Depositions and Law & Motion Part I: Law & Motion: Initial Pleading Phase & DISPOSITIVE MOTIONS Professor Steve Kester ‘78 Part II: Depositions: Discovery phase Taking Depositions Professor Don G. Forgey ’77 Defending Depositions Professor Heidi Yoshioka ’89 DEPOSITION DEMONSTRATION

PART II: DEPOSITIONS – THE DISCOVERY PHASE OF A LAWSUIT Professor Donald G. Forgey ’77 & Professor Heidi Yoshioka ‘89 Lewis Brisbois Bisgaard & Smith LLP

TAKING DEPOSITIONS

STATUTORY AUTHORITY (CALIFORNIA): CODE OF CIVIL PROCEDURE SECTIONS 2025.010 - 2029.010 – CCP 2025.010 - 2025.610 (CALIFORNIA ACTION - ORAL DEPOSITIONS IN CALIFORNIA) – CCP 2026.010 - 2027.010 (CALIFORNIA ACTION - ORAL DEPOSITIONS OUTSIDE OF CALIFORNIA) – CCP 2028.010 - 2028.080 (CALIFORNIA ACTION - DEPOSITIONS BY WRITTEN QUESTIONS) – CCP 2029.010 (CALIFORNIA DEPOSITION IN ACTION PENDING OUTSIDE OF CALIFORNIA)

_DEPOSITION PREPARATION_ “THERE IS NO SUBSTITUTE FOR PREPARATION” (CANNOT JUST “WING IT”) WHAT IS THE GOAL OF THE DEPOSITION? a. LOOKING FOR INFORMATION (“FISHING EXPEDITION”) b. PIN THE WITNESS DOWN TO A CERTAIN SET OF FACTS. c. CEMENT A DEFENSE (E.G., STATUTE OF LIMITATIONS, “COURSE AND SCOPE” OF EMPLOYMENT, WORKERS’ COMPENSATION EXCLUSIVITY, FACTS IN SUPPORT OF AN MSJ, PRE-EXISTING CONDITION, ETC.)

_DEPOSITION PREPARATION_ d. SET UP THE WITNESS FOR IMPEACHMENT AT TRIAL (E.G., PRIOR INCONSISTENT TESTIMONY, SURVEILLANCE VIDEO, ETC.) e. CONVINCE OPPOSING COUNSEL HE/SHE HAS A WEAK CASE. BACKGROUND CHECK, INTERNET SEARCH, ETC.? DEPOSITION OUTLINE PREPARATION OF EXHIBITS (WITH COPIES) SECRETARY – TELEPHONE CALL TO CONFIRM DEPOSITION

PRELIMINARY CONSIDERATIONS DRESS APPROPRIATELY CONDUCT YOURSELF PROFESSIONALLY IMPORTANCE OF CIVILITY

THE COURT REPORTER INTRODUCE YOURSELF AND BE FRIENDLY HAVE/OFFER A BUSINESS CARD AND A CASE CAPTION BE ALERT TO REPORTER’S NEED FOR BREAKS, LUNCH (HARDEST JOB IN THE ROOM) DON’T TALK TOO FAST

THE COURT REPORTER ASK WITNESS TO SPELL NAMES/TECHNICAL TERMS, ETC. KEEP TRACK OF EXHIBITS REQUEST A COPY OF THE TRANSCRIPT

THE DEPOSITION ADMONITIONS DEPOSITION TAKEN BEFORE? OPPORTUNITY TO DISCUSS WITH YOUR ATTORNEY? UNDER OATH – SAME FORCE AND EFFECT AS IF IN COURT. UNDERSTAND QUESTION BEFORE ANSWER – O.K. TO ASK TO REPEAT OR REPHRASE QUESTION. ANSWER AUDIBLY – NO NODS OF THE HEAD, ETC.

THE DEPOSITION ADMONITIONS ALLOW ATTORNEY TO FINISH ASKING QUESTION COMPLETELY BEFORE RESPONDING. ESTIMATES O.K., BUT DON’T GUESS OR SPECULATE. READ AND SIGN TRANSCRIPT UNDER PENALTY OF PERJURY – CHANGES CAN EFFECT CREDIBILITY. ANY REASON YOU CANNOT GIVE YOU BEST TESTIMONY TODAY? DRUGS OR MEDICATION IMPAIRMENT?

