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August 12, 2005

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» Laying a Foundation to Impeach a Witness at Deposition from South Carolina Trial Law Blog
Evan Schaeffer recently wrote a post on How to Start a Deposition at his Illinois Trial Practice Weblog. It’s a good post for young lawyers on how to get started. That reminded me of the opening questions that I use to... [Read More]

» Laying a Foundation to Impeach a Witness at Deposition from South Carolina Trial Law Blog
Evan Schaeffer recently wrote a post on How to Start a Deposition at his Illinois Trial Practice Weblog. It’s a good post for young lawyers on how to get started. That reminded me of the opening questions that I use to... [Read More]

» "Laying a Foundation to Impeach a Witness at Deposition" from Stark County Law Library Blawg
David Swanner posts: “Evan Schaeffer recently wrote a post on How to Start a Deposition at his Illinois Trial Practice [Read More]

Comments

JR

Good stuff. Youngsters like me have a million and a half questions, and many simply aren't addressed by the available literature. I am sure I will have even more questions once I start actually practicing law. As a matter of fact, if you ever wrote Practicing Law for Dummies, I would be one of the first people to buy a copy.

Yeoman

After the state the name for the record question, I find it handy to go through a laundry list of deposition rules. This helps put you and the deponent on the same page, and can also save you from having some odd arguments later about what was going on in the deposition.

What i mean by this is the following. I tell the witness he needs to give oral answers that are clear. No head nodding. When he means to say yes, say yes. No is no. Don't do uh huh, or uh uh. If he doesn't understand a question, tell me he doesn't understand it. If he needs it repeated, tell me that.

I'll even go so far as to tell a witness it is important that his answer is clear, as if he later changes it at trial, I will bring the deposition out and ask why he changed it. That's mostly for me, however, as I want that in there in case the witness does change it, so I can go back and show the jury I warned him.

Marie

This is a little OT, but may be beneficial to someone else.

One of my biggest fears as a legal secretary was forgetting to order the court reporter. Of course, I did forget. Once. It was for an 8:00 a.m. doctor's depo of all things.

Court reporters around here are always early. So, at exaclty 8:00, my boss called me angrily complaining that the court reporter wasn't there yet. I immediately knew it was my fault. But, trying to match his anger, I said, I'll find out what's going on.

Fortunately, I knew someone I could call and she was there by 8:10.

After that, I always added the court reporter's to the notice of deposition. That way, if I didn't have time to make the call, or forgot, the court reporter got the notice. And the court reporter had all the names of the parties and lawyers in advance of the depo.

YGB

In my experience (Federal Practice -- IP litigation), one generally notices up the de[o and then negotiates about scheduling. Also, be very careful about third party depos -- there are a number of possible pitfalls, and my experience has been, if a subpoena might be called for always get one to issue even if the witness is your best friend's whatever.
I usually start with a number of stipulations, e.g. that the witness can sign the deposition before any notary public, copies of documents may be marked in lieu of originals subject to objection, etc. These recitations can soothe the neophyte's nerves as words can start coming out of their mouths with out too much effort. I also like to ask how much time the witness has spent preparing, with whom, and if and what documents reviewed refreshed the witness recollection. In large cases where they may be a parent and a sub, their may be waiver issues if the a parent's in-house counsel has sat in on the prep of a sub's witness and vice versa -- this issue came up in my experience where a sub was owned not only by the party parent, but also non-party companies.
Another thing I've found helpful is to have a "survival kit." In Federal Practice, this means carrying a recognized copy of the Federal Rules of Civil Procedure and Evidence, a copy of the local rules for the appropriate district court and chamber of the judge and/or magistrate for the case. One should also have easily available the magistrate or judge's telephone number designated for discovery/deposition inquiries (in Federal District courts the magistrate will often have such a number listed in chamber rules). Also, if there are any cases having rulings that relate to issues you believe may arise during depositions it is good to have copies at hand. This will help in arguments before the magistrate on the phione and are often very useful in silencing objecting counsel -- in one deposition we anticipated the defending attorney using the phrase "We don't want you to speculate..." and had cases from the appropriate district that stated that requesting deponents to answer hypotheticals was permitted. Citing these cases did wonders at quieting the defending attorney. I also include office supplies in particular a working stapler. Carry your buisiness cards -- it will do wonders for the reporter getting your name correct on the transcript. If there is a videographer, work out with them how/when they will notify you that a tape needs changing. I also like to sit with my back to the window -- less distractions for you, etc. Because you are taking the deposition you may be able to control these things. Figure out what discovery issues you think might be advantageous to discuss with your opponent at the deposition and get the discussions on the record. Try to get the witness into a conversation -- this is a reason to ask pedigree questions first, because it gets the witness talking about information the witness feels comfortable talking about. Experts might be handled differently -- I have seen a quite effectice deposition that started out immediately with difficult hypotecticals, although, in general, I believe that it is rarely in the interest of the examining attorney to make the deponent ill at ease. Make sure to as the witness where he/she lives/resides so that if you want them for trial, you will know if they are with in the 100 mile subpoena bubble. Remember how the testimony may be used at trial (or in briefs): you need a clean clear question followed by a clear answer that the jury can understand when the testimony is used as cross, etc. So avoid lawyerisms such as "Did there come a time when the telephonic conversation terminated?" Say "When did your phone call with A end?" Using lawyerisms will not only throw off the jury, but will enhance the likelihood that the witness will be fearful of answering. But don't let this make you afraid: there are many ways to ask the same question -- remember that in a pinch if the question or answer is inartful, ask it in another way. I know too many attorneys who hold their breath for the one question they think is crucial and think they've blown it if the answer isn't to their liking -- remember, better to know it know than to find out at trial -- and again, try a different way of asking. Think of the rules of evidence -- know how to authenticate a document if you need to do it at a deposition. If the witness says something like, (and I've seen this happen) "Your clent attacked Bob in the parking lot," ask hoim if was there, if he actually saw it or if it was just a story he heard from someone else (hearsay, etc.).

YGB

And above all, prepare. Preparation is the best medicine for fighting fear. As a Judge in the SDNY likes to say: "If you really prepare, you can't be bad."
And for those in Federal Practice take heart in all the changes to the Federal Rules, in particular Rule 20 (read Rule 20 carefully before you take a depo -- I reread it every time I prepare so that I can refresh myself on what the defending attorney may do during the depo.) In the first deposition I took (a long time ago, before the changes), the defending attorney instructed the witness not to answer two-thirds of the questions I asked -- this would be sanctionable practice now. And finally, listen to the witness...

YGB

Oh, and of course I have something to add after saying "finally" -- it is a good idea to have the reporter's contact information with when you go to the deposition -- if the reporter has not shown up, is late, etc., you can call from the site of the deposition and try to find out what the issue is -- if the deposition is in a place difficult to find (some obscure. out-of-the-way office park, etc.) you may have to be prepared to tell them how to get there.

YGB

And it's Rule 30, not 20 -- sory for the typo.

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