
Widely regarded as the definitive text on taking and defending depositions, the Deposition Handbook provides practical advice on every stage of deposition. In this revised Fifth Edition, Dennis Suplee and Nicole Reimann provide specific techniques for eliciting information, guidelines for video depositions, case studies, checklists, numerous examples, rules of conduct, and sample questions. This user-friendly and comprehensive guide offers expert analysis on the strategies and tactics you need to successfully handle your depositions.
You’ll get specific examples and scenarios covering:
- Whether counsel may interview an adverse party's current or former employees
- Private conferences between the deponent and counsel during the course of the deposition
- The pros and cons of “the usual stipulations”
- Questioning techniques
- How to effectively prepare your clients and witnesses to effectively testify
- What factors to consider when deciding whether to prepare the witness to do more than just answer the question
Written from a litigator's perspective, this text delivers insights into how you can obtain case winning answers from your deponents.
This book should be required reading for every young lawyer, and is a great resource for even the most experienced of litigators. If you are looking for a comprehensive desk reference for your office, this book is a treasure of information.
- About the Authors
- Publisher’s Note
- Preface to Fifth Edition
- Acknowledgments
- Depositions: Disadvantages, Advantages, and Alternatives
- Introduction
- Disadvantages of Depositions
- Advantages of Depositions
- Alternatives to Depositions
- Recorded Conversations
- Availability of Deposition Discovery
- Interviewing Witnesses
- Introduction
- In-Person and Telephone Interviews
- Interviewing Your Client’s Former Employees
- Interviewing an Adverse Party’s Current or Former Employees
- Interviewing of Personal Injury Plaintiff’s Treating Physician
- Role of Depositions in the Discovery Plan
- Introduction
- Consulting the Client
- Limitations on Discovery
- Timing of Depositions
- Order of Deponents
- Depositions of Opposing Counsel
- Depositions of Arbitrators
- Depositions of Judges
- Scheduling the Deposition and Choosing the Mode
- Deposition Notice
- Deposition Subpoena
- Location
- Foreign Countries or Proceedings
- Recording the Deposition
- Telephone and Videoconference Depositions
- Last-Minute Details
- Preparing for the Deposition
- Introduction
- Common Sense Considerations
- Preparing for the Deposition
- The Rule 30(b)(6) Deposition
- Rule 30(b)(6) Notice
- Duty to Designate a Knowledgeable Witness
- Duty to Prepare Witness
- Binding the Organization
- Questioning Outside the Scope of the Notice
- Invoking the Privilege against Self-Incrimination
- Ten-Deposition and One-Day Limits
- Objectives
- Discovery or Admissions
- Other Objectives
- Deposition Dynamics: Dealing with the Other Side
- Introduction
- Pre-Deposition Jousting: Setting the Tone
- Who’s in Charge?
- Losing through Intimidation
- Refusing to Rise to the Bait
- Controlling the Deponent
- Staying On or Going Off the Record
- Strategy and Tactics
- Contrasts between Personal Injury and Commercial Litigation
- Approaches
- Committing the Deponent to Noncontroversial Propositions
- Establishing a Premise to Shape the Next Answer
- Wording the Question Aggressively
- Stating the Deponent’s Position Baldly
- Jumping from the Specific to the General
- Posing the Either-Answer Question
- Establishing the Obvious
- Inviting the Deponent to Speak
- Stepping into the Deponent’s Shoes
- Exhausting the Deponent’s Knowledge
- Getting the Most Out of a Good Answer
- Delving into the Deponent’s Preparation
- Beginning the Deposition
- Introduction
- Who Sits Where
- The Oath
- Who May Attend
- “The Usual Stipulations”
- The Interrogator’s Preliminary Instructions to the Deponent
- Conducting the Deposition
- Visualizing the Transcript
- Private Conferences between the Deponent and Counsel during the Course of the Deposition
- Renewing Instructions to the Deponent and Inviting Corrections
- Recapitulating Contradictory and Disjointed Testimony
- The Deponent Who Knows Too Little
- The Deponent Who Says Too Much
- The Deponent Who Evades the Question
- The Deponent Who Fights the Interrogator’s Objective
- The Lawyer Who Says Too Much
- The Deponent Who Has Language Problems
- The Deponent Who Needs Time to Make Calculations or Consult Documents
- Obtaining Estimates
- Going Off the Record
- Starting and Ending Times and Breaks
- Counsel’s Reactions to Answers
- Computer-Assisted Depositions
- Exhibits, Documents, and Drawings
- Introduction
- Disclosure Obligation
- Mechanics
- Questioning with an Objective
- Objective: Authentication
- Objective: Business Record
- Objective: Discovery
- Objective: Admissions or Impeachment
- Work Copy
- Producing a More Effective Transcript
- The Deponent’s Drawing or Diagram
- Moving into Evidence
- Following Up
- Objections and Instructions Not to Answer
- Objections
- Instructions Not to Answer
- 1Obtaining Rulings on Instructions Not to Answer
- Winding Up the Deposition
- Follow-up Questioning of the Witness
- Recessing or Concluding
- Summarizing the Testimony
- The Transcript
- Immunity for Statements Made in a Deposition Testimony
- The Deponent’s Immunity from Service of Process
- Recovering Deposition Costs
- Federal Rules of Civil Procedure Applicable to Depositions
- Introduction
- Rule 5(d)(1)
- Rule 26(d), (f)
- Rule 26(a)(1)
- Rule 26(a)(2)
- Rule 26(b)(4)
- Rule 26(b)(1)
- Rule 26(b)(5)
- Rule 30(a)(2)
- Rule 30(b)(3)
- Rule 30(b)(6)
- Rule 30(c)(2)
- Rule 30(d)(1)
- Rule 30(e)
- Video Depositions
- Introduction
- Why Video-Record the Helpful Witness?
