PowerPoint PresentationTitle: PowerPoint Presentation Author: Owner Created Date: 3/10/2016 2:58:05...

Taking & Defending Powerful Depositions:

Telephonic CLE

Rossdale CLE A National Leader in Attorney Education

© 2016 Rossdale CLE www.RossdaleCLE.com

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Advanced Depositions Techniques

Winning Strategies

• Ask open ended or non-leading questions

• Use "Why"

• Throw our the Rules of Evidence

• Ask big questions that get to the heart of the issue

• Maintain an inquisitive attitude


A Quick Note

• References made in these materials refer to the Federal Rules of Civil Procedure (hereinafter “Fed. R. Civ. P.”). Although the reference is to Fed. R. Civ. P., each jurisdiction and state across the country maintains rules that reflect similar positions.


Aim of these Materials

• Foster honest testimony

• How to prepare your client

• How to prepare your client for video performances


Depositions from 30,000 Feet Up


Why do we take depositions?

• Obtain information

• Evaluate the overall strengths and weaknesses of the case

• Preserve evidence

• Assist in discovery


Protective Techniques to Use During Deposition

• Correcting transcript – Fed. R. Civ. P. 30(e)(1)

• Court assistance – Fed. R. Civ. P. 30(d)(3)(A)

• Objections – Fed. R. Civ. P. 30(c)(2)

• Instructions not to answer – Fed. R. Civ. P. 30(c)(2)

• Ask questions – Fed. R. Civ. P. 30(c)(1)


What should the deposition accomplish?


Goal of Deposition, Part I

• Determine what are the relevant facts

• Determine who has personal knowledge of the relevant facts

• Preserve testimony for trial

• Rely upon state rules and Federal Rules, like Fed. R. Civ. P. 26(b)(1) - reasonably calculated to lead to the discovery of admissible evidence

• Create sound bites

• Create admissions for use at trial

• Capture witness untruthfulness (Fed. R. Civ. P. 32(a)(2)


Goal of Deposition, Part I

• Facilitate Settlement

• Strengthen and develop foundation for introduction of evidence -e.g., authentication and identification

• Evaluate deponent's strengths and weaknesses

• Demonstrate negative characteristics of deponent

• Gain evidence to use for summary judgment

• Gather additional background information for additional discovery

• Assist in building foundation for information for experts


Use Techniques and Mistakes Not To Make


Winning Tips

• Craft questions in such a manner to conceal your

• Do not expose the facts that you know in asking questions

• Carefully note the weaknesses of your client to resolve in coaching before trial

• Realize that every minute of the deposition is costing you (contingency case) or your client


Limitations of the Deposition &

Items to Keep in Mind


Items to Keep In Mind, Part I

• Fed. R. Civ. P. 30(d)(1) limits the deposition to 7 hours in 1 day

• Ask only questions that are plausibly relevant

• Only take needed depositions

• Do not emphasize your theory of the case


Items to Keep In Mind, Part II

• Depositions are not the place for cross-examination

• Vary techniques used in deposition so deponents do not become too familiar with your style

• Save your hardest, toughest question for the courtroom but ask some form of the question to "lock-in" witness at deposition


Items to Keep In Mind, Part III

• Once your observe a the weakness of a deponent, do not harp upon it as you can exploit the weakness at trial to your advantage

• Going after and further demonstrating a weakness of a deponent may lead the opposing party to more actively coach the deponent to transform her into a better courtroom witness


Avoiding Improper Goals


Items to Avoid

• Notice and/or take a deposition to "milk" fees

• Use depositions to prolong litigation or force settlement

• Harass, annoy, or oppress

• Engage in bad faith tactics during deposition


Asking Effective Questions


Designing Effective Questions, Part I

• Ensure that the record includes specific details

• Do not ask about "that exhibit"

• Instead, ask about the "Deposition Exhibit Number 4, Jerry Smith's Resignation Letter date March 2, 2011"

• Ask deponent to describe exhibit or title of exhibit on the record


Designing Effective Questions, Part II

• To properly lead, ask short, tight, leading questions that can be answered with a "yes" or "no"

• To give deponents an opportunity to provide her or her story, ask "open ended" questions

• Ensure questions can be asked independnently of each other

• Questions should not refer to or rely upon previously asked questions

• Structure short, simple questions

• Break long questions into multi-part short questions


Designing Effective Questions, Part III

• Do not use negatives

• Avoid double negatives

• Think of asking questions that a jury could easily follow

• Design questions to create "sound bites" for use at trial


Techniques for Videotaping


Videotaping Considerations

• If economically possible, always videotape

• Non-verbal responses are more powerful than words

• It is often better to use video at trial instead calling the witness


Videotaping Tips

• Provide notice pursuant to Fed. R. Civ. P. 30(b)(3)

• Consider the effect of videotape on determining the pace, style, and tone of questions

• Effectively Use Exhibits

• Ensure that questions are fully answered on the record -e.g., don't accept nods of the head to affirm an answer


