Introduction

1. Why Teach About Depositions

First, teaching the course is likely to improve the legal profession. 1 Although depositions are an essential part of civil litigation, practicing lawyers receive very little training in this area.2 If you teach the course, you are likely to help create a cadre of young lawyers who will enter the profession knowing a fair amount about how to conduct a competent deposition. Second, teaching the course can help remedy an existing gap in traditional legal education. Substantive law courses often leave students with an impoverished sense of the importance and difficulty of uncovering facts and evidence that will satisfy the requirements of doctrinal rules. Helping students learn how to identify what evidence to pursue, and how to pursue it during a deposition, will help correct this deficiency. Third, students enthusiasm for the course will provide you with a very pleasurable teaching experience.

Although we teach an entire four unit course devoted to depositions, you might decide to teach a more truncated two unit version of the course or include portions of the text as part of a pretrial lawyering course. You might also include classes on depositions in an interviewing course to illustrate that many of the same questioning patterns used in an interview are also used in a different way at a deposition.

Our depositions course is still somewhat of a work in progress. Although we have taught a depositions course for several years, each time we teach it we make a number of changes in the course coverage and materials, the in-class exercises and the ways in which we provide critique and feedback on student performances in and out of class. While we feel we are improving the course with these changes, we feel that additional changes will be necessary the next time we teach the course. As you teach about depositions we hope that you will communicate with us about what you think works well and what needs improvement. You can contact us with questions or suggestions about the

1 We assume that there is a need for improved deposition performance. Among the factors on which we base our assumption are what practicing lawyers tell us, what we have observed practicing lawyers do at depositions and what lawyer written texts on taking depositions fail to discuss.2 Preliminary data from a recent survey by one of the authors of over 400 practicing lawyer indicates that lawyers receive very little deposition training once they enter practice. For example, of the surveyed lawyers, before taking their first deposition, fifty seven percent (57%) spent no time with a senior lawyer practicing/rehearsing their proposed deposition questions under circumstances where the received corrective feedback from a senior lawyer. Twenty six percent spent 1-2 hours practicing and receiving feedback. Thus eighty seven percent (87%) obtained 2 hours or less of corrective feedback before taking their first deposition. Moreover, eighty eight point nine percent (88.9%) of these lawyers received 2 hours or less of corrective feedback after taking their first deposition.

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course via e-mail at binder@ulca.law.edu, moore@ulca.law.edu, or bergman@law.ucla.edu, or at (310) 825-4841.

2. Course Coverage & Organization

A. The Basic Skills

We describe below the general content and organization of our depositions course . The content and organization are based on the assumption that when students leave the course they should have the skills necessary to perform reasonably well the following basic deposition tasks:

* Prepare for a deposition.

* Use T-Funnels and Timelines to effectively pursue the primary deposition goals of obtaining a deponent’s version of significant events and searching for helpful and harmful evidence.

* Undermine harmful evidence that emerges at a deposition. * Maximize the possibility of obtaining favorable answers to important questions. * Respond to objections.

* Respond to evasive, uncertain or forgetful deponents.

B. The Importance of Repeated Practice and Feedback on Basic Skills

“A single experience that is to never repeatitself is biologically irrelevant.”3

Our experience indicates that students need multiple opportunities to practice and receive feedback on these basic skills if they are to be able to transfer these skills from the classroom to practice.4 Thus, while we do cover deposition skills and subjects other than those listed above, most of our assignments and class time are devoted to providing students with repeated opportunities to practice and receive feedback on the foregoing basic skills. Because it takes time to provide students with repeated practice and feedback, we do not try to cover all of the Chapters in the text. We do not, for example, typically cover Communicating Arguments To Enhance Settlement (Chapter 14), 3 Erwin Schrodinger, Mind and Matter (1959). For a discussion of the importance of practice in developing competence, see How People Learn, Chapter Three, (National Academy Press 1999)4 For a discussion of why such opportunities are typically necessary to facilitate a transfer from school to practice, see How People Learn, supra.

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Arranging for Depositions (Chapter 18), Depositions to Preserve Testimony (Chapter 22) or Videotape Depositions (Chapter 23). Similarly, we sometimes do not have time to cover Deposing Experts (Chapter 21)

C. Illustrative Course Content and Organization

We teach both a simulated and a live client deposition course. The simulated course is 4 units and meets four hours per week (2, two hour classes). We typically have two instructors and 12-24 students in the course.

The live client course is 6 units and meets four hours per week (three 1 hour and 20 minute classes). In the live client course the students take depositions in the final weeks of the semester. We typically have two instructors and a maximum of 12 –14 students in the live client course.

Although the content of the simulated and live client courses varies, both courses are organized around the following four units.

Unit One - T-Funnel Questioning, Timeline Questioning and Deposition Preparation

In this unit, we spend most of our time having the students practice T-Funnel and Timeline questioning (Chapters 2 and 3) and preparing for deposition (Chapter 17). We try to illustrate how preparation for deposition is connected to using T-Funnels and Timelines to get a deponent’s version of significant events and to search for helpful and harmful evidence. As these classes progress, we integrate the skills of responding to evasive and forgetful deponents (Chapter 10) and opposing counsel’s objections (Chapter 16) into exercises on Timeline and T-Funnel questioning. We finish this unit by having the students take a videotaped deposition of a witness from one of our hypothetical cases.5

Unit Two - Cementing Helpful Answers, Masking, Plausibility Chains, and Exploiting Bias.

In this unit, we concentrated primarily on having the students practice trying to encourage a deponent to give them a crucial answer or admission (Chapter 4) and cementing helpful answers (Chapter 5). The unit also integrates the skills of strengthening helpful evidence (Chapter 6) and exploiting implausible testimony (Chapter 9). We finish this unit by having the students take a second videotaped deposition of a witness from one of our hypothetical cases.

Unit Three - Undermining Harmful Evidence

In this unit, we have the students practice undermining harmful evidence that emerges for the first time at deposition. The unit focuses primarily on the

5 Sample hypothetical cases that you may use can be found in Appendix ??

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strategies and techniques described in Chapter 7. At the conclusion of this unit, the students conduct a videotaped deposition in which they are required to try to undermine harmful evidence.

Unit Four

In the live course, unit four consists of having the students prepare for and take actual depositions.

In the simulated course, depending on the time available and instructor inclination, we cover or revisit one or more or the following areas: strengthening helpful evidence (Chapter 6), expert depositions (Chapter 21), 30 (b) (6) and practice and policy depositions (Chapters 19 and 20), preparing a client for deposition (Chapters 24).

D. Alternative Organizations for More Truncated Courses

If you are teaching a two unit depositions course, you may want to concentrate on important basic skills the students are unlikely to be able to learn and apply from simply reading the text and/or through observation and training in practice. Thus, in a two unit course you might concentrate on preparing for depositions (Chapter 17), using T-Funnels (Chapter 2), using Timelines (Chapter 3), and obtaining important admissions (Chapter 4). Focusing on these chapters not only helps students develop basic questioning skills it also help students recognize that successful inquiry at deposition often depends upon thorough preparation.

If you are incorporating classes on depositions in a pre-trial or interviewing course, it is difficult for us to make concrete suggestions about which chapters to cover since we do not know what other subjects your course includes and how much time you devote to those subjects. However, in deciding what areas of the text you might include in a pre-trial course, we suggest you focus on skills the students are least likely to pick-up in practice through training or observation. Then, cover the materials in the text related to those skills as thoroughly as time allows.

E. Number of Classes Per Subject

We find that the number of classes devoted to each subject and each of the units described above varies from semester to semester depending on how quickly the students seem to master the material and on whether you are teaching a live client or simulated course. As a result, we do not use a syllabus for the course. Instead, at the beginning of the course we hand out a description of the units we will cover during the semester and hand out individual class assignments as the course develops.

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3. Classroom Presentations

Virtually all classes center on role-play exercises in which the students practice preparing for and/or deposing adverse witnesses and receive feedback on their efforts. Prior to class, students are typically assigned readings from the text and are often given instructions about the role they will play in the class. “Lecture” by the instructor is usually incorporated into comments and feedback on the class exercises and role-plays.

A. Class Exercises

Many of our role-play exercises are described in the following Chapters of this manual and are based on the hypothetical cases at the end of this manual or on cases the students compose based on their own experience. In addition, in the live client course exercises often involve hypotheticals based on the facts in the case in which the students will take an actual deposition.

Our in-class role-play exercises use three basic formats.

* Entire class in the role of deposing counsel: a “Round Robin” Format.

We often have one student (or a fellow instructor) play the role of the deponent with all other students taking turns in the role of deposing counsel. The instructor asks one student to question the deponent for a short time and then stops the questioning to provide feedback and comment and/or ask for feedback and comment from the class. Another student is then asked to continue on with the deposition questioning from the point where the first student concluded, and the comment and feedback process is repeated. This “Round Robin” approach allows comment and feedback to reach the entire class and is typically used when a skill is being practiced for the first time. For example, we use this sort of format when the students are first asked to engage in T-Funnel or Timeline questioning.

* Class Split in Half Format

This format is used when the class is co-taught and there has already been a role-play on a skill before the entire class. The exercises are conducted in essentially the same Round Robin format as those before the entire class. This format allows each student to spend more time in the role of deposing counsel.

* Small Groups Format

We often split the class into small groups with the students assigned rotating roles as deponent, deposing counsel and critiquer. Although the

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instructor drops in form time to time to observe a group, often no instructor is present for 15 or 20 minutes of role play and feedback. This insures that comment and feedback come primarily from the students and encourages students to raise issues that they might feel uncomfortable discussing in front of the instructor. This format also allows many students to play the role of deposing counsel as several small groups proceed simultaneously. And at the end of the class, we frequently reassemble the class and talk about issues and problems that arose in each group. This format works best after you have first practiced a skill in a Round Robin format.

B. Transcript Analysis

We sometimes introduce a new deposition skill by asking students to read the text material on that skill and review an actual or hypothetical deposition transcript prior to class that illustrate the proper or improper use of that skill. Then in a Round Robin format, the students analyze the transcript and role play how they might have responded differently that the transcript attorney. This type of exercise provides the students with an immediate and concrete example of how the text materials can be applied in an actual deposition setting.

4. Out of Class Videotape Exercises

A. Bringing Several Strategies and Techniques Together

Two or three times during the semester, students are videotaped when conducting a thirty five minute to one and one-half hour portion of a simulated deposition. The deposing lawyer may be a single student or a team of two or more students. The videotapes typically take place at the end of units one, two and three.

Each of these videotaped exercises typically requires a student to pull together what he or she has learned with respect to the various skills that have recently been explored in class. As a consequence, a student has an opportunity to simultaneously grapple with strategies and techniques raised during the previous three or four weeks of class in a relatively realistic setting. For example, if the previous three weeks of class covered T-Funnel and Timeline questioning and responding to objections, the students will have to demonstrate how well they can perform these skills in the context of an actual deposition. The opportunity to transfer what they learned in earlier classes to a new situation provides students with essential feedback on their skill level.

These video exercises also provide the students with an opportunity to reflect on how deposition preparation can facilitate effective deposition questioning. They realize, for example, how difficult it is to think of close questions at the bottom of a T-Funnel “on the fly” at deposition. This realization helps them to understand the importance of thorough preparation. Finally, these

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videotape exercises help students to recognize that they can not mechanically apply the techniques they have learned in class. Instead they must make strategic judgements as the testimony unfolds about which technique is most appropriate to apply at a given moment. Assume for example, when in response to a T-Funnel question about what a deponent heard at a given meeting, the deponent reveals some helpful information. On receiving this answer, the student must make strategic decisions such as whether to use an open question to press for additional information, ask a closed question to ask about other potential helpful information, start another T to learn more about the helpful answer itself, cement the helpful answer or move on to some altogether different subject.

Feedback for the student on the videotaped exercise may occur immediately after the exercise is concluded, with the student then required to review the tape and turn in a written self-critique of his or her performance. (An example of such a self critique is set forth at the end of Unit One in this manual.) Alternatively, you may want to review the self-critique and the videotape, and then meet with then student to provide feedback.

A note on the written self-critiques. Our experience with and feedback from the students on these self-critiques has been very positive. As students review the videotape, they must reflect on their own performance and as they do so they often realize how they might improve, without our having to tell them. This self critique provides a concrete example of how they can learn from reflecting on their own performance and allows us to concentrate on areas not covered in the self-critique if we review the tape with the student. (This also shortens the time for the tape review.)

B. The Role of the Deponent

In the live client course, we frequently play the role of the deponent in the videotape exercises. This allows us to insure that the students will be required to demonstrate all the skills we have covered in prior classes.

In the simulated course, we frequently play the role of the deponent in the first videotape exercise. For the other videotapes, volunteers from the community often play the role of the deponent. We provide the volunteers with scripts and an orientation session to explain what will be expected of them in the deposition.

The person playing the role of the deponent must be willing to go beyond the information in their witness statement. It is simply not possible to give the deponent all the facts that might be asked about at a deposition. You may want to emphasize the need to go “beyond the information given” if you have volunteers play the role of the deponent.

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C. Limiting the Scope of the Exercise

In our experience, students often use an “I didn’t have enough time” excuse for a failure to question thoroughly during a videotape deposition exercise. We try to preempt this excuse by telling students that they should not try to complete the deposition within the allotted time. Instead, we instruct them to cover a subjects as thoroughly as they would if they had an unlimited time to take the deposition, and not to worry about finishing the deposition within the allotted time.

D. Have Students Save Their Videotapes

We explain to the students that they should not erase any videotape exercise before the semester’s end. We explain that from time to time we will want them to revisit an earlier videotaped exercise.

5. Cases for Class and Videotape Exercises

At the end of this manual you will find four simulated case files which can be used for in class or videotape exercises. The cases are: (1) Johnson v. General Corporation, (2) Jackson v. CTE, (3) Palmer v. Dunbar and Rivas v. Orenza. Johnson is short, straightforward breach of contract case. CTE is a consumer fraud case against a trade school. Palmer is a former book store employee who claims she was terminated because of the age. Neither CTE nor Palmer is legally complex or document intensive. Rivas is the most complex case. It involves allegations of fraud in connection with a loan secured by a home mortgage and it has by far the largest number of documents. You may also want to use simulated cases you or your colleagues have used in interviewing or trial advocacy courses.

We also have each student make up his or her own short case (no more than a one page statement of the facts) based on their own actual or vicarious experience. Their “own cases” can be used for in-class exercises and provide a source of good future hypotheticals for you.

In the live client course, the class exercises are drawn from both the simulated case files and hypotheticals based on the cases in which the students will ultimately take depositions.

6. Special Considerations for the Live Client Course

A. Obtaining Cases

You may have a clinic that provides your students with adequate opportunities to take depositions. We do not have such a clinic. Consequently, to obtain cases on which our students can work, we typically “go shopping.” That

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is, we contact public interest firms, legal services offices and lawyers working on a case pro bono to see if they have cases where students can take depositions. If the lawyer is someone with whom we have not previously worked, we explain the depositions course and our need to be involved in cases where students can take depositions toward the end of the up coming semester. We also explain that we will become co-counsel for the duration of the semester and that we would limit our activities primarily to preparing for and taking specified depositions. We explain that for pedagogical reasons, we want to “borrow” some discovery aspects of a case rather than being concerned with the entire case. Additionally, we discuss the need for written client consent in order for us and our students to work on the case.

Several reasons underlie our decision to undertake cases as co-counsel rather than as primary counsel. Our main reason is pedagogical. Our co-counsel agreements explicitly allow us to limit our participation, and that of our students, to taking and preparing for specified depositions. As a consequence, our focus is narrowed and we can achieve the repetition we believe is essential to facilitate the transfer of skills for the classroom to practice.

In avoiding the primary counsel role, we also avoid what we call the “equal dignities problem.” When we have responsibility for an entire case, we must make sure that all problems, big and small, receive attention. As a result, frequently both instructors and students must devote attention to problems that are comparatively trivial and/or could be quite well and quickly taught in practice. For example, drafting and sending out deposition notices and serving subpoenas are important parts of deposing third persons. But students can learn about such matters quite quickly once they enter practice. Under the borrowing model, tasks such as these fall on the primary counsel, preserving our and our students’ time for the basic skills covered in the course.

The co-counsel/ borrowing model has one other obvious benefit. Instructors have no case supervision responsibility over the summer, giving instructors time and freedom to pursue their research and writing agendas. When the semester ends, the instructors are free to withdraw as co-counsel or at least step out of the case until the next semester begins. Of course, the instructors and/ or individual students may choose to stay on the case, but this is not required.

Throughout the semester we work very closely with the primary counsel and keep him or her constantly up to date on what we have learned.6 When the semester ends, lead counsel is usually ready to step in to those aspects of the case that we have been handling.

B. Integrating the Cases into the Course

6 In addition, primary counsel typically attends each deposition taken by the students.

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When we obtain a case, we typically introduce the students to it by having them read the pleadings and come to class prepared to discuss what they believe the client will have to establish in order to prevail. In class, which is often attended by primary counsel, we discuss the case in general and focus on what are the crucial facts that the client must prove. Thereafter as the needs of the case dictate, we hold one or more class sessions in which we discuss various preparation tasks discussed in Chapter 17. For example, we discuss preparing a case chronology, managing and reviewing documents and identifying what topics and events should be explored in the upcoming depositions. In their “clinic time” students are then assigned to carry out these tasks in preparation for the actual depositions. Moreover, as noted above, at various times throughout the semester we base class and videotape exercises on hypotheticals based on the cases in which students will be taking depositions..

C. Preparing For The Depositions

We typically assign two or three students to a given deposition. In preparation for the deposition, the students must prepare a detailed deposition outline. The outline must set forth the topics the students intend to pursue and the order in which they intend to conduct their questioning. In preparing their outlines, students review documents in the case to determine which, if any, they will probably discuss with the deponent. They also review the on-going case chronology, which the students have maintained during the semester, and incorporate into their outlines the events in the case chronology on which they intend to question a deponent. Prior to giving students an outline drafting assignment, we spend an hour or two of class time reviewing common problems that arise in preparing deposition outlines. (See the prior discussion of unit 3 in the live client course.)

After students prepare their draft outlines, instructors review them and meet with the students to provide feedback on their work. Students are not permitted to divide the outline into “my part and your part.” They must produce a complete, integrated outline and will not be assigned responsibility for who goes first, second or third until the integrated outline is complete. Typically, students will need to redraft an outline before it is satisfactory.

Once an outline is in reasonable shape, students are put through simulated sessions in which they practice deposing the prospective deponent. These sessions typically start 2 to 3 days before the actual deposition. 7 At this point, students are told which person will go first, which second and which third at the deposition.8 At the same time, student two is told that he needs to be

7 Typically before these sessions take place, we will have sent a copy of the proposed outline to lead counsel who will have reviewed and made suggestions additions, modifications and subtractions.8 Rules do not expressly permit or prohibit more than one questioner per party. As a result, opposing counsel may initially object to more than one student questioning a deponent. When this happens, we explain that the students are questioning from one outline and there will

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prepared to cover the final sections of the outline initially assigned to student one. Similarly student three is told the same thing with respect the final portion of outline initially assigned to student two. These arrangements are necessary to make sure that each student has approximately two hours of deposition questioning. At the deposition, two hours often goes by before a student can complete his or her assigned section of the outline.

