Deposition Presentation for Will County Bar Association Civil Litigation Committee Seminar for January 19, 2012. Roman R. Okrei 200 W. 11 th Street Lockport, IL 60441 (815) 834-9410 Caveat: The comments and statements contained herein, including the cynicism, are those of the author only. No discredit should be cast upon the Civil Litigation Committee of the Will County Bar Association by my comments. 1. Purposes of a discovery deposition: There are four reasons for taking discovery depositions: (1) find out what happened; (2) size up the deponent; (3) see if there is an impeachment; and (4) admissions by a party, as these are admissible at trial. Also see Supreme Court Rule 212 for Purposes for Which a Discovery Deposition May Be Used (impeachment, admissions by a party, admissible if an exception to hearsay and as an affidavit in pleadings) . 2. Types of depositions in Illinois State Court : Unlike Federal Court, Illinois has both discovery and evidence depositions. In an evidence deposition the examination shall be the same as though the deponent were testifying at the trial. Rule 206(c)(3). Therefore, you make all of your objections at the evidence deposition. If you are calling the witness you cannot lead the witness (other than an adverse or hostile witness). This presentation will not be focusing on Evidence Depositions, but suffice it to say that if it is an Evidence Deposition the notice must so state, all objections must be made at the time of the deposition that could be cured at that time, and you should assume that you are in front of the jury or judge while the questions and answers are taking place. 3. Scope and manner of deposition: Rule 206 (c)(1) provides the scope and manner of taking the deposition. It is simple. You ask questions and do not give speeches or your opinions about matters. Nothing more is to be done. You ask questions as if cross-examining the witness. No speeches. Examples: “Sir, I represent the badly injured person who was wrongfully injured by this no good son of a bitch whom we are suing, and I’m going to ask you questions at this deposition about what happened, okay?” That is improper. “Miss, I represent the poor doctor who is sued for malpractice by this person who claims, allegedly, that the good doctor was a malpracticing physician. I couldn’t talk to you before 1
because of the rules, which I always follow, so let me ask you some questions, okay?” Improper. Simply ask your questions of the deponent and do not give a speech. Remember , Rule 206(c) governs this and provides: (1) The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules. The deponent may be questioned by any party as if under cross- examination. For an attorney to give his or her version of what occurred or what the case is about exceeds the scope of Rule 206(c) and is improper. As an aside, if you as the attorney are questioned by the opposing counsel during a deposition about something that occurred, that is not the place for such questioning while on the record. I generally ask to go off the record for such exchanges, as dialog between the attorneys on the record is not the purpose of a deposition. That exceeds the scope of Rule 206 (c). 4. How far can questions go ? Some questions seem to be in left field . If the questions are relevant to the issues in the case, or may lead to relevant information then you have free rein. Monier v. Chamberlain , 35 Ill 2d 351 (1966). As an example, in an injury case an attorney may ask if a plaintiff made an application for life insurance. This could lead to relevant information because a physical may have been required by the life insurance company wherein the plaintiff may have said that he or she was healthy and had no physical problems. Also remember that just because you can ask the question does not mean that you have to. Many of these matters are trivial that no one cares about, but attorneys often feel compelled to ask them anyway. 5. How do you notice up a deposition? Rule 206(a) states that you simply send notice for a party’s deposition to everyone of record at a reasonable time in advance of the deposition (or an officer, director or employee of a party). If it is a non-party witness, you must serve a subpoena (if not by agreement) with seven day’s notice by certified or registered mail, including the payment of the fee plus mileage. Rule 204(a)(2). Personal service of a subpoena is also always good. In addition to the Clerk of the Court issuing subpoenas, attorneys can now issue subpoenas. Rule 204(a). 6. Fees for the deposition : Believe it or not, but the fees are still $20.00 and .20 cents per mile (except for doctors). 735 ILCS 35/4.3. Physicians get paid a reasonable fee, and unless it is a paid expert physician, the party asking for the deposition pays the fee. Rule 204(c). Chiropractors count as physicians for the purpose of the fee rule. Montes v. Mai, 398 Ill. App. 3d 424 (First Dist. 2010). If it is your paid expert giving opinion testimony, you pay the freight when the other side wants your expert’s dep. 2
7. Where can the dep be taken ? The deposition, unless otherwise agreed to, should be taken in the county where the deponent resides. If it is a party’s deposition, the deposition can be taken in the county where the suit is filed. So, for example, if you filed a case in St. Clair County, but your plaintiff lives in Will County, you can be compelled to bring your client to St. Clair County for his or her deposition. Rule 203. If your expert is from out of state, he or she cannot be compelled to come to Illinois for their deposition (absent a court order for special circumstances), but as stated in paragraph 6, you pay the expert’s bill for his or her time. 8. Can you subpoena an out-of-state witness with an Illinois subpoena ? You can, but it won’t do you much good, as it would not be valid. Illinois does not have jurisdiction to compel the appearance of an out-of-state witness in Illinois for a deposition, or even a deposition in the home state without following the rules in that state. Lee v. Hyster Co. 156 IllApp. 3d 214, 509 N.E. 586, (1 st Dist 1987 ). Hill v. Thomas B. Jeffery Co. 292 Ill 490 (1920). 9. Can you use the discovery deposition at trial if there was no evidence deposition? Sometimes, but don’t count on it. Rule 212 (a)(5) provides, even if it is a party’s deposition, effective January 1, 2011, as follows: (5) upon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is neither not a controlled expert witness nor a party, the deponent’s evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties (emphasis added). This Rule 212 (a)(5) is not a “Gimmee”. It should be rarely used, as the court understands that if every attorney anticipated that each discovery deposition could be used at trial there would be an undue burden placed on the entire civil discovery system. Attorneys would be objecting to leading questions with every question asked, and all objections would have to be made at the time of the discovery deposition. We have not seen much use of it, and it is doubtful that this is something that will often occur. We still have evidence depositions, hence the courts may be reluctant to start allowing parties to use discovery depositions in their entirety at trial. If you think that a witness may not be around for trial, take an evidence deposition. 10. Objections at discovery depositions: Unfortunately too many attorneys are not familiar with Rule 206(c)(3). Objections at depositions shall be concise, stating the exact legal nature of the objection. That means that you cannot make speaking objections, yet we hear them far too often. For an attorney to interject that he or she does not understand the question, which is usually coaching the witness, is improper. For the attorney to “object to the form of the question” when you are about to hit a home run is improper if done for the purpose of coaching the witness or your client (unless the form is truly improper). What is an improper “form” of the question? Let’s look. 3
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