Depositions

• Author: Ashley S. Lipson
• Pages: 575-683

10-573

Cross-examination is the highest art form—a finely tuned

ballet of movement, gesture and articulation, meticulously

choreographed by the lawyer-artist for the sole purpose

of seizing and conducting the thoughts and words of a

forewarned and unwilling enemy.

Chapter 10

Depositions

§10.10 Basic Training and Strategy

§10.11 Introducing Hand-to-Hand Combat

§10.12 Media Selection

§10.12(a) Stenographically Recorded Depositions

§10.12(b) Audiotaped Depositions

§10.12(c) Videotaped Depositions

§10.12(d) Telephonic Depositions

§10.12(e) Videoconferenced Depositions

§10.12(f) Web-Based Streaming Depositions

§10.12(g) Depositions Upon Written Questions

§10.20 The People That You Intend to Depose

§10.21 Parties in General

§10.21(a) Enemy Parties

§10.21(b) Allied Parties

§10.22 Lay Witnesses

§10.23 Expert Witnesses

§10.23(a) Enemy Experts

§10.23(b) Allied Experts

§10.24 Attorneys

§10.25 Corporations and Other Entities

§10.30 Tips for Timing and Positioning Your Attack

§10.40 The Rules That You Need

§10.41 Federal Rules Pertaining to Depositions

§10.50 Scheduling and Taking the Deposition

§10.51 The Skills of Direct Examination

§10.51(a) Client Preparation

§10.51(b) Tips for General Interrogation

§10.52 The Art of Cross-Examination [Direct Examination of Opponent]

§10.52(a) Cross-Examination Goals

§10.52(b) Critical Tips for an Effective Attack on the Deponent

§10.52(c) Quips and Tricks for Handling Difficult Deponents

§10.52(d) The Ten Commandments of Cross-Examination

§10.53 How to Combat Obnoxious Lawyers

§10.53(a) Generally Obnoxious Behavior

Guerrilla discOvery 10-574

§10.53(b) Coaching During Interrogation

§10.53(c) Coaching Off-the-Record

§10.53(d) Obnoxious Objections

§10.54 How to Combat Obnoxious Deponents

§10.55 Guerrilla Deposition Checklist [From Reveille to Taps]

§10.56 Deposition Checklists for Specific Actions

§10.56(a) Uni-Party Checklist — Breach of Contract

§10.56(b) Uni-Party Checklist — Tort Actions

§10.57 Electronic Deposition Checklist

§10.60 Defending the Deposition

§10.61 Preparing and Defending Your Client

§10.61(a) Attacking the Notice of Deposition

§10.61(b) The Client Preparation Checklist

§10.61(c) Simulated Examination

§10.61(d) Attending the Deposition

§10.61(e) Terminating the Deposition

§10.61(f) Crash Course in Objection Warfare

§10.62 Preparing and Defending Your Expert

§10.70 Enforcement

§10.80 Deposition Admissibility

§10.90 The Forms That You Need

Form 10.1 Notice of Deposition (Basic)

Form 10.2 Petition to Allow Deposition Prior to Commencement of Action to Preserve and

Perpetuate Testimony

Form 10.3 Notice of Deposition to Preserve and Perpetuate Testimony (Prior to Commencement)

Form 10.4 Stipulations of Counsel Pertaining to Discovery Depositions

Form 10.5 Notice of Deposition (To a Business Entity, Agent Identified)

Form 10.6 Notice of Deposition (To a Business Entity, Agent Unidentified)

Form 10.7 Notice of Deposition (To Records Custodian)

Form 10.8 Notice of Deposition (Non-Stenographic)

Form 10.9 Petition to Allow Deposition Pending Appeal

Form 10.10 Motion for Deposition Pending Appeal

Form 10.11 Motion for Additional Deposition

Form 10.12 Application for Commission

Form 10.13 Commission

Form 10.14 Combined Discovery Request

Form 10.15 Notice of Deposition and Notice for Production of Documents (Non-Party)

Form 10.16 Objections to Notice of Deposition

Form 10.17 Motion to Quash Deposition Subpoena

Form 10.18 Motion to Terminate Deposition

Form 10.19 Motion for Costs for Failure to Issue Deposition Subpoena

Form 10.20 Motion to Suppress Deposition

Form 10.21 Set-Up Letter (Failure to Attend Depositions)

Form 10.22 Motion to Compel Deposition

Form 10.23 Motion to Compel Deposition Upon Oral Testimony

Form 10.24 Motion for Contempt Citation, Sanctions, and Dispositive Relief

Form 10.25 Response to Set-up Letter (Failure to Attend Depositions)

Form 10.26 Answer to Motion to Compel Deposition

Form 10.27 Answer to Motion for Sanctions and Dispositive Relief

Form 10.28 Notice of Deposition (To Custodian of Digital and Electronic Records)

Form 10.29 Motion to Preclude Interference

10-575 depOsitiOns §10.10

1 See §10.52 and its sub-parts for concentrated discussions, rules and examples.

1.1 If written transcripts are to be used in court, there are no rules that require a dry, listless court-reporter rendition. They should be read with

a proper accent and intonation. You might even consider using amateur or professional actors. See Martin Lasden, “Acting Up,” Pg. 12,

California Lawyer Magazine, July 2005.

