problem gracefully.

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Now, let me just give you some of the considerations. I don’t know
what’s right in your case, obviously not. But this is what I mean when
I say don’t do it unthinkingly. Let me take just two of these consider-
ations. First, the laws provide that after the deposition is concluded,
the court reporter, the stenographer, will type up a transcript. The tran-
script is sent to the witness or the litigant who’s been deposed. The
witness or the litigant can review the transcript, can change any answer
he wants. You can fix grammatical errors or you can change answers
of substance. You can change yes to no or no to yes. You’re supposed
to attach a statement explaining why you’ve made those changes and
then you sign it and swear to it before a notary public, even though, of
course, you were under oath when you answered the questions. And
the deposition then becomes the corrected, signed transcript. Usual
stipulation, at least in the areas where I’ve taken depositions, is that
the signing and swearing and filing are waived. I don’t care about filing,
but does it really make sense to waive the signing of it? Now do you
see, if you don’t have it signed, your cross-examination at trial is going
to be something like, “Do you remember coming to my office? Now
it was four years ago, but do you remember I was there, your lawyer
was there. Do you remember the court reporter was there? Do you
remember the court reporter asked you to raise your right hand and
swear to tell the truth and you took that oath?”
“Yes.”
“And then you were asked this question, you gave this answer.”
And it’s pretty powerful, but it’s not a bomb. That’s what you’re going
to have to do if you have waived the signing. If you don’t waive the
signing, what you will have at trial is a document that the jury can look
at and it’s signed and sworn to right on the document by the witness.
And now, assuming that this is consistent with your style, you can
say something like, “Mr. Witness, after you came to my office four
years ago, remember about a month later you received a copy of the
transcript, what the court reporter typed up from the court reporter’s
notes?”
“Yes.”

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“And you took that to a notary public, didn’t you?”

“Yes.”
“And you raised your right hand before the notary public, just the
way you raised your right hand before the court reporter.”
“Yes.”
“And you swore to the notary public that you’d tell the truth, the
whole truth and nothing but the truth, didn’t you?”
“Yes.”
“Just the way you’d sworn to the court reporter?”
“Yes.”
“Just the way you swore to this jury yesterday morning that you
would tell the truth, the whole truth and nothing but the truth, isn’t that
right?”
“Yes.”
“And then did you sign it and is that your signature?”
And you see, the thing becomes much bigger. You’ve got it, not
speaking precisely, but speaking loosely, you’ve got it in writing and
in writing gives it a greater impact. On the other hand, if everybody
agrees to waive the signing, the person being deposed does not have
an opportunity to change an answer. You know, you have to weigh
these factors.
Second, anybody who’s been involved in the taking of depositions
knows that evidentiary objections can get to be very complicated. They
get to be very complicated because of this problem of the relationship
between what you do at the deposition and what happens at trial. Now,
do you recall what the Federal Rules of Civil Procedure say about evi-
dentiary objections? It says that you don’t have to make an objection.
It’s preserved for the time of trial. The witness can answer the question,
you don’t have to object to the question. You can object to it at the time
of trial when the deposition is read into evidence except as to those evi-
dentiary problems that could be obviated—that’s the phrase—that could
be obviated were objection to be made at the deposition. What in heav-
en’s name does that mean, “could be obviated”? As a matter of English
vocabulary, it means where the problem could be solved, where the

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objection could be somehow finessed, where the difficultly that object-

ing counsel is raising could be resolved. And I don’t know of any problem
in the law of evidence that can’t be resolved if you know how to do it.
So that if you operate under the rules as they stand, with no preliminary
stipulation whatsoever, there is a good argument that any objection that
was not made at the time of the deposition has, in fact, been waived
because it could have been obviated at the time of the deposition, so
that within the terms of the rules themselves there has been a waiver.
If you are pretty good at evidence and your opponent is not so good at
evidence, maybe that’s the way to do it. Don’t stipulate.
If you do stipulate, what do you stipulate to? The usual stipulation
on evidence is that all objections, whether or not they could be obvi-
ated at the deposition, are reserved to the time of trial. You don’t have
to make any objection whatsoever, which takes a load off the mind
of opposing counsel if opposing counsel is nervous about evidentiary
objections. And maybe you don’t want to relieve him of that burden of
worry. Maybe you want him to be concerned about making objections.
So these are some of the things that you think about.
Next, especially if you’re young and are taking your first or any depo-
sition up to about the tenth or the fifteenth, carefully work out in your
mind and maybe even have on paper in front of you what you will say
at the outset. What I call in the outline a preliminary statement. Have
a preliminary statement prepared. It doesn’t require any enormous
brilliance. But especially if you’re young and are obviously young, you
know—clearly you’re under the age of 40, that’s young as trial lawyers
go—you want the witness to get the impression that you know your
stuff. And you convey that impression right at the beginning. You know,
first impressions are the strongest impressions. Don’t fumble around
at the start. And you will not fumble around if you have prepared some-
thing to get you going.
Now, let me give you some possibilities. By no means do I sug-
gest that these are the only possibilities and I don’t even want to be
understood as saying that these are the best. But they are possibilities
and maybe you can improve upon them. Maybe you want to begin

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with a line of questions, something as follows, right? The witness has

now been sworn, so here we go from the top. “Mr. Witness, do you
understand that you are now under oath?” That’s kind of a formidable
question for someone who’s not a lawyer and you’re in there with that
formidable impact right at the start. “Do you understand that you’re
now under oath? Do you understand what it means to be under oath?
Do you understand that it means that you are under a moral and a legal
obligation to do your best to tell the truth and that if you don’t, there
may well be trouble?”
Don’t stop there, especially if you are young and the witness
is old or older than you, especially if the witness is the chairman of
the board of the opposing corporation, or something of that kind and
you want that witness to feel your elbows and knees. After a line
of questions about do you understand the oath and everything that
goes through the oath, try this one. I guarantee it’s going to annoy
the hell out of them, right—and be ready for it. Call him Mr. Witness.
I like to do that. Mr. Witness . . . then you depersonalize it. “Mr. Witness,
is there anything that might prevent you from testifying truthfully this
morning?” And he’s going to lean back and look at you and say, “What
do you mean?” And you might say, “Fair enough. Have you had anything
to drink this morning? Have you had any drug of any kind this morn-
ing? Any Valium? Any tranquilizer? Any analgesic? Anything that might
make you drowsy?” and so forth. And then you play it by ear. I mean, if
you really want to drive him up the wall, you know, “Have you snorted
cocaine this morning?” “No.” “Well, when’s the last time you did?” And,
of course, at that point it all gets out of control, but that’s what you
wanted to happen. Remember, you do it deliberately.
Possibly continuing with the following or perhaps using the follow-
ing as your preliminary statement, “Mr. Witness, I want you to listen
carefully to my questions and I want you to answer my questions only
if you have heard the question and understand it perfectly. If you didn’t
hear me, say so, don’t answer the question. And if you don’t under-
stand the question, say so, don’t answer it. All right, all right? Right.”
But now wrap it up with something like this because this is going to put

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him under pressure, this is going to keep him nervous. So that, “Mr.
Witness, if you answer my question, everybody in the room is going to
take it for granted that you heard it and you understood it.” You’ve also
done a little bit to minimize the possibility of changing answers on the
ground of I didn’t hear it or didn’t understand it. He still can do it, can
make the change, but it’s more embarrassing. Other possibilities may
occur to you. Let’s just leave it at that in view of the passage of time.
Now let’s talk a little bit about the actual conduct of the deposition.
Remember, I said you must always know what it is that you are trying
to accomplish. Let me try to make that clear to you by pointing out that
the way in which you conduct the deposition will vary from moment to
moment, from hour to hour, from day to day, depending upon your pur-
pose. For example, suppose what you want to do is find out about the
case. This is classic discovery. You want to find out what this witness
can tell you about the transaction that constitutes the subject matter
of the lawsuit. I think that the best way to do that is to ask the open-
ended kind of question that you would never ask on cross-examination
at a trial. The question that is on the order of, “What happened? What
did you see? What did you do?” And you draw the witness out. You
will frequently deliberately adopt a kind of warm and friendly manner
to get the witness to ramble. Now, rambling is the kiss of death in the
courtroom in front of the jury, but at a deposition session, it may be
the best thing that can happen. Get the witness to ramble and, once
the witness is rambling, don’t interrupt. That’s where you’re going to
strike gold. Don’t cut it off. Let the witness keep talking and you listen.
You listen with a concentration unknown to our colleagues in other
branches of the profession and you’re listening for that key bit of testi-
mony or what will become the key bit of testimony that is embedded
in this long and rambling answer.
Having completed his long ramble, the witness will now be taken
back by you with a different purpose—not to find out what the witness
can tell you about the case, but now your purpose may be to freeze
it or to marshal it for use at the trial so that at trial it can be read to
the jury in a crisp and forthright fashion. Let me give you an example,

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something like this. Assume you’ve got a two-car collision and it takes
place at an intersection where one of the cars had no traffic control
and the other car had a stop sign. Right? You represent the car that had
no traffic control. You are deposing the opposing litigant who had the
stop sign. What I would do was say, “Well, now, there was an accident,
right? Everybody knows there was an accident. Yeah. A terrible thing.”
You know, try to get them relaxed and friendly. “So what happened?
You know, tell me what happened?” Get him to ramble and, as he
rambles on, he may say, along with lots of other things that are actually
irrelevant, that he came to the stop sign and he stopped and he looked
and he didn’t see anything, so he kept going and then, bang, there was
the collision. Now, that’s embedded, as I say, in a lot of connective
tissue that’s unimportant. Don’t stop him, let him go to the end. Now,
when he goes to the end, go back.
And it’s something like, “Let me understand you. You’ve told us that
you came to the intersection and saw the stop sign.”
“Yes.”
“You stopped for the stop sign.”
“Yes.”
“And while you stopped, you looked to the right.”
“Yes.”
“And you looked to the left.”
“Yes.”
“You saw nothing on the right.”
“Right.”
“You saw nothing on the left.”
“Correct.”
“And then you proceeded.”
“Yes.”
“And maybe a half a second later there was the collision with my
client’s car.”
“Yes.”
You’ve probably won the case on summary judgment right there.
Because there will be appellate decisions in your jurisdiction holding that

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one of the obligations of a reasonably careful motorist is not only to look

but to see what is there to be seen. And, obviously, your client’s car
was there to be seen, otherwise there couldn’t have been a collision.
And you now have it in that very concise form that will give it its impact
when you read it to the jury or when you quote it to the judge in support
of a motion for summary judgment. And observe that the difference is in
your objective. He rambles because you invite him to ramble when your
objective is to find out what he knows. But when your objective is to pin
it down and to get it in such a form that you can use it efficiently at the
trial or in connection with summary judgment, you’re going to ask those
leading questions and just have him answer it, “yes, yes, yes.”
As a kind of footnote to this, no representation from me as to
whether if you’re challenged on this a judge will allow it, but let me tell
you where the suggestion comes from. A very able and well-known
federal judge who sits in Los Angeles named William Matthew Byrne,
Jr., just mentioned to me within the year that he will allow lawyers to
depose a given witness twice. Once they ask open-ended questions.
Just have the witness ramble. You end up with 120 pages of ramble of
which 119 are absolutely worthless. But now you take the transcript and
you examine it with a magnifying glass to figure out which of the pages
are worthless and which are the one or two that are valuable. Now you
go back and you take his deposition a second time. Two pages worth,
with each question carefully formulated simply to put the spotlight on
the fact that the witness can tell you that’s important in the case. So
that the first deposition is entirely exploratory, the second deposition is
entirely for the purpose of marshaling the evidence for use at the trial.
Suppose you’re taking the deposition of someone whose age or con-
dition of health is such as to make it likely that he or she will not survive
to the time of trial. Now you’re perpetuating the testimony, you’re prob-
ably going to have to read it to the jury, and you ought to conduct that
deposition as if you were in front of the jury. There is an aspect of taking
a deposition which I think warrants a somewhat more extended con-
sideration and it’s this. You are taking the deposition of someone who
is not in your corner. This is an unfriendly witness. I’m not suggesting a

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dishonest witness, but I do have in mind the realities of human nature.

