The Effective Deposition: Techniques and Strategies That Work

The Effective Deposition will prepare you to successfully take, defend, and use the deposition to its greatest advantage.
Publisher: NITA
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4th Edition
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ISBN/ISSN: 9781632814234
Publisher: NITA
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Book Edition: 2012

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The Effective Deposition will prepare you to successfully take, defend, and use the deposition to its greatest advantage. Advocates and law students have long relied on The Effective Deposition to get essential know-how for the most critical step in discovery.

In this updated Fourth Edition, David Malone, Peter Hoffman and contributing author, Anthony J. Bocchino, again apply their expertise as attorneys and educators to bring you critical information and insight. They explain new discovery rules in evidence and civil procedure, and they discuss the impact of continuing technological developments, including e-discovery and digital transcription, on your practice.

New to this edition is a chapter dedicated to Rule 30(b)(6) organization depositions--the most powerful and efficient discovery tool available in complex litigation. This edition also provides new and expanded material on using depositions in motion practice and trial and taking and using preservation depositions.

Depositions remain a critical element of your practice, regardless of whether you face trial or alternative dispute resolution. With the increasing trend toward non-trial resolutions, depositions are being used more and more in motions, negotiated settlements, mediations, arbitrations, and dismissals. Be prepared for it all with The Effective Deposition.

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Table of contents

CONTENTS


Dedication

Foreword

Acknowledgments


PART ONE: THE LAW


CHAPTER ONE: THE MECHANICS OF TAKING AND DEFENDING DEPOSITIONS


1.1 Whose Deposition May Be Taken?

1.2 Rule 30(B)(6) Depositions

1.3 Timing

1.4 Priority

1.5 Scheduling of the Deposition

1.6 Giving Notice of the Deposition

1.7 Geographic Location of the Deposition

1.8 Number of Depositions

1.9 Length of Depositions

1.10 Compelling the Witness's Attendance

1.11 Requiring Documents to Be Brought to the Deposition

1.12 Scope of Discovery during the Deposition

1.13 The Deposition Itself


PART TWO: TAKING DEPOSITIONS


CHAPTER TWO: PURPOSES OF TAKING DEPOSITIONS


2.1 Gathering Information

2.2 Preserving Testimony

2.3 Facilitating Settlement

2.4 Objectives and Questioning Techniques


CHAPTER THREE: ADVANTAGES AND DISADVANTAGES OF DEPOSITIONS

3.1 Advantages

3.2 Disadvantages


CHAPTER FOUR: PLANNING AND SCHEDULING DEPOSITIONS

4.1 The Discovery Plan

4.2 Coordinating Depositions with Other Discovery

4.3 Coordinating Depositions

4.4 Scheduling the Deposition

4.5 Duration and Intervals


CHAPTER FIVE: PREPARING TO TAKE THE DEPOSITION

5.1 The Questioner's Frame of Mind

5.2 Creating the Deposition Outline

5.3 Researching the Law

5.4 Identifying All Available Facts

5.5 Constructing Your Working Theories

5.6 Identifying the Opponent's Factual and Legal Theories

5.7 Generating Questions

5.8 Organizing the Deposition Outline

5.9 Using the Outline at the Deposition

5.10 Checklist for Preparing for the Deposition

5.11 A Final Word About Preparation


CHAPTER SIX: BEGINNING THE DEPOSITION

6.1 Stipulations

6.2 Set-Up and Commitments

6.3 Speculating or Guessing


CHAPTER SEVEN: STYLE, ORGANIZATION, AND OTHER MATTERS

7.1 Style

7.2 Organization: Background of the Witness

7.3 "The Organized Tour" versus "The 'Leapfrog' Approach"

