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 Slide 1
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 Slide 2
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 Slide 3
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 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 Slide 4
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 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 Slide 5
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 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 Slide 6
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 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 Slide 7
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 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 Slide 8
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 t paraphrase if there s 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 i Advanced Civil Litigation Class 9 Slide 9