You want to pin that witness down. You want to establish what it is the
witness can say. Granted, it is adverse to your position in the lawsuit, but
you want to know that this is it, it can’t change, and it’s not going to get
any worse between now and the time of trial.
Technically, do you see what your problem is? Your problem is the
problem of exhausting the witness’s recollection. And there is a tech-
nique to doing it and let me run through that technique. Obviously,
these are not the exact words in which you have to put questions to
the witness, but it must add up to this kind of thing. Suppose the wit-
ness has testified to a conversation. Even if the witness appears to
have given you the entire conversation and the sequence of question-
ing with the following subsequence, the purpose of which is to exhaust
the witness’s recollection, ask, “Is that the entire conversation?” And
keep at it until you get a yes answer. If you haven’t already asked it,
“Who else was present?” If you haven’t already asked it, “Were any
notes or other documents available to you to help you to remember
this conversation?”
Next, don’t forget this one. It’s perfectly proper so long as you do
it in the right way. “Now, before coming to this deposition, you dis-
cussed the case with your lawyer, didn’t you? Just tell me yes or no.”
And, of course, the answer is going to be yes. “Now, I don’t want to
know anything about what you and your lawyer said to each other,”
attorney-client privilege, et cetera, et cetera, “but did you discuss with
your lawyer the conversation that you’ve now told me about?” And
keep at it ’til you get a yes answer. And you see what you’ve done,
you’ve closed that door. He can’t later on say, “Well, I remember more
because I talked with my lawyer.” He’s already talked with his lawyer.
And then always end up with the kind of blunderbuss question, “Is
there anything that might help you to remember anything more about
this conversation?” He’s going to say no and you’ve closed every pos-
sible door at this stage of the game.
Now, fairly quickly, let me run through a fair number of items dealing
with the conduct of the deposition. And I’m just running through them

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in a kind of miscellaneous order. Some of them are fairly important,

some of them are not so important. Right? First, do not act as if you’re
in front of the jury. Remember, you’re not in front of the jury. If you
begin to act in the melodramatic fashion that some lawyers, I think,
foolishly permit to themselves when they’re in front of a jury, it will
work against your interests at the deposition.
Next, if the witness is at all forthcoming, I think the best manner for
you to adopt is a warm and friendly one. Simply invite the witness to
tell you more and you do that by your manner.
Next, this is worth doing simply to remind the witness that you
really know your stuff and that you are a formidable customer. Every
time there is a recess or an adjournment—you break for coffee in the
morning, you go to lunch, or whatever—when you resume the deposi-
tion, the first question after you resume it should be, “Now, Mr. Wit-
ness, over the luncheon recess, did you discuss your testimony with
anyone?” And it always takes them aback. And the answer may be yes.
“With whom did you discuss it?” “My lawyer.” Fine. On we go. Obvi-
ously, you don’t ask about the content of a conversation, just establish
that there was a conversation.
Next, for the same reason, if the witness consults with counsel, you
know, Brendan Sullivan/Oliver North style, whispering in his ear, note
it on the record. And it accomplishes only a psychological purpose.
It establishes your presence in that room. Obviously, counsel has a
perfect right to whisper in his client’s ear, there’s nothing you can do
about it. But note it for the record and, after a while, counsel starts to
get nervous about it.
Next, in a case such as a typical contemporary commercial case where
there are lots and lots of documents, the first deposition might well be
taken of the office manager or someone like the office manager and the
purpose of the deposition is to find out how documents are prepared
and filed. Just get the office routine down. And that two-hour deposition
may save you an awful lot of fumbling around later in the trial.
Next, on the same principle that you always go to visit the physical
location, if you’re deposing the plaintiff in a personal injury case, so

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long as it’s seemly and will not cause hysteria, ask to look at the inju-
ries yourself. You’re not a doctor and you’re not going to poke them.
Ask to see the scar or whatever it may be and then just make it part of
your preparation. You now know what it looks like because you can bet
your bottom dollar that the jury is going to get to see that scar at the
time of the trial. So you see it, too. It’s part of the deposition.
Next, this seems silly, but I have run into cases in which, after a two-
day deposition, the witness did not know who is the person asking the
questions. I don’t mean that the witness has to know your name, but
he’d better know who you are functionally. And so you might consider
introducing yourself on the record. “Mr. Witness, my name is Younger.
I am a lawyer here in town and in this case, the client I speak for is the
ABC Corporation. Understood?” Understood. He now knows who you
are. Do not take it for granted that without that kind of identification he
will know who you are.
Next, where I am taking the deposition, after whatever other pre-
liminaries I’m going to do, I will identify or have the witness identify
every person in the room so that it will go something like, “Now, Mr.
Witness, there’s a gentleman seated to your right. Tell us who that is.”
And you know who that is. “Please just tell us who that is so that we
have it on the record.” That always scares them a little bit. “Well, that’s
William Smith, that’s my lawyer.” “And who is that sitting next to Mr.
Smith?” And so on and so on until everybody has been identified.
Next, where the witness being deposed has information on more
than one topic, I think it is almost always wise to mix up the questions.
Do not pursue one topic to a conclusion, then the next, and then the
next. That’s too easy for the witness. You want to keep the witness off
balance. You want to keep the witness in a state of moderate anxiety.
And the way to do it is to mix the questions up. And here is a handy
way to keep your notes so as to make it easy. Suppose you’re going
to depose this witness on three different topics. Prepare an outline of
each topic. Each of those outlines is on a separate sheet or sheets of
yellow paper. You have those sheets in front of you. You can shuffle
them in any way you want. You’re now asking questions, working off

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the outline on sheet two. After a half an hour, put a little mark so you
remember where you stopped, and simply go to the top of sheet one
and begin there. Put a little mark when you quit sheet one and now go
to sheet three and start at the top. Now to back to sheet two and pick
up where the check mark reminds you you left off, and so on. And this
simple shuffling of the yellow pages that we’re all familiar with will per-
mit you to keep track of what you’re doing, but will keep the witness in
that desirable state of being somewhat off balance.
Next, watch for the non-verbal response. Anybody who’s tried cases
has run into that. After a while the witness gets tired or gets nervous
and starts to respond this way, if I may have your attention for just a
moment. “Now, Mr. Witness, did you then go home?” That’s what you
get. And there’s nothing on the record, assuming it’s not a videotaped
deposition. Be alert to that and you be the one to pick it up. Say, “Mr.
Witness, the nod of the head will not appear in the stenographic tran-
script. Will you say it in a word?” And the witness kind of gets the feel-
ing that you are crowding him a little bit, and that’s exactly the feeling
that you want him to have.
Next, be alert to the ambiguous answer. And, you know, the ambig-
uous answer is easy. That is, it is easy to elicit when we, the lawyers,
are nervous and are asking ambiguous or syntactically complicated
questions. And when we’re nervous we ask questions of that kind
because we don’t have the clarity of mind and the composure it takes
to put a question directly, something like this: “You then went outside,
did you not?” The “did you not” just makes it ambiguous. When he
says yes, what does he mean—I did not or I did? It really is hard to tell.
And the “did you not” is a nervous manifestation on the lawyer’s part,
I assure you. In any event, be alert to it and where you get that kind of
ambiguous answer, clear it up at once by turning the question into an
unambiguous question. Remember that the virtue of the oral definition
is flexibility. You can follow up all kinds of things. If there’s something
to be followed up, follow it up.
Next, this verges on rough stuff, but you’ve got to be ready for it.
Watch for the signs that show that the witness is being signaled by

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somebody in the room, typically his lawyer. Now, I’m glad you laugh.
Has it ever happened? It has happened to me. And, for heaven’s sakes, if
it’s going to happen to you, don’t be the victim of it. Do something about
it. And typically all you have to do is say, “Now, will you please keep your
eyes on me when you answer the question? Don’t look at Mr. Smith,
your lawyer.” At that point, Mr. Smith, of course, says, “I take offense at
the suggestion that I have been signaling answers,” et cetera, et cetera.
And you say something like, “I make no such suggestion, I simply asked
the witness to keep his eyes on me, not you.” And on we go.
Do not let the witness argue with you. Do not let the witness ask
you questions. And after a while you’ll get to be pretty good at this.
You turn the witness off, “Mr. Witness, I’m not here to answer ques-
tions,” or “Mr. Witness, it is my job to ask the questions and your job to
answer them,” something of that kind. And you’ll cut it short.
Next, I think that it is always to your advantage to insist upon the
proper decorum. Call witnesses by last names with mister, miss, mis-
sus, whatever may be appropriate, and insist that you be called by last
name with whatever title is appropriate.
Next, do not allow anything to be expunged from the record. A good
court reporter will not allow that. Now, you can have a lawyer carry
on and say, “I move to strike that from the record.” Yeah, and that’s
what the record shows, “I move to strike it from the record.” But if a
lawyer says to the court reporter, “Physically expunge the last answer,”
don’t let it happen. And if the lawyers are not in agreement, the court
reporter will not expunge it. It will stand the way it is and don’t let the
record be tampered with in that manner.
Next, let me give you a checklist within a checklist. When an event
is referred to in a deposition, I suggest questions as follows. I’m not
going to give you the exact questions, not the wording of the ques-
tions, but the topics. You want to know first, when; second, where;
third, who was present; fourth, how did it all happen; next, does any-
body else know about it; next, are there photographs; and finally, are
there any other notes of any sort? Where what is referred to is a con-
versation, here is a mini-checklist. When, where, who was present,

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was it recorded, were notes taken, and only then, what was the con-
versation, what did people say? A third mini-checklist with respect to
a document. You want to know first, when was it prepared; next, by
whom; next, are there underlying notes or earlier drafts; next, what
is the location of the original of this document; next, what was the
distribution of the document, who received copies; next, is the docu-
ment complete, is this the entire document? And I’ll give you a hint.
Invariably, you will have been shown a Xerox copy. Look at the upper
left-hand corner. If a staple has been removed, it leaves two dots that
always show up very clearly on the Xerox machine. If you see those
two dots, bring it to the witness’s attention. This document in its original
form had something stapled to it. What was the something? Because
the document is not complete without the attachment. And only after
you have gone through all of that, explain the document—what is its
significance, what does it do.
And finally, on this checklist—it doesn’t happen too often, but it hap-
pens. It’s happened to me in my work as a lawyer, such as it is, more
than once—if anything out of the ordinary occurs at the deposition,
make a little statement so that the record shows that it happened. If a
witness cries, show that. If a witness has some violent episode, show
it. Just make a little statement, you know, the witness just . . . this
actually happened to me. The witness just picked up the pack of ciga-
rettes that he’s had in front of him for the past two hours and threw
it at me. He just reached his limit and over it went. As an aspect of
this, remembering that there are some lawyers whose stock in trade
is to misbehave, if you get involved in a kind of cat fight with opposing
counsel, make sure it’s on the record. Make sure it’s on the record and
I give you that advice under the assumption that if there is going to
be a cat fight, you’re the party in the right or more nearly in the right
and opposing counsel is the party most nearly in the wrong. On that
score, my favorite example is the transcript of the deposition I once
saw. The deposition took place in New York City and, I’ll grant you, in
New York City things may get to be a little bit more extreme. The depo-
sition begins, line one, page one, with one of the lawyers saying to the

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other, “What did you call me?” That’s the beginning of the deposition.
And he then tells him what he called him and it would have been well
to have that on the record to begin with. I think the court reporter just
decided to stay out of this until he had to get involved and then he was
involved, so much simply because of the constraints of time, ladies
and gentlemen, for taking a deposition.
The other side of that particular coin is defending a deposition. More
specifically, preparing your client or witness for the taking of the client’s
or the witness’s deposition. Let me talk to the extent that time will allow
about defending a deposition. The most important thing to get across to
your client, and by client I include a witness who is friendly to your side,
but is technically a disinterested person. The most important thing to get
across to the client, at least in my experience, is the following. And you
don’t have to get it across in these words, but this is the substance of it:
“It is not your job at the deposition to persuade opposing counsel that
he has no case. Opposing counsel cannot be persuaded to go away. It is
for the jury or the judge to tell opposing counsel that opposing counsel
has no case. So don’t try to argue, don’t try to persuade opposing coun-
sel, don’t try to talk him into seeing things your way. Your responsibility
is really just one thing, though it has many parts. Your responsibility is to
listen to the question, be sure you’ve heard it, be sure you understand it,
and when you have heard it and understood it, answer it with the truth.
And the truth in a trial, in a deposition no less than in a courtroom, means
what you, yourself, know. “You’ve got to hammer that into the witness.”
It doesn’t mean what you believe to be true. In ordinary parlance, sincer-
ity equals truth. If you believe it, it’s true. Not in a courtroom. It is true
only if you know it and you know it because you saw it, heard it, smelled
it, touched it or tasted it. That somebody else told it to you, that you have
figured it out—that doesn’t count, you don’t know it. You know it only if
you, yourself perceived it. And if you didn’t perceive it, your answer is, ‘I
don’t know,’ because that is a truthful answer.
“If you once knew it, but you don’t remember it, don’t guess because
then you’re not telling the truth. The answer is, ‘I don’t remember,’
because that is the truth.”

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And you’re going to have to rehearse and rehearse and rehearse,

because it takes an awful lot of browbeating before your typical client
understands those important matters.
Next, what is there to say about protecting your expert in the con-
text of an oral deposition? Well, there’s a great deal—let me hit the
highlights. First, we understand that under the Federal Rules of Civil
Procedure and their equivalent in many states, the only discovery that
is available of right with respect to your expert is under Rule 26(b)(4).
And it’s the identity of the expert. It is his background, credentials, if
you will, and a statement of the substance of his testimony. Beyond
that, a deposition is available only upon court order or upon consent.
I put it to you that in some cases consent is the shrewdest thing to
do. Remember, I’m talking about the other side taking your expert’s
deposition. Why should you consent? Because the experience of hav-
ing his deposition taken will be enormously valuable to your expert. It
is a kind of dry run for the trial. And where your expert does not have a
vast amount of courtroom experience, maybe it is a good idea to give
him that experience in the guise of a deposition.
We said that because of the utility of the experience of being under
fire for your expert, sometimes you want to give serious consideration
to the possibility of consenting to the deposition of your expert. On the
other side of the ledger, remember that as your expert testifies at the
deposition, you are tipping your hand to an extraordinary degree. Your
expert’s views of the matter, the way in which he analyzes the issues, et
cetera, will be laid before opposing counsel and, hence, if nothing else,
the element of surprise will be out of the case. But you conceivably may
conclude that the element of surprise is unimportant and that the pos-
sibility of a favorable settlement will be enhanced if opposing counsel is
aware of the strength of your expert’s opinion. In that situation, it may be
that the shrewd thing to do is to encourage your expert to volunteer, to
go beyond the question that is asked at the deposition, even though nor-
mally you tell a witness never volunteer anything, just answer the ques-
tion that is asked. But you want your expert to go beyond the question
that is asked simply so that the full strength of the expert’s presentation

