Civil Procedure I

20 October

• Rules 30 and 45 are pretty much the first we have seen that apply to non-parties.
• Rule 45: subpoena (don't need to subpoena parties, because they are already under the power of the court.
  • Grographical restriction: 100 miles or state boundaries, whichever is greater (i.e., a subpoena can reach over a state border if it's not beyond 100 miles).
  • Outside the geographical limits, you get a court in appropriate distance to issue the subpoena. You can't compel folks from faraway to show up for your trial.
  • You can get depositions or documents (see 30(b)(2))
  • You can subpoena organizations (see 30(b)(6))
• Propounding: asking a question during discovery
• Lawyering involves one judgment call after another, and the rules don't answer all the questions we might have.
• Answering discovery requests is pure defensive play: nothing we produce will help our case.

22 October

• Deposition Demo
  We will get the transcript from this as evidence.

  Long isn't nearly as imposing in person.

  Knuckles are missing??! Disarming is part of the arrest procedure, but Long doesn't know where they are. The scene was complex. 911 call mentions a riot in progress; Long knows the neighborhood, expects the situation is racially charged.

  Defense lawyer pays attention not just to the character of the question, but also to whether an answer has strayed outside the bounds. Standing objection to questions regarding the number of complaints.

  The defense lawyer is awesome. He subtly helps the witness get off the hook.

  Everyone must have produced the police report, because it is now in evidence here.

  They confront him with evidence, like reports and the tape.

  Note that others were trying (and failing) to pull Raheem off of Aiello.

  Reporter can ask for names, etc, to be repeated.

  Testifies that Aiello is free while there is still clearly a struggle in progress.

  Very interesting discussion of "take him down."

  Machine shorthand translated to longhand real-time.

• Defending a deposition is an important skill: prepare by knowing all the documents, and the witness (usually not that smart). Know how much leeway to give. Key principles: keep answers short, take breaks, and rely on "I don't know" and "I don't remember." Stay active when defending. Never look surprised. Look bored but don't be bored. Possibly, just stare at the opposing counsel, maybe disrespect a little (get the name wrong, etc.). It is OK to throw opposing counsel off their game.
• Deposition is not the place to get the last word or to "win" the case. You are there to gather information. You want the deponent to talk as much as possible-- at trial you want to be in control. Let them have their say-- they probably won't help themselves.
• You can bluff and make some kinds of other interjections to signal to the client that an area is "ouchy," and make opposing counsel waste time and money, if you are defending a deposition.
• "If you wrestle a pig, both of you get muddy and one of you enjoys it." -- The Proverbs of Schwartz.
• The antidote to lawyer staring: pretend that opposing counsel is not there, and focus on the witness. Treat the defending lawyer as a minor nuisance, and don't let them interfere.
• Defending: look out for improperly formed questions. Failing to object at deposition may waive an objection at trial. Look out especially for compound questions.
• It is a good practice to always send a confirming letter about every discussion, so that it's noted.
• Read the memo comments carefully. The number one cause of vague criticism about writing is weak topic sentences.

---

• One way to know that you've done enough research: you see the cases citing the same rules of law over and over.
• The rules will be the same whether you're the plaintiff or the defendant. Subtle and profound point.
• Format will not decide the issue, if you do the format correctly; if you do not, however, it may be dispositive.