The Effective Deposition

CONTENTS

Dedication
Foreword
Acknowledgments

PART ONE: THE LAW

CHAPTER ONE: THE MECHANICS OF TAKING AND DEFENDING DEPOSITIONS
1.1 Whose Deposition May Be Taken?
1.2 Rule 30(B)(6) Depositions
1.3 Timing
1.4 Priority
1.5 Scheduling of the Deposition
1.6 Giving Notice of the Deposition
1.7 Geographic Location of the Deposition
1.8 Number of Depositions
1.9 Length of Depositions
1.10 Compelling the Witness's Attendance
1.11 Requiring Documents to Be Brought to the Deposition
1.12 Scope of Discovery during the Deposition
1.13 The Deposition Itself

PART TWO: TAKING DEPOSITIONS

CHAPTER TWO: PURPOSES OF TAKING DEPOSITIONS
2.1 Gathering Information
2.2 Preserving Testimony
2.3 Facilitating Settlement
2.4 Objectives and Questioning Techniques

CHAPTER THREE: ADVANTAGES AND DISADVANTAGES OF DEPOSITIONS
3.1 Advantages
3.2 Disadvantages

CHAPTER FOUR: PLANNING AND SCHEDULING DEPOSITIONS
4.1 The Discovery Plan
4.2 Coordinating Depositions with Other Discovery
4.3 Coordinating Depositions
4.4 Scheduling the Deposition
4.5 Duration and Intervals

CHAPTER FIVE: PREPARING TO TAKE THE DEPOSITION
5.1 The Questioner's Frame of Mind
5.2 Creating the Deposition Outline
5.3 Researching the Law
5.4 Identifying All Available Facts
5.5 Constructing Your Working Theories
5.6 Identifying the Opponent's Factual and Legal Theories
5.7 Generating Questions
5.8 Organizing the Deposition Outline
5.9 Using the Outline at the Deposition
5.10 Checklist for Preparing for the Deposition
5.11 A Final Word About Preparation

CHAPTER SIX: BEGINNING THE DEPOSITION
6.1 Stipulations
6.2 Set-Up and Commitments
6.3 Speculating or Guessing

CHAPTER SEVEN: STYLE, ORGANIZATION, AND OTHER MATTERS
7.1 Style
7.2 Organization: Background of the Witness
7.3 "The Organized Tour" versus "The 'Leapfrog' Approach"
7.4 Handling Objections and Instructions Not to Answer
7.5 The Witching Hour of 4:00 p.m.

CHAPTER EIGHT: QUESTIONING TECHNIQUES
8.1 Introduction 8.2 Information-Gathering Questioning
8.3 The Funnel Approach
8.4 Gathering Party Statements and Testing Theories

CHAPTER NINE: USING DOCUMENTS
9.1 Uses for Documents in Depositions
9.2 Using the Documents to Prepare
9.3 Compelling Production of Documents to Be Used at Depositions
9.4 Marking and Handling Documents at the Deposition
9.5 Questioning on Documents
9.6 Inquiring about Documents Used to Refresh the Witness's Memory
9.7 Requesting Documents Identified during the Deposition
9.8 Refreshing Recollection

CHAPTER TEN: FOUNDATIONS
10.1 Foundations for Real or Tangible Evidence or Documents--Rule 901(b)(1)
10.2 Substantive Visual Evidence--Photographs, Maps, and Diagrams
10.3 Oral Evidence--In General
10.4 Laying Foundations Efficiently
10.5 Negative Foundations

CHAPTER ELEVEN: OBNOXIOUS OR OBSTRUCTIONIST OPPOSING COUNSEL
11.1 Irritating or Obstructing Behavior
11.2 The Irritating Opposing Counsel
11.3 The Obstructing Opposing Counsel
11.4 The Blocking Opposing Counsel: The Special Problem of Instructions Not to Answer
11.5 Obstructing Behavior That Isn't Obstructing Behavior

CHAPTER TWELVE: PROTECTIVE ORDERS AND APPLICATIONS TO THE COURT
12.1 Protective Orders
12.2 Applications to the Court