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is made apparent to opposing counsel, hence, enhancing the likelihood

of a favorable settlement.
Next, with respect to experts, if the deposition is being conducted not
on your consent, but on the basis of a judge’s order, remember that the
order may contain limitations or conditions. And if there are limitations
or conditions in the order authorizing the deposition, insist upon strict
compliance with those limitations or conditions. Do not waive them.
Next, especially dangerous and, hence, an especially important booby
trap for you to be aware of when you prepare the expert for deposition.
While some qualifications may be out there in the cases, the follow-
ing is an accurate enough statement for the purposes of a trial lawyer.
Anything you show your expert to help get him ready for this deposition
will be disclosable to counsel for the other side. All counsel for the other
side has to say to your expert is, “Doctor, in the course of getting ready
to give this deposition, did Mr. Younger show you certain documents?”
“Yes.” “What documents did he show you?” “Well, he showed me doc-
uments A, B, and C.” “Mr. Younger, may I see them?”
Give it a more realistic air. The expert says, “Well, Mr. Younger
showed me a looseleaf notebook in which he had organized what he
thinks are the most important documents in this case with blue liner
indicating the key language.” Counsel: “Mr. Younger, may I have that
notebook?” And the cases teach that counsel is entitled to the note-
book. Listen, be very careful what you show the expert in the course
of getting the expert ready to give his deposition. Or, for the matter
of fact, in the course of getting the expert ready to testify at trial. The
same thing can happen at trial.
Here’s the rule to be aware of. Anything you show the expert, assume
you’re going to have to show opposing counsel. So if you do show it to
the expert, make sure that you will not be embarrassed or disadvantaged
by being obliged to show it to opposing counsel. If there’s something
you don’t want to show to opposing counsel, such as your personal trial
notebook, such as your selection of the key documents with underlining
as to what is the important language, don’t show it to the expert. Maybe
you read it to him. I don’t know, maybe you tell him about it. You do

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something to give him the benefit of it, but don’t show it to him because
that’s going to make it disclosable to the other side.
And, finally, I’ll mention this simply in summary form. When, as is
not uncommon, the deposition of the expert is being videotaped, be
sure that you have gone over with your expert the importance of the
acting part of it. It’s going to be on videotape. People are going to see
you. Keep smirks to a minimum. Do not giggle. Do not do anything
unpleasant with your body. In short, your demeanor should be as pre-
sentable and likable as possible and remember that the movies are
different from the legitimate theater. It looks different on the screen
and it may be that you’re going to have to rehearse and rehearse and
rehearse, letting your expert see himself on the video monitor, so that
he understands how he must behave when the deposition is actually
taken. I’ll talk a little bit more about those matters when we get to a
checklist of things to discuss with your client—things that apply to the
client, to the expert, to anybody.
But let us turn now to what I call protecting the CEO, the chief exec-
utive officer—protecting the businessman who is one who occupies a
high position with the firm that you are representing. And the reason
we’ve got to talk about it specially is that it is a well-known tactic for
the other side to demand to take the deposition of the chairman of the
board because the chairman of the board has better things to do than
sit here answering questions about things, in fact, he knows nothing
of. You know, the lady slipped and fell at the supermarket. She broke
her hip. That’s a terrible thing and we’re going to have to pay her a lot
of damages. But the chairman of the board does not sweep up the let-
tuce leaves. He doesn’t know about this matter. Still and all, you put the
chairman of the board in the witness seat and you keep him there for a
couple of days and before long he’s ready to settle the case at any cost
because he wants to get out of the deposition room. This was a tactic
that was so common and so oppressive that it became a scandal in the
administration of justice.
And not too many years ago the Federal Rules of Civil Procedure
were amended so as to provide you with a device the purpose of which

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is expressly to permit you to protect the chief executive officer or the

high-level businessman. You will find it in Federal Rule 26(b)(1). It is a
special provision for a special kind of protective order. Now, you can
read it for yourself as well as I can read it to you, so let me paraphrase
and give you some idea of how you use it. You will invoke 26(b)(1) by
making a motion asking that a deposition be canceled or limited on the
ground that the person being deposed is not the person who has per-
sonal knowledge. That his deposition is being taken primarily for pur-
poses of frustration and oppression. And you can make that argument
because the legislative history makes it crystal clear that the purpose
of the enactors in enacting 26(b)(1) was to permit you to protect your
CEO or other high-placed businessman.
As a supplement to 26(b)(1), be aware of something that’s not quite
as new as 26(b)(1), but is relatively new and may post-date the time
in law school of most of you in the audience and that is 26(f). You
make not a motion for a protective order, but you make a motion for
a discovery conference. If you make the motion, you are entitled to
the conference. It gets you before the judge and you can then tell the
judge what’s being done that you regard as unfair, oppressive, frustrat-
ing, and improper use of discovery or the like, and the judge will make
whatever regulatory order common sense and justice may require.
Now, let’s proceed now to talk about preparing your client and also
your expert or your chief executive officer for deposition—a kind of
checklist of things that you will discuss with your client.
All right. I’m going to move fairly quickly and I’m going to leave out
some of the detail, confident that you understand that detail quite as
well as I do and there’s no need for me to recite it to you. First, make
sure that the . . . I’m going to say the client, meaning the expert, the
client or the witness who is allied with you. Make sure that that client
is aware of the purpose and nature of a deposition. Remember that the
client is not a lawyer. This is foreign territory to the client. Be sure that
the client understands that the other side is finding out about the case,
that the other side is pinning us down, and the like. If I may repeat
myself, make sure that the client understands that it’s pointless to try

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to persuade opposing counsel to go away. That’s not going to happen.

That’s not the office or purpose of a deposition.
Next, make sure that the client understands the importance of the
deposition—that whatever is said becomes a permanent part of the
record of this case and can be used against us at trial. Hence, the impor-
tance of listening and being sure that you understand and of responding
to each question with the truth, meaning what you, yourself, know.
Next, demeanor is important. Make sure the client knows that. And,
to the extent necessary, discuss it with the client and even rehearse it.
The other side is going to see you in action. Make sure that the other
side sees you at your best. Dress properly. Minimal jewelry. Don’t
chew gum. Don’t smoke during the deposition. And, of course, you
put this just as delicately as you can—nothing to drink for 24 hours
before. No medicine of any kind that morning and if you have to take
medicine, tell me about it first—and so forth and so on.
Next, this is a sort of peculiar one, but you’ve got to watch for it.
People have very strange streaks of vanity. If your client wears glasses,
make sure that he wears glasses at the deposition. Don’t let him sit
there half-blind. And if he uses a hearing aid normally make sure he has
the hearing aid in and on at the time of the deposition. Don’t let vanity
take over, that the client wants to appear youthful with uncorrected
20/20 vision, no hearing aid, and the like. He will be at a disadvantage if
he is accustomed to those aids to perception, so he should be wearing
them at the deposition.
Next, do not hesitate to ask for a break. If you just want to go out
for a cigarette, remember, no smoking during the deposition. If you
want to get a glass of water, if you want to go to the bathroom, or
something of that kind, simply say that you want to take a recess and
a recess will be taken.
Next, this is dirty pool. I think that these are dirty tactics, but I’ve
run into these tactics and maybe you have, too. Your client is a non-
smoker. Any nonsmoker is aware that if somebody blows smoke at
you—cigarette or cigar smoke or the like—it can be sickening. Watch
out for opposing counsel laying down a smoke screen at your client to

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put him under pressure, to get him feeling sick to his stomach, or at
least to get him feeling uneasy. I’m a nonsmoker and I get very uneasy
sitting in an airplane when the people who are smoking have their stuff
circulated around. I’d be very uncomfortable doing something as dif-
ficult as answering questions at a deposition and, at the same time,
having smoke blown at me. If you see that that’s happening, stop it.
And if opposing counsel will not stop it, my advice is get up and walk
out because the judge is going to be on your side.
Next, in whatever manner is appropriate to the client, help him main-
tain his poise. Don’t get excited, don’t laugh, don’t cry—just treat it in
a dignified and businesslike manner.
Next, as an aspect of this, don’t quarrel with opposing counsel. If he
asks a question that you think is foolish, the best way to answer is, “I
really don’t understand that,” but don’t quarrel with him over the fool-
ishness of his question. Be courteous. Address opposing counsel as
mister. If you can’t remember the name, sir or madam is an all-purpose
honorific and it’ll get you by.
We’ve already said twice, let me say a third time, make sure the
client understands that he must listen to the question, hear it, and
understand it before answering it. And he answers it with the truth and
the truth means exactly what the question calls for—nothing more and
nothing less. Especially if you’ve got a high IQ client, what he is going
to be inclined to do is to think ahead. Well, here’s a question. What’s
counsel getting at? What’s the next question going to be and the next
question after that? That’s the kiss of death. Do your best to persuade
him not to do that. Focus on this question, answer this question, and
then focus on the next question. But do not engage in a mental fencing
match with opposing counsel. If the question is answerable, yes or no,
that’s the answer. Don’t go beyond it. If the answer is “I don’t know” or
“I don’t remember,” that’s the answer. Don’t go beyond it.
Explain to opposing counsel what will happen if you make an objec-
tion. Give him some sense of why you make an objection and, most
importantly, be sure that he understands that he’s to wait until the law-
yers finish their colloquy before answering the question.

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Next, in a case involving distances, dimensions, and times, rehearse

your client very carefully. Rehearse him so that he understands the
importance of not being pinned down to a specific distance or a spe-
cific time. Rehearse him so that he prefaces whatever answer he
makes with words to the effect of “This is only a rough estimate but
it’s the best I can give you.”
Next, make sure your client understands that there’s nothing
wrong about his having discussed his testimony with you. And if he
is asked that question, a truthful answer is, “Yes, I did discuss it with
my lawyer, Mr. Younger,” or whatever it may be. If the truthful answer
is, yes, I did discuss it with anybody else, member of the family, or
the like, that’s the answer he must give. If he is asked what did your
lawyer tell you to say, the answer is, “He told me to tell the truth,”
just that. Make sure that the client is set up with that answer just in
case that old formula question comes.
Consider what poets call diction. When a poet uses the word diction,
the poet does not mean how you pronounce your words, he means how
you select your vocabulary, recalling that English has an enormously rich
vocabulary, with many synonyms for virtually everything. To the ear of a
poet, words that may mean the same thing in a dictionary sense do not
mean the same thing in a poem. To the ear of a trial lawyer, words that
may mean the same thing in a dictionary sense do not mean the same
thing at a trial and, to the extent that you can, you want to consider with
your client the use of one word as opposed to another word. For example,
if your client is the defendant in a personal injury case arising out of an
accident of some kind, I should think that your client should always use
the word accident. If you are the plaintiff in that case, your client should
always use the word crash, disaster, something of that kind. The words
have different emotional overtones, though in a dictionary sense they
mean the same thing. You can do even better than accident if you’re the
defendant. How about incident? Just as a personal footnote, how often
I’ve heard plaintiff’s lawyers put plaintiff on the stand at a trial and say,
“Now, did an incident occur? Tell us about it.” Mmm mmm. If you’re the
defendant, it’s an incident. If you’re the plaintiff, it’s an appalling tragedy.

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Now, a few remarks zeroed into the particular situation of the expert
who is going to be deposed. And simply so that you understand and
I’m not trying to be a comedian, my experience is that experts tend
to be very difficult people. Actually, more often than not they tend to
be just asses. There’s no other way to describe it. And this is your
expert as much as the other side’s expert. And you have to work with
them and work with them and work with them to minimize the asi-
nine impression that inevitably they’re going to make at the deposition.
Right? Number one, don’t engage in private conversation with oppos-
ing counsel. Experts love to do that. You know, they think they’re going
to explain to opposing counsel why opposing counsel is all wrong and
he, the expert, is all right. Don’t do that.
Next, if the deposition, as is not uncommon, is being taken at a
place convenient to the expert, that place may well be the expert’s
office. Have you ever tried to take an expert’s deposition while he
responds to telephone calls and talks to people and answers letters
and so forth? Make sure that he cuts off all of those distractions so that
you’ve got the half a day or whatever it is uninterrupted in his office for
the purpose of taking his deposition.
Next, review with your expert something that you know is going to
come up on the deposition and that is his qualifications. Review them
so that they’re fresh in the expert’s mind and that what he will tes-
tify to is what you want him to testify to—nothing more and nothing
less. Most experts err on the side of too much. You know, they want
to go on and on and on. And you may not want to do that, so you can
rehearse with him so that he hits the highlights and then says some-
thing like, “For everything else, here’s my resume,” or something of
that kind.
Next, don’t volunteer. That applies to all witnesses, but it’s especially
important with respect to the expert. Answer only the question that is
asked of you.
Next, try to answer in plain English. Avoid professional jargon or
technical terms. That will prove to be close to impossible for the expert,
but work on him, nevertheless.

