Advanced Deposition Techniques: Leveraging Exhaustion, Boxing-In, and Summarization Approaches With Adverse Witnesses
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Presenting a live 90-minute webinar with interactive Q&A
Advanced Deposition Techniques: Leveraging
Exhaustion, Boxing-In, and Summarization
Approaches With Adverse Witnesses
TUESDAY, MARCH 14, 2017
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
Today’s faculty features:
Michael R. Gordon, Partner, Manatt Phelps & Phillips LLP, New York
John A. Snow, Esq., Prince Yeates & Geldzahler, Salt Lake City
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ADVANCED DEPOSITION
TECHNIQUES-
PART I: INTRODUCTION
John A. Snow
Prince, Yeates & Geldzahler
15 West South Temple, Suite 1700
Salt Lake City, Utah 84101
Main No. (801) 524-1000
Direct (801) 524-1073
E-mail jsnow@princeyeates.com
Web-Site www.princeyeates.com
5
To Take or Not Take a
Deposition –
Considerations
6
To Take or Not to Take To Take: • Cost v. Benefit • Obtaining concessions and admissions from the witness that support matters favorable to the case • Obtaining potential direct testimony of an adverse party • Preserving testimony for trial • Obtaining information which can be used for impeachment • Obtain facts to support or oppose a motion
To Take or Not to Take
To take:
• Establishing facts known within an entity by use
of a Rule 30(b)(6) deposition
• Establishing the universe of information known
by the witness
• Discovering facts and opinions known or held by
the opponent and third parties
• Laying the foundation for documents or other
evidence
• Revealing parts of your case for settlement
purposes
8Reasons Not to Take
There are reasons not to take a deposition. For
example:
• The questions asked and the documents used at a
deposition communicate to the opposition
information the attorney deems important, and a
sense of how the case will be tried.
• A deposition gives the witness a practice session
before trial, and, as a result, makes him or her a
better opposition witness at trial.
• Depositions also preserve testimony of a witness,
which could be helpful to the opposition.
• Alternative methods to preserve testimony
9To Take or Not Take a
Deposition –
Permissible Use of a
Deposition
10Use of a Deposition
Rule 32 (a). Using Depositions:
(1) In General. At a hearing or trial, all or part of a
deposition may be used against a party on these
conditions:
(A) the party was present or represented at the taking
of the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible
under the Federal Rules of Evidence if the deponent
were present and testifying; and
(C) the use is allowed by Rule 32(a)(2) through (8).
11Use of Deposition
Rule 32(a). Using Depositions.
(2) Impeachment and Other Uses. Any
party may use a deposition to contradict
or impeach the testimony given by the
deponent as a witness, or for any other
purpose allowed by the Federal Rules of
Evidence.
12Use of Deposition
Rule 32(a). Using Depositions:
(3) Deposition of Party, Agent, or Designee. An
adverse party may use for any purpose the
deposition of a party or anyone who, when
deposed, was the party's officer, director,
managing agent, or designee under Rule
30(b)(6) or 31(a)(4).
13Use of Deposition
Rule 32(a). Using Depositions:
(4) Unavailable Witness. A party may use for any purpose the deposition of
a witness, whether or not a party, if the court finds:
(A) that the witness is dead;
(B) that the witness is more than 100 miles from the place of
hearing or trial or is outside the United States, unless it appears that
the witness's absence was procured by the party offering the
deposition;
(C) that the witness cannot attend or testify because of age, illness,
infirmity, or imprisonment;
(D) that the party offering the deposition could not procure the
witness's attendance by subpoena; or
(E) on motion and notice, that exceptional circumstances make it
desirable--in the interest of justice and with due regard to the
importance of live testimony in open court--to permit the deposition
to be used.
14Use of Deposition
Rule 32(a). Using Depositions:
(6) Using Part of a Deposition. If a party offers
in evidence only part of a deposition, an
adverse party may require the offeror to
introduce other parts that in fairness should be
considered with the part introduced, and any
party may itself introduce any other parts.
15Use of Deposition
Rule 32(a). Using Depositions:
(8) Deposition Taken in an Earlier Action. A
deposition lawfully taken and, if required, filed in
any federal- or state-court action may be used in
a later action involving the same subject matter
between the same parties, or their
representatives or successors in interest, to the
same extent as if taken in the later action. A
deposition previously taken may also be used as
allowed by the Federal Rules of Evidence.
16Timing of the Deposition –
Considerations
17Timing – Discovery Strategy
• Consider first obtaining universe of relevant
documents.
• Consider first obtaining the testimony of others.
