Deposition Guidebook.

• Author: Rozelle, Paul G.

Deposition Guidebook

By Howard Bruce Klein

"What is essential in war is victory, not prolonged operations." Sun Tzu would have understood the purpose of discovery in civil litigation: to win your case at trial. However, the complexity of modern litigation and the disappearing jury trial threaten the very existence of depositions. If the U.S. Supreme Court can limit each side to 10 seven-hour depositions, then depositions can be eliminated altogether. The criminal system functions without them, as does civil litigation in most of the rest of the world. If depositions become little more than "prolonged operations" to confirm information in documents or expert reports or just more venues for those lacking professionalism to brow-beat an opponent, then further curtailment or elimination is nigh.

Howard Klein's book may not prevent the demise of the deposition, but it will help new and experienced attorneys focus on strategic and tactical considerations in preparing for, taking, and defending them.

Like others, Klein recommends beginning with "general, innocuous questions" to establish rapport and close avenues of escape. From this foundation, later in the deposition the questioner can gain admissions or, with an expert, opinions. However, sometimes proceeding immediately to the substance of the case without any "warm up" can elicit an honest answer from a surprised witness who was expecting to spend hours talking safely about well-rehearsed preliminaries.

Klein wisely advocates ignoring the obstrepero us oppo sing counsel who uses bogus objections, monologues, and other aggressive behavior to frustrate your objectives. Your experience to date in the case and due diligence on opposing counsel will have alerted you to whether you can expect problems. Preemptively discussing with the court how to handle disputes before they happen can prevent problems (and set the stage for the...