Abstract: A deposition is not just a way to obtain factual information. A deposition is also an opportunity to test alternative factual theories and case themes to determine the best theme to use at trial. Deposition planning should, therefore, focus on developing a range of theories to be tested in a deposition. This article presents a systematic approach for identifying case theories to test in a deposition and using those theories to identify, prioritize and explore key events and lines of questioning during the deposition. Through this process, depositions can focus on the most important legal, factual and thematic issues of the case.
At trial, the best story wins. And the best story will contain three interwoven elements – a sound legal basis, a coherent set of facts and a moral imperative. These are often referred to as the legal theory, the factual theory, and the persuasive theory or case theme.
Attorneys have the greatest understanding of legal theories. These are the elements established by statute or in common law and incorporated into complaints and affirmative defenses. From the first day of law school, attorneys have the process of identifying legal elements drilled into them.
The concept of having a factual theory, however, is rarely discussed in law school outside of a trial practice course. A factual theory is a hypothesis about the underlying events of the case. In other words, what happened? For plaintiffs, the factual theory is a story that encompasses the factual elements that must be proved to get a favorable decision. For defendants, the factual theory must either demonstrate that at least one element is not present, or encompass the elements of an affirmative defense.
But a dry statement of events is never enough to assure success in a case. Rather, the story must have a moral. The persuasive theory, also known as the case theme, is the moral imperative that causes the judge or jury to rule in favor of one party and against the other.
The case theme must go beyond arguing that the elements of the case have been satisfied. Instead, the case theme results from telling the factual story in a way that brings the emotional content of the story in line with the elements. The case theme must be the logical, emotional and inescapable point of the story. In that sense, the story drives the theme; but at the same time, the theme determines the relative importance of facts, so the theme influences how the story is told.
Lawyers face two challenges in creating that cohesive story with a persuasive theme. The first challenge is that we usually have incomplete information, so a story we receive from our client that appears cohesive today may have holes or inaccuracies that are revealed as more information comes in. Because we have an incomplete understanding of what has occurred, our factual theory will evolve from the time we start working on the case until the time the trial starts, and our theme will evolve with it.
The second challenge is that we have an opposing attorney who will work to present a counternarrative, taking the facts of the case and presenting those facts in a way that supports a different theme. We can’t guard against an effective counternarrative unless we’ve prepared effectively.
These challenges, the unknown facts and competing narrative and theme, mean that when taking a deposition, we must explore multiple factual theories and persuasive themes. An effective deposition can address both challenges while at the same time, moving our case forward toward an effective single factual theory and case theme to be used at trial.
Looking at the deposition from this perspective, we have a number of goals relating to the legal, factual and persuasive theory of the case. We want to:
- Confirm or exclude the existence of the elements of the case.
- Determine the facts that will establish a factual theory (a storyline) that encompasses (for plaintiff) the elements of the case or excludes (for defendant) at least one element of the case.
- Identify facts that support one or more potential persuasive theories. The development of a persuasive theory usually relies on facts that go beyond the elements of the case.
- Identify the legal, and potential factual and persuasive theories of the opposing party and develop facts that undermine those theories.
In preparing for deposition, the objective is to apply a systematic process for pursuing these goals. This process is both a spoken and written exercise, best done by at least two people, with ideas written down while going through the steps outlined below.
This process can be best understood in the context of a specific fact pattern. In Portis v. Agora Department of Transportation, the case used for deposition training by the National Attorney General Training and Research Institute (NAGTRI), the plaintiff works as a hardware store clerk. He receives a call from his child’s day camp telling him his child was injured in a fight and immediately leaves the store. On the way to pick up the child, Portis gets into a two-vehicle accident with a large dump truck filled with gravel driven by an ADOT employee, Frank Dorsey, who was taking the gravel to a construction site. Mr. Dorsey had six moving violations over the last fifteen years, five for driving more than 10 mph over the speed limit and one for disregarding a traffic control device. Fault is disputed between the drivers, so the single legal issue in the case is the level of fault of each driver.
STEP 1 – Take an inventory of key known facts.
The first step in determining the focus of a deposition is to review what you already know. Take an inventory of good facts and bad facts. What is it you like and don’t like about the case you’ve taken on? Ideally, you will work with another person in this process so you can exchange ideas. Your co-counsel will already have an idea of what the case is about, so that’s a good place to start. Keep in mind that we tend to become emotionally attached to the side of the case you are on. As a result, thinking about the bad facts may be more difficult than thinking of good facts.
If you don’t have co-counsel, find someone you can talk to and explain the case, warts and all. Listen closely to the questions they ask to get clues about what facts they might find troubling.
For example, for the plaintiff in the Portis case, one good fact is that Portis’ statement to the police indicates he came to a complete stop before attempting to turn. A bad fact is that Portis may have been in a rush or distracted because of the injury to the child. For the defendant, a good fact is that a turning vehicle has a duty to yield to oncoming traffic. A bad fact is Dorsey’s driving history.
