Advanced Civil Litigation Class 9Slide 1 Advantages of a Deposition You can ask specific follow-up questions based on the answers you get You can ask specific follow-up questions based on the answers you get You give the deponent less time to frame an answer, thus often making it less misleading You give the deponent less time to frame an answer, thus often making it less misleading You can ask a deponent to bring certain documents to the deposition, eliminating the need for a separate request for documents You can ask a deponent to bring certain documents to the deposition, eliminating the need for a separate request for documents You can gauge the facial expressions, demeanor, etc., of the deponent more easily You can gauge the facial expressions, demeanor, etc., of the deponent more easily It can last as long as you need to get your information It can last as long as you need to get your information Subject to a 7 hour cap under the federal rules Subject to a 7 hour cap under the federal rules It applies to non-party witnesses and to parties It applies to non-party witnesses and to parties

Advanced Civil Litigation Class 9Slide 2 Deposition – Preliminary Considerations First, you need to determine whom to depose. These can include: First, you need to determine whom to depose. These can include: The opponent, in most cases The opponent, in most cases Key witnesses Key witnesses Corporate officers with defendant or plaintiff corporations who might have relevant knowledge Corporate officers with defendant or plaintiff corporations who might have relevant knowledge Experts for the opponent Experts for the opponent Depositions can be expensive, so you’ll sometimes need to choose whom to depose if you have a list… Depositions can be expensive, so you’ll sometimes need to choose whom to depose if you have a list… Conduct a preliminary interview with the deponent (by phone is fine) if possible, as everything in the deposition goes “on the record.” Conduct a preliminary interview with the deponent (by phone is fine) if possible, as everything in the deposition goes “on the record.”

Advanced Civil Litigation Class 9Slide 3 Procedure for Setting up a Deposition First, you need to plan the deposition, including: First, you need to plan the deposition, including: Time and date and site where it will be help Time and date and site where it will be help If the parties agree or the court orders, it can be done by phone, web conferencing, etc. If the parties agree or the court orders, it can be done by phone, web conferencing, etc. How it will be recorded How it will be recorded Hiring a stenographer to take down the record Hiring a stenographer to take down the record Someone needs to administer an oath to the deponent Someone needs to administer an oath to the deponent Next, you need to draft notices of the deposition, which should contain the time and place of the deposition, who is being deposed. Next, you need to draft notices of the deposition, which should contain the time and place of the deposition, who is being deposed. If the person is a nonparty and you’re worried about the person not coming, you can get a subpoena issued by the court to command the deponent to come. If the person is a nonparty and you’re worried about the person not coming, you can get a subpoena issued by the court to command the deponent to come. When getting a subpoena for medical information, HIPAA gives certain protections to the confidentiality of the information When getting a subpoena for medical information, HIPAA gives certain protections to the confidentiality of the information

Advanced Civil Litigation Class 9Slide 4 Serving the Notice/ Subpoena The notice of deposition must be served on: The notice of deposition must be served on: The party to be deposed The party to be deposed All other parties to the case All other parties to the case The subpoena or notice can be sent by mail The subpoena or notice can be sent by mail Certified mail is best, to prove receipt Certified mail is best, to prove receipt It’s often a good idea with a non-party witness, to call the witness to give him/her a heads up that the subpoena is coming. It’s often a good idea with a non-party witness, to call the witness to give him/her a heads up that the subpoena is coming. People tend to panic or get distressed when they get unexpected court orders… People tend to panic or get distressed when they get unexpected court orders… Attach whatever fees are necessary Attach whatever fees are necessary For subpoenas, the law often requires you to compensate for travel expenses, etc. For subpoenas, the law often requires you to compensate for travel expenses, etc.