• Knowing the opposition’s basic contentions.
• Knowing the contentions of co-defendants.
• Knowing the pertinent legal and evidentiary
issues.
• But, not ways, you may educate the opponent
or allow the opponent to become educated.
18Video Depositions
19Reasons to Take a Video Deposition
• Presumably, everything is better received on video
• Capture initial reactions (if possible) of the opposing
party to “tough” questions
• Consideration of use in closing argument and possibly
opening statement
• Reminds the jury of who the witness was
• Reminds the jury of the actual statement made
• Unavailable witnesses – even if marginal(?)
• Impeachment/Cross-examination is more effective
• Video can impact the witnesses demeanor
• Difficult attorney are better controlled on video
• Evasive witnesses appear evasive on video
• Jury study with video depositions
20Observations by the Courts
Littlewood v. Fed. Realty Inv. Trust, 2014 WL 6713468, at *1
(Mass. Super. 2014)
A number of cases “have extolled the advantages of video
depositions and preference for their use in a trial, noting that a
witness' demeanor reflected in his motions, expressions, voice
inflections, etc., give the fact-finder a unique advantage in
evaluating evidence, resulting in appellate courts granting
greater deference to such findings.” Rice's Toyota World, Inc. v.
Southeast Toyota Distrib., Inc., 114 F.R.D. 647, 649
(M.D.N.C.1987) “Video depositions can markedly increase
accuracy and trustworthiness. In addition, to the extent that a
video deposition reduces tedium, the fact-finder's concentration
and attention will be enhanced, again to the benefit of the
decision process.”
21Observations by the Courts
Citizens for Responsibility & Ethics in Washington v.
Cheney, 580 F. Supp. 2d 168, 183 (D.D.C. 2008)
The liberalization of the Federal Rules to permit
videotaping of depositions without prior
authorization of the courts reflects “recognition of
the fact that videotapes are a means of presenting
deposition testimony to juries that is superior to
readings from cold, printed records.” Paisley Park
Enters., Inc. v. Uptown Prods., 54 F.Supp.2d 347, 349
(S.D.N.Y.1999). A videotaped deposition also has the
advantage of “conveying to the fact finder the full
message of the witness in a manner that assists the
fact finder in assessing credibility....” Riley v. Murdock,
156 F.R.D. 130, 131 (E.D.N.C.1994).
22Deposition – Objections
23Objections
Rule 30(c)(2)
(c) Examination and Cross-Examination; Record of the
Examination; Objections; Written Questions.
(2) Objections. An objection at the time of the
examination--whether to evidence, to a party's conduct,
to the officer's qualifications, to the manner of taking the
deposition, or to any other aspect of the deposition--must
be noted on the record, but the examination still
proceeds; the testimony is taken subject to any objection.
An objection must be stated concisely in a
nonargumentative and nonsuggestive manner. A person
may instruct a deponent not to answer only when
necessary to preserve a privilege, to enforce a limitation
ordered by the court, or to present a motion under Rule
30(d)(3).
24Objections - Waiver
Rule 32(d) Waiver of Objections.
(1) To the Notice. An objection to an error or irregularity in a deposition notice is waived
unless promptly served in writing on the party giving the notice.
(2) To the Officer's Qualification. An objection based on disqualification of the officer
before whom a deposition is to be taken is waived if not made: …
(3) To the Taking of the Deposition.
(A) Objection to Competence, Relevance, or Materiality. An objection to a
deponent's competence--or to the competence, relevance, or materiality of
testimony--is not waived by a failure to make the objection before or during
the deposition, unless the ground for it might have been corrected at that
time.
(B) Objection to an Error or Irregularity. An objection to an error or
irregularity at an oral examination is waived if:
(i) it relates to the manner of taking the deposition, the form of a
question or answer, the oath or affirmation, a party's conduct, or other
matters that might have been corrected at that time; and
(ii) it is not timely made during the deposition.
25Preparation of Depositions
26Preparing for the Deposition -
Examination
• Knowledge of the topics to be examined with
the witness
• Outline of topics (and specific questions) to be
addressed
• Consideration of sequence of questions
• Topics
• Chronology
• Exhibits
• Consideration of impeaching at the deposition
• Consideration for impeaching at trial
• Consideration of how the deposition may be
used
27Preparing for the Deposition - Exhibits
• Organization
• By event
• By Issue
• By Date
• Coordinated to outline
• Hard Copies or Electronic Copies
• Identification
• Control Number
• Title
• Highlighted Exhibits for Examiner’s Use
28Part II & Part III
Exhaustion and Restating/Summarizing
Deposition Testimony
Michael R. Gordon, Partner
Manatt, Phelps & Phillips, LLP
7 Times Square, New York, New York 10036
212.790.4603
mgordon@manatt.com
29Taking depositions is being fearless
• Know your litigation position – what’s the big picture?
