In this creative handbook for active trial lawyers, David M. Malone, the acclaimed author of The Effective Deposition, addresses common questions and problems associated with the defense of depositions. This book is intended to provide a quick and ready practical reference to issues and answers for busy trial lawyers.
In deposition texts and training programs, the role of the defending attorney often is underanalyzed, perhaps because a reasonable, ethical defense of a well-taken deposition is often an outwardly passive role, not inviting much attention. Nevertheless, before an attorney can develop the skill and confidence to be outwardly passive while defending a deposition, she must understand her powers and responsibilities, the dangers and cures.
Effective Deposition Defense Rules presents accessible, practical, and common-sense ways to deal with situations that arise as attorneys and witnesses work their way through the pretrial deposition process.
Table of Contents
Chapter One--Preparing the Deponent
1.1 The Need to Deal with the Deponent's Anxieties about the Process
1.2 How Do You Reduce the Deponent's Anxieties?
1.3 Direct the Deponent Not to Bring Documents to the Deposition
1.4 Must the Deponent Respond to Requests to Produce Materials after the Deposition?
1.5 What Should You Tell the Deponent about the Possibility of Friction at the Deposition?
1.6 What Should the Deponent Be Told about Consulting with Counsel?
1.7 Deponents Should Understand They Are Allowed to Take the Time to Consider the Question and Their Answer
1.8 Familiarize the Deponent with the Most Important Documents
1.9 Tell the Deponent What to Do in Unusual Situations
1.10 Tell the Deponent It is Acceptable to Use the Seven Most Obvious Answers to Deposition Questions
"Yes" or "No"
"I Don't Know"
"I Don't Remember"
"I Don't Understand the Question"
"I Need a Break"
Chapter Two--Relations with Opposing Counsel
2.1 Remember: The Attorneys Are Not the Antagonists in the Lawsuit
2.2 Try to Be the Most Reasonable Person in the Room
2.3 Use the "Golden Rule" in Providing Courtesies to Taking Counsel
2.4 Do Not React with Rolled Eyes, Smirks, or Sighs to Deposing Counsel's Questions
2.5 Remove Ad Hominem Comments from Your Objections and Arguments
Chapter Three--Making Objections at the Deposition
3.1 The Tactics of Making Objections that May Improve the Opponent's Record
3.2 The Proper Form of Making Objections
3.3 Common Permissible Objections at Deposition
3.4 Improper Objections
Using Undefined Terms
Lack of Personal Knowledge
Counsel Does Not Understand the Question
Attempting to Trap the Witness
Assuming Facts Not in Evidence
Failing to Show Document to the Witness
"The Document Speaks for Itself"
Asking for Speculation
3.5 Standing or Continuing Objections
3.6 Objections that May Not Be Made
3.7 Avoiding Argumentative and Suggestive Objections
3.8 Objections to Foundational Problems
3.9 The Witness's Role during Objections
3.10 Objecting Now or Clarifying Later
3.11 The "Ask Your Next Question" Approach
3.12 Preserving Confidentiality with Objections and Separate Transcript
Chapter Four--Directions Not to Answer
4.1 The Answer Will Invade a Privilege
4.2 The Question Constitutes Annoyance, Harassment, or Embarrassment
4.3 The Question Exceeds the Scope of a Court Order or Stipulation
4.4 The Question Exceeds the Scope of the Rule 30(b)(6) Notice
4.5 The Question Exceeds the Scope of Discovery under Rule 26
4.6 Consequences of Directing a Deponent Not to Answer
4.7 Seeking a Protective Order in Advance of the Deposition
4.8 Seeking a Protective Order after the Deposition
4.9 Directions to Deponents Who Are Not Clients
4.10 The Deponent's Right to Answer
Chapter Five--Documents at the Deposition
5.1 Documents the Witness Brings to the Deposition
5.2 Documents Defending Counsel Brings
5.3 Checking for a Complete Document
5.4 The Deponent's Right to Read the Entire Document
5.5 Answering the Question Asked about the Document
5.6 Applying the "Rule of Completeness"
5.7 Questions that Ask the Witness to Create Documents
5.8 Responding to Requests to Produce Documents
5.9 Questions about a Writer's or Speaker's Meaning
5.10 Controlling "Used" Documents and Helping the Deponent Avoid Temptations
Chapter Six --People at the Deposition
6.1 People Who May Attend by Right
6.2 People Who Normally Attend
6.3 Persuading Your Client Not to Attend
6.4 Orders Limiting Attendance at a Deposition
6.5 What to Do about Unwanted People
6.6 The "Rule on Witnesses"
Chapter Seven--Issues with Video Depositions
7.1 Differences with Video Depositions
7.2 How Should the Video Deponent Dress?
7.3 Where Should the Deponent Look during the Video Deposition?
7.4 What Should Be in the Foreground of the Video Deposition?
7.5 What Should Be in the Background?
7.6 What Should Be in the Frame?
7.7 Preparing the Deponent
7.8 Editing the Video, Not Just the Transcript
7.9 Objectionable Editing Techniques
7.10 Requesting Use of the Video at Trial
7.11 The "Rule of Completeness" with Video Transcripts
7.12 Conferences with the Video Deponent
Chapter Eight--Telephone Calls to the Judge or Magistrate Judge
8.1 When Defending Counsel Should Call the Judge
8.2 How to Behave when Deposing Counsel Calls the Judge
8.3 Dealing with the Judge's Annoyance
8.4 Making Specific Requests for relief
8.5 Proposing Written Briefing
8.6 Stipulations on Calls to the Judge
Chapter Nine--Reviewing and Correcting the Transcript
9.1 Retaining the Right to Read, Correct, and Sign
9.2 Additional Review of the Video Deposition
9.3 Items that May Be "Corrected"
9.4 The Mechanics of Making Corrections
9.5 Preparing the Witness to Explain Changes at Trial