USE OF DEPOSITIONS. Prepared and Presented by: 10185143 v1

USE OF DEPOSITIONS Prepared and Presented by: Christine L. Mast Hawkins and Parnell, LLP 4000 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 30308-3243 (404) 614-7542 cmast@hplegal.com

Use of Depositions A. Strategies 1. The Rules While O.C.G.A. 9-11-30 and 9-11-31 govern the taking of depositions both live and by written questions, O.C.G.A. 9-11-32 addresses the actual use of depositions in court proceedings. In general, the Georgia Civil Practice Act allows the use of a deposition at trial, a hearing of a motion or any interlocutory proceeding just as if the witness was testifying live in court. There are two important caveats: first, the party against whom the deposition is used must have been present or represented at the taking of the deposition or have had reasonable notice that it was being taken; and second, the testimony must be admissible under the rules of evidence. O.C.G.A. 9-11-32(a) and (b). These additional provisions apply: any party can use any deposition for impeachment any party can use the deposition of any adverse party or its corporate representative for any purpose any party can use a nonparty deposition for any purpose IF the witness is: dead out of the county unable to testify because he is too old, sick, infirm or in prison a member of the General Assembly and the session will conflict with trial 1

OR if the offering party cannot procure the witness s attendance by subpoena the witness s attendance would pose manifest inconvenience to the public or third persons because of his occupation or business. 9-11-32(a)(3). However, use of a deposition, even when the witness is available to testify, is within the discretion of the court. O.C.G.A. 9-11-32(a)(4). Most depositions are taken for discovery, rather than with a specific use in mind. Often, however, a potential use will make itself clear during a deposition. Thus, deposition questions should always be asked in a form that will be acceptable by the Court if and when the deposition is tendered, because the utility of the deposition will be limited by the admissibility of the testimony taken. When you introduce a deposition into evidence, except in impeachment or contradiction, you are making the witness your own, regardless of whether or not you took the deposition. O.C.G.A. 9-11-32(c). You are entitled to lead the opposing party or an adverse witness only. When deposing a non-party witness, then, you must establish that the witness is adverse in order to lead, or you must restrict yourself to direct questioning. This becomes especially important when it is time to admit the testimony in court. If you lead a non-adverse witness in the face of objections by opposing counsel, none of the testimony you elicit through those leading questions will be admissible in your case when you attempt to use it at a hearing or at trial. Custom in Georgia is to agree to a stipulation reserving all objections except those going to the form of the question or the responsiveness of the answer until the time of 2

first use of the deposition. This stipulation addresses problems that can be corrected at the time of the deposition. If they are not asserted at the deposition, they are waived. Haynes v. McCambry, 203 Ga. App. 464 (1992). Typically, attorneys will hold other objections unless it is strategically beneficial to make them during the deposition. Nevertheless, when it comes time to offer into evidence the testimony at depositions, numerous other objections may be voiced that can have significant impact on the admissibility of all or parts of your depositions. O.C.G.A. 9-11-32 provides that deposition testimony may be excluded upon any basis that would require exclusion if the witness were testifying live. Testimony can, therefore, be limited on grounds such as relevance, competency, hearsay, or any other objection that properly could be made to preclude admissibility of evidence. 2. Planning The Case With Depositions While you are planning your discovery blueprint, you are not always able to discern all the potential uses your depositions may have. Some uses, such as discovery motions or motions in limine, may not become obvious until during or even after the depositions are concluded, once the attorneys have had an opportunity to examine the depositions and other discovery and fit the puzzle pieces together. Depositions can and should be planned with motions for summary judgment in mind. Though it is not uncommon for angles of a dispositive argument to be developed or eliminated through depositions, it is most effective to plan and outline your depositions after you have identified the primary dispositive arguments, whether for the plaintiff or defense. This type of planning can impact the order of the depositions you take and the 3