Sometimes, an instructor plays the role of deponent and critiquer. In other instances, one instructor plays the deponent and the other instructor assumes the responsibility to critique. As these mock sessions proceed, the deposition outlines are modified where it seems appropriate to do so. These sessions give the students an opportunity to respond to answers and problems that are likely to arise at the actual deposition. Feedback on the students’ performances continually punctuates these mock sessions.

D. Conducting The Actual Depositions

In the actual depositions, the students do virtually all the questioning. The instructor sits by the side of the student doing the questioning and listens but rarely speaks.9 If the student misses a follow-up question or fails to spot problematic answer, the instructor usually passes a note to a student, wipers in the student’s ear or talks about the issue during a break in the deposition.

The depositions typically last six to seven hours and each student usually asks questions for at least two hours. Because students are working from a common outline, questioning overlap has never been a problem.

therefore be no improper overlap in the questioning (and therefore no harm to the deposed party).. You may avoid or mitigate problems in this area by notifying opposing counsel in advance of the deposition that more than one student will be questioning the deponent but that there will be no unnecessary repetition. In one case, we had to go to court over the issue of whether more than one student could question a deponent; we prevailed.9 We may intervene if a student has difficult dealing with inappropriate behavior by opposing counsel.

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Unit One

Basic Skills - T-Funnel Questioning, Timeline Questioning and Deposition Preparation

Integrated Skills – Responding to Objections, Responding to Evasive or Forgetful Deponents and Using Documents

In this unit, we concentrate primarily on T-Funnel and Timeline questioning (Chapters 2 and 3) and preparing for deposition (Chapter 17). As these classes progress, we integrate the skills of responding to evasive and forgetful deponents (Chapter 10), responding to opposing counsel’s objections (Chapter 16) and using documents at deposition (Chapter 11). We finish this unit by having the students take a videotaped deposition of a witness in a hypothetical case contained in this manual.

In the first unit, we use exercises based on the Johnson v. General Corp., Jackson v. CTE, or Palmer v. Dunbar hypothetical cases at the end of this manual. In addition, in a live client course, we may also use hypotheticals based on the actual cases in which the students will take depositions later in the course.

1. First Class

Although some students will have an idea of what occurs at a deposition, many may not. Therefore, we begin our first class by finding out what students know about depositions and responding to their general questions. We then show one or more video excerpts of a deposition. These excerpts demonstrate how a deposition typically begins, how questioning proceeds and what typically happens when opposing counsel objects. We then take questions from the students. We find that this process, to which we devote thirty minutes or so, helps put students at ease since they have an opportunity at the outset to get answers to their initial questions about depositions.

In preparation for the first class, we typically ask the students to read Chapter 16 (responding to objections) and Chapter 12 (beginning and concluding the deposition). We also have the students read the deposition transcript set forth below. During the remainder of the class, we briefly discuss the purpose of deposition objections, and how to respond to them. We then use the deposition transcript to discuss the appropriateness of the objections in it, and have the students practice responding to those objections.

In subsequent classes in this unit (and in subsequent units), we frequently make objections as the students undertake questioning exercises. This gives the

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students repeated practice responding to objections. It also provides you with a opportunity to talk about the objections that must be made or waived by defending counsel.

Deposition Transcript

This is the deposition transcript of Monsef Asahi. Asahi is president of Wing Nut Financial Services. Plaintiffs Alberto and Guadalupe Rivas have filed a complaint alleging that Mike McHarvey and Wing Nut made intentional and negligent misrepresentations to them in connection with a loan made to them by Wing Nut. Plaintiffs want to establish that (1) McHarvey was an agent or employee of Wing Nut, and (2) that McHarvey was not a licensed loan broker. The transcript below is from an actual deposition in the Rivas litigation.

1 A . . . . 2 Q And during the years 1997 through 1998 what 3 were your responsibilities as president of WING NUT ? 4 A Specify dates in 1997 through 1998 because I 5 was not in this country from 1997 all the time here. 6 Q In December of 1997 what was your position, I 7 mean what were your duties and responsibilities as 8 president of WING NUT ? 9 A I have to think where I was. December 1997 I 10 was here. I was president of the company. 11 Q As president what were your duties and 12 responsibilities? 13 A Oversee the company. 14 Q When you say your duties involved overseeing 15 the company what did that entail?

16 A What did that entail? Make sure that employees 17 were there and we were trying to generate first 18 mortgages and be profitable. 19 Q In addition to overseeing the employees or 20 making sure that employees were there and that WING NUT 21 was generating first mortgages and being profitable, 22 were there other things you were responsible for at 23 WING NUT ? 24 A Sure, basically make sure we meet the 25 guidelines of all investors.

1 Q Were there any other duties or responsibilities

2 you had as president of WING NUT during December of 1997? 3 A I have to sit down and type for you if you want 4 specifics but I oversaw the company. 5 Q On a day-to-day basis what were the things that

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6 you did in December of 1997 as president of WING NUT ? 7 A Day to day? I came to work and I personally 8 originated loans so I focused on my own loans to try to 9 take care of my loans with my clients and satisfy them 10 and get the loans approved and close the loans for their 11 homes. That was my main focus. 12 Q So you said you originated loans and you 13 focused on your own clients' loans in making sure they 14 got approved? 15 A Yes, approved and funded, yes. 16 Q And funded. Were there other things that you 17 did on a day-to-day basis at WING NUT during December of 18 '97? 19 A What I just gave you is pretty generic but you 20 don't have exact but those are the things mainly we have 21 covered. 22 Q Could you be more specific? 23 A Ask me the specific questions and I will tell 24 you. 25 Q In terms of in December of 1997 you were 1 focusing on the loans of your own clients, getting their 2 loans approved and funded. Were there other duties, 3 were there other things you did on a day-to-day basis 4 besides those things? 5 MS. NORTH: Objection, asked and answered. 6 You are squeezing blood from a turnip at this point. 7 BY MR. TYLER: 8 Q During December of 1997 there must have been 9 other things you were doing besides originating loans 10 and working on your own clients. As president of 11 WING NUT what other things were you doing during December 12 of 1997? 13 MS. NORTH: Objection, asked and answered, 14 argumentative, compound. 15 MR. TYLER: You can still answer. 16 MS. NORTH: It is compound. I don't know. 17 Can you answer that question? 18 THE WITNESS: I have already given you an idea 19 of what -- I oversaw the company. If you want specific 20 questions answered, you need to ask me specific 21 questions and I will answer you. I cannot sit down here 22 and give you detailed one by one what I did day to day. 23 I'm sure you can't tell me if I ask you in December of 24 1997 what you did in the morning as you walked in the 25 office specifics one by one.

1 I have given you a pretty generic idea as

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2 president of the company what I did. I oversaw the 3 company, to make sure loans were done, done in a manner 4 that was honest, in a manner to meet the guidelines of 5 investors, to satisfy the borrowers' needs and to take 6 care of the client. If you want more specific answers, 7 I will be more than happy to answer them if you ask me 8 specific questions 9 BY MR. TYLER: 10 Q During December of 1997 how many employees did 11 you supervise directly? 12 A December of 1997 I had one processor, myself -- 13 MS. NORTH: Don't need to think out loud. 14 That's going on the record. It is easy to do. 15 THE WITNESS: I'm not sure but I think it is 16 three. 17 BY MR. TYLER: 18 Q You think you oversaw -- you supervised three 19 employees? 20 MR. PARIS: He answers and then you ask him a 21 question to confirm the answer. Everything is like 22 duplicate. He answered it and then you said -- let's 23 see if we can try to move this along. If you had the 24 reporter read it back I think you would see he said I 25 had three and then you say is that true we had three.

1 We are doing this multi-layer questions here. 2 MS. NORTH: There is a history to this whole 3 thing. That's what this is coming from. 4 MR. PARIS: This has happened basically on every 5 answer you are given. You are repeating what he is 6 saying and he is answering it again for the second time. 7 MR. TYLER: You said you supervised three 8 employees; correct? 9 MR. PARIS: He already answered that. That's 10 the fourth time now. 11 MR. TYLER: I am going into a question. 12 You said you supervised directly three 13 employees during December of 1997? 14 A I said that. I don't know exactly off the top 15 of my head but I think it is three, including myself, on 16 payroll employees. 17 Q So when you say you supervised three employees 18 now you are including yourself? 19 A I'm an employee of the corporation. I'm on 20 payroll. 21 Q You supervised yourself? 22 A If you are defining "employees," I am an

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23 employee of the corporation in December of 1997. 24 Q Can you tell me the names and the positions of 25 these employees that were employed by WING NUT during

1 December of 1997? 2 A Me was one of them and the other one is Maria 3 Lopez. She was the processor for first mortgages. And 4 Brenda Moreno, and at that time I believe she was the 5 receptionist. 6 Q So in December of 1997 the only employees of 7 WING NUT were you, Maria Lopez who was a processor for 8 first mortgages, and Brenda Moreno who was a 9 receptionist? 10 A Yes. 11 Q And you said you were not around during the 12 whole time, during all of 1997 and 1998? 13 A No. I was not around all of 1997 but '98 I was 14 here. 15 Q What part of 1997 were you not around? 16 A Until from December of '97 or from December of 17 1996, actually from November of '96 until September of 18 '97 I was absent but I was in for two months. So in 19 July I was -- actually, let's see, May and June I was 20 here. To be exact November '96 through May 31, 1997 I 21 was in Australia. June and July of '97 I was in the 22 United States. August, September I was in Australia. I 23 was back in the U.S. in September of '97, end of 24 September or mid-September. 25 Q During the time you were in Australia who was

1 covering for your duties at WING NUT ? 2 A Who was covering for me? I had another friend 3 broker. 4 Q Who was that? 5 A Jesse Sandoval. 6 Q I didn't catch the last name. 7 A S a n d o v o l, v a l, something like that. 8 Q Jesse Sandoval was a friend of yours? 9 A Yes, he was a broker friend, yes. 10 Q During the time that you were in Australia was 11 WING NUT actively doing business? 12 A Was WING NUT actively doing business? Yes. 13 Q During the time you were in Australia who were 14 the employees at WING NUT ? 15 MS. NORTH: Objection, asked and answered 16 and vague as to time. 17 MR. TYLER: I'll just repeat the question.

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18 MS. NORTH: Withdraw the objection. You can 19 answer the question. 20 THE WITNESS: Who was the employees of WING NUT 21 when I was in Australia besides the ones -- well, at 22 that time Jesse was on payroll, Jesse Sandoval, and Tony 23 Ortiz, they were the only two others that were on 24 payroll, and after November they were no longer there on 25 payroll, that's why I didn't mention them before.

1 BY MR. TYLER: 2 Q When you say they were not on payroll after 3 November, were they doing work for WING NUT ? 4 A No, they were not with us. 5 MR. PARIS: They were what? 6 THE WITNESS: They were not with us after I 7 came back from Australia in September. They were gone 8 as of late October, November. They were not with us. 9 BY MR. TYLER: 10 Q So they were doing no work for WING NUT after 11 November? 12 A No. 13 Q In December of 1997, besides Maria Lopez and 14 you and Brenda Moreno, were there any other people doing 15 work for WING NUT who were not on payroll? 16 A What do you mean -- define "work." 17 MS. NORTH: Objection, vague and ambiguous. 18 BY MR. TYLER: 19 Q Was anyone during December of 1997 -- did 20 WING NUT have a relationship with any other people by 21 which -- strike that. During December of 1997 did -- 22 MR. PARIS: I'll object if this is going to take 23 two years to do this deposition, so just to direct it to 24 Roberta Stovitz, let's move this depo along. We are 25 sitting here. There is multiple questions. There is

1 minutes going by. There is nothing going on here. So I 2 am putting on the record we are having a problem moving 3 forward on this deposition. 4 BY MR. TYLER: 5 Q During December of 1997 did WING NUT pay any 6 monies such as commissions to people not on the payroll? 7 A December of 1997, did we pay commissions to 8 people that were not on payroll? I don't remember. 9 Q Was there a reason you don't remember? 10 MS. NORTH: Objection. 11 MR. PARIS: Asked and answered. 12 MS. NORTH: Argumentative. Don't answer

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13 that question. 14 BY MR. TYLER: 15 Q During 1997, at any point during 1997 was 16 anyone -- did WING NUT pay any monies such as commissions 17 to any people not -- any person not on the payroll? 18 MS. NORTH: Isn't that the exact same 19 question you just asked? 20 MR. TYLER: No. 21 MS. NORTH: Can you repeat it. 22 (Record read.) 23 THE WITNESS: I don't remember off the top of 24 my head if you want an accurate, honest answer. 25 MR. TYLER: Thank you.

1 Q During January of 1998 you were president of 2 WING NUT ; correct? 3 A Yes. 4 Q Which employees, who were the employees who 5 were at WING NUT during January of 1998? 6 A Maria Lopez, Brenda Moreno, and Monsef Asahi. 7 Q So there were no other employees at WING NUT 8 during -- 9 MR. PARIS: He just said -- he named them. You 10 are doing the same -- I will keep objecting if we are 11 going to keep repeating these questions back and forth 12 here. 13 BY MR. TYLER: 14 Q During January of 1998 did WING NUT pay any 15 person not on the payroll any monies in the form of 16 commission or any other payment? 17 MS. NORTH: Objection, that's compound. 18 BY MR. TYLER: 19 Q Did WING NUT , during January of 1998, did 20 WING NUT pay any monies such as a commission to a person 21 not on the payroll? 22 A I don't remember. 23 Q Was a person by the name of Mike McHarvey doing 24 any business for WING NUT during 1997 or 1998? 25 A Mike McHarvey is an independent contractor.

1 Q During 1997 and 1998 was Mike McHarvey doing any 2 business for WING NUT ? 3 A Doing business with? I mean I need 4 definition. Independent contractor. I have specified 5 Mike McHarvey was an independent contractor processor. 6 Q When you say Mike McHarvey was an independent

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7 contract processor what do you mean by that? 8 A It is pretty well defined I think. 9 MS. NORTH: Speaks for itself. 10 BY MR. TYLER: 11 Q Could you just explain what it means? 12 A What do you understand of "independent 13 contractor"? 14 MS. NORTH: It is a legal term. 15 BY MR. TYLER: 16 Q When you say -- so was Mike McHarvey -- did 17 WING NUT have a relationship with Mike McHarvey during 18 1997 and 1998? 19 A Yes, as an independent contractor he did 20 processing of some loans. 21 Q Did WING NUT pay monies to Mike McHarvey for the 22 work that he did in processing loans during the years 23 1997 and 1998? 24 A On loans that closed, yes. 25 Q So WING NUT did, in fact, pay monies to people

1 not on the payroll during the years 1997 and 1998; 2 correct?

25 A Mike McHarvey got processing per package. I1 don't exactly know how much but it was like maybe 200,

2 250 per file. 3 Q So for Mike McHarvey -- 4 A I don't know exactly the dollar amount, if you 5 want to use it later, I don't know exactly what the 6 dollar amount was per file but he got paid per file. It 7 is around 200 to 300. 8 Q When you say Mike McHarvey was paid per file, it 9 was a set amount that he was paid per file or was it a 10 percentage of the loan or percentage of something? 11 A I don't remember but I know it was not a 12 humongous amount but it was per file. Mike wasn't -- 13 well, I'm not going to go there. 14 MR. TYLER: I think we'll take a break. 15 MS. NORTH: How long of a break? Just 16 changing the guards right now? 17 MR. TYLER: Yes. 18 (Recess taken.) 19 20 EXAMINATION 21 BY MS. YOUNG: 22 Q Good morning, Mr. Asahi, my name is Jennifer 23 Young. I will now resume taking this deposition. You do 24 understand that you are still under oath; correct?

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25 A Yes.

1 Q Did WING NUT make a home improvement loan to 2 Alberto and Guadalupe Rivas on January 1998? 3 A Yes. 4 Q How much was that home improvement loan for? 5 A $25,000. 6 Q Was this $25,000 home improvement loan to the 7 Rivases a HUD insured home improvement loan? 8 A Yes, Title One. 9 Q Now I'm just going to ask you about WING NUT 's 10 practices or dealings with real estate brokers and real 11 estate salespersons during 1997 and 1998. In 1997 to 12 1998 did WING NUT know that non- WING NUT employees 13 soliciting or arranging home improvement loans for 14 borrowers needed to be licensed by the California 15 Department of Real Estate? 16 MS. NORTH: Wait a minute. Can you repeat 17 that question. 18 (Record read.) 19 MS. YOUNG: I'll repeat it if you like. 20 Q During 1997 to 1998 did WING NUT know that 21 non- WING NUT employees soliciting or arranging home 22 improvement loans for borrowers needed to be licensed by 23 the California Department of Real Estate? 24 MS. NORTH: Lacks foundation. Do you 25 understand that question?

1 THE WITNESS: Repeat it again. 2 BY MS. YOUNG: 3 Q Okay. During 1997 to 1998 did WING NUT know 4 that non- WING NUT employees soliciting or arranging home 5 improvement loans for borrowers needed to be licensed by 6 the California Department of Real Estate? 7 MS. NORTH: Same objection but you can 8 answer it if you understand it. 9 THE WITNESS: Non- WING NUT employees had to be 10 licensed to solicit loans is that what you are asking? 11 BY MS. YOUNG: 12 Q Did WING NUT know during 1997 to 1998 they had 13 to be licensed by the California Department of Real 14 Estate? 15 A You have to be licensed to do loans. 16 Q Is that yes? 17 A Your question is too many questions in that one 18 question. 19 Q Okay. Let me see if I can try to make it a

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20 little bit simpler. During 1997 to 1998 did WING NUT 21 know that people who were not employees of WING NUT who 22 were trying to solicit or arrange home improvement loans 23 for borrowers, for other people needed to be licensed by 24 the California Department of Real Estate? 25 MS. NORTH: Lacks foundation.

