By: Robert A. Mineo

The use of the deposition under Rule 30 of the Federal Rules of Civil Procedure or any of the similar state rules is the most powerful tool available to an attorney during the investigative states of discovery. Lately, the interrogatory seems to be an invitation to opposing counsel to participate in new forms of creative writing where answers to the specific questions posed are seldom answered and knowledge as to the meaning of common English language terms is disavowed.

Therefore, the ability of counsel to obtain useful information during discovery depositions might very well establish the settlement value of the case and possibly its final disposition.

Because of the variables present, no two depositions are ever alike, with the possible exception of those taken of economic experts. As a result, I will subdivide this discussion into the types of individuals usually deposed in aviation cases, and then briefly discuss the unique problems involved with each. Specifically:

I. Pilots and Flight Crew,
II. Air Traffic Control Specialist
III. Meteorologist
IV. National Transportation Safety Board Investigators
V. Engineering Experts, and
VI. Doctors.

In each of the foregoing categories, I strongly suggest deposition by video tape if it can at all be anticipated that the deponent will not be available for trial. Because of the technical nature of the evidence proffered in aviation litigation, any visual aid which might help the jury understand the testimony is worth the additional time and money required. It has been my experience that nothing is more frustrating than obtaining critical information during a deposition and then having that evidence effectively negated by the monotone reading of the deposition containing those critical elements of evidence at trial. (Sleep for the jury is the only guaranteed result of reading a technical deposition.) This is particularly relevant in cases where a defendant’s employees are the only source of technical data and insight into the design philosophy followed during the inception, design and manufacturing stages of an aircraft’s development. If this information is important to the issues in dispute and the employee deponent was at all helpful to the plaintiff’s position, it can be assumed in virtually all cases that the deponent will not be produced at trial voluntarily. In design cases such as this, a powerful video tape deposition of the defendant’s own employee can be the key element on which the jury relies to understand the issues involved and ultimately decide the case.

I. PILOTS AND FLIGHT CREW

When available, the testimony of the pilot in command (PIC) and other flight crew including first officers and flight engineers may be critical in determining what caused an accident. Because these individuals are personally involved and their future employment may be affected by their testimony, these types of deponents may be the most difficult from which to elicit meaningful testimony. In most cases however, statements by these individuals will have been taken by representatives of the Federal Aviation Administration or National Transportation Safety Board immediately after an incident or accident. A complete and full understanding of the content of these sworn statements must be had by the deposing attorney prior to deposition. This can best be achieved normally by a full discussion of the statements between deposing counsel and his pilot expert. In many cases, it is not what is contained in the statement but what is not. (Example: A statement made immediately after an accident in which runway length was at issue did not contain any mention as to the effect of any weather at the time of the accident. Subsequent statements made by the pilot, many months later and after litigation had been initiated, began to imply that weather was the cause of the crash. The question remains did weather contribute to the crash or was it only a convenient excuse?) The deposing attorney must know enough about the operational criteria surrounding that portion of the flight during which the crash occurred so as to understand whether or not the statements given by the flight crew are complete or are missing critical information which the crew should have known or been aware of when giving the statement. With this information in hand, deposing counsel can concentrate on developing new information without being misdirected by the deponent.

Where question of crew training are involved, deposing counsel must fully understand the training requirements established by the Federal Aviation Regulations for different types of commercial flights and the many certificates and type ratings required for different aircraft operation.¹

Having a Certified Flight Instructor present at the deposition, particularly if he personally instructed the deponent, can be very helpful in curing any “selective amnesia” of which the deponent may suffer when questioned as to what his aviation training consisted of and how, if at all, this training was applied during the time of the crash. Although many manuals are available from the Federal Aviation Administration concerning pilot training and aircraft operations, the one which I would recommend to all preparing for a pilot deposition is designated as the Airman’s Information Manual or AIM.² Although basic in nature, this manual defines most of the aeronautical terms necessary for a discussion in this area.

II. AIR TRAFFIC CONTROL SPECIALIST

The deposition of any air traffic control specialist should first begin with the deposing attorney becoming familiar with the duties and responsibilities of the individual being deposed. Within the hierarchy of air traffic control, there are many specialty areas. These range from those individuals who operate the tower cabs at the airports, specialist operating in Centers, and equipment specialist who maintain and calibrate the different navigation systems in use today.

If the United States is a defendant in the action, interrogatories and request for documents under Rules 33 and 34 of the Federal Rules of Civil Procedure can be of great use in determining the names and position descriptions of individuals who were in some way involved with the accident flight. The Facility Procedures Manual, which establishes the formal operational procedures for a given facility, should be obtained and utilized in preparation for and during the deposition.

