Depositions in a Nutshell

Authors: Bergman, Paul B. / Light, Jason / Babbe, David
Edition: 3rd
Copyright Date: 2025

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  1. Foreword to the Third Edition
  2. Chapter 1 Overview
    1. 1. Primary Deposition Goals
    2. 2. Questioning Strategies
    3. 3. Civility
  3. Chapter 2 Arranging for Depositions
    1. 1. Whom May You Depose?
    2. 2. Number of Depositions
    3. 3. Length of Depositions
    4. 4. Necessity of a Notice
    5. 5. Contents of a Notice
    6. 6. Where You May Take Depositions
    7. 7. When You May Take Depositions
    8. 8. Securing a Deponent’s Attendance
    9. 9. Who May Attend
    10. 10. Arranging for Document Production
      1. A. Production at a Deposition
      2. B. Production Prior to a Deposition
    11. 11. Ensuring a Presiding Officer’s Attendance
    12. 12. Ensuring That a Deposition Is Recorded
    13. 13. Waiving FRCP Requirements
  4. Chapter 3 Deposition Preparation
    1. 1. Identify Crucial Factual Contentions
    2. 2. Identify Important Topics, Events and Materials
      1. A. Technique # 1—Review Documents, Deposition Transcripts, and Discovery Responses
      2. B. Technique # 2—Review a Case Chronology
      3. C. Technique # 3—Use an Expert
      4. D. Technique # 4—Anticipate Your Cross Examination
      5. E. Technique # 5—Use a Pre-Fab Checklist
      6. F. Technique # 6—Internet Searches to Gather Background Information About the Deponent
    3. 3. Prepare a Deposition Outline
      1. A. How Should You Organize Your Outline?
      2. B. Should You Use Questioning Prompts or Specific Questions in Your Outline?
      3. C. How Detailed Should Your Outline Be?
      4. D. Strategic Decisions to Make During the Deposition Preparation Process
        1. 1. Should You Omit Topics to Avoid Educating Your Opposition?
        2. 2. Should You Avoid Putting Harmful Evidence on the Record?
        3. 3. Can You Enhance Your Client’s Settlement Position?
      5. E. Do You Need to Prioritize to Comply with the Seven-Hour Rule?
  5. Chapter 4 Beginning and Concluding Depositions
    1. 1. Beginning Depositions
      1. A. Stipulations
      2. B. Admonitions
      3. C. Questions Regarding a Deponent’s Preparation
        1. 1. Documents a Deponent Used to Refresh Recollection
        2. 2. Persons with Whom a Deponent Talked
      4. D. Background Questioning
        1. 1. Employment History
        2. 2. Educational Background
      5. E. Prior Experience Testifying at a Deposition or Trial
    2. 2. Concluding Depositions
  6. Chapter 5 Timeline Questioning
    1. 1. Timeline Questioning Basics
    2. 2. An Illustrative Example
    3. 3. Overcoming Common Timeline Challenges
      1. A. Problem: A Deponent Cannot Organize Important Events Chronologically
      2. B. Problem: Overly-Broad Topics
      3. C. Problem: Overly-Broad Responses
      4. D. Problem: Side-Tracking
  7. Chapter 6 T-Funnel Questioning
    1. 1. The T-Funnel Questioning Pattern
      1. A. An Illustration of the T-Funnel Pattern
      2. B. Using a Series of T-Funnels
    2. 2. “Parking” Subjects for Later Inquiry
    3. 3. Inverted T-Funnels
    4. 4. Common T-Funnels
      1. A. “Everything That Happened” T-Funnels
      2. B. “Everything You Did or Said” T-Funnels
      3. C. “All the Reasons” T-Funnels
      4. D. “Basis for a Conclusion, Opinion or Belief” T-Funnels
      5. E. “Helpful Information” T-Funnels
    5. 5. Event by Event Questioning : Combining Timelines with T-Funnels
    6. 6. Eliciting Stories When a Deponent Cannot Remember the Order of Events
  8. Chapter 7 Strategies for Pinning the Tale on the Deponent
    1. 1. Fill in the Blanks
      1. A. Historical Reconstruction
      2. B. “Especially and Except When”
    2. 2. Pursue Hearsay and Speculation
    3. 3. Ask “Why” and “Why Not”
    4. 4. Ask “Have You Now Told Me Everything?”
