The Best Deposition Summaries for Any Situation · The Best Deposition Summaries for Any Situation...

The Best Deposition Summaries for Any

Situation

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mail: P.O. Box 509 Eau Claire, WI 54702-0509 • telephone: 866-352-9539 • fax: 715-802-1131email: [email protected] • website: www.lorman.com • seminar id: 404004

Dennis I. Wilenchik, Esq.Wilenchik & Bartness, P.C.

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mail: P.O. Box 509 Eau Claire, WI 54702-0509 • telephone: 866-352-9539 • fax: 715-802-1131email: [email protected] • website: www.lorman.com • seminar id: 404004

Prepared By:Dennis I. Wilenchik, Esq.Wilenchik & Bartness, P.C.

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SituationDennis I. Wilenchik, Esq.

Wilenchik & Bartness, P.C.

© Wilenchik & Bartness, P.C. 1

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Dennis I. Wilenchik, Presenter

Dennis I. WilenchikManaging PartnerWilenchik & Bartness, P.C.• Managing Partner, over 40 years in practice.

• Former Deputy County Attorney, Maricopa County.

• Tried hundreds of cases, in federal and state court and is licensed in Arizona, District of Columbia, New York, Texas, the Ninth Circuit Court of Appeals and the United States Supreme Court.

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AWARDS AND HONORS

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INTRODUCTIONPurpose of this Program

Take a new approach to deposition summaries, think about this tool from the onset of the case, in motion practice, and at trial.

We also have provided several aids/templates, including: A Sample Deposition Summary Page/Line; A Sample Deposition Summary, Chronological; A Sample Deposition Summary based upon Claims and

Defenses; and A Sample Deposition Summary based upon Issues.

This presentation also has hyperlinks highlighted in yellow to articles and legal authority for your convenience.

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BACKGROUND WORK

PREPARATION

You cannot do an adequate job of preparing a deposition summary unless you know the case. Read the pleadings, motions, disclosure

statements, responses to discovery. Familiarize yourself with documents relative to

the deponent—read them prior to preparing the deposition summary.

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BACKGROUND WORK

BACKBONE OF LITIGATION

Use the Deposition Summaries to create the backbone for: Overlooked discovery issues. Summary Judgment. Motions in Limine. Preparation for Trial.

Direct/Cross Examination. Impeachment. Laying foundation for exhibits.

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BACKGROUND WORK

THE TIMELINE Start a master timeline at the onset of the client/attorney

relationship. A timeline tells a story and refreshes everyone’s memory of

the bare facts of the case. Populate the timeline by hyperlinking the relevant

documents, either in a case management program, through PowerPoint or another program.

Make sure that those documents have been disclosed. As you create the depo summaries, supplement the

timeline.

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BACKGROUND WORK

THE TIMELINE

Ensure that the timeline has covered all the key facts as early as possible. Let the deposition summaries fill in those gaps

by identifying: The date of the event. The fact. The document. The deposition associated with the fact (Deponent,

date, page/line and document).

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Background WorkTimeline Example

May 1, 2015A&B signed Contract

2015-03-01 Contract_A00001A Depo (2018-04-

11), 53:1-3

June 30, 2015First Payment Due

A00001A Depo 54:2-3

B Depo (2018-04-15) 41:1-4

July 15, 2016B Sends Letter of

Default2015-07-15

Default Letter_A00005A Depo 57:3-12B Depo 67:4-21

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Background WorkTimeline Example #2

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Background WorkCase Management Software

Managing a case from beginning to end with either internal or cloud-based programs: Case Management Software. E-discovery Software. Trial Management Software. Trial Presentation Software.

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Technology and Deposition Summaries

As of March 15, 2018, 31 state bars have mandated an ethical duty of technology competence. Check your state to see if it is one of them: Arizona’s was adopted January 1, 2015.

Software enhances your ability to manage your cases, including e-discovery and case management programs. These software types may be covered in CLE programs.

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In fact, certain states require completion of mandatory technical competency hours. In 2016, Florida became the first state to require completion of three hours of CLE in approved technology programs; North Carolina may be next.

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Here are a few sites that may help in deciding the programs best for your firm: Case Management: ABA Chart.

https://www.americanbar.org/content/dam/aba/images/legal_technology_resources/Charts/PracticeCaseManagement_TimeBilling_IntegratedSoftwareChart.pdf

E-Discovery: Capterra Chart. https://www.capterra.com/electronic-discovery-software/

Trial Management: CaseMap Suite and Case Notebook.