organization of the questioning of an individual witness. Strategy considerations include how educated the witnesses and opposing party are about the potentially dispositive arguments, the role which non-party versus opposing party testimony will play, or whether settlement is possible or desirable prior to a determinative motion. At a minimum, you must develop your prima facie case by getting the facts from the witnesses who have them to support or defeat the elements of your cause of action or defenses. On the other hand, there are motions that develop due to deposition testimony without any planning at all. For example, the opposing party or witness may unexpectedly say something that could support a dispositive motion. Alternatively, you may encounter testimony that builds upon prior written discovery or comes up for the first time which raises the necessity of attempting to preclude the evidence or testimony as the case moves forward. This may indicate the need to compel additional discovery with court intervention, either in written form or in a reconvened deposition to respond to questions to which answers were refused. Motions in limine may also become necessary based upon depositions of parties or nonparty witnesses. B. Use of Depositions in Motions Depositions are paramount for discovering facts and preparing for trial. But once the depositions are taken, various motions may be supported or opposed with depositions. 1. Motions to Compel/Protective Orders Motions to compel sometimes follow depositions. Where a deponent refuses to respond to questions upon his counsel s objection and instruction not to answer, the transcript containing the questions and the refusal to respond will be the centerpiece of a 4

motion to compel the answers in a reconvened deposition. Using the deposition transcript, you can show the court the road down which you are headed and why the information is discoverable (though not necessarily admissible itself). Depositions are also useful tools in establishing the basis for a motion to compel documents. See e.g. Savannah College of Art and Design v. Sch. of Visual Arts, 270 Ga. 791 (1999). It is not uncommon for counsel to learn during a deposition that additional documents exist which have not been produced, whether intentionally or inadvertently. Exploring fully in your depositions the efforts made by the opposition to uncover documents sought in discovery will bolster a motion to compel the production of those documents if the party refuses to supplement voluntarily. Most often, counsel will anticipate that a sensitive yet irrelevant area of questioning may be encountered in an upcoming deposition, and seek a protective order in advance of the depositions to preclude it. Sometimes, we simply have not anticipated every possible basis for a protective order ahead of time. One such situation presents itself when opposing counsel s questioning in a deposition raises a topic that is not relevant or reasonably calculated to lead to the discovery of admissible evidence, though it may not go far enough in the deposition to necessitate court intervention at the time. However, the identification of a problem area may warrant a motion to preclude future depositions, especially of your client, from including examination in the off-limits area (such as questioning related to trade secrets or income). 5

On the other side, as the deposing counsel, you may encounter opposition in a deposition when delving into certain areas. Advance motions for protective order seeking direction from the court on the scope of questioning are appropriate. Transcripts from depositions previously taken can provide support or opposition for a motion for protective order. For example, defending counsel has an opportunity to object to the questioning in the deposition and to state his position as to the basis on the record. Likewise, counsel taking the deposition can place into the record the questions that sufficiently make clear the basis or reason that the questioning is appropriate for this or future witnesses. Additionally, counsel can provide an on the record factual explanation of how the area of questioning is important to the case or could lead to admissible evidence. The testimony itself may also provide the necessary background for a motion for protective order. 2. Motion for Summary Judgment Depositions are very frequently used to support or to oppose a motion for summary judgment. O.C.G.A. 9-11-56(f) and Rule 56(f) of the Federal Rules of Civil Procedure provide a party responding to a motion brought early in the discovery period an opportunity to take depositions or obtain affidavits in order to respond. Though depositions taken under these circumstances are specifically for the purpose of responding to the summary judgment motion, these depositions are still the only opportunity to discover all the facts the witnesses know, so the depositions should not be limited to the areas covered in the summary judgment motion. You may want to employ 6

