If you were to ask most lawyers whether an attorney should notice the deposition of their own witness, you'd likely get a response touting the following, conventional, but flawed, opinion:
Never do a direct examination of your own witness at a deposition. Your witness is under your control, so you have the ability to fix any issues in their testimony later. For example, if opposing counsel uses the deposition testimony against you in a motion, you’ll just get a declaration from your witness that explains away the problem. If opposing counsel uses the witness’ bad testimony during trial, you simply call your witness to the stand to fix any issues with their deposition testimony. Why broadcast your strategy before the need arises?
Though that strategy may have been reasonable in a pre-COVID-19 world, it simply doesn't hold water during a pandemic. In a time where more than 6.9 million people in the United States have been infected with the coronavirus and over 200,000 have lost their lives,1 attorneys have good reason to worry about whether their witnesses will be available to swear to declarations or testify during trials. In most cases, trial is far removed from the deposition date. Meanwhile, coronavirus case numbers remain persistently high across much of the country. Deaths, though still well below their peak spring levels, averaged more than 1,000 per day in August, more than double the average from early July.2 In mid-September, deaths still averaged around 850 per day; with the fall flu season rapidly approaching doctors and epidemiologists fear that the minor progress made in stemming coronavirus-related mortality will be lost.3
If your witness’ age or underlying medical conditions place them at high risk of coronavirus-related mortality, then you should strongly consider noticing their deposition – especially if your witness lives in a state that is a coronavirus hot spot and/or lives in a nursing home.4
My unconventional advice on this issue isn’t limited to the current pandemic. In any case involving an elderly witness, a witness with a terminal illness, or a witness with multiple chronic health conditions that put them at increased risk, it is unwise to rely on your ability to present the witness’ live testimony during trial. We all know that the only things you can rely on are “death and taxes” and, unfortunately, during a pandemic the former may hit closer to home than you anticipate. Should your key witness succumb to coronavirus, the conventional wisdom of (1) not noticing your own witness' deposition or (2) not asking questions of your own witnesses at a deposition noticed by the other side may be dangerously wrong.
First, if you are an attorney reading this article, I suggest you make your clients aware of the pros and cons of deposing your own witnesses, discussed herein, so that you can help your client make an informed decision.
If you are a party to a lawsuit and you already have an attorney, feel free to email this article to them. Your attorney may have a good, strategic reason for waiting to notice the depositions of at-risk witnesses, but you should start a candid discussion.5
Finally, if you have yet to file a complaint but expect you’ll need to soon, you should speak with an attorney sooner rather than later. Why? Even if you aren’t ready to file a lawsuit now, your attorney can start collecting evidence and depose witnesses who are at high risk of later unavailability even before the complaint is filed. (See CCP § 2035.010 et. seq.) The longer you wait to start collecting evidence,6 the higher the risk of key witnesses with pre-existing health issues succumbing to COVID-19.7 If you depose key witnesses who are at high risk of death or other forms of unavailability that would prevent them from testifying at a later date, you will preserve potentially helpful testimony and discover the location of other key evidence. But remember that, absent a showing of good cause,8 you can only depose witnesses once. (CCP § 2025.610.)
Normally, you cannot use a deposition transcript of your own client at trial - unless the witness is unavailable. (CCP § 2025.620, subd. (c)(2)(C).) And some of the clearest forms of unavailability are serious illness or death.
Once the court determines that a witness is unavailable to testify, then the witness’ deposition transcript can be used at time of trial. The questions and answers must be read into the record during trial, which allows the testimony to be considered by the judge or jury.
Even better, you could have your witness’ deposition recorded by a videographer. This adds to the deposition costs, but if you need to present the video at trial because the witness is unavailable, having a means for the fact finder to see your witness’ credibility will be well worth it – not to mention that a video will be much more likely to hold the jurors’ attention.
Under normal circumstances, doing a direct examination during your witness’ deposition is seldom advised, as it gives opposing counsel advance notice of your case theory. However, during a pandemic, I’d much rather forecast my strategy than risk not having key testimony at all. American life has been fundamentally reordered because of the virus – so too must litigation strategy change.
If you believe your key witness(es) are at increased risk of coronavirus-related mortality, you may schedule an initial consultation to discuss the issue with our team.
Claire Melehani is an attorney at Gates Eisenhart Dawson with experience litigating cases involving clients and witnesses who are elders. If you believe that you or your key witness(es) are at increased risk of coronavirus-related mortality, you may schedule an initial consultation to discuss the issue with her and the Gates Eisenhart Dawson team.