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Presenting a live 90-minute webinar with interactive Q&A

Advanced Deposition Techniques: Leveraging

Exhaustion, Boxing-In, and Summarization

Approaches With Adverse Witnesses

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

TUESDAY, MARCH 14, 2017

Michael R. Gordon, Partner, Manatt Phelps & Phillips LLP, New York

John A. Snow, Esq., Prince Yeates & Geldzahler, Salt Lake City

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ADVANCED DEPOSITION

TECHNIQUES- PART I: INTRODUCTION

John A. Snow

Prince, Yeates & Geldzahler 15 West South Temple, Suite 1700

Salt Lake City, Utah 84101

Main No. (801) 524-1000 Direct (801) 524-1073

E-mail jsnow@princeyeates.com Web-Site www.princeyeates.com

5

To Take or Not Take a Deposition –

Considerations

6

To Take:

• Cost v. Benefit

• Obtaining concessions and admissions from the witness that support matters favorable to the case

• Obtaining potential direct testimony of an adverse party

• Preserving testimony for trial

• Obtaining information which can be used for impeachment

• Obtain facts to support or oppose a motion

To Take or Not to Take

To Take or Not to Take

To take:

• Establishing facts known within an entity by use of a Rule 30(b)(6) deposition

• Establishing the universe of information known by the witness

• Discovering facts and opinions known or held by the opponent and third parties

• Laying the foundation for documents or other evidence

• Revealing parts of your case for settlement purposes

8

Reasons Not to Take

There are reasons not to take a deposition. For example:

• The questions asked and the documents used at a deposition communicate to the opposition information the attorney deems important, and a sense of how the case will be tried.

• A deposition gives the witness a practice session before trial, and, as a result, makes him or her a better opposition witness at trial.

• Depositions also preserve testimony of a witness, which could be helpful to the opposition.

• Alternative methods to preserve testimony

9

To Take or Not Take a Deposition –

Permissible Use of a Deposition

10

Use of a Deposition

Rule 32 (a). Using Depositions: (1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions:

(A) the party was present or represented at the taking of the deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and (C) the use is allowed by Rule 32(a)(2) through (8).

11

Use of Deposition

Rule 32(a). Using Depositions.

(2) Impeachment and Other Uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence.

12

Use of Deposition

Rule 32(a). Using Depositions:

(3) Deposition of Party, Agent, or Designee. An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).

13

Use of Deposition Rule 32(a). Using Depositions:

(4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds:

(A) that the witness is dead;

(B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition;

(C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;

(D) that the party offering the deposition could not procure the witness's attendance by subpoena; or

(E) on motion and notice, that exceptional circumstances make it desirable--in the interest of justice and with due regard to the importance of live testimony in open court--to permit the deposition to be used.

14

Use of Deposition

Rule 32(a). Using Depositions:

(6) Using Part of a Deposition. If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.

15

Use of Deposition Rule 32(a). Using Depositions:

(8) Deposition Taken in an Earlier Action. A deposition lawfully taken and, if required, filed in any federal- or state-court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the Federal Rules of Evidence.

16

Timing of the Deposition – Considerations

17

Timing – Discovery Strategy

• Consider first obtaining universe of relevant documents.

• Consider first obtaining the testimony of others.

• Knowing the opposition’s basic contentions.

• Knowing the contentions of co-defendants.

• Knowing the pertinent legal and evidentiary issues.

• But, not ways, you may educate the opponent or allow the opponent to become educated.

18

Video Depositions

19

Reasons to Take a Video Deposition • Presumably, everything is better received on video

• Capture initial reactions (if possible) of the opposing party to “tough” questions

• Consideration of use in closing argument and possibly opening statement • Reminds the jury of who the witness was • Reminds the jury of the actual statement made

• Unavailable witnesses – even if marginal(?)

