SUCCESSFUL FIRST SUCCESSFUL FIRST DEPOSITIONSDEPOSITIONS

The RulesThe Rules

• TRCP 176 : Basic oral deposTRCP 176 : Basic oral depos• TRCP 199: Basic oral deposTRCP 199: Basic oral depos• TRCP 200: DWQTRCP 200: DWQ• TRCP 201: Depos in foreign TRCP 201: Depos in foreign

jurisdictionsjurisdictions• TRCP 202: Depo before suit or to TRCP 202: Depo before suit or to

investigate investigate

Introduction to Introduction to DepositionsDepositions

• Oral deposition is a question and answer Oral deposition is a question and answer session where the witness is under oath.session where the witness is under oath.

• Deposition: Critical because you get to Deposition: Critical because you get to ask questions, interact with the witness, ask questions, interact with the witness, increase or decrease credibility of the increase or decrease credibility of the witness, obtain admissions against witness, obtain admissions against interest, befriend or intimidate the interest, befriend or intimidate the witnesswitness

Strategic ConsiderationsStrategic Considerations

• Expert or lay witness?Expert or lay witness?• Subpeona Duces Tecum?Subpeona Duces Tecum?• Make an early determination: Do you Make an early determination: Do you

want to make a friend or an enemy or want to make a friend or an enemy or both?both?

• ***BE CAREFUL: you never know when ***BE CAREFUL: you never know when you might need the witness as a friend – you might need the witness as a friend – you may want to settle with them.you may want to settle with them.

Be Nice - FirstBe Nice - First

• Get what you can by being nice Get what you can by being nice and then get tougherand then get tougher

• After all you might be perceived as After all you might be perceived as a jerk, or worse, as a ‘typical’ a jerk, or worse, as a ‘typical’ lawyerlawyer

Example: DecisionsExample: Decisions

• Are you preserving evidence? Are you preserving evidence? • Attacking a potential enemy:?Attacking a potential enemy:?• Discrediting a witness?Discrediting a witness?• Testing a theory?Testing a theory?• Video or not?Video or not?• Telephonic or not?Telephonic or not?• Stenographic or not?Stenographic or not?

DecisionsDecisions

• Where? Location can be supportive Where? Location can be supportive or intimidatingor intimidating

• When? Before or after written When? Before or after written discovery?discovery?

• Early in the morning, midday, Early in the morning, midday, afternoon or night?afternoon or night?

• Need a translator?Need a translator?

SchedulingScheduling

• How to reach agreement with the How to reach agreement with the other side:other side:– Call and ask, follow up with a letterCall and ask, follow up with a letter– No response – send notice and expect No response – send notice and expect

Motion to QuashMotion to Quash– Order of deposition: who should be Order of deposition: who should be

deposed first? deposed first? THE ONE WHO GOES THE ONE WHO GOES FIRST GETS COMMITTED TO A FIRST GETS COMMITTED TO A POSITION FIRSTPOSITION FIRST..

TacticsTactics

• Agreements at beginning of Agreements at beginning of depositiondeposition– No interruptionsNo interruptions– Turn off phone/pagerTurn off phone/pager– What is the truthWhat is the truth– Verbal responses onlyVerbal responses only– Uh-huh conundrumUh-huh conundrum

TacticsTactics

• Will assume you understood all of my Will assume you understood all of my questions unless you say otherwisequestions unless you say otherwise

• This is a process for gathering This is a process for gathering informationinformationand I need your helpand I need your helpAny reason you can’t tell the truth Any reason you can’t tell the truth today?today?Health, medication, personal tragedy?Health, medication, personal tragedy?

BTWBTW

• Who pays for the deposition?Who pays for the deposition?• The first to ask a questionThe first to ask a question

Valid ObjectionsValid Objections

• Objection, formObjection, form• Objection, leadingObjection, leading• Objection, non-responsiveObjection, non-responsive

Need to prove up Need to prove up documents?documents?

