2.9.11

Pleadings returned

p 250
Depositions- Disadvantages
-Expensive
-Time consuming (preparation)

DVD's that instruct clients on how to be an effective witness
- OK, but can be too general.
- Not very personable or caring

Notice of Depositions- CR 30 not less than 5 days -MIDTERM QUESTION

CR 30b(5) Can request that documents or things be brought to deposition
CR 34 for parties
Non-parties subpoena duces tecum (SDT)
You can have them bring documents, but should you?
What if you end up with a huge box of documents at deposition?
Get RTP for documents, and review before deposition.
Can be done is any order. Have a plan.

Preparation for Deposition
Preparation is key
Generally held in office of party that sets the deposition
Depose in county of deponent's residence

Defending the Deposition
Requests for documents must be reasonably calculated to lead to admissible evidence
Tough to beat a discovery request, admissibility is a different story
Preparing the client for deposition- MOST IMPORTANT PART
Cases are won and lost in deposition
If you do a good job preparing your client, it will be fine
Schedule preparation PRIOR to day of deposition
Effective prep cannot be done effectively the day of deposition
-client will be nervous and not listening
-too late to do anything about what they wear or bring, etc.
Should be scheduled within a week of the deposition

Careful with coaching, a good lawyer will ask your client if they were told what to say, it is not privileged, only what lawyer said is privileged
Always tell the truth, lawyer can deal with weaknesses of case, but not lies from client

Most important points to get across to client
- What to wear (trial as popularity contest)
Impression of deponent- will jury like and believe client
Dress neat, but conservative. Suit not necessary. "Like you're visiting your grandmother"
Women- nothing skanky
- Not a race, take your time. Make sure you understand the question.
- DO NOT volunteer information
"Listen during deposition, if the voice you hear is your own, you are doing something wrong"
Answer simply, directly, and in as few words as possible.
- Be friendly, polite, but don't suck-up. And do NOT get angry. You can get upset, emotional, but not angry. If you really want to get back at them, maintain your composure.
- Don't be shy about clarifying the question. Do not answer questions you don't understand.
- Anything your client uses to prepare for deposition is DISCOVERABLE. Be careful what you use to prep.
- Empower your client to use- I don't know/I don't remember/I don't recall.
- Estimate vs. Guess. You may give estimate if you reasonably know, but do not guess.
- Don't look to lawyer for answers. No conference with client during deposition, except to discuss privilege.
- "We're playing for a tie." You NEVER win. What you want is not to lose. Don't try to win over the other side, it won't happen.
- Mock depositions - Not a bad idea to run through a few sample questions. But a full mock deposition is costly, and you cannot predict all possible questions. Don't want to look rehearsed.

Paralegal Role
- Taking notes - no script, follow up questions are critical. Listen. Be flexible.
- Keep Deposition on track
- Impressions of deponent

Always review deposition transcripts with client before trial.
Transcripts take time to get. Plan ahead.
Transcripts may be reviewed and corrected within 30days. And should be.

Summaries
Can be months or even years before trial
Summarizing deposition transcript can save time for others working on case, and help you review the case later on (page line summary)
Do summaries as soon as possible after deposition
Form #1 - Bruce's favorite (pull out key elements)
1page of summary for every ~20pages of transcript
Can also organize by chronology or topic
Page Line Summary- most helpful lawyer

EXAMPLE DEPOSITION p 473
Is my lawyer asking questions that are designed to bring out the information we want?
If there are gaps, help fill them in.
- Find out about deponent- is he married? kids? how old?
- When deponents don't answer questions "right after graduation" when was that?
- Don't assume, for questions that assume, back up, ask foundational question.
- Be specific. Say what you mean and mean what you say.
- Statements that are not questions. Make sure that if there is a question on point, it is asked.
- Follow up, get to specifics, what contrast media is used?
- Be careful about paraphrasing - "I would like for you to tell me to the best of your recollection, exactly what he said."
- Establish environment "how much time did you and the doctor spend in each other's presence on the day in question?"
- "Can you explain what you mean by that," open ended questions are great
- "Whose job is it to stock the epinephrine?" "Where is it kept?" "How long would it take to get to get it?"
- Obviously a previous issue between tech and doctor. Look into it.
- Hearsay is not a proper objection in a deposition, only at trial.
- "This event" too vague. Questions should be clear and specific, so that they could easily be understood if read to a jury.

Michellson
- Impression - fencing with lawyer, continuing to correct x-ray dept.
- "What is proximity of pharmacy to radiology department?"
- "How long were you gone?"
- Save the theatrics for the trial. Impeaching him in the deposition serves no purpose.

Tomorrow
In Class Deposition- each person gets one question on liability, and one on damages