Depositions in a Nutshell
Authors:
Moore, Albert J. / Binder, David A. / Bergman, Paul B. / Light, Jason
Edition:
2nd
Copyright Date:
2016
33 chapters
have results for deposition
Chapter 22. Visually Recorded Depositions 69 results (showing 5 best matches)
- If the deposition is at an unfamiliar or unusual location, you may want to visit it prior to the day of the deposition. If you have any concerns about the suitability of the site for a visually recorded deposition, you can raise them with opposing counsel prior to the day of the deposition.
- The FRCP set forth simple procedures for visually recording depositions. For example, FRCP 30(b) provides that a deposing party may unilaterally arrange visual recording by indicating in the notice of deposition that it will be visually recorded. And FRCP 30(b) provides that a visually recorded deposition need not be recorded stenographically.
- Under FRCP 30(b)(3), any party, not just the party taking a deposition, can arrange for visual recording. The party requesting visual recording bears its expense. Consequently, if your opponent notices a “regular” deposition, i.e., one to be stenographically recorded by a court reporter, you may serve a notice that the deposition will also be visually recorded at your expense.
- Technologies for overcoming the limitations of visually recorded depositions evolve constantly. At the moment, one useful preparation practice is to generate a bar code for each line of deposition testimony. You then have a bar code for each question you ask the witness on cross. If the witness testifies inconsistently with the deposition, you sweep an electronic wand across the appropriate bar code, and the appropriate portion of the deposition immediately shows on a screen for the jury to see.
- A possible corollary of Murphy’s Law is that when you rely on electronic technology, the technology will fail at the absolutely worst moment. Therefore, unless you are confident with your own technological skills or have expert assistance, consider the possibility of a mechanical breakdown as a risk of visual recording. Common risks include equipment breaking down, an operator’s failure to hit the “record” button, and defective recoding units. Such problems can result in the loss of testimony, which can potentially prevent the use of the visually recorded deposition or require you to get court approval to take a second deposition. Similarly, if for any reason the quality of a visually recorded deposition is poor, you may be prohibited from using it at trial. ...“test” before the beginning of a deposition to be sure that picture and sound quality are acceptable. And, especially when you are recording at an unfamiliar location or with an operator you have never worked with before,...
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Chapter 4. Obtaining Helpful Answers 24 results (showing 5 best matches)
- In this plausibility chain, Nos. 1 through 7 establish that the pre-deposition statement was probably accurate; Nos. 9 and 11 confront the deponent with his pre-deposition statement; and No. 13 asks the deponent to repeat the crucial admission under oath at the deposition. Your use of the plausibility chain makes it more likely that the deponent will reaffirm the pre-deposition statement than if you had asked No. 13 “cold.”
- This chain based on Dent’s prior oral statement follows the same format as the earlier chains based on prior written statements. All of them (1) elicit circumstantial evidence in support of the accuracy of a pre-deposition statement, (2) confront the deponent with the pre-deposition statement, and (3) ask the deponent to repeat the pre-deposition statement under oath at the deposition.
- In this plausibility pattern, Nos. 1 through 7 tend to establish that the deponent believed that the pre-deposition statement was probably accurate; No. 9 confronts Gillig with the pre-deposition statement in the complaint; and Nos. 11 and 15 ask Gillig to reaffirm the pre-deposition statement.
- Nevertheless, recognize that during depositions unanticipated facts often surface. Thus, you may realize for the first time at deposition that you have an opportunity to obtain an important admission by using the strategies and techniques discussed in this Chapter. You will then have to do your best to adjust your questioning “on the fly” or during a break in the deposition.
- In this example, Nos. 1–7 attempt to elicit evidence that Korobkin’s pre-deposition statement was probably accurate. Nos. 9 and 11 confront Dent with the Korobkin’s pre-deposition statement, and Nos. 13 and 15 ask her to provide the answer your desire.
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Chapter 24. Defending Depositions 94 results (showing 5 best matches)
- To defend a deposition is to attend a deposition that your adversary notices and takes. Typical defending strategies include: making objections; instructing client deponents not to answer; consulting with deponents during deposition breaks; and questioning deponents after the adversary’s questioning concludes. This Chapter explores these defending strategies in three common deposition situations in which you might find yourself:
- • The deponent is friendly to your adversary—either the adverse party or a person associated with the adverse party. An adversary who takes such a deposition probably seeks to preserve the deponent’s testimony for eventual use in a motion or at trial because the deponent is likely to become unavailable. Hence, this type of deposition is often called a “trial deposition” or a “deposition to preserve testimony.”
- Objections at neutral witness depositions have the same purpose as in any other depositions: you want to prevent your adversary from using deposition testimony against you later in the case. Thus, you must raise curable objections at the deposition or waive them. “Leading” is the one objection you may make at a neutral witness’ deposition that you need not make when deposing counsel deposes your witness. Leading questions are ordinarily objectionable when asked of a neutral witness. If you do not raise this objection at deposition, you waive it.
- If deposing counsel conducts a neutral witness deposition in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress the deponent or your client, you may instruct the deponent not to answer the pending question if you also suspend the deposition to seek a protective order in court. Your motion for a protective order may request the court to terminate the deposition or “limit the scope and manner of the taking of the deposition.” suspending the deposition to move for a protective order.
