Deposition Strategies

C hrist ophe r W. Ru m bol d , E sq.
G l a d s t o n e & We i s s m a n , P . A . , B o c a R a t o n
DEPOSITION STRATEGIES:
PREPARATION TO EXECUTION

LECTURE OUTLINE
1. Assessing the Deposition
2. Scheduling/Noticing the Deposition
3. Preparation for the Deposition - Generally
4. Preparation for Adverse Party/Witness
5. Preparation for Client/Witness
6. Form and Format of Taking/Defending the Deposition
7. Post-Deposition Considerations

Assessing the Deposition – Vignette One
During a consultation with a potential client for a dissolution
action, your client, the Wife, reveals that the Husband has a
gambling addiction and an entertainer girlfriend that is his “lady
luck” and with whom he travels to Las Vegas regularly. The
Husband has dissipated tens of thousands of (unreported,
nontaxed) earnings but intends on winning it back next
weekend. The Husband is paid in cash by his brother and the
parties, given IRS concerns, do not deposit the cash but instead
keep it in a box in the garage. As such few if any financial
records exist. You are contemplating filing the case tomorrow
and filing an urgent or emergency motion for injunctive relief.
How do you assess the form, function and utility of taking a
deposition or multiple depositions based upon this vignette?
(Allow this to Percolate and Continue to Consider as we
Proceed.)

Assessing the Deposition – Vignette Two
During a consultation with a potential client for a relocation action
(temporary hearing is scheduled), your client, the Former Husband, has
accepted a job in California (consider also, if the accepted position
was in a foreign country) for a position that opens next year. The
Husband and Wife have 50/50 timesharing and both parties are terrific
caring and involved parents. The Husband provides you an
informational binder that contains all pertinent information about the
city to which he intends on relocating to. He also provides you a
binder that contains all information concerning the children, the family
tree (with addresses and phone numbers), the children’s educational
institution (and report cards), names of friends and their parents,
coaches, rabbis, and all other germane documentation. The Wife
objects to the relocation and, unbeknownst to the Husband, she had
a psychologist privately interview the parties’ children all of whom
indicated a desire to stay in Florida because they love the beaches,
their schools and their friends.
(Allow this to Percolate and Continue to Consider as we Proceed.)

ASSESSING THE DEPOSITION -
CONTINUED
Consider the two vignettes above, how do the facts and
circumstances shape your deposition strategy:
• Who is the intended deponent?
• Given the factual issues, what information/testimony do you
know that they could provide?
• In order to capitalize upon that information, should the
deposition be expedited or not expedited?
• If expedited, will you have enough time to secure discovery for
potential deposition exhibits?

ASSESSING THE DEPOSITION -
CONTINUED
• If expedited, will you have time to comply with the applicable
rules?
• If expedited, will you have time to properly prepare?
• If not expedited, could you lose a star witness?
• If not expedited, could that star witness’s testimony be
compromised?
• If not expedited, and the star witness dies (said witness had a
well-known congenital disease) should your next call be to your
malpractice provider?

DETERMINE THE PURPOSE/GOAL OF
TAKING THE DEPOSITION
✔ Fact Finding/Fact Confirmation
✔ Assessment of the Intelligence of the Witness
✔ Assessment of the Shrewdness of the Witness
✔ Assessment of the Psychology of the Witness
✔ Assessment of the Knowledge of the Witness
✔ Assessment of the Credibility of the Witness
✔ Clear, Unambiguous Answers to KEY Questions

DEPOSITION FOR PERPETUATION OF
TESTIMONY
A deposition for the perpetuation of testimony (Fla. R. Civ. P.
1.290) may be used in any action involving the same subject
matter which is subsequently brought in any court in any
jurisdiction in accordance with Fla. R. Civ. P. 1.330. In
accordance with Fla. R. Civ. P. 1.290, the deposition may be used
against any party or their successor in interest named in the
petition as unexpected adverse party. The deposition may be
taken in the form of an oral examination and it must follow the
same procedures as those followed for depositions taken after
the inception of an action but before judgment in accordance
with Fla. R. Civ. P. 1.290, 1.310 and 1.320.

