CONTENTS. vii. Acknowledgments

Transcription

1 CONTENTS Acknowledgments xvii Chapter 1 The Role and Importance of Depositions 1 The Essentials: Preparation and an Understanding of the Deposition Process 1 How the Book Approaches Depositions 4 The Use of the Scoops Case 6 Chapter 2 Discovery Methods, Discovery Planning, and Reasons to Take (or Not to Take) a Deposition 9 The Federal Discovery Scheme 10 Creating a Discovery Plan 19 Purposes of a Deposition 22 Chapter 3 Securing the Attendance of the Witness 35 Stipulations 36 When Do Depositions Occur? 36 How Many Depositions? 37 How Long May the Deposition Last? 41 Securing Attendance of the Deposition Witness 42 Requests for Documents 55 Depositions Before Action or Pending Appeal 57 Depositions on Written Questions 59 Conclusion 60 vii

2 Effective Depositions Chapter 4 Preparing to Take or Defend a Deposition 73 Preparing to Take a Deposition 73 Preparing to Defend a Deposition 85 Chapter 5 Meeting the Witness 105 Paul C. Palmer G. Richard Dodge, Jr. Introduction 105 Initial Contacts with the Witness 106 Sending the Witness Materials for Review Before the First Meeting 108 Preparation Sessions: When, Where, How Often, and with Whom 109 Chapter 6 Establishing and Preserving the Attorney-Client and Work-Product Privileges 117 Peter Gruenberger Importance of Establishing an Attorney-Client Relationship 118 Elements of the Attorney-Client and Work-Product Privileges 118 Confidentiality and Waiver of Privilege 127 Other Issues Arising from Representation of Corporate Employees 130 Chapter 7 Procedural Preparation of the Witness 151 Paul C. Palmer G. Richard Dodge, Jr. Placing the Deposition in Context 153 Explaining the Deposition Process 154 Twenty Guidelines for Deposition Testimony 157 Proper Practice Versus Improper Coaching 170 Final Instructions to the Witness 172 viii

3 Contents Chapter 8 Chapter 9 Substantive Preparation of the Witness: Reconstructing Reality 181 Dennis R. Suplee Diana S. Donaldson Ethical and Practical Constraints 183 Preparing for Witness Preparation: Seven Rules 185 Preparing the Witness: Rules for Reconstructing Reality 192 Discoverability of Documents Used to Refresh the Recollection of a Witness: Federal Rule of Evidence Peter Gruenberger The Perils of Ignoring Federal Rule of Evidence FRE 612 in Theory 212 FRE 612 in Practice 212 Defending a Deposition: Structuring the Preparation 214 Understanding the Tests 214 How to Avoid Putting Privileged Documents at Risk 217 How to Lay a Foundation at Deposition for the Discovery of Documents Used to Refresh Recollection 219 Chapter 10 Special Witness Preparation Situations 229 Paul C. Palmer G. Richard Dodge, Jr. Examination of Your Own Client at the Deposition on Cross-Examination 229 Preparing a Nonparty Witness for Deposition 231 The Video Deposition 233 ix

4 Effective Depositions Chapter 11 Taking the Deposition 241 Arranging the Deposition Room 242 Conferring with the Court Reporter 244 Opening Statement by the Deposition Officer 244 Opening Remarks and Stipulations 245 Opening Questions 251 Organization of Questions 260 Examination Techniques 260 Breaks 278 The Science of Asking Questions 280 Nonverbal Communication 284 Conclusion 292 Chapter 12 Using Documents at a Deposition 301 Obtaining Documents for Use at a Deposition 302 Selecting Documents to Use (or Not to Use) at a Deposition 302 When to Show a Document to a Witness 305 Administrative Details 307 Sample Examination with a Document 309 Chapter 13 Laying Foundations for Documents at a Deposition 321 David A. Sonenshein Reasons to Lay a Foundation for a Document at the Deposition 322 Reasons to Establish a Negative Foundation at a Deposition 322 How to Lay a Foundation for the Admissibility (or Inadmissibility) of a Document 323 Examples of Laying a Foundation for Admissibility and Inadmissibility 332 Exhibit A Scoops v. Business-Aide, Inc., Document 7 (D-7) 337 x

5 Contents Exhibit B Scoops v. Business-Aide, Inc., Document 4 (D-4) 338 Exhibit C Scoops v. Business-Aide, Inc., Document 1 (D-1) 339 Chapter 14 Defending the Deposition 341 Stuart W. Gold Taking Care of the Preliminaries 342 Making Objections 345 Objections That Must Be Made at the Deposition or They Are Waived 350 Objections That Are Preserved 354 Defending at a Nonparty Deposition 360 Reactions by the Taker to the Defender s Tactics 360 Instructing a Witness Not to Answer 362 How to Handle the Taker s Introduction of Surprise Documents 367 Defender s Response to Document Requests During a Deposition 368 Examining Your Own Witness 368 Adjournment 370 Conclusion 371 Chapter 15 Problem Counsel, Problem Witnesses 387 Jeffrey S. White Eve T. Saltman Preparation 389 Problem Situations for the Examiner and Suggested Responses 390 Problems for the Defender in Controlling the Examiner 403 Problem Witnesses 405 Conclusion 413 xi