cross-examination techniques to address the specific evidence supporting the motion, but for the remaining subject areas, more open questions will probably still be preferred. The likelihood of success of a motion for summary judgment depends almost exclusively on the quality of the depositions that have been taken during discovery. Ideally, you will have examined the causes of action and defenses sufficiently in the deposition planning stage and obtained the necessary facts, admissions and other concessions to position your client to make a successful motion for summary judgment. Further, depositions will provide the backbone of the motion. Most, if not all, of the facts included in the statement of undisputed facts will be extracted from the deposition testimony. Georgia law dictates that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. O.C.G.A. 9-11- 56(c). Similarly, under Rule 56 of the Federal Rules, the court will consider depositions along with affidavits, pleadings, admissions, and interrogatory responses in ruling on a summary judgment. The nonmoving party is given the benefit of all inferences. Burnette Ford v. Hayes, 227 Ga. 551 (1971). Where contradictions occur between a party s testimony in deposition or in affidavits, generally the testimony will be construed against the party. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (1986). Thus, if you have been able to catch the opposing party offering contradictory testimony during his deposition, you will get the benefit of the favorable testimony. Similarly, if a party attempts to defeat 7

a summary judgment by contradicting prior testimony with an affidavit, only the testimony favorable to the movant is considered. Id.; see also CSX Transportation Inc. v. Belcher, 276 Ga. 522 (2003). Pursuant to the Georgia Civil Practice Act, you can support your motion with any form of testimony. O.C.G.A. 9-11-56. You can submit affidavits to supplement your client s testimony in deposition, if the necessary information was not brought out by the questioning of your client. However, since the burden is on the movant, you must be careful not to contradict any deposition testimony without adequate reasonable explanation for the change. You may also submit depositions taken of a party in another lawsuit. Mitchell v. Southern Gen l Ins. Co., 194 Ga. App. 218 (1990). In addition, you may rely upon hearing or trial transcripts and depositions of witnesses in other civil or criminal proceedings. Abalene Pest Control Svc., Inc. v. Orkin Exterminating Co., Inc., 196 Ga. App. 463, 466 (1990). Since no evidence need be established by live testimony at the summary judgment stage, the accessibility of a witness to testify at trial is no concern. Id. Though courts generally give the same weight to sworn testimony regardless of form, many attorneys believe that it is more effective to rely on deposition testimony as opposed to affidavits, even if the deposition testimony does not provide perfectly phrased sound bites. Typically, you are relegated to sworn testimony, interrogatory responses and other written discovery responses for the opposing party s testimony, as it is unlikely that you will have affidavits from the opposing party. With your own client, however, you may need to provide some affidavit testimony to establish certain legally relevant 8

facts if your client was not given an opportunity to tell his story in the deposition. This is where some advance planning and preparation for your client s deposition is helpful. Counseling your client to volunteer certain points at appropriate times during his deposition can give his testimony that much more impact at motion time. Testimony from non-party witnesses also may be presented through depositions or affidavits in support of a motion. Strategy may dictate that you keep a friendly witness to yourself until you submit his affidavit along with your motion for maximum impact. Alternatively, since you most likely have had to disclose the identity of all such witnesses during discovery, they may have been noticed for depositions by the opposing side. If that occurs, and depending upon your overall litigation strategy and goals, you may want to question the witness fully to obtain all the necessary testimony needed to support your anticipated motion for summary judgment. On the other hand, you might choose to defer questioning and obtain an affidavit when the time comes. You must weigh the element of surprise against the impact of deposition versus affidavit testimony and the possible impact the testimony may have on the earlier resolution of the case. If you opt for deposition testimony, preparation of friendly witnesses should be done. Any resistance encountered on the part of the witness in setting up a deposition is a good indication that you should depose rather than wait and count on an affidavit. If you do not question a friendly witness during his deposition, and he later refuses to cooperate with you, you have lost your opportunity to obtain that testimony. 9