In addition to discovery under Rules 33 and 34, many Federal Aviation Administration reports can be obtained directly from the Agency or through the National Transportation Safety Board. Specifically, flight plan information, personnel statements, the initial report of the aircraft accident, the chronological summary of flight services, and transcripts of air to ground and ground to air communications along with copies of the original, audio recordings are available.³

In uncomplicated cases of single aircraft operations and single FAA facility contact, the foregoing information should be sufficient to adequately prepare a deposing attorney for a deposition. However, in more complex cases where more than one aircraft is involved or many FAA facilities have taken part in the control of the aircraft, one additional step is recommended. This consists of consulting with a private air traffic control expert. There are a few excellent retired air traffic control specialists who can review the raw data, the facility operational procedures manuals, and the communication transcripts in order to help prepare questions for the deposition. Input from this type of consultant is invaluable in a complex case.

III. METEOROLOGIST

Weather is one of the primary factors involved in many aircraft accidents. As such, depositions of expert meteorologists and flight service station weather observers are typically taken during the early stages of discovery. If accomplishing nothing else, these depositions establish early in discovery whether or not any party contends that weather played a significant part in causing the accident being litigated.

In an arena where acronyms are very prevalent, the first matter to be addressed prior to a deposition is finding a source of definitions. Fortunately, there are numerous publications published by the Federal Aviation Administration which deal with weather, its affect on aviation and the types of weather data and reports which are available to flight crew. One of the best initially issued in 1954 as the Pilot’s Weather Handbook. CAA Technical Manual No. 104, superseded in 1965 by a new publication titled Aviation Weather. This publication or any of its subsequent revisions provide a good reference for definitions and weather theory.

The second area of preparation prior to a weather related deposition is to understand how weather is presented to flight crews. Weather forecasts and reports are generally given with respect to specific geographic positions. Unfortunately, these geographic positions are themselves coded using the three letter airport identifiers for those airports with weather reporting facilities in the contiguous United States. It is imperative that prior to the deposition the deposing attorney become knowledgeable of the airport identifiers establishing the boundaries of reported weather conditions so as to assure that the correct geographic area is established early in the deposition. Once the geographic locations of observed and forecast weather have been carefully established, these conditions can be superimposed over the actual route of the accident aircraft. Only in this manner can the relationships of weather fronts in different parts of the country, PIREPS from aircraft flying near the flight path of the accident aircraft and SIGMETS and AIRMETS issued for specific geographic areas, be reviewed to determine their effect, if any, on the accident flight.⁴

Finally, all parties involved in weather related aviation litigation must fully understand the different types of reports available. Knowledge of the differences between area forecasts and actual observations; radar and satellite generated data; and RAWINSONDE observations and winds aloft forecasts (FD) is critical when attempting to determine what finite weather information was actually available to a flight crew at a given time and what conditions were only a forecast of weather conditions based on prior data. A full discussion of the different types of weather data available is much too involved for this paper; however, knowledge of the differences should be fully understood prior to deposition.

IV. NTSB INVESTIGATORS

The National Transportation Safety Board is task to perform a safety investigation of every aircraft accident in the United States where severe personal injury or death has occurred.⁵ Although the Board is further task with other types of safety investigations, only aviation investigations will be addressed in this paper. The Board generally sends one investigator in charge (lie) to the crash site of small aircraft accidents but may supplement his presence with additional personnel when necessary. Additional NTSB personnel generally include avionics specialist, metallurgist and aircraft systems experts. Along with these individuals, representatives of the airframe manufacturer, engine manufacturer, propeller manufacturer, and other subsystems manufacturers can be requested to participate in the investigation by the NTSB investigator in charge. Initially, a Preliminary Accident Report is generated by the on-site lie providing only the initial information available at the crash site. This preliminary report is supplemented later by the formal NTSB Factual Report and Probable Cause Findings.

Other reports available from the NTSB include subcommittee reports done under the direction and upon the request of the IIC, Federal Aviation Administration reports, and, radio transcripts regarding air traffic control services provided to the accident aircraft. The subcommittee reports generally consists of power plant and propeller analysis, avionics tests, and metallurgical analysis. These reports along with the Factual Report and Probable Cause Findings make up the NTSB Accident File.⁶

Before any deposition is scheduled of the IIC or any NTSB specialist, all of the above reports should be obtained and reviewed. The Board will make its employees including the IIC available on a one time basis to all parties involved in the litigation for deposition but will not allow any employee to personally appear at trial.⁷ In light of this fact, a video tape deposition of NTSB employees is recommended if their testimony is for trial purposes.

