Advantages of a Deposition

1. Advantages of a Deposition • 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 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 • It can last as long as you need to get your information • Subject to a 7 hour cap under the federal rules • It applies to non-party witnesses and to parties Advanced Civil Litigation Class 9

2. Deposition – Preliminary Considerations • First, you need to determine whom to depose. These can include: • The opponent, in most cases • Key witnesses • Corporate officers with defendant or plaintiff corporations who might have relevant knowledge • Experts for the opponent • 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.” Advanced Civil Litigation Class 9

3. Procedure for Setting up a Deposition • First, you need to plan the deposition, including: • 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. • How it will be recorded • Hiring a stenographer to take down the record • 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. • 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 Advanced Civil Litigation Class 9

4. Serving the Notice/ Subpoena • The notice of deposition must be served on: • The party to be deposed • All other parties to the case • The subpoena or notice can be sent by mail • 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. • People tend to panic or get distressed when they get unexpected court orders… • Attach whatever fees are necessary • For subpoenas, the law often requires you to compensate for travel expenses, etc. Advanced Civil Litigation Class 9

5. Preparing for the Deposition 1 • 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.” • Ask basic and background information first. • 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 Advanced Civil Litigation Class 9

6. Preparing for the Deposition 2 • Gather and prepare all of your exhibits and documents that you want to show the witness • E.g., for reference, to authenticate, etc. • 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 • 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. Advanced Civil Litigation Class 9

7. Process of the Deposition Itself • All lawyers for all parties have their turns to ask questions of the deponent • The deponent or another lawyer may object to any question • E.g., work product, privilege, etc. • 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 • After the deposition, the deponent reviews the transcript and signs if he agrees • Depositions cannot be used at trial except: • To impeach the deponent • If the deponent is unavailable • A few other limited exceptions Advanced Civil Litigation Class 9

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. • Purposes: • Make it easier to read for anyone reviewing it • Make it easier to cross-reference with another document by using headings • Identify information for follow up, etc • 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 • Make it easy to find relevant testimony for a memo Advanced Civil Litigation Class 9

9. Digesting Depositions - Techniques • 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 • Skim the whole deposition to get a feel for which issues were covered when, etc. • Draft an outline by 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. • Don’t paraphrase if there’s any chance of changing the meaning of the words • 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 Advanced Civil Litigation Class 9