- If you believe that you might want to exercise your right to terminate a deposition under FRCP 30(d)(1), you may want to so state on the record at the beginning of the deposition. By putting deposing counsel on notice that you may decide to enforce these time limits, you may encourage deposing counsel to structure questioning so as to conclude the deposition within the time limits. And if you do ultimately decide to terminate the deposition because it exceeds these limits, your advance notice to deposing counsel may discourage a court from granting an order extending the length of the deposition.
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Chapter 17. Arranging for Depositions 42 results (showing 5 best matches)
- If all parties so stipulate, a deposition may be taken by telephone or video conference. When you are counsel taking the deposition, you ordinarily hold depositions in your office. However, you may notice a deposition for a site other than your office for such reasons as:
- deponent to attend a deposition only through personal service of either a Subpoena re Deposition and/or a Subpoena Duces Tecum re Deposition. Use the latter if a non-party deponent is to bring documents to a deposition. To compel a non-party deponent to appear, you must also tender
- deponent to bring documents to a deposition, identify those documents in the Notice of Deposition. However, you must then serve the Notice of Deposition on the party at least thirty days in advance of the deposition. The reason for this is that FRCP 34 requires that parties have at least thirty days to respond to requests to produce deponent, serve the deponent with a Subpoena Duces Tecum re Deposition. The documents to be produced at the deposition should be described in the Subpoena Duces Tecum re Deposition or in a separate attachment which must be served along with the Subpoena. To compel a non-party deponent to appear, you must also tender
- See FRCP 30(b)(6). If the deponent entity is a non-party, the subpoena requiring its attendance at the deposition must advise the entity to designate a person(s) who will testify on its behalf. The entity then has the responsibility to produce at the deposition a person who is competent to testify about the subjects listed in the deposition notice. If one person is not competent to testify about each subject listed in the deposition notice, the entity must produce as many competent persons as are necessary to testify about the listed topics. For a more detailed discussion of taking an entity’s deposition, see Chapter 18.
- ” of your intention to take the deposition. If your advance notice to a deponent is unreasonably short, the deponent can properly refuse to attend a deposition. Moreover, if you fail to provide notice to a party, or if the length of advance notice to a party is unreasonably short, you will be unable to use any deposition testimony against a party who was not present or represented at the deposition. In addition, if you fail to properly notice a deposition, and as a result the deponent fails to attend but other noticed parties do attend, a judge can order you to pay the reasonable expenses incurred by the attending parties, including attorney’s fees.
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Chapter 23. Preparing Deponents 48 results (showing 5 best matches)
- Pre-deposition meetings with deponents can ease their anxiety and help them respond effectively at deposition. In addition, such meetings may alert you to the need to gather more information and/or documents before a deposition begins. This Chapter focuses on strategies for preparing clients,
- • At the deposition, you may recognize that a client’s testimony is erroneous, and as a result you may give the client a chance to clarify and correct the erroneous testimony during the deposition.
- Unless a client has previous deposition experience, you can also help to ease a client’s anxiety by briefly explaining what will likely happen at the deposition. Your explanation may cover such matters as:
- Clients often are unsure of how they are supposed to answer questions at deposition. To help clients understand the basic lay of the deposition land and perhaps correct any misperceptions they may have, explain the following “golden rules” before beginning to ask practice questions.
- A practice session largely consists of your asking questions that you anticipate opposing counsel will ask at deposition and having clients answer as they would at deposition.
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Chapter 14. Civility and Rapport 15 results (showing 5 best matches)
- California’s “Attorney Guidelines of Civility and Professionalism” include provisions pertaining to the taking of depositions that forbid the use of foul and hostile language, the practice of scheduling depositions without prior contact for convenient times and locations, and rude-toned and intimidating questioning. And some Federal courts have enforced civility rules at deposition.
- In some cases, building rapport with the deponent can also enhance the likelihood of settlement. Fair and reasonable deposition behavior on your part may help you to reduce (or at least avoid exacerbating) any feelings of personal animosity between the parties or counsel. And personal animosity is likely to impede settlement. On the other hand, an adverse party may consider discourteous or antagonistic deposition behavior to be a continuation of the harm your client has already caused. For instance, a plaintiff who is a former employee in a wrongful termination case may believe that your client, the employer, mistreated her. If so, a lack of civility on your part may make the plaintiff less likely to settle because she sees the deposition behavior as simply another form of mistreatment.
- Your ability to obtain a protective order and/or sanctions against opposing counsel who behave inappropriately may well depend on the propriety of your own deposition behavior. Adhering to civility rules or guidelines can improve your chances of success should a judge have occasion to examine a visual recording or transcript of a deposition in connection with your motion for a protective order and sanctions. And of course, civility is itself a value; civility among lawyers tends to enhance respect for the legal system and the legal profession.
- Canon 7 of the American Bar Association Model Code provides that “A lawyer should represent a client zealously within the bounds of the law.” Though Canon 7 embodies an essential value of the adversary system, many legal commentators argue that an over-zealous reliance on Canon 7 accounts for the incivility (or bullying) that is increasingly part of the deposition process. Factors such as the absence of a judge, judges’ frequent reluctance to sanction lawyers for rude behavior, and lawyers’ desire to demonstrate to clients that they are “fighting” for them all-too-often combine to produce a toxic atmosphere at depositions.
