Deposition procedures and strategies

• Author: Evan Schaeffer
• Pages: 49-90

PROCEDURES &

STRATEGIES

1-1

CHAPTER 1

DEPOSITION PROCEDURES

AND STRATEGIES

I. HOW TO USE THIS BOOK

A. Chapter Organization

§1:01 Overview of Substantive Law

§1:02 Sample Deposition Outlines

§1:03 A Note on Scope

B. Bonus Information

§1:10 Practice Tips and Forms

§1:11 Specialized Deposition Outlines

§1:12 Practice Tips Relating to Trial

II. PURPOSES AND USES OF DEPOSITIONS

A. Depositions as a Discovery Tool

§1:20 The Scope of Depositions

§1:21 Purposes of Depositions

§1:22 When You Shouldn’t Take a Deposition

B. Depositions as a Settlement Tool

§1:30 Using Depositions to Encourage Settlement

§1:31 Practice Tip: Stay on the Offensive

C. Depositions as a Trial Tool

§1:40 The Use of Depositions at Trial

III. PREPARING FOR DEPOSITIONS

A. Depositions as Part of an Overall Discovery Plan

§1:50 Reviewing the Case

§1:51 Establishing Goals

§1:52 Preparing an Outline

§1:52.1 Practice Tip: When Making a Deposition Outline,

Should You Write Out Every Question?

§1:53 Practice Tip: Ten Things to Cover in Every Deposition

B. Preparing the Documents

§1:60 Choosing the Documents to Use

§1:61 Preparing the Documents

C. Other Pre-Deposition Tasks

§1:70 Where to Conduct the Deposition

§1:71 The Deposition Notice

§1:72 The Court Reporter

PROCEDURES &

STRATEGIES

Deposition Checklists and Strategies 1-2

D. Some Special Situations

§1:80 Telephone Depositions

§1:81 Video Depositions

§1:82 Second-Chairing Depositions

§1:83 Practice Tip: Controlling Abusive Counsel With Video Depositions

§1:84 Practice Tip: Use Exhibits Regularly During Video Depositions

IV. TYPICAL DEPOSITION PROCEDURES

A. Starting Depositions

§1:90 How to Begin a Deposition

§1:91 Practice Tip: “The Usual Stipulations”

§1:92 The Role of the Court Reporter

§1:93 Practice Tip: Treating Court Reporters Right

B. Questioning During Deposition

§1:100 Preliminary Questions

§1:101 Practice Tip: Always Ask the Standard Preliminary Questions

§1:102 Practice Tip: Mixing It Up

§1:103 Basic Questioning Technique

§1:103.1 Practice Tip: Watch Out for Negatives in Leading Questions

§1:103.2 Practice Tip: The Anatomy of the Perfect Deposition Question

§1:104 Questions by Opposing Counsel

C. Ending Depositions

§1:110 How to End a Deposition

§1:111 Practice Tip: Can You “Wing It” at a Deposition?

D. After the Deposition

§1:120 Following Up on the Transcript

§1:121 Practice Tip: Critiquing Your Own Performance

§1:122 Practice Tip: Motions in Limine

§1:123 Practice Tip: The Witness Can’t Outsmart You at a Deposition

§1:124 Trial-Planning Steps to Take After a Deposition Has Ended

V. OTHER DEPOSITION TECHNIQUES

A. Handling Documents

§1:130 Handling Documents at a Deposition

§1:131 Practice Tip: “The Document Speaks for Itself”

B. Situations You Might Encounter

§1:140 The Uncooperative Witness

§1:141 Practice Tip: Impeachment Nuggets

§1:142 The Forgetful Witness

§1:142.1 Practice Tip: Assume the Witness Is Lying

§1:143 The Witness Who Talks Too Much

§1:144 Practice Tip: Asking Follow-Up Questions

§1:145 The Witness Who Talks Too Little

§1:145.1 The Witness Who Answers “I Don’t Know”

§1:146 The Diff‌icult Opposing Counsel

§1:147 Practice Tip: How to Spot Liars—Ask for the Story in Reverse

VI. OBJECTIONS AT DEPOSITIONS

A. Handling Objections

§1:160 Handling Objections: Over view

§1:161 Ignoring the Objection

§1:162 Asking for the Basis of an Objection

§1:163 Rephrasing the Question

§1:164 Seeking Judicial Intervention

PROCEDURES &

STRATEGIES

1-3 Deposition Procedures and Strategies

§1:165 How Deposition Objections Are Ruled on Before Trial

§1:166 Practice Tip: What It Takes to Succeed at Depositions

B. Types of Objections

§1:170 Objections to Form

§1:170.1 Practice Tip: Leading Questions in Federal-Court Depositions

§1:171 Objections to Foundation

§1:172 Objections Relating to Relevancy

§1:173 Objections Based on Privilege

§1:174 Other Objections

§1:175 Practice Tip: Speaking Objections and How to Stop Them

VII. EXPERT DEPOSITIONS

A. Before the Deposition

§1:180 Written Discover y of Defense Expert Opinions

§1:181 Sample Outlines

B. Goals of Expert Depositions

§1:190 Overview

§1:191 Discover Every Opinion of the Opposing Expert

§1:192 Discover the Factual Basis for All Opinions

§1:193 Practice Tip: Attempting to Strike the Expert

§1:194 Learn About the Opposing Expert’s Qualif‌ications

§1:195 Obtain Admissions to Use to Support Your Case

§1:196 Explore All Sources of Bias

§1:197 Lay a Foundation for Your Demonstrative Evidence

C. How to Prepare for Expert Depositions

§1:210 Overview

§1:211 Reviewing the File

§1:212 Practice Tip: Review the Pattern Jury Instructions

§1:213 Gathering the Key Documents

§1:214 Familiarize Yourself With Government Standards

§1:215 Studying the Expert’s CV and Report

§1:216 Practice Tip: Five Ways to Hit Home Runs With an Expert’s CV

§1:216.1 Practice Tip: Pay Attention to the Dates on the Expert’s CV

§1:217 Conducting Other Research About the Expert

§1:217.1 Practice Tip: Preparing for Expert Depositions by

Looking Ahead to the Cross-Examination at Trial

§1:218 Consult With Your Own Expert

§1:219 Practice Tip: Privilege and Experts

D. Expert Deposition Strategies

§1:230 Using Texts in the Deposition

§1:231 Questioning Techniques

§1:232 Practice Tip: “Why Is That?” and Other Follow-Up Questions That Never Fail

§1:232.1 Practice Tip: The Use in Depositions of Tone of Voice and Body Language

§1:233 Should You Cross-Examine the Expert During His Deposition?

§1:234 Caution: Time Limits on Depositions

§1:235 Practice Tip: What to Do When You Arrive for an Expert’s Deposition

§1:236 Practice Tip: What to Do When the Defendant Buries You With Experts

§1:237 Other Practice Tips Elsewhere in the Book

VIII. ADVANCED DEPOSITION TECHNIQUES

A. Managing the Witness

§1:250 Get the Witness Acting Like a Normal Person

§1:251 Make the Witness Feel at Home

§1:251.1 Practice Tip: Improve Your Deposition Technique by Reviewing Your Transcripts