The American Bar Association Section of Litigation and the ABA Center for Continuing Legal Education Present

Litigation Fundamentals: Effective and Efficient Use of Depositions

American Bar Association Center for Continuing Legal Education 321 North Clark Street, Suite 1900 Chicago, IL 60654-7598 www.abanet.org/cle 800.285.2221, select option 2

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The materials contained herein represent the opinions of the authors and editors and should not be construed to be the action of the American Bar Association, Section of Litigation or the Center for Continuing Legal Education unless adopted pursuant to the bylaws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only. 2009 American Bar Association. All rights reserved. This publication accompanies the audio program entitled Litigation Fundamentals: Effective and Efficient Use of Depositions broadcast on November 24, 2009 (Event code: CET9EED).

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Litigation Philosophy
Real World Litigation

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Litigation Philosophy Real World Litigation

The Challenge:

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Litigation Philosophy Real World Litigation

The Challenge:

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Connect the Different Worlds

Key Passages to Conducting a Winning Deposition

Preparing to Take the Deposition

10
Key Rules

Key Passages to Conducting a Winning Deposition Preparing to Take the Deposition

10 Key Rules

1. Conduct Appropriate Pre-Deposition Discovery 2. Determine Witness Order 3. Determine Mechanics Notice/Subpoena Duces Tecum Location Audience Court Reporter Ordinary Stipulations

Key Passages to Conducting a Winning Deposition Preparing to Take the Deposition

10 Key Rules

4. 5. 6. 7. 8. 9.

Conduct Homework on Opposition Complete Document Review Identify Key Issues Prepare for Possible Controversy Prepare Final Deposition Outline Determine Cosmetics

10. Finalize Ultimate Deposition Goals

Key Passages to Conducting a Winning Deposition

Conducting A Winning Deposition

10
Key Issues

Key Passages to Conducting a Winning Deposition Conducting A Winning Deposition

Key Issue

Court Reporter Communications Seating Oath Stipulations Materials

1
Orchestrate Pre-Testimonial Procedures

Key Passages to Conducting a Winning Deposition Conducting A Winning Deposition

Carrot: Your Friend Stick: Intimidation

Key Issue

Silence Non-Verbal Signals: Rhythm Overwhelm with Preparation Exchanging Secrets Giggling Knowing But Not Telling Contract with Lawyer

2
Determine Style

Key Passages to Conducting a Winning Deposition Conducting A Winning Deposition

Key Issue

3
Examination Structure and Delivery

Impact-Chronological
Content

Key Passages to Conducting a Winning Deposition Conducting A Winning Deposition

Key Issue

Establish Rapport Use of Investigative Materials Set Depo Rules?

4
The First Five Minutes

Key Passages to Conducting a Winning Deposition Conducting A Winning Deposition

Key Issue 5 Use of Outline

Key Passages to Conducting a Winning Deposition Conducting A Winning Deposition

Key Issue 6 Handling Exhibits

Key Passages to Conducting a Winning Deposition Conducting A Winning Deposition

Key Issue

7
Handling Controversy

Dealing with the Difficult Witness Dealing with Opposing Counsel Options

Key Passages to Conducting a Winning Deposition Conducting A Winning Deposition

Be a Good Listener

Key Issue

Timing of Recesses Getting the Great Answer Soliciting Witness Cooperation Making a Good Record

8
Fundamental Mechanics

Key Passages to Conducting a Winning Deposition Conducting A Winning Deposition

Qualifications: Humble Daubert FRE: 702 and 703 Curve Ball Quotes Background Info Other Testimony Compensation Plaintiff or Defendant Expert Naming your Expert

Key Issue

9
Special Rules for the Expert

Key Passages to Conducting a Winning Deposition Conducting A Winning Deposition

Key Issue 10 Deposition Peroration