The Trial Practice Tips Weblog

Dealing with 30(b)(6) Depositions from the Defense Perspective

Depositions of corporate representatives remain my preferred method of working up a plaintiff's class action or products-liability case. As seen in the "related posts" below, I've written about 30(b)(6) depositions before, but usually from a plaintiffs' perspective.

In "Be Prepared to Deal With Deposition Notices," Lori L. Pines and Ardith Bronson look at 30(b)(6) depositions from the defense point of view:

Your company has just been served with a 30(b)(6) deposition notice under the Federal Rules of Civil Procedure, and it is your job to respond to the notice and determine who will testify on behalf of the corporation. Is there anything you can do to ensure that your company puts its best foot forward at the deposition? The answer is yes: There are numerous strategies for selecting and preparing witnesses to participate in these depositions.

Pines and Bronson have written a comprehensive article that covers many knotty issues, such as how to choose the testifying witness or witnesses, whether the questioning lawyer is limited in the questioning to the topics in the deposition notice, and the length of the deposition if more than one witness is selected to testify. Recommended.

Related posts:

1. Discovery: Cut Out the Middleman

2. More on Corporate-Representative Depositions, Plus a Sample Notice

3. Corporate-Representative Depositions: Are You Limited to the Topics in Your Notice?

4. Corporate-Representative Depositions: An Amplification of My Last Post

Depositions Before Interrogatories?

Can a well-crafted set of interrogatories ever hurt your case?

In many complex cases, interrogatories served early in the case can educate your opponents about your case strategies at a time when you'd rather keep them in the dark. Moreover, when you serve the interrogatories on your opponents, you are requiring them to get up to speed on their own case strategies, perhaps sooner than they would have done so otherwise.

For these reasons, some lawyers like to depose the key witnesses before serving any but the most basic interrogatories. The idea is that you will deprive these witnesses (and your opposing lawyers) from some of the early-stage strategizing that often allows them to rehearse their answers in advance. With an element of surprise, you're more likely to get spontaneous and unrehearsed admissions.

Try it sometime and see if it works for you: depositions before interrogatories.

Source: Kenneth R. Berman, "Q: Is This Any Way to Write an Interrogatory? A: You Bet It Is," from Litigation magazine, reprinted in The Litigation Manual: Pretrial (ABA).

Deposition Tip: Use Exhibits Regularly During Video Depositions

You can create a more interesting and visually-compelling videotaped deposition by showing the witness an exhibit every so often. When you are preparing for trial, you can set up the video playback to display the exhibit on the screen as the witness is being questioned about it. This will break up the monotonous continuing screen-shot of the witness which becomes tedious after ten or fifteen minutes.

Source: Mike Rogers, "Practice makes perfect visual presentations." Trial, June, 2009.

Related posts:

1. "Tips for Video Depositions"

2. "Cross-Examining Experts During Depositions."

Depositions: Learn from the Old Pros

Here's a quick tip. If you want to ramp up your deposition skills, there's nothing like reading depositions taken by lawyers whom you respect. Lawyers in firms of all sizes have access to the firm's case files; look through them and copy depositions to annotate and study. Lawyers who work on mass torts or multi-district litigation usually have access to reams and reams of work product from other firms working on the same side of the case. A third source for transcripts are deposition banks like, for example, TrialSmith or the Miami-Dade Justice Association Depo Bank, to name just a few.

Related posts:

1. Tip for New Lawyers: Learn by Example
2. Learn from a Trial Transcript
3. A Deposition Tip for Young Lawyers: Learn from Your Mistakes

Deposition Tip: Don't Give the Witness a Chance to "Dis-Remember" an Event

Here is a simple tip for framing questions.

Once a lawyer has established that a witness was present at an event, he or she might ask a poor follow-up question along these lines: "Do you remember what happened?" 

Other versions of the wrong way to follow-up--

"Do you recall ... " 
"Are you able to remember ..."
"Can you recall ..." 

Questions like these too easily give the witness an opportunity to evade by answering, "No, I don't remember."

There's no need to give the witness a choice not to remember. Instead, get to the point: "Tell us what happened at the meeting on May 6" or, simpler yet, "What happened at the meeting on May 6?"

Some witnesses may not remember what happened. If not, they'll let you know. In the meantime, there's no reason to invite the witness to "dis-remember" in the way you ask the question.

Source: Ashley Lipson, Guerrilla Discovery §10.52 (James Publishing)

Plaintiffs' Lawyers: How to Prepare for Your Client's Deposition

Your client's deposition can make or break a case. Because of its importance, always plan to do too much preparation, rather than too little.