• Impeachment/Cross-examination is more effective

• Video can impact the witnesses demeanor

• Difficult attorney are better controlled on video

• Evasive witnesses appear evasive on video

• Jury study with video depositions

20

Observations by the Courts Littlewood v. Fed. Realty Inv. Trust, 2014 WL 6713468, at *1 (Mass. Super. 2014) A number of cases “have extolled the advantages of video depositions and preference for their use in a trial, noting that a witness' demeanor reflected in his motions, expressions, voice inflections, etc., give the fact-finder a unique advantage in evaluating evidence, resulting in appellate courts granting greater deference to such findings.” Rice's Toyota World, Inc. v. Southeast Toyota Distrib., Inc., 114 F.R.D. 647, 649 (M.D.N.C.1987) “Video depositions can markedly increase accuracy and trustworthiness. In addition, to the extent that a video deposition reduces tedium, the fact-finder's concentration and attention will be enhanced, again to the benefit of the decision process.”

21

Observations by the Courts

Citizens for Responsibility & Ethics in Washington v. Cheney, 580 F. Supp. 2d 168, 183 (D.D.C. 2008) The liberalization of the Federal Rules to permit videotaping of depositions without prior authorization of the courts reflects “recognition of the fact that videotapes are a means of presenting deposition testimony to juries that is superior to readings from cold, printed records.” Paisley Park Enters., Inc. v. Uptown Prods., 54 F.Supp.2d 347, 349 (S.D.N.Y.1999). A videotaped deposition also has the advantage of “conveying to the fact finder the full message of the witness in a manner that assists the fact finder in assessing credibility....” Riley v. Murdock, 156 F.R.D. 130, 131 (E.D.N.C.1994).

22

Deposition – Objections

23

Objections Rule 30(c)(2) (c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions. (2) Objections. An objection at the time of the examination--whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition--must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

24

Objections - Waiver Rule 32(d) Waiver of Objections.

(1) To the Notice. An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice.

(2) To the Officer's Qualification. An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made: …

(3) To the Taking of the Deposition. (A) Objection to Competence, Relevance, or Materiality. An objection to a deponent's competence--or to the competence, relevance, or materiality of testimony--is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time. (B) Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if:

(i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and (ii) it is not timely made during the deposition.

25

Preparation of Depositions

26

Preparing for the Deposition - Examination

• Knowledge of the topics to be examined with the witness

• Outline of topics (and specific questions) to be addressed

• Consideration of sequence of questions • Topics • Chronology • Exhibits

• Consideration of impeaching at the deposition • Consideration for impeaching at trial • Consideration of how the deposition may be

used

27

Preparing for the Deposition - Exhibits

• Organization • By event

• By Issue

• By Date

• Coordinated to outline

• Hard Copies or Electronic Copies

• Identification • Control Number

• Title

• Highlighted Exhibits for Examiner’s Use

28

Part II & Part III Exhaustion and Restating/Summarizing

Deposition Testimony

Michael R. Gordon, Partner Manatt, Phelps & Phillips, LLP

7 Times Square, New York, New York 10036 212.790.4603

mgordon@manatt.com

29

Taking depositions is being fearless

• Know your litigation position – what’s the big picture?

• Know your deposition goals – why are you doing this?

• Be fearless – don’t allow yourself to be run over

30

Part II Hypothetical

Hypothetical Case:

Plaintiff Peter Parkour (“PP”) claims defendant Big Bad Bank (“BBB”) wrongfully foreclosed on certain commercial real property in which PP claims an interest even though PP did not record any interest therein

Issue:

Whether BBB had actual notice of PP’s claimed interest in the real property, in which case BBB would have been under a legal obligation to notify PP of the mortgage foreclosure proceeding