C. Use of Depositions at Trial Even before trial, litigators will use depositions heavily in trial preparation. Depositions should be used to prepare both the trial attorneys as well as the witnesses you intend to call. Deposition abstracts or summaries, and the deposition transcripts themselves, are invaluable for preparing cross-examination questioning of both your and the opposing witnesses. The deposition testimony will provide most of the questions that you will ask opposing witnesses. Some attorneys adhere strictly to the questions asked in the depositions. Others will enhance the questioning with slight changes in the wording of the questions. Most will, at a minimum, reorganize the questioning to maximize its impact upon the jury. Preparing annotations to page and line will help you quickly locate the deposition question in case a witness varies from the testimony in a material way. In addition to cross-examination use, you should use depositions to prepare your own witnesses for both direct and cross-examination at trial. Provide each witness a copy of his deposition in advance of the trial and instruct him to review it carefully. Be sure your witnesses understand that they should avoid deviating from their deposition testimony at trial and the ramifications of doing so. Specific depositions can be taken at any time for use at trial, even after discovery has closed. Preservation or evidentiary depositions, as most Georgia attorneys refer to them, can be particularly useful if a witness is ill or plans to move or travel around the time of the trial. Often, attorneys will take evidentiary depositions of any out of state witnesses, sometimes back to back with the discovery depositions, to save expense. 10

Here are some suggestions to consider when you are the deposing attorney: Consider videotaping the deposition. If videotaping, go over demeanor, tone and dress, the same as you would if the witness was to testify live. Prepare your witness if possible. Role play and rehearse potential crossexamination. Suggest ways to improve the answers. Remember that your conference may not be privileged. Be sure your questions are understandable and clear. Avoid objectionable questions. Write out your questions and rehearse them. Include background information to bolster the credibility of the witness, especially if the witness is neutral. Use preliminary questions to demonstrate that a witness is adverse before using leading questions. Think about necessary visual aids which may aid the witness in conveying the theme of his testimony to the jury. Anticipate objections and prepare to address them on the record. Unlike a discovery deposition, you must rephrase if the objection is valid or if it might be sustained, because you will not be able to ask it again unless the witness is present at trial. Keep these additional considerations in mind for defending an evidentiary deposition: 11

Most attorneys do not notice friendly witnesses for depositions. Assume that if such a witness is deposed, it will be used for trial. Utilize other sources, such as internet-based public databases, to try to determine what the witness knows and to what the witness may testify. Use the deposition for discovery and preservation of testimony. First, determine the helpful testimony. Then use additional questions to emphasize that helpful testimony. Be prepared to object just as you would at trial. All curable objections must be made on the record. Once you are in trial preparation mode, you must prepare trial depositions for presentation to the jury. This will mean editing the deposition down to the material you need and obtaining rulings from the judge on any objections. Normally, objections to deposition testimony are addressed in pretrial conference. Objections to unavailability usually are addressed in pretrial conference as well. Under the Uniform Rules of Superior Court, evidentiary depositions, and any other depositions which you intend to use at trial, for any substantive purpose, must be designated in your pretrial order. Before the trial, the portions of the depositions that you desire to present to the jury should be redacted and any objections addressed by the court. U.S.C.R. 7.2(18). 1. Testimony of Absent Witnesses While attorneys prefer to present their evidence through live testimony, there are times when a witness will be unavailable. Testimony of an unavailable witness may be 12

offered via deposition. Both O.C.G.A. 9-11-32(a)(3) and Rule 804 of the Federal Rules of Evidence guide the use of depositions in this situation. Questions about the witness s availability normally have already been addressed and decided by the court during the pretrial proceedings. Reading the transcript of an entire deposition into the record during trial is ineffective. Jurors often find it extremely tiresome, and even boring, to have an attorney read a long deposition transcript in open court. If you must read portions of a deposition to the jury, you should consider having a person who fits the role of the witness sit in the witness box and read the part of the witness. Usually, an associate, paralegal or secretary can fill the role. You are not required to read the whole deposition and you should not do so. If the witness were live, you would never ask every single question that you asked in the deposition. Rather, you should select the portions of the deposition which are favorable to your case along with questions and answers necessary to give context to your questioning. You are not restricted to the order of those excerpts. Instead, arrange the selected portions in a manner most suitable to the presentation of your case. When you have read all of your selected excerpts from the deposition, the other side may read in additional parts of the deposition as cross-examination, as he sees fit. However, under circumstances noted in O.C.G.A. 9-11-32(a)(5), the opposing side may be allowed to read, or have you read, additional selected portions immediately following the excerpt that you have read when the jury in fairness should consider both parts together. This is known as the fairness doctrine and is a significant difference between live and deposition cross-examination. 13