PART THREE: DEFENDING DEPOSITIONS

CHAPTER THIRTEEN: PREPARING THE WITNESS TO BE DEPOSED
13.1 Preparing the Witness on Substance
13.2 Preparing the Witness for the Deposition Process
13.3 Final Instructions
13.4 Practicing Your Theme with the Witness
13.5 Conclusion

CHAPTER FOURTEEN: DEFENDING THE DEPOSITION
14.1 Advance Preparation
14.2 Determining Whether the Witness Is a Client
14.3 Preparing the Witness to Testify
14.4 Supporting and Protecting the Witness
14.5 Entering Into Stipulations
14.6 Preserving the Record
14.7 Conferring with the Witness
14.8 Taking Breaks
14.9 Stating Objections
14.10 The Form of Objections
14.11 The Calculus of Deciding whether to Object
14.12 Instructions Not to Answer
14.13 Questioning and Clarifying and Correcting Answers
14.14 Concluding the Deposition

CHAPTER FIFTEEN: REVIEWING, CORRECTING, EDITING, AND SUPPLEMENTING THE TRANSCRIPT
15.1 Reviewing, Correcting, and Editing
15.2 Supplementing the Deposition

PART FOUR: USING DEPOSITIONS

CHAPTER SIXTEEN: USING DEPOSITIONS IN MOTIONS AND TRIAL
16.1 Motions for Summary Judgment
16.2 Preparing for Trial
16.3 Using the Deposition Testimony at Trial
16.4 Seven Ways to Use a Deposition at Trial
16.5 The Designation Process and Obtaining Rulings on Objections
16.6 Presenting Deposition Testimony at Trial

PART FIVE: SPECIAL TYPES OF DEPOSITIONS

CHAPTER SEVENTEEN: TAKING AND USING PRESERVATION DEPOSITIONS
17.1 Preparing to Take the Preservation Deposition
17.2 Taking the Preservation Deposition
17.3 Defending the Preservation Deposition

CHAPTER EIGHTEEN: VIDEO DEPOSITIONS
18.1 When to Take a Video Deposition
18.2 Advantages of Video Depositions
18.3 Disadvantages of Video Depositions
18.4 The Law
18.5 Scheduling the Video Deposition
18.6 Preparing to Take the Video Deposition
18.7 Conducting the Video Deposition
18.8 Preparing to Use the Video Deposition at Trial
18.9 Using the Video Deposition at Trial
18.10 Defending a Video Deposition

CHAPTER NINETEEN: RULE 30(b)(6) DEPOSITIONS
19.1 Rule 30(b)(6)
19.2 Deciding to take a Rule 30(b)(6) Deposition
19.3 The Specifications
19.4 Finding, Preparing, and Defending the Rule 30(b)(6) Designee
19.5 How to Ask Questions
19.6 Questioning on Topics within the Specifications
19.7 Questioning on Topics beyond the Specifications
19.8 The Number and Identity of Designees
19.9 How Do Nonparties Respond?

CHAPTER TWENTY: EXPERT DEPOSITIONS
20.1 Preparing to Depose the Expert
20.2 Deposing the Expert: Strategies
20.3 Deposing and Defending the Expert: Tactics

CHAPTER TWENTY-ONE: CONCLUDING THE DEPOSITION
21.1 Insuring Completeness
21.2 Arrests and Convictions
21.3 Completing, Adjourning, Recessing, Terminating, Ending, Continuing the Deposition: When Is It Actually Done?

APPENDICES
A.1 Federal Rules of Civil Procedure, Rule 26
A.2 Federal Rules of Civil Procedure, Rule 30
A.3 Federal Rules of Civil Procedure, Form 52
B.1 Sample Notice of Nonparty Deposition on Oral Examination
B.2 Sample Notice of Nonparty Deposition on Oral Examination, Seeking Both Testimony and Production of Documents
B.3 Sample Notice of Deposition on Oral Examination of Witness Controlled by Defendant
B.4 Sample Notice of Rule 30(b)(6) Deposition of Oral Examination (Specifications for Rule 30(b)(6) Deposition of Defendant Johnson Company)
B.5 Sample Subpoena to Nonparty Deponent Residing in Another District
B.6 Sample Privilege Log
C.1 "The Daubert Deposition Dance"