STEP 2 – Consider how to convert the bad facts into something either helpful or neutral.
The goal here is to start thinking about how you will address the bad facts at trial, and from there, think about what you need to learn at deposition about these bad facts. To do that, determine what you can say about each fact that might suggest it actually supports your side. At times, this process involves simply reframing the fact, explaining why the initial impression is wrong and how the fact supports your side’s position. At other times, it involves a search for evidence that negates the impact of the bad fact or the reliability of its source.
For example, if the opposing case theme will be that Portis was in a rush or distracted in driving to pick up his son, then any behavior by Portis that contradicts that conclusion becomes important. Portis indicates he came to a complete stop at the intersection. An admission from Dorsey at deposition that affirms this statement can be used to weaken the argument that Portis was rushing or distracted. Instead, Portis could be viewed as a cautious person, increasing the likelihood that he waited until the light turned red to clear the intersection.
STEP 3 – Identify potential case theories for your side that will need to be tested in the deposition.
At this point, the process incorporates case theory by considering how the legal theory, the factual theory and the persuasive theory work together. But as noted above, apart from the legal theory set out in the elements of the complaint’s claims, these theories have not yet been finalized, so the goal is to consider alternative theories.
There are many things that ADOT, through its employees, may have done to cause the crash. These possible scenarios give rise to multiple factual theories:
- Dorsey was speeding, preventing him from stopping in time as the light changed;
- Dorsey operated the dump truck under the speed limit but still too fast for the conditions;
- Dorsey was distracted and went through a red light;
- Dorsey didn’t have a view of the traffic signal;
- ADOT failed to properly supervise Dorsey, failing to ensure that he knew how to properly drive a fully loaded dump truck.
Just as there is more than one potential cause for the accident, there is more than one potential persuasive theme that might be applied. Portis should win because:
- The state, and employers in general, must be accountable for their employees’ misconduct;
- The state put an unqualified driver in charge of a major piece of construction equipment and set him loose on the road;
- Dorsey is a habitual speeder who should never have been trusted by the state with dangerous heavy equipment.
- The state prioritized completing its construction project over assuring safety.
- ADOT put an unqualified driver in charge of a dangerous piece of construction equipment because it prioritized its construction schedule over safety.
Each of these themes make the case about the other side. The best of these themes will state or imply what the other side did was wrong and why the world will be a better place and justice served if the jury rules against the other side. In addition, each of these themes will have its own set of facts needed for development at trial. Those sets of facts may overlap but will likely differ somewhat or will at least require emphasis of different facts during the trial.
Like the consideration of the good and bad facts, this process is best done with more than one person involved. One factual or persuasive theory tends to provide ideas for another and another. By exchanging ideas back and forth two people can develop the broadest range of the potential theories.
STEP 4 – Identify potential case theories that the other side will be likely to pursue.
This is the same process, but for the opposing party. In Portis, the defense might have several factual theories about the case.
- Portis was in a rush and did not stop before making his turn.
- Portis was not in the intersection at the time the light changed from green to yellow and from yellow to red, so he must have gone through a red light, causing the accident.
- Portis misjudged the speed of the approaching truck.
- The truck’s speed was recorded and shows Dorsey was under the speed limit.
- The truck has a dash cam that shows that the light had just turned yellow at the time the truck entered the intersection.
One of the challenges in thinking about factual theories of the opposing party is that we don’t know what information the other side may have. For example, the last two factual theories depend on the existence of a vehicle tracking device on the truck, a common feature these days for fleet vehicles. In theory, our written discovery will address this concern, but an attorney should not assume that all relevant information was identified or provided in response to written discovery.
As with Portis, ADOT’s persuasive theories will likely focus on the behavior of the opposing party. For example:
- Portis’ concern for his son caused him to be reckless;
- Concern for a child doesn’t justify endangering others;
- Portis was distracted, not focused, and shouldn’t have gotten behind the wheel;
- Portis was an overprotective father whose emotions caused him to drive recklessly.
One thing you may notice about these theories and those for the plaintiff is that there is a certain amount of overlap in the ideas. For example, the third proposed theme focuses on Portis being distracted, while the fourth focuses on Portis’ emotions in the moment, but both, indeed all of these, are really focusing on the impact the injury to Portis’ child would have on Portis’ driving. The development of a case theme tends to be an iterative process, with each idea building on the last. The subtle differences can drive the factual theories in different directions. Regarding distraction, one factual question might be whether Portis felt that his child’s injury was one that must be reported to the child’s mother? Was he on the phone for that reason? Regarding emotion, was Portis worried or amped up in a way that would cause him to act rashly?
As mentioned above, the defense theories are all about Portis because the defense will try to make the case about Portis. But it’s important to keep in mind for the purpose of deposition planning that the ultimate goal is to tie these persuasive themes back into the deposition that we are taking of the other side. For the plaintiff’s counsel in the Portis case, that means considering how those defense theories play into questioning not of Portis, but of Dorsey. That takes us to the next steps, in which each side’s case theories guide the selection of lines of questioning; as attorneys, we weigh the value of various lines of questioning by thinking of how those lines fit into the most effective case theories for each side.