Requiring the reading of relevant portions of a deposition during opposing party s questioning is not the equivalent of offering your own evidence. In fact, if you assert the fairness doctrine successfully and, as a matter of convenience, read certain testimony to the jury in compliance with the Court s fairness doctrine ruling, the testimony you have read is nonetheless considered evidence of the opposing party. On occasion, plaintiff s counsel, through use of depositions in trial, gives the defense the opportunity to utilize the fairness doctrine to bring out all of his evidence so that the defense may rest after the close of the plaintiff s case. Preparing for such an opportunity can provide a major tactical advantage for defendants: the defense is entitled to close last if no defensive evidence is offered. See U.S.C.R. 13.4; Kia Motors American, Inc. v. Range, 2005 Ga. App. LEXIS 1092, 2005 Fulton County D. Rep. 3085 (Oct. 3, 2005) (overruling Georgia Pipe Co. v. Lawler, 262 Ga. App. 22 (2003) and holding that no announcement of request to close is required by a defendant if no evidence is presented); Thico Plan, Inc. v. Ashkouti, 171 Ga. App. 536 (1984)(holding that denial of this right is error requiring reversal of the case); see also, Wm. Alsberg & Co. v. Harper Mfg. Co., 28 Ga. App. 367, 368 (1922). Where one party introduces part of a deposition, an adverse party has not "introduced evidence" so as to give up his right to opening and closing argument by exercising his right to introduce other, relevant parts of the deposition. However, the portion of the deposition the defense requests to be read during the plaintiff s case must be relevant to those parts of the deposition submitted by the plaintiff. Note that the defense may not be entitled to close if the same is done with live witnesses. 14

2. Source of Admissions Admissions by a party or a party representative are admissible through deposition. Deposition testimony of a party, an officer, director or managing agent of a party or a 30(b)(6) corporate designee can be used as an admission, and will not be treated as hearsay. For plaintiff s counsel, deposition admissions may allow you to forego calling the opposing party on cross during your case in chief. Keep in mind that pursuant to the fairness doctrine, reading deposition excerpts for this purpose will allow the opposing party to read related portions of testimony that ought to be considered by the jury, together with your selected portion. This may diffuse the impact of the admissions if the additional questioning weakens the sound bite. If you call the opposing party on cross in the plaintiff s case, then the defendant will not have the benefit of immediately defending the admission with the softening testimony except to the extent he is explaining the answer given. 3. Basis for Proffer When you attempt to admit testimony and are thwarted by objections, a proffer is necessary to convince the judge that the evidence is admissible and for preservation of the record for appeal if testimony is not allowed. There are two ways to make a proffer. First, you may simply explain to the judge what you expect the witness to testify. Obviously, this is the least desirable method. A second, more effective proffer technique is to have the witness testify outside the presence of the jury. This will require that the jury leave the courtroom for some period of time. To avoid this, sometimes you may be 15

able to show the judge exactly what the testimony will be, or at least give a flavor for where you are headed, by showing him an excerpt from a deposition transcript. 4. Refreshing Recollection Though you may use anything to refresh a witness s recollection, deposition transcripts are often used. Over time, memories fade and depositions have been taken closer to the events testified about, sometimes years closer. At trial, you need to establish the necessary foundation to refresh recollection, namely that the witness cannot recall the answer and that the deposition might help refresh his recollection. The deposition itself is never tendered into evidence. The deposition may even be used as evidence if the witness simply cannot remember the answer to the question and cannot be refreshed. A witness's testimony at his deposition is properly admissible under O.C.G.A. 9-11-32(a)(1), particularly if he has difficulty with his memory at the time of trial and concedes the deposition was closer in time to the events in question. Lawson v. Athens Auto Supply & Elec., Inc., 200 Ga. App. 609 (1991). 5. Impeachment Using a deposition transcript to impeach a witness is perhaps the most effective use of a deposition transcript during trial. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. O.C.G.A. 9-11-32(a)(1); see also James v. Tyler, 215 Ga. App. 479 (1994). Witnesses may be impeached by contradictory statements made previously as to matters relevant to the case. O.C.G.A. 24-9-83. A prior inconsistent statement of a witness who takes the 16

