The Effective Deposition by Malone, David M. -- Read -- Imperial Library of Trantor

Index

Title Copyright Contents Dedication Foreword Acknowledgments Part One: The Law

Chapter One: The Mechanics of Taking and Defending Depositions

1.1 Whose Deposition May Be Taken? 1.2 Rule 30(b)(6) Depositions 1.3 Timing 1.4 Priority 1.5 Scheduling the Deposition 1.6 Giving Notice of the Deposition

1.6.1 Time Requirements for Giving Notice 1.6.2 Providing Notice of Deposition

1.7 Geographic Location of the Deposition

1.7.1 Parties 1.7.2 Plaintiffs 1.7.3 Defendants 1.7.4 Corporations 1.7.5 Nonparties

1.8 Number of Depositions 1.9 Length of Depositions 1.10 Compelling the Witness’s Attendance

1.10.1 Parties and Officers, Managing Agents, and Directors of a Party 1.10.2 Nonparties

1.11 Requiring Documents to Be Brought to the Deposition

1.11.1 Parties 1.11.2 Nonparty Witnesses

1.12 Scope of Discovery during the Deposition 1.13 The Deposition Itself

1.13.1 Before Whom May the Deposition Be Taken? 1.13.2 Recording the Deposition 1.13.3 Conducting the Deposition 1.13.4 Stipulations 1.13.5 Post-Deposition Requirements

Part Two: Taking Depositions

Chapter Two: Purposes of Taking Depositions

2.1 Gathering Information

2.1.1 Finding out What You Don’t Know 2.1.2 Confirming What You Think You Know 2.1.3 Testing out Legal and Factual Theories 2.1.4 Preparing for Trial

2.2 Preserving Testimony

2.2.1 Locking in Testimony 2.2.2 Substitute for Live Testimony 2.2.3 Basis for Temporary Injunctive Relief and Motions

2.3 Facilitating Settlement

2.3.1 Evaluating the Witness and Attorney 2.3.2 Opening Lines of Communication 2.3.3 Presenting Information to the Opposing Side or the Court 2.3.4 Punishing the Witness

2.4 Objectives and Questioning Techniques

Chapter Three: Advantages and Disadvantages of Depositions

3.1 Advantages

3.1.1 Unfiltered Information 3.1.2 Opinions, Mental Impressions, and Subjective Information 3.1.3 Ability to Follow up 3.1.4 Spontaneous Answers 3.1.5 Fast Moving 3.1.6 Face-to-Face Confrontation 3.1.7 Information From Uncooperative Witnesses 3.1.8 Generate Fewer Objections

3.2 Disadvantages

3.2.1 Failures of Memory or Lack of Knowledge 3.2.2 Experience with Responding to Questioning 3.2.3 Helps Opponent Prepare Her Case 3.2.4 Expense 3.2.5 Reveal Theories 3.2.6 Cannot Obtain Legal Theories

Chapter Four: Planning and Scheduling Depositions

4.1 The Discovery Plan 4.2 Coordinating Depositions with Other Discovery

4.2.1 Mandatory Disclosures 4.2.2 Interrogatories 4.2.3 Document Requests 4.2.4 Requests for Admission 4.2.5 Self-Help

4.3 Coordinating Depositions 4.4 Scheduling the Deposition 4.5 Duration and Intervals

Chapter Five: Preparing to Take the Deposition

5.1 The Questioner’s Frame of Mind 5.2 Creating the Deposition Outline 5.3 Researching the Law 5.4 Identifying All Available Facts 5.5 Constructing Your Working Theories

5.5.1 Timelines 5.5.2 Relationship Charts 5.5.3 Brainstorming 5.5.4 Focus Groups

5.6 Identifying the Opponent’s Factual and Legal Theories 5.7 Generating Questions

5.7.1 Brainstorming 5.7.2 Relating the Factual Theory to the Legal Theory 5.7.3 Identifying Facts Missing From the Factual Theory 5.7.4 The Proof Chart 5.7.5 Reviewing the Pleadings 5.7.6 Documents 5.7.7 Reviewing Depositions 5.7.8 Working with the Client and the Expert

5.8 Organizing the Deposition Outline 5.9 Using the Outline at the Deposition 5.10 Checklist for Preparing for the Deposition 5.11 A Final Word about Preparation

Chapter Six: Beginning the Deposition

6.1 Stipulations

6.1.1 “The Usual Stipulations” 6.1.2 “Reserve All Objections except as to Form” 6.1.3 Waiving Reading and Signing 6.1.4 Waiver of Notice of Receipt or Filing 6.1.5 Other Potential Stipulations 6.1.6 A Final Note on Stipulations