Trial Presentation: Trial Director and Sanction.

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Background WorkBenefits and Drawbacks

Case Management SoftwareBenefits DrawbacksImproves efficiency Requires training on all levels:

support staff and attorneysMany programs interact with each other to decrease duplicative efforts

Takes time to set up and discipline to maintain various databases

Search for documents, key words Technical requirements may mean updating your system

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Deposition Summary and its PurposeWhat is a Deposition?

A witness’ out of court testimony reduced to writing by a court reporter, for later use in court or for discovery purposes, under oath. See, e.g., Black’s Law Dictionary (10th Ed. 2014); FED. R. CIV. P. 30; Fed. R. Crim. P. 15.

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• An objective and concise digest of the main points of a deposition.

• No outside commentary.• It is designed to supplement—not

supplant—a thorough reading of the deposition.

Deposition Summary and its PurposeWhat is a Deposition Summary?

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• Accuracy is key.

• If you believe there are multiple ways to interpret, do not do so in summary. Save this for the notes section.

• Keep all commentary separate.


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• Note any issues between counsel as accurately as possible.

• Objections.

• Instructions not to answer.

• Documents not produced.


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• Preparing deposition summaries takes team work.

• Everyone has their definition of what a deposition summary should be.

• Ensure that the Summaries are consistent and decide on a uniform format.

Deposition Summary and its PurposeWorking as a Team

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• If your depositions need an expert in the area, you may wish to outsource.

• Often it goes through a 3 step process: summary writer, copy editor, quality control.

• If you have many depositions, the return time may be better.

• Outsourcing is approved by the ABA if the firm meets its ethical obligations. See, Formal Opinion 08-451 (August 5, 2008). See also, opinion, National Court Reporters Association: Advisory Opinion 32 of the NCRA (1997).

Deposition Summary and its PurposeOutsourcing or In-house?

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• In-house, you can control the formatting and consistency.

• You can use basic Excel spreadsheets or tables or use a software program that controls the type of summary to ensure consistency.

• It is a stream of revenue for the firm.• Consider using the same standards for each

summary: writer, copy editor and quality control (to review for errors and consistency).

Deposition Summary and its PurposeOutsourcing or In-house?

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• Some e-discovery programs have a deposition summary element that allows you to upload the transcript and make notes; then print out those notes with issues.

• Two transcript summary programs available are built into CaseMap Suite (specifically TextMap)(Lexis-Nexis) and Case Notebook (Thomson-Reuters).

Deposition Summary and its PurposeUsing E-Discovery and Transcript Management Tools

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• You can create a variety of formats for preparing transcript summaries.

• But the software programs are primarily set up where the page/line notations are automatic, followed by the actual transcript section, then the summary.

• You store everything related to the case (documents, pleadings, transcripts, exhibits, video and issues) in one place and can link them to your summary.


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Deposition Summary and its PurposeUsing Case Management and Transcript Management

ToolsCase Notebook Storage

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Deposition Summary and its PurposeCase Map Storage

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Best PracticesVarious Types of Summaries

Page/Line Summaries (Narrative). Topic-Specific Summaries. Issue-Specific Summaries. Chronological Summaries.

None of these are a substitute for review of the transcript.

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Best PracticesCommon Elements

Deponent name. Case Name, Number, Court and Judge Date, location. Your court reporter and videographer. Attorneys present. Name Exhibits with page number references. Easiest notation: 92-93: 25-15. Page

range:line range. Only facts, no commentary.

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Best PracticesVarious Types of Summaries

Page/Line Summaries

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Best PracticesPage/Line Summary

Location to the record and then a brief summary of one topic at a time.

Also note objections and issues raised by attorneys and set forth just those facts in the summary.

Note where exhibits are first introduced. Attorney’s Notes: legal/factual issues and

follow up. Attach all of the exhibits to the deposition

summary and hyperlink them through Adobe. 31

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Best PracticesDepo Summary Software

Page-line summaries through a software program look a bit different. Here is one example from Case Notebook.

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Best PracticesDepo Summary Software

An Example from CaseMap Suite (TextMap)

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Best PracticesTopic-Specific Summaries

Normally follows the subtopics from the deposition outline.

Topics vary from Legal Issues and are the subcategories of the deposition summary.

