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SUCCESSFUL FIRST DEPOSITIONS. The Rules. TRCP 176 : Basic oral depos TRCP 199: Basic oral depos TRCP 200: DWQ TRCP 201: Depos in foreign jurisdictions TRCP 202: Depo before suit or to investigate. Introduction to Depositions.

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Presentation Transcript
the rules
The Rules
  • TRCP 176 : Basic oral depos
  • TRCP 199: Basic oral depos
  • TRCP 200: DWQ
  • TRCP 201: Depos in foreign jurisdictions
  • TRCP 202: Depo before suit or to investigate
introduction to depositions
Introduction to Depositions
  • Oral deposition is a question and answer session where the witness is under oath.
  • Deposition: Critical because you get to ask questions, interact with the witness, increase or decrease credibility of the witness, obtain admissions against interest, befriend or intimidate the witness
strategic considerations
Strategic Considerations
  • Expert or lay witness?
  • Subpeona Duces Tecum?
  • Make an early determination: Do you want to make a friend or an enemy or both?
  • ***BE CAREFUL: you never know when you might need the witness as a friend – you may want to settle with them.
be nice first
Be Nice - First
  • Get what you can by being nice and then get tougher
  • After all you might be perceived as a jerk, or worse, as a ‘typical’ lawyer
example decisions
Example: Decisions
  • Are you preserving evidence?
  • Attacking a potential enemy:?
  • Discrediting a witness?
  • Testing a theory?
  • Video or not?
  • Telephonic or not?
  • Stenographic or not?
decisions
Decisions
  • Where? Location can be supportive or intimidating
  • When? Before or after written discovery?
  • Early in the morning, midday, afternoon or night?
  • Need a translator?
scheduling
Scheduling
  • How to reach agreement with the other side:
    • Call and ask, follow up with a letter
    • No response – send notice and expect Motion to Quash
    • Order of deposition: who should be deposed first? THE ONE WHO GOES FIRST GETS COMMITTED TO A POSITION FIRST.
tactics
Tactics
  • Agreements at beginning of deposition
    • No interruptions
    • Turn off phone/pager
    • What is the truth
    • Verbal responses only
    • Uh-huh conundrum
tactics10
Tactics
  • Will assume you understood all of my questions unless you say otherwise
  • This is a process for gathering information

and I need your help

Any reason you can’t tell the truth today?

Health, medication, personal tragedy?

slide11
BTW
  • Who pays for the deposition?
  • The first to ask a question
valid objections
Valid Objections
  • Objection, form
  • Objection, leading
  • Objection, non-responsive
need to prove up documents
Need to prove up documents?
  • See business records exception to the hearsay rule
  • Be able to prove up business records for admission over hearsay objection
slide14
More…
  • Lead where you can
  • Control the witness
    • and the flow
    • and the opposing counsel
sneaky stuff
Sneaky Stuff
  • Wastebasket
  • Seating
  • Order coffee, soft drink
  • Friendship with court reporter
  • Select court reporter
  • Observe witness/lawyer interaction
  • Observe nonverbal communication
things you should know
Things you should know:
  • 1. They are smarter than you are.
  • 2. They usually think they are smarter than you are.
  • 3. Pride goes before a fall
  • 4. Experts often don’t know facts of the case as well as you or your witness
  • 5. Juries are suspicious of testimony that is paid for
slide18
6. Experts must decide what facts to use and what facts to ignore in order to come up with a theory. They often try to steal their way into the jury box by telling the jury what facts to believe. (To arrive at that conclusion, you had to ignore the fact that…)
slide19
7. They don’t get to ask the questions, only answer them (They will try to change your questions because that is how you keep control.)
slide20
8. Seek admissions of reasonable propositions from the expert. Know that they will often fight you on minor technical points, then they lose credibility by failing to concede that which is obvious or reasonable.
example unpredictable approach
Example: Unpredictable Approach
  • Q. Please state you name for the record.
  • A. Wilbur H. Wolf.
  • Q. What is your address?
  • A. 225 Carnivore Lane, Capital City.
  • Q. Mr. Wolf, on the morning the the fifth, you tried to eat Little Red Riding Hood, didn’t you?
slide22
A. No.
  • Q. What did you do when you first awoke on the 5th, Mr. Wolf.
  • A. Discussion of activities
  • Q. Mr. Wolf, let me show you Exhibit 6. It’s an email you wrote to Mrs. Wolf on the morning of the 4th?
slide23
A. Yes.
  • Q. It ways you are going to eat Little Red Riding Hood, doesn’t?
probing for details
Probing for Details
  • Remember to ask: who, what, where, when, why and how.
  • The April 16, 2001 letter
    • Who wrote it?[deponent]
    • Where were you at the time?
    • When did you write it?
    • Why did you write it?
    • What did you mean at the bottom of page one
    • Remember – if you ask did you write the letter, the party can just say no – not much help.
probing example 2
Probing: Example 2
  • Q. Mr. Wolf, what is your age?
  • A. No, or at the time I tried to eat Little Red Riding Hood?
  • Q. Now.
  • A. 26
  • Q. How much education do you have.
  • (Don’t miss a promising line of testimony)