Witness: BBB’s General Counsel, a former BBB loan officer

Primary goal: To ascertain whether BBB’s General Counsel

actually reviewed relevant loan files and spoke with BBB loan

officers and others familiar with the loan and the real property

31

Know the rules

• Confidence comes from knowing the rules

• The rules: – Federal or State rules

– Local rules

– Individual practice rules

– Ethical rules

• Be prepared with cases and/or opinions

• Don’t be afraid to call the judge – but don’t be the one who cried wolf

32

Develop a strong outline

• No winging it – Be prepared

• Consider tablet and other e-technology

• Whether paper or electronic, outlines take time

• Strong outlines are focused and methodical but accommodate flexibility

• Listen carefully and react, but hold down the fort – don’t allow yourself to be pushed off your game by your adversary or the witness

• Use unexpected answers as springboards to related questions (know the difference between new lines of inquiry and wild goose chases)

• No two outlines are the same (generally; but see, e.g., depositions of plaintiffs in multi-plaintiff toxic tort cases)

• All outlines end with: Don’t forget to go back to the top of the outline and carefully review the questions – did I ask everything I need to ask, or am I rushing to get home to play tennis/see the kids/have a cocktail?

33

Example of a strong outline

• Introductions and stipulations – Introduce yourself and your colleagues – note your client and litigation – Confirm reporter has noted presence of all in attendance – Note any unusual conditions – Confirm reporter notes start time

• Confirm stipulations to be followed • Background – don’t shortcut

– Education – General experience – Specific experience – Deposition preparation

• Documents (be prepared on Sporck) • Discussions, including counsel, to the extent permitted • Contours of the attorney-client black box (when, where, who, duration) • Other (site visits, calculations, ruminations, Ouija board)

34

Example of a strong outline (cont’d)

• Are you employed by Big Bad Bank? (yes)

• How long have you been employed by BBB? (15 years, per LinkedIn)

• What was your first position at BBB? (loan officer, per LinkedIn)

– What was your title when first hired? (loan officer, per LinkedIn)

– What were your primary responsibilities in that initial position?

– Did you have any other responsibilities in that initial position?

– Do you know whether or not a statement of your responsibilities in your initial position as loan officer appear in any document? (If so, request all details and either call for production or make note to follow up with formal, written document request)

– Did your responsibilities as a loan officer include working with counsel on mortgage foreclosure matters? (yes)

– What were your responsibilities when working with counsel on a mortgage foreclosure? (making sure she had all the information she needed about the non-performing loan)

35

Exhaustion by excavation

• Nothing will fall into your lap

• You must dig for it

• Dig, dig, dig

• Your aim is to extract as much information as you can … efficiently and thoroughly

36

Exhaustion by excavation (cont’d)

• Know your overall topic, sub-topics, and goals

– Know general categories of information

– Know specific categories of information

– Know what you need and want from the witness

– Know when it’s time to go fishing

– Know the key documents and have them handy

• Stay disciplined and focused

• Wander only when tactical to do so or you feel the witness is leading you to a place you want to go

• Build each successive question with an appropriate predicate

• Follow the famous funnel

37

The famous funnel

The funnel approach is a tool that allows the questioning lawyer explore the limits of the witness’s knowledge

38

How the funnel works

• Questioning starts generally and broadly and then narrows • Notes are crucial – paper or electronic does not matter – but keep track • Explore each subject matter topic sequentially

– Don’t wing it (I know I said this already – but it’s important) – Develop a case-appropriate and witness-appropriate sequence

• Topical • Temporal • Other

• Each topic and sub-topic is its own funnel • For each topic and sub-topic explore:

– Basis of the witness’s knowledge (First-hand? Second-hand? Third-hand?) – Source of the witness’s information (Heard it? Saw it? Read it? Had a vision?) – Extent of witness’s knowledge (deep, shallow, in between) – What the witness knows: the guts – Drill as deep as you need to go and don’t stop until you get there – How do you know when to stop? (meet me on the next slide)

39

How the funnel works (cont’d)

• You know what you need

• So stop when you get there

• And don’t stop until you get there

• … you are the dog with a bone

40

The top of the funnel – sample questions

• Did any BBB loan officer declare Loan No. BBB-1 non-performing? (yes)