stand and is subject to cross-examination is admissible as substantive evidence and is not limited in value only to impeachment purposes. Georgia Osteopathic Hosp., Inc. v. O'Neal, 198 Ga. App. 770 (1991). If the evidence is not of the type ordinarily admissible at trial, then it should be allowed only for the purpose of impeachment, not as substantive evidence of the facts, and the jury should be so instructed. Shropshire v. State, 226 Ga. App. 669 (1997). The rule is similar in federal court. Generally impeachment through deposition will mean that the matters are substantive evidence as well as impeachment. "When a witness admits unequivocally that he made a prior inconsistent or contradictory statement, he has thereby impeached himself and it is not error to exclude the prior written statement from evidence. Thomason v. Genuine Parts Co., 156 Ga. App. 599, 600 (1980); see also, Dickey v. State, 240 Ga. 634, 639 (1978); Pethel v. Waters, 220 Ga. 543, 553 (1965); Howard v. Howard, 228 Ga. 760, 762 (1972). For example, in Thomason, the plaintiff admitted his prior inconsistent statement with regard to his speed near the time of the collision. At trial, he testified he was traveling "approximately 35 [mph]," but admitted he had answered "Yes, sir" at the former trial in reply to a leading question that he was traveling "35 to 40 miles per hour." The court found that the prior statement relating to this issue was immaterial and should have been excluded. Thomason v. Genuine Parts Co., 156 Ga. App. 599, 600 (1980). A different rule applies where the witness does not own up to a prior inconsistent statement. When a witness denies making a prior inconsistent statement, the prior statement itself becomes admissible for purposes of impeachment. Dickey v. State, 240 Ga. 634, 639 (1978); Thomason v. Genuine Parts Co., 156 Ga. App. 599 (1980). 17

Following is an abbreviated example of impeachment of a witness at trial: Q: Ms. Brown, you testified earlier today that you saw the defendant s vehicle stop at the traffic light before it entered the intersection, did you not? A: Yes, I did. Q: Isn t the truth that the defendant s car never stopped at the traffic light before it entered the intersection? A: No, that s not true. Q: Are you sure about that? A: Absolutely. Q: Ms. Brown, you remember meeting me a few months ago at your deposition in this case? A: Yes. Q: You came there in response to a subpoena from the defendant s attorney, right? A: Yes. Q: And during that deposition the defendant s lawyer and I asked you some questions, didn t we? A: Correct. Q: You swore to tell the truth that day, didn t you? A: Yes. Q: And you did tell the truth, didn t you? 18

A: I did. Q: I m going to show you your deposition. Please look at page 34, line 23 where I asked you Did you see the defendant s Ford truck stop at the traffic light before proceeding into the intersection? and your answer was No, that truck just plowed right through the intersection without stopping at the traffic light. That was your answer, wasn t it, Ms. Brown? A: I suppose that is what I said that day. Q: And you did not change that answer on your correction page, did you? A: No, I didn t. While the jury may be permitted to hear the prior inconsistent statement in the deposition transcript, the transcript itself is not submitted into evidence for the jury to refer to in deliberations. The jury heard the testimony from the witness stand but same should not be unduly emphasized by giving the jury an opportunity to read them one or more times after hearing them read in the courtroom, whereas oral testimony from the stand is heard only once. Where any such papers are delivered to the jury over timely objections, a new trial is in order. Thomason v. Genuine Parts Co., 156 Ga. App. 599, 601 (1980)(citing Green, Ga. Law of Evidence, 206-207 87.1). The pages of the transcript containing the prior inconsistent statement may not be submitted as documentary evidence as they have no probative value except as testimony of the witness in question. Depositions of corporate representatives can provide fodder for impeachment at trial. As noted above, a deposition taken pursuant to O.C.G.A. 9-11-30(b)(6) can be 19

