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Slide show for Solo Practice University Art of the Deposition Class
Citation preview
Preparing for a Simple Breach of Contract
Deposition
Victoria Pynchon’s Solo Practice University
Art of the Deposition Course
Read the complaint and answer, paying particular attention to affirmative defenses
Review all discovery, especially answers to contention interrogatories, responses to requests for admission, and all documents that: (a) mention this witness; (b) pertain to matters within the scope of this witness’ authority or about which this witness should possess knowledge
Review all pleadings and discovery
Structure questioning on jury instructions
Breach of contract Negotiations leading to mutual assent
on all critical terms Plaintiff’s performance or excuse for
non-performance Defendant’s failure to perform Harm from the breach
Goal is to obtain admissions, learn their factual theories, learn the weaknesses in your own case, identify issues without factual dispute, exhaust witness’ knowledge, prevent witness from changing testimony at trial
Get Your Ducks in a Row
Write out questions necessary to obtain the boring details
• names, addresses, phone numbers of all witnesses
• Reporting relationships• standard practices and procedures
• On all matters pertinent to contract formation and performance
• Encourage witness to confirm that s/he ALWAYS follows them or NEVER departs from them
Questions Answers Follow-up
◦ Note surprising answers◦ But don’t let them interrupt
the flow of your questioning◦ Make certain to track back
The following slide is a sample way to lay out your page of questions
Divide pad into three parts
Jump into substance for purpose of surprise
Begin slowly with background to relax witness (and yourself!)
Chronology by topic Contract formation Authority to contract Contract performance Conversations/written material
re meaning of contractual terms
Failure to perform damages
Organize sequence of questions
Documents that need only authenticating
Documents that can be brought within the business records exception to the hearsay rule
Statements contained in documents that can be brought within an exception to the hearsay rule such as an admission of a party opponent
Statements contained in documents to refresh the witness’ recollection or impeach the witness
Statements contained in documents to be used for other strategic purposes.
Organize documents
Identify documents by ◦ Exhibit #◦ Bates stamp number◦ Date◦ To/from◦ Subject line
One copy for self; one for court reporter; one for opposing counsel; one for witness
Pre-mark documents
Start at top of funnel: who what where when why how describe
Move on to obtain further details of major events
Explore your own factual theories Explore your opponent’s view of the
facts Close off all opportunities for witness
to change testimony◦ Have you now told me everything you
know about x◦ Are you aware of the existence of
documents that might refresh your recollection
◦ Is there anyone you haven’t spoken to who might refresh your recollection
Recollection of all relevant events
You signed the contract You had the authority to
sign the contract There were no authorized
changes to the contract after it was signed
The contract required you to deliver 1,000 widgets to ABC company
You never delivered any widgets to ABC company
Obtain admissions
You ran out of widgets because you’d already obligated yourself to a contract with XYZ to supply all of its needs
Your parts supplier hadn’t complied with its obligations to deliver materials to you in several months
Your lost your business license last January
Test your theories
What reasons do you have for failing to deliver the goods (on time) (in working condition) (at all)
What documents mention these matters
What witnesses are aware of these problems
Explore their theories
If using LiveNote, review draft transcript to make sure you’ve genuinely gotten the admissions you believe you have
Don’t be afraid to press the witness for a responsive answer until you get it
Remember to loop back to follow up interesting comments that were off topic but might lead to something valuable
Tie it Up with a Bow