- Procedural Requirements
- Overriding Considerations
- The Deponent’s Appearance
- The Setting and Background
- The Videographer
- Props
- Starting the Deposition
- Moving Quickly
- Overcoming Boredom
- Monitoring the Action
- Cross-Examination
- Redirect Examination
- Concluding the Deposition
- Editing
- Why Video-Record the Adversary Witness?
- Video-Recording the Adversary Witness: Special Considerations
- Reenactments
- Preparing the Witness for a Video Deposition
- Defending the Witness at a Video Deposition
- Use in Motions
- Use at Trial: Preliminaries
- Depositions of Experts
- Introduction
- Who Is an Expert?
- Can the Expert Be Deposed?
- Should the Expert Be Deposed?
- Special Rules Applicable to Expert Depositions
- Fees
- Preparing for the Deposition
- The Expert’s File
- Topics to Be Covered
- Order of Topics
- The Expert’s Qualifications
- The Expert’s Interest, Bias, and Status as a Professional Witness
- Frye/Daubert Issues: Probing and Testing the Reliability and Admissibility of the Expert’s Opinion
- Obtaining Admissions as to the Authoritativeness of Learned Texts
- The Expert’s Work on the Case
- Preparation of the Expert Report
- Understanding the Expert’s Views
- Asking Open-Ended Questions
- Questioning Beyond the Expert Report
- Reading Back the Perfect Question
- Preparing the Deponent to Testify
- Introduction
- he Attorney–Client Privilege
- Gathering Facts verus Preparing Witnesses
- Preparation for Fact Gathering
- Fact-Gathering Session
- Preliminary Deposition Information
- Review of the Contentions and Key Facts in Dispute
- Review of the Documents
- Refreshing the Deponent’s Recollection
- The Deponent’s Efforts to Refresh Recollection
- Fact Reconstruction
- Ethical Constraints
- Witness Preparation
- Rules of Thumb for Testifying
- Putting the Deponent “on the Stand”
- Preparing the Deponent to Answer Aggressively
- Preparing the Deponent on Documents
- Using Videos to Prepare the Deponent
- When to Meet the Deponent
- “Frisking” the Deponent
- Taking the Offensive Generally
- Defending the Deponent at the Deposition
- Recapitulation
- The Defending Lawyer as a Presence
- No-Lose Opportunities for Asserting Control
- Hurrying the Interrogator
- Note Taking
- Payments to the Deponent for Preparation and Testimony
- Using Deposition Transcripts
- Introduction
- What Rules Apply at Trial?
- Federal Rule of Civil Procedure 32
- Federal Rules of Evidence
- Depositions in Opening Statements and Closing Speeches
- Depositions to Impeach
- Depositions as Substantive Evidence
- Depositions to Support Motions
- Depositions Used to Trigger Removal Period
- Sanctions for Deposition Abuses
- Introduction
- Federal Rules of Civil Procedure
- Statutes
- Inherent Judicial Power
- Special Considerations for Attorney Misconduct
- Sexism
- Making the Record for Sanctions
- Preparing the Motion for Sanctions
- Ethics in Deposition Practice
- Ethical Duties and Obligations
- Ethics and Civility
- Federal Court of Appeals’ Recommendations on Deposition Conduct
- Bar Associations’ and Courts’ Guidelines on Civility
- A Final Word on Civility
- Appendix A Witness Preparation Script: Basic Rules
- Appendix B Preparing a Witness for a Video Deposition
- Appendix C Checklist: Before the Deposition
- Appendix D Anatomy of a Document
- Appendix E Anatomy of an Expert Report
- Appendix F Notice of Deposition
- Appendix G Subpoena in a Civil Case
- Appendix H Rule 30(b)(6) Notice
- Appendix I Federal Rules of Civil Procedure Applicable to Depositions
- Appendix J Federal Rules of Evidence Applicable to Depositions
- Appendix K ABA Model Rules of Professional Conduct Applicable to Depositions
- Appendix L Special Supplement: Proving Medical Negligence Cases through the Defendant Doctor’s Deposition
- Appendix M Form Letter for Defense Counsel to Send to Doctor Defendant in Medical Malpractice Case
- Appendix N Humor in Deposition Practice
- Index