Although not present at all depositions, legal counsel representing the Board may appear. In any event, the NTSB investigator has been well briefed as to what types of questions he is allowed to answer and as to those types he is to decline answering. In order to fully understand what type of information can be effectively elicited during the deposition, a review of the Board’s rules is recommended. This is necessary because it is not always an easy task to separate factual determinations, of which the Board employee is allowed to testify, from opinions which he is not allowed to give. Some depositions can be reduced to no more than a series of objections concerning this issue. If this is likely to occur as a result of the type of testimony that is to be elicited, frank discussions between all counsel should be undertaken prior to the deposition. If agreement cannot be reached, the deposition should begin and appropriate motion practice be instituted, under Rule 37 of the Federal Rule of Civil Procedure, if the Board’s employee refuses to answer or is directed not to answer factual related questions. In some cases, adjournment of the deposition as allowed by Rule 37(a)(2) may be warranted.

Once these potential problems have been overcome, the most significant obstacle to obtaining new and relevant information remains: the almost certain claim by the deponent that he has NO knowledge of the accident separate from what is specifically contained in the report which bears his signature. This can be somewhat understood when considering the number of accident investigations an NTSB investigator is required to participate in and generate reports on. Nevertheless, this claim can transform the deposition transcript into no more than a verbatim reading of the report prepared by the deponent. In some cases where evidentiary foundation for other evidence is the only purpose of the deposition, this is sufficient. However, if the development of new facts is the purpose of the deposition, only the thorough and systematic review of each report and a complete discussion of every photograph may stimulate the memory of the deponent.⁸ Other types of discussions which tend to focus the deponent on the specific accident include questions not addressed in the Factual Report but which the investigator needed to address during the Report’s preparation. These include:

A. What parties were present when the investigator arrived on the crash scene?
B. Who arrived first on the scene and what did they do, if anything?
C. Did anyone take photographs at the site prior to the arrival of the investigating team?
D. Was any wreckage disturbed prior to any photographs being taken, such as in an attempt to remove the flight crew?
E. Are any aircraft components currently in the possession of the Board and who was the wreckage released to?
F. Are there any photographs other than those in the Report and in whose custody are they in?

The successful deposition of an NTSB investigator is possible and can be done in most cases without the necessity for motion practice if one follows three basic rules:

1. Be patient, let the deponent once again familiarize himself with the file;
2. Be prepared by reviewing and being familiar with all of the reports, photographs and other data contained in the NTSB Accident File; and
3. Do not attempt to make the NTSB investigator YOUR EXPERT by asking him questions which require him to give opinion testimony.

V. ENGINEERS

Having obtained an engineering degree and practiced as an aeronautical engineer in my previous life, I enjoy depositions of engineers the most.⁹ The first thing to remember when deposing an engineer is that he lives in a world totally different from that of a lawyer. An engineer is accustomed to absolute and finite answers to specific questions and LAWS which are never changing and repetitive over centuries. Unlike lawyers, who can through creative writing and argument change the interpretation of a law so as to have it applied in fifty different ways in fifty different venues, the engineer’s world consists of many LAWS which cannot be changed regardless of the will of the people, the venue of the occurrence, or the desperate needs of the engineer.

Force = (Mass)(Acceleration) is absolute; it does not vary from the Fifth Circuit to the Ninth Circuit, nor from the Plaintiff’s Bar to the Defense Bar.

As a result of these differences, the first thing which must be done in preparation for an engineering deposition is to understand the particular language of his specialty and to be alert to terms and phrases which might have different meanings to the lawyer and engineer. As I have discussed earlier, the word LAW itself is a good example of a term which has an entirely different connotation when utilized in a legal context versus a scientific context.

The second area of preparation consists of becoming knowledgeable as to the area of expertise claimed by the deponent. One common weakness of lawyers and engineers alike is attempting to claim expertise in all areas and to become a “man for all seasons.” This can be fatal to both. To prepare for the deposition and assure oneself that the expert does have special training and expertise in the area of his testimony, interrogatories propounded under Rule 26(b)(4) should be utilized. In addition, a request for the curriculum vitae of the expert along with his work history, list of published works, and educational experiences should be made and received prior to the deposition. This information can be then reviewed by your own experts and deposition questions formulated to either substantiate the deponent’s credibility in a given area or prepare a foundation for a successful cross-examination at trial. Under some situations it may even be helpful to have your own expert attend the deposition to help you formulate questions concerning some technical matter. In one deposition I had, the department .head of an engineering school, who was well known as a structural expert, attended the deposition of one of his faculty. This particular faculty member had been proffered as a structural expert but was known professionally as an aerodynamicist. Only briefly into the deposition the deponent was withdrawn as an expert and the case was settled shortly thereafter.

