Recap & Today’s Class - PowerPoint Presentation

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Recap & Today’s Class

Last group to present motions

Questions about motions assignments

Today’s Class

Learn about taking & defending depositions

Prepare for next class’s deposition exercise

By the end of this class you should be able to:

Identify the structure of a deposition

Plan a strategy for taking depositions

Plan a strategy for defending depositions

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The Art of Taking & Defending Depositions

Taking

Depositions

Planning & Scheduling

Purposes, Advantages & Disadvantages

Preparation

Setting the Stage

Deposition Techniques

Using Documents

Ending the Deposition

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Planning & Scheduling

Timing

Typically after written discovery (though can be taken at any time once discovery is open)

Whose deposition may be taken?

Any person who is a party to the action

Includes agents, employees, etc.Corporations may be deposed through their officers, directors, and managing agents (and/or through one or multiple corporate designee(s)) [FRCP 30(b)(6)]Any person not a party to the action you believe may have knowledge of relevant informationNumber of depositionsFRCP 30 limits number to 10 per side (not per party), but may stipulate to different number

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Planning & Scheduling

Scheduling

Usually scheduled by agreement among the parties

Must give written notice of the deposition to all other parties to the action

Notice must state time and place of deposition, name and address of each person to be examined

If the notice is for a corporate representative, include topics for examinationCan include materials to be produced for subpoenaed witness (or in state court for regular witness)MUST include method by which the testimony is to be recorded, incl. stenographic, video, audioNotice must be served within a “reasonable” time in federal courtIn federal court, limited to 7 hrs on one day (but may stipulate)

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Planning & Scheduling

Location

Generally, a deposition may be taken at any location agreed upon by the partie

s

If no agreement, then

usually the deposition of a:Party may be taken at any location (subject to court’s power to grant protective order or any other controlling rules)Plaintiff may be taken in the geographic area where the plaintiff resides, is employed, or filed lawsuitDefendant may be taken in the geographic area of the defendant’s residence or employmentCorporate witness may be taken in the district of the principal place of business or where individual witnesses reside

Nonparty

may be taken within 100 miles of place where the person resides, is employed, or regularly transacts business [FRCP 45

(c)]

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Purposes, Advantages & Disadvantages

Why take a deposition?

To gather information

Find out what you don’t know

Allows you to fill in any holes

Confirm what you think you know Lock in testimony Discover and deal with discrepanciesTest out legal/factual theories Do you have facts to support your theories?

Are there other, better theories?

Are there problems with any theories that need to be addressed

Figure out and address what the other side knows and their theories/supporting facts

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To preserve testimonyLock in testimony in case of deviations at trial

Substitute for live testimony if witness will be unavailable at trial

To facilitate settlement

Chance to evaluate witness and attorney

Open lines of communication with opposing counsel

Establish favorable testimony7Purposes, Advantages & Disadvantages

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Advantages of taking depositions

Get unfiltered information from opposing party/witness in their own words (without opposing counsel’s input)

Obtain unrehearsed, spontaneous response

Elicit witness’s opinions, mental impressions, and subjective information

Can immediately follow up when answers are unclear or lead to other avenues of investigation

Can preserve testimony closer to time of event at issue (as cases tend to take a long time)8Purposes, Advantages & Disadvantages

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Purposes, Advantages & Disadvantages

Face to face confrontation

Forced to tell their story to representative of opposition

Get immediate answers with fewer objections than written discovery

Can evaluate impression witness would make at trial

Develop relationship with witness (esp. important if nonparty)Demonstrate your command of the case to opposing side9

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Purposes, Advantages & Disadvantages

Disadvantages of taking depositions

Failure of memory / lack of knowledge

Allows witness to improve their testimony through practice prior to trial

Helps opponent prepare their case

Reveals your legal and factual theoriesExpenseOverall Key Point:Make sure that your deposition strategy (choice of deponents, timing of depositions, lines of questioning, etc.) accord with your overall strategy for the case10

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Preparation

Before you begin preparing, consider how the deposition fits in with your case strategy

Determine specific purpose for each deposition

Do you want to use the deposition to:

Confirm certain key facts / theories?

Flesh out certain events?Provide background information (could be harmful or helpful) that you can later evaluate?Lock in certain important admissions?Remember that each witness is an expert in a particular area – each deposition can be used for a unique purpose (and time can be wasted if used for incorrect purpose)

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Preparation

Review relevant documents and discovery responses, or any other materials

Know everything you can about the witness so that there are no surprises

And so that you can get everything you need from the witness

What is the importance of the witness to the other side?