Effectively Handling Evasive Answers

• Repeat the question as often as necessary

• Confront the witness if he is evasive

• Request that she answer the question in a direct manner

• Properly object to evasive answers

• Move to strike any non-responsive answers


Rules to Remember

• Recall Fed. R. Civ. P. 32(d)(3)(B)(i) - object to forms of answers waived unless timely made during the deposition

• Recall Fed. R. Civ. P. 37(a)(4) - incomplete or evasive answers are treated as failure to answer


Techniques for Handling Questions


BIG Questions

• Determine the detail sought in your questions

• BIG Questions should seek to discover: – the witness' source of knowledge

• was the information observed directly or supplied

• assumptions of the information

• the witness' memory for details

• the witness' ability to provide accurate testimony

• the witness' motive and bias


Considerations in Follow-up Questions

• Witness' reaction to questions

• Endeavor to ask questions that assume facts to box witnesses into answered

• Example: If you are trying to determine whether the witness flew in for the deposition, you could ask: "Did you fly here today?" The better question is "Was the airport busy when you came in for the deposition today?"


Often Overlooked Items

• Ask for production of documents used to refresh recollection

• Do not be afraid to refresh the witness' recollection

• Look for visual signs of a lying witness


Techniques for Dealing with Lying Witnesses, Part I

• Ask witnesses to answer questions with specific facts

• Ask questions that follow-up to previous questions

• Make the lying witness have to further create a false story

• Recall that testimony on unimportant matters can create opportunities to impeach


Techniques for Dealing with Lying Witnesses, Part II

• Avoid asking questions in chronological order

• Jumping from time periods inhibits lying witnesses

• Make the questions become quicker

• Structure questions to suggest that you wish to obtain one answer, when in fact, you seek the opposite answer


Witnesses Who Do Not Know Enough


Effective Techniques for Witnesses Who Know Too Little, Part I

• If knowledge is not sought, box the witness into admitting that he does not know about the subject matter

• Ask the witness to identify the sources of information that could lead to an answer

• Prove that the witness' memory cannot be refreshed

• Do not stop at answers like "I cannot recall the exact details of the conversation."

• Confirm that no the witness has no recollection


Effective Techniques for Witnesses Who Know Too Little, Part II

• If you want the witness to have recollection, the questions should be aimed at increasing testimony and demonstrating that the absence of knowledge is false

• Box in the witness' claimed absence of knowledge so that it cannot improve at trial

• Demonstrate to the witness that it is illogical for the witness to not remember

• Confront the witness • Remind the witness that failure to disclose all knowledge is

a violation of the oath and grounds for sanctions • Recall Fed. R. Civ. P. 37(a)(B)(i) - motion for order to compel


Before Concluding…


Concluding Questions

• Ask summary questions

• Summarize the witness' prior testimony

• Ask questions which might lead to admissible evidence, even though the answer may not be admissible evidence

• Don't be intimidated by the defending lawyer's time pressures or the witness's evasiveness


When to Stop Asking Questions


Ending Your Deposition

• Ask as few questions as possible and as many questions as needed

• Generally, the more truthful the witness, the fewer questions will be asked

• If the questioner perceives that the witness is lying, more questions will need to be asked

• If you feel that the questions are hurting your case, more questions will need to be asked

• Ask as many questions as it takes to really learn the whole story


Preparing Your Witness for the Deposition


Effective Preparation Techniques

• Review witness recollection

• Refresh witness recollection

• Explain what to say when asked if memory was refreshed by review of documents


Goals of Preparation

• Explain the point of the deposition

• Remind clients that questions should be answered as succinctly as possible:

– example: if asked, “Do you have the time?” – the answer should be yes, but should not be “It is noon.”

– Remind clients to tell the truth and not to guess

– Ensure clients only answer questions that they understand


Training Clients

• Demonstrate the following to your clients: • Compound • Misstates prior testimony • Assume facts not in evidence • Vague • Incomplete hypothetical • Ambiguous • Asked and Answered • Calls for Speculation • Argumentative


Preparing Clients for Videotaped Depositions


How to Prepare the Client to be Videotaped

• Client should act like jury is in room

• Client should not be arrogant

• Client should avoid mannerisms

• Client should wait a few second after each question to ensure that there is a consistent pace

– this will help when the client is asked more difficult questions later


Effectively Protecting the Witness


Defending Depositions

• Recall that under Fed. R. Civ. P. 30(d)(1), additional time may be ordered if the attorney is overly protective

• Recall that under Fed. R. Civ. P. 30(d)(2), sanctions may be ordered to those who impede or delay the deposition

• State objections in a non-argumentative manner • Recall that objections are waived if not made at

the deposition • You may instruct the witness not to answer only

to preserve a privilege or enforce a court order


End of Materials


PowerPoint PresentationTitle: PowerPoint Presentation Author: Owner Created Date: 3/10/2016 2:58:05...

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