Whether you are taking or defending a deposition, know your expert, understand his areas of expertise, and do not allow him to give testimony in areas where he is likely to be discredited. You owe your expert this protection; his credibility is critical for the current case, and may well affect your own credibility in this and many future cases.

VI. DOCTORS

All of the recommendations I have made concerning NTSB investigators and engineers apply equally to the deposition of doctors. Areas of expertise and a language that may be foreign to the attorney make preparation and patience paramount. In addition to these problems, doctors seem to exhibit one consistent trait which can make depositions more difficult. Confronted with a specific question, they attempt to answer questions other than the one posed. With a virtually unlimited source of unique medical terms and acronyms available to them, they can be quite successful in evading’ a question. To overcome this tendency, I recommend spending time before the deposition with your own consulting doctor in order to properly phrase questions and become knowledgeable of the terms which you should expect to encounter in an appropriate answer to the proffered question. Knowledge of the terms which you should expect to hear in response to a question will allow you to immediately become aware if the deponent is evading answering the question asked. It also allows you to make specific reference to these terms during the questioning. If any expert becomes aware that the deposing attorney is knowledgeable of his field, including the unique terms involved, he is more likely to answer the questions proffered with candor. Respect for knowledge and hard work seems to permeate all fields, even among adversaries.

One additional caution is warranted when addressing the deposition or trial appearance of a doctor. Do not assume that your world-renown neurosurgeon or cardiology specialist is also familiar with the anatomical models which are available for illustrative use at deposition or trial. Only one thing is more embarrassing than to sit in a deposition where the skilled doctor is handed a model to use in explaining his testimony and have the model fall completely apart; this is having a video tape of your expert doctor attempting to reassemble the model with little success but with mounting frustration. Give all models and exhibits to your experts before the deposition so that they can manipulate them to their hearts content. Like all boys, experts too like their toys.

SUMMARY

Depositions Can be the most fruitful tools of discovery because of the freedom which is allowed the attorney in the selection of the individuals deposed, the questions asked, and the format utilized. Depositions can also become no more than a voluminous collection of useless pages of irrelevant testimony. Only preparation and patience separate these two results.

1. The Federal Aviation Regulations are contained in 14 CFR Section 1-1200. Particular sections of interest are Part 91, General Aircraft Operations and Flight Rules; Part 61, Requirements for Pilots Certificates; Part 121, Commercial Operations of Large Aircraft; and Part 135, Air Taxi and Commercial Operations of Small Aircraft.

2. The Airman Information Manual (AIM) is available from any Government Printing Office and is designated with FSN No. 750-001-00000-9.

3. Although audio recordings, Radar DART and NTAP data are recorded by different FAA facilities, these tapes are reused on a regular basis, thus destroying all previously recorded data. In light of this, all interested parties should contact the Federal Aviation Administration immediately after an accident and request that ALL data relevant to the accident be preserved.

4. AIRMETS (advisories for light aircraft) forecast warnings of conditions which may be hazardous to light aircraft. AIRMETS also serve as amendments to the area forecasts. SIGMETS (significant meteorological advisories) forecast warnings to airmen of weather conditions potentially hazardous to all aircraft such as severe icing, turbulence and thunderstorms. PIREPS are pilot reports of actual weather observations made during flight which are appended to other weather observations.

5. 49 U.S.C. 1901, 1902(a), 1903.

6. The admissibility of NTSB reports has been addressed by many jurisdictions since the inception of the Aviation Act in 1958. Relevant sections of the original act dealing with this issue were subsequently codified as 49 U.S.C. 1441(e) and 1903(c). See also Berguido v. Eastern Airlines. Inc., 317 F.2d 628, 631 cert. denied. 375 U.S. 895 (3d Cir. 1963); Kline v. Martin. 345 F. Supp. 31 (E.D. Va. 1972); Beech Aircraft Corp. v. Rainey. 488 U.S. 102, 1095 S.Ct. 439 (1988) (companion issue dealing with the admissibility of a U.S. Air Force Accident Report).

7. NTSB Regulations were codified as 49 C.F.R. 800-845 in 1986. Specifically, Part 835 establishes the criteria for the testimony of NTSB employees.

8. Photographs contained in the NTSB Factual Report are provided in copy format when the report is sent to requesting parties. These are of little use at deposition and actual photographic copies of the original photographs should be requested separately.

9. For basic reference, I divide my life into two distinct stages. First, pre-law, when I believed that I had a general understanding of how things in the universe operated and where answers to questions were absolute and unequivocal; and, finally, after-law, where I realize I understand little and am totally unable to answer anything absolutely and unequivocally.