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

The Art of Taking & Defending Depositions Taking Depositions Planning & Scheduling Purposes, Advantages & Disadvantages Preparation Setting the Stage Deposition Techniques Using Documents Ending the Deposition

Planning & Scheduling Timing Whose deposition may be taken? 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 information Number of depositions FRCP 30 limits number to 10 per side (not per party), but may stipulate to different number

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 examination Can 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, audio Notice must be served within a “reasonable” time in federal court In federal court, limited to 7 hrs on one day (but may stipulate)

Planning & Scheduling Location Generally, a deposition may be taken at any location agreed upon by the parties 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 lawsuit Defendant may be taken in the geographic area of the defendant’s residence or employment Corporate 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)]

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 discrepancies Test 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

Purposes, Advantages & Disadvantages To preserve testimony Lock 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 testimony

Purposes, Advantages & Disadvantages 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)

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 side

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 theories Expense Overall 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 case

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)

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 witness Make sure you know the applicable legal standard for your claims/defenses What facts do you need to prove or disprove the elements?

Preparation Creating your outline Overall organization Admonitions Usually by topic Some attorneys like to mix topics to throw off the witness Admonitions To create a clear record that witness understands deposition process and rights/obligations Typically include: Have you ever been deposed before? Understand you’re under oath Need to give verbal answers Ask for clarification, otherwise I will assume you understood Breaks Any reason why you can’t give full, complete, accurate testimony?

Preparation Background information Topics 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: Education Employment history Relevant 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

Setting the Scene What is a deposition like? Environment Who is there? Where does everyone sit?

Deposition Techniques Remember: Pay attention to the flow of the deposition – do not read from your outline! Questioning techniques Funnell approach Begin 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?) Admissions MOVE ON!

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 admit Close off escape routes Insist on firm answers Sometimes you have to wrestle the witness Attack harmful conclusions Other techniques Switching between pleasant and adversarial mode Making 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)

Using Documents Only use those that are necessary – and not too many Uses for documents Authentication Review rules of evidence; make sure you establish everything you need Refreshing witness’s memory Impeaching the witness Ask questions about event first, then show document Or, lock witness in at deposition so that you can impeach at trial if necessary Testing the witness’s candor Forcing party statements Can’t argue with document

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 foundation Establish 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 record Ask relevant questions

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 answer Put on the record your opposition to any objection that is improper, incl. speaking objections or attempts to coach the witness Instructions not to answer ONLY valid to protect privilege, enforce court order limiting discovery, or present motion to limit/terminate deposition Do not let opposing counsel intimidate you

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 it

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 process Make sure witness understands material and is ready for questions / objections Practice Go over what to wear, etc.

Defending Depositions Proper Objections Vague/ambiguous To clarify something in the question Compound Harassing/argumentative Relevance Privilege/protection

Defending Depositions Strategy During Deposition Reasonable objections No speaking objections But preserve your rights and make record clear Do not coach witness Take care of your witness Make sure they have time to read documents Make sure they have enough breaks, etc.

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