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Next, this, too, will prove to be close to impossible. Behave like an

ordinary human being. Do not be condescending. Do not be patronizing.
Maintain an appropriate professional dignity. You don’t say things to your
expert like, “Behave like a human being,” because your expert will take
it amiss. You rehearse it with him. You rehearse it and ideally you do it in
front of the office video camera and let him see himself. And usually that’s
the most effective way of making clear that he’s acting like an obnoxious
stuffed shirt, when he actually sees it up there on the monitor.
Be sure the expert understands what objections are all about. Make
sure that your expert understands the rule on impeaching an expert
out of a treatise. You can’t avoid that rule. It’s 803(18) of the Federal
Rules of Evidence, but make sure that your expert knows about it what
he ought to know in order to be able to handle that kind of impeach-
ment. Remember the old question about are you being paid for your
testimony? Make sure that he knows that the answer is, “No, I’m not
being paid for my testimony, I am being paid for my time.” There is a
difference and make sure that he knows that difference.
Let me talk about what I should have discussed before going
into that fairly brief checklist. Remember, we assume that you’re
defending a deposition. When the other side finishes, you will have
a right to cross-examine, to ask questions yourself. Should you cross-
examine? My own view is that, unless there is compelling reason to do
so, don’t cross-examine. What you do primarily is tip your hand to such
an extent that I think it’s the decisive factor. If there’s anything that des-
perately needs to be cleared up, all right, ask a question or two to clear
it up. But unless it desperately needs clearing up, save it for the time of
trial when the explanation will come as a surprise to opposing counsel.
And as to handling the question, “Why didn’t you give that explanation
at the time of the deposition?” there’s a wonderful answer, a won-
derful answer that any witness can be prepared to give and it always
works with the jury, and the answer is, “I wasn’t asked that question.”
That’s an end to it. Remember, the jury is on the witness’s side. They’re
not thinking about lawyers maneuvering. And if he wasn’t asked this

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question, that’s why he didn’t give this answer and he’s giving it now
for the first time at trial.
Which brings us, ladies and gentlemen, to something I was rather
looking forward to because I don’t know whether it’s fair to call this pre-
cious knowledge, but it’s unusual knowledge. I don’t know that anybody
has ever gone through the cases to pull this out. Remember the rule
with respect to objections that must be made at the deposition or else
you have waived them? Now, remember, we assume that you’re defend-
ing a deposition, so it’s your job to make objections at the risk of being
deemed to have waived them. The rule says that you’ve got to object to
anything that could be obviated at the time of the deposition and what
that exactly means, nobody knows. At a minimum, however, it covers
whatever we mean to include in that much used phrase, an objection
as to form. As a matter of fact, many of us know as a matter of kind of
lawyer’s law that if your objection goes to the form of a question at a
deposition, you must object at the time of the deposition or you will not
be heard to object at the time of trial. Because an objection as to form is
obviously an objection that could be obviated. Counsel asking the ques-
tion simply reframes the question and the problem is resolved.
What is an objection to form? I dare say any experienced lawyer kind
of recognizes it when he sees it, but the experienced lawyer would be
hard put to make a list. I have made a list for you. There are nine different
kinds of questions that are objectionable as to form. And while no one of
these nine will come as a surprise to you, it will be handy, I trust, for you
to have this list. So you might want to jot it down on the margin of your
outline. In no particular order, first, a question which includes a quotation
or summary of what this witness or another witness has earlier said and
it’s inaccurate is an objection as to form. Objection, you are misquoting
the testimony of witness A. Or objection, that is not an accurate sum-
mary of what witness Z said. That is an objection as to form.
Next, a question that asks the witness to assume facts to be true,
which facts are not in evidence. That’s an objection as to form. And
you’ve got to make it at the deposition or else you have waived it.

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Next, in the course of deposing an expert, opposing counsel may

ask a hypothetical question. If the hypothetical question is improper and
it will be improper if at all because it includes a fact which may not be
included. It may not be included because that fact is not in evidence and
it’s not the kind of thing on which experts in this field customarily rely.
That is an objection as to form and you must make it at the deposition.
Next, a question that quarrels with the witness. The “how dare you
say that” kind of question is a question that is bad as to form and you
must object at the time.
Next, I think we’re up to number five, a bullying question. Are you
aware that I’m going to bring this testimony of yours to the attention
of the district attorney? That’s a bullying question. Object to it and it’s
deemed to be an objection as to form.
Next—now at this point, I’ll grant you that there’s a lot of give in
the system, that these things don’t have the arithmetic precision of
2 + 2 = 4. And, as a matter of fact, this and the next objection as to
form are frequently used. They can be used and frequently are used
to drive opposing counsel right up the wall. All right? Next objection,
number six. The question calls for a narrative answer. See? “Well, what
happened next?” Objection, that calls for a narrative. You’ve got to ask
more pointed questions than that. Very good. He now changes it. “Well,
the next thing that happened is that you got behind the wheel of your
car, isn’t that right?” And now you make the seventh objection, which
is that it’s leading. Right? So it calls for a narrative or it’s leading and
between those two, you can whipsaw opposing counsel to the point
where he just is impotent, he doesn’t know what to do. Now, of course,
that’s dirty pool and that’s not the kind of behavior any of you would ever
indulge in, but at least be aware that it’s a possibility for opposing coun-
sel. You may be on the receiving end of it and be aware of it.
Next, this is particularly common among young or inexperienced
lawyers because it’s a manifestation of nervousness. Two questions in
one. “Well, what happened next? You got behind the wheel of your car,
isn’t that right?” Right, that’s two questions in one. You should object

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to it. Objection as to form. “Counselor, you’ve asked two questions in

one. Which question do you want the witness to answer?”
The ninth objection is my favorite because it permits not unpleas-
ant teasing of opposing counsel. Have you ever heard the objection,
“Objection, I don’t understand the question,” coming from opposing
counsel? Never say that because if you say that to somebody like me,
that is if somebody like me is your opponent, I’m going to say, “Coun-
selor, your weakness of intellect is a ground of objection unknown
to the law. The question is, does your client understand it.” And, you
know, every once in a while the client says, “I understand it,” and the
lawyer looks like a fool, right? The objection that should be made is not,
“Objection, I don’t understand it,” it’s just a matter of how you put it so
that you deprive opposing counsel of the chance to one-up you. Say,
“Objection, the question is unintelligible,” which means nobody can
understand it. That is a proper objection as to form and what counsel
must now do is reframe the question, which does not say everything
there is to say about the deposition on oral questions, ladies and gen-
tlemen, but it does say what time permits us to say. And let us move
on to the other formal discovery devices and, as you know, there is
quite a handful of them.
The next formal discovery device, the mechanics of which are set
forth in Rule 31 of the Federal Rules of Civil Procedure, is very rarely
used. As a matter of fact, I know about it because I’m a student
of and sometime teacher of civil procedure. But in my own practice
and in my time on the bench, I cannot recall ever once using the
deposition on written questions or seeing it used. It is exactly what
you would think. It is a deposition, much as an oral deposition is a
deposition. But instead of being done orally, the questions are writ-
ten out in advance and submitted to the witness who responds to
the questions in writing and, of course, under oath. The advantages
of the deposition on written questions are, first, that by contrast with
the oral deposition, it’s cost free. I mean, there are some incidental
costs, papers, postage, some stenographic expense. But it will rarely

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exceed $100 and you’ve got it. Whereas no oral deposition is ever
going to cost as little as $100.
Next and final advantage, the only other advantage I can think of.
Since both the direct and the cross-examination questions must be
written in advance, when the adversary frames his cross-examination
questions, invariably he tips his hand. He shows you a good deal about
his case. And if he doesn’t want to tip his hand, what he’s got to do is
forego cross-questions. Maybe that’s the smart thing to do.
The disadvantages of the deposition on written question are
weighty and probably account for what I said a moment ago, that you
just never see this particular discovery device being used. First, it is
totally inflexible. You realize that you’ve got to frame question two before
you know the answer to question one. So you can go in a particular
direction, but you can’t change that direction in view of the answers
the witness gives you because you don’t know what those answers
are at the time you write the questions. Next, there is no observation
of the witness’s demeanor. You don’t get to see the witness in action.
And, third—I guess it’s really covered under the first—it’s just inflex-
ible, inflexible. You can’t follow things up.
The one situation I can think of in which you might want to use a
deposition on written questions is when you want to have something
from the other side that you can offer in evidence as an admission. It
is a matter on which you know you’re going to get a helpful answer.
They can’t possibly change the fact. And you don’t want to spend
a lot of money. You know, sort of “Was there an accident on Octo-
ber 10, 1985?” That’s not a very good example—here’s a better exam-
ple, “On the day the contract in issue was signed, how old were you?”
Just that, that’s all you want to know. How old was he? Was he above
the age of infancy or below the age of infancy? One question using the
device of the deposition on written questions will give you the answer in
a form that you can read to the jury, put into evidence as an admission
and you do it at minimal expense.
If you want to go beyond that, it seems to me that the deposition
on written questions is not for you. What you will then consider is the

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discovery device that all of us are familiar with because anybody who’s
engaged in civil litigation has used this device. This is the device of the
interrogatory. And since it always comes in numbers, it will be inter-
rogatories. The mechanics governed by Rule 33 of the Federal Rules of
Civil Procedure. Considerations that bear upon the tactical determination
whether or not to use interrogatories? Well, let me mention five advan-
tages. Five things you can do and do efficiently with an interrogatory.
First, there is some kind of information and it’s fairly frequent, it’s not
peculiar, it’s not one in a million. It’s almost an everyday occurrence.
There is some kind of information that you could not possibly get on an
oral deposition. For example, you’re suing IBM, you are deposing the
manager of the division of IBM that manufactures electric typewriters.
And what you want to know is what you ask him in this question. “In
1978 how many electric typewriters did IBM sell in the United Kingdom
and how many in 1979 and how many in 1980 . . .” and so forth. And the
nature of the information is such that he’s not going to be able to answer.
You see, if anybody knows, this is the man who knows. But he doesn’t
know because nobody knows. This is not the kind of information that any
one person carries in his or her head. This is information that rests in the
files or, to use the lingo of the day, in the memory bank of the computer
which serves as the files of the division of the company that manufac-
tures electrical typewriters. So you use an interrogatory where what you
want is detailed information or information in the form of a compilation
that you could not possibly get in the course of an oral deposition.
Next, and this is a separate category, though of course it overlaps
with the first. You may be looking for information that is not within
the personal knowledge of any witness. Example: When was General
Electric organized? What is the date of incorporation? I happen to know
that the answer to that question is so long ago that there is no living
person who can tell you of my own knowledge the date of incorpora-
tion was thus and so. So why bother with a deposition? An interroga-
tory is well calculated to give you that kind of information.
Next, remember that the interrogatory is the device intended by
the draftsmen of the Federal Rules of Civil Procedure to be used when

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what you want is the other side’s legal theory. It’s right there in the
rule. You may ask by way of an interrogatory how the facts are related
to the law, which is simply a way of saying you can ask in an interroga-
tory, “What is your legal theory?”
Next, remember that interrogatories are available only from the
opposing party. Plaintiff serves interrogatories upon defendant, defen-
dant serves interrogatories upon plaintiff, which means, as you all
understand—and if you don’t, we’ll have time to talk about it in the
next hour—which means that the answers are admissible as an admis-
sion. The answers are themselves admissible as substantive evidence.
And the fifth advantage is that it’s relatively inexpensive. At least by
contrast with the oral deposition it is inexpensive.
To go with those five advantages, there are four disadvantages. They
are weighty and only you can decide how to strike the balance on the
circumstances of any particular case. Disadvantage number one: No
demeanor. You don’t get to see anybody in action. Second, I person-
ally regard this as an important aspect of the oral deposition: There
is no possibility of the casual remark or the slip of the tongue. There
is no possibility of the witness saying something unconsidered, say-
ing something by mistake which then becomes the basis of a line of
questioning. That possibility exists in an oral deposition, but not with
interrogatories.
Next, because it’s all done on papers back and forth between the
lawyers, there is no follow-up. Or put it this way. There’s no instant
follow-up. You can follow up instantly at an oral deposition. Those of
you who have engaged in heavy civil litigation will know that for inter-
rogatories, what you do is send out interrogatories, you commonly
call it set 1, and now when you get the answers back, some of the
answers will suggest additional interrogatories. They go out as set two.
So, yes, there’s a follow-up, but it’s cumbersome, it’s disconnected in
time, and it’s not terribly efficient.
The fourth disadvantage is the principal one. The answers to inter-
rogatories will ultimately be drafted by opposing counsel. The infor-
mation may come from the opposing litigant, but it’s the lawyer who

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writes the answers. Which means that if you want to be cute, if you
want to obstruct, if you want to delay, if you want to engage in obfusca-
tion, it can be done. Those possibilities are minimized at an oral depo-
sition. But there are certain situations in which the interrogatory is,
above all else, the device to use. And when you’ve got this kind of
situation, I think you don’t have to ponder it. Use the interrogatory, it’s
better than anything else.
First, when you want the names of witnesses, you use the inter-
rogatory. Next, a little bit different from the names of witnesses, when
you want the names of those the other side has interviewed, use the
interrogatory. Next, when you want to know whether the other side has
insurance and the amount of the insurance. The older hands in the room
are aware that that is sometimes a key fact because that is the fact
on which settlement depends. Younger lawyers sometimes need to be
reminded that you bring civil lawsuits for a particular remedy. The rem-
edy is money. That’s what you want. And if the other side doesn’t have
money, it is pointless to pursue the lawsuit. Because we don’t put peo-
ple in jail for debt and it doesn’t serve anybody’s purpose to put him in
jail anyway. You want the money. Frequently the only asset on the defen-
dant’s side is that insurance policy. If the limit of the insurance policy is
$10,000, why try to get more if there are no other assets? And that is
why knowing about the insurance will frequently lead to a settlement.
The other side tells you there is insurance and the policy limit is
$10,000. Well, that’s it, case settled. $9,500. Give the other side $500
sort of to show they did a job. Right? But if the insurance policy is
$100,000, the case is settled for $99,000. And, you know, there was a
time when you weren’t allowed to know about insurance. Now, I’m not
talking about telling the jury of insurance, I’m talking about information
between counsel. And it’s what, maybe 10 or 11 years ago that the
Federal Rules were amended to provide that the fact of insurance and
the amount of coverage must be disclosed and the best way to get it
is by an interrogatory.
Next, the only discovery that under the Federal Rules you get of right
with respect to experts is discovery by way of interrogatories—the