used for any purpose at trial. For example, if an entity presents a representative for deposition who has insufficient knowledge of the subject of the lawsuit, and fails to present a designee who has the requisite knowledge during discovery, you may be able to impeach the testimony of other representatives who attempt to give different or greater answers to questions at trial. You may even be able to preclude other witnesses from offering any other testimony to supplement that given by the entity s designee in deposition. If all the answers at deposition were I don t know, limiting the party to those answers can be devastating. Experts may be impeached through any avenue available to impeach lay witnesses. Cross-examination of experts presents the opportunity for a few unique impeachment techniques of its own. Unlike lay witnesses, experts can be impeached on authoritative books or other publications, whether or not they have relied upon them in forming their opinions. If the expert relied upon a treatise, you may read a contradictory statement from the source. Even if he did not rely upon it, you may still impeach him with a statement that contradicts his opinions if he agrees that the book is authoritative. You should, therefore, thoroughly explore all of the reference materials relied upon and those that are recognized in the field. If you have laid the foundation in the expert s deposition as to additional evidence he would like to consider or more work he has considered performing, this can be an opportunity for cross-examination at trial. Anything that you have been able to get the opposing expert to admit might be helpful can be a sword if he has not followed through 20

with those ideas. Similarly, you can highlight the failure of an expert to perform further investigation, including interviewing witnesses, reading depositions, or conducting tests. D. Use of Depositions for Settlement/Mediation O.C.G.A. 9-11-27(a) permits depositions before an action is commenced. Presuit depositions are used sometimes when an important witness is in poor health and may die before suit is brought and a deposition can be scheduled. The purpose of the rule is to preserve and perpetuate known testimony, not to provide prospective litigants with a vehicle for the ascertainment of pre-complaint evidence. Worley v. Worley, 161 Ga. App. 44 (1982). However, such a deposition does allow a look-see of anticipated evidence in a prospective lawsuit which can be useful in assessing claims and to explore potential settlement before suit is filed. Where there is concern regarding the negative impact of the filing of a lawsuit, such as undesirable media attention, pre-suit depositions can increase the ability of parties to reach early settlements. While the statutory procedure in O.C.G.A. 9-11-27(a) may be utilized, prospective parties may prefer to enter an informal agreement providing for the depositions, how they will be used, the scope and timing, and other aspects. Such depositions are similar to sworn statements, except that the lawyers for both prospective parties are present for the questioning. Whether depositions are taken pre-suit or during formal discovery, deposition testimony can be extremely useful in settlement negotiations and mediations as a way of laying out the strengths of your case and the weaknesses of your opponent s case. Telling your opposition what the testimony is expected to be simply does not have the impact that a carefully selected compilation of deposition excerpts or video clips can. 21

Sample trial cross-examinations of the opposing party and certain witnesses which are carefully selected to place emphasis on important parts of your case are particularly effective for settlement conferences and mediations. New videotaping techniques match the video to the transcript testimony and make preparing such packages easier than ever before. Even when videotaped depositions are not available, identifying sound bites that you will use in trial to highlight any compelling admissions or concessions you obtained in depositions helps focus the opposition on the problems with their case. Nothing forces you to wait to make use of deposition testimony until a formal settlement conference or mediation. When you have completed a particularly successful deposition of the opposing party, do not hesitate to strike while the iron is hot. A party fresh out of the deposition chair may be more malleable than earlier or later in the proceeding. If settlement is your goal, take the opportunity to engage in negotiations immediately after a good deposition is completed. 22