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Best PracticesIssue-Specific Summaries

This requires preparing a detailed PROOF OUTLINE at the onset of the case, with every issue and defense, burden of proof and all associated elements.

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Best PracticesChronological Summaries

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• Summary condenses testimony by date, as opposed to line by line.• Start the summary at the beginning and proceed as you would with a

page/line designation.• Add relevant dates for each entry.• Then you can sort by date.

Best PracticesOrganization

Set your deposition summary team early. Consider the paralegal or attorney who

coordinated the deposition, prepared the initial outline and gathered documents.

Have everyone read the pleadings, motions, disclosures before preparing.

Set the protocol for the summaries. Determine early whether you will

outsource.37

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Best PracticesOrganization (Continued)

Make sure that you have received the appropriate file formats for loading into Case Management, E-Discovery and Trial Software. PDFs are not the correct format.

Set deadlines for completion. Have an extra set of eyes review final

summary for quality control.

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Best PracticesWriting Tips

Always remember “who, what, when, where, how.”

Use first name of deponent (i.e., “Smith met with Jones on April 2, 2017 at the theatre.”)

Keep the sentence structure short and factual. Check for unnecessary words.

Quote deponent when the statement is important but use quotes sparingly.

Do not restate the attorney’s question in the summary. Summarize the deponent’s answer only.

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Best PracticesWriting Tips

Always designate summaries as work product and attorney-client privileged.

Identify and clearly mark deposition summaries that contain information covered by HIPAA or if they contain other sensitive information.

Be cautious of giving summaries to experts. Consider giving them full transcripts with exhibits only to let them prepare their own independent analysis.

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Deposition Summaries are Integral to Trial Prep

Time matters in every legal case; deposition summaries save time.

Your Designations of the Record are prepared well in advance due to the summaries.

You can create separate notebooks or, as we like to call them, virtual notebooks, for each witness. Include: Cross/Direct Examination Outlines. Summaries. Full text and fully searchable transcript. List of exhibits used in a master database to be searched by

exhibit number, deposition exhibit number, date, witness, etc.

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Deposition Summaries are Integral to Trial Prep

Searching for key words or phrases, documents, dates across the gamut of evidence in a case and you can pinpoint documents to a particular witness and make notations.

“Coding” deposition transcripts, documents, for key words can assist in finding testimony and documents later.

“Issue Coding” in a deposition, as set forth earlier, assists in categorizing evidence for motion practice, direct and cross examination. Issue coding can be used for documents, too.

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Trial PrepLitigation Software

Pulling Deposition Transcripts into a trial program has benefits and drawbacks. But the end result is a much more polished presentation before judge or jury. It is worth the effort. Sanction and Trial Director are the gold standard for

trial presentation because they allow you to manipulate documents, pull up testimony at a moment’s notice and synchronize video depositions with testimony.

You can assign issues and tie issues to witness testimony and documents.

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CaseMap, Case Notebook, and several e-discovery programs can be exported directly into litigation software, such as Trial Director or Sanction.

Issues, notes, documents, timelines and summaries can be exported as well.

If not, the depositions can be easily loaded separately and they are immediately searchable and automatically indexed.

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VIDEOS

A Deposition Summary can include the video clips, but you have to use the program associated with the deposition summary to view.

These summaries and the clips can be exported and used at trial.

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VIDEOS

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Establishing Foundation for Deposition Testimony

When a party admits to a document’s existence and/or execution in the pleadings, responses to interrogatories, deposition testimony, or stipulation or testimony at trial, that admission will be sufficient to authenticate the document.

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Guidelines for using Deposition Testimony at Trial: Admissibility

Have original, sealed transcript available for trial and lodge with court with proper certification for court reporter.

Check local rules for pretrial disclosure and designation of transcript portions.

Comply with statutory requirements if witness is unavailable.

Be able to verify witness’ availability or unavailability; otherwise deposition portions may not be able to be read.

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Guidelines for using Deposition Testimony at Trial: Admissibility

Identify transcript. Ask foundational questions. Ask permission to read the transcript. Ask court to instruct the jury on the

importance of deposition testimony. Designate portions of the transcript. Don’t offer Transcript into evidence.

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Guidelines for using Deposition Testimony at Trial: Impeachment

Get witness to commit to his/her testimony.

