· A deposition is a question‐and‐answer session between the attorneys to a lawsuit and a witness (the deponent) where the witness’s answers are given under oath, taken down in writing by a court reporter and used by the attorneys to prepare for trial. In fact, deposition testimony can also be used in court at trial. A deposition is typically held in a lawyer’s office …
Prepare your client on substantive issues of the case. Begin the deposition preparation session by reviewing the key facts of the case with your client. Have your client recite the key facts of the case to you in chronological order. Focus your client on the facts and issues that you know are important. You do not need to be too detailed or technical.
· 1. MAKE COPIES OF THE CIVIL RULE: The Civil Rules relating to deposition discovery have provisions governing conduct and objections that are permissible during a deposition. With some defense counsel it may be a good idea to mark a copy of the rule as an exhibit and remind counsel of its provisions) 2. COPY ANY SUBPOENA.
A civil deposition is part of the discovery process in civil litigation. A deposition is basically a question-and-answer session between the attorney representing one of the parties in a lawsuit, …
In order to prepare your client for a deposition, you have to know the key issues of your case. You cannot effectively prepare your client and your client cannot be an effective witness unless you have an understanding of what both you and your opponent are trying to prove.
Your client’s deposition is critical to your case. The answers given by your client can affect strategy, lead to adverse rulings, or affect the outcome of trial. Some cases can be lost at depositions. To do a really effective job of defending a deposition, adequate and meaningful preparation is a must. These guidelines will hopefully be helpful in getting you there.
Instruct your client not to guess or speculate but to testify only from personal knowledge. Explain the difference between a guess and an estimate. Make sure your client knows that a deposition is not a memory test and that “I do not know” or “I do not recall” are perfectly acceptable answers.
Inform your client that if the question is unclear, she should ask counsel to rephrase or clarify it.
No matter what type of case you are handling, and regardless of whether you are representing a plaintiff or a defendant, one of the most significant events in any case is a client’s deposition. A client deposition can affect a case in many different ways. If your client performs poorly, this may impede your ability to prove your case, ...
In some instances, your client’s deposition can be the demise of your case. Yet, many of us view deposition preparation as a low priority exercise and are content if we can simply get our client to give testimony that does not harm our case. This, for obvious reasons, is not the best approach.
Typically, opposing counsel will object to taking a break in the middle of a question. However, you should instruct your client to always ask for a break if a question may cause her to reveal privileged or confidential information so that she can discuss the issue with you before answering.
A civil deposition is part of the discovery process in civil litigation. A deposition is basically a question-and-answer session between the attorney representing one of the parties in a lawsuit, and a witness who is believed to have information relevant to the lawsuit.
There are many factors that go into finding the right civil deposition attorney like education, experience, and any history of misconduct. That's why LegalMatch streamlined the entire process so you can find out everything you need to know to make the right decision for you.
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Each deposition needs: to be useful and effective at trial in cross-examination; to help you prevail over summary judgment on as many of your causes of action as possible; and, to convince the decision-maker on the other side of the risk of taking the case to trial.
These include, in addition to discovery, (i) setting up impeachment, (ii) pinning down specific testimony necessary for a motion, or to establish the elements of a claim, (iii) boxing witnesses in, or out on specific matters, (iv) preservation of testimony for trial, (v) assessment and settlement, (vi) and many others. It is generally agreed that different techniques (including, for example, the use of leading questions, or carefully structuring an examination to limit the testimony given) may be appropriate, depending on the purpose of the examination.
If the former, know (and write down) generally what you’re looking for, so you know when to stop. If the latter, have the cross well-scripted, and be able to back up what you’re asserting with a specific reference to a specific part of a document or testimony. In A Few Good Men, what would Tom Cruise have done if Jack Nicholson had answered, “I’m giving you the truth”? Would Cruise have stomped his feet shouting, “nuh uh”?
Tips to Prepare for a Deposition. Research the law and keep the theory of the case in mind. In order to take effective depositions, attorneys need to know what questions to ask, and to do that, they need to know the law . Although it seems obvious, many attorneys do not research the law before starting discovery.
In the discovery deposition, what you don’t know can later hurt you. To avoid being hit at trial with something you neglected to cover at a deposition, you have to be ready to adapt. By the same token, failing to follow-up may result in missing vital testimony that could significantly help your case.