• Know your deposition goals – why are you doing this?
• Be fearless – don’t allow yourself to be run over
30Part II Hypothetical
Hypothetical Case:
Plaintiff Peter Parkour (“PP”) claims defendant Big Bad Bank (“BBB”)
wrongfully foreclosed on certain commercial real property in which PP
claims an interest even though PP did not record any interest therein
Issue:
Whether BBB had actual notice of PP’s claimed interest in the real
property, in which case BBB would have been under a legal obligation to
notify PP of the mortgage foreclosure proceeding
Witness: BBB’s General Counsel, a former BBB loan officer
Primary goal: To ascertain whether BBB’s General Counsel
actually reviewed relevant loan files and spoke with BBB loan
officers and others familiar with the loan and the real property
31Know the rules
• Confidence comes from knowing the rules
• The rules:
– Federal or State rules
– Local rules
– Individual practice rules
– Ethical rules
• Be prepared with cases and/or opinions
• Don’t be afraid to call the judge – but don’t be
the one who cried wolf
32Develop a strong outline
• No winging it – Be prepared
• Consider tablet and other e-technology
• Whether paper or electronic, outlines take time
• Strong outlines are focused and methodical but accommodate flexibility
• Listen carefully and react, but hold down the fort – don’t allow yourself to
be pushed off your game by your adversary or the witness
• Use unexpected answers as springboards to related questions (know the
difference between new lines of inquiry and wild goose chases)
• No two outlines are the same (generally; but see, e.g., depositions of
plaintiffs in multi-plaintiff toxic tort cases)
• All outlines end with: Don’t forget to go back to the top of the outline and
carefully review the questions – did I ask everything I need to ask, or am I
rushing to get home to play tennis/see the kids/have a cocktail?
33Example of a strong outline
• Introductions and stipulations
– Introduce yourself and your colleagues – note your client and litigation
– Confirm reporter has noted presence of all in attendance
– Note any unusual conditions
– Confirm reporter notes start time
• Confirm stipulations to be followed
• Background – don’t shortcut
– Education
– General experience
– Specific experience
– Deposition preparation
• Documents (be prepared on Sporck)
• Discussions, including counsel, to the extent permitted
• Contours of the attorney-client black box (when, where, who, duration)
• Other (site visits, calculations, ruminations, Ouija board)
34Example of a strong outline (cont’d)
• Are you employed by Big Bad Bank? (yes)
• How long have you been employed by BBB? (15 years, per LinkedIn)
• What was your first position at BBB? (loan officer, per LinkedIn)
– What was your title when first hired? (loan officer, per LinkedIn)
– What were your primary responsibilities in that initial position?
– Did you have any other responsibilities in that initial position?
– Do you know whether or not a statement of your responsibilities in your
initial position as loan officer appear in any document? (If so, request all
details and either call for production or make note to follow up with
formal, written document request)
– Did your responsibilities as a loan officer include working with counsel on
mortgage foreclosure matters? (yes)
– What were your responsibilities when working with counsel on a
mortgage foreclosure? (making sure she had all the information she
needed about the non-performing loan)
35Exhaustion by excavation
• Nothing will fall into your lap
• You must dig for it
• Dig, dig, dig
• Your aim is to
extract as much
information as you can …
efficiently and thoroughly
36Exhaustion by excavation (cont’d)
• Know your overall topic, sub-topics, and goals
– Know general categories of information
– Know specific categories of information
– Know what you need and want from the witness
– Know when it’s time to go fishing
– Know the key documents and have them handy
• Stay disciplined and focused
• Wander only when tactical to do so or you feel the witness is
leading you to a place you want to go
• Build each successive question with an appropriate predicate
• Follow the famous funnel
37The famous funnel
The funnel approach is a tool that allows the
questioning lawyer explore the limits of the
witness’s knowledge
38How the funnel works
• Questioning starts generally and broadly and then narrows
• Notes are crucial – paper or electronic does not matter – but keep track
• Explore each subject matter topic sequentially
– Don’t wing it (I know I said this already – but it’s important)
– Develop a case-appropriate and witness-appropriate sequence
• Topical
• Temporal
• Other
• Each topic and sub-topic is its own funnel
• For each topic and sub-topic explore:
– Basis of the witness’s knowledge (First-hand? Second-hand? Third-hand?)
