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Preparing Yourself to Conduct or Defend a Deposition


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Jeffrey Miller presented "Preparing Yourself to Conduct or Defend a Deposition" on June 25, 2015, at the Cleveland Metropolitan Bar Association.

The presentation discussed best practices and tips for depositions. It looked at questioning, evidence and managing client expectations.

Published in: Law
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Preparing Yourself to Conduct or Defend a Deposition

  1. 1. z Preparing Yourself to Conduct or Defend a Deposition presented by Jeffrey C. Miller June 25, 2015
  2. 2. z TAKING Managing Client Expectations when a Deposition
  3. 3. z Inexperienced Client Explain the basics Explain your goals to the client Explain how you will ask questions Explain what your demeanor will be Explain the client’s role during the deposition Explain how the deposition will be used Disabuse client of the TV-lawyer-show- generated perception of depositions
  4. 4. z Experienced Client No need to explain the basics Focus on goals you want to accomplish + the means to achieve them Collaboration is key Share in advance your outline Brainstorm ideas with the client Solicit topics the client thinks are important You ALWAYS control the final decisions
  5. 5. z DEFENDING Managing Client Expectations when a Deposition
  6. 6. z Inexperienced Client Prepare the client to be a witness Teach how to listen and answer questions Adjust preparation to client’s personality
  7. 7. z Experienced Client Often harder to do than for inexperienced Puncture deposition-veteran overconfidence Demand necessary preparation time Teach how to listen and answer questions Adjust preparation to client’s personality Be the guide to their deep thinking
  8. 8. z Deposition Objectives Pin witness down on all relevant facts Extract admissions Set foundation for summary judgment Immunize case from summary judgment Neutralize a witness Set stage for and enhance settlement position Testimony preservation
  9. 9. z Acquiring + Organizing Documentary Evidence Get all relevant documents in advance, unless circumstances dictate otherwise Now almost always electronic Organization: Critical to have computerized data management system Read, discuss with client Reread + Repeat Don’t rest until you thoroughly understand
  10. 10. z Sequence of Questions + Overall Plan for Questioning Preparing an outline – good but not good enough Write out in detail every single question you intend to ask It will expose the missing pieces It will force you to think about sequence Ideas explode from the computer as you do this It is the intense, deep thinking that is critical to success CAUTION: Do not become tethered to your question list!
  11. 11. z The Great Deposition Art of a great deposition is being thoroughly prepared Know exactly where you intend to go Know exactly what you intend to ask Know exactly how you intend to ask it Listen carefully to the answers. Be prepared to seize the moment
  12. 12. z Parties, Non-Parties, + Experts Parties v. non-parties = privilege v. no privilege Communications between attorney and testifying expert FRCP 26(a)(2) and 26(b)(4)(c): Mostly privileged ORCP 26(B)(5)(c) and (d): Mostly privileged If no privilege, be careful what you say
  13. 13. z PREPARING for Expert Deposition
  14. 14. z Additional Dimensions Expert opinion must be based upon reasonable degree of certainty Must pass muster under Daubert + Rule 702 Must help trier of fact to understand evidence or determine fact in issue Must be based on sufficient facts or data Must be product of reliable principles and methods Expert must reliably apply principles and methods to facts of case
  15. 15. z “The facts or data upon an expert bases an opinion or inference may be those perceived by the expert or admitted in evidence at the hearing.” Ohio Rule Evid. 703
  16. 16. z “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” Fed. Rule Evid. 703
  17. 17. z Taking Expert Deposition Get the report; study it; review with your expert Cannot discover drafts (FRCP 26(b)(4)(B); ORCP 26(B)(5)(c)) Get prior deposition testimony If any doubt re expertise, prepare questions to explore and challenge Extract all facts on which expert’s opinion based Extract admissions – you will be surprised Learned treatises: Suggest them or ask for them
  18. 18. z Defending Expert Deposition Teach the expert how to answer questions Anticipate other side’s questions Grill your own expert Make your expert’s preparation harder than the deposition Challenge every assumption Make the expert defend every conclusion Examine + prepare him to defend every element of Evidence Rule 702
  19. 19. z But my case is too small…
  20. 20. z No, it’s Not. If the case is smaller Documents are likely to be fewer Breadth of events are likely to be narrower If not, you must do what you must do For your client – it is your duty For yourself – it is how you build a reputation
  21. 21. z Thank You! Jeffrey C. Miller Kegler Brown Hill + Ritter 216.586.6651