6 Effective Depositions Chapter 16 Issues for Women at Depositions 423 Lorna G. Schofield How Gender Differences in Verbal and Nonverbal Communication Affect Taking and Defending 424 How to Combat Difficult Adversaries and Witnesses 430 Seeking Judicial and Other Intervention 434 Conclusion 436 Chapter 17 Chapter 18 The Video Evolution: Pretrial and Trial Considerations 443 Virtues of Using Video Pretrial 444 Depositions Made Easy: Noticing Requirements and Recording Logistics 449 Surprise! You re on Candid Camera: Video Depositions Can Demand Different Techniques by Both the Examiner and Defender 459 The Use of Video Depositions at Trial 462 Conclusion 466 The Realtime Advantage: Using Realtime Transcription for More Effective Depositions 477 Hal S. Marcus Introduction 477 How Does It All Work? 478 Benefits for the Taker 484 Benefits for the Defender 488 Benefits for All Involved 489 Serial Versus Internet-Based Realtime 490 Rules, Regulations, and Realities 496 Requesting Realtime Reporting Services 498 Additional Costs of Realtime Reporting 499 Possible Cost Savings from Realtime Reporting 500 What to Expect in the Future 501 xii

7 Contents Chapter 19 Expert Witness Depositions 505 Raoul Kennedy Rules Governing Expert Discovery 506 Testifying Experts 508 Nontestifying Experts 509 Privileges Relating to Expert Witnesses 521 Scientific Expert Testimony 525 Preparing One s Own Expert for Deposition 528 Deposing the Opponent s Expert 537 Chapter 20 Taking and Defending the Deposition of the Class Representative 559 George Donaldson Special Features of Class Actions 560 Expanded Scope of Discovery Permitted in Class Actions 561 Questions About Adequacy 561 Questions About Typicality 567 Conclusion 569 Chapter 21 Deposition Perjury by Your Witness 579 Source and Nature of a Lawyer s Duty 580 Requirements of Knowledge and Materiality 589 Preventing and Remedying Client Perjury 594 Adverse Consequences to Client and Lawyer 596 Conclusion 599 Chapter 22 What to Do When the Fifth Amendment Pays Civil Litigation a Visit 609 Michael J. Shepard How to Decide Whether to Assert the Privilege 610 How to Assert the Privilege 613 How the Assertion of the Privilege Plays Out at a Civil Trial and on Dispositive Motions 615 xiii

8 Effective Depositions How to Avoid the Assertion of the Privilege as Well as How to Avoid or Lessen Adverse Inferences 621 Conclusion 624 Chapter 23 The End of the Deposition 633 Mark D. Petersen Concluding the Testimony 634 After the Deposition 648 Pretrial Uses of Depositions and Preparing for Trial 657 Using Depositions at Trial 664 Conclusion 666 Chapter 24 Managing, Summarizing, Indexing, and Searching Depositions: The Role of Paralegals and Computer Software 677 Christine Bergren Greene Types of Summaries 678 Using Computers to Index and Search Depositions 689 Conclusion 698 Chapter 25 Using Depositions at Trial 703 Donald W. Carlson Robert M. Peterson Depositions as Substitute Testimony 704 Practical Considerations and Tactics in the Introduction of Deposition Testimony at Trial 708 Using Depositions to Contradict or Impeach the Trial Testimony of a Witness 712 Using Depositions to Rehabilitate a Trial Witness 718 Using Depositions to Refresh Recollection 720 Using Depositions as Past Recorded Recollection 722 Conclusion 723 xiv

9 Contents Appendix Exhibit A Sample Notice of Deposition and Request for Production of Documents 719 Exhibit B Schedule of Documents to Be Produced 731 Exhibit C Proof of Service 738 Appendix 2-A Appendix 2-B Federal Subpoena Form: Subpoena to Testify at a Deposition or to Produce Documents in a Civil Action 739 Federal Subpoena Form: Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises 743 Appendix 3 Supplies to Take to a Deposition 747 Appendix 4 A Lawyer s Guide to Preparing a Deposition Witness 749 Appendix 5 Starting the Deposition 759 Appendix 6 Appendix 7 Appendix 8 Model Questions for Discovery About a Conversation: The Four C s 761 Model Questions for an Examination About a Document 765 Objections at a Deposition in Federal Practice 769 xv

10 Effective Depositions Appendix 9 Adjourning the Deposition in Federal Practice 777 Appendix 10-A Introduction of Deposition Testimony at Trial: Pretrial Considerations 779 Appendix 10-B Introduction of Deposition Testimony at Trial: Model Format for a Jury Trial 781 Appendix 11 Impeachment by Prior Inconsistent Deposition Testimony: The Three C s 783 Table of Cases 000 Index 000 About the Principal Author and Editor 000 About the Contributors 000 xvi