– Source of the witness’s information (Heard it? Saw it? Read it? Had a vision?)
– Extent of witness’s knowledge (deep, shallow, in between)
– What the witness knows: the guts
– Drill as deep as you need to go and don’t stop until you get there
– How do you know when to stop? (meet me on the next slide)
39How the funnel works (cont’d)
• You know what you need
• So stop when you get there
• And don’t stop until you get there
• … you are the dog with a bone
40The top of the funnel – sample questions
• Did any BBB loan officer declare Loan No. BBB-1 non-performing? (yes)
• Did you ever learn who declared Loan No. BBB-1 non-performing? (yes)
• Who declared Loan No. BBB-1 non-performing? (Loan Officer Linda)
• Did you take action when you learned that Loan Officer Linda declared Loan No. BBB-1
non-performing? (yes)
• What action did you take when you learned that Loan Officer Linda declared Loan No.
BBB-1 non-performing? (I engaged outside counsel to being a mortgage foreclosure
proceeding)
• What was the outcome of the action you took concerning Loan No. BBB-1? (we started
a mortgage foreclosure action)
• Who did BBB name as defendants in the mortgage foreclosure action? (“It’s in the
complaint”)
• Humor me and answer the question (reporter reads it back)
• Did you or to your knowledge anyone else at BBB notify Peter Parkour that BBB had
started a mortgage foreclosure action against the property at issue here? (no)
• Do you know why Peter Parkour was not notified by BBB about the mortgage
foreclosure action that was brought against the property at issue here?
41The tunnel narrows
Let the drilling begin
42The funnel narrows – sample questions
• Did you ever learn that Loan Officer Linda declared Loan No. BBB-1 non-
performing? (yes)
– Do you remember when you learned Loan Officer Linda declared Loan
No. BBB-1 non-performing? (yes)
– When did you learn that Loan Officer Linda declared Loan No. BBB-1
non-performing? (around March of 2016)
– Do you remember how you learned that Loan Officer Linda declared
Loan No. BBB-1 non-performing? (yes)
– How did you learn that Loan Officer Linda declared Loan No. BBB-1
non-performing? (from an email I received from her)
– Let me show you a document we’ve pre-marked for identification as
Plaintiffs’ Exhibit 35.
43The funnel narrows – sample questions
From: Loan Officer Linda
Subject: Non-performing loan no. BBB-1
Date: March 1, 2016
To: Georgina Genero, General Counsel
Georgina, we have another doozy. The referenced loan has gone belly up and there’s no way it’s
going to get any better. The borrower is four months behind and I’m sure is not going to be able
to turn things around. Remember I spoke to you about this a couple of months ago. The only
squirrely thing about this – and for the most part it should be pretty straightforward – is that I
think there might be some guy who says he’s got something to do with the property. Can’t recall
and not exactly sure what his connection is, but I wanted you to have the heads up. See you at
lunch. LOL
Loan Officer Linda
Vice-President and Loan Officer
Big Bad Bank
Big Bad Bank Boulevard
Nowhere Land, Pennflorania 123456
gg@bigbadbank.com
123.456.7890
44Questioning on the document
45Questioning on the document (cont’d)
• Easier to put questions directly on document
• Pre-marking is rarely practical because you don’t know where
you will go, what documents you will need, and in what order
you will need them
• Remember that testimony is king – documents serve the king
46Exhaustion by examining the issue from all
angles
Be a 360° examiner
47What a 360° examiner does
• Never stops questioning on a topic until every
angle and interpretation has been explored
• Never assumes anything
• Is not afraid to question the obvious
• Ignores adversary’s eye-rolling
48Exhaustion: The final stage
Run through the tape
49Restating/summarizing
• Remember when our witness said neither she nor to her knowledge
anyone else at BBB notify Peter Parkour that BBB had started a mortgage
foreclosure action against the property at issue here?
– So you did not notify Peter Parkour that BBB had started a mortgage foreclosure action
against the property at issue, right?
– You didn’t notify PP of the foreclosure action in person, right?
– And you didn’t notify PP of the foreclosure action by phone, right?
– And you didn’t notify PP of the foreclosure action by email, right?
– If you did notify PP of the action by email you would have a copy of that email, right?
– Because you didn’t delete any emails after you received the litigation hold notice, right?
– You complied with that notice, right?
– You didn’t delete or destroy any emails after the date of the litigation hold notice, right
– No email notice of the mortgage foreclosure action exists in your files, right?
– And to the best of your knowledge no such email exists in any files at BBB, right?
