2. 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

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

4. TAKING DEPOSITIONS

5. STATUTORY AUTHORITY (CALIFORNIA):
CODE OF CIVIL PROCEDURE SECTIONS
– CCP (CALIFORNIA ACTION ORAL DEPOSITIONS IN CALIFORNIA)
– CCP (CALIFORNIA ACTION ORAL DEPOSITIONS OUTSIDE OF CALIFORNIA)
– CCP (CALIFORNIA ACTION DEPOSITIONS BY WRITTEN QUESTIONS)
– CCP (CALIFORNIA DEPOSITION IN ACTION PENDING OUTSIDE OF CALIFORNIA)

6. _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.)

7. _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

8. PRELIMINARY CONSIDERATIONS
DRESS APPROPRIATELY
CONDUCT YOURSELF PROFESSIONALLY
IMPORTANCE OF CIVILITY

9. 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

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

11. 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.

12. 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?

13. 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

14. DEFENDING DEPOSITIONS

15. 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”)

16. 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

17. 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

18. 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

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

20. 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

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

22. 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

23. 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

24. EXPERT DEPOSITIONS
PREPARING FOR
TAKING
DEFENDING

25. 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.

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

27. THE END