- • A deposing lawyer may refuse to consider the scheduling needs of a deponent or an opponent when scheduling a deposition.
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Chapter 16. Deposition Preparation 39 results (showing 5 best matches)
- Of course, not all depositions will justify your pursuing each and every preparation technique described in this Chapter. Instead, this Chapter provides a menu of preparation techniques from which you can pick and choose, each of which may help you identify the topics, events or documents you might explore at a deposition. Which techniques you employ are likely to depend on such factors as personal preference, the preparation you’ve already done in connection with earlier depositions or discovery, your litigation budget, a case’s value and complexity, your litigation experience, and a deposition’s importance.
- If a case file contains thousands or even hundreds of documents, you may not have time to read each and every document before taking a deposition. Moreover, many documents may be unrelated to the deposition you are about to take. Therefore, to prepare for a given deposition, you will usually have to cull through documents to determine which ones you want to examine in detail.
- as well as memos to the file, witness statements and reports from investigators and/or experts. Furthermore, often you will have transcripts from prior depositions. Time and resources permitting, review these documents and deposition transcripts as you prepare for a deposition to identify:
- As discussed in Chapter 1, you routinely want to obtain a deponent’s version of significant events during a deposition. Doing so allows you to anticipate the deponent’s direct examination should the case proceed to trial. Perhaps more importantly, as you obtain a deponent’s version of events, you may uncover helpful or harmful evidence you had been unaware of prior to the deposition. You can then try to undermine the harmful evidence at the deposition or through further discovery.
- A case chronology can also come in handy during a deposition. Comparing the deponent’s testimony to your case chronology may disclose a conflict between the parties’ versions of events of which you had been previously unaware. You can then make a decision at the deposition about whether you want to question the deponent about such a conflict. If you do not have a written chronology with you at the deposition, you will be required to hold the entire chronology of the case in your head as you listen to the deponent’s testimony. This is, to say the least, a difficult task.
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Chapter 15. Responding to Objections and Other Actions of Opposing Counsel 74 results (showing 5 best matches)
- You can rarely be certain that you will not want to use deposition testimony later in the case. It is often difficult to predict what deposition testimony would later be useful, especially when you are in the early stages of a case. And even when the deposition testimony is somewhat harmful to your case, if the deponent later changes his story you may decide to impeach the deponent with the inconsistent deposition testimony to attack his credibility.
- (3) The attorney instructing the deponent not to answer immediately terminates the deposition to seek a protective order on the grounds that the deposition is being conducted in bad faith or in such manner as to unreasonably annoy, embarrass, or oppress the deponent or a party.
- • Complete your deposition questioning on all matters except those that the deponent has refused to answer, and then terminate the deposition and seek an order to compel answers.
- 5. Q: Very well. I have not finished questioning your client, but at this time I am terminating the deposition to seek an order compelling your client to answer the questions he has refused to answer at this deposition.
- At the same time, this first alternative has its downsides. You commit to the time and expense of a motion to compel. You must wait until the deposition resumes to obtain the remainder of the deponent’s testimony. Moreover, your motion may be unsuccessful even though it is based on grounds that are technically accurate. If so, an emboldened opposing counsel may be more aggressive when the deposition resumes.
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Chapter 9. Responding to Evasive, Forgetful or Uncertain Deponents 6 results (showing 5 best matches)
- Using these techniques to seek information from all sources has a potential downside. Questions distinguishing between directly perceived and second hand information may well encourage deponents to make such distinctions throughout a deposition. As a result, once you start making distinctions between what a deponent saw or heard, you may have to continue to make those distinctions throughout the deposition. This can make for a long deposition.
- if I never had to talk to Spillenger again.” Lester knows that this information is damaging to Freeman and does not want to reveal it to you at deposition. At Lester’s deposition, the following exchange occurs:
- On the other hand, you may decide to probe failure of memory responses in ways that encourage deponents to search their memory banks and provide as much information as they can. You might conduct such probing for at least two reasons. First, probing may uncover helpful information a deponent is trying to withhold. Second, probing may reduce deponents’ opportunities to provide explanations for testifying at trial to damaging evidence that they could not recall at deposition. For example, assume that your probe of an “I don’t remember” response indicates that a deponent knows of no documents that would refresh the deponent’s recollection. This response minimizes the credibility of a potential explanation for improved memory at trial, such as, “I looked at my day planner after my deposition and it refreshed my recollection.”
- , No.92 Civ.7573, 1993 WL 33463 (S.D.N.Y. Feb 3, 1993); (The deposition featured numerous instances of plaintiff’s counsel niggling over definitions, e.g., demanding that defendants’ counsel define words such as “lived” when asked if a former employee “lived in the former Soviet Union,” “do” when asked “what does VMP do” and “travel” when asked if an employee “travel[ed] on business for [VMP].” The party was sanctioned.); see also Justice Eugene A. Cook, , 23 Tex. Tech L. Rev. 955, 973 (1992) (Describing hardball litigators who, “in a series of depositions that stretched out over 15 days, asked the opposing attorney to define ‘when,’ ‘where,’ ‘own,’ and ‘describe’.”); Dana Rubin, , Dallas Morning News, February 25, 1990 at 6; (describing an occasion where attorneys opposing a Dallas law firm in depositions would bring dictionaries so they could look up the meanings of words that fell into dispute, e.g. “What do you mean by experience?” “What do you mean by manage?”)