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identity, qualifications, and the summary of what the expert is going

to say.
Next, information about documents is best obtained by way of inter-
rogatories. Where are they? Who is in charge of them? How are the
files arranged and the like? Technical data, statistics. Let me just run
down the list here. Where I have nothing to add, I will not take the time
to add anything. Other claims of this sort brought against the litigant—
important in product liability litigation, obviously. A litigant’s medical his-
tory. A litigant’s work history. Legal theories we’ve already mentioned.
Admissions that you know will be made, damages, the way in which
the business organization is set up. And finally, and don’t ever forget
it—it should always be your final interrogatory. Who is the person who
prepared the answers to these interrogatories? If more than one, who
are they? Find out who they are and you might consider following up
your interrogatories with an oral deposition of the person or persons on
the other side who prepared the answers to the interrogatories.
We’ve already mentioned an aspect of contemporary legal practice
that is commonplace. You’re not limited to one interrogatory or one
document containing a number of interrogatories. It is quite common
for interrogatories to come in waves and lawyers commonly describe
it not as a first wave, but as a first set of interrogatories, followed three
months later by a second set, and so on. Sometimes you use the word
series instead of the word set, but it means the same thing. Remember
that interrogatories work very efficiently when you use them before you
take the deposition of somebody. Get the basic information in the form
of answers to interrogatories, then take your deposition.
Next, and I’m moving quickly because everybody, I dare say, is famil-
iar with these aspects of interrogatory practice. It is unusual these
days to see interrogatories that do not begin with a set of instructions
and definitions. To the other side, in answering these interrogatories,
proceed as follows. The following words shall be deemed to mean the
following, and it’s almost as if you are drafting the definitions section
of a statute. What you’re doing is trying to avoid skirmishing between
the lawyers as to syntactical ambiguity or ambiguity in the vocabulary

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in which the interrogatories are couched. Be sure to include in the

instructions or definitions or perhaps as a sort of second interroga-
tory after each main interrogatory if you have responded in words or in
substance with, “I cannot answer this interrogatory,” explain why you
cannot answer it.
And, finally, bear in mind that wonderful mechanism that 33(c) gives
you. Where the other side wants information that is contained in your
client’s records and your client does not object to letting the other side
go through the records, your response to the interrogatory is essen-
tially, “We will give you access to the records, you compile the informa-
tion.” And that is an adequate response to the interrogatory, the rule
says so. You don’t have to spend all kinds of time and effort compiling
the information. Let the other side compile the information and it is
extraordinary how often the other side loses its enthusiasm when it
turns out that they have to put in the hundreds of hours necessary to
compile this information instead of you.
Looking ahead a little bit to something we’ll talk about, albeit very
briefly, at the very end, interrogatories, as much as the oral deposition,
lend themselves to abuse. The oral deposition lends itself to abuse
when it’s protracted as scandalously as that nine-and-a-half year depo-
sition I mentioned a little bit earlier. The interrogatory is abused when
it is multiplied to the point where nobody is going to sit and answer
10,000 interrogatories. Because no matter how dedicated you are to
the practice of law, ultimately you’re going to say to yourself that life
is too short, I’m just not going to sit here and answer this kind of stuff,
and you’re going to walk away from it. Especially since the invention of
what I call the memory typewriter—you know, the typewriter where
you push a button and out it comes.
Interrogatories in enormous volume have come to be quite com-
mon. Volumes so enormous that I know of cases where they don’t
even bother to count the interrogatories, they simply weigh them.
First set of interrogatories, 25 pounds. Second set, 40 pounds, and
the like. I have seen interrogatories in antitrust cases where the first
interrogatory was “What was the date of the marriage?” and the

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second interrogatory was “Where did the marriage take place?” And
the memory typewriter is only a machine. It has in its memory every
interrogatory that has ever been asked in every lawsuit that this office
has ever handled. And somebody said to the memory typewriter, “Just
regurgitate all of your interrogatories, whether they have to do with
antitrust or not, because we’re only weighing it out. We’re not even
going to read them, let alone answer them.” And you hire a truck and
you send it over to the other side and the other side looks at the 20
pounds of interrogatories and they call in some junior lawyer and say,
“You’re going to answer these things,” and the junior lawyer just says,
“No, I’m not and I’m going to go to dental school, and goodbye and
good luck.”
And ultimately this becomes a problem in the administration of
justice. And I speak just as softly as I can. It leads to what? It leads
to such phenomena—I’m sure many of you are familiar with them—
local rules. Local rules of more than one United States district court.
Saying what? Believe it or not, saying you may not serve interroga-
tories that have been typed on a memory typewriter. There is one,
at least one federal court that has such a rule. Perhaps a little bit
more focused—you may not serve more than 20 interrogatories at a
time. And you know what happens the next day? The lawyer serves
20 interrogatories. Interrogatory 1A, B, C, D, blah, blah, blah, AA, AAA,
AAAA, and so forth, so that the 20 interrogatories are really 20,000
interrogatories. And then you need an amendment to the local rule. No
more than 20 interrogatories counting each subpart as an interroga-
tory. And you continue this duel between the court and the bar, with
the bar trying to persist in using discovery in all kinds of abusive ways
and the court trying to prevent it. Rule 11 ultimately will rear its formi-
dable head, of course, but be aware that interrogatories are subject
to this kind of abuse and let us move on to the next discovery device,
which is discovery and inspection.
The mechanics are set forth in Rule 34 of the Federal Rules of Civil
Procedure—discovery and inspection is a way of getting access to
something tangible, be it documents in a file, be it the wreck of the car

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that was involved in an accident, or anything in between. Discovery and

inspection is relatively inexpensive and where some tangible object is
involved in a lawsuit, it is well to pursue discovery and inspection.
The tactical considerations, and I think they all militate in the direc-
tion of invoking discovery and inspection, are first, do it early, before
people have had a chance to work on the object, to change it, to vet
the files, or the like. Second, take a foundation witness with you. If
you’re inspecting real property, take a surveyor, take a photographer,
take somebody like that, depending upon the circumstances. Next,
take photographs in almost every instance. And, remember, a pho-
tograph would include Xeroxes or photostats or other kinds of pho-
tomechanical reproduction of documents. Take photomechanical cop-
ies of documents that seem to be important. Take photographs of the
wreck of the car that was involved in the accident, whatever it may be.
Frequently the photographs will be unnecessary, but it happens often
enough that they become useful that it’s well to follow the rule that you
will take them in every case.
Which brings us, nearing the end, not of our consideration of discov-
ery, but our consideration of the formal discovery devices, that brings
us to the physical or mental examination, governed by Rule 35, and it
permits one side to cause the other side to undergo a physical or a
mental examination where physical or mental condition is relevant in
the case. I think that the tactical considerations bearing upon physical
or mental examination are best considered from the respective view-
points. First, the lawyer who notices the examination and then the law-
yer whose client has to go for the examination. If you are the lawyer
noticing the examination, it seems to me that there are five important
things that you want to have in mind. First, choose a doctor whom you
would be content to call as an expert witness. Choose a doctor who’s
credible, who’ll make a good impression, et cetera, et cetera. Bear
in mind that in choosing the doctor to conduct a physical or mental
examination, you are, in fact, pretty much choosing a witness. Second,
do not permit that examination to go forward until you have received
the medical records of the person to be examined and have supplied

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those records to the examining doctor. It is a waste of time to permit

the doctor to examine the person without access to the records. And
what opposing counsel will do is stall, try to bring it about that you’ve
wasted the time. Don’t let that happen. Just keep adjourning, putting
off, postponing the physical or mental examination until, in fact, the
records are in hand.
Next, here I incorporate by reference what I said earlier about
experts in general and I guess I did not say, but might have said, about
doctors in particular. They sometimes do very strange things. This third
piece of advice from me to you has in mind that the doctor may do
something strange. Make sure that your doctor understands that his
job is to examine and formulate his opinion. He is not to treat. He is not
to prescribe. I have heard of examining doctors who want to take out
the hypodermic needles and start giving injections and the like. That’s
not his job. This person is not his patient. This person is simply some-
one he is to examine for the purpose of formulating an opinion, which
opinion he may testify to in court.
Fourth, again, on the general principle that doctors tend to be pecu-
liar and even if this is not a peculiarity, all doctors are always two hours
behind, right? We’ve all gone to the doctor’s or the dentist’s office and
you know that even though you’ve got a 3 o’clock appointment, you’re
going to sit there until 5 o’clock before he reaches you. Tell the doctor
to be prompt. I will not mention this when I consider the tactics on
the other side, but if it’s my client sitting in the doctor’s office to be
examined under Rule 35 and the notice said be there at 3 o’clock, I
don’t want to be unreasonable, I’ll wait 15 minutes. But at 3:15 I say to
my client, “Get up and let’s go.” And my position is, you have waived
your right to have a physical or mental examination. You waived it by
not doing it at the time in your own notice you said you would do it,
subject to 15 minutes leeway. You want to give him a half an hour lee-
way, whatever. But there comes a point when it’s no longer reasonable
to wait and I think it is a plausible argument that the other side has
waived the right to take the physical or mental examination.

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And finally, fifth and last under the heading of tactics for the attorney
noticing the examination, make sure that your doctor takes a history
from the person to be examined. Don’t rely on the medical records.
Have your doctor begin his examination with, “Mr. Smith, tell me the
history of this thing. What happened?” And have your doctor take
notes. Because the history you get from Mr. Smith may well be differ-
ent in important ways from the history he has given his own doctor and
you’d like to know that because you can do something with it at trial.
Now, switch over. You are the lawyer whose client is going to be
examined. Let me give you five things that I would be concerned with.
First, the notice identifies the doctor. To use the language of the teen-
agers, check him out. Look him up in the medical directories and make
sure that he is the person he purports to be.
Second . . . now this one is a little bit, what shall I say, beneath the
surface. The notice names Dr. Smith. We all know because we go to
the doctor from time to time that most doctors these days practice in
some kind of partnership, in an HMO, or whatever it may be. It may be
just two or three doctors who get together and pool their practice so
that every once in a while one of them can have a weekend off or take
a vacation. So be it, perfectly reasonable. But this is a lawsuit and you
give up nothing in a lawsuit. If the notice says that the examination is to
be performed by Dr. Smith, Dr. Smith performs the examination. And if
one of his partners in that medical practice undertakes to perform the
examination, I get up and walk out. And my position is you have waived
your right to a physical or a mental examination. You said it would be Dr.
Smith and he wasn’t there.
Next, implicit in what I’ve said, don’t send the client unaccompanied
to the doctor’s office. You go or some other lawyer from your office
goes, but I think it should be a lawyer. Someone reasonably conversant
with what’s going on and someone who will have the guts, if need be,
to say to the client, “Let’s get up and we’re walking out of here.”
Next, prepare your client on the history that the client is going to give
the doctor. Rehearse it. Review the history that has previously been

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given by your client to be sure that the history given on this occasion is
consistent with the earlier one.
And, finally, no injections, no treatment, no nothing. All the doctor
does is poke and listen and ultimately formulate his opinion. And, by
the way, my practice has been to insist that I be present during the
examination. The doctor will resist it like mad because he regards it as
an affront to his professional dignity. And I say something like, “Doctor,
I understand that, but your professional dignity is not involved, this is
not your patient, you’re not treating the patient. This is a law matter. I’m
the lawyer. If you’re going to examine my client, I’m going to sit there
while you do it. If you want me to look away at any particular moment,
I’ll look away, but I’m going to be in the room when you do it.” Where
you’ve got a cross-gender problem, bear that in mind. If you think that
it makes sense to have a lawyer in the room at all times and the cli-
ent, the person being examined is a woman, maybe a woman lawyer
should go along to reduce the embarrassment and the tension of that
kind of thing. But that’s kind of common sense and I leave it to you.
This last of the formal discovery devices, ladies and gentlemen, is
a very peculiar bird. It is traditionally viewed as a discovery device, but
its nature is such that you cannot possibly learn anything as a result of
using this device that you didn’t already know. In short, it is absolutely
without utility with respect to the classic purpose of discovery, finding
out about the case. The sole purpose of Rule 36 is to give you a device
that will be handy with respect to streamlining the proof and marshal-
ing the evidence so that what you put before the jury or the judge in
a bench trial is as interesting as you can make it and is forthright and
moves quickly to a point. In short, so that you don’t bore your audience.
The request for admissions is the way you do it. The mechanics, as I’ve
said, are set forth in Rule 36. But a brief reminder and, by the way, I
remind you of it because in my experience, most lawyers make insuffi-
cient use of the request for admissions under Rule 36. I dare say most
lawyers know about it, but they’re just not accustomed to using it and I
think extensive use should be made of Rule 36 because it permits you
to try a better case. And remember, I, yours truly, your speaker today,

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is a trial lawyer as opposed to a litigator and I’m always concerned with

what’s going to make for a better trial.
You send to the other side a piece of paper that says something like,
“For purposes of this trial and these purposes only, admit the truth of
the following facts,” and you list facts which in good faith you believe
are not reasonably to be disputed. Alternatively, in this paper you say,
“Concede the authenticity of the documents attached or the accuracy
of the photographs attached.” Now, remember, the other side is not
conceding admissibility. They’re free to argue irrelevance or the like,
they’re only conceding that the contract, a copy of which is attached to
the request for admissions, is not a forgery, that it is authentic or that
the photograph is, indeed, an accurate photograph of the IDS Building
or the Empire State Building or whatever it may be. You see, then, that
by adept use of the request for admissions, you remove areas of the
case from controversy. There is no need to prove a fact which the other
side has admitted. There is no need to indulge in the choreography
otherwise required of you to prove the authenticity of a document or
the accuracy of a photograph where those matters have been admitted
by the other side. And how do they admit it? They admit it by failing to
respond to your request for admissions. Silence is deemed to be an
admission. Or if the other side is careful, they will respond, but they
will say “I admit it.” If they don’t admit it, they’re supposed to explain
why. And remember that if the court later determines that the denial
was unreasonable, even though the other side wins the case, they
can be assessed the cost you were put to in proving those facts or in
establishing the authenticity of those documents or the accuracy of
those photographs.
It seems to me that lawyers should make ample use of Rule 36. I’ve
already told you that I think most lawyers do not. Certainly, consider
using Rule 36 to establish the authenticity of governmental and cor-
porate records, the kinds of records that, in the real world, will not be
forgeries. These are what they purport to be. We can argue relevance,
but certainly there’s no point in arguing authenticity. You’d be surprised
how many cases involve family relationships. That A is the husband