1 MR. PARIS: I don't understand the question. 2 MS. NORTH: It calls for a legal opinion. 3 BY MS. YOUNG: 4 Q Did WING NUT believe -- 5 A There is worlds of non-employees for WING NUT 6 according to your question. The whole America could be 7 a non-employee of WING NUT . 8 MR. PARIS: She didn't say WING NUT 9 non-employees. She just said non-employees of all 10 people in the world. 11 MS. YOUNG: Non- WING NUT employees who were 12 soliciting home improvement loans on behalf of borrowers 13 needed to be licensed by the California Department of 14 Real Estate. 15 Q Did WING NUT know this during 1997 to 1998? 16 A I have no control of general public of 17 soliciting loans. That has nothing to do with me. Your 18 question is non-employees. I have no jurisdiction over 19 non-employees. 20 Q Right. 21 A I am only going to answer a question about 22 non-employee. You are a non-employee. If you go out 23 there and solicit loans, I have nothing to do with you. 24 Q During the relevant time period that we are 25 talking about, the question is whether WING NUT believed

1 that non-WING NUT employees who were trying to arrange 2 home improvement loans on behalf of borrowers needed to 3 be licensed by the California Department of Real Estate? 4 A I did not have any non- WING NUT employees 5 soliciting loans. 6 Q So every person who solicited a loan was a 7 WING NUT employee during 1997 to 1998? 8 MS. NORTH: Lacks foundation. You are just 9 throwing these questions out at him and you haven't 10 established anything. 11 MS. YOUNG: I will ask you again. 12 Q During 1997 to 1998 did WING NUT believe that 13 non- WING NUT employees who were trying to arrange home 14 improvement loans on behalf of borrowers needed to be

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15 licensed by the California Department of Real Estate? 16 MS. NORTH: I am going to instruct him not 17 to answer because you haven't established any 18 foundation. You are just asking this question and I'm 19 not going to object to it three and four and five times. 20 MS. YOUNG: So are you going to take your 21 attorney's -- 22 THE WITNESS: Yes, it is my counsel. 23 MS. YOUNG: -- instructions. Let the record 24 reflect. 25 Q During 1997 to 1998 did WING NUT believe if a

1 person soliciting a home improvement loan for a borrower 2 was only a licensed real estate salesperson, that such 3 salesperson could only operate under the supervision of 4 the licensed real estate broker? 5 MS. NORTH: Same objection. There is no 6 foundation. If you apply some foundation I will let him 7 answer but he is not going to answer these. 8 MR. BENDER: Counsel, can we just keep this 9 down. If you want to instruct him not to answer. 10 MS. NORTH: I hear you snickering back there 11 too so that's not really professional either. 12 MR. BENDER: Do you want to just -- are you 13 instructing, counsel? Are you instructing your witness 14 not to answer? 15 MS. NORTH: My objection stands. 16 MS. YOUNG: Please answer. 17 MS. NORTH: No, don't answer. I have told 18 her to clarify her question. She didn't so don't 19 answer. 20 BY MS. YOUNG: 21 Q You are following your attorney's instruction 22 not to answer? 23 A Yes. 24 Q During 1997 to 1998 in making home improvement 25 loans did WING NUT deal with California licensed real

1 estate brokers? 2 A Did we deal with California licensed real 3 estate brokers? 4 Q Yes. 5 A On some occasion, yes. I only deal with 6 licensed people. 7 Q During 1997 to 1998 how did WING NUT decide 8 whether it would work with a given licensed real estate 9 broker who was soliciting a home improvement loan on

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10 behalf of the borrower? 11 A Could you repeat that question, please. 12 (Record read.) 13 MS. NORTH: Vague and ambiguous but if you 14 understand it you can answer. 15 THE WITNESS: If they are in the capacity of a 16 broker, they represent themselves as a broker, they can 17 hang their license in 10, 15, 20 different broker's 18 offices. And I am one of the brokers so I can work in 19 the same capacity as the broker. I don't have to have 20 the responsibility. It falls on that broker. 21 They are not under my guidelines so when a 22 broker works with me, that's fine. If they have a loan 23 they want to do through me as a broker, that's fine, but 24 they are a broker in the same capacity as I'm a broker 25 or WING NUT is a broker. They are under the same

1 guidelines as me. 2 BY MS. YOUNG: 3 Q Did WING NUT work with every licensed real 4 estate broker that was soliciting a home improvement 5 loan on behalf of the borrower? 6 A No. 7 MS. NORTH: That's pretty indefinite. 8 BY MS. YOUNG: 9 Q Did WING NUT have an approved brokers list? 10 A Did I have an approved brokers list, like a 11 list of brokers that I dealt with? 12 Q During 1997 to 1998 did WING NUT have an 13 approved brokers list? 14 A I didn't have a list, no. 15 Q And why didn't WING NUT have a list of -- an 16 approved brokers list during 1997 to 1998? 17 MS. NORTH: Objection, argumentative. 18 THE WITNESS: I didn't work for brokers. It 19 was not necessary for me to keep a list. My main 20 business was me. On occasion I did a few with brokers 21 but I'm not a major company to sit down and -- 22 MS. NORTH: You answered the question. 23 BY MS. YOUNG: 24 Q Were there any brokers with which WING NUT would 25 not work with?

2. Basic Questioning Skill - T-Funnel Questioning

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After our initial class, we have the students read Chapters 1 and 2 in the text. We then use one or moreof the following exercises to give the students a chance to practice and receive feedback on the T-Funnel technique. Before turning to the exercises, you may want to have a brief discussion with the students about how T-Funnel questioning can be used to pursue the primary deposition goals discussed in Chapter 1.

As we go through these exercises, we explicitly discuss with the students that the decision of whether or not to complete a T-Funnel is always a strategic one. We emphasize that when taking a deposition, the student might consciously decide not to complete a T-Funnel for a variety of reasons, e.g. the questioner concludes that the topic or event that is the subject of the T-funnel is relatively unimportant, the questioner concludes that the deponent knows little or nothing about the topic or event that is the subject of the T-Funnel, or the questioner consciously decides to temporarily abandon the T-Funnel to purse another topic or event. We also emphasize, however, that the student should not fail to complete a T-Funnel because they have been distracted or thrown off track by the deponent or the actions of opposing counsel.

A we go through these exercises, we frequently temporarily stop to provide feedback and discuss the common issues that arise when using the T-Funnel pattern, as discussed in Chapter 2 of the text. For example, we may stop the exercises to discuss:

* Why the student has decided to complete or not to complete a T-Funnel

* Using T’s within Ts

* The benefits of T-Funnels

* Using a “Have you now told me everything” question at the conclusion of an important T-Funnel

* Use of Partial or Inverted T-Funnels

* Avoiding broad or vague topics at the top of the T.

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Exercise - You have been sued by a former student.

We use this exercise when the students have just read Chapter 2 in the text on T-Funnels.

Ask the class to assume that you have been sued by a former student who was discharged from her job because she could not take a

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competent deposition. The former student claims that you failed to adequately teach her how to take a deposition. The class is representing you and deposing the plaintiff/ former student. Assign one student to play the role of the plaintiff/deponent. Tell the student playing the role of the deponent not to purposely forget anything, but to answer questions honestly based on what she knows from having read the Chapter on T-Funnels.

Ask the class to use a T-Funnel questioning pattern to find out everything that the deponent knows about the T-Funnel questioning pattern. Your theory is that the more the deponent knows about this pattern, the stronger your argument that you did a good job teaching the deponent how to take a competent deposition.

You can have one member of the class start questioning the deponent and then as the questioning proceeds, ask other members of the class to assume the role of deposing counsel. The exercise can continue until you have exhausted the deponent's knowledge about T-Funnels. Alternatively, after questioning for a while before the entire class, you may want to break the class into small groups and continue the exercise.

This exercise gives the entire class an opportunity to observe the T-Funnel technique. The exercise also illustrates that a single T-Funnel will seldom exhaust the deponent's knowledge about a topic. As the deponent responds to an open question at the top of the T, such as "Tell me everything you know about T-Funnels," the students identify topics that will then be the subjects of additional T-Funnels. For example, in response to the initial open question, the deponent may say: "I know that there are several benefits to the pattern, that it can be used for both topics and events and that there are several common T-funnels." The class will see that this initial response identifies topics that would then be the subject of other T-Funnels. For example, the class would need to do a second T-Funnel on "All the benefits of the T-Funnel pattern." Thus, this exercise helps the students to see why a series of T-Funnels is almost always necessary to exhaust a deponent's knowledge about a topic.

The students also learn from this exercise that they can not remember all of the subjects that require additional T-Funnels if they do not take good notes as the deponent testifies. This is true even though the students are very familiar with the subject on which the deponent is testifying.

This exercise also provides a concrete illustration that closed questions at the bottom of the T tend to refresh a deponent's recollection. The student playing the deponent inevitably forgets to mention something

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in response to open questions at the top of the T, even thought the deponent may have read the T-Funnel chapter in the text only days or hours earlier. As the class asks closed questions, the deponent's recollection is refreshed. It is easy for the students to appreciate that if closed questions at the bottom of the T refresh recollection when the subject is fresh in the deponent's mind, such questions are essential to refresh the recollection of a deponent in litigation, who may be testifying about events that happened many years earlier.

You can repeat or vary this exercise by, for example, having a student deposed about what she knows about responding to objections and instructions not to answer, or having the class use a partial T-Funnel to find out what the deponent knows about partial T-funnels.

Later in the semester you can repeat this exercise with other Chapters from the book. For example, you can have the class T-Funnel a student about what she knows about cementing helpful answers, etc. This sort of exercise allows you to put the students in role as deposing counsel and as deponent and to emphasize the material in the book without having to lecture.

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Exercise – Quality of Services at Your Law School

Assignment for class on --------. Read Chapters 1 and 2 in the text.

In addition, please prepare for class by doing the following:

1. Assume you are taking a deposition in a lawsuit challenging the quality of education provided by the Law School, and you want to be able to prove the two factual propositions assigned to you below. Be prepared to question the deponent, a classmate, using the T-funnel technique. Be sure to prepare for this class by identifying topics that you will use in your closed questions at the bottom of a T-funnel to elicit helpful evidence for each of your factual propositions.

2. You should also be prepared to play the part of the deponent (answering truthfully from your own experience).

Factual Propositions:

Students 1, 2, 3, 4, 5 and 6 will be the lawyer questioning the deponent and trying to prove the following factual propositions:

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The law school’s career services office does a great job. The law school’s records office does a lousy job.

Students 7, 8, 9, 10, 11 and 12 will be the lawyer questioning the deponent and trying to prove the following factual propositions:

The law school’s career services office does a lousy job. The law school’s computer systems are great.

Students 13, 14, 15, 16, 17 and 18 will be the lawyer questioning the deponent and trying to prove the following factual propositions:

The law school does not have enough course relating to the actual practice of law.

The law school’s computer systems are lousy.

This exercise has many of the same benefits as the previous exercise. And we use a similar in class “round robin” formula, where one student begins the T-Funnel, you periodically stop the questioning and either ask other students to provide feedback or do so yourself. You can then start the process again with a different student until all students have had a chance to question the deponent. Alternatively, after questioning for a while before the entire class, you may want to break the class into small groups and continue the exercise.

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Additional Exercises for T-Funnel Questioning

You may also use one or more of the following exercises to give the students additional opportunities to practice the T-Funnel technique. Alternatively, you may use these exercises later in the course to revisit T-Funnel questioning.

=============================================================Exercise - How to sub-divide a broad topic into smaller chunks that can be the subject of a T-Funnel.

When beginning a T-Funnel students often select a topic that is too broad to permit full recall. As a result the deponent can credibly claim a lack of memory at deposition. You can illustrate this by asking a student how she might respond if asked at a deposition: "Tell me everything you learned in the first year of law school about civil procedure." This question is so broad that the student can not give complete information in response. People can simply not remember everything that happened in a year long or semester long course.

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To give the students practice sub-dividing broad topic into chunks that are the appropriate size for T-Funnels, you might ask them what topics they would ask about if they were deposing a classmate and wanted to know everything that that classmate learned in the first year civil procedure course. Wrestling with this question illustrates that it may require considerable effort to break down a broad topic into smaller topics that will work for T-Funnels, and there is no one "right" way to do so.

=============================================================Exercise - Responding to the long narrative answer

Deponents often provide a long narrative answer to an open question at the beginning of a T-Funnel. For example, a deponent asked "tell me all the problems you had with my client at work?" may give a long narrative answer that goes on for several minutes and contains a significant amount of important information. Students are often uncertain how to respond to these long narrative answers. If you play the role of a deponent and give such an answer, you can then discuss the following with the class:

* How to take notes. In part, students have difficulty with long narrative answers because they do not know how to take notes efficiently at deposition. If they try to write down everything the deponent says, they will quickly fall behind and feel overwhelmed. If they write down nothing, they will not be able to follow up on the subjects and events mentioned in the narrative answer. You can explore this dilemma with the students and have the class come up with potential note taking techniques that might solve it. For example, the student's can practice taking down just enough information to thoroughly follow up on the topics mentioned in the long narrative answer. The students may also want to divide their note pad in half, with the topics that are relevant to the current T-Funnel on one half and topics for subsequent T-funnels on the other half.

* How long narrative answers tend to draw the questioner of the topic off the initial T-Funnel. Because a long narrative answer tends to include interesting topics that are unrelated to the initial T-Funnel, it is easy for the students to pursue an unrelated topic and fail to complete the initial T. Students should be aware of and guard against this tendency.

=============================================================Exercise - Responding to the brief narrative answer

Deponents often provide a very short answer to the first one or two questions at the top of a T-Funnel. For example, a deponent asked "tell me all the problems you had with my client at work?" may give a very brief answer such as: "He was late to work." After receiving one or two of these

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short answers, students often shift to closed questions rather than pushing the deponent with additional open questions until that deponent's memory is exhausted. As a result the students may fail to uncover information that would have come out had they continued on with open questions. Students may fail to "push" the deponent by asking repeated open questions because it is rude to do so in a social setting, and the feeling that further open questions would be rude carries over into the deposition.

To get students to appreciate that they may fail to push deponents at the top of the T for fear of being rude, you may want to try a "T-Funnel at a cocktail party" exercise. Have two students imagine that they are a cocktail party. Student #1 must T-Funnel student #2 on all the reasons student #2 believes she did not get better first year grades. (Because honest answers might embarrass Student #2, you may want to permit Student #2 to give false answers.) This exercise usually illustrates quite well that it is extremely rude to T-Funnel in social settings. It helps the students to understand why they are reluctant to push a deponent with open questions at the top of a T in deposition. When the students know why they feel uncomfortable at deposition, they may be able to overcome their discomfort more easily.

=============================================================Exercise - The T-Funnel as a routine questioning pattern.

Since a T-Funnel can be used for any topic or event, this pattern can potentially be employed through out a deposition. To illustrate the potentially routine application of the pattern, you might try to have the students think of a deposition answer that could not be followed up on with one or more T-funnels. (We think there are very few such answers.) Almost any "Yes" or "No" answer can be followed up with a "tell me all the reasons you think the answer is [yes or no]" sort of T-Funnel. Any answer that mentions a topic or event can obviously be followed up with appropriate T-funnels. Any "I don't remember" response could be followed up with a "tell me all the things that might refresh your recollection" T-Funnel. And even an "I don't know" answer might be followed up with a "tell me all the people who you think might know" or a "tell me all the things you would do if you wanted to find out" sort of T-funnel. A brief exercise such as this can emphasize that when an answer is important a student must make a strategic decision about whether or not to follow up with one or more T-Funnels.

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3. Basic Skills - Deposition Preparation and T-Funnel Questioning

After the students have had a chance to practice the T-Funnel technique, we want them to appreciate that it is during preparation that they need to identify many of the events and topics that they will T-Funnel, as well as many of the

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closed questions that they will ask a the bottom of the T. The following are illustrative examples of the kind of exercises we use to develop these points. You may use one or moreof them and/or compose additional or alternative exercises.

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Exercise - T-Funnels and preparation/closed questions at the bottom of the T in Johnson v. General

Assignment for Class - For class on [date], please read pages 206-211 in Chapter 17 and review the materials in the Johnson v. General case.

Assume you represent the defendant General. Please bring with you to class:

1. A chronology of the facts of the case.

2. A list of the 2 most critical factual contentions from your client’s perspective. For each contention, list of all the circumstantial evidence you are now aware of that tends to prove it.

In class, get a list on the board all of the propositions that the students think are crucial for General to prove. Then, for an item of evidence the students have identified as tending to prove one proposition, have a student articulate the inferences connecting the evidence to the proposition. After having set out the inferences, you can ask the class to identify the “especially whens” and “except whens” that might make the inference stronger or weaker. You can then have the class identify the T-Funnels they might use, and the closed questions at the bottom of each T-Funnel, to search for potential evidence to strengthen or weaken an important inference. This exercise gives the students a chance to practice identifying potential helpful evidence and allows them to practice turning potential evidence topics into T-Funnels. You can then focus another item, of evidence or another proposition, and repeat the process as often as you think is productive.

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Exercise - T-Funnels and preparation/closed questions at the bottom of the T in Jackson v CTE

Assignment for Class - In preparation for class on [date] please do the following:

1. Read pages 206 - 209 and 212-215 of Chapter 17. In addition, review the materials on the case of Jackson v. CTE.

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2. Assume that one of the factual propositions we hope to prove in our case against CTE is that: In 20XX, CTE recruited and enrolled students in the seven-month computer programming course who were unqualified to become computer programmers. We know from our clients, that CTE’s admissions process consisted of a written application, a written test and an interview with an admissions counselor. Using historical reconstruction and explanatory hypotheses generate a written list of topics you want to inquire into to possibly obtain evidence tending to prove the factual proposition described above. Indicate in the list which method you used to generate each item of evidence. Bring this list to class; we will collect it at the end of class.

3. Be prepared to use T-funnel questioning to depose two witnesses: (1) the director of CTE’s admissions office in 20XX and (2) a former CTE student who took the same computer programming course around the same time that our clients did, but was never able to find a computer programming job. Use the list described in paragraph 2 above to develop closed questions for the bottom of your T-funnels.

In class, you call on the students and list on the blackboard all the topics they identified using historical reconstruction that might be inquired into to prove this particular proposition. You can then repeat the process for explanatory hypotheses. You can also generate a list from the students of the closed questions at the bottom of the T for several of the topics. This helps each student to learn that different modes of thought will help them to be more thorough in preparation. This exercise also serves as a powerful example of why they need to engage in this process of identifying topics and closed questions at the bottom of T-Funnels during preparation. Students recognize that on the fly at deposition they would have neither the time or the ability to come up with an exhaustive list of potential topics.

You can also have the students use the T-Funnel technique to question you (or a co-instructor) as the deponent on the topics that the studnets have identified. You can either assign a student to make objections or make them yourself by playing dual roles as deponent and opposing counsel. As the questioning proceeds, you and the group of students provide feedback and critique on the questioners T-Funnel technique and responses to objections.

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4. Integrating Responding to Evasive Answers and T-Funnel Questioning

After undertaking exercises related to T-Funnel questioning and preparation, we have the students read Chapter 10 on responding to evasive, forgetful and uncertain deponents. In class, we introduce this skill by using one or more of the following exercises.

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Exercise – Transcript Analysis

Assume that in a will contest case, the contestant, a beneficiary under a prior will, contends that Ms. Jones' last will is invalid because Jones lacked testamentary capacity. In making that contention, the contestant asserts that Ms. Jones lacked the mental capacity to remember her relatives. A lawyer for the contestant is now deposing a nurse who saw Ms. Jones in the hospital a week before Ms. Jones died. Look at the transcript below. In what ways is the lawyer's questioning arguably effective? How might the lawyer’s questioning have been improved?