- At deposition, you often seek precise numbers or dates. For example, you might ask a deponent to state “the distance between the two cars after the collision,” or “the date you first met Ms. Kekorian.” Such requests often make deponents uncomfortable, because the questions ask for more certainty than the deponents believe they can provide. They may find “I don’t remember” or “I’m not sure” an easy refuge. With a few additional probes, however, you can often elicit useful information.
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Chapter 5. Cementing Helpful Answers 19 results (showing 5 best matches)
- One reason to cement helpful deposition evidence is to reduce the chances that a deponent will subsequently seek to retract a helpful answer. As you probably know, deponents often seek to disavow such deposition answers. They may do so when they review and sign their depositions, by filing inconsistent declarations in connection with pretrial motions and/or when testifying at trial.
- No matter how well you cement evidence at deposition, a deponent can still disavow or recant the helpful evidence later in a case. However, when a deponent does so you typically want to impeach by showing that the deponent has contradicted his deposition testimony. The cementing techniques discussed in this Chapter sharpen the force of any post-deposition impeachment.
- 27. Q: Your Honor, I’d like to read into evidence lines 18–20 from pg. 43 of Ms. Guzek’s deposition transcript. [reading from the deposition] “Question: So on the 14th Mr. Delaney told you he was quite fond of Ms. Park, is that correct? Answer: That’s what he said, yes.” And Ms. Guzek, when you gave that deposition testimony, you told the truth, didn’t you?
- Isolating cemented evidence makes the inconsistency between in-court and deposition testimony easy for a factfinder to recognize and eliminates the need to repeat harmful or irrelevant deposition testimony during cross examination.
- Cementing (aka pinning down) consists of having a deponent repeat or reaffirm helpful testimony at least once during a deposition. For example, assume that you represent Seth Altman in an action against Four Star Mortgage Company based on a theory of fraudulent misrepresentation. Among other things, you seek to prove that Altman relied on a broker’s misrepresentations. During your deposition of the Four Star broker who dealt with Seth, the following occurs:
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Chapter 20. Deposing Experts 38 results (showing 5 best matches)
- Opposing parties have an obligation to supplement the answers in their expert witness deposition testimony with information learned after the expert has been deposed. The FRCP imposes no such explicit obligation to supplement deposition testimony of a with information learned after the deposition is complete.
- • If a percipient expert’s testimony is likely to be helpful, consider whether it makes sense to depose the expert. Typical downsides of taking a deposition in these circumstances are the expense of a deposition, and providing your adversary with a venue for undermining the helpful testimony. Moreover, a deposition may be unnecessary because percipient experts typically leave paper trails of their observations, and much of that trail is likely to be admissible in evidence (say, as a business record) even if the expert is unavailable to testify at trial. Especially since these records may be sufficient to support your position at settlement negotiations, you may decide to forgo taking a deposition. On the other hand, if a case justifies the expense, or if an expert’s records are of poor quality or are unlikely to be admissible in evidence, you may want to take a deposition to preserve the helpful testimony.
- To do so, do not adjourn the deposition when you have finished questioning. Instead, try to have opposing counsel agree to continue the deposition at a date when the expert will have completed her work. This saves you the trouble of trying to notice a second deposition, for which you usually need court permission under FRCP 30(a)(2)(A)(ii).
- Having all the documents an adverse expert reviewed, considered or prepared helps to inform your questioning throughout the deposition. For example, such questions might unearth an interim opinion that contradicts the expert’s opinion at the deposition.
- As discussed above, the evidentiary basis for an expert’s opinion may be information gleaned from such third party sources as discovery responses, witness statements, deposition transcripts or other documents. At deposition, one way to challenge an opinion is to establish that an expert has assumed
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Chapter 18. FRCP 30(b)(6) “Subject Matter” Depositions 24 results (showing 5 best matches)
- As with any other deposition, you typically try to obtain relevant documents before a 30(b)(6) deposition or require a deponent to bring documents to the deposition.
- When you notice a 30(b)(6) “subject matter” deposition, an entity must respond by designating for deposition one or more representatives who are most knowledgeable about the subjects set forth in your notice. When a designee testifies, the answers are binding on an entity to the same extent that deposition testimony of an individual is binding on that person. Chapter explores the noticing and taking of subject matter depositions.
- Subject matter depositions can also help you educate yourself about an entity’s organizational structure, procedures and operations. Assume for example that you want to learn about a financial entity’s usual practices and procedures when initiating a foreclosure. You can notice a subject matter deposition on this subject and educate yourself about what usually happens, and then later take additional depositions to determine what actually happened in your client’s case.
- These depositions are also sometimes referred to as “Person Most Knowledgeable” depositions.