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of the daughter of B and you can’t prove it through birth records or

you could prove it through birth records, but it would be very cum-
bersome and tedious. Who can reasonably dispute that kind of thing?
Establish it by way of a request for admissions. We’ve already talked
about the accuracy of photographs or maps. The authenticity of medi-
cal records, of age and employment records, really can’t be disputed.
They’re tailor made for the request for admissions. Documents of title
in a real property action work very well in connection with a request
for admissions.
The only consideration on the other side of the ledger is a consider-
ation most lawyers don’t have to worry about because they’re nowhere
near this danger point. If you ask the other side to concede everything
and the other side does concede everything. I mean everything but the
one or two facts that really need to be tried, you risk losing drama. You
risk taking all of the blood out of the case. And you don’t want to do that,
you want to strike a happy medium so that the tedium is removed from
the trial, but the drama, the human aspect of it, is retained. And after a
while, the experience, the feel for the courtroom will give you that happy
medium. Ladies and gentlemen, that completes our discussion of the
formal discovery devices, meaning the discovery devices that are set
forth in the discovery article of the Federal Rules of Civil Procedure.
But let me go beyond that. And here I am putting before you informa-
tion that I discovered kind of by accident as I engaged in my practice,
such as it was, back east. I am not aware that you will find this in any
of the treatises on discovery. I’m not aware that there’s any case, that
there’s any law review article that talks about it. But it may prove to be as
useful to some of you as it has proved to be useful to me.
There is one other discovery device. It is a formal discovery device
in the sense that you use it in accordance with the terms set forth in
the Federal Rules of Civil Procedure. But it’s not a formal discovery
device in that you don’t find it in the discovery article. Nobody thinks of
this as a discovery device. I just stumbled into the realization that this
device is frequently the cheapest way to find out what the other side
knows. It is the cheapest way to engage in discovery. And what is it but

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our old friend—because everybody knows it, but you know it from a
different viewpoint—our old friend the motion for summary judgment,
more precisely, the motion for partial summary judgment under Rule
56 of the Rules of Civil Procedure.
Now, remember when a motion for summary judgment or partial
summary judgment is appropriate. When it appears that all of the evi-
dence demonstrates that the facts are just one way. Since the facts are
just one way, there’s no reason to have a trial or at least a trial on this
issue, because the purpose of a trial, after all, is to determine disputed
fact issues. If the facts are all one way, you say to the court, “Let’s not
have a trial, let us proceed directly to the entry of judgment,” and that’s
why you call it summary judgment.
I posit a situation in which you have evidence tending to show that the
facts on whatever the issue is are A, B, and C. And if the facts are A, B,
and C, you win, you are entitled to judgment. You don’t know what the
other side has. You might take a deposition, but that’s going to cost you
a couple of thousand dollars. You might try interrogatories, but they’re
going to obfuscate around and you’ll never get the answer. Make a
motion for partial summary judgment on the issue in connection with
which you have the evidence that adds up to A, B, and C. And argue it
just as powerfully as you can. There is no contrary possibility. The facts
are A, B, and C. We are therefore entitled to partial summary judgment
our way on this issue. And if that is the state of the record, it seems to
me that you are perfectly compliant with Rule 11 requiring you to pro-
ceed in good faith and with the proper legal basis, and so forth. In your
heart of hearts, it may be that you’re prepared to admit to yourself, at 2
o’clock in the morning when you think about this, that you don’t expect
to win the motion. You’re not making it to win, you’re making it to get the
other side’s opposing papers. Because how does the other side oppose
summary judgment? By demonstrating the existence of an issue of fact
requiring a trial. And how do they demonstrate the existence of that
kind of issue of fact? By showing the judge what evidence they have in
the form of affidavits, copies of documents, or the like. And there it is.
The papers opposing the summary judgment motion are discovery, pure

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and simple, in the handiest possible form. Here is the affidavit of the
opposing litigant. Here are statements of witnesses on the other side.
Here are the key documents attached to the affidavit, laid out. You’re
going to lose the motion for summary judgment, yes, because there is
a fact issue to be tried. But you expected to lose it. You now know what
the other side’s proof is and you know it at the expense of preparing a
motion for summary judgment—invariably much, much less than the
expense of going through an oral deposition.
I commend it to you, and the Celotex case2 in the United States
Supreme Court, just 18 months ago, is an interesting example of what
I’m talking about. It is a complicated case that, at first reading, has
nothing to do with discovery. Read it again carefully and it’s perfectly
obvious, I know you will agree, that in the Celotex case, the side that
ultimately prevailed in the Supreme Court made two motions for sum-
mary judgment. The first motion was designed to smoke the other side
out, to find out what evidence they had. They found out what evidence
the other side had and lost the motion for summary judgment. Now
they made a second motion for summary judgment on a somewhat
different footing, using the information that they had been given in
opposition to the first motion for summary judgment. And on that they
prevailed all the way to the Supreme Court. So the Celotex case is a
laboratory demonstration of very skilled counsel using the motion for
summary judgment as a discovery device. I urge you to consider using
it as a discovery device. I think you will find it to be fruitful and I know
that you will find it to be less expensive than an oral deposition.
Which brings us, ladies and gentlemen, to limits on discovery, a subject
we adverted to, but essentially finessed, at the very beginning when we
made the point that the scope of discovery under the Federal Rules and
under their state analogues, is essentially infinite. It’s anything that would
be evidence or anything that might lead to evidence, and that means any-
thing because you can always make an argument that A will ultimately

2. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

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lead to Z. If you’re a good enough lawyer and a good enough philosopher,

you can make those arguments and lawyers are quite good enough to
make such arguments. Anything is therefore discoverable. The argument
that something is irrelevant is not likely to be a winning argument if by
irrelevant you mean not within the scope of discovery. It may be irrel-
evant at the trial. It may not be admissible in evidence under the rules
on relevance, et cetera, et cetera, at the trial. But insofar as the scope of
discovery is concerned, anything goes. But there are exceptions.
The exceptions are three in number and I’m not going to pretend
that anybody in my audience doesn’t know these three exceptions, but
simply so that it’s been refreshed in your mind, let’s review them. First,
the Constitution of the United States and of the several states apply in
discovery. You have all of the constitutional protections in the course of
discovery that you otherwise would have. And the one that comes up
virtually all of the time is the Fifth Amendment or its state equivalent,
the privilege against self-incrimination. It comes up fairly rarely, so that
many lawyers don’t quite know what the law is on this, but the law is
now well settled. You don’t have cases in every single jurisdiction on
it. For the most part, you’ve got no cases in any given jurisdiction. But
a sampling of cases in a scattered few jurisdictions, a sampling that is
large enough to make it clear that this is the state of the law.
Proposition number one, a party being deposed or being asked to
answer interrogatories or the like, has the right to claim the privilege
against self-incrimination. When I say a party, I mean anybody being
deposed. If the person being deposed or otherwise responding to
discovery is a third person, a bystander, that person may plead his
privilege against self-incrimination. There is no way to prevent it. But
by contrast with the situation in the criminal practice, comment may be
made on the invocation of the privilege against self-incrimination. You
may argue to the jury whatever inferences you think ought to be drawn
and the jury draws whatever inferences they think are fair and proper,
but the argument is a permissible one.
Suppose now that the person claiming the privilege against self-
incrimination is a litigant—the plaintiff or the defendant. A litigant has a

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perfect right to plead his Fifth Amendment privilege, to plead his privi-
lege against self-incrimination. But—and here’s the point—you do not
have a right both to plead your privilege and to continue to litigate this
case. If you want to litigate the case, you’ve got to give discovery. And
if you don’t want to give discovery because of the Fifth Amendment,
you don’t have to, but then you don’t litigate the case. Consequence.
Assuming it to be an important matter—it’s not some triviality—if a
plaintiff pleads his privilege against self-incrimination, he may do so,
but the complaint will be dismissed on the ground that he’s refusing to
make discovery, that’s all. He has a right to refuse to make it. You’re not
going to punish him. But he may not have it both ways. If he wants to
pursue this lawsuit, he gives up his Fifth Amendment right.
If the defendant pleads his privilege against self-incrimination, it’s the
same thing. He may not continue to litigate this case. He is deprived of
a defense, which means what? Most lawyers and judges say that you
strike his answer and you simply proceed to the question of a remedy. If
what the plaintiff wants is money, you will have an inquest. You will have
a trial, it’s limited solely to the issue of damages. And that’s exactly what
you do whenever a defendant refuses to participate in discovery. Now,
that’s fairly rare, I’ll grant you. That’s why you have only a scattering of
cases in a handful of jurisdictions. This does not come up every day.
What may well come up every day in the course of the busy litiga-
tion practice is the second exception to the wide-open scope of dis-
covery that we have. And this second exception is the set of privi-
leges that you find in the law of evidence, meaning to distinguish the
law of evidence from the Constitution. There are privileges that are
based upon the Constitution, most importantly the privilege against
self-incrimination. There are privileges that are based upon the law of
evidence. Call them evidentiary privileges. They are, in the instance
of private litigants, the attorney-client privilege, the physician-patient
privilege, the spousal privilege, and then, depending upon your juris-
diction, because not all jurisdictions recognize it, you may have a
parent-child privilege, you may have an accountant-client privilege,
you may have a social worker–client privilege and you may have a

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psychotherapist-patient privilege that’s different from the physician-

patient privilege. It covers the psychotherapist, who is not a physician.
In short, you carry with you into the deposition session your knowl-
edge of the jurisdiction’s law of privilege.
Bear in mind that under the Federal Rules of Evidence there really
is no federal law on privileges. In a case governed by state substan-
tive law, the federal court applies the state law of privileges. In a case
that is determined by federal law as a matter of substance, the law of
privilege is common law. There’s nothing in the Federal Rules, it’s the
judge doing whatever he thinks sensible and most judges will find the
rule of privilege applied in that state to be very sensible indeed and
that’s what the judge will apply. So essentially there is no federal law
of privileges, it’s all state law of privileges. All right?
You must know what privileges are recognized by your state. Every
state recognizes the attorney-client privilege. Every state in some fash-
ion recognizes the spousal privilege and I think every state, at least in
some measure, recognizes the physician-patient privilege. What hap-
pens if your client is asked a question, the answer to which is pro-
tected under one of the evidentiary privileges? Now this is . . . well, it’s
not really difficult, but it’s a little bit slippery and it’s slippery because
the Federal Rules of Civil Procedure suggest an answer which is not
the answer that all practitioners go by. What the Federal Rules of Civil
Procedure say, you will remember, is that if an objection is made to a
question, the witness or your client is supposed to answer the ques-
tion. And then the judge at trial will rule upon the objection. Sustain it,
in which case that’s an end to it; or overrule it, in which case it’s already
been answered.
Anybody who has participated in depositions is familiar with the
practitioner’s objection that goes as follows: “Objection. I direct you
not to answer it.” You tell your witness or your client not to answer the
question. That seems to fly in the face of what the rules say. The rules,
remember, say you’ve got to answer the question to which objection
is made subject to the judge’s ruling later on, when you’re before the
judge at the time of trial. That is a bit of slipshod draftsmanship in the

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Federal Rules of Civil Procedure. I have no doubt that every federal

judge in the land will recognize the propriety in certain instances which
I will describe in a moment, of saying to a client, “I object to the ques-
tion, don’t answer it.” The instances where that’s what you do are those
instances in which to answer the question defeats the very purpose of
the objection.
Now, if you object on the basis of privilege, what is the purpose of
the objection? To keep this information confidential. Opposing counsel
says to your client, “Did you meet with your lawyer, Mr. Younger, yes-
terday?” “Yes.” “Tell me what Mr. Younger said to you and what you
said to Mr. Younger.” “Objection. Attorney-client privilege.” But now if
we were to permit him to answer the question, the whole thing is sub-
verted because the information comes out and the judge, at the time
of trial, will sustain our objection, there’s no doubt about it, but you
can’t put the cat back in the bag. The information has been disclosed.
So as a matter of common sense, if you will, the objection should be
coupled with a direction to the client not to answer. And I personally
have no doubt that that is proper.
Now, that’s not the only kind of objection in which you will say to
the client, “Don’t answer.” Where the objection is not based on an
evidentiary privilege but is based on some formal problem or difficulty
with the question. The question is bad as to form. Remember the nine
possibilities we went through. You will make an objection and direct
the witness not to answer in fairness to the witness. But the direction
not to answer is only for a couple of moments. You direct him not to
answer until the lawyer reformulates the question. If the lawyer says
something like, “Do you know that I’m going to take the record of your
testimony to the District Attorney and ask him to indict you for per-
jury?” you direct the witness not to answer that. That question is bad
as to form. It is a bullying question. In fairness to the witness, the wit-
ness doesn’t answer it. But if the lawyer will reformulate the question
so that it’s proper as to form, then you’ll allow the witness to answer
it. “All right, I’m sorry, I got carried away,” says opposing counsel. “Mr.
Witness, are you aware that you’re under oath?” All right, that’s proper.