DEPOSITION FOR PERPETUATION OF
TESTIMONY - CONTINUED
• Bank of Montreal v. Estate of Antoine, 86 So.3d 1262
(Fla. 4th DCA 2012)
• Motel 6, Inc. v. Dowling, 595 So.2d 260 (Fla. 1st DCA
1992)
• Johns-Manville Sales Corp. v. Janssens, 463 So.2d
242 (Fla. 1st DCA 1984)

DEPOSITIONS UPON WRITTEN
QUESTIONS
Fla. R. Civ. P. 1.320 provides an alternative to the
standard deposition format/structure. A subpoenaed
witness, served with a Notice containing the identity
of the deponent and the identity of the officer before
whom the deposition will be taken, has 30 days after
the Notice and Questions are served, to appear
before the officer who takes the witnesses’ testimony
in accordance Fla. R. Civ. P. 1.310.

SETTING THE DEPOSITION -
FORMALITIES
Form of Notice/Subpoena:
✔ Providing for:
❋ Live Witness, Live Witness Noticed Duces Tecum and
Anticipated to Appear, Live Witness Noticed Duces Tecum
with Prior Production Option and Not Anticipated to Appear
(Generally Records Custodian).
✔ Specifying the Individual you Intend on Deposing:
❋Party or Non-Party Witness
❋ Party or Non-Party Witness in Individual Capacity,
Corporate Capacity, or multiple capacities

FORMALITIES - CONTINUED
Form of Notice/Subpoena – Continued:
✔Defining the Scope of the Deposition – limited,
global
✔ Videotaping the Deposition
❋ Fla. R. Civ. P. 1.310(b)(4)(a-e) specifically establishes the
format and requisites for videotaped depositions
✔ Precluding Aggravators/Instigators from Attending
❋ Husband’s new girlfriend, Wife’s new girlfriend and
Wife’s Father that detests the Husband

Setting the Deposition – Formalities
Continued
Multistate Deponent:
➜ Is there a local branch?
Out-of-State Deponent:
➜ Motion to Appoint Commissioner.
Out of Country Deponent:
➜ Fla. R. Civ. P. 1.300(b) (Letters Rogatory)

FORMALITIES - CONTINUED
✔ Geographic Consideration:
❋ Fla. R. Civ. P. 1.410(e)(2) provides that, “a person may be
required to attend an examination only in the county wherein
the person resides or is employed or transacts business in
person or at such other convenient place as may be fixed by
an order of the court.”
❋ Remember: Failure to obey a subpoena, as per Rule
1.410(f), can be a basis for contempt if the Witness was
properly served with the subpoena.
❋ Alternatives?

Setting the Deposition – Procedural Aid
Invocation of the Rule of Sequestration:
❖Lay Witnesses
❖ Expert Witnesses
❖ Exceptions to Rule of Sequestration for Certain
Expert Witnesses

Setting the Deposition – Procedural Aid -
Continued
Applicability Consideration - The districts are split on
whether one can invoke the rule of sequestration at
deposition:
❖ In Dardashti v. Singer, 407 So.2d 1098 (Fla. 4th DCA 1982), the
appellate court reversed the trial court's failure to apply the
rule to exclude a witness during a deposition.
❖ In Ferrigno v. Yoder, 495 So.2d 886 (Fla. 2d DCA 1986) the
appellate court reversed the trial court's order invoking the rule
against a party at a deposition but noted that it
acknowledged the application of the rule for nonparty
witnesses.

Setting the Deposition – Procedural Aid -
Continued
Applicability Consideration - Continued:
❖In Smith v. Southern Baptist Hospital of Florida,
Inc., 564 So. 2d 1115 (Fla. 1st DCA 1990) the
appellate court rejected outright the applicability
of the rule of sequestration to depositions.
❖ Additionally, consider Fla. R. Civ. P. 1.310(b)(8)
which governs the attendance of a minor’s
parent at a minor’s deposition.

Preparation for Depositions Generally – Pre-
deposition tools (Party)
Available discovery options:
• Fla. Fam. L. R. P 12.285
• Fla. R. Civ. P. 1.290 (Before Action)
• Fla. R. Civ. P. 1.330 (a)(3) (Unavailability)
• Fla. R. Civ. P. 1.350
• Fla. R. Civ. P. 1.351 (Non-Party)
• Fla. R. Civ. P. 1.370
• Fla. R. Civ. P. 1.340 (Standard and Additional)
• Fla. R. Civ. P. 1.360, Fla. Fam. L. R. P. 12.360
• Fla. R. Civ. P. 1.560 (Discovery in Aid of Execution)

Preparation for Depositions Generally – Pre-
deposition tools (Party) – Continued
Additional discovery options:
• Private Investigator
• General Background check
• If either party was previously divorced,
secure and review file
• If a business associate (closely held or PA)
was recently divorced, secure and review
file