COMMON MISTAKES TAKING DEPOSITIONS NOT MAKING A CLEAR RECORD NOT ASKING ENOUGH OPEN-ENDED QUESTIONS (ESPECIALLY WHEN DEPOSING THE PLAINTIFF) NOT LISTENING TO THE ANSWERS IGNORING THE COURT REPORTER TOO ARGUMENTIVE/CONFRONTATIONAL

DEFENDING DEPOSITIONS

PREPARING YOUR CLIENT FOR DEPOSITION DON’T VOLUNTEER INFORMATION MAKE SURE YOU UNDERSTAND THE QUESTION BEFORE ANSWERING ALLOW ATTORNEY TO FINISH ASKING QUESTION BEFORE RESPONDING ANSWER AUDIBLY (IN WORDS) DON’T GUESS OR SPECULATE (“ESTIMATE” VS. “GUESS”)

PREPARING YOUR CLIENT FOR DEPOSITION DON’T THINK "OUT LOUD", OR MAKE OFF-THE-CUFF COMMENTS OR JOKES DON’T ARGUE WITH THE LAWYER QUESTIONING YOU IF COUNSEL OBJECTS, STOP TALKING AND ALLOW OBJECTION TO BE MADE IF INSTRUCTED NOT TO ANSWER, DON’T ANSWER READ AND SIGN TRANSCRIPT UNDER PENALTY OF PERJURY – LATER CHANGES CAN AFFECT CREDIBILITY

STANDARD DEPOSITION OBJECTIONS OBJECTIONS TO FORM VAGUE, AMBIGUOUS OR UNINTELLIGIBLE COMPOUND LACKS FOUNDATION CALLS FOR SPECULATION NOT RELEVANT TO THE SUBJECT MATTER OF THE ACTION AND NOT REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE ASKED AND ANSWERED

STANDARD DEPOSITION OBJECTIONS ASSUMES FACTS NOT IN EVIDENCE LEADING (IF A WITNESS NOT ADVERSE OR NOT PARTY OPPONENT) ARGUMENTATIVE MISSTATES WITNESS’ TESTIMONY CALLS FOR A NARRATIVE RESPONSE CALLS FOR AN OPINION (IF NOT AN EXPERT) (IF AN EXPERT), CALLS FOR AN OPINION OUT OF EXPERT'S AREA OF EXPERTISE TOO GENERAL OR OVERBROAD

STANDARD DEPOSITION OBJECTIONS HYPOTHETICAL QUESTIONS INCOMPLETE HYPOTHETICAL, ASSUMES FACTS NOT IN EVIDENCE, CALLS FOR SPECULATION (MAY BE VAGUE AND AMBIGUOUS)

DEALING WITH HOSTILE OPPOSING COUNSEL DON’T TAKE THE BAIT! REMEDIES: * MAKE A RECORD * TAKE A BREAK * IF EGREGIOUS, TERMINATE THE DEPOSITION AND SEEK COURT INTERVENTION

COMMON MISTAKES DEFENDING DEPOSITIONS NOT ADEQUATELY PREPARING THE CLIENT OBJECTING TOO MUCH OR MAKING IMPROPER OBJECTIONS TOO ARGUMENTATIVE OR CONFRONTATIONAL – LACK OF CIVILITY

STIPULATION AT CONCLUSION OF DEPOSITION COURT REPORTER RELIEVED OF OBLIGATIONS UNDER THE CODE ORIGINAL TRANSCRIPT TO BE SENT TO WITNESS/OR TO WITNESS’ ATTORNEY FOR FORWARDING TO THE WITNESS REVIEW AND SIGNATURE UNDER PENALTY OF PERJURY

STIPULATION AT CONCLUSION OF DEPOSITION NOTIFIED OF ANY CHANGES OR CORRECTIONS WITHIN 30/45 DAYS IF NOT SO NOTIFIED, UNSIGNED/UNCORRECTED COPY CAN BE USED THEREAFTER FOR ALL PURPOSES (PLAINTIFF/DEFENSE COUNSEL) WILL MAINTAIN POSSESSION OF THE ORIGINAL TRANSCRIPT AND WILL LODGE WITH COURT AT TIME OF TRIAL

EXPERT DEPOSITIONS PREPARING FOR TAKING DEFENDING

PREPARING DEPOSITION SUMMARY: LETTER SUMMARY VERSUS MEMORANDUM SUMMARY WITH SHORT COVER LETTER DON’T PUT OFF PREPARING IT! IDEALLY, WITHIN 48 HOURS OF THE DEPOSITION.

PREPARING DEPOSITION SUMMARY: MUST INCLUDE: * IMPRESSION OF WITNESS * SUMMARY OF TESTIMONY

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