Ask a defense lawyer whether it makes sense to conduct a direct examination of his (fact) witness at the end of a deposition taken by plaintiff’s counsel.
A few rare lawyers will say that they’ll do limited “clean-up work” at the end of the deposition, so that any obvious errors are corrected on the record before the deposition ends. (The mistaken testimony was thus fixed at the time of deposition, rather than by a later declaration.)
But most defense lawyers give a flat-out “no” when asked whether it makes sense to do a direct exam of their own fact witness. Most lawyers say that they control their own witnesses. If the witness made a mistake, the witness can correct it later. And, these lawyers say, there’s surely no reason to do a substantive direct examination during a deposition, because the lawyer can always call his own witness live at trial — and then surprise plaintiff’s counsel with the direct testimony, rather than having previewed it at the deposition.
That’s the conventional thinking. But the conventional thinking is often wrong in unconventional cases, and there’s nothing less conventional than a mass tort.
How many fact witnesses do defendants typically call to present the defense case at a pharmaceutical product liability trial? Typically, the fewer the better. The defense definitely needs a “Mr./Ms. Company” to present the need for the drug, the history of its development, the testing required by the FDA, and so forth. And, depending on the scope of witnesses’ personal knowledge or the plaintiff’s attack on the product, the defense may need another witness or two to pick up other details — the drug’s regulatory history, or adverse event reporting, or something else.
But no defendant we know of is going to be trotting through the whole executive suite putting on dozens of witnesses to defend the product. That would be (1) distracting for the company, (2) expensive, since each witness would have to be thoroughly prepared, and (3) risky, since each witness presents a target for plaintiff’s counsel to attack and the possibility of mistake.
So the usual trial mass tort litigation has most likely two or three – maybe four or five at the most – company witnesses at trial.
Compare that to discovery.
During discovery, plaintiff’s counsel deposes a dozen corporate employees, often more, sometimes a lot more. That does away with the conventional wisdom that the defense can save its direct exam for trial: probably ten of the twelve deposed witnesses won’t be testifying live at trial. If there’s no direct exam at the deposition, there won’t be any direct exam at all. All that the jury will ever see is video clips of the company’s witness being cross-examined (and thus probably not looking his or her best), and there will be no video clips of the same witnesses being lobbed softballs by the good guys for the witnesses confidently to hit out of the park. What’s the good in that? Even (especially) the weakest witnesses do a lot better under friendly direct than unfriendly cross.
To be sure that the defense has decent video clips of all of its witnesses to play at trial, defense counsel has to do short direct examinations of most witnesses at the end of their depositions.
Now compare the conventional wisdom to mass tort discovery.
In mass torts it’s not just a dozen corporate witnesses. Instead, plaintiffs scorch the earth, deposing scores of the defendants’ employees as witnesses. And it’s simply inconceivable that the defense will be calling those same scores of corporate witnesses at each trial in a mass tort. From those scores of videotapes, it’s a sure bet that the plaintiffs will select clips of the corporate witnesses that came off worst in their depositions.
So the only way to ensure the most compelling defense case available — defense witnesses telling our side of the story in the way that’s most persuasive — is to have videos of the corporate witnesses in the can. That way, where one of the company’s witnesses got crosswise on cross, at least the jury also gets to see the witness looking a whole lot better on direct. But this testimony can’t be used if it’s never created in the first place. That means defendants in mass tort cases need to think long and hard about doing short direct exams at the end of depositions taken by plaintiffs’ counsel.
We understand that there are exceptions to every rule, and there are exceptions to this one, too. But let’s at least consider changing the conventional wisdom in mass tort cases. In such massive litigation – where plaintiffs will be picking and choosing testimony from scores of witnesses to show the client in the worst light possible – defense counsel should consider starting from the assumption that they will do direct exams of most of their witnesses, and make deviations from that rule the exception.