PREPARATION FOR DEPOSITIONS
GENERALLY - CONTINUED
Legal Research:
✔ Is your issue statutorily based?
✔ Is your issue decisional law based?
✔ If statutory, like relocation or timesharing, in preparing for the
deposition, there should be questions on each and every statutory
factor.
✔ If decisional, like alimony or goodwill, in preparing for the deposition,
your questions should mirror (as close as possible) the issues, reasoning
and considerations that the appellate court utilized to reach its
conclusion.
✔ If done properly, the deposition (or at least a part of it if the deponent
is a party) may well become read into the record testimony at trial.
Fla. R. Civ. P. 1.330(a), 1.330(4)

Preparation for Depositions Generally – Complex
Litigation
Know what you know/Know what you don’t know:
•As family practitioners, our practices crossover with a host of
other facets.
•If the case warrants, retain or collaborate with a lawyer
specializing in the field at issue to assist in the preparation of
deposition questions and your general knowledge of the law.
•If the case warrants, engage or collaborate with a hired
professional to assist in the preparation of deposition
questions and your general knowledge of that field of study –
forensic psychology, addictionology, child development,
special needs, etc.
•Special Consideration: Torts

ORGANIZATION FOR DEPOSITION
The Deposition Binder:
➢ To aid in the ease of document use and reference during
a deposition, a binder should be prepared that comports
to the pending issues. Additionally, certain documents on
certain issues should be sub-filed accordingly.
➢ In most non-emergency issue depositions, the binder
should include pleadings (pleadings, motions, orders,
certain financial records and certain written discovery),
correspondence of interest, e-mails and text messages
of interest, etc.
➢ The deposition binder, if comprehensive and complete
on the certain issue, should convert easily to a witness
hearing/trial binder.

Development of Deposition Questions – Client
Our clients (and associated professionals) are an
invaluable resource for understanding the complexity of
the marriage and the complexities of the personalities
involved. Further, during the litigation they and their
friends maintain in a way that we cannot eyes and ears
on their spouses.
➜ Consultation
➜ History of the marriage
➜ Written records accumulated over the marriage
➜ Daily calendar

Development of Deposition Questions –
Client, Professionals
The client (and any affiliated professionals) is and
should be an integral part of the deposition process
including the creation of the deposition questions.
Brainstorming
session with
client &
professionals.
Preparation
of deposition
question matrix
– categorized.
Circulate
deposition
question matrix
for comment
and
Circulate final
copy of
deposition
question matrix.

DEPOSITION QUESTION MATRIX
Form of Matrix:
The Matrix should include the following components:
Row 1: Category (Issue)
Row 2: Question
Row 3: Documentary Basis for Question (Binder
Reference)
Row 4: Blank for Short Hand Answer
Row 5: Blank for follow up questions/notes

PREPARING CLIENT FOR DEPOSITION
☞ Know your client, learn their strengths and
weaknesses.
☞ Know your adversary and their style.
❋ Sophistication Level
❋ Verbal Skills
❋ Listening Skills
❋ Attitude/Personality
❋ Temperament
❋ Practical and Applied Intelligence

PREPARING CLIENT FOR DEPOSITION -
CONTINUED
Proper Preparation for Deposition:
❖ Initial Client Meeting for Deposition Preparation
• (Don’t Rely on Form Instructions)
• Explanation of Procedure
• Explanation of Gravity and Import of Proceeding
• Explanation of Veracity and Potential Future Trial
Impeachment
• Explanation of Competing Personalities and Adversarial
Nature of Proceeding
• Review of all Pleadings (including Financial Affidavit),
relevant motions, other documents – germane to
Husband and Wife.

CONTINUED
❖ Subsequent Client Meeting for Deposition
Preparation
• Review Anticipated Questions
• Focus on Contested Issues and High Conflict Areas
• Walk the Client through a Mock Deposition
• Test the Client on Their Ability to Withstand Pitfalls

CONTINUED
Rules That Should be Ingrained into your Client’s DNA
if You Have Your Client Properly Prepared:
o LISTEN CAREFULLY to the Question asked.
o Wait for an Objection – three seconds should suffice.
o DETERMINE whether the question as asked can be
answered. If yes, CONSIDER your Answer. If no, then
request that the question be rephrased.
o LIMIT the Answer to only that which the question asked.
o NEVER VOLUNTEER ADDITIONAL DOCUMENTS,
ADDITIONAL RECORDS, ADDITIONAL TESTIMONY, ETC.