STEP 5 – Develop a game plan by identifying areas of questioning that will confirm good facts, convert bad facts and allow the testing of the theories, both yours and theirs.
In this step we weigh the relative value of the various case themes on both sides, considering how persuasive they are, what factual support the theme has or may have, and whether those facts support or undermine the legal elements. This step is the key to this process.
In terms of the Portis case, we might conclude the following themes are the strongest for each side:
- For Plaintiff: ADOT put an unqualified driver in charge of a dangerous piece of construction equipment because it prioritized its construction schedule over safety.
- For Defendant: Portis was an overprotective father whose emotions caused him to drive recklessly.
Key elements of the plaintiff’s theme above are the driver qualifications, the danger posed by the equipment and whether the construction was behind schedule. This suggests a number of lines of questioning, some mentioned in step 2 above and some new. These would include Dorsey’s driving history, and whether the truck posed a risk, but also the construction schedule and whether the road conditions were considered in loading the truck. This is an example of how the factual theory drives development of the theme, but the consideration of theme then refines the range of factual issues to be explored at deposition, both prioritizing some existing factual theories and pointing to new factual theories.
For the plaintiff’s attorney, this same process is repeated both for multiple potential case themes for the plaintiff, but also with respect to the defendant’s potential themes. So, if we expect the defense to argue that Portis’ emotions caused him to be reckless, then one focus of the deposition would be on what Dorsey observed and heard in talking to Portis. Portis would almost certainly be emotional after an accident, but did Portis mention his child’s injury when he talked to Dorsey? If he did, that would suggest that even after a near-death experience his focus was on his child, and perhaps not on the road. As plaintiff’s attorney we would want to know these facts so we could prepare to address that issue at trial.
In a simple case, we may be able to explore the full range of potential factual and thematic issues during the course of a deposition, but in a case with any degree of complexity attorneys may need to prioritize issues. This step of the process allows a comparison of multiple factual and persuasive theories for each side so that the attorney can consider which lines of questioning will be most important and, therefore, a point of focus within the deposition.
STEP 6 – Organize your areas of questioning, identify exhibits and consider stage setting, action and explanation.
The final step takes the various lines of questioning identified and prioritized in this process and organizes these in a logical way. We may want to go through in a chronological, topical, or tactical way, depending on the witness and the issues. By tactical, I mean that certain topics or questions within a topic that will especially challenge a witness and possibly make the witness more hostile may be best addressed toward the end of the deposition.
As an example, if a goal of the deposition is to develop evidence of Dorsey’s poor driving skills or bad driving habits, he is likely to get defensive. This may be a good topic for late in the deposition. In contrast, he may not see himself as having responsibility for maintaining the project schedule, so he may be more willing to provide useful information on that subject and not view those questions as a personal attack, suggesting this will be a topic that can be safely addressed early in the deposition.
Exhibits must be integrated into the deposition outline. Should the witness be questioned on a subject without the exhibit at first in order to test independent memory? Or is it better to use the exhibit from the beginning in order to have a frame of reference? For example, should Dorsey be shown the diagram of the accident before or after he describes the accident in response to questioning.
Finally, think about stage setting, action and explanation questions. Stage setting refers to the objective information that allows us to assure we will get a complete story. For example, what other cars were at the intersection just before or after the accident? Where are the traffic control lights? What were the road conditions? None of these questions directly tell the story of what happened, but without this information we will have no context as the witness explains the action – i.e., the sequence of events that are the basis for the lawsuit.
We need, for example, to know where the traffic signal is to know if Dorsey could have seen the light change to yellow as he claims in the accident report. We need to get stage setting information for each scene of the story. If we didn’t get that information before the deposition, then we need to establish the stage setting in the deposition. Once we have the stage setting information, we can get the action, working through the sequence of events.
Finally, we need to get the explanation of why events happened. Why does Dorsey think he had trouble stopping? Why does he think that Portis would have turned with a large truck barreling toward the intersection? He probably doesn’t know, but that still may be something to pin down in the deposition.
By following these steps, we can feel confident that we have a comprehensive outline prepared for the deposition. That doesn’t mean that we never deviate from this outline once the deposition starts. Witnesses will sometimes provide unexpected information that leads us in a new and important direction.
But some witnesses will give us what amounts to bright shiny trinkets that appear on the surface to be valuable but are in reality an attempt to distract the attorney from important issues. Developing an outline through the steps described above provides a baseline both in terms of the range of topics and the priority of topics. We can weigh any unexpected information against the importance of the topics in our outline, allowing us to stay focused on the most important legal, factual and thematic issues.
Ultimately, at trial, attorneys must pare down these thematic choices to a single factual theme and case theory. The steps outlined in this article allow us to develop the most persuasive factual and persuasive theory to present in that trial.