• See business records exception to See business records exception to the hearsay rulethe hearsay rule

• Be able to prove up business Be able to prove up business records for admission over hearsay records for admission over hearsay objectionobjection

More…More…

• Lead where you canLead where you can• Control the witnessControl the witness

– and the flow and the flow – and the opposing counseland the opposing counsel

Sneaky StuffSneaky Stuff

• WastebasketWastebasket• SeatingSeating• Order coffee, soft drinkOrder coffee, soft drink• Friendship with court reporterFriendship with court reporter• Select court reporterSelect court reporter• Observe witness/lawyer interactionObserve witness/lawyer interaction• Observe nonverbal communicationObserve nonverbal communication

EXPERT DEPOSITIONSEXPERT DEPOSITIONS

Things you should know:Things you should know:

• 1. They are smarter than you are.1. They are smarter than you are.• 2. They usually think they are smarter 2. They usually think they are smarter

than you are.than you are.• 3. Pride goes before a fall3. Pride goes before a fall• 4. Experts often don’t know facts of the 4. Experts often don’t know facts of the

case as well as you or your witnesscase as well as you or your witness• 5. Juries are suspicious of testimony that 5. Juries are suspicious of testimony that

is paid foris paid for

• 6. Experts must decide what facts 6. Experts must decide what facts to use and what facts to ignore in to use and what facts to ignore in order to come up with a theory. order to come up with a theory. They often try to steal their way They often try to steal their way into the jury box by telling the jury into the jury box by telling the jury what facts to believe. (what facts to believe. (To arrive To arrive at that conclusion, you had to at that conclusion, you had to ignore the fact that…)ignore the fact that…)

• 7. They don’t get to ask the 7. They don’t get to ask the questions, only answer them (Tquestions, only answer them (They hey will try to change your will try to change your questions because that is how questions because that is how you keep control.)you keep control.)

• 8. Seek admissions of reasonable 8. Seek admissions of reasonable propositions from the expert. propositions from the expert. Know that they will often fight you Know that they will often fight you on minor technical points, then on minor technical points, then they lose credibility by failing to they lose credibility by failing to concede that which is obvious or concede that which is obvious or reasonable.reasonable.

Example: Unpredictable Example: Unpredictable ApproachApproach

• Q. Please state you name for the record.Q. Please state you name for the record.• A. Wilbur H. Wolf.A. Wilbur H. Wolf.• Q. What is your address?Q. What is your address?• A. 225 Carnivore Lane, Capital City.A. 225 Carnivore Lane, Capital City.• Q. Mr. Wolf, on the morning the the fifth, Q. Mr. Wolf, on the morning the the fifth,

you tried to eat Little Red Riding Hood, you tried to eat Little Red Riding Hood, didn’t you?didn’t you?

• A. No.A. No.• Q. What did you do when you first Q. What did you do when you first

awoke on the 5awoke on the 5thth, Mr. Wolf. , Mr. Wolf. • A. Discussion of activitiesA. Discussion of activities• Q. Mr. Wolf, let me show you Q. Mr. Wolf, let me show you

Exhibit 6. It’s an email you wrote Exhibit 6. It’s an email you wrote to Mrs. Wolf on the morning of the to Mrs. Wolf on the morning of the 44thth??

• A. Yes.A. Yes.• Q. It ways you are going to eat Q. It ways you are going to eat

Little Red Riding Hood, doesn’t?Little Red Riding Hood, doesn’t?

Probing for DetailsProbing for Details

• Remember to ask: who, what, where, Remember to ask: who, what, where, when, why and how.when, why and how.

• The April 16, 2001 letterThe April 16, 2001 letter– Who wrote it?[deponent]Who wrote it?[deponent]– Where were you at the time?Where were you at the time?– When did you write it?When did you write it?– Why did you write it?Why did you write it?– What did you mean at the bottom of page oneWhat did you mean at the bottom of page one– Remember – if you ask did you write the Remember – if you ask did you write the

letter, the party can just say no – not much letter, the party can just say no – not much help.help.

Probing: Example 2Probing: Example 2

• Q. Mr. Wolf, what is your age?Q. Mr. Wolf, what is your age?• A. No, or at the time I tried to eat A. No, or at the time I tried to eat

Little Red Riding Hood?Little Red Riding Hood?• Q. Now.Q. Now.• A. 26A. 26• Q. How much education do you have.Q. How much education do you have.• (Don’t miss a promising line of (Don’t miss a promising line of

testimony)testimony)