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Not terribly imaginative, but it is proper. The witness may answer it and
on you go. Right?
So you’ve got the objection coupled with the direction not to answer
where it’s necessary to preserve the very point of the objection or where
in fairness to the witness it’s necessary. As to anything else, I think that
our obligations as members of the bar and officers of the court are such
that your objection is coupled, maybe sub silencio, with a statement to
your client or witness as follows: “I’ve objected to the question. I’m sure
the judge will sustain that objection, but answer it anyway.” And that
essentially is the objection on the grounds of relevance. Relevance. Not
really relevant to the lawsuit. I object on that ground, but since the scope
of discovery is wide open and since it doesn’t really hurt anybody and it’s
not unfair to you, you may answer the question.
The third limitation on discovery is the so-called work product privi-
lege. There’s an enormous amount of litigation on this and properly
so. I think it is a sensitive and important issue and it appeals to me
as I dare say it appeals to everyone who is listening to me. The work
product privilege, to begin with, is not an evidentiary privilege. It is a
customary sloppiness of language that has us calling it a privilege. It
is not a privilege in the way that the attorney-client privilege is or the
spousal privilege is. It’s not part of the law of evidence. It is entirely a
part of the law of procedure. It is a necessary part of the law of proce-
dure simply because of the adversarial system.
And you all remember that the work product privilege begins as
a creation of the Supreme Court. It comes out of the mind of the
Supreme Court in a case called Hickman v. Taylor3 in which . . . I’m now
sort of simplifying and typifying the facts of Hickman v. Taylor, but essen-
tially this is what happened. In the course of discovery, counsel for the
defendant says to counsel for the plaintiff,
“Have you prepared this case?”
“Yes, sir.”

3. Hickman v. Taylor, 329 U.S. 495 (1947).

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“Have you put a lot of time and effort into it?”

“Yes.”
“And are you a good and imaginative lawyer?”
“Yes.”
“And do you have a trial memorandum that sets forth for you and
your partners’ use how you’re going to try this case?”
“Yes.”
“Give it to me.”
Well, under the scope of discovery, isn’t it discoverable? It’s evi-
dence or it might lead to evidence. And yet it offends us all, just as it
offended the Supreme Court in Hickman v. Taylor. And do you see why
it’s offensive? It permits lazy counsel to take a free ride on the energy
and the diligence and the intelligence of counsel who is energetic and
diligent and intelligent. And we don’t want that kind of free ride to be
taken. And so in Hickman v. Taylor, the Supreme Court said, “We carve
out of the normal scope of discovery an exception for material which
has been prepared by counsel and which in fairness ought not to be
made available to the other side because the other side should do the
same thing for itself. Be energetic, be creative. Go out and put in the
time and effort that it takes adequately to prepare this case for trial.”
Now, the work product doctrine of Hickman v. Taylor was codified by
the Advisory Committee so that it’s now part of the Federal Rules of
Civil Procedure. You don’t have to go to Hickman v. Taylor, you go to Rule
26(b)(3). And there you have the work product privilege and if you
want to see how it works, apply to particular facts, you take a look at
the more recent cases. I’m not going to parse hundreds of cases with
you. I think the following is a fair and accurate summary of what the
cases say and I think it’s good enough for most trial lawyers to have
in mind, recognizing that you’ll go to the library, to the Lexis or the
WestLaw keyboard if ever you have to investigate a particular problem
involving the work product privilege.
If material has been prepared in order to try this case (to use law-
yer jargon, if material has been prepared in contemplation of litigation)

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remember, that means it’s not prepared in the ordinary course of the
client’s business, it’s prepared to get ready to try this case. And it’s
prepared under the supervision of counsel. Sometimes it’s by counsel
himself, sometimes it’s merely under his supervision. An investigator
prepared it, an accountant prepared it, or the like. It is not discoverable.
It is protected by the work product privilege, but the work product privi-
lege is a weak privilege. It can be overborne. And if the other side can
demonstrate that the information is not available to it upon the applica-
tion of reasonable diligence and that a fair or just trial requires that this
information be turned over, then the judge can overrule the assertion of
privilege and say to the lawyers who have done a good job, “You’ve got
to give your work product to the other side because they can no longer
do it for themselves and it’s necessary to a fair or just result.”
For example, if a witness was interviewed at the very beginning and
that witness is now dead, so that the other side cannot interview the
witness, it may be that you’re going to have to turn the stuff over. Now,
there’s always room for an argument, of course. The other side knew
about this witness for two years, the witness only died last month. For
one year and 11 months the other side has sat around doing absolutely
nothing, just twiddling their thumbs. “Surely, Your Honor, that is not rea-
sonable diligence. That’s not a ground upon which to override my claim
of privilege and turn me into a kind of paralegal working for the other
side in this lawsuit.” And on and on you go and if you ultimately touch the
judge’s nerve, the judge is going to say, “Damn, right. That’s right. Objec-
tion sustained, you don’t have to turn it over.” So much for the exceptions
to the normally wide open, virtually limitless scope of discovery.
Let me turn now to the use of discovery at trial, a subject in which,
if anyone is interested in the impressions I get as a result of my experi-
ence, such as it is, lawyers do not have a very coherent picture in mind.
This is a subject on which the rules are well settled. There ought to be
no doubt or confusion at all, but lawyers are frequently in a great deal of
doubt and confusion. How do you use discovery at trial? It’s governed by
Rule 32 and all Rule 32 really tells you is that discovery is usable at trial

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in accordance with the law of evidence. So you’ve got to know your law
of evidence and apply it to the results of discovery at trial.
Now understand what we’re not now considering. We’re not consider-
ing discovery as a way of finding out about the case. You know, you read
through all of the depositions and now you know all about the case. All
right. That’s done. We’re not talking about it as a way of marshaling or
streamlining the proof. That’s done. We’re not talking about it especially
as a way of pinning down the other side so that they can’t change their
story between now and the time of trial. That’s been done. We are on
trial. What use may you make of discovery at the trial?
And I urge you to organize your understanding of how the law of
evidence, as it were, intersects with discovery around three principal
topics. First, impeachment. Impeachment is a more precise term, the
looser form of which is cross-examination. Impeachment means that
you examine the witness so as to show the judge or jury that the wit-
ness is not credible, is not worth believing. Now, one of the ways in
which you may impeach a witness is with the witness’s earlier inconsis-
tent statement. The witness has said one thing in court on direct exami-
nation. Now on cross-examination we demonstrate that the witness at
some time in the past said something different. So the argument is that
the witness speaks with a forked tongue, talks out of both sides of his
mouth, is not worth believing at either time.
Assuming that the witness gave you a statement in the course of
informal discovery or you took the witness’s deposition, formal discov-
ery, the oral deposition, or even that the witness is the opposing litigant
and he answered interrogatories for you, remember that the statement
he gave you informally or the testimony he gave at the deposition or the
answer to the interrogatory is . . . any one of those . . . is a prior inconsis-
tent statement for purposes of impeachment. And all you have to do is
impeach him with it. And how do you impeach him with it? Well, this is
not the occasion to talk about the tactics of the courtroom or the kind of
foundation that is required, but in a nutshell and making it very simple, it
is usually a good idea to lay a foundation by directing the witness’s atten-

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tion to the time, place, and circumstances of the making of that prior
inconsistent statement and then you confront him with it.
For example, the witness is T, a third person, a bystander, who on
direct examination has said that your client went through the red light.
At the deposition three years ago he said your client stopped for the red
light. So, obviously, there is an inconsistency. How would you do it? “Do
you remember, sir, that about three years ago you came to my office for
a deposition? Do you remember that I was there, your lawyer was there,
Mr. Smith was there, and Mr. Jones was there? Do you remember that?
Do you remember that a court reporter was present?” And when you ask
this question and you read it right from the transcript—“Question. Did
the defendant’s car stop for the red light? And did you give this answer—
yes, the defendant stopped for the red light? Were you asked that ques-
tion, sir? Did you give this answer? Did you give that answer?” If he says
yes, you’ve done it, you’ve impeached him. If he says no, you’re going to
have to call the court reporter to testify that he did give those answers,
but that is impeachment. It is perfectly permissible.
The only challenge is a challenge to courtroom craft to do it so that it
has some impact upon the jury. And, most importantly, to this point in
our analysis, there is no hearsay problem whatsoever. Why? Because,
though the statement given at the deposition or the informal statement
given to us when we interviewed this person at the very beginning of
the case, even though those are out-of-court statements, they do not
come in to prove the truth of what they assert, therefore, they’re not
hearsay by definition. They come in solely to discredit or impeach the
witness. The opposing litigant gave us answers in the course of discov-
ery. He answered a question at the deposition. “I stopped for the stop
sign. I looked to the left, I looked to the right, I saw nothing, and then I
proceeded.” Well, in answer to an interrogatory, he said, “I was going 55
miles an hour,” even though we know it’s a 35-mile zone.
Can you put the answer to the question of the deposition or the
answer to the interrogatory into evidence as part of your case? Yes,
you can. Under what theory? On the theory that it’s an admission by

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the opposing party. And if you want to be very careful about it, under
the Federal Rules of Evidence it comes in on the theory that it’s not
hearsay because under the Federal Rules of Evidence admissions are
not hearsay. That’s how you explain their receipt in evidence. That’s
Rule 801(d)(2)—admissions, admissible on the ground that they’re not
hearsay. Remember, you put it in as part of your case and it serves
as some evidence, if the jury is so inclined, that he looked to the left,
he looked to the right, he saw nothing, and only then did he proceed.
It serves as some evidence that he was going 55 miles an hour in a
35-mile zone. That is the nature of an admission.
Now put admissions together with impeachment. Suppose the
opposing litigant takes the stand and testifies. What he testifies to on
direct examination is that he came to the stop sign, he tried to look
to the left, he tried to look to the right, but he couldn’t see anything
because the bushes were in the way. That’s not what he told you at
the deposition. Or he says, “I knew it was a 35-mile zone and I was
going 35 miles an hour.” That’s not what he said in the interrogatory.
May you impeach him with the testimony he gave at the deposition or
the answer he gave to the interrogatory on the theory that it’s a prior
inconsistent statement? Yes, you may. And to that point, you have no
hearsay problem whatsoever. But may the answer at the deposition
or the answer to the interrogatory also come in to prove the truth of
what it asserts? Yes. Why? Because it’s an admission. It’s an admission
because this is not any old witness, it is the opposing party. And an
opposing party on the witness stand who has made a prior inconsis-
tent statement has always, by the same token, given you an admis-
sion. The prior inconsistent statement is an admission. It comes in to
prove the truth of what it asserts as well as coming in to impeach the
witness. All right?
And now the last situation. You took a deposition and the person
you deposed is now dead or beyond the subpoena power or has dis-
appeared off the face of the earth or whatever. In any event, in good
faith, he cannot be produced at trial. Under what circumstances, if any,
may the deposition transcript be received in evidence? Be received as

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if the testimony had been given in open court, right here in front of this
jury? Be received as hearsay, as proving the truth of what is asserted
in that deposition transcript? Suppose the person whose deposition
was taken, but who is now dead, is the opposing party? Can the tran-
script of the deposition come in to prove the truth of what it asserts?
Yes. How do you know? Because I just told you, it comes in as an
admission. And, remember, under the Federal Rules the theoretical
explanation is that it’s not hearsay because admissions are not hearsay
by definition under the Federal Rules.
But suppose the person who is now dead, whose deposition had
been taken is T, a bystander, a mere witness, not the opposing litigant.
You want to put that transcript into evidence to prove the truth of what
it asserts. That means it’s going to be hearsay. Is there any exception
to the rule against hearsay that permits it to come in to prove the truth
of what it asserts? And the answer is yes. And the exception is the for-
mer testimony exception, which you will find in Federal Evidence Rule
804(b), I think it’s 2 or 3, subdivision 2 or 3. What is necessary for the
former testimony exception is the following.
First, the person who gave the former testimony is now unavailable
to testify and the best kind of unavailable, the best from the lawyer’s
point of view is death because there’s no doubt about it. If you’ve got
an unavailable declarant, the earlier statement is admissible, in a nut-
shell, if it was subject to cross-examination. Was the deposition sub-
ject to cross-examination? Well, of course it was. The other side was
given notice of it, the other side was there. Maybe they even did cross-
examine. It therefore comes in to prove the truth of what it asserts, it
comes in as hearsay and the relevant exception is former testimony.
Test yourself now. Suppose the person deposed is T, a mere wit-
ness. He is not dead, nor is he beyond the subpoena power. He’s just
horsing around, he doesn’t want to come to court. Can you put the
transcript of his deposition into evidence? Nope. Why? Because it’s
hearsay and it doesn’t fit the former testimony exception. Why doesn’t
it fit the former testimony exception? Because the declarant, the wit-
ness, T, is not unavailable. He’s not dead, he’s not beyond the subpoena

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power. He’s simply misbehaving and misbehavior, refusal, for no rea-

son or an arbitrary reason to come to court after being served with a
subpoena, is not unavailability as 804 defines unavailability.
I want to add very briefly a section to the outline, ladies and gentle-
men. The final section that we’ll be talking about in just a couple of
moments involves the abuse of discovery. We’ve already adverted to it
and I’ll talk about it some more. Let me add a section and the section
might be headed, “Some Specific Suggestions for Conducting Deposi-
tions of a Recurring Nature.” And before turning to that, let me address
what you see at the very top of page 11. Where a deposition is admissi-
ble in evidence, because it’s the deposition of a bystander who is now
unavailable within the meaning of Federal Rule 804(a) or because it is
the deposition of the opposing party and we wish to put it in as part of
our case, this is a matter of courtroom etiquette more than of law.
If you are the side of the case offering the deposition, you offer
those parts of it that you wish to offer. You are not obliged to offer the
entirety of the deposition. And the way you normally do it is to read it
to the jury. Now, that can be very boring. What I think any judge would
permit you to do to bring it a little bit to life is to put a colleague on the
witness stand, simply to sit on the witness stand, not to be sworn
as a witness, and the colleague reads the answers and you read the
questions. So you’ve got the two voices going back and forth and the
answers seem to be coming from the witness stand, as they would if,
in fact, this person were testifying in the flesh instead of through the
deposition transcript. If you omit anything, the other side may read
what you omit, if the judge thinks, in fairness, the jury ought to have it
all. And if that’s what the judge thinks, the other side can read it right
then and there. If the judge says, “Well, the plaintiff has read every-
thing that deals with issue A and the rest of the transcript deals with
issue Z, so I see no reason to require that the jury have it all at once,”
remember that the other side, the defendant, can read the transcript
dealing with issue Z to the jury as part of its case, so that ultimately
the jury gets it all. So that the jury may get part of it on the offer of one
side, the other side may get the judge to say, “You may read the rest