Here is a suggested procedure:

• A few weeks before the deposition, send your client a letter with pre-printed materials explaining the deposition process, what you expect the client to do, and what the client should bring to the deposition (e.g., requested documents).
• Meet with the client, not once but twice. The first meeting should take place a week or so before the deposition. The second meeting should take place the day before (or the same day).
• Plan to spend at least two hours in the first meeting. Here's a checklist of points to cover:
  • The purpose and use of the deposition ("it's the other lawyer's chance to hear your story. Once you tell him, you won't be able to change the details later");
  • The layout and procedure--what the client should wear, who will be present, where people will sit ("I'll be sitting right next to you"), how the deposition will begin, the court reporter's role, etc.;
  • How to answer questions ("listen to the question, then answer only the question that was asked"; "don't volunteer"; "if there is silence, don't think you have to fill it up"; "'I don't know' and 'I don't remember' can be acceptable answers, if true"; "the deposition isn't a test to see if you remember dates, just do the best you can");
  • What your client has said previously about the facts of the case--interrogatory answers, letters, documents, medical records;
  • What others have said about the facts of the case as it pertains to your client's testimony;
  • How you expect the questioning to go; 
  • Common pitfalls--arguing with the opposing lawyer, exaggerating small details. (Credibility and a good demeanor are keys to a successful deposition.)
  • Do some role playing in order to give your client confidence that he or she will be able to get through the deposition;
  • What your client should do when you object ("give me a chance to object before you answer, and listen closely if I make an objection");
  • Areas that you think will be a problem for the client;
  • Areas that are important for the case that you think will be asked (for a plaintiff, "What are your physical complaints?" and "What were you once able to do that you can't do now?").
• In the second meeting, ask your client if he or she has questions, then do a review of the first meeting, with an emphasis on how to answer questions, particularly problem questions that you anticipate will be asked.

An ill-prepared client can wreck a case. When it happens, it's usually the lawyer's fault.

Don't just prepare for your client's deposition--overprepare.

Related posts:

1. "Preparing Witnesses for Depositions: Here's a Step That's Often Forgotten."

2. "Defense Lawyers: How to Prepare Witnesses for Depositions."

3. "Testifying at Trial: Don't Let Your Client Make These Disastrous Mistakes."

Deposition Podcasts: Advanced Techniques

For free deposition advice, why not try my three podcasts on advanced deposition techniques? Originally posted Legal Underground, I'm reprising them here (again). Just follow the links--

Advanced Deposition Techniques #1: Five Tips for Asserting Control at Depositions

Advanced Deposition Techniques #2: Four Ways to Use Psychology at Your Next Deposition

Advanced Deposition Techniques #3: Miscellaneous Tips for Expert Depositions

Combined, these three podcasts have now had nearly 3,000 downloads. You can listen on a computer with speakers or even better, on any iPod or mp3 player.

If you like what you hear, don't forget my book: Deposition Checklists & Strategies (James Publishing, 2d Ed. 2007).

Defense Lawyers: How to Prepare Witnesses for Depositions

Here's a good article by Matt Keenan of Shook, Hardy & Bacon in Kansas City: "Preparing a Witness for a Successful Deposition"--

In my 20-some years of working with company witnesses as part of the discovery process, I’ve learned that the prospects of a deposition can stress even the most accomplished corporate executive.

One way of lowering their level of anxiety is to give them mileposts to follow as they prepare. Something that’s easy to remember but useful. This article shares with counsel my system for witness preparation, with tips and tricks for a successful undertaking.

My approach is based on a simple acronym – PLEASE.
It goes like this.

P is for prepare; L is for listen; E is for exercise control; A is for accept the obvious; S is for stay in your area; and E is for emotion is acceptable.

To get the details, read the entire article. As I can attest from my years of working against Keenan in mass-tort cases, he knows what he's talking about.

A Free Excerpt from My Deposition Book from James Publishing

At the James Publishing website, there is an excerpt from the first chapter of my deposition book, Deposition Checklists and Strategies. Some of the material is very basic, but the excerpt also includes these sections, which are more advanced:

B. Situations You Might Encounter

§1:140 The Uncooperative Witness
§1:142 The Forgetful Witness
§1:143 The Witness Who Talks Too Much
§1:145 The Witness Who Talks Too Little
§1:146 The Difficult Opposing Counsel

If you're interested in deposition tactics and strategy, you're welcome to check it out the excerpt. After all, you can hardly go wrong--it's free!

Depositions: Asserting Control with the "Nonresponsive" Objection

When a witness won't answer your question directly, you should keep on track and ask again, like this:

Thanks for that, but you didn't answer my question. Did you supervise Mrs. Smith?

After a couple rounds of repeating the question, you'll usually get a proper answer. Sometimes, though, you'll have to increase the pressure with an "unresponsive" objection.

Mr. Witness, your answer is not responsive to my question. I move to strike your answer. I'll ask the question again. Did you supervise Mrs. Smith?

In my experience, witnesses often become unnerved when you "move to strike" their answer and immediately become more cooperative. Even if they feel comfortable about the deposition process in general (doctors, for example), your motion to strike leaves them standing on uncertain ground, possibly feeling as if they risk suffering some personal sanction.

Although the "nonresponsive" objection can also be useful at trial, keep in mind that the objection can only be used by the questioning lawyer. As explained by Joseph M. McLaughlin in an article in The Litigation Manual: Trial--

Nonresponsiveness is a problem between the questioner and the witness. It is none of the adversary's business. In other words, the only personal who can move to strike a nonresponsive answer is the person who put the question.

See "Objectionable Objections," Joseph M. McLaughlin, The Litigation Manual: Trial (ABA 1999). See also McCormick on Evidence, p. 52 at 127, n.6 (3d ed. 1984); People v. Sweeney, 46 Ill. App. 3d 858, 361 N.E.2d 344 (1977) ("The statement could only be stricken on a request from the questioning counsel, the only one who has standing to object to the nonresponsive nature of the witness' remark").