- The determination of whether a subject matter deposition is an impermissible attempt to have the deponent marshal evidence is a question of fact in each case. If you receive a notice for a subject matter deposition that you think improperly seeks to have your client marshal evidence, you may want to go to court to obtain a protective order which either prohibits the deposition from going forward or limits the scope of the questioning.
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Chapter 12. Communicating Arguments 15 results (showing 5 best matches)
- 9. Q: Perhaps I can refresh your recollection. I am showing you Mr. Bourne’s deposition transcript and what was marked as Exhibit 12 to Mr. Bourne’s deposition in this case. Mr. Bourne testified at page 32 lines 16–30 of his deposition that Exhibit 12 consist of his calendar notes from January, correct?
- As you examine a deponent, some of the arguments you are likely to make at a settlement conference or at trial may become obvious to the deponent and opposing counsel. Some of your arguments, however, may be based on evidence scattered throughout the deposition and the documents in a case and therefore may not be obvious to the deponent or opposing counsel. As a result, you may want to intentionally structure your deposition questioning to maximize the possibility of communicating your arguments to opposing counsel and the deponent. Communicating your arguments at deposition has the following potential advantages:
- favorable settlement by communicating your persuasive arguments at deposition. While you can, of course, communicate your arguments to opposing counsel after depositions, it often makes sense to communicate them through your deposition questions. One reason is that, either intentionally or unintentionally, opposing counsel may not accurately convey your arguments to adverse decision makers. In addition, your arguments may make a greater impact when you advance them directly in the question-answer format of depositions than when you refer to them during settlement negotiations.
- As a general rule, the time to communicate arguments is when you are about to conclude a deposition. The typical advantages of waiting until late in a deposition to convey your arguments are these:
- In this example, the helpful information related to the failure to mitigate damages was revealed at a previous deposition and therefore already available to opposing counsel. Consequently, by mentioning this information at deposition you may communicate an argument to the adverse party using this information without educating opposing counsel. In some cases, however, you may decide not to reveal information that might facilitate settlement to avoid educating opposing counsel.
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Chapter 21. Deposing Your Own Witness or a Neutral Witness 29 results (showing 5 best matches)
- The subsections below suggest questioning strategies and techniques for conducting depositions to preserve testimony. These strategies and techniques mirror those that you typically use when conducting direct examinations at trial. At deposition, you have to be even more careful than at trial to conform your questions and a deponent’s answers to evidence rules. Usually, an adversary’s failure to object to an improper question or answer at trial acts as a waiver, making the evidence admissible. By contrast, at deposition a variety of objections are “automatically preserved,” meaning that an adversary can sit silent at deposition and then raise evidentiary objections when you seek to use deposition testimony at trial.
- If you are preparing a non-client witness for deposition, what you say to the witness during preparation may not be covered by the attorney client or work product privileges. Consequently, opposing counsel may inquire at deposition or at trial regarding your conversations with the witness. As a result, you may decide not to prepare such a witness for deposition. If you do decide to prepare a non-client witness for deposition you will need to exercise care to prevent your preparation of the witness from exposing the witness to charges of bias. See Chapter 23.
- Since depositions to preserve testimony often serve as substitutes for live testimony at trial, you typically prepare a friendly witness for a deposition the same as you would for a direct examination at trial. Typical trial preparation techniques include conducting a mock direct examination and providing feedback on Since your adversary can question a deponent after your deposition questioning concludes, you may also want to help the witness prepare to respond to opposing counsel’s deposition questioning.
- Here, you emphasize key evidence at the deposition’s outset, providing a perspective for the details that are to follow. Limiting the initial recitation to a brief summary enables you to cover the same territory later in the deposition without giving a factfinder the impression that “I’ve heard all this already.”
- Because a deposition to preserve testimony often substitutes for a direct examination at trial, you may want to add impact to the testimony by visually recording the deposition. See Chapter 22.
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Chapter 13. Beginning and Concluding Depositions 62 results (showing 5 best matches)
- Therefore, if you anticipate questioning a deponent for longer than “one day of seven hours” and haven’t previously done so, you may at the outset of a deposition ask opposing counsel to stipulate to a waiver of the limitations of FRCP 30(d)(2). You can tailor stipulations to the circumstances of each case. For example, a stipulation may state that you have up to “one day of 10 hours” to complete a deposition, or that your deposition “is not subject to fixed time limits, but any party has the right to terminate the deposition and move the court for a protective order if the time of deposition is unduly prolonged in bad faith.” Of course, be sure to read any such stipulation into the record.
- (No. 23)—This admonition undermines a post-deposition explanation for changed testimony that runs along the lines of, “I would have provided the changed testimony during the deposition if I had known that I could change an incorrect answer during the deposition.”
- To use FRE 612 to gain access to documents which you may not have previously seen, at the outset of depositions ask deponents to identify the documents they reviewed to prepare for deposition, and whether those documents refreshed their memory about the facts of a case. Often, as above, opposing counsel will willingly provide such documents at deposition. Doing so speeds up depositions and may eliminate the need for additional sessions to examine deponents regarding documents that you are entitled to see but were not provided at deposition. Also as above, ask deponents if they reviewed any documents besides those provided to you by opposing counsel.