• Did you ever learn who declared Loan No. BBB-1 non-performing? (yes)

• Who declared Loan No. BBB-1 non-performing? (Loan Officer Linda)

• Did you take action when you learned that Loan Officer Linda declared Loan No. BBB-1 non-performing? (yes)

• What action did you take when you learned that Loan Officer Linda declared Loan No. BBB-1 non-performing? (I engaged outside counsel to being a mortgage foreclosure proceeding)

• What was the outcome of the action you took concerning Loan No. BBB-1? (we started a mortgage foreclosure action)

• Who did BBB name as defendants in the mortgage foreclosure action? (“It’s in the complaint”)

• Humor me and answer the question (reporter reads it back)

• Did you or to your knowledge anyone else at BBB notify Peter Parkour that BBB had started a mortgage foreclosure action against the property at issue here? (no)

• Do you know why Peter Parkour was not notified by BBB about the mortgage foreclosure action that was brought against the property at issue here?

41

The tunnel narrows

Let the drilling begin

42

The funnel narrows – sample questions

• Did you ever learn that Loan Officer Linda declared Loan No. BBB-1 non-performing? (yes)

– Do you remember when you learned Loan Officer Linda declared Loan No. BBB-1 non-performing? (yes)

– When did you learn that Loan Officer Linda declared Loan No. BBB-1 non-performing? (around March of 2016)

– Do you remember how you learned that Loan Officer Linda declared Loan No. BBB-1 non-performing? (yes)

– How did you learn that Loan Officer Linda declared Loan No. BBB-1 non-performing? (from an email I received from her)

– Let me show you a document we’ve pre-marked for identification as Plaintiffs’ Exhibit 35.

43

The funnel narrows – sample questions

From: Loan Officer Linda Subject: Non-performing loan no. BBB-1 Date: March 1, 2016 To: Georgina Genero, General Counsel Georgina, we have another doozy. The referenced loan has gone belly up and there’s no way it’s going to get any better. The borrower is four months behind and I’m sure is not going to be able to turn things around. Remember I spoke to you about this a couple of months ago. The only squirrely thing about this – and for the most part it should be pretty straightforward – is that I think there might be some guy who says he’s got something to do with the property. Can’t recall and not exactly sure what his connection is, but I wanted you to have the heads up. See you at lunch. LOL Loan Officer Linda Vice-President and Loan Officer Big Bad Bank Big Bad Bank Boulevard Nowhere Land, Pennflorania 123456 gg@bigbadbank.com 123.456.7890

44

Questioning on the document

45

Questioning on the document (cont’d)

• Easier to put questions directly on document

• Pre-marking is rarely practical because you don’t know where you will go, what documents you will need, and in what order you will need them

• Remember that testimony is king – documents serve the king

46

Exhaustion by examining the issue from all angles

Be a 360° examiner

47

What a 360° examiner does

• Never stops questioning on a topic until every angle and interpretation has been explored

• Never assumes anything

• Is not afraid to question the obvious

• Ignores adversary’s eye-rolling

48

Exhaustion: The final stage

Run through the tape

49

Restating/summarizing

• Remember when our witness said neither she nor to her knowledge anyone else at BBB notify Peter Parkour that BBB had started a mortgage foreclosure action against the property at issue here? – So you did not notify Peter Parkour that BBB had started a mortgage foreclosure action

against the property at issue, right?

– You didn’t notify PP of the foreclosure action in person, right?

– And you didn’t notify PP of the foreclosure action by phone, right?

– And you didn’t notify PP of the foreclosure action by email, right?

– If you did notify PP of the action by email you would have a copy of that email, right?

– Because you didn’t delete any emails after you received the litigation hold notice, right?

– You complied with that notice, right?

– You didn’t delete or destroy any emails after the date of the litigation hold notice, right

– No email notice of the mortgage foreclosure action exists in your files, right?

– And to the best of your knowledge no such email exists in any files at BBB, right?

