Effective Depositions

Front Cover
American Bar Association, 2010 - Law - 848 pages
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Effective Depositions is a comprehensive, practical guide through every stage of the deposition process. It concisely covers the law of depositions and related discovery issues and gives you a clear, thorough understanding of the process and its practical challenges and pitfalls so that you can make the best use of the opportunities the process offers. It contains numerous case studies and clearly-explained examples, in addition to models, sample forms and checklists.
 

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Contents

The Role and Importance of Depositions
1
How the Book Approaches Depositions
4
The Use of the Scoops Case
6
Discovery Methods Discovery Planning and Reasons to Take or Not to Take a Deposition
9
The Federal Discovery Scheme
10
Creating a Discovery Plan
19
Purposes of a Deposition
22
Securing the Attendance of the Witness
35
Conclusion
371
Problem Counsel Problem Witnesses
387
Preparation
389
Problem Situations for the Examiner and Suggested Responses
390
Problems for the Defender in Controlling the Examiner
403
Problem Witnesses
405
Conclusion
413
Issues for Women at Depositions
423

Stipulations
36
How Many Depositions?
37
How Long May the Deposition Last?
41
Securing Attendance of the Deposition Witness Notice to Parties
42
Requests for Documents
55
Depositions Before Action or Pending Appeal
57
Depositions on Written Questions
59
Conclusion
60
Preparing to Take or Defend a Deposition
73
Preparing to Defend a Deposition
85
Meeting the Witness
105
Initial Contacts with the Witness
106
Sending the Witness Materials for Review Before the First Meeting
108
When Where How Often and with Whom
109
Establishing and Preserving the AttorneyClient and WorkProduct Privileges
117
Elements of the AttorneyClient and WorkProduct Privileges
118
Confidentiality and Waiver of Privilege Confidentiality
127
Other Issues Arising from Representation of Corporate Employees
130
Procedural Preparation of the Witness
151
Placing the Deposition in Context
153
Explaining the Deposition Process
154
Twenty Guidelines for Deposition Testimony
157
Proper Practice Versus Improper Coaching
170
Final Instructions to the Witness
172
Substantive Preparation of the Witness Reconstructing Reality
181
Ethical and Practical Constraints
183
Seven Rules
185
Rules for Reconstructing Reality
192
Discoverability of Documents Used to Refresh the Recollection of a Witness Federal Rule of Evidence 612
209
FRE 612 in Theory
212
Structuring the Preparation
214
How to Avoid Putting Privileged Documents at Risk
217
How to Lay a Foundation at Deposition for the Discovery of Documents Used to Refresh Recollection
219
Special Witness Preparation Situations
229
Preparing a Nonparty Witness for Deposition
231
The Video Deposition
233
Taking the Deposition
241
Arranging the Deposition Room
242
Conferring with the Court Reporter
244
Opening Remarks and Stipulations
245
Opening Questions
251
Organization of Questions
260
Breaks
278
The Science of Asking Questions
280
Nonverbal Communication
284
Conclusion
292
Using Documents at a Deposition
301
Obtaining Documents for Use at a Deposition
302
When to Show a Document to a Witness
305
Administrative Details Exhibit Numbering
307
Sample Examination with a Document
309
Laying Foundations for Documents at a Deposition
321
Reasons to Lay a Foundation for a Document at the Deposition
322
How to Lay a Foundation for the Admissibility or Inadmissibility of a Document
323
Examples of Laying a Foundation for Admissibility and Inadmissibility
332
Scoops v BusinessAide Inc DOCUMENT 7 D7
337
Scoops v BusinessAide Inc DOCUMENT 4 D4
338
Scoops v BusinessAide Inc DOCUMENT 1 D1
339
Defending the Deposition
341
Taking Care of the Preliminaries
342
Making Objections
345
Objections That Must Be Made at the Deposition or They Are Waived
350
Objections That Are Preserved
354
Defending at a Nonparty Deposition
360
Instructing a Witness Not to Answer
362
How to Handle the Takers Introduction of Surprise Documents
367
Defenders Response to Document Requests During a Deposition
368
Adjournment
370
How Gender Differences in Verbal and Nonverbal Communication Affect Taking and Defending
424
How to Combat Difficult Adversaries and Witnesses
430
Seeking Judicial and Other Intervention
434
Conclusion
436
The Video Evolution Pretrial and Trial Considerations
443
Virtues of Using Video Pretrial
444
Noticing Requirements and Recording Logistics
449
Video Depositions Can Demand Different Techniques by Both the Examiner and the Defender
459
The Use of Video Depositions at Trial Setting the Stage
462
Conclusion
466
The Realtime Advantage Using Realtime Transcription for More Effective Depositions
477
How Does It All Work?
478
Benefits for the Taker
484
Benefits for the Defender
488
Benefits for All Involved
489
Serial Versus InternetBased Realtime
490
Rules Regulations and Realities
496
Requesting Realtime Reporting Services
498
Additional Costs of Realtime Reporting
499
Possible Cost Savings from Realtime Reporting
500
What to Expect in the Future
501
Expert Witness Depositions
505
Rules Governing Expert Discovery
506
Testifying Experts
508
Nontestifying Experts
509
Privileges Relating to Expert Witnesses
521
Scientific Expert Testimony
525
Preparing Ones Own Expert for Deposition
528
Deposing the Opponents Expert
537
Taking and Defending the Deposition of the Class Representative
559
Special Features of Class Actions
560
Expanded Scope of Discovery Permitted in Class Actions
561
Questions About Typicality
567
Conclusion
569
Deposition Perjury by Your Witness
579
Source and Nature of a Lawyers Duty
580
Requirements of Knowledge and Materiality
589
Preventing and Remedying Client Perjury
594
Adverse Consequences to Client and Lawyer
596
Conclusion
599
What to Do When the Fifth Amendment Pays Civil Litigation a Visit
609
How to Decide Whether to Assert the Privilege
610
How to Assert the Privilege
613
How the Assertion of the Privilege Plays Out at a Civil Trial and on Dispositive Motions
615
How to Avoid the Assertion of the Privilege as Well as How to Avoid or Lessen Adverse Inferences
621
Conclusion
624
The End of the Deposition
633
Concluding the Testimony
634
After the Deposition
648
Pretrial Uses of Depositions and Preparing for Trial
657
Using Depositions at Trial
664
Conclusion
666
Managing Summarizing Indexing and Searching Depositions The Role of Paralegals and Computer Software
677
Types of Summaries
678
Using Computers to Index and Search Depositions
689
Conclusion
698
Sample Key Word or Concordance Index
700
Sample Condensed Transcript
701
Using Depositions at Trial
703
Depositions as Substitute Testimony
704
Practical Considerations and Tactics in the Introduction of Deposition Testimony at Trial
708
Using Depositions to Contradict or Impeach the Trial Testimony of a Witness
712
Using Depositions to Rehabilitate a Trial Witness
718
Using Depositions to Refresh Recollection
720
Using Depositions as Past Recorded Recollection
722
Conclusion
723
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