7.4 Handling Objections and Instructions Not to Answer

7.5 The Witching Hour of 4:00 p.m.


CHAPTER EIGHT: QUESTIONING TECHNIQUES

8.1 Introduction
8.2 Information-Gathering Questioning

8.3 The Funnel Approach

8.4 Gathering Party Statements and Testing Theories


CHAPTER NINE: USING DOCUMENTS

9.1 Uses for Documents in Depositions

9.2 Using the Documents to Prepare

9.3 Compelling Production of Documents to Be Used at Depositions

9.4 Marking and Handling Documents at the Deposition

9.5 Questioning on Documents

9.6 Inquiring about Documents Used to Refresh the Witness's Memory

9.7 Requesting Documents Identified during the Deposition

9.8 Refreshing Recollection


CHAPTER TEN: FOUNDATIONS

10.1 Foundations for Real or Tangible Evidence or Documents--Rule 901(b)(1)

10.2 Substantive Visual Evidence--Photographs, Maps, and Diagrams

10.3 Oral Evidence--In General

10.4 Laying Foundations Efficiently

10.5 Negative Foundations


CHAPTER ELEVEN: OBNOXIOUS OR OBSTRUCTIONIST OPPOSING COUNSEL

11.1 Irritating or Obstructing Behavior

11.2 The Irritating Opposing Counsel

11.3 The Obstructing Opposing Counsel

11.4 The Blocking Opposing Counsel: The Special Problem of Instructions Not to Answer
  
11.5 Obstructing Behavior That Isn't Obstructing Behavior


CHAPTER TWELVE: PROTECTIVE ORDERS AND APPLICATIONS TO THE COURT

12.1 Protective Orders

12.2 Applications to the Court


PART THREE: DEFENDING DEPOSITIONS


CHAPTER THIRTEEN: PREPARING THE WITNESS TO BE DEPOSED


13.1 Preparing the Witness on Substance

13.2 Preparing the Witness for the Deposition Process

13.3 Final Instructions

13.4 Practicing Your Theme with the Witness

13.5 Conclusion


CHAPTER FOURTEEN: DEFENDING THE DEPOSITION

14.1 Advance Preparation

14.2 Determining Whether the Witness Is a Client

14.3 Preparing the Witness to Testify

14.4 Supporting and Protecting the Witness

14.5 Entering Into Stipulations

14.6 Preserving the Record

14.7 Conferring with the Witness

14.8 Taking Breaks

14.9 Stating Objections

14.10 The Form of Objections

14.11 The Calculus of Deciding whether to Object

14.12 Instructions Not to Answer

14.13 Questioning and Clarifying and Correcting Answers

14.14 Concluding the Deposition


CHAPTER FIFTEEN: REVIEWING, CORRECTING, EDITING, AND SUPPLEMENTING THE TRANSCRIPT

15.1 Reviewing, Correcting, and Editing

15.2 Supplementing the Deposition


PART FOUR: USING DEPOSITIONS


CHAPTER SIXTEEN: USING DEPOSITIONS IN MOTIONS AND TRIAL


16.1 Motions for Summary Judgment

16.2 Preparing for Trial

16.3 Using the Deposition Testimony at Trial

16.4 Seven Ways to Use a Deposition at Trial

16.5 The Designation Process and Obtaining Rulings on Objections

16.6 Presenting Deposition Testimony at Trial


PART FIVE: SPECIAL TYPES OF DEPOSITIONS


CHAPTER SEVENTEEN: TAKING AND USING PRESERVATION DEPOSITIONS


17.1 Preparing to Take the Preservation Deposition

17.2 Taking the Preservation Deposition

17.3 Defending the Preservation Deposition


CHAPTER EIGHTEEN: VIDEO DEPOSITIONS

18.1 When to Take a Video Deposition

18.2 Advantages of Video Depositions

18.3 Disadvantages of Video Depositions

18.4 The Law

18.5 Scheduling the Video Deposition

18.6 Preparing to Take the Video Deposition

18.7 Conducting the Video Deposition

18.8 Preparing to Use the Video Deposition at Trial

18.9 Using the Video Deposition at Trial

18.10 Defending a Video Deposition


CHAPTER NINETEEN: RULE 30(b)(6) DEPOSITIONS

19.1 Rule 30(b)(6)

19.2 Deciding to take a Rule 30(b)(6) Deposition

19.3 The Specifications

19.4 Finding, Preparing, and Defending the Rule 30(b)(6) Designee

19.5 How to Ask Questions

19.6 Questioning on Topics within the Specifications

19.7 Questioning on Topics beyond the Specifications

19.8 The Number and Identity of Designees

19.9 How Do Nonparties Respond?


CHAPTER TWENTY: EXPERT DEPOSITIONS

20.1 Preparing to Depose the Expert

20.2 Deposing the Expert: Strategies

20.3 Deposing and Defending the Expert: Tactics


CHAPTER TWENTY-ONE: CONCLUDING THE DEPOSITION

21.1 Insuring Completeness

21.2 Arrests and Convictions

21.3 Completing, Adjourning, Recessing, Terminating, Ending, Continuing the Deposition: When Is It Actually Done?


APPENDICES

A.1 Federal Rules of Civil Procedure, Rule 26

A.2 Federal Rules of Civil Procedure, Rule 30

A.3 Federal Rules of Civil Procedure, Form 52

B.1 Sample Notice of Nonparty Deposition on Oral Examination

B.2 Sample Notice of Nonparty Deposition on Oral Examination, Seeking Both Testimony and Production of Documents

B.3 Sample Notice of Deposition on Oral Examination of Witness Controlled by Defendant

B.4 Sample Notice of Rule 30(b)(6) Deposition of Oral Examination (Specifications for Rule 30(b)(6) Deposition of Defendant Johnson Company)

B.5 Sample Subpoena to Nonparty Deponent Residing in Another District

B.6 Sample Privilege Log

C.1 "The Daubert Deposition Dance"


Index