50

ADVANCED DEPOSITION TECHNIQUES- PART IV: BOXING-IN

John A. Snow

Prince, Yeates & Geldzahler 15 West South Temple, Suite 1700

Salt Lake City, Utah 84101

Main No. (801) 524-1000 Direct (801) 524-1073

E-mail jsnow@princeyeates.com Web-Site www.princeyeates.com

51

Boxing-In • Define the witness’ universe of facts, events,

opinions, conclusions, reasons, sources

• Define the witness’ unknown, unused or unwanted facts, opinions, conclusions, reasons, sources

• Review and examine the foundation of each element or part of the witness’ universe of facts, events, opinions, conclusions, reasons, sources

• Review and examine the application to your case of each element or part of the witness’ universe of facts, events, opinions, conclusions, reasons, sources

• Then summarize

52

Boxing-In

Boxing in the useful or absurd answer:

• Put it in concrete – restate the answer

• Have the witness explain and re-explain

• Close exits

• Follow-up

53

Boxing-In Simple example:

1. What is the opinion/conclusion

2. What is the basis for the opinion/conclusion

• Examine each element

3. What information/events/documents/etc. relied upon

• Examine each element

4. What was the methodology to get to the opinion/conclusion

• Examine each element

5. What was not considered or known

54

Rule 30(b)(6) Depositions (6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

55

ADVANCED DEPOSITION TECHNIQUES- PART V: DIFFICULT AND EVASIVE

WITNESSES

John A. Snow

Prince, Yeates & Geldzahler 15 West South Temple, Suite 1700

Salt Lake City, Utah 84101

Main No. (801) 524-1000 Direct (801) 524-1073

E-mail jsnow@princeyeates.com Web-Site www.princeyeates.com

56

A witness may be difficult for various reasons:

• The Advocate: The witness who attempts to argue each point and avoid giving a simple answer that the witness perceives will harm his or her favored position.

• The Conversationalist: The witness simply does not relate to a question and answer format.

• The Nervous Witness: The witness who is simply nervousness.

• The Timid Witness: The witness whose nature it so avoid being wrong.

• The “I am too Cool” Witness: The witness will not listen and will explain anything and everything.

Difficult Witness

57

The Nervous Witness:

• Make the witness comfortable with the process and assurances in a respectful manner. • This is not achieved by instructing the witness

• Appropriate humor can relax the witness.

• Reduction of tension can be achieved by reducing the formality of the process.

• Allow the witness to say what is on his or her mind, and then seek clarification.

• A complete explanation of the deposition process to the novice witness and what is intended can also calm a witness.

Difficult Witness

58

Difficult Witness

The Advocate Witness:

• Lectures to the witness about the “correct” procedure and threats are ineffective.

• An attorney giving at least an interest in the witness personally and what the witness has to say can disarm a hostile witness.

• Allow the witness to make his or her arguments, and then use appropriate follow up questions in a non-hostile manner.

• Some appropriate humor can defuse a witness.

59

Some other considerations with a hostile witness include: • Make a record for any possible motions to compel • Offer the “deal”: Answer my questions, and then you may

then say anything desired • Repeat the question until the answer is given

(notwithstanding the objection of repetition or the worn out phrase, “the question has been answered; you just don’t like the answer.”)

• Use leading questions with appropriate follow-up • Use documents to rein in a witness • “So, the answer to my question is “yes”” • Break down the response into parts that can be used at trial • Use the Court reporter to re-state the question • Impeach in the deposition if necessary to gain control

Difficult Witness

60

Difficult Witness

The Timid Witness:

• Assurance – Its not a test

• Assurance – Only you know

• Assurance – You are being helpful

• Assurance – Your memory/observations cannot be wrong

• Assurance – We all just want your best memory

61

Difficult Witness

The “I am too Cool” or “I know All” Witness:

• Feigned Respect and Admiration

• “Help me understand”

• Do not lecture about their roll

• Reign in with documents

• Let them speak and isolate favorable or help testimony

62