For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
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most skilled questioner. However, numerous<br />
deposition transcripts will exist for the<br />
serial deponent and offer a plaintiff’s attorney<br />
ample cross- examination material. So<br />
read these first after searching for them and<br />
before designating a witness. On the other<br />
hand, a first-time witness requires more<br />
preparation time, which means additional<br />
cost, a significant issue in today’s world.<br />
Jury Appeal<br />
Even though most cases settle, defending<br />
counsel should always consider a deponent’s<br />
potential to appeal to a jury. <strong>The</strong> analysis<br />
is no different from deciding whether<br />
to call a witness during a trial. If a plaintiff<br />
alleges warning defect claims, evaluate<br />
whether your client’s warning witness will<br />
communicate the reasons why the company<br />
chose to design the warning the way it did<br />
effectively. Similarly, can a company’s design<br />
engineer in a design- defect case involving<br />
complex engineering issues explain to<br />
a jury how the product was designed, what<br />
risks the company evaluated, rejected, and<br />
accepted, and how the company conducted<br />
feasibility and alternative- design studies If<br />
these witnesses are skilled communicators<br />
who can teach a jury about a product, designate<br />
them as 30(b)(6) witnesses. However,<br />
if not, work with a client’s in-house counsel<br />
to identify the witness or witnesses who<br />
can serve in the role.<br />
Temperament<br />
Similarly, you should evaluate a witness’<br />
temperament, appearance, and likeability.<br />
You would never put certain employees on<br />
the witness stand for a variety of reasons.<br />
<strong>The</strong>y are generally unlikeable, do not have<br />
jury appeal, and do not communicate well,<br />
among other things. <strong>The</strong>refore, you should<br />
not designate them as 30(b)(6) witnesses. If<br />
a plaintiff’s counsel is aggressive, consider<br />
whether your client’s witness’ personality<br />
will handle or succumb to the aggressive<br />
tactics, always remembering that the witness<br />
potentially will testify before a jury.<br />
<strong>The</strong> last thing that you want is for a witness<br />
to lose his or her cool and to come across<br />
poorly during a deposition.<br />
Person with the Most Knowledge<br />
vs. Prepared Knowledge<br />
In a product liability action, the knee-jerk<br />
reaction in choosing a 30(b)(6) witness is to<br />
select the engineer involved in the manufacture,<br />
design, or warning of the product.<br />
While a natural reaction, counsel should<br />
first reread the deposition notice to make<br />
sure that it seeks testimony about the manufacture,<br />
design, and warning of the product<br />
that this witness can provide. It is<br />
important to note that the rule allows a corporate<br />
defendant to designate more than<br />
one witness to testify on the noticed topics.<br />
Fed. R. Civ. P. 30(b)(6) (“then designate one<br />
or more officers”); King, 161 F.R.D. at 476.<br />
Sometimes choosing multiple witnesses<br />
to testify on a product’s manufacturing or<br />
design history can work best. Next, will<br />
the witness with the most knowledge—<br />
the engineer—make the most effective<br />
witness As already mentioned, you want<br />
to pay attention to a witness’ temperament<br />
and potential to appeal to a jury. If the witness<br />
with the most knowledge, no matter<br />
his or her position, will not be an effective<br />
witness, then educate another corporate<br />
employee to testify. Or, for instance, have<br />
an engineer testify only on limited topics,<br />
limiting the damage that he or she might<br />
do because he or she cannot communicate<br />
what he or she knows effectively.<br />
Witness Involvement with a Product<br />
Another compelling consideration is the<br />
witness’ involvement, even if remote, with<br />
a product. Before selecting a witness, you<br />
should review the relevant documents<br />
thoroughly to determine whether the witness<br />
authored any of the “bad company<br />
documents.” <strong>The</strong> answer to this question<br />
may influence your witness selection decision.<br />
An author- turned- witness may be in<br />
a better position to explain a “bad” document<br />
than a witness who did not author<br />
the document. However, someone other<br />
than an author may have the ability to<br />
answer questions about the correspondence<br />
because he or she did not draft it and<br />
might feel less defensive about the contents,<br />
allowing the witness to testify more comfortably<br />
about it.<br />
Warning- defect cases are especially difficult.<br />
<strong>The</strong> potential witness with the most<br />
knowledge almost always is the engineer<br />
who designed the warning. Before producing<br />
this witness, every document, including<br />
electronically stored information,<br />
should be located and reviewed to determine<br />
whether an opponent can cross-<br />
examine the witness with damaging<br />
documents. Does an engineer have notes<br />
or diagrams that did not make it into the<br />
relevant project file Are they damaging<br />
Remember, a client will have to produce<br />
these documents if it relies on them to prepare<br />
for a deposition, assuming that the client<br />
did not already need to produce them in<br />
response to a plaintiff’s document request.<br />
<strong>The</strong> witness is the face<br />
of a corporation, and the<br />
deposition testimony,<br />
which counsel will often<br />
videotape, will bind the<br />
corporation during a trial.<br />
Similarly, does a potential witness have<br />
“product pride” All corporate witnesses<br />
will take a certain pride in their company’s<br />
product and believe that the company<br />
“did no wrong,” or they often believe that<br />
a plaintiff misused a product in an unforeseeable<br />
manner, maybe even recklessly,<br />
and disregarded the product’s warnings.<br />
This “pride” can become problematic when<br />
a witness fights with an opposing counsel<br />
during a deposition. Always admonish a<br />
witness during preparation that the goal of<br />
a deposition is not to win a case but just to<br />
get in the car at the end of the day without<br />
having torpedoed the case. Because you do<br />
not want a witness’ pride to hinder a deposition’s<br />
success, do not hesitate to be firm with<br />
the witness during deposition preparation.<br />
Current or <strong>For</strong>mer Employee<br />
<strong>The</strong> rule requires a corporation to produce<br />
a witness with “information known or reasonably<br />
available to the organization.” Fed.<br />
R. Civ. P. 30(b)(6). That witness, at times,<br />
may be a former employee if the information<br />
that the former employee has is “reasonably<br />
available” to the corporation and<br />
a current employees does not possess the<br />
former employee’s knowledge base or can<br />
become educated sufficiently to testify.<br />
Certain issues are associated with desig-<br />
<strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong> ■ 37