6.2 Set-Up and Commitments

6.2.1 Trouble Words

6.3 Speculating or Guessing

Chapter Seven: Style, Organization, and Other Matters

7.1 Style

7.1.1 Style and Tone Make a Difference 7.1.2 A Pleasant Style is Not Always Effective 7.1.3 It is Often Necessary to Use a Combination of Styles in a Single Deposition 7.1.4 Start with a Pleasant Style and Then Try Other Styles

7.2 Organization: Background of the Witness 7.3 “The Organized Tour” versus “The ‘Leapfrog’ Approach” 7.4 Handling Objections and Instructions Not to Answer 7.5 The Witching Hour of 4:00 p.m

Chapter Eight: Questioning Techniques

8.1 Introduction 8.2 Information-Gathering Questioning 8.3 The Funnel Approach

8.3.1 “The Overview” 8.3.2 “Getting the List” 8.3.3 Top of the Funnel: Open-Ended Questions 8.3.4 Middle of the Funnel: Narrowing the Questions 8.3.5 Bottom of the Funnel: Filling in the Detail 8.3.6 Closing off and Locking in 8.3.7 Going Back up the Funnel 8.3.8 Using Multiple Funnels 8.3.9 Exhaustion 8.3.10 Suggesting New Facts 8.3.11 Conversations 8.3.12 The Standard Litany 8.3.13 The “Four C’s” Approach to Conversations 8.3.14 Listening and Notes 8.3.15 Recapitulating and Summarizing 8.3.16 Conclusion

8.4 Gathering Party Statements and Testing Theories

8.4.1 Purposes of Obtaining Party Statements 8.4.2 Planning for Admissions or Party Statements and Theory Testing 8.4.3 Determining How to Obtain the Admissions or Party Statements From the Witness 8.4.4 Cross-Examination Techniques 8.4.5 When Leading Does Not Work 8.4.6 Timing 8.4.7 Conclusion

Chapter Nine: Using Documents

9.1 Uses for Documents in Depositions

9.1.1 Generating Questions for the Deposition 9.1.2 Discovering Other Facts, Witnesses, and Documents 9.1.3 Refreshing the Witness’s Memory 9.1.4 Authenticating Documents 9.1.5 Impeaching the Witness 9.1.6 Testing the Witness’s Candor 9.1.7 Forcing Party Statements 9.1.8 Exploring Claims of Privilege for Documents

9.2 Using the Documents to Prepare

9.2.1 Gathering All Appropriate Documents 9.2.2 Arrange the Documents Either Chronologically or Topically (or Both) 9.2.3 Document Privilege Logs 9.2.4 Prepare the Documents for Use at the Deposition 9.2.5 Review the Documents, Not Summaries

9.3 Compelling Production of Documents to Be Used at Depositions 9.4 Marking and Handling Documents at the Deposition

9.4.1 Prepare Sufficient Copies of the Exhibits for Use at the Deposition 9.4.2 Extreme Caution Teaches: “Bring the Original of Any Exhibit to the Deposition, But Use Copies to Examine the Witness” 9.4.3 Premark the Exhibits or Ask the Court Reporter to Mark the Exhibit 9.4.4 Have a System for Marking Exhibits 9.4.5 If Necessary, Create a Concordance of Exhibit Numbers 9.4.6 Providing Exhibits in Advance to the Witness 9.4.7 Identify the Exhibit for the Record and Hand the Exhibit to Opposing Counsel and the Witness 9.4.8 Lay Any Necessary Foundation for the Exhibit 9.4.9 Ask If Anything is Missing From the Document 9.4.10 Keeping Track of the Exhibits at the Deposition 9.4.11 Referring to Exhibit Numbers during the Deposition 9.4.12 Referring the Witness to a Portion of the Document 9.4.13 Quote Exactly When Referring to a Portion of an Exhibit 9.4.14 Do Not Read Long Portions or Entire Documents into the Record 9.4.15 Identify for the Record Any Markings on Exhibits

9.5 Questioning on Documents

9.5.1 Determine the Purposes of Examining on a Document 9.5.2 Questioning on the Document 9.5.3 Testing the Witness’s Memory 9.5.4 Exploring Claims of Privilege

9.6 Inquiring about Documents Used to Refresh the Witness’s Memory 9.7 Requesting Documents Identified during the Deposition 9.8 Refreshing Recollection

Chapter Ten: Foundations

10.1 Foundations for Real or Tangible Evidence or Documents—Rule 901(b)(1)

10.1.1 Real Evidence—Unique or Recognizable Objects—In General 10.1.2 Real Evidence—Witness Recognizes Handwriting—Rule 901(b)(2) 10.1.3 Real Evidence—Circumstantial Evidence—Rule 901(b)(4) 10.1.4 Real Evidence—Business Records—Rule 803(6) 10.1.5 Real Evidence—Public Records—Rules 803(8), 901(b)(7), & 902(1)-(5)

