Why Double the Deposition Work?

10/1/1998 - Chicago Lawyer

Joseph Overcast was a carpenter. He was using a ladder to do some work at the home of Joseph and Clara Bodart when he fell and sustained personal injuries.

A lawsuit against the homeowners was filed for negligently supplying an unsafe ladder. Two years later, the defendant, Joseph Bodart, died.

After a jury trial, a verdict was entered for the defendants. Plaintiffs appealed, contending it was reversible error for the court to refuse to admit into evidence at trial admissions made by the now-deceased defendant in his discovery deposition. Among the admissions made were defendant's statements to plaintiff that the ladder was safe, even though it had no rubber plates on its bottom feet.

The court reversed and remanded the case. Overcast v. Bodart, 226 Ill.App.3d 428, 639 N.E.2d 984 (4th Dist. 1994). Aside from Dead man Act considerations, the case points out the inherent problems of Illinois' peculiar discovery versus evidence deposition distinction, Illinois Supreme Court Rule 202.

The purpose of a discovery deposition is more along the lines of a fishing expedition. As the name implies, it allows an attorney to discover the type of case that exists as well as the type of witness the person will be at trial. How does he or she look? How does the person react to certain questions or issues? How does the person withstand cross-examination? Is the person credible? Is the person's theory plausible? These are all purposes of the discovery deposition but certainly not exclusive to it.

The federal rules recognize a distinction based on the manner in which the depositions are taken, but there is not a difference in their intended use and any deposition may be used for any purpose permissible under the rules. Federal Rules of Civil Procedure 26, 27, 32. Furthermore, any party may use a deposition, not merely the party taking it.

Illinois' procedure is out of the mainstream and requires a discovery deposition to be used at trial only for impeachment purposes. What this means is that a discovery deposition is taken; and then if it is determined later that the witness is necessary at trial, an evidence deposition is taken because that is the only way that the testimony can be preserved at trial.

Time and again, Illinois courts have held that one of the main purposes of the Illinois rules is to facilitate the prompt disposition of litigation. Discovery should be expeditious with an eye toward open communication in the preparation and evaluation of cases. How is that possible, though, given the current practice of taking two often identical depositions of the same witness?

Why is the federal procedure not adopted in Illinois? Even Professor Richard Michael, civil practice expert who has taught for decades at Loyola University Chicago School of Law and written treatises and textbooks on civil procedure, agrees.

"We should go along with the federal system to save the witnesses, attorneys and clients money and time," Michael said. "We should consider adopting the federal system." He goes on to tell the anecdote that it was common practice for trial lawyers in Illinois years ago to take a discovery deposition, take a 15-minute coffee break, then reconvene and take the evidence deposition of that same witness. Well, that is exactly what is still going on today. And that is wrong.

Today, the distinction is often obsolete, anyway, in this age of high-tech advancements reaching into the courtroom. Recording depositions on computerized disks and taking video deps allow editing with the mere push of a button. Can the taking of a second deposition be easier than preparing the questioning more selectively or agreeing on striking certain portions of the first deposition? I recently attended a deposition where a real-time computer display was used to attempt to impeach a discovery deposition of the witness.

Consider the strain on time and resources in the complex tort case under the current rules. For instance, imagine a plaintiff proving, say, 75 prior similar, but unrelated, occurrences for punitive damages purposes. Can you imagine taking 75 discovery depositions then, two weeks later, taking those same 75 evidence deps?

I can. Because I've done it. Or, worse yet, I've seen a defendant take unsworn court-reported statements from a witness, then notice that witness for a sworn discovery deposition as well as an evidence deposition - all on the same testimony. Sure, a motion for a protective order can be sought; but the mere fact that the rules allow for this inefficient use of resources that can be turned into a tactic to obstruct justice as well as harass or intimidate witnesses is disturbing. It's no wonder people aren't eager to participate in the legal process today, fearful of being harassed by the political gamesmanship that goes on between lawyers.

Lawyers hold a unique position in American society because they must simultaneously serve two masters - the client and the court. At times, their demands may appear to be at odds. However, in the case of taking depositions in Illinois the demands can be reconciled in a "search for the truth" without compromising the quality of justice.

Civil discovery occurs largely outside the judge's supervision and a lot of self-regulation of conduct is expected. However, such self-regulating can become difficult in an adversarial system that expects the zealous representation of a client while the representative still serves as a quasi-judicial officer. And this tension between a lawyer's duties to a client and to the court is nowhere more obvious than in the deposition setting.

Perhaps a solution to this problem in Illinois is to see to it that the spirit of the discovery rules be self-effectuating without the need to double one's work. They should not enable one side to delay trial or impose unnecessary expense on the other.

A step in this direction, particularly in these times of cost efficiency and in an effort to relieve any strain on an over-taxed justice system, is for Illinois to adopt the federal approach and obliterate the distinction between the use of discovery and evidence depositions.