50ADVANCED DEPOSITION TECHNIQUES-
PART IV: BOXING-IN
John A. Snow
Prince, Yeates & Geldzahler
15 West South Temple, Suite 1700
Salt Lake City, Utah 84101
Main No. (801) 524-1000
Direct (801) 524-1073
E-mail jsnow@princeyeates.com
Web-Site www.princeyeates.com
51Boxing-In
• Define the witness’ universe of facts, events,
opinions, conclusions, reasons, sources
• Define the witness’ unknown, unused or unwanted
facts, opinions, conclusions, reasons, sources
• Review and examine the foundation of each
element or part of the witness’ universe of facts,
events, opinions, conclusions, reasons, sources
• Review and examine the application to your case of
each element or part of the witness’ universe of
facts, events, opinions, conclusions, reasons,
sources
• Then summarize
52Boxing-In
Boxing in the useful or absurd answer:
• Put it in concrete – restate the answer
• Have the witness explain and re-explain
• Close exits
• Follow-up
53Boxing-In
Simple example:
1. What is the opinion/conclusion
2. What is the basis for the opinion/conclusion
• Examine each element
3. What information/events/documents/etc. relied
upon
• Examine each element
4. What was the methodology to get to the
opinion/conclusion
• Examine each element
5. What was not considered or known
54Rule 30(b)(6) Depositions
(6) Notice or Subpoena Directed to an Organization.
In its notice or subpoena, a party may name as the
deponent a public or private corporation, a partnership,
an association, a governmental agency, or other entity
and must describe with reasonable particularity the
matters for examination. The named organization must
then designate one or more officers, directors, or
managing agents, or designate other persons who
consent to testify on its behalf; and it may set out the
matters on which each person designated will testify. A
subpoena must advise a nonparty organization of its
duty to make this designation. The persons designated
must testify about information known or reasonably
available to the organization. This paragraph (6) does
not preclude a deposition by any other procedure
allowed by these rules.
55ADVANCED DEPOSITION TECHNIQUES-
PART V: DIFFICULT AND EVASIVE
WITNESSES
John A. Snow
Prince, Yeates & Geldzahler
15 West South Temple, Suite 1700
Salt Lake City, Utah 84101
Main No. (801) 524-1000
Direct (801) 524-1073
E-mail jsnow@princeyeates.com
Web-Site www.princeyeates.com
56Difficult Witness
A witness may be difficult for various reasons:
• The Advocate: The witness who attempts to argue
each point and avoid giving a simple answer that the
witness perceives will harm his or her favored
position.
• The Conversationalist: The witness simply does not
relate to a question and answer format.
• The Nervous Witness: The witness who is simply
nervousness.
• The Timid Witness: The witness whose nature it so
avoid being wrong.
• The “I am too Cool” Witness: The witness will not
listen and will explain anything and everything.
57Difficult Witness
The Nervous Witness:
• Make the witness comfortable with the process and
assurances in a respectful manner.
• This is not achieved by instructing the witness
• Appropriate humor can relax the witness.
• Reduction of tension can be achieved by reducing the
formality of the process.
• Allow the witness to say what is on his or her mind,
and then seek clarification.
• A complete explanation of the deposition process
to the novice witness and what is intended can also
calm a witness.
58Difficult Witness
The Advocate Witness:
• Lectures to the witness about the “correct”
procedure and threats are ineffective.
• An attorney giving at least an interest in the
witness personally and what the witness has to
say can disarm a hostile witness.
• Allow the witness to make his or her arguments,
and then use appropriate follow up questions in
a non-hostile manner.
• Some appropriate humor can defuse a witness.
59Difficult Witness
Some other considerations with a hostile witness include:
• Make a record for any possible motions to compel
• Offer the “deal”: Answer my questions, and then you may
then say anything desired
• Repeat the question until the answer is given
(notwithstanding the objection of repetition or the worn out
phrase, “the question has been answered; you just don’t like
the answer.”)
• Use leading questions with appropriate follow-up
• Use documents to rein in a witness
• “So, the answer to my question is “yes””
• Break down the response into parts that can be used at trial
• Use the Court reporter to re-state the question
• Impeach in the deposition if necessary to gain control
60Difficult Witness
The Timid Witness:
• Assurance – Its not a test
• Assurance – Only you know
• Assurance – You are being helpful
• Assurance – Your memory/observations cannot
be wrong
• Assurance – We all just want your best memory
61Difficult Witness
The “I am too Cool” or “I know All” Witness:
• Feigned Respect and Admiration
• “Help me understand”
• Do not lecture about their roll
• Reign in with documents
• Let them speak and isolate favorable or help
testimony
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