- Obviously, if you have obtained an agreement regarding a waiver before the deposition, you should put the terms of that agreement on the record at the beginning of the deposition, or attach any written agreement to the deposition transcript as an exhibit.
- You may also want to ask questions about medications and alcohol use when you return from a lunch break, or any other long break in the deposition. Similarly, in instances where a deposition carries over to the next day, you will want to begin the renewed deposition by repeating these questions as well as Nos. 35–45. And when there is a long break between sessions of a deposition, perhaps several days or weeks, you may want to repeat all or selected portions of the admonition at the start of the session.
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Chapter 1. Three Primary Deposition Goals 13 results (showing 5 best matches)
- You may have talked to a neutral witness prior to deposition and believe that the witness’ testimony will be favorable for your case. If so, you may take the deposition only to preserve the witness’ helpful testimony for later use at trial or in connection with a pre-trial motion or settlement. Chapter 21 discusses how to conduct such a deposition.
- Evidence rules allow attorneys to offer depositions of unavailable witnesses into evidence at trial. (FRCP 32.) If you elicit a deponent’s version of significant events, and the deponent is unavailable at trial, your opponent may offer the deposition against you to establish his client’s version of what happened.
- This Chapter focuses on three primary deposition goals you commonly pursue when deposing an adverse witness. These goals are: (1) obtaining a deponent’s version of significant events; (2) searching for and confirming helpful evidence; and (3) uncovering and undermining harmful evidence.
- When you obtain a deponent’s version of what happened, a deponent may mention helpful information you would not otherwise have thought to ask about. After all, when you prepare for deposition, you cannot think of every topic that might uncover helpful evidence.
- deposition does entail some risks. The chief ones are these:
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Chapter 7. Responding to Inconsistent Statements 12 results (showing 5 best matches)
- In lieu of Options 1 and 2, you may “aggrandize the lie” by encouraging a deponent to repeat and expand upon deposition testimony creating an inconsistency. This third option is useful when you believe that you can clearly prove that deposition testimony is false. This approach firmly commits a deponent to what you think you can prove is false deposition testimony, and prevents the deponent from later claiming that the deposition testimony was an innocent misstatement. As a result, the factfinder may well conclude that a deponent has given knowingly false testimony.
- During settlement negotiations or at trial, you may use a deponent’s inconsistent statements to attack the deponent’s credibility. When you make such an attack, the deponent or opposing counsel may respond by explaining away the inconsistency. If the explanation is credible, your attack is likely to be ineffective. Consequently, at deposition you will typically want to ask deponents for explanations for inconsistencies between deposition testimony and prior statements. Pursuing this option typically requires only a few straightforward questions at the deposition. Consider the following example:
- • You commit a deponent to an explanation at the deposition. As a result, opposing counsel has less opportunity to suggest (or even craft) a credible explanation after a deposition is completed.
- In this example, Nos. 5, 7, 9 & 11 encourage the deponent to repeat and expand upon the deposition testimony. Note that when you employ this technique, you never mention the contradictory prior statement. If you mention the prior inconsistent statement the deponent might immediately recant the deposition testimony you want to aggrandize.
- When either of these situations arises during a deposition you potentially have the following options:
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Chapter 8. Responding to Implausibilities 6 results (showing 5 best matches)
- Sometimes a single deposition answer creates an implausibility. That is, two facts that don’t mesh with ordinary experience may emerge together. For example, a deponent says: “I was fired without being given a chance to explain. But it really didn’t bother me.” Other times, an implausibility arises when a deposition answer does not jive with a deponent’s earlier deposition testimony or pre-deposition statement. For instance, at one point the deponent testifies that he was fired without being given a chance to explain the charges against him were false and at a much later point the deponent testifies that he was not upset when he was fired. Regardless of how an implausibility arises, you may respond to it by: (1) Trying to magnify the implausibility and/or (2) Determining whether a deponent can explain it away.
- Implausible deposition testimony is a frequent source of attacks on a deponents’ credibility during settlement negotiations or on cross examination at trial. This Chapter offers questioning techniques you can employ to try to magnify implausible testimony.
- Testimony is arguably implausible when it juxtaposes two or more facts that in light of ordinary experience usually do not go together. Assume, for example that a plaintiff in a wrongful termination case testifies at deposition as follows:
- • A deponent who fails to offer an explanation at deposition probably will be unable to credibly explain away an implausibility later in the case (after his lawyer may have suggested potential explanations).
- • By determining if a deponent has an explanation at deposition, you avoid being surprised by one later at trial or in settlement negotiations.
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Outline 49 results (showing 5 best matches)
Index 53 results (showing 5 best matches)
Chapter 6. Undermining Harmful Answers 11 results (showing 5 best matches)
- Adverse witnesses routinely testify to harmful evidence during a deposition. Whether you want to try to undermine harmful evidence depends in large part on its probative value. The more damaging the evidence, the more time and effort you will likely spend at deposition trying to undermine it. This Chapter explains three questioning strategies for undermining harmful answers. They are:
- At the Chapter’s conclusion is a Checklist reflecting these three strategies. You can use the Checklist both during a deposition and as you prepare for a deposition when you anticipate harmful testimony.