    5. 5. Seek out Opinions and Their Bases
    6. 6. Press for Details
    7. 7. Parse Clumped Events
    8. 8. Seek Examples of Repeated Behavior
    9. 9. Clarify Ambiguous References and Gestures
  9. Chapter 8 Cementing Helpful Answers
    1. 1. Pin down Helpful Answers
    2. 2. Cement “Surrounding Evidence”
    3. 3. Delay Cementing
    4. 4. Use the Deponent’s Own Words
    5. 5. Offer a Neutral Explanation for Cementing
    6. 6. Accredit Helpful Information
    7. 7. Obtain an Evidentiary Foundation
    8. 8. Cement “That’s All”
    9. 9. “Asked and Answered” Objections
    10. 10. Communicate Arguments
  10. Chapter 9 Undermining Harmful Testimony
    1. 1. Should You Probe Credibility?
    2. 2. Strategies for Challenging Deponents’ Credibility
      1. A. Challenge the Accuracy
      2. B. Attack the Inference
      3. C. Aggrandize the Lie
      4. D. Undermine Opinions, Conclusions, and Behavior over Time
  11. Chapter 10 Responding to Evasive, Forgetful or Uncertain Deponents
    1. 1. Evasive Deponents
      1. A. Non-Responsive Answers
      2. B. Summary Conclusions
      3. C. “What Do You Mean by. . .” Answers
      4. D. Overly Literal or Hyper-Technical Deponents
        1. 1. Avoid Making Your Questions Too Narrow
        2. 2. Use a Series of Questions Containing Synonyms
        3. 3. Ask for Information from All Sources
    2. 2. Responding to “I Can’t Remember,” “I’m Not Sure” and “I Don’t Know”
  12. Chapter 11 Managing Exhibits
    1. 1. Maintain a Clear Record
    2. 2. Authenticate an Exhibit
    3. 3. Diagrams
  13. Chapter 12 Making and Responding to Objections and Instructions Not to Answer
    1. 1. Making Objections
      1. A. Purpose of Objections
      2. B. “Curable” and “Non- Curable” Objections
        1. 1. Objections That Commonly Are Curable
        2. 2. Common “Incurable” Objections That You Can Raise Later Even if You Don’t Make Them at Deposition
      3. C. Forgoing Objections
      4. D. Phrasing Objections Properly
    2. 2. Responding to Objections
    3. 3. Instructions Not to Answer
    4. 4. Responding to Invalid Instructions Not to Answer
      1. A. On the Record, Ask Your Adversary to Withdraw the Instruction
      2. B. Put the Deponent’s Refusal to Answer on the Record
      3. C. Determine the Scope of the Instruction Not to Answer
      4. D. Obtain an Order Compelling an Answer
    5. 5. Responding to Inappropriate Behavior by Opposing Counsel
    6. 6. A Cautionary Note About Protective Orders
  14. Chapter 13 FRCP 30(b)(6) “Subject Matter” Depositions
    1. 1. Why Take a Subject Matter Deposition?
    2. 2. How Many 30(b)(6) Depositions Can You Take?
    3. 3. The Importance of Comprehensive 30(b)(6) Notices
    4. 4. Questioning 30(b)(6) Designees
      1. A. Is the Designee Knowledgeable?
      2. B. Inquire About an Entity’s Actions Rather than a Designee’s
    5. 5. Going Beyond the Subjects in a Notice
    6. 6. Can You Depose a 30(b)(6) Designee Twice?