Advanced Civil Litigation Class 9Slide 5 Preparing for the Deposition 1 Draft the Actual Questions of at least an examination outline Draft the Actual Questions of at least an examination outline If you’re more comfortable and experienced with depositions, then a outline may be better than actual questions, as it makes it easier to think up new questions or change tactics “on the fly.” If you’re more comfortable and experienced with depositions, then a outline may be better than actual questions, as it makes it easier to think up new questions or change tactics “on the fly.” Ask basic and background information first. Ask basic and background information first. Even if you have basic information, it doesn’t hurt to ask it to make sure Even if you have basic information, it doesn’t hurt to ask it to make sure Be as complete as possible in your questions. Ask about everything. Remember, inadmissible evidence like hearsay and character evidence can still be asked about in a deposition Be as complete as possible in your questions. Ask about everything. Remember, inadmissible evidence like hearsay and character evidence can still be asked about in a deposition

Advanced Civil Litigation Class 9Slide 6 Preparing for the Deposition 2 Gather and prepare all of your exhibits and documents that you want to show the witness Gather and prepare all of your exhibits and documents that you want to show the witness E.g., for reference, to authenticate, etc. E.g., for reference, to authenticate, etc. Set up a file for each witness, including all relevant reference to that witness Set up a file for each witness, including all relevant reference to that witness If the witness is friendly or your client, prepare the witness before the deposition, almost like you would before testifying at trial If the witness is friendly or your client, prepare the witness before the deposition, almost like you would before testifying at trial It’s unethical and illegal, of course, to tell a witness to lie or withhold the truth; but you can counsel a witness how to explain certain things or to not answer right away if a question calls for privileged information, etc. It’s unethical and illegal, of course, to tell a witness to lie or withhold the truth; but you can counsel a witness how to explain certain things or to not answer right away if a question calls for privileged information, etc. Non-attorneys can, and often do, attend depositions to help decide if the witness will be effective, etc. Non-attorneys can, and often do, attend depositions to help decide if the witness will be effective, etc.

Advanced Civil Litigation Class 9Slide 7 Process of the Deposition Itself All lawyers for all parties have their turns to ask questions of the deponent All lawyers for all parties have their turns to ask questions of the deponent The deponent or another lawyer may object to any question The deponent or another lawyer may object to any question E.g., work product, privilege, etc. E.g., work product, privilege, etc. The deponent does not answer if there is an objection The deponent does not answer if there is an objection Any objections that can’t be ironed out by the parties can be settled by the judge later on Any objections that can’t be ironed out by the parties can be settled by the judge later on After the deposition, the deponent reviews the transcript and signs if he agrees After the deposition, the deponent reviews the transcript and signs if he agrees Depositions cannot be used at trial except: Depositions cannot be used at trial except: To impeach the deponent To impeach the deponent If the deponent is unavailable If the deponent is unavailable A few other limited exceptions A few other limited exceptions

Advanced Civil Litigation Class 9Slide 8 Digesting Depositions This is the process of distilling the irrelevant parts and producing a shorter document with the key information given by the deponent. This is the process of distilling the irrelevant parts and producing a shorter document with the key information given by the deponent. Purposes: Purposes: Make it easier to read for anyone reviewing it Make it easier to read for anyone reviewing it Make it easier to cross-reference with another document by using headings Make it easier to cross-reference with another document by using headings Identify information for follow up, etc Identify information for follow up, etc All other members of the firm to be brought up to speed on the case quickly All other members of the firm to be brought up to speed on the case quickly Allow the client to quickly be informed of what happened at the deposition that was significant Allow the client to quickly be informed of what happened at the deposition that was significant Make it easy to find relevant testimony for a memo Make it easy to find relevant testimony for a memo

Advanced Civil Litigation Class 9Slide 9 Digesting Depositions - Techniques Make sure you understand the relevant elements and defenses that must be shown at trial Make sure you understand the relevant elements and defenses that must be shown at trial Use the outline or question sheet that was used ad deposition Use the outline or question sheet that was used ad deposition Skim the whole deposition to get a feel for which issues were covered when, etc. Skim the whole deposition to get a feel for which issues were covered when, etc. Draft an outline by topic Draft an outline by topic Use the topic to put in key answers related to that topic Use the topic to put in key answers related to that topic Be as concise as possible, but also make sure to use the witness’ words. Be as concise as possible, but also make sure to use the witness’ words. Don’t paraphrase if there’s any chance of changing the meaning of the words Don’t paraphrase if there’s any chance of changing the meaning of the words Use subheadings and use short paragraphs Use subheadings and use short paragraphs If you want to make an even more concise version with paraphrasing, first save a digest version with original quotes intact If you want to make an even more concise version with paraphrasing, first save a digest version with original quotes intact