Index

David M. Malone

David M. Malone is a trial attorney, author, consultant, and teacher who has worked with the National Institute for Trial Advocacy (NITA) since 1979. He is the founding principal of Trial Run Inc., a litigation training and consulting firm. Mr. Malone practiced as a federal prosecutor for seventeen years before entering private practice for thirteen years, concentrating on complex civil litigation. He has been an adjunct professor in advocacy at the University of Virginia School of Law and at the George Washington University School of Law. He is a graduate of the University of Notre Dame (B.A.) and the University of Virginia School of Law (J.D.). Mr. Malone is the author NITA's deposition text, The Effective Deposition; of the companion pocket-sized book, entitled, Deposition Rules; and of NITA's Effective Expert Testimony. Through Trial Run Inc., he has written and published a number of other litigation "rule" books, including Daubert Rules and Effective Deposition Defense Rules. Until recently, he was the program director and team leader for the Washington Advanced Program, which he started, and he has taught in hundreds of other NITA programs. He is a past recipient of NITA's Robert E. Oliphant Award.

Peter Hoffman

Professor Peter Hoffman, a 1971 graduate of the University of Michigan Law School, is a Professor of Law and Director of Skills Programs at the Elon University Law School in Greensboro, North Carolina. Before joining the Elon faculty, Hoffman taught at the University of Houston Law Center (where he held the Newell H. Blakely Chair in Evidence and was also the Director of the Blakely Advocacy Institute) and the University of Nebraska College of Law (where he was the Earl Dunlap Distinguished Professor of Law). Hoffman has also taught as a visitor at the University of Michigan, University of Hawaii, University of San Diego, Washington University -- St. Louis and City University of Hong Kong. Professor Hoffman is a frequent teacher for the National Institute of Trial Advocacy and has now taught in more than 400 litigation-related CLE programs in 33 states and territories and 16 foreign countries. He also served as an Associate Judge of the Supreme Court of Palau. He is the author of the Effective Deposition: Techniques and Strategies That Work (with David Malone), and is an Academic Member of the International Society of Barristers.

Anthony J. Bocchino

Professor Anthony Bocchino is an honors graduate of the University of Connecticut School of Law after which he was a Bradway Fellow at the Duke University School of Law. He served as a full time faculty member at both the University of Connecticut School of Law and the Duke University Law School before joining the Temple University Beasley School of Law faculty in 1979. At the Beasley School of Law for the period 1979 -1989 he was Director of Temple's Trial Advocacy and Clinical Programs. He has designed the program, written materials and taught in the law school's Integrated Trial Advocacy Program which has been twice awarded the Gumpert Award for Excellence in Teaching Trial Advocacy from the American College of Trial Lawyers, in addition to receiving the Gambrell Award for Teaching Professionalism from the American Bar Association. In 1997 he was named by Temple University as the Jack E. Feinberg Professor of Litigation.

Professor Bocchino has been honored with teaching awards from Duke University School of Law where he received the Mordecai Society Award and the Beasley School of Law where he was the first recipient of the George P. Williams II Memorial Award. In addition, he has received the Oliphant Award from the National Institute for Trial Advocacy and the Richard S. Jacobson Award from the Association of Trial Lawyers of America for excellence in teaching the art and science of trial advocacy.

In addition to his law school duties Professor Bocchino has served as a faculty member for the National Institute for Trial Advocacy (NITA) since 1974, served as NITA's Director for five years and served as the organization's Editor in Chief. Bocchino has written materials and designed programs for trial, deposition, fact investigation, motion practice and appellate advocacy programs for more than 30 law firms and numerous public agencies. He has also conducted needs analyses and designed litigation skill curricula for numerous law firms. His CLE materials and program designs are among the most frequently utilized by those organizations. In addition, he has and will customize materials to the specific needs of individual clients.

Professor Bocchino is the author of over 60 books and articles, predominantly in the fields of Evidence, Trial Advocacy, Civil Litigation and Professional Responsibility. His trial advocacy and/or deposition practice materials are used in a majority of the law schools in America, as well as in CLE litigation skills training in the public and private sectors.

Professor Bocchino has been elected as a member of the American Law Institute, and named a Fellow of the American Bar Foundation, Litigation Counsel of America and the International Society of Barristers.