1 Q. Did Ms. Jones say anything concerning her daughter just before she as taken to the operating room?

2. A: I don't know

3. Q: Do you mean you don't know or don't remember?

4. A: I don't know.

5. Q: Have you heard anything about any statement that Ms. Jones made concerning her daughter just before she was taken to the operating room?

6. A: No.

7. Q: Okay. Did you see Ms. Jones after she came back from the operating room?

Suppose this deposition had been taken by counsel for the estate. Would your analysis of the lawyer’s performance change? Why or why not?

When reviewing this short transcript, the students should recognize that the questioning lawyer does a good job in distinguishing between “I don’t know” and “I don’t remember.” The questioning lawyer also searches for potential hearsay knowledge (question 5). On the other hand, the questioning lawyer’s search for hearsay evidence is incomplete. The lawyer does not ask the deponent if the deponent heard or read anything about Ms. Jones concern for her daughter. This exercise is very short and is often useful when introducing the students to the importance of looking for hearsay information.

=============================================================Exercise - Deponent Hides the Important Evidence.

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Deponents sometimes do not reveal important evidence in response to open questions at the top of a T-Funnel. Deponents may reason that since they were not specifically asked about a particular fact, they have not lied by failing to mention it. To illustrate this phenomenon, you might assign one member of the class to T-Funnel a topic in a case the class is familiar with and ask another member of the class to play the role of deponent. Outside the hearing of the student taking the deposition, instruct the student playing the role of the deponent to give expansive answers to open questions at the beginning of the T-Funnel, but not to volunteer a certain item of information unless specifically asked about it through closed questions at the bottom of the T. Through the expansive answers to the initial questions, the student/deponent should try to create the impression that she has given complete information on the topic, to discourage the deposing student from following up with an exhaustive series of closed questions. Often, the deponent is able to avoid revealing a specific fact by using this strategy. This exercise tends to illustrate that closed questions at the bottom of the T and a "Have you now told me everything" question at the end of a T-funnel tend to make it much more difficult for a deponent to withhold important information, while still convincing herself that she has answered honestly.

=============================================================Exercise - "Can you stay on the T-Funnel threesome"

One student is deposing counsel, one student is defending counsel and one student is the deponent. Deposing counsel is instructed to complete a T-Funnel on a topic in a case with which the class is already familiar. The defending counsel's job is to try to use objections and instructions not to answer (legitimate or frivolous) to try to distract and confuse the deposing counsel and prevent her from completing from the T-Funnel. (You may want to act as deposing counsel the first time to show the students what you want them to do in that role.) The deponent is instructed to try to do the same thing with argumentative and evasive answers, and by volunteering information outside the scope of the T-Funnel. Deposing counsel must complete the T-Funnel. This exercise tends to help deposing counsel practice not getting thrown of a T-Funnel. It also provides students with practice responding to objections and evasive answers.

=============================================================Exercise - T-Funnels and Evasions in Jackson v. CTE

Assignment for class.

Assume that we continue to represent the plaintiff in Jackson v. CTE. We hope to prove the following factual propositions:

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1. In 20XX CTE's career services office did not do an adequate job of searching for potential employers and job openings for CTE graduates.

2. In 20XX CTE's career services office received complaints from employers about the CTE graduates they hired.

In preparation for class on [date], please do the following:

1. Read Chapter 10. 2. Be prepared to use T-funnel questioning in deposing the director of CTE’s career services office with respect to propositions 1 and 2 above.

3. Bring to class a written list of the topics that you will inquire about with closed questions at the bottom of each of your T-funnels to elicit helpful evidence for each factual proposition.

Witness instructions for students playing the role of the director of career services for factual proposition number 1 above:

On [date] students 1, 2, 3, 4, and 5 should be prepared to assume the role of CTE’s career services director and be deposed with respect to the factual proposition that in 20XX CTE's career services office did not do an adequate job of searching for potential employers and job openings for CTE graduates.

In preparing for this role do the following:

Make a list (on your own or with one of the other people who are getting this assignment) of what actions you would have had CTE career services personnel undertake if you had wanted the career services office to find jobs for CTE graduates.

When your list reaches 10 to 12 actions you would have had CTE placement personnel undertake if you were an adequate career services director, eliminate 5 or 6 matters and assume that these are things that CTE’s career services office did not do.

When you are questioned about what actions CTE’s career services office took in searching for potential employers and job openings for CTE graduates, try using the various evasive response ploys described in Chapter 10 to withhold the information

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that CTE’s career service office did not take the 5 or 6 matters you eliminated from your list. Of course, if you’re pinned down by careful questioning you should admit the failure.

To avoid giving the exercise an air of total unreality, be evasive only on those matters you eliminated from your list.

Witness instructions for students playing the role of the director of career services for factual proposition number 2 above:

On [date] students 6, 7, 8, 94, and 10 should be prepared to assume the role of CTE’s career services director and be deposed with respect to the factual proposition that in 20XX CTE's career services office received complaints from employers about the CTE graduates they hired.

In preparing for this role do the following:

Make a list (on your own or with one of the other people who are getting this assignment) of what kinds of complaints employers might have made to CTE’s career services office about CTE graduates. When your list reaches 10 to 12 types of complaints, eliminate 5 or 6 types of complaints and assume that these are the types of complaints you do not want to admit to unless asked about directly.

When you are questioned about what kinds of complaints employers might have made to CTE’s career services office about CTE graduates try using the various evasive response ploys described in Chapter 10 to withhold the types of complaints you eliminated from your list.

To avoid giving the exercise an air of total unreality, be evasive only on those matters you eliminated from your list.

This exercise combines the use of deposition preparation techniques, T-Funnel questioning and responding to evasive deponents. The exercise also reinforces how the work product from deposition preparation is translated into questions at a deposition. Students playing the role of deponent learn how to try to withhold information by being evasive; if they are successful (which they often are), they can explain how they withheld information to the deposing student. Understanding how deponents try to withhold information with evasive responses makes students better at responding to such answers.

=============================================================Exercise - T-Funnels With Respect To Hearsay Knowledge and Opinions (See Chapter 2, sec. 4 D and E and Chapter 15.)

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For class please read Chapter 10.

As counsel for the plaintiffs, be prepared to depose a former secretary who you believe worked in CTE’s administrative office in 20XX to find out:

Whether she is still employed at CTE and, if not, why she is no longer employed by CTE.

If in 20XX CTE’s director of admissions knew CTE was admitting unqualified students into CTE’s computer programming course

If during 20XX CTE enrolled persons who had not graduated high school in its computer programming course.

Students 1, 2, and 3 should be prepared to play the role of the CTE secretary.

Witness Instruction For CTE secretary

You no longer work for CTE. You left for three reasons: (1) You thought CTE was not paying you an adequate wage, (2) You found a higher paying job and (3) You believe that CTE was racially biased in it hiring policies. This latter belief was based upon you frequently overhearing the vice president in charge of the office making racial slurs about Asians. You do not want to reveal reason (3) at the deposition. Try to use evasive answers or non-responsive answers to withhold this information. If the questioning lawyer asks you a direct question, however, you must reveal this information. If the questioner does uncover the reason relating to racial slurs, provide the questioner with specific instances of overhearing such comments only if the questioner presses you to do so.

With respect to whether in 20XX CTE’s director of admissions knew CTE was admitting unqualified students into CTE’s computer programming course indicate that you don’t know. Respond in the same way if you are asked if you believe the director of admissions knew this or if you are asked if you ever heard anything so indicating. However, if asked whether you ever read or saw anything so indicating, say that about a month before you left work at CTE you saw a memo to the director of admissions from CTE’s office in New York that said something about placement problems created by admitting unqualified students. If asked for the details of the memo, say that you only remember that it came from the New York office and asked for a response from all directors of

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admissions. You saw the memo on the desk of the secretary of director of admissions when you were filling in for her on a day that she was ill.

With respect to whether in 20XX CTE enrolled persons in its computer programming course who had not graduated high school, again indicate that you don’t know. If asked if you ever heard anything indicating that CTE had enrolled students in the computer programming course who had not graduated from high school, say that you often overheard the director of career services tell the director of admissions that CTE should stop admitting persons without high school diplomas in the programming course because the career services office could almost never find jobs for such persons. If asked to provide examples of such conversations be prepare to provide the details of two such conversations.

This exercise combines deposition preparation, T-Funnel questioning and responding to evasive deponents. In this exercise the deponent is evasive, at least in two areas, by drawing a distinction between what they “know” and having seen or heard something indicating a fact is true. This exercise gives students practice responding to this particular type of evasive answer. Again, students playing the role of deponent learn how deponents may try to withhold information by drawing fine distinctions.

=============================================================

5. Basic Skill – Timeline Questioning

We now shift the students’ attention to the basic skill of Timeline questioning. We assign Chapter 3 in the text and we use one or more of the following exercises to give the students a chance to practice and receive feedback on their Timeline questioning. As we use these exercises, we again give the students opportunities to practice responding to objections and evasive answers.

As we go through these exercises, we explicitly discuss with the students that the decision of whether or not to complete a Timeline is always a strategic one. We emphasize that when taking a deposition, the student might consciously decide not to complete a Timeline for a variety of reasons, e.g. the questioner concludes that the deponent can not remember events in chronological order, the questioner concludes that the deponent knows little or nothing about the Timeline, or the questioner consciously decides to temporarily abandon the Timeline to purse another topic or event. We also emphasize, however, that the student should not fail to complete a Timeline because they have been distracted or thrown off track by the deponent or the actions of opposing counsel.

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A we go through these exercises, we frequently stop the exercises to provide feedback and discuss the common issues that arise when using the Timeline pattern, as discussed in Chapter 3 of the text. For example, we may stop the exercises to discuss:

* Why the student has decided to complete or not to complete a Timeline

* The benefits of Timelines

* Avoiding broad or vague topics

* Avoiding gaps in the Timeline

* Establishing the Timeline’s beginning and end

=============================================================Exercise – Timelines from the student’s “own case”

As discussed in the Introduction to this manual, at the beginning of the course we divide the students into pairs and require them to compose their “own case” (either from their own experience or a vicarious experience) in which they can act as deponent. We distribute copies of these cases to the entire class.

In the exercise, we ask one student to act as a deponent in her own case and have the class as a whole obtain one or more Timelines from this student. The instructor or a student makes objections as defending counsel and we encourage the student playing the role of the deponent to throw the questioner off the Timeline with evasive answers or by volunteering information beyond that called for by a question. You can repeat this exercise with a different student acting as deponent in a different “case.” You can also break the class into small groups and repeat the exercise with students assigned to play the roles of questioner, deponent, defending counsel and critiquer.

=============================================================Exercise – Timelines in Johnson v. General

If you are using the Johnson v. General simulation, the instructor can play the role of the deponent and the class can practice by obtaining a Timeline from Johnson. Again, the person playing the role of the deponent should try to throw the questioner off the Timeline with evasive answers or by volunteering information beyond that called for by a question. You may also assign a student to make objections as defending counsel.

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=============================================================Exercise – Timelines in Jackson v. CTE

If you are using the Jackson v. CTE simulation, the instructor or one or more students can play the role of Jackson. You can use this exercise before the entire class or in small groups. Again, the person playing the role of the deponent should try to throw the questioner off the Timeline with evasive answers or by volunteering information beyond that called for by a question. Again, you may also assign a student to make objections as defending counsel

=============================================================6. Using Documents at Deposition

At this point, we have the students read Chapter 11 on using documents and diagrams at deposition. We want the students to have an opportunity to practice using documents when we combine Timeline and T-Funnel as discussed below. Consequently, at this point using a document from one of the simulated cases, we explore in class how such a document might be used at deposition in connection with T-Funnel and/or Timeline questioning. We also explore what steps should be taken to use the document effectively at deposition and to make a clear record. =============================================================

7. Basic Skills - Combining Timeline and T-Funnel Questioning

To this point we have practiced T-Funnel and Timeline questioning separately. Of course, in an actual deposition the questioner faces many strategic options as she shifts fluidly between these patterns. You can examine the many strategic decisions involved as deposition questioning unfolds by having the students consider the following exercise from the Palmer v. Dunbar case, or a similar exercise from another case.

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I’d like to find out what kind of training you received from Ms. Palmer . When did you first meet Ms. Palmer?

On my first day at University books.

Please tell me everything that happened in your first meeting with Ms. Palmer?

She showed me around the store, acquainted me with the book department, the music department and the processes ordering new books and CDs.

What else happened in that first meeting with Ms. Palmer?

She explained the store policies and told me about the new adult book section. She was very unhappy about the existence of this section.

Beside Ms. Palmer showing you around the store, acquainting you with the book department, the music department and the processes ordering new books and CDs and explaining store policies and telling you about the new adult section and her unhappiness with it, what happened your first meeting with Ms. Palmer?

Nothing that I can recall right now.

Decisions Now Facing the QuestionerIn this example, the lawyer’s last question constitutes a choice to move to the

questioning to next event in the deponent’s version of her training by Palmer. However, in making this choice, the lawyer chooses not to do any of the following. 1. Follow up the wiggle I can’t recall right now.2. Go to the bottom of the T and ask about training in other helpful evidence subjects such

as the knowledge areas or specialties of other employees, the store’s customer base, the procedure or process for determining what books to put on display, ability to relate to younger customers, etc.

3. Use a T-Funnel to learn more abut precisely what training Stimson received in the first meeting regarding each of the matters on which she was trained. For example, what was Stimson told about the book department?

4. Cement each of the helpful answers she has received.5. Use a T-Funnel to follow up only on prior answers that constitute helpful evidence.6. Explore prior answers containing harmful evidence, e.g. unhappiness with the adult

section7. Seek to have the deponent admit that Palmer was very knowledgeable about the store

and its operations

Palmer v. DunbarThe lawyer represents Palmer and is deposing Mary Stimson who replaced Dunbar. Stimson still works for Dunbar and has been identified by Dunbar as one of his potential witnesses. One of the lawyer’s goals is to obtain Stimson’s version of what happened during the week that the Stimson and Palmer overlapped at the store. Another goal is to uncover evidence that Palmer was very competent. To this end, the lawyer hopes to unearth evidence that Palmer was very knowledgeable about books, music, and store policies. An additional goal is to uncover evidence that Palmer was very cooperative and not insubordinate or combative. The lawyer’s final goal is to learn whether Stimson has any evidence to support Dunbar’s contention that Palmer did not relate well to younger customers and was continually insubordinate toward to the store manager, Mr. Jones.

Initial Questioning PatternThe lawyer starts the questioning with a combination of Timeline & T-Funnel questions

After this first meeting with Ms. Palmer, what was the next occasion on which you received training from Ms. Palmer?

Well . . . .

=============================================================Additional Exercises Combining Timeline and T-Funnel Questioning

We next use one or more of the exercises below to give the students an opportunity to combine the Timeline and T-Funnel patterns, while at the same time responding to objections and evasive answers.

=============================================================Exercise – Combining T-Funnel and Timeline Questioning

Assignment to students: Review the material in the case of Palmer v. Dunbar, prepare a chronology of the facts, and be prepared to depose Mary Stimson about what happened during the time that Palmer and Stimson overlapped at the University Book Store. You should have a list of the subject or subjects on which you will try to obtain a Timeline and those topics that you will T-funnel.

In this exercise you can first get a list from the entire class of all the Timelines and T-Funnels that might be inquired into during the Stimpson deposition. You can then play the role of Stimpson and have the class as a whole conduct the deposition, i.e. one student begins the deposition and then next student picks up where the former student left off. As the deponent, you can try to draw the questioner off topic by being evasive, combative or forgetful. You can assign one student to assert objections. We frequently stop the exercise to have the students reflect on the strategic decisions that they have made as the questioning develops, why they made these strategic decisions and the alternative strategic decisions that they might have made.

=============================================================Exercise – Combining T-Funnel and Timeline Questioning: Practice & Procedure Deposition

An additional or alternative exercise you may use to have students practice Timeline and T-Funnel questioning is one which asks student to obtain the practice that CTE uses in selecting individuals for employment as teachers, laboratory assistants, tutors, instructional aides or teaching assistants in the Computer Programming Curriculum. If you choose to use this exercise, when assigning this exercise ask the students read pgs. 240-248 in Chapter 20 Practice and Policy Depositions. In this exercise, you can ask one or more students to be prepared to assume the role of CTE’s Director of Education by reading the Overview or Summary of Jackson v. CTE and the Memorandum to the file in CTE written by plaintiffs’ counsel. (These documents are located in the CTE case file located at the end of this manual.)

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Below is a sample of a written assignment you might use when asking the students to be prepared to conduct this exercise. You can conduct the exercise in both the “round robin” format and/or by breaking the class into groups.

Assignment for class: Tomorrow we will continue our discussion of combining Timelines and T-Funnels by exploring how these two questioning patterns can be used to learn what steps an organization typically follows when undertaking an activity that may prove relevant to what happened your case.

In CTE, assume that one of Jackson’s factual contentions is that CTE did not employ competent instructors to teach its courses and that you have been asked to depose the person most knowledgeable at CTE regarding the following:

CTE's practices, procedures, and/or steps for selecting individuals for employment as teachers, laboratory assistants, tutors, instructional aides or teaching assistants in the COMPUTER PROGRAMMING CURRICULUM from January 1, 1993 to present.

In preparation for class please read Chapter 20 pages 240-248. In addition, prepare a written list of the topics you might explore to obtain evidence tending to prove the above contention.

Students 1, 2, 3, and 4 will be deposed as CTE’s Director of Education. Each should be prepared to describe the CTE’s selection process.

=============================================================8. Basic Skill – Deposition Preparation

After combining T-Funnel and Timeline questioning, you can return to the basic skill of deposition preparation. Although the students have already had some exposure to this skill, they profit from preparing a deposition outline from scratch. You can have the students read Chapter 17 and come to class with a list of what they see as the critical propositions in the Palmer case (or any other case you select). You can then discuss with the entire class what the critical propositions might be in the Palmer case. You might then focus one critical proposition and have the class as a whole go through the steps outlined in Chapter 17 for the preparation of a deposition outline. You can begin by having the class review the chronology in the Palmer case and identify the topics and events that might produce helpful evidence for the critical proposition. You can have a common outline projected on a computer screen to record the topics as they are identified by the class. You could then discuss how these topics and events might be inquired into via T-funnels or Timelines (or a combination of both) in the Dunbar deposition.

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Next, you can have the students review the documents in the Palmer case and identify additional topics and events for the common outline that might be the subject of T-Funnels or Timelines. Then you could have the class use historical reconstruction, explanatory hypotheses, generalizations and the other techniques in section 3 of Chapter 17 to identify additional topics and events that might provide helpful evidence for this critical proposition. Finally, you might discuss how to develop “prompts” for the topics the class has identified, as discussed in section 5 of Chapter 17, and record these prompts in the common outline. You can end the preparation with the entire class by having them identify topics and events that they might inquire into to uncover evidence supporting the adversary’s case, as discussed in section 4 of Chapter 17.