Every attorney has a deposition style all their own. However, even the best deposition takers can improve. This article sets forth tips and strategies for improving deposition preparation and deposition taking skills.
Regardless of whether the deposition takes place in an area of the country where parties customarily enter into the “usual stipulations” or that is just a meaningless phrase in the jurisdiction at issue, do not agree blindly. Consider whether each deposition is one where detailed objections might be needed.
Accordingly, an attorney would waive objections based on the officer's qualifications, another attorney's behavior at the deposition, and to the form of the question if not made during the deposition. All other objections are preserved.
Given how few cases go to trial, this may also be true in some depositions. If you like the record you have created and you have met your goals, do not be afraid to end the deposition rather than continuing at the risk of giving the witness a chance to undo the things you achieved up to that point.
Do not blindly agree to the “usual stipulations.” You do know what the usual stipulations are, don’t you? That is okay. No one else does either.#N#In many areas of the country, there are no usual stipulations. In other areas, it may be customary to enter into the “usual stipulations,” but “ [t]here is no judicial definition defining what this phrase means and very few decisions explaining” the meaning. Kathy Behler, Best Advocacy Fix: Depositions and Stipulations, The Legal Advocate, (Nov. 4, 2013). Further, there is not always a consensus among practitioners. See Molfese v. Fairfaxx, 2006 WL 908161, No. 3:05-cv-317 (D. Connecticut April 4, 2016) (deciding whether the “usual stipulations” means in part to that the parties waive the right to review and sign the deposition transcript); Marshall v. Planz, 145 F. Supp. 2d 1258 (M.D. Ala. 2001) (holding that, in this case, the “usual stipulations” do not reserve objections regarding privilege, despite arguments to the contrary).#N#Accordingly, an attorney asked to agree to the “usual stipulations” should either decline to do so, or clarify on the record what is meant by that term. Several recommended responses to “do you just want to agree to the usual stipulations?” are set forth below:#N#“No, I don’t do that.”#N#“That’s fine; we just need to put them on the record.” Then, just start the deposition by stating “we have agreed to the usual stipulations. By that, we mean that all objections are reserved, except those as to form and privilege.”#N#“No, let's just do the deposition per the Rules.”
The best way of ensuring that you cover everything that needs to be covered while remaining flexible is using a checklist. Simply check off each item you've covered, and you can confirm that you've covered everything before the deposition ends.
Depositions aren't just about shoring up your theory of the case - they are also about learning . That's why a good questioning strategy usually involves a mix of open-ended questions and focused lines of cross examination. If you pay very close attention to the witness's answers, you'll often notice strange discrepancies or curious facts. Following up on these clues dropped along the way is critical to getting the truth from the witness. Don't be so focused on your next question that you miss on opportunity to learn something new about the case.
For example, opposing counsel might make "speaking objections," which are nefarious because they're a way of coaching the witness on how to answer your questions. If the attorneys keeps saying things like "Objection, calls for speculation" or "Objection, compound question," you need to step in and stop it.
If you start your deposition in the morning, then the so-called "witching hour" will be around 4pm. The witness will be exhausted and ready to leave. It's at this time that patience grows thin and lessons learned in preparation start to melt away. You don't want to be overly aggressive or rude at this time (or any other), but this is a particularly effective time to deploy a pre-prepared series of questions intended to force an important admission. You'll often be very surprised at the things witnesses say after 4pm, so save some of your best material for this time when it's most likely to work.
Witnesses evade. They mostly do so by saying they don't remember what happened in the past. They might also claim not to understand a concept or process. Once a witness digs in with this strategy, it's very hard to dig them back out. The trick is to gently lead the witness into admitting their competence and memory before you start asking detailed questions about key events. Assume you were deposing a police officer and needed to get questions about what happened during an arrest.
One of the more effective questioning techniques is being silent. Most witnesses aren't prepared very well, and silence makes them feel uncomfortable, so they keep talking. Often, a rambling witness will say things that are very helpful to your case. So, when the timing is right, don't ask your next question: look at the witness like there's more to be said and let the silence get awkward.
There are numerous things you can do with the footage, including using it at trial, using it to get feedback from a focus group, video review of key moments, and including clips as exhibits to a motion. Audio transcript review tools can also be utilized with footage to stay informed with all vital information.