1. 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

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

3. 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

4. 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)

5. 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)]

6. 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

7. 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

8. 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)

9. 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

10. 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

11. 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)

12. 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?

13. 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?

14. 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

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

16. 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!

17. 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)

18. 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

19. 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/ , 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

20. 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

21. 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

22. 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.

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

24. 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.

25. 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