    7. 7. Using a 30(b)(6) Deposition o Obtain the Bases for an Adverse Party’s Legal Contentions
  15. Chapter 14 “Practices and Policies” Questioning Strategies
    1. 1. Distinguishing “Practices” from “Policies”
    2. 2. Purposes of Practice and Policy Inquiries
    3. 3. Whom to Depose
    4. 4. Questioning Strategies Regarding Practices
      1. A. Responding to “It Depends” Answers
      2. B. Inquire About Exceptions
      3. C. Inquire About Prior and Subsequent Changes
      4. D. Distinguish Between the Entity’s Practice and That of the Deponent
    5. 5. Questioning Strategies Regarding Policies
    6. 6. Inquiring About Discrepancies Between Practices and Policies
    7. 7. Inquiring About Discrepancies Between Practices & Policies and What Happened in Your Client’s Case
  16. Chapter 15 Deposing Experts
    1. 1. Mandatory Disclosures
    2. 2. Beginning Adverse Expert Depositions
      1. A. Give Admonitions
      2. B. Confirm That You Have All Relevant Materials
      3. C. Elicit Background Information
    3. 3. Elicit a Chronology of Case-Related Activities
    4. 4. Elicit All Opinions
    5. 5. Elicit the Basis for Each Opinion
      1. A. Elicit the Evidentiary Basis for Each Opinion
      2. B. Elicit the Specialized Knowledge Underlying Each Opinion
    6. 6. Undermining an Expert Opinion
    7. 7. Challenge #1 —an Expert’s Specialized Knowledge Is Inadequate
    8. 8. Challenge #2 —“Exceptions” Detract from an Opinion’s Accuracy
    9. 9. Challenge #3 —Conflicting Authorities Undermine an Opinion
    10. 10. Challenge #4 —an Opinion Is Based on Inaccurate Information from Third Parties (“Garbage in, Garbage out”)
    11. 11. Challenge #5 —Undermine the Results of Scientific Tests or Technical Procedures
    12. 12. Challenge #6 —an Investigation Is Incomplete or Untimely
    13. 13. Challenge #7 —an Expert Is Biased
    14. 14. Garner Support for Your Expert’s Opinion
    15. 15. Opposing Party’s Duty to Supplement Expert’s Deposition Testimony
    16. 16. Preparing Your Own Expert for Deposition
    17. 17. Deposing Percipient Experts
  17. Chapter 16 Preparing Deponents
    1. 1. Pre-Meeting Preparation
      1. A. Review the Validity of Document Requests
      2. B. Review Pertinent Documents
      3. C. Prepare a Case Chronology
      4. D. Help Identify the Person(s) Most Knowledgeable for Depositions of Entities
      5. E. Arrange to Meet the Client
    2. 2. Tell Clients What Documents to Review (and Not Review)
    3. 3. Conducting Preparation Meetings
      1. A. Explain What the Meeting Entails
      2. B. Review a Client’s Version of Events
      3. C. Briefly Explain What Will Occur During the Deposition
      4. D. Explain the “Golden Rules” for Answering Questions
      5. E. Discuss Objections and Instructions Not to Answer
      6. F. Conduct a Practice Session
        1. 1. Devote Practice Questioning to Selected Topics
        2. 2. Ask Questions as Deposing Counsel
        3. 3. Improve Answers with Feedback and Advice
      7. G. Concluding Preparation Sessions
    4. 4. Preparation Meetings with Non-Clients
  18. Chapter 17 Deposing Friendly or Neutral Witnesses
    1. 1. Preparation Strategies
    2. 2. Background Questioning
    3. 3. Conform Testimony to Evidence Rules
    4. 4. Rhetorical Stories
    5. 5. Omitting Portions of Stories
    6. 6. Redirect Examination
  19. Index
  • Publication Date: January 13th, 2025
  • ISBN: 9781685615048
  • Subject: Trial Practice
  • Series: Nutshells
  • Type: Overviews
  • Description: This latest edition of Depositions in a Nutshell provides comprehensive descriptions and concrete illustrations of effective strategies and techniques for taking and defending depositions. The resource is useful for both inexperienced attorneys getting their first exposure to depositions as well as experienced attorneys looking to sharpen their deposition skills. Additionally, the book can serve as a text for a stand-alone depositions course or as a supplement to a civil pre-trial lawyering course or any live client clinical course that provides students with opportunities to take or defend depositions. It devotes separate chapters to such fundamental skills as obtaining helpful answers to critical questions, undercutting harmful testimony, uncovering a deponent's version of significant events, and dealing with evasive deponents. The book provides insight on how to handle objections, utilize exhibits during a deposition and prepare a client to be deposed, as well as how to conduct some of the most common depositions including depositions of entities and expert depositions.