10.2 Substantive Visual Evidence—Photographs, Maps, and Diagrams 10.3 Oral Evidence—In General

10.3.1 Oral Evidence—Voice Identification—Rule 901(b)(5) 10.3.2 Oral Evidence—Outgoing Telephone Calls—Rule 901(b)(6) 10.3.3 Oral Evidence—Circumstantial Evidence of Speaker’s Identity—Rule 901(b)(4)

10.4 Laying Foundations Efficiently

10.4.1 Use Leading Questions When Permissible to Establish the Foundation 10.4.2 Lay Foundations for Groups of Exhibits 10.4.3 Ask for the Basis for a Foundation Objection 10.4.4 Do Not Offer the Exhibit

10.5 Negative Foundations

Chapter Eleven: Obnoxious or Obstructionist Opposing Counsel

11.1 Irritating or Obstructing Behavior 11.2 The Irritating Opposing Counsel

11.2.1 Size up the Defending Counsel 11.2.2 Keep the Deposition Goals in Mind 11.2.3 Do Not Play Opposing Counsel’s Game: Act, Do Not React 11.2.4 Ask Good Questions

11.3 The Obstructing Opposing Counsel

11.3.1 Relate to the Witness 11.3.2 Making Your Record and Escalating the Response 11.3.3 Use the Discipline of the Rules 11.3.4 Record the Deposition on Video

11.4 The Blocking Opposing Counsel: The Special Problem of Instructions Not to Answer

11.4.1 Try Again Later

11.5 Obstructing Behavior That is Not Obstructing Behavior

11.5.1 Objection, Vague 11.5.2 Dictionary

Chapter Twelve: Protective Orders and Applications to the Court

12.1 Protective Orders

12.1.1 The “Meet and Confer” Requirement

12.2 Applications to the Court

12.2.1 Rule 30(d)—Duration, Termination, and Suspension 12.2.2 Rule 30(d)(1)—Deposition Time Limits 12.2.3 Rule 30(g)—Failure to Attend 12.2.4 Rule 32(d)(4)—Errors in Preparing, Signing, and Certifying 12.2.5 Rule 37(a)—Refusals to Answer and Failures to Designate 12.2.6 Rule 37(b)—Failure to Obey an Order Compelling an Answer or Designation 12.2.7 Rule 37(d)—Failure of a Party to Appear 12.2.8 An Example

Part Three: Defending the Depositions

Chapter Thirteen: Preparing the Witness to Be Deposed

13.1 Preparing the Witness on Substance

13.1.1 How to Handle Documents in Preparation 13.1.2 Practicing Answering Questions 13.1.3 Getting Used to Aggressive Cross-Examination 13.1.4 Using Video to Prepare

13.2 Preparing the Witness for the Deposition Process

13.2.1 Reducing the Witness’s Anxieties 13.2.2 The Wrong Way to Reduce Anxieties 13.2.3 Burden-Reducing Preparation 13.2.4 Making Witness Preparation Stick 13.2.5 Addressing Questions about the Preparation Session 13.2.6 The Process of Answering Questions 13.2.7 Better Deposition Answers When Trial Will Not Happen 13.2.8 Explaining the Issues 13.2.9 What to Do When Objections Are Made

13.3 Final Instructions

13.3.1 What to Wear 13.3.2 What to Bring 13.3.3 What to Look at and Who to Talk to

13.4 Practicing Your Theme with the Witness 13.5 Conclusion

Chapter Fourteen: Defending the Deposition

14.1 Advance Preparation 14.2 Determining Whether the Witness is a Client 14.3 Preparing the Witness to Testify 14.4 Supporting and Protecting the Witness 14.5 Entering into Stipulations 14.6 Preserving the Record 14.7 Conferring with the Witness 14.8 Taking Breaks 14.9 Stating Objections

14.9.1 Objections That (Usually) Do Not Have to Be Made at the Deposition 14.9.2 Objections That Must Be Made at or before the Deposition 14.9.3 Objections That Must Be Made at the Deposition

14.10 The Form of Objections 14.11 The Calculus of Deciding Whether to Object

14.11.1 Step One: Decide Whether an Objection is Required 14.11.2 Step Two: Decide Whether the Advantages of Objecting Outweigh the Disadvantages 14.11.3 Step Three: When in Doubt, Object 14.11.4 Step Four: Make a Timely Objection 14.11.5 Step Five: Make a Correct and Specific Objection

14.12 Instructions Not to Answer 14.13 Questioning and Clarifying and Correcting Answers

14.13.1 Favorably Influence Settlement 14.13.2 Obtaining Information From Uncooperative Witnesses 14.13.3 The Witness Will Be Unavailable for Trial 14.13.4 Clarifying Ambiguous Answers 14.13.5 Correcting a Wrong, Confusing, or Incomplete Answer