We have found that the above process of working through the preparation of an outline before the entire class is essential to allow the students to use the conceptual material in Chapter 17 to prepare an effective deposition outline.

After the students have had a chance to see how the preparation process proceeds, you can have them, either individually or in small groups, focus on another critical proposition in the Palmer case and repeat the preparation process, and record their results as they update the common outline. You can then meet with the entire class or with the students individually to discuss the completed outline.

Either as the deposition outline develops or after it is relatively complete, you can discuss with the students the order in which they might take up the topics in their outline. You can discuss topics that might be covered in background questioning (as discussed in Chapter 12), and as the deponent’s version of significant events is elicited. You might also discuss what topics might be addressed later in the deposition, so as to avoid antagonizing the deponent early on or educating opposing counsel.

We usually take several (4-6) two hour classes to have the students work on preparing a deposition outline.=============================================================9. Videotape Exercise at Conclusion of Unit One

To conclude unit one, you can have the students conduct a videotape deposition outside of class, either using the deposition outline they have just prepared or by having them prepare another outline for a different witness. In our course, an instructor plays both the role of the deponent and opposing counsel. This dual role allows the instructor to make sure that the students will have an opportunity to respond to objections and evasive answers at the deposition.

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You can have the students do the deposition individually or in pairs. After the videotape is complete, time permitting, you can review some or all of the tape with the student.

=============================================================Illustrative Videotape Assignment #1

Assignment for the week of------.

Class will not meet this week. You will be taking a [Insert length of deposition] videotaped deposition of Dunbar in the Palmer v. Dunbar case. After your admonition, do a brief background examination, and then proceed as you would in an actual deposition. Do not rush to try to complete the entire deposition in two hours. You will not be able to cover all the topics in your deposition outline in the allotted time. However, you should question about the topics you do cover as thoroughly as you would in an actual deposition.

Self Critique of Dunbar Deposition.

You are to write a self critique of your performance in the Dunbar deposition. Your critique should include a brief general description of what you think you did well and areas where you could have done better. This description should address all the areas we have covered to this point in the course, e.g. T-Funnels, Timelines, responding to evasive answers, etc.

In addition to your general description, you should select a specific portion of the deposition where your performance could have been better. For this portion, describe in detail why your performance was lacking and what you would do to improve if you had the opportunity to repeat the deposition. Finally, you should identify a segment on the tape that you feel reflects your best work in the deposition. You should be prepared to play and discuss that portion of the tape in class on -------.

=============================================================Illustrative Videotape Assignment #2 Note - This assignment is from a live client course and is based on a case in which the students will take depositions at the conclusion of the semester.

Assignment - Video Exercise #1

By Tuesday January ---, please sign-up for a [insert length of deposition] time slot to undertake Video Exercise #1.

The Goals of the Exercise

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This exercise is designed to help you review and receive feedback on the principal matters covered thus far during the course. In particular, the exercise should help you review and receive feedback on the following:

1. The process of preparing a deposition outline and identifying topics you will inquire about to try to obtain circumstantial evidence tending to prove a critical proposition.

2. The use of T-funnel & Timeline questioning patterns to both learn a deponent’s version of events and to uncover evidence tending to establish one or more of your factual contentions.

3. The strategic decisions you make when using T-funnel & Timeline questioning patterns to learn a deponent’s version of events and to uncover evidence tending to establish one or more of your factual contentions.

4. Responding to evasive answers and objections from opposing counsel. The use of questioning patterns that may be appropriate when a deponent provides you with non-responsive answers or claims that he or she cannot remember.

5. The proper taking of notes during a deposition.

6. The effective and proper use of documents when seeking to learn a deponent’s version of events and to uncover evidence tending to establish one or more of your factual contentions.

The Exercise Itself

The exercise itself will involve your deposing Larry Guzman, the Jones Ford representative described in the Dominguez complaint. Your informational goal is to obtain the deponent’s version of what happened during the time he met with the clients AND also to uncover evidence that Guzman spoke to the clients either exclusively or primarily in Spanish. You will have 35-40 minutes to question Guzman. During this time period, you should spend 5 minutes or so obtaining Guzman’s background and the remainder of your time starting to obtain Guzman’s version of his encounter with the clients. In this short time period, you probably will not be able to uncover Guzman’s full version. Don’t worry about not being able to obtain the full version; after all in the actual case doing so is likely to take more than an hour. One of the instructors will assume the role of Guzman.

Preparing For The Exercise

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You should prepare a deposition outline using the techniques discussed in Chapter 17 of the text.

Obtaining Feedback on Your Performance

After you have taken the deposition, you should within 24 hours take your videotape to one of the video rooms, review the tape and write a 2 – 5 page self-critique of your performance. You should then turn in your self-critique, together with your deposition outline and the notes you took during the deposition, to the instructor who played Guzman. You should at that time arrange with that instructor for a time for the two of you to review your tape.

Your Self Critique

We are asking you to first critique your own performance because the literature on how one becomes an expert strongly suggests that self-critiques are very helpful in developing expertise. Indeed, one characteristic of an expert is the ability to see significant patterns in the expert’s own work as well as in the work of others. The significant patterns in your deposition will concern how you went about preparing your deposition outline and how effective you were in using T-Funnels and Timelines to accomplish the goals of obtaining a deponent’s version of events and helpful evidence tending to establish the factual contention that the clients were Spanish speakers and Guzman spoke to them primarily in Spanish. The significant patterns concept will also apply to your responses to evasive and “I can’t remember” answers.

In critiquing your performance, think about each of the 6 goals listed at the beginning of this memo. Your critique, where appropriate, should refer to the time markers that appear on the video; doing so will make it easier for us to review the videotape together. Thus your critique should explicitly identify by counter time mark the place in the deposition to which you refer. For example, if your comment goes to a T-Funnel that begins at the three minutes and fifteen second time mark, your critique should note 3:15. Write down the time marker(s) and then set forth your comments about what you see as both the positive and negative aspects of your performance. Do not limit your comments to the negative.

=============================================================Sample Self Critique Of Performance During Videotaped Exercise

If you assign students to prepare a self critique they may ask you for a sample. The sample below is a an actual student critique in the Jones Ford exercise above. This critique is the best student critique we have ever received. The average student critique is not nearly so thorough. Nevertheless you may want to hand this sample out to encourage students to strive for excellence.

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Critique of Video Exercise #1

Circumstantial evidence

Background

I was able to uncover that Jones Ford did not require salespeople to be fluent in Spanish or Chinese, but that the dealership preferred fluency when making hiring decisions. In addition, I was able to determine that Guzman speaks, writes, and reads Spanish and developed this ability at home through communications with family and friends. I determined Guzman’s responsibilities and duties as a salesperson at both Bob Jones Toyota and Ford. I also discovered why Guzman moved from Jones Ford to Jones Toyota and now to Best Toyota.

Guzman’s version

It is interesting to note that the deponent does not remember meeting Gomez, but does remember meeting Dominguez. Although he could not remember specifics, I was able to get the deponent to explain what typically happened in the course of selling a car to a customer in November 1999. In addition, Guzman admitted that he only sometimes stayed with the customer while the customer met with Jimmy and that it was atypical for him to stay with a customer while the customer met with “the gals” in the Finance Office. He admitted that Jimmy did not speak Spanish, but that some of the ladies in the Finance Office did speak Spanish. Thus it would appear that if Guzman stayed with Jimmy while he spoke to Dominguez and Gomez, his role was that of translator. It is also important to note that Guzman spent probably ten minutes on a test drive alone with Dominguez and Gomez because he said that other salespeople did not go on test drives with him. Because we know Gomez speaks little English, the probability that Guzman spoke Spanish on the test drive is high.

Use of T-funnels and Timeline questioning to learn deponent’s version and uncover evidence

Background

After attending the deposition of Jones Ford’s General Manager I had some specific information as to Guzman’s background. Therefore I found it fairly easy to develop a set of T-funnel and Timeline questions about Guzman’s employment at Jones Ford and Toyota. I had closed questions prepared to explore his job titles, responsibilities and duties, the special skills required for the jobs, the length of time in each position, and the reasons for his leaving each

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position. Thus I think my use of T-funnels and Timeline questioning was fairly effective in obtaining background information.

At 2:44 I made good use of a T-funnel to explore Guzman’s responsibilities as a team leader at Best Toyota. After receiving his answers, I decided to T-funnel those responsibilities even further. I asked him to specifically describe what he meant by “overseeing four salespeople/leasing agents” and “finalizing sales or leases” (3:08). Similarly at 5:11 I asked the deponent about his responsibilities and duties as a sales representative at Jones Toyota. The deponent provided a long list of items, but instead of prying for more by asking “Were there any other responsibilities you had as a sales representative at Jones Toyota?” I left the line of questioning and moved straight into asking about special skills (5:17). This was very disappointing when I looked back on the tape. Not only did I not ask more open questions about the responsibilities and duties, I also failed to ask the deponent to explain his answers. This may have provided a perfect masking technique to determine Jones Fords policies and procedures on sales representatives without being obvious.

At 7:33, 8:10, and 9:02 I made good use of my notes by repeating the answers the deponent had given me when getting ready to ask an open question at the top of the T-funnel. Instead of simply asking “Did anything else happen?” I was able to repeat what the deponent had said to ensure that I fully exhausted the deponent’s memory. However, in an effort to determine the responsibilities and duties at Jones Ford (7:33), I repeated the responsibilities and duties of the sales representative position at Jones Toyota (5:17). Thus, not only did I fail to get an explanation the first time I heard these answers (5:17), I repeated the answers and again failed to explore the deponent’s earlier answers with the use of closed questions.

I was disappointed to see that I failed to follow up on some general answers with closed questions. For example, at 6:16 I asked the deponent why he left Jones Toyota. He said that he “wasn’t advancing.” Although I did ensure that there were no other reasons for his leaving, I did not ask the deponent to explain what he meant. In addition, I failed to ask why he decided to go to Best Toyota instead of another dealership. This happened again at 9:43 when I asked the deponent why he left Jones Ford. Although the deponent said that he was offered a better opportunity at Jones Toyota and the chance to make more money, I failed to ask any closed questions about the move to Toyota and didn’t ask the deponent to explain this “opportunity” in more detail. In addition, at 8:32 I asked the deponent how he went about searching for new clients. He said that he used the classified advertisements and the Internet, yet I failed to explore these two sources further.

Guzman’s Version

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This was more difficult because I was expecting the deponent to remember his dealings with Dominguez and Gomez. Thus I had to switch my line of questioning from specifics about Gomez and Dominguez to general questions about his typical sales at Jones Ford in November 1999. Overall I think I did a pretty good job asking open-ended questions and seeing where the deponent took me. I asked the deponent to tell me about what happened during his initial conversations with customers in November 1999 at Jones Ford (12:20), what happened during the typical test drive in November 1999 (20:16), what happened after a test drive (23:54), and what typically happened when the team leader met with the finance manager (29:19). I had a list of closed questions to ask as the sales transaction moved forward and I asked these questions when given the opportunity. However, there were holes left in the deponent’s version.

The first major hole was at 12:36. The deponent said that someone introduced Dominguez to him. I asked for the man’s name and the deponent replied that he didn’t know the man’s name. Although I doubted that there was a document that would help refresh his memory, I could have asked why the man introduced Dominguez to Guzman. Another major hole was at 19:50-20:16 when I decided to move past the typical initial conversation line of questioning. This was a result of irritation because the entire line of questioning seemed to depend on what each individual customer was looking for. In reviewing the tape, although I could see why it was frustrating for me at the time, I let the deponent win when I decided to move onto questions about test driving the vehicles.

I also failed to keep up open questions at 22:20. The deponent told what he usually discussed on the ten-minute test drive. Not only did I start asking closed questions before I exhausted the deponent’s recollection, I did not ask him to explain the answers he provided to the open questions. I also did not ask him to explain his answer of “typically not” when asked if he discussed leasing or buying options on test-drives (23:22). This was a large mistake because it would have been an opportunity to show that Guzman and the Plaintiffs were alone together for a significant portion of time and therefore may have been speaking Spanish. It would have been wonderful to discover what the typical test drive conversations entailed.

In my opinion, one of the strongest areas of the deposition was the discussion about Jimmy and his role in negotiations. Although the closed questions and T-funnels were fairly spontaneous, I was able to uncover that Guzman rarely stayed with Jimmy to negotiate. At 25:45 I asked whether the deponent stayed with Jimmy and the customers as they negotiated. He replied that he sometimes stayed. At 27:02 I was able to get the deponent to admit that he stayed if he needed to translate for Jimmy and the customers or if he had such a good rapport with the clients that the sale may be jeopardized if he left. Although I started to ask about Guzman’s presence when the typical customer dealt with the Finance Office personnel, we ran out of time. This would be

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another important T-funnel to determine which employees needed Guzman’s translation skills.

Conscious decision making when using T-funnel and Timeline questioning

Background

In exploring the deponent’s background I asked him about his previous employment and education. While asking about his employment history I covered his job titles, responsibilities and duties, length of time in each position, his reasons for leaving each position, and any special skills required for each job. I thought it was important to understand his sales experience and whether his Spanish fluency helped him obtain employment over other candidates. I was also interested in finding out whether he was fired from Jones Ford or Toyota. Thus when the deponent began to talk about his employment at Northridge Pontiac (6:28) I decided to not ask the detailed questions. At 6:45 I decided to move onto asking specific inquiries about Jones Ford. This was for a number of reasons. Not only did I feel the time crunch to move onto the deponent’s version of events, I also didn’t believe that the deponent’s work experience at Northridge Pontiac was really relevant or helpful to our case.

As I said above, at 2:44 I made good use of a T-funnel to explore Guzman’s responsibilities as a team leader at Longo Toyota. After receiving his answers, I decided to T-funnel those responsibilities even further. I asked him to specifically describe what he meant by “overseeing four salespeople/leasing agents” and “finalizing sales or leases” (3:08). Although I probably could have explored this line of questioning further, I decided to move on because I was more interested in his responsibilities at the Jones’ dealerships.

Guzman’s version

I utilized a lot of open questions to help me establish a chronology of what typically happened during one of Guzman’s sales in November 1999 at Jones Ford. Thus there were not too many occasions when I made the conscious choice to move on or park certain topics. I was interested in getting the full story and tried to follow most of the deponent’s answers to exhaustion. However there were some conscious choices made when the deposition was getting off track or muddled.

At 16:00 I asked the deponent to explain what typically happened when a customer came in looking for a car that fit his needs. Deponent responded “It depends.” Because I wanted to ask about the needs Dominguez had in particular, I parked this until later. From 17:20-19:30 I asked about the needs of a large family. The deponent took the cue and listed a number of other specific needs that customers may suggest. I further asked about traveling back east, to

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the desert, and to Mexico or Canada. Although the deponent said he would recommend four wheel drive, I failed to ask if there was anything else he would have suggested for a family traveling to Mexico.

At 16:53, in a valiant effort to ensure there were no documents that memorialized the meeting between Dominguez and Guzman I asked the deponent if he had any document of the individual conversations he has with customers. Instead of asking an open question, I said “You don’t have documentation of individual conversation with customers do you?” This was horrible because it suggested the answer I didn’t want.

I also decided to park a line of questioning for a brief period and then forgot to come back to it. At 22:30 I asked the deponent if he typically discussed the difference between leasing and buying while on a test drive. He replied “typically not.” Although I wanted to explore that, I also wanted to figure out all that was discussed during the test drive so I decided to park the questioning. However, I never made it back to that spot of the deposition.

Use of questioning patterns in response to non-responsive questions

I was faced with a variety of non-responsive answers. In addition to the typical “I don’t remember” or “I don’t know” response, I was also faced with many “It depends.” Overall I did a fair job chasing these down, but there were a few that escaped my attention.

At one point during the background questioning, I was forced to work “off the cuff.” At 5:17 the deponent asked me what I meant by “special skills.” Thankfully I knew in my mind the purpose for the question and I was able to ask the deponent closed questions. I was impressed that I was able to think of so many examples of special skills when my main interest was Guzman’s Spanish speaking ability. However, the closed questions allowed me to slightly mask my inquiry with questions about Jones Toyota’s requirements for previous sales experience and automobile knowledge.

When I asked the deponent the approximate date that he met with Dominguez he said that he didn’t know the date. Although I started to bracket (11:44 – “Was it in 1999?”), I decided that it may be easier to simply show the deponent the lease agreement and have him assume the November 8, 1999 date as correct. This was very effective and sped things along. When I asked him about his initial meeting with Mr. Dominguez he responded “What do you want to know” (12:20). I clarified what I meant by asking about how the two men met. This moved things along, but unfortunately the deponent did not remember specifics of the meeting (12:50 deponent responded that he had “no idea” what happened in the meeting with Dominguez). Thus I had to pursue his typical

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sales transaction in November 1999. This was followed for the rest of the deposition and was very effective.

I received a number of “It depends” answers during the initial chronology of typical sales events. Because the path the typical sale takes is dependent on the individual customer, it is probably hard for any salesperson to determine what a “typical sale” is. I followed the “It depends” answers by asking what it depended on and what happened under each circumstance (13:00; 14:40; 15:40). These answers were definitely the hardest to deal with because it was easy to forget a path or get lost in the overall chronology. I think I did a fair job getting through these answers.

I attempted to search for possible documentation that indicated whether Dominguez or Gomez test drove the vehicle by asking if the dealership kept a record of the test drive vehicles and who drove them along with a copy of the driver’s license and insurance papers. Although the deponent did not have this information, he suggested that the General Manager may know if the information exists (21:04). This would be helpful in further discovery requests and therefore was a great question to ask.

I was able to chase down a few other non-responsive answers in the last part of the deposition. The deponent did not want to say why he sometimes stayed with Jimmy and the customers while they negotiated (26:51). He said that he “sometimes stayed” and I was forced to chase down those occasions (27:02). The deponent also said that he usually “did not stay” with the customer when the customer went to the Finance Office (31:08). When I tried to pursue when he would go to the Office the deponent said that he “almost never” went to the Finance Office with a client (31:26). Before I could say “What were the typical occasions that you would go to the Financial Office with a client?” the time ran out.

Notes taking during the deposition

I would like to improve on my note-taking ability. I found my notes effective during the actual deposition but they made little sense when I looked back on them a few hours later. Although I was able to keep track of the deponent’s answers during the deposition, I did not write down my “off the cuff” questions. Without the help of the deposition videotape, I doubt that I would have been able to make sense of my notes. I now realize how important it is to write down the questions so that the notes make sense long after the deposition. However, this may be less crucial in practice because the deposition transcript would include all of the questions and answers.