CONTINUED
Practical Consideration – Work Product/Recollection
Refreshed:
❖The selection of documents that you use with your
client to review and prepare in advance of a
deposition are work product. Given that the selection
reveals what the attorney believes to be important for
the purposes of litigation, it is opinion work product and
therefore strictly protected. Spork v. Piel, 759 F.2d 312
(3d Cir. 1985).

CONTINUED
Practical Consideration – Work Product/Recollection
Refreshed – Continued:
❖However, work product may be waived if protected documents
are used to refresh the recollection of the witness regarding matters
that they are subsequently examined on at deposition, hearing or
trial. James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138 (D. Del.
1982).
❖ First, if the deposing attorney establishes that the witnesses’
recollection was refreshed based upon certain documents,
those documents become discoverable.
❖ Second, the witness may inadvertently divulge the contents of
the documents upon examination and that too could constitute
a waiver.

FOURTEEN HEADS MAY NOT BE ANY
BETTER THAN ONE

TAKING THE DEPOSITION OF AN
ADVERSE PARTY OR WITNESS
Structure of the Question:
• Leading question
• Open-ended question
• Simple structure of question
• Avoid negative and double negatives
• Create soundbites
• When referencing, use exacting language

ADVERSE PARTY OR WITNESS -
CONTINUED
Goals:
1. General Fact Finding – Any question designed to
lead to the discovery of admissible evidence is potentially
fair game. (Sections 90.401, 90.402, Fla. Stat., Fla. R. Civ. P. 1.280(b)(1)).
2. Specific Fact Finding – Address Every Contested
Issue Raised by the Pleadings. Address Every Factor for
an Element Based Analysis.
3. Potential Future Impeachment – On Critical Issues,
not Collateral Issues.
4. Understanding the Witnesses’ Psychology and
Demeanor.

CONTINUED
Tips for Evasive
Deponents:
❋ Repetition
❋Confrontation
❋Request a direct
answer/object/strike
Tips for Untruthful
Deponents:
❋ Avoid chronological
ordering
❋ Vary topics, time
frames and other
factors
❋ Ask questions quickly
❋ Utilize sentence
structure
❋ Consider multiple
depositions

CONTINUED
Potential Future Impeachment (Expanded):
➤Section 90.608(1),(2),(3),(4), Fla. Stat.
➤ Inconsistency, bias, character (veracity), defects (see
additionally 90.604.
➤Section 90.609, Fla. Stat.
➤ Attack/Support Witness Credibility by Reputation Evidence as
to the Truthfulness of the Witness.
➤Section 90.610(1), Fla. Stat.
➤ Felony Convictions and Crimes of Dishonesty
➤Section 90.614, Fla. Stat.
➤ Prior Statements of Witness
➤Section 90.803(18), Fla. Stat.

CONTINUED
Style and Demeanor – Yours/Your Deponent:
☑ Develop a Rapport with the Deponent. Put the
Deponent at ease not on the Defensive.
☑ Be Cognizant of Your Style and the
Appearance/Attitude that You Project.
☑ Be You, but Malleable to the Witnesses’ Conduct and
Actions.
☑ CAREFULLY LISTEN to the Deponent’s Testimony – Stated,
Unstated, Intonated, Affectless, Articulate, Inarticulate
and their Body Language.
☑ Utilize Exhibits, Reference Documents, save
Impeachment for Trial.

CONTINUED
Florida decisional law provides robust support for
taking a deposition of any third party witness:
Bush v. Schiavo, 866 So.2d 136 (Fla. 2d DCA 2004)
(Trial Court erred in entering order, upon Husband’s
Motion for Protection, prohibiting Governor from
taking the depositions of seven witnesses as Husband
failed to substantiate good cause for the blanket
ban.)

CONTINUED
Multiple Depositions of Same Deponent
Practical Consideration:
Multiple Depositions of the Same Witness Should Not be
Taken unless:
1) new parties;
2) new issues;
3) new facts elicited from discovery;
4) initial deposition was limited in scope or utility; or
5) Court Reporter malfunction.

CONTINUED
Multiple Depositions of Same Deponent
Decisional Law Consideration:
Medina v. Yoder Auto Sales, Inc., 743 So.2d 621 (Fla.
2d DCA 1999)(Noting that the Rules of Civil Procedure
do not forbid the taking of a second deposition,
appellate court reversed trial court order which
improperly placed the burden of substantiating the
basis for a second deposition on the party taking the
deposition as opposed to requiring, under 1.280(c),
the deponent to substantiate good cause for the
granting of a protective order.)