14.14 Concluding the Deposition

Chapter Fifteen: Reviewing, Correcting, Editing, and Supplementing the Transcript

15.1 Reviewing, Correcting, and Editing 15.2 Supplementing the Deposition

Part Four: Using Depositions

Chapter Sixteen: Using Depositions in Motions and Trial

16.1 Motions for Summary Judgment 16.2 Preparing for Trial 16.3 Using the Deposition Testimony at Trial 16.4 Seven Ways to Use a Deposition at Trial

16.4.1 The Testimony of an Absent Witness 16.4.2 As a Basis for a Proffer 16.4.3 As a Source of Party Statements 16.4.4 As a Means of Refreshing Recollection 16.4.5 As the Testimony of a Witness Whose Memory Cannot Be Refreshed 16.4.6 As a Means of Impeachment 16.4.7 As a Means of Accomplishing a “Phantom” Impeachment

16.5 The Designation Process and Obtaining Rulings on Objections 16.6 Presenting Deposition Testimony at Trial

Chapter Seventeen: Taking and Using Preservation Depositions

17.1 Preparing to Take the Preservation Deposition 17.2 Taking the Preservation Deposition 17.3 Defending the Preservation Deposition

Chapter Eighteen: Video Depositions

18.1 When to Take a Video Deposition 18.2 Advantages of Video Depositions 18.3 Disadvantages of Video Depositions 18.4 The Law 18.5 Scheduling the Video Deposition 18.6 Preparing to Take the Video Deposition

18.6.1 Hire a Capable Operator to Conduct the Video Deposition 18.6.2 Decide on Recording Options 18.6.3 Select a Suitable Location for the Deposition 18.6.4 Planning the Questions 18.6.5 Preparing the Witness 18.6.6 Preparing the Operator 18.6.7 Working out Stipulations and Agreements

18.7 Conducting the Video Deposition

18.7.1 Beginning the Deposition 18.7.2 Questioning 18.7.3 Concluding the Video Deposition 18.7.4 Post-Deposition Review

18.8 Preparing to Use the Video Deposition at Trial

18.8.1 Transcribing 18.8.2 Editing 18.8.3 Ruling on Objections

18.9 Using the Video Deposition at Trial 18.10 Defending a Video Deposition

Chapter Nineteen: Rule 30(b)(6) Depositions

19.1 Rule 30(b)(6) 19.2 Deciding to Take a Rule 30(b)(6) Deposition

19.2.1 When and Why 19.2.2 How

19.3 The Specifications 19.4 Finding, Preparing, and Defending the Rule 30(b)(6) Designee 19.5 How to Ask Questions 19.6 Questioning on Topics Within the Specifications 19.7 Questioning on Topics beyond the Specifications 19.8 The Number and Identity of Designees 19.9 How Do Nonparties Respond?

Chapter Twenty: Expert Depositions

20.1 Preparing to Depose the Expert

20.1.1 Expert Discovery 20.1.2 Location of the Deposition 20.1.3 Preparing to Take the Deposition 20.1.4 Brainstorming on the Experts 20.1.5 Timelines 20.1.6 The “Fourteen Documents” Rule 20.1.7 The Goal in Deposing an Expert 20.1.8 Expert Party Statements

20.2 Deposing the Expert: Strategies

20.2.1 Keeping an Open Mind 20.2.2 Expert’s Advantages 20.2.3 Expert’s Vulnerabilities 20.2.4 Daubert and Deposition Strategy

20.3 Deposing and Defending the Expert: Tactics

20.3.1 Deposing Experts: Tactics 20.3.2 Key Questions to Ask Experts 20.3.3 Rule 803(18): Learned Treatises as Nonhearsay 20.3.4 Expert Witnesses: Preparation 20.3.5 Conclusion

Chapter Twenty-One: Concluding the Deposition

21.1 Insuring Completeness 21.2 Arrests and Convictions 21.3 Completing, Adjourning, Recessing, Terminating, Ending, Continuing the Deposition: When is It Actually Done?

Conclusion Appendices

A.1 Federal Rules of Civil Procedure, Rule 26 A.2 Federal Rules of Civil Procedure, Rule 30 A.3 Federal Rules of Civil Procedure, Form 52 B.1 Sample Notice of Nonparty Deposition on Oral Examination B.2 Sample Notice of Nonparty Deposition on Oral Examination, Seeking Both Testimony and Production of Documents B.3 Sample Notice of Deposition on Oral Examination of Witness Controlled by Defendant B.4 Sample Notice of Rule 30(b)(6) Deposition on Oral Examination (Specifications for Rule 30(b)(6) Deposition of Defendant Johnson Company) B.5 Sample Subpoena to Nonparty Deponent Residing in Another District B.6 Sample Privilege Log C.1 “The Daubert Deposition Dance”

Index

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