Deposition Skills and Strategies (CLE)

Transcription

1 The American Bar Association Young Lawyers Division 2016 Midyear Meeting San Diego, CA Deposition Skills and Strategies (CLE) Manchester Grand Hyatt Friday, February 5 9:15 AM 10:15 AM

2 DEPOSITION SKILLS AND STRATEGIES LEARN WHAT THEY DIDN T TEACH YOU IN LAW SCHOOL PRESENTERS Patrick C. Burt Gabriel K. White Kipp and Christian, P.C. Christensen & Jensen 10 Exchange Place, 4 th Floor 257 East 200 South, Suite 1100 Salt Lake City, Utah Salt Lake City, Utah Phone: Phone: pburt@kippandchristian.com gabriel.white@chrisjen.com 0

3 TYPES OF DEPOSITIONS There are three types of witnesses to depose: a fact witness, a party, or an expert. Each brings its own objectives and techniques. I. THIRD-PARTY WITNESSES Third-party witnesses are often cooperative, unbiased witnesses to the issues. These witnesses often make or break your case. The objective in examining the third-party witness is to obtain information know. Begin with open ended questions, encouraging them to do most of the talking. Use the skipping around technique to come back to questions that did not get a full answer to the first time around. Make the deposition similar to a casual conversation to ensure openness and honesty. II. PARTY WITNESSES Party witnesses are typically less cooperative. Many times the impression you give to the opposing party goes a long way towards resolution of the case in your client s favor. Be causal, but be somewhat direct in your questions to ensure you get the information you will need. With fact witnesses, you can always call them after the deposition if you missed things; however, this is your one and only chance to talk to the opposing party. Make sure you know what their testimony at trial will be. If you get a good admission or answer, casually move on. If you get excited and ask them to repeat it, they will likely notice their error and try to qualify or explain away the good admission or answer. Know the elements of the relevant causes of action and ask whatever questions necessary to establish or eliminate any of those causes of action. Most importantly, be prepared and be confident. You are sending a message to the other party about what type of lawyer they are up against. If you are prepared, professional, and confident, they will remember that when they are fence sitting about whether to go to trial. III. EXPERT WITNESSES Get the basics: (1) who are you; (2) what were you retained to do; (3) what did you conclude? Do not try to match wits with the expert in deposition. Their level of expertise is greater than yours. If you do have a salient point of contention with their conclusions, save it for cross examination; don t give them a test drive in the deposition. 1

4 DEPOSITION RULES I. Rule 26, F.R.C.P. Subsection (b)(1) outlines that the threshold for discoverable information is relevance. Therefore, deposition testimony only need be relevant and appear reasonably calculated to lead to the discovery of admissible evidence. Note that admissibility is not the threshold. Subsection (b)(2)(a) allows the court to limit the numbers of depositions. Subsection (d) states that you may not conduct depositions until the until you have met the requirements of Rule 26(f) II. Rule 30, F.R.C.P. Absent stipulation, you must have leave of the court to depose a witness more than once All objections shall be recorded, but the questioning proceeds Objections are to be stated concisely and in a non-argumentative and nonsuggestive manner May instruct witness not to answer only to preserve a privilege, enforce a court order limiting evidence, or to present a motion for protective order Unless otherwise stipulated or ordered, a deposition is limited to 1 day of 7 hours o c Objections which are waived if not made in deposition o Form o Errors and irregularities which might be obviated, removed or cured if promptly presented o Objections to the manner of taking the deposition or oath 2

5 DEPOSITION STRATEGY I. Deposition Preparation. Developing a theme of the case Organizing the deposition outline o Topical organization vs. chronological order o Integrating exhibits into the outline o Expected admissions o Wish list II. The Funnel. Moving through the outline. o Start with broad general questions. o Questions become increasingly specific. o Open ended questions become more leading. o Exhaustion. o Boxing in. Witness control o Leading questions o One fact at a time o Repetition o Tone III. Trial Focused Deposition Practice. Laying foundation. Reformatting admissions. Refining the theme. 3

6 EXPERT DEPOSITIONS/DISCOVERY I. Rules Governing Expert Testimony Rule 26(4)(A) states that you may depose any expert identified who may testify at trial. If the expert is required to produce a report, you may only depose the expert after the report is provided. Be aware of the scope/requirements of Rules 702 and 703, F.R.E. II. Purposes and Objectives of Expert Depositions Lock the expert into every opinion he/she will offer at trial. Fall back rule of (1) who are you; (2) what were you hired to do; and (3) what were your conclusions. Determine the qualifications (or lack thereof) of the expert. Explore possible exclusion of expert: e.g. lack of reliable methods. See R. 703, F.R.E. Explore possible impeach areas (bias, lack of thoroughness, lack of precision). Don t attack the expert s opinion; you will only give them a test drive of your trial cross examination. Consult with your own expert prior to the deposition to ensure you get what information he/she may need for his/her rebuttal. Make sure the expert does not plan on additional work/opinions. 4

7 OUTLINE FOR DEPOSITION OF EXPERT WITNESS I. BACKGROUND Education Employment History Membership in professional organizations Certifications/Licenses Teaching experience or articles II. III. IV. PRIOR EXPERT WITNESS EXPERIENCE Prior cases in which acted as expert Retained by plaintiff or defendant How many times testified at trial Ever been disqualified or excluded TIME SPENT ON THIS CASE Number of hours Financial arrangement Billing rate for different phases of litigation ASSIGNMENT IN THIS CASE When were you first contacted? What were you asked to do? What is the scope of your retention? V. OPINIONS What opinions have you reached? Are there any other opinions? VI. VII. VIII. BASIS OF EACH AND EVERY OPINION Walk through each opinion and nail down all facts or information upon which each opinion is based. Is there anything else upon which your opinion is based? ADDITIONAL CONTEMPLATED WORK Any further work you will do? What and when? HAVE YOU HAD THE OPPORTUNITY TO DISCUSS ALL OF YOUR OPINIONS? (Shut the door). 5

8 PATRICK C. BURT Patrick Burt began his legal career with the Office of the Attorney General in Phoenix, Arizona, where he quickly gained courtroom and trial experience litigating cases for CPS. In 2005, Mr. Burt moved into private practice with the law firm of Wilson-Goodman & Fong, where he handled civil litigation matters in the Phoenix area. In 2007, Mr. Burt joined the firm of Kipp & Christian. His practice emphasizes professional malpractice defense, commercial litigation, product liability law, personal injury law and general civil litigation. Mr. Burt is AV rated and annually recognized by Super Lawyers.

9 GABRIEL K. WHITE Gabriel White is a trial lawyer at the Salt Lake City law firm of Christensen & Jensen. He tries cases on behalf of plaintiffs in personal injury, wrongful death and medical malpractice matters. He also represents parties in commercial disputes. Mr. White has tried cases in state and federal courts across the state of Utah. He was named Young Lawyer of the Year by the Utah State Bar in 2012 and has previously served as the president of the Utah Young Lawyers Division. He has been recognized by Super Lawyers Magazine every year since 2009.