I did not notice that the notes were ineffective during the deposition. I was able to record the deponent’s answers and could remember the question associated with each answer. Thus I was able to use the deponent’s answers to

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ask open T-funnel questions. For example, at numerous places in the deposition (7:30; 8:10; 9:02; 27:45; 29:00) I was able to repeat deponent’s answers to remind him what he previously said to ensure that I would not get the same answers when I asked the deponent, “What else happened?” The repetition of these answers also helped ensure that the record was clear.

Effective and proper use of documents

I only used one document during the deposition (12:00). Although I effectively used the exhibit to help refresh the deponent’s memory as to the date he met Mr. Dominguez, I did not introduce the document properly. I did not ask the court reporter to mark the document as “Exhibit One.” Instead I simply assumed the document was already market as Exhibit One and read the title and date of the document for the record.

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Unit Two

Basic Skills - Cementing Helpful Answers, Masking, Plausibility Chains, and Exploiting Bias

Integrated Skills - Strengthening Helpful Evidence and Responding to Implausibilities

In this unit, we concentrate on strategies and techniques for cementing helpful answers (Chapter 5), obtaining helpful admissions (masking, exploiting bias and plausibility chains – Chapter 4). We finish this unit by having the students take a second videotaped deposition.

1. Cementing Helpful Answers

We begin by having the students read Chapter 5 on cementing helpful answers. Even after reading the text, however, students may not understand the risks and benefits of cementing because they often do not fully understand the process of impeachment with deposition testimony at trial or the process by which a deponent reviews and signs a deposition transcript. As a result, we begin by briefly explaining these two processes to the students.

We then list the primary cementing techniques from Chapter 5 on the board, such as using leading questions to isolate a helpful answer, cementing the surrounding circumstances, offering a neutral explanation for cementing, and obtaining an evidentiary foundation. We then use one or more of the following exercises to give the students a chance to practice cementing. As we go through these exercises we stop to provide and elicit from the class feedback and comment.

=============================================================

Exercise – Round Robin with a student’s “Own Case”

Have one student act as deponent in her “Own Case.” In round robin format, the entire class deposes that student to obtain their version of significant events. At various points in the testimony you can ask a student to cement an answer using a specific cementing technique. After the student has cemented the testimony (perhaps with an assist from a classmate), you can then have a discussion about whether the class thinks it was strategically wise or unwise to cement the testimony. You can repeat the process to give several students a chance to use different cementing techniques and the entire class an opportunity to see and discuss several illustrative examples. For additional practice, you can

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then break the class into small groups, with a designated student indicating which answers are to be cemented and facilitating feedback and a discussion of strategic issues.

=============================================================Exercise – Transcript Analysis in Jackson v. CTE

Assignment for class: Read the attached deposition transcript keeping in mind the following: In this case, plaintiffs are trying to prove that CTE gave prospective enrollees in the computer programming course inflated statistics regarding CTE’s success rate in placing CTE’s graduates in computer programming jobs. Underline the deposition testimony that you would have cemented were you taking this deposition and come to class prepared to discuss what testimony you would have cemented and why, as well as what questions you would have asked to cement the testimony.10

Deposition Transcript of CTE’s Director of Career Services

9 BY MS. PERLUSS Okay. I want to move on to 10 compensation for career service employees. How 11 is -- I don't want to know your specific salary 12 or hourly wages. I just want to know how the 13 director is paid? By salary? By -- 14 A. I'm paid by salary. 15 Q. Okay. 16 A. And I also get a quarterly bonus. 17 Q. And what is that bonus based on? 18 A. Based on meeting our production 19 standards. 20 Q. What are your production 21 standards? 22 A. It varies according to the amount 23 of graduates that we have active. It changes 24 every quarter. 25 Q. Okay. 95

1 What do you -- can you give me an 2 example, please? 3 A. Each month we have to place so 4 many students, so if I had 140 students -- 5 Q. So a certain percentage -- 6 A. Correct.

10 The transcript has been excerpted from an actual case, although the names of the participants have all been changed.

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7 MR. LIU: Have you finished your 8 answer? 9 THE WITNESS: Yes. 10 BY MS. PERLUSS: 11 Q. So production standards are a 12 percentage of students that you have to place? 13 A. That's correct, along with other 14 things. 15 Q. What other things? 16 A. Employers on campus. Employer 17 letters. New companies that have come in. 18 Those types of things. 19 Q. Anything else that you can think 20 of -- 21 A. No. 22 Q. -- for production standards? 23 Okay. What other compensation 24 does the director receive? Salary, quarterly 25 bonus. . . 96

1 A. That's. 2 Q. No vacation time? 3 A. Oh, vacation time, yes. 4 Q. And benefits? 5 A. Yes. And sick days. 6 Q. What about the placement 7 coordinators, how are they paid? 8 A. They are paid salary, plus monthly 9 commissions. 10 Q. And the monthly commissions, can 11 you elaborate on that? 12 A. It's based on how many employ -- 13 I'm sorry, how many students they place. 14 Q. Is it based on anything else? 15 A. No. 16 Q. So if these placement coordinators 17 place a certain number of students, then they 18 will receive a monthly commission? 19 A. That's correct. 20 Q. And does the commission -- are 21 there different amounts of commissions? 22 A. Uh-huh. It depends on how many 23 students they place. 24 Q. So for each student they'll 25 receive an increase in commission?

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97 1 MR. LIU: Why don't you explain what 2 the commission structure is and how it works. 3 THE WITNESS: Okay. 4 The commission structure is zero 5 to 15 students placed go the house, we say, 6 but. . . 7 BY MS. PERLUSS: 8 Q. Oh, okay. 9 A. They don't get paid for it. 10 Q. Okay. 11 A. Fifteen to seventeen it's $25. 12 Seventeen to -- 13 Q. Wait. Excuse me. Zero to 15 and 14 then 15 to 17? 15 A. Zero to 15 they don't get any 16 commissions. 17 Q. Yeah, but 15 overlaps with 15, so 18 I'm wondering -- 19 A. Okay. So 16 to 18. 20 Q. Okay. 21 A. They get $25 a head. I'm not 22 quite sure of the numbers. I have it there, 23 but it's approximately 16 to 18 they get $25 a 24 head. 25 Q. Uh-huh.

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1 A. 18 to 21 they get $30 a head. 2 Thirty-two to 34 they get $40 a head. 3 Q. Uh-huh. 4 A. They're required to place -- and 5 so on. 6 They're required to place 26 7 students a month, and at 26 students it's $55 a 8 head. 9 Q. And it's $55 a head? 10 A. Uh-huh. 11 Q. So now, when you say they're 12 required to place 26 students, what happens if 13 they do not place these 26 students? 14 A. Well, they don't -- they're -- 15 they don't get, you know, the bonus. Plus too, 16 that would be a disciplinary problem if it 17 continued. We -- the department works as a

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18 team. I mean it's very difficult in placement, 19 and we would -- I would do whatever I could, 20 and so would anybody else, to assist them to 21 make that quota. 22 Q. Okay. 23 So you have this many students 24 each month that are available to be placed? 25 A. Yes.

99 1 Q. Okay. 2 What exactly does to place someone 3 mean? 4 A. It means to place them in a 5 position. 6 Q. With an employer? 7 A. With an employer, in a full-time 8 position. 9 Q. Oh, full time. Part time wouldn't 10 count? 11 A. No, it would not. It has to be 30 12 hours or more. 13 Q. Okay. 14 A. In their field of study or related 15 field. 16 Q. Okay. 17 Can you please tell me what field 18 of study or related field means? 19 A. Hypothetically I have a 20 programming student that graduated in 21 programming. The ultimate goal would be to 22 place that student as a programmer. 23 Q. Uh-huh. 24 A. But there are many times that 25 companies want students to come in as a 100

1 computer operator. That would be a related 2 field. That would not be an infield placement 3 because they are not actually doing 4 programming. 5 Q. Can you give me examples of 6 related fields to programming that you would 7 qualify as related? Would a data processor 8 qualify as a related field to a programmer? 9 A. Uh-huh.

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10 MR. LIU: Yes? 11 THE WITNESS: Yes. 12 BY MS. PERLUSS: 13 Q. What else would qualify? 14 A. Data processor. Anything that was 15 computer-related. 16 Q. Okay. 17 So if someone were to do anything 18 on the computer, that would relate to their 19 field of study as a programmer? 20 A. If they were working in databases, 21 yes. If they were working in any type of 22 applications, yes. 23 Q. Okay. 24 Would a customer service 25 representative qualify as a related field of 101 1 study if they -- as a programmer? 2 A. If they were working with a 3 computer, yes. 4 Q. So if they were touching the 5 computer, that's -- 6 A. If they were doing -- 7 Q. -- sufficient? 8 A. -- data entry, they were working 9 in applications, yes. 10 Q. Okay. 11 Anything having to do with a 12 computer qualifies -- 13 MR. LIU: Objection. Misstates the 14 witness's testimony. The answer is on the 15 record. 16 MS. PERLUSS: Will you answer it one more 17 time just so we can be clear. 18 MR. LIU: Read back the witness's last 19 answer, please. 20 (Record read.) 21 BY MS. PERLUSS: 22 Q. Okay. 23 Can you tell me what kind of 24 computer services is required that -- that 25 qualifies as a related field?

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1 A. I'm sorry.

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2 Q. What kind -- 3 A. I don't understand that. 4 Q. What kind of computer work is 5 necessary to qualify as a related field to 6 programming? 7 A. If they were working with 8 applications, that would be considered a 9 related field. 10 Q. Anything else besides working with 11 applications? 12 A. Data processing, computer 13 operator. 14 Q. Anything else? 15 A. Administrative assistant, if it 16 was with a computer. 17 Q. Okay. 18 If they're working on Word or Word 19 Perfect, will that qualify? 20 A. As related, yes. 21 Q. Okay. 22 A. No, I'm sorry. If they were 23 working on Word, not Word Perfect, because 24 that's not what we teach. 25 Q. Okay.

103=============================================================

The student should at least consider cementing answers: (1) relating to the manner in which CTE personnel were compensated for placing a graduate and (2) indicating that CTE included in their placement statistics for computer programmers virtually any job in which a graduate used a computer, whether or not the job involved programming.

In class, we go through the transcript and ask students what answers they would cement and why, and then have them ask their cementing questions. We then elicit feedback and critique from the entire class. This exercise provides a vehicle for discussion of the strategic issues involved in cementing as well as multiple opportunities to practice and observe the use of the various cementing techniques discussed in the text.

=============================================================Exercise – Cementing answers from the students’ prior deposition

In addition to assigning the students to read Chapter 5, you can also assign them the task of identifying in their videotape two or three favorable answers that they might have cemented. In class, you can then ask

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students to play for the entire class the portion of their videotape showing the favorable answers the student wants to cement. After playing the tape, the class can discuss the various cementing techniques that might be used to cement the testimony and the student who took the deposition can practice cementing the testimony and receive feedback on her performance. This exercise has the same benefits as the previous two exercises.

=============================================================2. Masking

Although the text discusses plausibility chains and exploiting bias before masking, we take up masking first in the classroom. We do so because masking frequently involves the use of either a T-Funnel or Timeline questioning pattern, and taking up masking first therefore provides continuity with the material from unit one. In addition, the techniques for encouraging helpful answers are difficult for the students, and we ease into this material with masking because it is easier for the students to employ than either plausibility chains or exploiting bias.

We usually begin this section by having the students read pgs. 58-67 in Chapter 4 and Chapter 6.

When trying to identify specific helpful answers that they might want to obtain through masking, some students set their sights too high. That is, they try to get the deponent to admit something that is so damaging to the deponent’s case that they have little hope of success. (Instead of looking for a brick of helpful circumstantial evidence the students sometimes want to get the whole wall.) Other students struggle to identify any specific helpful answer that they might try to obtain from a deponent. Consequently, we begin the section on masking by discussing how the students can use the techniques from Chapter 6 to identify the specific helpful answers that they might try to get from a deponent through masking (or any of the other techniques discussed in Chapter 4).

We begin by setting out one of the crucial issues in the case in which the students have recently deposed a witness. We then ask the class for any existing evidence, e.g. an admission from the deponent or an item of evidence in one of the opposing party’s documents, that tends to prove this issue. We then help the class to set out the generalizations and inferences connecting an item of existing evidence to the issue it tends to prove, using the same format discussed in Chapter 6 of the text. We then have the class set out the “especially whens” that might strengthen the generalization. We then discuss with the students, the evidence they might try to get at deposition to support one or more of the “especially whens.” Finally, we have the class discuss how they might mask to try to obtain a single helpful answer at deposition to support an “especially when.” For example, we have the class discuss how they might try to obtain a favorable answer supporting an "especially when" by masking in the background or through the use of a T-Funnel or Timeline technique.

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Next, we turn to the technique of undercutting the opposition’s rebuttal. We first ask the students to make an argument our side would make based on an item of existing evidence we have already identified. We then ask the class to identify the likely rebuttal argument by the opposing party. We emphasize that a rebuttal argument is always possible, as noted in Chapter 6. We emphasize this point because students are sometimes reluctant to try to strengthen an argument based on circumstantial evidence because they explicitly or intuitively see the potential rebuttal. We want the students to understand that virtually no argument based on circumstantial evidence is immune to rebuttal. Therefore, they should not automatically abandon an argument when they see rebuttal. Instead, they should typically identify potential rebuttal, assess its probable strength and look for evidence to undermine it.

We next ask the class how we might cut off or undermine the opposition’s rebuttal. Finally, we ask the class to discuss how we might use masking to obtain answers at deposition to cut off or undermine the opposing party’s rebuttal.

You can repeat this illustration of the use of the Chapter 6 techniques as often as seems necessary.

For the next class on masking we give an assignment like the following:

=============================================================Class Assignment: For our next class, write down 3 helpful answers that you think might be able to obtain from the deponent in your recent videotaped deposition if you had another deposition session with that deponent. In class, be prepared to use the masking technique to question the deponent to try to obtain your three admissions. You may resume background questioning if you think would be helpful in your effort to mask.

=============================================================In class, we begin by having one student try to mask to obtain a single

helpful answer from the deponent (the instructor plays the deponent). We then have the class provide feedback and critique on the student’s performance. We repeat the process several times. We then break the students into small groups and have them alternate role of questioner, deponent and critiquer/ discussion facilitator.

3. Plausibility Chains

We give an assignment like the following to begin the section on plausibility chains.

=============================================================

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Assignment for class: On ----, we will begin to focus how to use a "plausibility questioning pattern" to encourage a deponent to provide a helpful answer. To prepare for class, read Chapter 4 pgs. 47-56. In addition, be prepared to comment on the questioning of deposing counsel in the transcript set out below.

Deposition Transcript in Haro v. Wendt Corp. Ms. Haro claims that she was terminated from her job with Wendt Corp. because she rebuffed sexual advances by her supervisor, Mr. Mario. You represent Wendt Corp. Wendt denies that any sexual advances were made and contends that Ms. Haro was terminated for poor work performance. Read the following deposition transcript of Ms. Haro.

1. Q: And you were assigned to work as a case analyst about six months before you were terminated, correct?

2. A: That’s about right, yes.

3. Q: And Mr. Mario remained your supervisor when you were assigned to your job as a case analyst, right?

4. A: Yes.

5. Q: Ms. Haro you told Ms. Fox about a month before you were terminated that you disliked working at your new role as a case analyst at Wendt, correct?

6. A: That’s true. But I still did the best that I could and I think my performance was fine.

7. Q: Has it generally been your experience that people who dislike their work would usually prefer to transfer to another assignment?

8. A: I suppose so.

9. Q: And you would have preferred to have been transferred from your job as a case analyst, correct?

10. A: I suppose so, but it might depend on where I was being transferred to.

11. Q: But you would certainly have considered a transfer to another job, correct?

12. A: Sure.

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13. Q: And you would have considered a transfer because you were not really enthusiastic about working as a case analyst, correct?

14. A: That’s true.

15. Q: Hasn’t it been your experience that people who are enthusiastic about their work usually do a better job than people who are not enthusiastic about their work?

16. A: I suppose that’s usually true.

17. Q: And because you weren’t really enthusiastic about your work as a case analyst, from time to time you paid less than 100% attention to your work as a case analyst, correct?

18. A: -----------

=============================================================We begin this class by reminding the students that they can use the

Chapter 6 techniques discussed in the classes on masking to identify helpful answers that they might try to obtain with a plausibility chain. We also remind the students that helpful answers obtained with a plausibility chain are typically only circumstantial evidence. Consequently, the arguments supported by these helpful answers are routinely subject to rebuttal, just as was the case with answers obtained through masking.

We then ask the students to comment on the questioning in the Haro transcript. The class discussion of this transcript requires the students to review and discuss many of Chapter 4’s techniques for effective plausibility chain questioning: e.g. using leading questions, using one fact questions, using qualifiers in questions, accepting less than perfect answers, and framing questions in terms of what usually happens. The transcript also illustrates that even if a deponent fails to give the ultimate helpful answer that you seek, your plausibility chain questioning often will provide other helpful answers. For example, in the transcript above the deponent may (or may not) refuse to admit in answer 18 that she paid less than 100% attention to her work, but the questioning lawyer has nevertheless obtained a helpful admission in answer 13. Hopefully the transcript will also illustrate that plausibility chains (like the masking technique) are usually designed to obtain one or more bricks of helpful circumstantial evidence rather than a single devastating admission that ends the case.

Of course, this transcript is not the only series of questions that might be used to try to get the deponent to admit that she was not attentive to her work. The class might suggest additional questions or changes to some of the questions in the transcript.

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Below is another plausibility chain exercise you can use. Hand out the list of vignettes below, each of which might be used to construct a plausibility chain.

=============================================================Plausibility Chain Exercise

(1) A deponent testifies that he was in an office on the third floor of building, heard a fire alarm, left his office and saw a fire at the end of a hall. He then testifies that as he started to go down the stairs he saw your client taking files from another office on the third floor. ( Your client denies taking the file.) Construct a plausibility chain to try to get the deponent to admit that he was scared when he allegedly saw your client.

(2) Assume that the deponent in number one has admitted that he was scared when he allegedly saw your client. Construct a plausibility chain to try to get the deponent to admit that he is unsure of whether the person he thinks he saw was carrying files or something else.

(3) Assume that Wendy has been the deponent’s personal secretary for five years. Construct a plausibility chain to try to get the deponent to admit that: (a) Wendy is reliable and (b) that Wendy gave the deponent a telephone message that Smith left with Wendy.

(4) Assume that the deponent has testified that she had been given 5 days to complete a 20 page report, but did not start on the report until 11:00 A. M. on the fifth day. Construct a plausibility chain to try to get the deponent to admit that the completed project she turned in on the 5th day was poorly done.

(5) Assume that a deponent has testified that a copy machine was running next to where he was standing when he heard your client make a harmful statement. Construct a plausibility chain to try to get the deponent to admit that the deponent is unsure of precisely what your client said.