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of it to the jury right now.” Alternatively, the other side may simply read
the rest of it to the jury as part of its case. I repeat, this is etiquette
more than law and you do it in whatever sensible way the judge says
that you should do it.
But now let me turn to my added section—some specific sugges-
tions for depositions or, conceivably, interrogatories in particular kinds
of cases, recurring cases. And I do not pretend that any of this will
come as news to those of you experienced in litigating this kind of
case. But not everybody is experienced in every kind of case and
it may be that, even though you’re a very experienced lawyer, next
month you’re going to have your first class action or your first medical
malpractice case or whatever it may be and let me give you a sugges-
tion or two that might help.
First, suppose you are defending a class action. Remember that a
class action is a very complex invention of the law. The elements which
must be present before you can have a class action are clearly and unmis-
takably set forth in Rule 23 of the Federal Rules of Civil Procedure. Many
lawyers overlook the possibility of taking the deposition of the plaintiff
who purports to represent the class, not on the underlying issues, but
on the elements which must be present if this is to be a class action. In
short, you depose on the elements set forth in Rule 23. Numerousness
of the class, typicality of this plaintiff’s claims, the degree to which the
plaintiff is in a position to represent the interests of the absent members
of the class, and the like. The nature of the questioning I will not go into.
You can get that by asking around. Common sense will give it to you.
There are even form books that give it to you. But you may discover that
you take a deposition limited to the elements of a class action under
Rule 23 and, by God, this plaintiff is not a proper representative, which
means you don’t have a class action, which means all you have is the
plaintiff’s individual claim, which is trivial. What you were worried about
was defending against a class action where you had a class of 100,000
claimants and you’ve managed to beat that.
Next, if you are litigating a medical malpractice case on behalf of the
plaintiff, always take the defendant doctor’s deposition. Well, remember

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my rule of practice. Always take the opposing litigant’s deposition, so of

course you will take the defendant doctor’s deposition. If you don’t have
it clearly in mind, inform yourself, as a little bit earlier I suggested in a dif-
ferent context you do, inform yourself of the nature of impeachment out
of a treatise. That’s essentially Federal Rule 803, subdivision 18, and the
commentaries on it. And depose the defendant doctor on authoritative
treatises. That is, the question is simply at the deposition, “Doctor, you
see this book? Is this book authoritative?” Get a yes answer and leave it
at that. You’re setting him up for impeachment at the trial. And the way in
which you would impeach him at the trial will be perfectly obvious when
you read at 803(18) or the commentaries upon it.
Next, if you are taking the deposition of an expert, remember, that’s
not matter of course. It’s done by consent or on the judge’s order.
Where you are taking the deposition of an expert, let me repeat what I
said before and in a different connection said just now. Make sure you
understand how to use 803(18). How you use treatises when examin-
ing, whether on direct or cross, an expert and put the expert through
the hoops on the deposition. I don’t see any of you taking the deposi-
tion to begin with. I don’t see any danger because the testimony can’t
change. “Doctor, is this book authoritative?” If he says no, find out
why it’s not authoritative and come up with the authoritative edition or
whatever it may be. And then at trial you are in a position substantially
to impeach him out of that treatise.
And, finally, a kind of deposition that I dare say most people in the
audience have never taken. You know about it, but it’s the kind of thing
that very young lawyers do, sometimes even paralegals do it. Lawyers
of standing rarely find themselves doing it and I once saw a master trial
lawyer conduct this kind of deposition and it made such an impression
upon me that I will never forget it and I want to pass it on to you. It is
what in my home jurisdictions is called a supplementary proceeding.
Now you may call it something else, but you have it. It is the deposition
you take after the case has been tried and you have won. And the defen-
dant is now not a defendant, he is a judgment debtor. You have a judg-
ment against him for $100,000 and he’s not paying. There is a panoply of

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discovery devices, essentially echoing what we have been discussing,

available to you to help you find his assets. And, once you find them, to
tie them up and apply them to the satisfaction of the judgment.
A supplementary proceeding is a deposition of the judgment debtor.
And as most people take it, because most people taking supplemen-
tary proceedings are very unimaginative, it will proceed this way. Now,
remember, we assume a judgment debtor who doesn’t want to pay.
He may have the assets, but he’s hiding them. He doesn’t want to
disclose them to you and he’s prepared to lie, if necessary, but he’s
not going to pay that judgment. Do you have a bank account? What
answer do you expect? No. Do you own a car? No. Where do you live?
A private house. Who owns the house? My wife. And on and on and
on. You’re just not going to get anything.
I once happened to be present when one of the great trial lawyers
of his generation and his generation is the generation that’s now dying
out. This man is in his eighties, but still active at the New York Bar. I
once saw him conduct a supplementary proceeding where you had
someone you knew was dripping with assets, but was very clever at
concealing them. And, of course, what it was was a matrimonial case,
where this great lawyer represented the wife, she had a judgment for
all kinds of money, support, alimony, et cetera, et cetera, against the
husband and he just didn’t want to pay her a penny. So he was, you
know . . . monkey business is the only way to describe it.
You want to hear the first question on that deposition? And it was
brilliant beyond imagining. The first question was, “Empty your pockets
on the table.” Out they came and, inevitably, you know what’s going
to come out? A key ring. That’s what you watch for, the key ring. And
you just pick it up and you say, “What’s that key?” And at that point
the judgment gets paid because you know what the key is? It’s either
the key to the safe deposit box containing the cash that the Internal
Revenue Service does not know about, or it is the key to his girlfriend’s
apartment that he’d really rather not talk about. And you’ve got him sort
of so bald faced that he can’t lie his way out of it. So remember that
little gambit and it may prove to be useful to you.

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And let’s use not all, but a part of the time remaining, ladies and
gentlemen, to talk about discovery abuse, a problem of concern not so
much from the viewpoint of the workaday lawyer who is trying cases,
but it is a problem of concern to the profession generally, to the non-
litigating branches as well as to the litigating branches. And simply as
good citizens and as lawyers who wish to be upstanding members of
the bar, we all have to be concerned with it.
It is the nature of discovery that it’s susceptible of all kinds of mis-
use. Along the way we’ve mentioned some of the methods by which
discovery can be used not to discover, not to marshal the case for
trial, not to pin the other side down, not to find out what the other
side knows—all perfectly legitimate purposes of discovery—but rather
discovery can be used to frustrate, to oppress, to delay, to disappoint,
so that the other side finally abandons the case or settles for what is
essentially nuisance value.
The nature of the problem is known to the profession; its extent
is far flung. And I could spend a great deal of time on citations dem-
onstrating that point, but let me limit myself to one. When a justice
of the United States Supreme Court, sitting in that ivory tower up on
the hill in Washington acknowledges the existence of discovery abuse,
you know that everybody is aware of it because once it reaches the
Supreme Court, it has reached everybody.
In a case that is otherwise not relevant this afternoon called Herbert
v. Lando,4 known to all libel lawyers, but that’s neither here nor there,
decided in 1979, in a concurring opinion Justice [Lewis] Powell said and
I quote, “[T]he widespread abuse of discovery . . . has become a prime
cause of delay and expense in civil litigation.”5 Now that’s a very polite
way of putting it, but we understand that it’s the Supreme Court or a Jus-
tice of the Supreme Court speaking and they habitually speak in polite
terms. There is no doubt of the existence of the problem, there is no
doubt of the scope of the problem. It exists and its scope represents a

4. Herbert v. Lando, 441 U.S. 153 (1979).

5. Id. at 179.

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scandal in the administration of justice. Now what can be done about

it?
In theory, if the other side misbehaves, you can make a motion for a
protective order under Rule 26(c). And I don’t believe in making motions
for protective orders or the law with respect to protective orders more
complicated than it has to be. Whatever kind of misbehavior the other
side is indulging in the judge can discipline or rectify. Whatever reme-
dial order is appropriate under 26(c), the judge can give you. The judge
can cancel a notice of deposition, he can adjourn a deposition, he can
say that certain questions will not be proper. The possibilities are virtu-
ally limitless. But the imagination and taste for ingenious misconduct
on the part of many litigating lawyers is equally limitless and it’s not
much of a remedy to say to the innocent lawyer, “Go in and make a
motion for a protective order,” because you’re put to the trouble and
expense of making a motion, maybe you catch the judge on a bad day,
the judge really doesn’t want to read these papers about what’s been
going on in discovery, and you end up unprotected. And, in any event,
a protective order only protects you with respect to what’s happened.
Now the other side figures out a new way of misbehaving and you’re
going to have to make another motion and you just end up more and
more frustrated, more and more oppressed, and the client gets the
feeling that money is just flowing out. He’s hemorrhaging money and,
after all, that is one of the purposes for which unethical practitioners
use discovery or misuse it, I should say.
Now, what are some possibilities? One possibility is to handle the
problem by local rule. You’ve got Local Rule 12(b) of the District Court
for the Southern District of Indiana. No form interrogatories. In my
lingo, no interrogatories that come out of a memory typewriter. At
least let some human being read them. Local Rule 9(d) of Chicago,
the Northern District of Illinois. Unless you get special leave of court,
no more than 20 interrogatories and each subpart counts as an inter-
rogatory. There’s one judge in my original home court, the Southern
District of New York, who when assigned a civil case tells the clerk
to give the lawyers a Xeroxed sheet that the judge has prepared. And

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this sheet is entitled something like, “Special Instructions from Judge

X”—I will not now name him—“With Respect to Civil Matters Before
Him.” One, the discovery article of the Rules of Civil Procedure is inap-
plicable. No discovery. Two, if you want to know something, ask the
other side. Three, if they won’t tell you, telephone me. And that’s it.
That’s it. Those are the discovery rules. Every case before that judge
is tried within 60 days of its being commenced. The lawyers groused
and wept and, you know, complained limitlessly when the judge took
the bench and those rules went into effect. These days lawyers cel-
ebrate when they get a case assigned to that judge because you
know it’s going to be tried in two months and what case can’t be tried
in two months? Which means what? It’s not going to be tried in two
months, it’s going to be settled in two months. Most civil cases are
not going to be tried, they’re going to be settled, which means you’re
turning a case over very quickly. Turning it from an account receivable
to cash in the bank. And, obviously, that’s to a lawyer’s advantage, so
that judge is a hero among civil litigators in the district in which he
sits. But not every judge is prepared to do that.
So obvious has the problem become that the American Bar Asso-
ciation itself, no example of fleet-footed justice, the American Bar
Association. The American Bar Association has a special committee
for the study of discovery abuse. That committee has been in exis-
tence, I think, for seven years now and they’re still having meetings.
And they’ve yet to come out with a report. I have no idea what they’re
thinking about. It’s obvious that there’s abuse. It’s obvious that some-
thing has to be done to prevent it. If you want to read an article bringing
you up-to-date as of 1979 on the work of that committee, there’s an
article by a former partner of mine who’s a member of the committee,
at 65 American Bar Association Journal, page 1050.6 If you want to
read a more formal piece of scholarship on the widespread incidence

6. Steve Umin, Discovery Reform: A New Era or Business as Usual?

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of discovery abuse, there’s a note, a rather good note, on it at 91 Har-

vard Law Review, 1033.
Everyone is aware of the enormous popularity these days of alter-
native dispute resolution. The origins of ADR, as it’s called, lie with
the business community—our clients, uniquely in a position to pay our
bills, who suddenly realize that when they get into a dispute they don’t
regard it as a matter of truth, justice, and the American way. Disputes
are an inevitable consequence of doing business and there’s some
price at which every dispute is reasonably to be settled. And they dis-
cover or they find that what lawyers are doing is engaging in a virtually
limitless inquiry into the truth as it exists in the mind of God. And to
this end, millions of dollars will be spent on depositions and interroga-
tories and all the rest of it, when all the litigant wants is a fast, inexpen-
sive, and more or less rational method for resolving the dispute. And
that’s why alternative dispute resolution has come to be so popular.
And you realize what it is—it’s a rational method of resolving a dispute
in hours with no discovery, no pleadings, no large bills rendered by law-
yers to clients. How, then, are lawyers to educate their children, their
grandchildren, and their great-grandchildren? We lawyers, we litigating
lawyers had better look to it. It is a matter not just of good citizenship,
it is a matter of bread and butter self-interest that we clean up our act.
And the way to clean it up is to recognize that discovery has come to
be abused and we better apply our collective ingenuity and imagination
and good sense to coming up with workable devices that will bring
about an end to this kind of discovery abuse.
Rule 11, applying a sanction when a lawyer engages in misbehav-
ior, is a rough attempt in that direction. This is not the occasion for an
extended analysis of Rule 11. In my judgment, it’s probably a failure.
It doesn’t work very well, but at least it was well-intentioned. I think
we’ve got to think beyond Rule 11. When we do think beyond it, we’ll
come up with a solution and we will then have preserved civil litigation
as we have come to know and love it. And if we don’t come up with
that solution, civil litigation as we know and love it may well come to
an end in our professional lifetime.

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Ladies and gentlemen, I can’t pretend that we’ve exhausted the

subject and I’m not going to pretend that we have exhausted you, but
I will frankly admit that we have exhausted me. So I thank you very
much for being so gracious an audience.

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