- While you hope that adverse deponents will be unable to credibly explain away apparent inconsistencies, it is generally better to uncover any explanations at deposition. You then have an opportunity to challenge the accuracy of the explanation, using one or more of the strategies suggested in this Chapter and through further discovery. If you do not ask for explanations during the deposition, you may be surprised by a credible explanation later in the case.
- Below you will find a Checklist that summarizes the various approaches you might pursue to undermine a harmful answer. You can take this Checklist (or a customized version of it) with you to depositions to help you quickly come up with topics and questions for undermining harmful testimony. Additionally, you can use the Checklist during deposition preparation when you intend to question a deponent about harmful evidence of which you are already aware.
- For example, assume that you represent the plaintiff in an auto accident case. A waitress who served the defendant on the night of the accident testifies at deposition that the defendant did not have any alcohol to drink at dinner. You might seek to undermine this harmful testimony as follows:
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The Scope of this Book 8 results (showing 5 best matches)
- Part Two describes techniques and strategies for preparing yourself to take a deposition of an adverse witness. Experienced readers have undoubtedly developed their own system for preparation. Those readers can use the strategies and techniques in Part One whether or not they choose to employ the approach to deposition preparation described in this Part Two. This Part concludes with a discussion of the rules and procedures for arranging for depositions.
- Part Four explores strategies and techniques for preparing a client or witness for a deposition and for defending at depositions taken by opposing counsel.
- Part One illustrates common questioning strategies and techniques you might employ in the context of the most common type of deposition, the deposition of an adverse percipient witness. This part discusses strategies and techniques for (a) obtaining complete information, (b) encouraging deponents to
- This book focuses on deposition questioning strategies and techniques that maximize the likelihood that you can:
- • Undercut harmful testimony that emerges at deposition.
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Part Four. Defending Depositions 2 results
- You might confine a deposition to an organization’s practices and policies, or you might ask about practices and policies as well as inquiring into the events of your specific case. For example, assume that you represent the plaintiff in an action to recover damages against a bank for failure to fund a loan. You might choose to devote an entire deposition to the bank’s general policies for investigating and approving loans. Alternatively, you might inquire into those matters during a deposition in which you also question a bank officer concerning the loan made to your client. Whichever option you choose, you can enhance the effectiveness of practice and policy inquiries by using the strategies discussed in this Chapter.
- Both for reasons of relevance and efficiency, inquiries into practices and procedures typically focus on particular time periods. For instance, a practice and policy deposition in a products liability case may emphasize the time period when the allegedly defective product was designed and developed. Similarly, a practice and policy deposition in a case in which you claim that a prison’s library practices violate due process is likely to emphasize the practices in effect at the time your clients sought access to prison library materials.
- You may follow the procedures outlined in FRCP 30(b)(6) when you want to take a “practice and policy” deposition but do not know which of an entity’s representatives would be most knowledgeable. For more information about FRCP 30(b)(6), see Chapter 18.
- For example, assume that you have filed a lawsuit against a private company responsible for monitoring detainees being held at an Immigration and Naturalization Service (INS) holding facility. Your complaint alleges that the company’s current procedure denies detainees due process. You are taking a “practice and policy” deposition of a security officer for the company, and want to put on the record the company’s version of the current procedure that INS detainees generally have to follow to obtain access to legal materials. Your questioning about the procedure proceeds as follows:
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Part One. Deposing Adverse Witnesses 1 result
- This part (Chapters 1 through 15) illustrates common questioning strategies and techniques you might employ in the context of the most common type of deposition, the deposition of an adverse percipient witness. This part discusses strategies and techniques for obtaining complete information, encouraging deponents to provide your desired answer, responding to incomplete, evasive or non-responsive answers, undermining harmful testimony and responding to inconsistent or implausible statements. This part concludes with a discussion of how to respond to objections, instructions not to answer and obstructionist behavior of opposing counsel.
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Chapter 2. Obtaining Complete Information: The T-Funnel Questioning Pattern 10 results (showing 5 best matches)
- You may develop the closed/leading questions at the bottom of the T-Funnel as you prepare for deposition and identify information that might help your client’s case. (For a discussion of techniques to help you identify potential helpful information during preparation, see Chapter 16.) Alternatively, you might develop these closed/leading questions during the deposition, based on your instinct and intuition, either in an effort to obtain helpful testimony or to simply find out everything a deponent knows about a topic or event.
- . You could, of course, ask the court reporter to read back the testimony. But reading back testimony will dramatically slow the pace of the deposition.
- You realize several benefits from using T-Funnels at deposition.
- In the above example, you should have “parked” interesting topics until you completed the inquiry about all aliases used by Smith. To “park,” simply make an indication in your notes to explore a parked topic later in the deposition. For example, here you might have made a quick reference in your notes that
- Deciding whether to omit closed/leading questions when inquiring into matters that are potentially damaging is a strategic judgment. The risks must be weighed against the potential benefits of asking such closed questions. One benefit of asking closed questions is that you may obtain a favorable answer and strengthen your impeachment should a deponent later change his testimony. For instance, in the above example, assume that you did ask the following closed question: “Did you decide to fire Mr. Duffy in part because of any allegations that he had made inappropriate advances to a co-worker?” An explicit “No” answer would help your case and allow you to more effectively impeach the deponent should he later change his testimony. A second benefit is that if the harmful evidence exists you will learn about it at the deposition rather than being surprised by it later. If the evidence exists, you may be able to undermine it during the deposition or through subsequent discovery. You must...