=============================================================We then work out plausibility chains in (1) and (2) above with the entire

class. We first have the students identify an item of circumstantial evidence that tends to prove the ultimate admission. For example, in (1) above the ultimate admission is that the deponent was scared when he saw your client and an item of circumstantial evidence tending to prove that ultimate admission is that he was in a burning building at the time. We then connect the item of evidence to the ultimate admission via a generalization and search for “especially whens” which would make the generalization stronger. (The same technique used for masking, as discussed above). We then help the class turn the generalization and especially whens into a plausibility chain.

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After working through (1) and (2) with the entire class, we break the class into small groups and have each group work up and practice executing a plausibility chain for vignettes (3), (4) and (5). We then have the class reconvene as a whole and have each group put forth its plausibility chain for each vignette. This helps the students by providing multiple examples and by illustrating that there is more than one way to skin the plausibility cat.

In our next class assignment, we ask each student to assume that they have a second deposition session with the deponent from their videotaped deposition exercise. The students are assigned to do one or two plausibility chains with this deponent. (If you are in a live client class, you can ask the students to do chains for one of the witnesses in that case.) You can do a few chains in front of the entire class and then break the students into small groups.

4. Responding to Implausibilites

When students practice plausibility chains they realize that even an effective plausibility chain does not require the deponent to provide the desired answer. Deponents can, and often do, provide implausible testimony. Consequently, at this point, we often have the students read Chapter 9 in the text on responding to implausibilites. We then have them revisit some of the exercises we used for plausibility chains and explore how they might proceed if a deponent refuses to give the desired answer in response to plausibility chain questioning, and instead provides an implausible answer.

For example, you might revisit the five vignettes that were used to help the students develop plausibility chains. Have the students repeat their plausibility chain questioning for one vignette and you can play the role of deponent. Instead of providing the answer the students hoped for at the conclusion of the chain, you can provide an implausible answer and discuss with the class how they might then proceed. For instance, in vignette (1) above you might testify that you heard the fire alarm and saw the fire and smoke, but then testify that you were not at all afraid as you left the building. You could then explore with the class the options discussed in Chapter 9 when implausible testimony arises, namely, asking questions that might magnify the implausibility, checking for explanations and delaying any inquiry relating to the implausibility.

5. Exploiting Bias

We next have the students read pgs.56-58 of Chapter 4 that deal with exploiting bias.

You might again begin by reminding the students that they can use the Chapter 6 techniques discussed in previous classes on masking and plausibility chains to identify helpful answers that they might try to obtain by exploiting bias.

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You might also remind the students that these helpful answers are typically only circumstantial evidence, and that the arguments supported by these answers are subject to rebuttal .

In class, we discuss the phenomenon that circumstantial evidence frequently “cuts both ways,” i.e. the same item of evidence can support one argument for a plaintiff while at the same time buttressing a different argument for the defense. The two examples in the book demonstrate this “cutting both ways” phenomenon, and we review them to help the students understand this phenomenon. We then explain that the exploiting bias technique is premised on using questions at deposition to get the deponent to see the argument that favors the deponent’s side.

We further illustrate the phenomenon of circumstantial evidence cutting both ways by revisiting Haro v. Wendt Corp. and using the following exercise. You can either have the students do the exercise individually, in small groups or work through the exercise with class as a whole.

=============================================================Exercise for Exploiting Bias

Return to the case of Haro v. Wendt Corp. Ms. Haro claims that she was terminated from her job with Wendt Corp. because she rebuffed sexual advances by her supervisor, Mr. Mario. You represent Wendt Corp. Wendt denies that any sexual advances were made and contends that Ms. Haro was terminated for poor work performance.

Assume that you have interviewed Ms. Fox, a current employee of Wendt Corp. and a former colleague of Ms. Haro when Haro worked at Wendt. Fox has told you that about a month before Haro was terminated Haro told Fox that she (Haro) “hated” working as a case analyst. When deposing Haro, you want her to testify that she liked working as a case analyst, so you can then impeach Haro with her prior inconsistent statement to Fox. You are now preparing for Haro’s deposition. Write out the questions you would ask to utilize the exploiting bias technique at deposition to try to get Haro to testify that she liked working as a case analyst.

=============================================================If we have had the students do this exercise either individually or in small

groups, we reconvene the entire class and have the students ask their questions and receive feedback and comment from the class.

The exercise in Haro illustrates that the students might seek either an “I liked my job” or an “I didn’t like my job” answer from Haro depending on whether they want to impeach the witness with a prior inconsistent statement or seek an

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admission that would more directly support an argument that Haro was fired for poor work performance.

We discuss with the students that to the extent possible, when preparing for deposition they would like to decide what helpful answers they will try to obtain from the deponent and which of the three techniques they will use to try to obtain the helpful answers. The students readily recognize that they will have more success with these techniques if they prepare their questions before the deposition begins, rather than trying to use these techniques on the fly at deposition.

6. Second Videotaped Deposition

We conclude the second unit with a second videotaped deposition.

We sometimes have the students depose a second witness in the same case we used for the first videotape. For example, if we had the students depose Dunbar in Palmer v. Dunbar at the conclusion of unit one, we would have the students depose Newton at the conclusion of the second unit. Using this approach allows us to have the students revisit the process of preparing an entire deposition outline for a new witness, and provides a second opportunity to practice many of the skills cover in unit one, as well as those covered in unit two. This approach usually requires a rather lengthy (e.g. 1-2 hour) videotape deposition. (See Illustrative assignment #1 below.)

Alternatively, we sometimes ask the students to assume that the deposition in their first videotape exercise was adjourned and they are now conducting a second session with the same deponent. This approach allows the students to concentrate on the skills in unit two, and permits a shorter videotape deposition (e.g. 45 minutes). (See Illustrative assignment #2 below.)

Regardless of which approach you choose, in this second deposition, you can play the role of the deponent to make sure that the students are presented with the sort of problems that will require them to use the skills and techniques you think are most important for them to practice. Alternatively, you might have a volunteer play the role of the deponent.

In this second video, we often have a student represent the deponent and assert all appropriate objections.

Illustrative assignment #1

Assignment for Deposition of Newton

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Two weeks from now, you will conduct a videotaped deposition of Newton in the Palmer v. Dunbar case for ----------[insert length of deposition]. You will not work with a partner when preparing for or taking Newton's deposition.

You should prepare an outline for Newton's deposition. Your outline should assume that you will have time to complete Newton's deposition. Your outline should be organized as follows:

1. Review of Case Chronology

T-funnels and Timelines to do in Newton depo--------------

2. Review of Documents

T-funnels and Timelines to do in Newton depo--------------

3. Critical Proposition Number 1 ( the most critical proposition that tends to prove your case)

Existing evidence--------------

Set out your single best argument or inference from existing evidence.

T-funnels and/or Timelines in Newton depo to strengthen the argument.--------------T-funnels and/or Timelines in Newton depo to respond to the other side's rebuttal to the argument.--------------

4. Critical Proposition Number 2 (the second most critical proposition which tends to prove your case)

T-funnels and/or Timelines in Newton depo to search for potential evidence to prove this proposition.--------------

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5. Critical Proposition Number 3 (the most critical proposition that Dunbar's counsel will try to prove)

Set out the strongest argument or inference from existing evidence that Dunbar's counsel will use to try to prove the proposition.

T-funnels and/or Timelines in Newton depo to search for potential evidence to rebut this argument.--------------

6. Newton's Version of Significant Events

T-funnels and Timelines to do in Newton depo--------------

7. Important Admissions to try to obtain from Newton

For three important admissions you will try to get from Newton, describe the techniques you will use (i.e. Plausibility Chains, Exploiting Bias and/or Masking) and generally describe the questions you will ask to try to obtain the admission.

Order of Inquiry at Deposition

Before the deposition, you and I will meet for 30-45 minutes to review your outline and talk about the order in which you will inquire into the topics in your outline in the upcoming deposition.

Self Critique of Newton Deposition.

At the conclusion of the deposition, you are to write a self critique of your performance. Your critique should include a brief general description of what you think you did well and areas where you could have done better. This description should address all the areas we have covered to this point in the course, with particular emphasis on the areas we have covered in the last two weeks (i.e. cementing, masking, plausibility chains and exploiting bias.)

In addition to your general description, you should select a specific portion of the deposition where your performance could have been better. For this portion, describe in detail why your performance was lacking and

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what you would do to improve if you had the opportunity to repeat the deposition. Finally, you should identify a segment on the tape that you feel reflects your best work with either the masking, plausibility chains, or exploiting bias technique. You should be prepared to play and discuss that portion of the tape in class on -------.

Illustrative assignment #2

Video Exercise #2

By ----, please sign-up for a [Insert length of deposition] time slot to undertake Video Exercise #2. Bring your videotape with you to the exercise itself.

The Goals of the Exercise

The purpose of this exercise is to provide you with practice regarding the following subjects:

1. Cementing helpful evidence

2. Preparing for those portions of a deposition outline that will assist you in obtaining helpful answers by using masking, plausibility chains and exploiting bias.

3. Using the questioning techniques of masking, plausibility chains and exploiting bias when questioning a deponent.

For purposes of this exercise, assume that your initial deposition of [Insert name of deponent from initial videotape exercise] was adjourned and you are now preparing for a second session of that deposition. Accordingly, review your initial deposition and list at least five additional helpful admissions you believe that you might reasonably obtain from the deponent in this second session.

Next prepare a deposition outline that you will use to guide your deposition questioning to obtain these five admissions. As you prepare this outline feel free to revisit areas that you covered in the initial session. For example, if you want to revisit the background portion of the deposition to use masking, feel free to do so. If you intend to cement helpful evidence obtained in the first deposition, your outline should so indicate.

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Obtaining Feedback on Your Performance

After you have taken the deposition, you should within 24 hours review your tape and write a 3–5 page self-critique of your performance. You should then turn in your self-critique, your deposition outline, your tape and the notes you took during the deposition to the instructor who played [Insert name of deponent.] You should at that time arrange with that instructor for a time for the two of you to review your tape.

Your Self Critique

In critiquing your performance, think about each of the 4 goals listed at the beginning of this memo. Your critique MUST identify the time markers at which you attempted to do each of the following:

1. Cement helpful evidence.

2. Mask.

3. Use a plausibility chain.

4. Exploit bias.

Your comments need not be limited to the foregoing four areas. For example, also feel free to comment on your ability to handle things such as documents and non-responsive answers. Be sure to comment on what you see as both the positive and negative aspects of your performance. Do not limit your comments to the negative.

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Unit Three

Basic Skill – Undermining Harmful Evidence

We include a unit on undermining evidence because in practice students will frequently have a deponent testify to harmful evidence that they did not anticipate prior to the deposition. Responding to such unpleasant surprises “on the fly” is difficult, even for experienced lawyers. We hope to provide the students with enough practice dealing with this difficult problem so that they will be able to use the strategies and techniques in Chapter 7 when they face this problem in practice.

We begin by having the students read Chapter 7.

In class, we have the entire class work through the process of undermining harmful answers in one or more of the exercises set out below. As we do so, we try to illustrate the following points:

* When faced with harmful evidence, students typically need to begin by

making a strategic decision about whether to try to challenge the accuracy of the evidence, try to undermine the inference to be drawn from it, or to aggrandize the lie. This initial strategic decision about how to respond to harmful evidence will frequently dictate the areas of inquiry the students will pursue with the deponent.

* Students will typically use the same questioning techniques they have learned up to this point in the course regardless of the strategic decision they make about how to respond to harmful evidence. That is, when responding to a harmful answer they will use one or more or the following questioning techniques: T-Funnels, Timelines, Masking, Plausibility Chains, Exploiting Bias, Cementing Helpful Answers, Responding to Evasive deponents, etc. For example, if the student decides to explore the Checklist category “Inconsistent Behavior” to try to undermine the accuracy of a harmful answer, she might well use a Timeline questioning pattern to inquire into what happened both before and after a harmful observation. Similarly, a T-Funnel pattern might be employed to explore the Checklist category of “Reasons for Engaging” in a particular behavior.

* Students may want to delay inquires designed to challenge the accuracy of or the inference to be drawn from harmful evidence. As discussed in the text, delaying these inquires may help to mask the significance of the questions from the deponent and increase the possibility of obtaining helpful undermining evidence.

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* Harmful evidence frequently comes in the form of a conclusion or an opinion. Consequently, we also have the entire class try to undermine a harmful opinion or conclusion to illustrate the two step process described in the text.

* The Checklist from Chapter 7 can be used “on the fly” at deposition.

Alternatively, if prior to a deposition you know or anticipate that a deponent will testify to a specific item of harmful evidence, you can use the Checklist during preparation to plan how to try to undermine harmful evidence.

Exercises for Undermining Harmful Evidence=============================================================

Exercise #1 – Harmful Evidence From a Previous Deposition

Class Assignment – Write out 5 items of harmful evidence the deponent testified to in your last videotaped deposition. In class, be prepared to discuss how you might try to undermine each item of harmful evidence using one or more of the strategies and techniques described in Chapter 7. In class, you should also be prepared to question the deponent to try to undermine the harmful evidence.

In class, you can have several students talk about their strategic decisions and then question you, as the deponent, to try to undermine the harmful evidence. You and the class can then provide feedback. You can also break the class into small groups to provide more students with the opportunity to question a deponent.

At some point during the class, you may want to ask the class to assume that the harmful evidence would be contradicted by credible independent witnesses, and then ask them to “aggrandize the lie.”

=============================================================

Exercise # 2 Harmful Evidence in a Student’s “Own Case”

You can use the students’ own cases (see discussion in unit one on Timelines) to practice undermining harmful evidence. Have a student identify two or three items of evidence from her own case that would be harmful to one of the parties in the case. The class can then discuss how they might respond to the harmful evidence and practice questioning their fellow student/deponent to try to undermine the evidence. At some point during the class, you may want to ask the class to assume that the harmful evidence would be contradicted by credible independent witnesses, and then ask them to “aggrandize the lie.”

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=============================================================

Exercise #3 Using a Deposition Transcript in CTE

Class Assignment - On ----, we will focus on the goal of undermining (undercutting) harmful evidence. In preparation for this class, read Chapter 7 in the text.

Next in Jackson v. CTE, assume that Ms. Jackson has told you the following:

(1) She thought her course in Cobol I was basically worthless and that the instructor, Mr. Clinton was a terrible teacher who did not know the material and who constantly mumbled in class.

(2) The course in Cobol II was no better than the course in Cobol I and that during the fourth week of the Cobol II class she complained to the instructor, Mr. Reimer.

(3) She did miss a week of classes in her Cobol II class. But she worked with one of her fellow students to cover the material that she missed.

(4) Her Cobol II instructor, Mr. Reimer, often praised her good performance on class exercises.

Next assume that we have talked with a Mr. Hewson, an expert on training people to become computer programmers. Mr. Hewson believes that Cobol was a "dead language" no longer used in the industry at the time Jackson was enrolled at CTE and that companies interested in hiring beginning programmers would have no interest in hiring persons trained in Cobol.

With the information from Ms. Jackson and Mr. Hewson in mind, read the attached transcript and identify all the items of harmful evidence that you can find. With respect to each item you identify, come to class prepared to discuss what undermining strategy you might use to undermine the harmful answer. In class we discuss what undermining strategy it makes sense to employ and then practice implementing that strategy.

With respect to questioning the deponent to undermine an item of harmful evidence, you should make a few notes about how you would go about questioning the deponent to implement your strategy decisions If you believe it would be appropriate to challenge the accuracy of an item of

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testimony, jot down what checklist categories you would probe in an attempt to undermine the harmful testimony. If you believe it would be appropriate to undermine an inference from harmful testimony, jot down a note about what harmful inference(s) you would seek to undercut. If you believe it would be appropriate to “aggrandize a lie,” make a note of some questions you would ask to accomplish this goal.

=============================================================

Reimer Transcript

1. Q: Mr. Reimer do you remember a CTE student named Joyce Jackson?

2. A: Yes.3. Q: In what course was Ms. Jackson a student of yours?4. A: Cobol II5. [Portion omitted]6. Q: At any time did you have a conversation with Ms. Jackson about her

course in Cobol I?7. A: No.8. Q: Did you ever hear Ms. Jackson say anything about her course in

Cobol I?9. A: Yes. 10. Q: What did you hear?11. A: I heard her tell a fellow student that she thought her instructor in

Cobol I, Mr. Clinton, did a fantastically good job of teaching the course.12. Q: Who was this fellow student?13. A: I don't remember her name.14. Q: What else did Ms. Jackson say?15. A: She said the instructor, Mr. Clinton was terrific.16. Q: What else did she say?17. A: She said she thought the course in Cobol I really gave her the

background for Cobol II.18. Q: Okay, now let's talk about Cobol II. Why was this course given to

CTE students?19. A: Because they need to have the course in order to be able to find a

job as a programmer.20. Q: Do you think that a CTE student who finished the course in Cobol I

could find a job as a programmer without having successfully completed the course in Cobol II?

21. A: No. Beginning programmers need to have completed the course in Cobol II to find a job. That's why CTE included the course in the students' program.

22. Q: As far as you know, was Ms. Jackson satisfied with your course?23. A: Yes.

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24.Q: During the time Ms. Jackson was in your class, did she ever miss any classes?

25. A: Yes. At one point she missed a whole week of classes. I can't remember why she was not there but I do remember that she missed that week because it was a particularly important set of classes that she missed.

26. Q: Was a student's grade in the Cobol II class based on anything other than test scores?

27. A: Yes. It also depended on the student's performance on various class exercises.

28. Q: Do recall how Ms. Jackson performed on class exercises?29. A: Yes. She did okay, but her work wasn't especially good or

outstanding.

=============================================================

We have set out an edited version of the Reimer transcript below with suggestions for issues you might want to discuss with the students in class.

Reimer Transcript – Edited Version for Instructor

1. Q: Mr. Reimer do you remember a CTE student whose name is Joyce Jackson?

2. A: Yes.3. Q: In what course was Ms. Jackson a student of yours?4. A: Cobol II5. [Portion omitted]6. Q: At any time did you have a conversation with Ms. Jackson about her

course in Cobol I?7. A: No.8. Q: Did you ever hear Ms. Jackson say anything about her course in Cobol I?9. A: Yes. 10.Q: What did you hear?11.A: I heard her tell a fellow student that she thought her instructor in Cobol I,

Mr. Clinton, did a fantastically good job of teaching the course.12.Q: Who was this fellow student?13.A: I don't remember her name.14.Q: What else did Ms. Jackson say?15.A: She said the instructor, Mr. Clinton was terrific.16.Q: What else did she say?17.A: She said she thought the course in Cobol I really gave her the background

for Cobol II. [Note to instructor – Answers in 11-17 are inconsistent with the client’s version of events. If there are no other witnesses to corroborate the client’s version, the students should probably try to challenge the accuracy of the deponent’s testimony using one or more categories from the Checklist. For example, the student might try to

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cast doubt on the deponent’s ability to recall by using the fungible event approach described on pg. 89 of the text. Alternatively or in addition, the students might question the deponent if he acted consistently with his testimony that Jackson praised Clinton. For example, the students might inquire whether the deponent passed the praise he heard on to Clinton or anyone else at CTE. Of course, if there were other witnesses who would confirm the client’s version, the students might want to “aggrandize the lie”.]