Consider how the other side might be prepping the witnessMake sure you know the applicable legal standard for your claims/defensesWhat facts do you need to prove or disprove the elements?12

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Preparation

Creating your outline

Overall organization

Usually by topic

Some attorneys like to mix topics to throw off the witness

AdmonitionsTo create a clear record that witness understands deposition process and rights/obligationsTypically include:Have you ever been deposed before?Understand you’re under oathNeed to give verbal answersAsk for clarification, otherwise I will assume you understood

Breaks

Any reason why you can’t give full, complete, accurate testimony?

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Preparation

Background information

Consider:

Role witness plays in story of case

Importance of witness’s background to issues in case (i.e., is it cost effective)

Generally helpful to know:EducationEmployment historyRelevant personal background (i.e., ever been involved in a similar lawsuit?)Establish their credibility or lack thereof (i.e., relationship to case, how long they have worked at organization, types of work they have done, etc.)

Topics

Consider strategy for each topic you want to cover

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Setting the Scene

What is a deposition like?

Environment

Who is there?

Where does everyone sit?

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Deposition Techniques

Remember:

Pay attention to the flow of the deposition

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do not read from your outline!

Questioning techniquesFunnell approachBegin with open-ended questions (who, what, why, when, etc.)Follow up (what do you mean by? Additional details)Exhaust/close off (what else? Always? Never? Is that all? Have you told me everything about)Fill in gaps (what about [x person, subject matter, etc.], how much time? Did anyone suggest? Why didn’t you?]Recap (so, as I understand it…; xx, is that correct?)AdmissionsMOVE ON!

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Deposition Techniques

Boxing in the witness

Conceal your objective for as long as possible

Do not react to favorable or unfavorable answers

Commit the witness to general principles and undisputed facts

Move from facts the witness must admit to facts you want the witness to admitClose off escape routes Insist on firm answersSometimes you have to wrestle the witnessAttack harmful conclusionsOther techniquesSwitching between pleasant and adversarial modeMaking use of time of day (i.e., weak points after lunch or late afternoon)

Rapid-fire questions

Clean up messy answers (you want soundbites for trial or briefs)

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Using Documents

Only use those that are necessary

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and not too many

Uses for documents

AuthenticationReview rules of evidence; make sure you establish everything you needRefreshing witness’s memoryImpeaching the witnessAsk questions about event first, then show documentOr, lock witness in at deposition so that you can impeach at trial if necessaryTesting the witness’s candorForcing party statementsCan’t argue with document

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Using Documents

How to introduce a document

Prepare copies of the documents (you, opposing counsel, witness, anyone else in the room)

Ask the court reporter to mark the document

State on the record that you are handing the witness a document marked as Exhibit X, Bates stamped X

Lay foundationEstablish what the document is, date, etc. Have witness verify signature (if any), or that they sent/received letter/email, etc.Do you recognize this document?Direct witness’s attention to pertinent part and read / have them read it into the recordAsk relevant questions19

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Handling Opposing Counsel

Objections

Listen to objections and determine if valid

If unclear, ask for basis for objection

If necessary, adjust your question

Or, ignore and tell the witness they can answer; insist on answer unless attorney instructs not to answerPut on the record your opposition to any objection that is improper, incl. speaking objections or attempts to coach the witnessInstructions not to answerONLY valid to protect privilege, enforce court order limiting discovery, or present motion to limit/terminate depositionDo not let opposing counsel intimidate you20

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Ending the Deposition

Can leave it open if necessary

i.e., if you’ve discovered you need more documents, etc.

Usually you will arrange to get transcript from court reporter / videographer

Need to look for any necessary corrections

Other side gets to do so too and signs it21

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Defending Depositions

How to Prepare

Witness

Review all relevant material

Consider other side’s strategy & what they want from witness

Make sure witness understands the depo processMake sure witness understands material and is ready for questions / objectionsPracticeGo over what to wear, etc.22

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Defending Depositions

Proper Objections

Vague/ambiguous

To clarify something in the question

Compound

Harassing/argumentativeRelevancePrivilege/protection23

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Defending Depositions

Strategy During

Deposition

Reasonable objections

No speaking objections

But preserve your rights and make record clearDo not coach witnessTake care of your witnessMake sure they have time to read documentsMake sure they have enough breaks, etc.24

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Class Exercise

Divide into “firms”

Each “firm” will designate one person to serve as the witness

Prep your witness; determine who will take turns defending

Strategize and write outline for taking deposition of opposing party witness; determine who will take turns taking the deposition

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