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Chapter 3. Obtaining Complete Information: The Timeline Questioning Pattern 9 results (showing 5 best matches)
- This Chapter describes the Timeline questioning pattern, a second questioning pattern that you use repeatedly throughout a deposition, whether you are obtaining a deponent’s version of significant events, searching for helpful evidence, or uncovering and undermining harmful evidence.
- • Timelines promote thoroughness. Even the most rigorous preparation typically cannot identify every item of potentially helpful or harmful evidence. A Timeline will often help you unearth important evidence that you did not specifically think to ask about when preparing for a deposition.
- • At trial, an adverse witness’ direct examination testimony is frequently elicited primarily in chronological order. When you obtain a Timeline at deposition, you often get a preview of a witness’ direct examination and can assess its credibility and decide how to attack it.
- Instead of being lured off the Timeline, in the above example you should have “parked” the new topic. Parking requires little more than a reference in your notes about “problems with the year-end sales report.” This “parked” topic could then be examined later in the deposition after completing the Timeline on the Campbell account.
- As this example illustrates, you often want to continue to probe for events that may have occurred right up until the date of the deposition.
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Chapter 10. Using Documents and Diagrams 9 results (showing 5 best matches)
- Here, you maintain a clear record by giving each document a separate exhibit number, and by precisely referring to portions of each document. Precise references are often essential when you want to use deposition testimony in support of pre-trial motions or to impeach deponents who subsequently change their testimony.
- Unless opposing counsel is willing to stipulate to a document’s admissibility, you’ll need proper foundational evidence to use a document in a pre-trial motion or at trial. Depositions often afford you a chance to elicit a foundation, which typically consists of evidence showing that a document is (1) authentic and (2) satisfies document-specific evidentiary requirements. The sections below address these requirements.
- As you prepare for a deposition, you need to familiarize yourself with the authentication method that is appropriate for any document you intend to use.
- Pictures are often said to be worth a thousand words. In depositions, diagrams’ value typically stems from their ability to clarify testimony and tie deponents to stories visually as well as verbally. Diagrams are flexible tools. You can prepare diagrams before depositions begin, or ask deponents to do so as questioning unfolds. You may mark locations on diagrams as directed by deponents’ testimony, or you may ask deponents to make the markings. No matter which procedures you follow, however, the record should be clear enough to enable one looking at a diagram and reading a transcript to understand what the markings mean. Like any other document to which a deponent testifies, a diagram should be marked as an exhibit and referred to by its exhibit number.
- You should also instruct the court reporter that all the documents marked as exhibits should be attached to the deposition transcript. You typically save the originals of documents in your file, and give copies to the court reporter for marking as exhibits. See FRCP 30(f)(2).
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Chapter 11. Questioning Tips 6 results (showing 5 best matches)
- Whether you’re seeking to elicit a deponent’s version of events or probing for harmful or helpful evidence, wrap-up questions such as these both promote thoroughness and help to tie deponents down to their deposition testimony.
- Independently of whether a deponent volunteers an opinion, you may actively seek opinions. You may tend to shy away from affirmatively asking for opinions because they may be inadmissible at trial under FRE 701. However, the ultimate admissibility of an opinion is beside the point at deposition. Deposition questions seeking opinions are appropriate as long as they are “reasonably calculated to lead to the discovery of admissible evidence.” Moreover, after eliciting an opinion, you may obtain admissible evidence by eliciting an opinion’s bases. Thus, beliefs and opinions are useful windows for uncovering either helpful or harmful evidence.
- • At the end of the deposition, help make sure that all exhibits have been returned to the reporter.
- In the example below, the opinion and its bases constitute harmful evidence. However, eliciting harmful evidence at deposition allows you to assess the strength of an adversary’s case and to possibly develop evidence undermining harmful testimony. See Chapter 1.
- “Why” questions can be equally valuable when you ask deponents to explain the behavior of third persons. Of course, a deponent’s testimony about the motivations behind another’s behavior almost always involves speculation, and therefore the deposition testimony is unlikely to be admitted into evidence at trial.
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- Publication Date: March 1st, 2016
- ISBN: 9781634598958
- Subject: Trial Practice
- Series: Nutshells
- Type: Overviews
- Description: This Nutshell, which replaces Binder, Moore and Bergman's Deposition Questioning Strategies and Techniques (2001), provides comprehensive descriptions and concrete illustrations of effective strategies and techniques for taking and defending depositions. The book can serve as a text for a 2-4 unit stand-alone depositions course (either live client or simulated) or as a supplement to a civil pre-trial lawyering course. It devotes separate chapters to such fundamental skills as obtaining helpful answers to critical questions, undercutting harmful testimony, obtaining a deponent's version of significant events, and obtaining information from evasive deponents. Other chapters include topics such as responding to inconsistent or implausible testimony, overcoming opposing counsel's objections and obstructionist tactics, and preparing a client to be deposed.