Representing/Defending Your Client’s
Deposition
Window into Adversary’s World View (and Your Client):
◉The Other Side’s Theory of the Case may be Evident from Their
Questioning.
◉The Other Side’s Perception of the Contested Issues may be
Evident From Their Questioning.
◉The Other Side’s Perception of Your Case’s Weaknesses may
be Evident From Their Questioning.
◉Your Client will Sink, Swim or Tread Water.
Preview, Prepare and Perfect for Trial Testimony.

Deposition - Continued
Objections/Instructions/Termination:
✦ Fla. R. Civ. P. 1.310(c) – Any objection during a
deposition shall be stated concisely and in a non
argumentative and non suggestive manner. Unless
privileged, testimony will be taken over objection.
✦ Fla. R. Civ. P. 1.310(c) – Instructions not to Answer
are appropriate when necessary to preserve
privilege, comport with Court limitation, or in
conjunction with termination of the deposition.

Objections/Instructions/Termination – Continued:
✦Section 90.510, Fla. Stat. – Privileged
Communication Necessary to Adverse Party.
✦ Fla. R. Civ. P. 1.310(d) – Termination or Limitation of
Examination. (Fee Considerations).
✦ 5th Amendment. Marisa E. Rosen, A Civil Litigator’s
Guide to the Privilege Against Self-Incrimination in
Florida’s State and Federal Courts, 87 Fla. Bar. J., 10
(Dec. 2013).

5th Amendment Considerations:
•Atlas v. Atlas, 708 So.2d 296 (Fla. 4th DCA 1998)(Trial court
could correctly draw adverse inference that Former Husband
had ability to pay child support payments to which he
continuously objected based upon his invocation of the Fifth
Amendment in response to questions concerning his financial
status.)
•Schlien v. Schlien, 763 So. 2d 350 (Fla. 4th DCA 1998)(Husband
waived his Fifth Amendment right against self-incrimination
where Husband refused to answer financial questions but
Husband’s accountant testified to Husband’s financial status
and Husband’s accountant’s testimony was based solely upon
Husband’s oral representations.)

5th Amendment Considerations – Court Order:
•O’Neal v. Sun Bank, N.A., 754 So.2d 170 (Fla. 5th DCA
2000 )(Court can only order litigant to answer a
question over their Fifth Amendment Invocation if the
litigant is clearly mistaken in his apprehension and the
potential answer could not possibly tend to
incriminate.)

Preventative Tools for Abusive Deposition Practices:
➤ Motions for Protective Order (Fla. R. Civ. P. 1.280(c)) –
Location, Form of Deposition, Prohibited Matters, Etc.
➤ Appointment of Special Magistrate (Fla. Fam. L. R. P.
12.492)
➤ Express Consent of Parties
➤ Exception: Appointment of Attorney to Oversee
Depositions and Rule on Objections Requires Good
Cause but Not Consent.
➤ Pesut v. Miller, 773 So.2d 1185 (Fla. 2d DCA 2000).

Errata and Error Considerations:
•Witness Review: Fla. R. Civ. P. 1.310(e) – Errata Procedure.
See Robert E. Taylor Jr., Depositions, Errata Sheets,
Reopening, and Termination, LXX Fla. Bar J., 3 (March
1996).
•Errors and Irregularities:
• Fla. R. Civ. P. 1.330(d) – Occurring during deposition,
objection must be made at deposition.
• Fla. R. Civ. P. 1.330(4) – Transcription errors waived unless
motion to suppress is filed with “reasonable promptness”
after defect is noted.

Review Transcribed Depositions
with Client & Professionals
• Review Client’s Deposition with Client:
• Goal of Improvement before Next Deposition or Court
Testimony.
Testimony.
Testimony.
Testimony.

Review Transcribed Depositions
with Client & Professionals
• Review Adverse Party/Witness Depositions with
Client and Professionals:
• Goal of Identifying Weak Areas.
• Goal of Identifying Additional Discovery.
• Goal of Identifying Additional Potential Witnesses.
• Goal of Identifying Additional Areas to Weaken Credibility.
• Goal of Identifying Additional Areas for Impeachment.

CONCLUSION
Thank you for your time and consideration!
Special thanks for assistance with the Power Point materials:
Peter L. Gladstone, Esq.,
Tova N. Verchow (Law Clerk)

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