18.Q: Okay, now let's talk about Cobol II. Why was this course given to CTE students?

19.A: Because they need to have the course in order to be able to find a job as a programmer.

20.Q: Do you think that a CTE student who finished the course in Cobol I could find a job as a programmer without having successfully completed the course in Cobol II?

21.A: No. Beginning programmers need to have completed the course in Cobol II to find a job. That's why CTE included the course in the students' program.[Note to instructor – The students might want to aggrandize the lie here because their expert says that Cobol is a dead language.]

22.Q: As far as you know, was Ms. Jackson satisfied with your course?23.A: Yes.24.Q: During the time Ms. Jackson was in your class, did she ever miss any

classes?25.A: Yes. At one point she missed a whole week of classes. I can't remember

why she was not there but I do remember that she missed that week because it was a particularly important set of classes that she missed. [Note to instructor – The students might try to challenge the accuracy of this conclusion by asking why these classes were so important, whether there were any documents that indicated to the students that these classes were Important, etc. In addition, the students might want to try to undermine the inference that might be drawn from this harmfule testimony, i.e. that because Jackson missed these classes she was not a serious student or did not understand some of the important material in the course. They might try to undermine this inference by questioning the deponent to find out if he can dispute Jackson’s statement that she worked with a fellow student to make up the material she missed in these classes.]

26.Q: Was a student's grade in the Cobol II class based on anything other than test scores?

27.A: Yes. It also depended on the student's performance on various class exercises.

28.Q: Do recall how Ms. Jackson performed on class exercises?29.A: Yes. She did okay, but her work wasn't especially good or outstanding.

[Note to Instructor- This is a harmful conclusion and the students should probably ask for all the specific examples the deponent can

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recall (see Chapter 7, pg. 98). They could then decide how to undermine the specific examples.]

=============================================================

Exercise #4 Using a Deposition Transcript

If you do not use the transcript in the CTE case in Exercise #3 above, you can make up a similar transcript in a case with which the students are familiar.

=============================================================

Video Exercise for Undermining Harmful Evidence

We conclude this unit with another videotaped deposition. In this deposition we ask the students to concentrate on undermining harmful evidence. In this videotape an instructor typically plays the role of the deponent. Below is an illustrative assignment for this videotape exercises based on the case of Palmer v. Dunbar. You can of course follow the format set out below in any case in which the students are familiar with the facts.

=============================================================

Class Assignment - By [Insert date], please sign-up for a [Insert amount of time] time slot to undertake Video Exercise #3. Bring your video tape with you to the exercise itself.

The Goals of the Exercise

The purpose of this exercise is to provide you with practice regarding the following subjects:

1. Making strategic decisions about undermining harmful evidence

2. Implementing such decisions using common questioning techniques such as T-Funnels, Timelines, Plausibility Chains, Masking etc. when questioning a deponent.

For the purposes of this exercise, assume that in Palmer v. Dunbar you represent the defendant, Dunbar. Assume further that you are deposing a Palmer co-worker, Bob McFarland, and you are now taking a one hour break after getting a half day’s worth of testimony from McFarland. The sealed envelope attached to this exercise contains relevant portions of the transcript from that testimony. When the

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deposition resumes your task will be to undermine harmful answers that the deponent has already given.

Before you deposed McFarland you knew little about him other than that he was Palmer’s co-worker and that according to Dunbar and another co-worker, John Chen, the following is true: (a) McFarland and Palmer had traveled on the same cruise tours during the two summers before Palmer was terminated. At no time were they romantically involved. One cruise was through the inside passage in Alaska and the other was in the Mediterranean. (b) McFarland and Palmer have typically had dinner or gone to a play or movie together about once a month since about one year before Palmer’s termination. Again, there is no romantic involvement.

To make this exercise realistic and to give yourself a chance to evaluate what you have learned about undermining harmful evidence, do not look at the sealed transcript that accompanies this exercise until one hour before your deposition commences. [You should therefore try to sign up for a time before which you have a free hour].

When you review the transcript identify harmful answers that you would like to undermine and decide what undermining strategy you will use in an attempt to do so. Then make decisions regarding what questioning techniques you will use to implement your strategic choices and decide the order in which you will conduct your undermining questioning. You should plan on undermining several items of harmful testimony as you will have [ Insert time interval ] to complete the exercise.

Starting The Questioning

Perhaps the easiest way to begin questioning the deponent is to ask the deponent if he understands that he is still under oath from the earlier deposition session. You can then turn to your substantive questioning.

Obtaining Feedback on Your Performance

After you have taken the deposition, you should within 24 hours review your tape and write a 2–5 page self-critique of your performance. You should then turn in your self-critique, your tape and the notes you took during the deposition to the instructor who played McFarland. You should at that time arrange with that instructor for a time that the two of you can review your self critiques and the videotape.

Your Self Critique

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In critiquing your performance, think about each of the goals listed at the beginning of this memo. Your critique MUST identify the time markers at which you conduct your undermining questioning and your cementing of helpful evidence. In discussing your undermining questioning you should identify what undermining strategy you attempted to use, the type of questioning pattern(s) you used the implement your undermining decisions, and the extent to which you believe your questioning was successful. Please discuss what you see as both the positive and negative aspects of your performance. Do not limit your comments to the negative.

=============================================================

Sealed Transcript

Deposition of Bob McFarland

1. Q: Mr. McFarland, how long have you worked for University Book

Store?

2. A: For about four years.

3. Q: In what capacity?

4. A: As a salesperson.

5. Q: May I ask your age?

6. A: Sure. I’m forty nine.

7. Q: Do you know Susan Palmer?

8. A: Yes.

9. Q: When did you first meet Ms. Palmer?

10.A: When I went to work at the store; she was already working there.

11.Q: How frequently did you work with Ms. Palmer?

12. A: We usually worked on the same days and frequently on the same

shift.

13. Q: Do you consider yourself a close friend of Ms. Palmer?

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14.A: Not really. Outside of work we rarely see each other socially.

15. (Portion omitted)

16.Q: Do you recall a time when Newton became the store manager?

17.A: Yes it was a few months after Mr. Dunbar bought the store.

18. (Portion omitted)

19.Q: You’ve said earlier that Ms. Palmer was extremely knowledgeable

about books.

20. A: That is correct.

21. Q: Was Ms. Palmer still knowledgeable about books at the time she

left the store?

22. A: Absolutely. I remember one occasion around the time she left

when a customer came in looking for a book about microbiology. Ms.

Palmer immediately recommended Time, Love and Memory. It’s not a

well know book but its a wonderful book about the history of

microbiology. Ms. Palmer knew about it though because she such a

prodigious reader of both books and reviews. I remember the

customer came back a couple of weeks later and thank Ms. Palmer for

her recommendation.

23.Q: When Newton was the manager, was there a store policy requiring

sales people to obtain the name, address and approximate age of

each customer?

24. A: Yes.

25. Q: Did Ms. Palmer say anything about that policy?

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26. A: Yes. She told me she thought it was stupid and that it offended

many customers.

27. Q: Did Ms. Palmer always comply with that policy?

28. A: Yes she did.

29. Q: How do you know she always complied with the policy?

30. A: Because I remember her apologizing to customers who became

upset when Ms. Palmer was using the sales form and asking

customers for their ages and so on.

31. Q: After Mr. Newton became the manager, did you notice any change

in the way Ms. Palmer treated customers?

32.A: Not at all. She was fabulous in the way she treated customers. She

was always helpful and solicitous. Customers really liked and

appreciated Ms. Palmer because she really went out of her way to help

them.

33.Q: What do you mean that she went out of her way to help customers?

34. A: Well when a customer was interested in a particular subject area or

a particular book, Ms. Palmer would typically take the customer over to

the place in the store where the book could be found. She was also

very responsive when customers wanted suggestions on what books in

a given area that might consider buying. She was always friendly.

35.Q: After Mr. Dunbar bought the store, did the store start to sell adult

books and videos?

36. A: Yes.

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37.Q: Did Ms. Palmer ever make any comments to you about the selling

of these adult books and videos?

38. A: Yes. She told me on several occasions how much she disapproved

of the practice. She called it cheap and dirty.

39. Q: Did you ever observe a customer ask Ms. Palmer for material that

was to be found in the adult book section?

40. A: Yes. I saw that happen several times.

41. Q: When customers made this type of request, would Ms. Palmer

accompany the customer to the adult book section and help the

customer find what the customer was looking for?

42. A: Yes. Ms. Palmer treated these customers the same as she treated

all the customers. She was very friendly and went out of her way to be

helpful.

43. Q: In the last three or four months before Ms. Palmer left did you

notice an increase in the number of younger customers coming into the

store?

44. A: Yes, I’d day so.

45. Q: Did Ms. Palmer ever mention anything about an increase in

younger customers?

46. A: She mentioned that these younger people had different tastes from

our regular customers.

47. Q: What did she say in that regard?

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48. A: She said they were not as interesting to talk with as our regular

customers were because they weren’t interested in serious books.

They tended to want suggestions about low level stuff like movie

books, biographies of movie stars, rock stars and such, as well as

things like sex manuals and of course the adult stuff.

49. Q: Did you ever hear Ms. Palmer talk with Mr. Newton about these

younger customers?

50. A: No, but I know she wanted to talk with him about them.

51. Q: How do you know that?

52. A: Because she told me she intended to talk with him about attracting

these kinds of people. She said she wanted to let him know that

having customers such as these in the shop were offensive and they

tended to drive off customers interested in serious subjects and good

literature.

53.Q: Did you ever observe any arguments between Ms. Palmer and Mr.

Newton?

54.A: Well, once I saw Ms. Palmer and Mr. Newton get into it.

55.Q: What do you mean by Mr. Newton and Ms. Palmer got into it?

56.A: One day Mr. Newton was yelling at me because he thought I had

failed to follow the sales procedure for getting the customers name and

age. Ms. Palmer came over to Mr. Newton and told him that a

customer would overhear him raising his voice. Mr. Newton told Ms.

Palmer to mind her own business and let him worry about the

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customers. Ms. Palmer said something about only wanting to help and

Mr. Newton again told her to mind her own business. Ms. Palmer was

quite upset because of the harsh way Mr. Newton treated her and

because he wouldn’t listen to her.

57.Q: Did you ever hear Mr. Newton raise his voice to any other sales

people?

58. A: Yes. It happened all the time.

59. Okay, I see it is lunch time. Let’s take a break and we can resume in

about an hour.

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Unit Four

As we stated in the Introduction, most of our assignments and class time are devoted to providing students with repeated opportunities to practice and receive feedback on the basic skills covered in units one through three. And the time required for practice and feedback means that we do not cover all of the Chapters in the text. However, if you have additional time after completing the first three units, or if you choose not to cover some of the material in those units, you may want to include one or more of the following subjects in your course:

1. Strengthening Helpful Evidence

Chapter 6 discusses techniques for trying to strengthen favorable inferences counsel might ask a factfinder to draw from helpful evidence that surfaces at the deposition. You might want to have the students practice employing the techniques by using the following exercise. Ask the students to assume that a witness they have already deposed is being deposed in a second session (you can play the role of the deponent). Then ask the students to begin questioning on a subject where the deponent can testify to an item of helpful evidence for the client that the students represent. Have the deponent respond to such questioning with answers containing helpful evidence. You can then ask the students to try to use Chapter 6’s techniques to try to strengthen the evidence. You can repeat this process to give the students multiple opportunities to practice responding to helpful evidence.

In addition, you may also want to ask the students to question the deponent in an effort to cut off rebuttal. (See Text page 84.) Doing so will provide a concrete example from which you can talk about the strategic issues involved in trying to cut off rebuttal during the deposition. Again, you may want to repeat the process to provide additional students with an opportunity to practice seeking rebuttal.

2. Responding to Inconsistent Statements

Chapter 8 discusses strategies and techniques for responding to inconsistent statements. You can explore the topics in this chapter with one or more exercises in which a deponent gives testimony inconsistent with something the deponent has said previously. You can start by indicating that the prior statement arose either in a prior deposition session or in a prior written statement. You can assume the role of the deponent and ask the students to question you in an area covered the earlier in a deposition testimony or the written statement. In response to the student’s questions provide answers that contradict the prior statement. After the contradictory testimony has emerged, you may want to stop the questioning and ask the student or the class to consider what strategic option the questioner should now choose and why. With

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the strategic option decided upon, you can resume the questioning and then discuss the effectiveness of the student’s questioning in light of the techniques discussed in the text. Ideally, you can develop inconsistencies that permit the students to pursue each of the four basic options discussed in Chapter 8.

You may also want to try a similar exercise in which the in-class testimony of the deponent conflicts with the statement of another witness.

3. Questioning Tips

Especially when your students are about to take real depositions, you may want to review the Questioning Tips in Chapter 15. Although you may not have time to cover the entire Chapter, you might want to use exercises such as the following. Doing so will allow you to review the first 9 sections of the Chapter. Tips 1 through 9 cover the areas in which students commonly have considerable difficulty.

=============================================================To remind students of the importance of “Not Conflating Discrete

Occurrences,” ” Eliciting Details Rather than the Substance, “ “Eliciting The Basis of Conclusions and Opinions” and “Seeking Examples of Behavior over Time,” you might give out an assignment such as the following: In class, using a “Round Robin” format you can play the role of the deponent.

Assignment

For class on , read Chapter 15 and come class prepared to discuss in what respects the questioning in the following hypotheticals might be improved.

Hypo #1

1. Q: Mr. Olson, did you meet with Ms. Palmer about the store’s policy of obtaining customers names, addresses and ages?

2. Yes. Mrs.

3. Q: How many times did you meet with Ms. Palmer regarding this store’s policy?

4. A: At least, four times

5. Q: What specifically did you discuss with Ms. Palmer the first time you met with her?

6. A: I don’t recall exactly.

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7. Q: Okay. Then tell me generally what the two of you discussed?

8. A: We talked about why the policy was being instituted and how customers might be approached.

9. Q: What else did you talk about?

10.A: I can’t recall.

11.Q: Okay, How about the second time you met with Ms. Palmer, what did you and she discuss?

12.A: I don’t remember each conversation.

13.Q; Okay, tell me what you do remember about the conversations you had with Ms. Palmer?

14.A: Well we always discussed the same things. Why we needed the policy and how customers should be approached.

15.Q; Anything else you discussed in those meetings?

16.A: No

17.Q: Did you discuss that customers might object to providing the information?

18.A: Yes.

19.Q; Did you discuss what should be done if customers objected to being asked for their names, addresses and ages?

20.A: Yes.

21.Q: Did you discuss whether any customers would be exempt from the policy?

22.A: Only briefly.

23.Q: Did Ms. Palmer express any opinion about the policy?

24.A: Yes. She was against it.

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25.Q: Okay what was discussed regarding what should be done if customers objected to being asked for their names, addresses and ages?

26.A: Well . . . .

Hypo #2

1. Q: Ms. James, are you currently a counselor in the career services’ office of CTE?

2. A: Yes.

3. Q: Did you ever meet an individual whose name is Joy Jackson?

4. A: Yes I met her several times.

5. Q: Where did you meet her?

6. A: In the career services’ office.

7. Q: Why did you meet with her?

8. A: To help her arrange job interviews.

9. Q: Was she cooperative during those meetings?

10.A: Only some what.

11.Q: What do you mean only somewhat?

12.A: Well she complained a lot?

13.Q: About what?

14.A: The program.

15.Q: Anything else?

16.A: Not really.

=============================================================

To remind the students about the importance of “Asking for Hearsay,” “Asking ‘Why’ Questions Concerning a Third Person’s Behavior,” “Seeking Out Opinions,” and “Eliciting the Basis of Opinions and Conclusions” you might give

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out an assignment such as the following. In class you can use a “Round Robin” format for this exercise. You can play the role of the deponent and, based on the facts in Palmer v. Dunbar, make up information that would relate to the reasons for Palmer's discharge.

Assignment

For class on , read Chapter 15 and come class prepared to question the deponent in the following hypothetical.

Assume that in Palmer v. Dunbar you represent Ms. Palmer and are deposing John Chen, a sales clerk who worked with Palmer. Your objective at this point is to learn as much as you can about why Mr. Dunbar fired Ms. Palmer. You have asked Mr. Chen if he knows why Mr. Dunbar fired Ms. Palmer and he has said she does not know. Be prepared to continue to question Mr. Chen to learn as much as you can about why Mr. Dunbar fired Ms. Palmer.

=============================================================

4. Subject Matter and Practice and Policy Depositions

Chapters 19 and 20 cover 30(b)(6) subject matter depositions and practice and policy depositions. You may want to cover these chapters as a unit since most practice and policy depositions are taken pursuant to a 30(b)(6) deposition notice. In a case with which the students are familiar, you might give the students a notice for a 30 (b) 6 deposition that does not include all important subjects that should be explored at the deposition. You can then have the class identify the deficiencies, talk about the consequences of failing to remedy them, and revise the notice to make it appropriately thorough. You might then play the role of a deponent for a practice and policy deposition and have the students practice that portion of a deposition that would involve an inquiry into whether you are a knowledgeable designee under 30(b)(6). As you critique the students’ performances you can discuss both the student’s questioning techniques and the strategic options that are available should the students conclude that the deponent is not knowledgeable on each subject in the notice. Next, you can have the students question you about a practice or policy on a subject identified in the revised deposition notice and again critique the performances.

5. Experts

You might want to have a friendly expert come to class to help the students prepare a deposition outline for the deposition of an adverse expert. This will allow the students to appreciate why they frequently will need their own expert to help them decide what areas to cover and what challenges to pursue when deposing an adverse expert. You might also have the students depose an adverse expert witness following the format suggested in Chapter 21. You will

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obviously need someone with expert knowledge to play the role of the adverse expert.

6. Trial Related Exercises

As discussed in Chapter 22, a deposition to preserve testimony is very similar to a direct examination at trial. Consequently, you might have the students conduct a deposition to preserve the testimony of a witness in one of the cases they have been working on during the semester and talk about how the deposition is similar to and different from direct examination at trial.

You may also want to have the students do a short trial cross examination on an adverse witness whom they have deposed. As the cross develops, the students may realize that they want to ask (or should want to ask) questions on cross that they did not previously ask of the witness at deposition. This exercise can illustrate the value of thinking through your probable trial cross examination as you prepare for deposition.

7. Preparing a Client for Deposition

Chapter 24 covers this topic. You might have a non-student volunteer play the role of a client in one of the cases you have been working on during the semester and have the class as a whole (or one or two students in or outside of class) prepare that client for a deposition. Alternatively, you might have a student play the role of the client in her "own" case and have the class or a fellow student conduct a preparation session. In either case, you can videotape the preparation session and then critique it with the entire class.

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