Chapter 14 fourteen  depositions civ lit 2nd
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Chapter 14 fourteen  depositions civ lit 2nd Chapter 14 fourteen depositions civ lit 2nd Presentation Transcript

  • Civil Litigation:Process and Procedures Chapter Fourteen Depositions
  • A Unique Form of Discovery  An opportunity to ask questions of parties OR witnesses (lay or expert)  May choose to observe the way a witness or party answers  Demeanor  Level of comfort  “Jury appeal”  Evaluate the presentations of both sidesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 2
  • Paralegal Duties  Schedule depositions  Calendar for all attorneys  Subpoena witnesses  Notify parties  Schedule a court reporter  Reserve a location  Attend & take notes (noting demeanor, body language of both sides)  Prepare a digest of the depositionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 3
  • Other Paralegal Duties Listen, observe, take notes Be sure  Proper notice has gone out  Client, witnesses, attorney & court reporter know how to get there Be there early to  Review set-up (where are the restrooms?)  Greet clients & witnessesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
  • Types of Depositions Depositions before filing a complaint  Limited circumstances, by motion  Obtain information necessary to preparing a complaint Deposition on Written Questions  Questions are prepared in advance, posed by the court reporter  Limited use, usually when travel is a hardship  Doesn’t require attorneys to be presentCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
  • Oral Deposition Attended by the parties, lawyers, witness, court reporter  Witness is asked questions by an attorney under oath  Response is similar to a trial situation response  Objections can be made for the record  Must give reason  Witness will answer, subject to a judge later sustaining the objection  Paralegal notes responses, inconsistenciesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
  • Videotaped Depositions Oral deposition, recorded as a video, rather than written, transcript May be done in anticipation of a witness becoming unavailable to testify at trial  Physical illness or disability  Travel limitations  Experts with scheduling difficulties, cost factor of personal appearance in courtCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 7
  • Video GuidelinesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
  • Uses of Depositions  Opportunity to hear the other side’s version of the events  Evaluate the effectiveness of witnesses  Exposes the client to a more hostile form of questioning, similar to cross-examination  Preserves testimony in case the witness becomes unable to testify  Even if oral, not videotaped  Unforeseen difficulty  As long as both sides had the opportunity to ask questionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
  • Impeachment If the deposition differs  From previous material given under oath (interrogatories, affidavits)  From testimony in court Raises doubts about the  Truthfulness of the witness  The accuracy of the witness’s recallCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
  • Notice Notice of Deposition adequate for parties, counsel, court reporting service to attend Subpoenas required for witnesses  Duces tecum, if documents are required  A court order, subject to penalties for contempt of court  Served by the same means as a complaint  Adult to adult  Residence or usual place of business  May require a witness feeCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
  • Court Reporter Notified by Notice of Deposition May conduct the deposition on written questions without attorneys present Will administer the oath Needs  Date, time, location  To know the type of equipment required  A feeCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
  • Preparation Review the file Review with the client  Prior statements  Reports  Police  Accident  Insurance  Investigators  Medical personnelCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 13
  • Questions  Discuss the types of questions  Open-ended, narrative  Closed-ended  Leading  Discuss objections  May choose to practice  If client is unusually shy or apprehensive  To prepare for the rougher questions of an adversaryCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 14
  • Deposition Advice Dress appropriately Be on time Don’t talk over anyone – court If you respond, it is assumed you reporters can only follow one understood the question and are speaker at a time responding to it Listen to the question If you don’t understand a question, ask for it to be rephrased Don’t guess If you don’t know an answer, say “I don’t know.” Don’t argue Tell the truthCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
  • Deposition Scope Permits questions asked of the other side’s witnesses, even if they have been hostile to previous efforts Can seek information that would be objectionable at trial, if it can be shown to possibly lead to admissible evidenceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
  • Deposition Digest Will aid in trial (potential impeachment) Should be prepared while still fresh in the mind Integrate notes & mark transcript (or video location by footage) for important concepts Electronic transcripts are more easily searched & coded Include background information on the witnesses (a computer search may help)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
  • DigestSampleCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 18
  • The “Usual Stipulations” Will frequently include a waiver of the right to review & correct If the usual stipulations are not adopted  The transcript should be reviewed with the witness  The witness should suggest corrections, if necessary  The witness should sign the transcript with the corrections madeCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19