Use LiveNote or some equivalent program during trial or evidentiary hearings so that you can mark areas in which you wish to impeach.

Have prior testimony from depositions ready to go to impeach and show prior inconsistent statements.

Use witness’ exact words to frame the testimony word-for-word.

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CONCLUSION

Deposition Summaries, although often overlooked, can be a powerful part of your litigation arsenal.

I hope that the Litigation Aids that we have prepared are helpful.

This presentation has hyperlinks for your convenience.

If you have questions, please feel free to send an email through Lorman and I will respond.

With the time remaining, I am happy to answer questions

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CONFIDENTIAL - ATTORNEY WORK PRODUCT

1 | P a g e

ABC v. DEF

Deposition of John Doe

DEPOSITION SUMMARY

Page/Line

Deponent JOHN DOE Case ABC v. DEF, United States District Court, Arizona

Case No.: 17-cv-000143-SMM

Date/Time June 18, 2018 1:00 p.m. EST

Court Reporter Martin Brennan (Brennan Court Reporting)

Videographer Angela Jones (Jones Videographers)

Attorneys Margaret Smith for Plaintiff ABC

Joseph Anderson for Defendant DEF

Joan Black for Deponent John Doe

Exhibit

Number

Description Bates Number Record

Location

1 Notice of Deposition

2 Subpoena

3 2017-01-05 Promissory Note ABC-00002 5:3, 102:1

4 2017-01-05 Deed of Trust ABC-00010 5:3, 102:1

Record Deposition Summary Exhibit Attorney

Notes

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1 | P a g e

ABC v. DEF


DEPOSITION SUMMARY



Date June 18, 2018






Exhibit

Number


Location


2 Subpoena

3 2017-01-05 Promissory Note ABC-00002 5:3,

102:1

4 2017-01-05 Deed of Trust ABC-00010 5:3,

102:1

5

6

7

Background Information

Record Description Issue/Subject

Born 04-09-1743

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2 | P a g e

ABC v. DEF


NAME, EDUCATION, WORK HISTORY, DEPOSITION

EXPERIENCE

John Doe has been deposed three timesSusan Smith has never been

deposed. General Hospital currently employs her. (6:6-7:25)

Ms. Smith obtained her associate’s degree from Grand College in 1991.

After graduation, she worked at General Hospital on the

medical/surgical wing for approximately one year. (8:1-9:6)

CASE SPECIFICS

She was not the charge nurse on the day of Annie's birth or at the time of

her delivery, and does not recall who the charge nurse was on that shift.

There would have been a charge nurse on shift at that time, because that

was the normal practice. (36:21-38:6; 69:19-70:22)

She does not recall which nurses were there that night, but she has a

personal memory of the events of that time that she was in the delivery

room. (162:2-21)

POLICIES AND PROCEDURES

She recalls a policy and procedure binder which contained various

policies and procedures pertaining to the labor and delivery department

that was kept at the nursing station. (12:19-14:21)

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1 | P a g e

ABC v. DEF


DEPOSITION SUMMARY



Date June 18, 2018






Exhibit

Number


Location


2 Subpoena

3 2018-04-18 Promissory Note ABC-00002 5:3, 102:1

4 2019-04-18 Deed of Trust ABC-00010 5:3, 102:1

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6

7

Breach of Contract

Record Description Claim/Defense

and Element

Exhibit Attorney

Notes/Research

Executed note on

04-18-18 Acceptance

Received Loan

Proceeds on 04-

1018

Consideration

Missed first

payment on 05-11-

18

Breach

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EXHIBIT N

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DESCRIPTIO

NBATES N

O.

RECORD

LOCATIO

N1234

DATE

PAGE/LIN

ETESTIM

ONY SU

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EXHIBIT

NOTES

COURT REPO

RTER: MARTIN

BRENNAN

(BRENNAN

COURT REPO

RTING)

DEPO

SITION SU

MMARY

ABC v. DEF

USD

C ‐ ARIZONA ‐ CASE N

O. 17‐cv‐000143‐SM

MDEPO

SITION OF JO

HN DOE

18‐Jun‐18

VIDEO

GRAPH

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NES (JO

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ERS)

Joseph Anderson for Defendant DEF ATTO

RNEYS: M

argaret Smith for Plaintiff ABC

Joan Black fof Deponent John Doe

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The Best Deposition Summaries for Any Situation · The Best Deposition Summaries for Any Situation...

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