1.2 See Thomas, “All The Apps You Need For Depositions,” Trial Magazine, March 2015, P.23.

2 In fact, every victimless crime has a corresponding civil consequence.

3 Leading questions and the respective answers of friendly or non-adversarial witnesses may later be stricken. An exception exists for founda-

tional, preliminary, or non-material issues. For those situations, the witness may be led, regardless of whether he or she is friendly or hostile.

See §10.61(f) (Crash Course on Objection Warfare).

3.1 In re Allegretti, 229 F.R.D. 93 (S.D.N.Y., 2005). In litigation encompassing an Italian business dispute, litigants were not entitled to per-

petuate the testimony of a potential opponent for future American litigation, even if they were unable to file suit in the United States until

resolution of the Italian litigation; the litigants were not attempting to collect known testimony but rather were attempting to ascertain

unknown information, and there was no reason to believe that the opponent would be unable to testify prior to the issuance of the com-

plaint. Moreover, to prevail on a petition to perpetuate testimony, petitioners must satisfy three elements: (1) They must furnish a focused

explanation of what they anticipate any testimony would demonstrate; (2) they must establish in good faith that they expect to bring action

cognizable in federal court, but are presently unable to bring it or cause it to be brought; and (3) they must make an objective showing that

without a hearing, known testimony would otherwise be lost, concealed, or destroyed. A petition to perpetuate testimony may not be used

as vehicle for discovery prior to filing a complaint.

See also Rule 27 of the Federal Rules of Civil Procedure.

§10.10 Basic Training and Strategy

Cross-examination is often the first thing that comes

to mind whenever we speak of deposition skills. It is a

decisive skill to be sure and one that we intend to cover

thoroughly,1 but as this chapter’s lengthy synopsis indi-

cates, there are many other facets requiring a number

of other skills and strategies. These strategies can vary

significantly depending upon several factors, the most

significant of which include the expertise of the witness

(or lack thereof), and the witness’ alignment with respect

to your client.

The deposition is the discovery device of choice for

the majority of attorneys, and although weapon exclu-

sivity is never recommended, for many, it is the only

mechanism deployed after the mandatory disclosure items

have been received. It is a powerful apparatus because

of its up-close and personal nature; but another equally

important feature is its near-seamless ability, in certain

instances, to be plugged into the trial itself. The expand-

ing popularity of the videotaped deposition has added a

new dimension to the once-sterile, printed word.1.1 No

discovery plan should entirely exclude this weapon.

In addition to the technological advances in record-

ing, the paperless movement has created a revolution of

convenience, efficiency and compactness with respect

to handling the once-bulky materials needed to take and

conduct a deposition. Instead of large bulky binders and

pounds of documents and exhibits, we now have sleek,

light notebook computers, tablets and iPads capable of

containing more than enough gigabytes necessary to

store whatever we might need. In addition, there are end-

less number of apps to help us track, label and organize

information relating to and derived from a deposition.1.2

The deposition enjoys several advantages over the

other discovery weapons—the most notable being the ele-

ment of surprise. The deponent may be unfamiliar with your

techniques and unable to predict the methodology and sub-

stance of your interrogation. And, of course, the element of

surprise is normally a vital component of every battle. But

with any potent tool comes disadvantages. Perhaps the best

way to evaluate the pluses and minuses is to compare the

Deposition to the Set of Interrogatories, that other major

weapon in the never-ending lawyer struggle for information.

Although this chapter (and book) is fundamentally

concerned with civil litigation, all practitioners should

familiarize themselves with some of the basics of criminal

discovery; civil issues often involve criminal miscon-

duct.2 Despite the “No discovery in criminal cases” myth,

depositions are permitted under limited circumstances.

There are two basic functions underlying the depo-

sition in civil litigation; the strategies for each are vastly

different. The first type, the Preservation Deposition,

is often taken for the purpose of saving and preserving

friendly or “neutral” testimony. The deponent may be

your own party, an expert of your choosing or an indepen-

dent witness. Also included within this type of deposition

are those witnesses whose position or “favorability rat-

ing” has yet to be determined. Because the Preservation

Deposition involves non-adversaries, the use of leading

questions is often improper and dangerous.3 Even if they

are not totally excluded at trial, leading interrogation of

a friendly or independent witness can certainly diminish

the evidentiary value of the testimony.

The preservation deposition was not designed, nor

was it intended to serve, as a broad-based weapon to be

used against enemy combatants. On the contrary, it was

designed to perpetuate “known” testimony.3.1