Pre-Trial Advocacy

17 February

• The main deposition rule is 30.
• Today we're going to focus on practicalities, not the rules so much.
• You're limited to 10 depositions without leave of the court or stipulation. People play hardball with this, because they are costly. So choose them wisely: depose the people who are key to the case. Unless somebody is dying or expected to be unavailable, don't bother deposing people on your own side of the case (i.e., to preserve testimony). You see perpetuation depositions in toxic tort and medical malpratice cases.
• If a party dies during a lawsuit, you send a "suggestion of death" (a special notice): you have 60 days to substitute in the estate of the deceased, or else the lawsuit is dismissed.
• Most depositions are "discovery" depositions: trying to get information you need in order to prove what you need, and know what the case is about. There's also preliminary depositions, perpetuation, etc.
• The location of the deposition can be a powerful tool.
• First question is how long the depo is likely to take (this can get hard to predict when there are multiple parties, etc.). You're limited to 7 hours in federal court (no state limit in WI).
• You need to have the 26(f) conference before any deposition, and memorialize that conversation for the court.
• Whoever notices a deposition first gets to take the first deposition. There are ties, and depositions can happen simultaneously.
• It's traditional to do paper discovery before depos. But there are exceptions, like when you want to lock in a witness whom you think is a liar, in order to let other facts betray him.
• Remember that you're creating a tool for controlling a witness at trial. Try to get what you want in a single question and answer: go back and follow up to make it as clear as possible.
• You can depose specific people (i.e., Pappas), or by role (i.e., the person most knowledgeable about employment contracts). This puts the opposing party in the position of finding the witness who can bind the company on the subject, and get them properly prepared. It might wind up being more than one person.
• The other side gets to see all the documents used to prepare a witness. So always ask what the witness did to prepare for depo, what they looked at, who did you talk to, what did you discuss (of course privilege will cover some of this). That sometimes gets you extra discovery, that the other side didn't want to show.
• Preparing: look at pleadings, discovery, etc., and think about the case, and what you want out of the witness (either affirmatively for your own use, or stuff you don't yet know about). Make yourself a cheat-sheet to make sure you don't miss anything. Read over the correspondence file again (all the notes exchanged between you and the client about the status of the case): it will remind you of all the stuff people have thought about throughout the case.
• Make a chronology that shows how the witness fits in, and correlate that with the file (i.e., find all instances of that witnesses name in case documents).
• You should spend more time planning a depo than taking it. An outline is essential (and chronological order works well), and you need to have your documents ready to go when you get there.
• Make sure there's a court reporter. Give notice if there's going to be video. If you find out there's going to be video, witness preparation takes on a performance dimension.
• The person taking the depo gets the original transcript. In federal court, you file the original, sealed, with the court. Ironically, you must unseal it to file it electronically (which is now required).
• E-transcript is a nice thing, usually available at no additional charge. You can also ask for a "dirty disk:" an un-proofread electronic copy available faster than the official copy.
• You need to make a record of your objections.
• If the witness asks you a question: "I'm not under oath, sir, I'm sorry."
• Start out by introducing self, being friendly, talking a bit about something unrelated. Don't raise your voice (unless an expert is giving you a lot of grief). If you have to ask a truly uncomfortable question, just look down. :) Being likeable in a depo can preserve your ability to negotiate later on.
• Remember to have court reporter swear in the witness.
• You want the court reporter to like you, too. They can make your life easier.
• Start out with background info: this will loosen up the witness, those are easy, uncontroversial questions. You're allowed to get some biographical info.
• Either have exhibits pre-marked, or mark them in the course of the deposition. Ask the court reporter to mark it (bring 3-4 copies: one for reporter, one for you, one for other counsel, one extra; give the marked copy to the witness).
• Objection: can be on form, foundation, or privilege. Of course objections are often used to coach a witness: to warn them, etc. Let that go once or twice, and then say, "counsel, it's form or foundation." If they persist, you can stop the depo. Privilege is the only reason you can instruct a witness not to answer; doing otherwise is sanctionable. If the other side persists, you can stop the depo and move for a protective order.
• Don't allow a depo to break between two days. They're not supposed to prepare more, but it happens. If there's a break, always ask "did you talk about your testimony?" Never let anyone take a break when there's a question pending.
• You can tell the client to stick to just answering questions, or to say "yes or no" instead of "uh-huh."
• Threats to call judges rarely play well. But might as well bring the right phone number just in case. And if you're going to do this, make a concise clear record. When someone threatens to call the judge, say "the phone is right there."
• Use multiple styles of questions, because people respond differently. Ultimately, for summary judgment, you'll want leading questions with a yes or no answer. That's what will get the job done.
• Form and Foundation are objections that the lawyer can cure by asking a different question. If an objection isn't raised, it's waived, by the way. Make opposing counsel explain the nature of the objection.
• Depos aren't automatically evidence. They're to gather info and impeachment material.
• Defending the depo: take the time necessary to prep the witness.
• Parties and attorneys have the right to attend a depo. Nobody else. But you can make exceptions.
• Be very wary of phone depo. Never do a party by phone. Maybe a minor neutral witness is OK. It usually means getting the exhibits to the witness in advance, which is sometimes not desirable.