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Tables of Contents for Depositions
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PART I. PREPARING FOR THE DEPOSITION
The Tools of Discovery
Introduction to the New Federal Rules of Civil Procedure
Discovery Planning and the Scheduling Order
Required Disclosures
Timing
Impact of Discovery Planning and Required Disclosures
Alternatives to Oral Deposition
Discovery Objectives
Interrogatories-Advantages and Disadvantages
Use of Interrogatories
Requests for Production-Advantages and Disadvantages
Use of Requests to Produce
Physical and Mental Examinations-Advantages and Disadvantages
Use of Physical and Mental Examinations
Requests to Admit-Advantages and Disadvantages
Use of Requests to Admit
Written Depositions-Advantages and Disadvantages
Use of Written Depositions
Sequencing Discovery Devices-The Authority to Sequence
Developing a Sequence-The Pyramid Approach
Developing a Sequence-The Contention Approach
The Place of Depositions in the Sequence
The Discovery Plan
Interrogatory Catalogue
Interrogatory Response-Deposition Follow-up
Requests for Production Catalogue
Production Response-Deposition Follow-up
Physical and Mental Examination Catalogue
Examination-Deposition Follow-up
Requests to Admit Catalogue
Requests to Admit-Deposition Follow-up
Written Deposition Catalogue
Oral Deposition Catalogue
Discovery Alternatives Chart
Discovery Sequence Chart
The Fruits of Discovery-Claims
The Fruits of Discovery-Defenses
Planning to Take Depositions
Deciding to Take the Deposition-The Factors
Advantages of Taking an Oral Deposition
Disadvantages of Taking an Oral Deposition
Scope of Depositions
The Need for the Story
Developing the Story Through Deposition
Using the Storytelling Model
Competing Stories-Determining the Adversary's Position
Organization of File Materials
Re-organizing the File for the Deposition
Tracking Non-deposition Discovery Materials
Organizing Documents for the Deposition
Understanding Each Side's Position
Deposition Billing
Alternative Billing
Deposition Preparation-Deciding to Take a Deposition
Deposition Record Form
Storytelling Model-Taking Format for Depositions
Assessing the Story of Adverse Parties Through Deposition
Preparation for Deposition
Document Organization Preparation Sheet
Document to Deposition Preparation Form
Document to Deposition
Issue Summary Chart
Deposition Preparation-Understanding Position of Self
Deposition Preparation-Understanding the Position of Others
Attorney Self Evaluation Sheet
Opposing Attorney Evaluation Sheet
Billing Preparation Sheet
Time Billing Tracking Sheet
Computerized Depositions
The Evolving Role of Computers in Litigation
Computerized Discovery
Using Computers to Prepare for Deposition
Using Computers During the Deposition
Using Computers After the Deposition
Matters to Consider Before the Deposition
Generally
Timing
Notice-Generally
Notice of Deposition Before Action
Notice for Deposition Before Mandatory Initial Disclosure Process
Notice of Written Deposition
Notice of Oral Deposition-Generally
Notice of Party Deponents
Notice to Non-party Deponents and Subpoenas
Depositions Outside the United States
Location-Generally
Proper Location
Strategic Location
The Deposition Site-Local
Deposition Site-Out-of-Town
Persons Attending the Deposition
Attendance in a Class Action Case
Persons Before Whom Deposition May Be Taken
Methods of Recording Deposition
Notice of Lawsuit and Request for Waiver of Service of Summons
Waiver of Service of Summons
Proper Deposition Locations
Notice of Deposition to Individual Party
Notice of Oral Deposition of Organization Party
Deposition Subponea-Individual
Deposition Subpoena-Organization
Motion for Commission
Motion for Commission for Foreign Deposition
Letter of Request
Deposition Site
Videotaped Depositions
The Trend Toward Presumptive Videotaping
The Systemic Advantages and Disadvantages of Videotaping
Tactical Advantages and Disadvantages of Videotaping Depositions
The Mechanics of the Videotaped Deposition
Questioning Techniques Unique to Videotaped Examination
Defending Videotaped Depositions
Pre-Deposition Procedures
The Ritualistic Nature of Depositions
Nonverbal Communication in the Deposition
Nonverbal Communication in the Deposition-Physical Layout of Deposition Room
Nonverbal Communication in the Deposition-Monitoring Nonverbal Cues
Putting Nonverbal Cues on the Record
Assisting the Court Reporter
Agreeing to ``the Usual Stipulations''
The Procedural Rules
Use of Exhibits
Monitoring Nonverbal Cues
Organization of Exhibits
PART II. THE DEPOSING ATTORNEY'S PERSPECTIVE
Effective Deposition Questioning
Understanding How Deponents Think
Availability of Leading Questions
Areas of Inquiry
Background of Deponent
Cause of Action
Damages
Question Format-Open vs. Closed Questions
Impeachment Information
Estimating Distance and Time
Closing Questions
Information From Other Sources
Examiner Reaction
The Importance of Follow-Up Questions
Deponent Answers-Generally
Unresponsive Answer
Rambling Answer
Incomplete Answer
Handling Objections Made as Strategy
Requests for Recess
Concluding the Deposition
Subsequent Production of Documents
Questioning by Other Attorneys
Post-deposition Demeanor of Deponent
Special Considerations-Deposing the Expert
Pre-deposition Preparation for Experts
Demeanor of Expert
Question Tree
Question Evaluation
Answer Checklist
Managing Conflict in the Deposition
Generally
Objections-Generally
The Law Permitting Instructions Not to Answer
Scope Not Proper Ground for Instruction Not to Answer
Privilege the Only Proper Ground for Instruction Not to Answer
Privileges-Generally
Law Governing Privilege
The Attorney-Client Privilege-Generally
Attorney-Client Privilege-Elements
Waiver of Attorney-Client Privilege
Preserving the Privilege
The Work-Product Doctrine-Generally
Burden to Obtain Discovery
Handling Objections to Work-Product Protection
Additional Common Law Privileges
Responding to an Instruction Not to Answer
Objections to Prevent Waiver
Asking ``Bad'' Questions-An Advantage
Objections to Control Damge
Response to Coaching the Deponent-Generally
No Response to Objection
Response to Objection-Restate the Question Verbatim
Re-phrase the Question
Meet the Objection
Seek Judicial Relief
Compelling Deposition Responses
Procedure to Compel Deposition Response
Motion to Compel-Court Power
Sanctions
Court Discretion
Factors
Deposition Objections and Instructions Not to Answer
Deposition Objections Generally
Propriety of Instructions Not to Answer-The Attorney-Client Privilege
Propriety of Instructions Not to Answer-The Work-Product Doctrine
Objection Responses
Deposing Attorney's Judicial Relief
Deposing Attorney's Post-Deposition Procedures
Generally
Preparing a Deposition Summary
Deposition Summary Format
Client Letter
Preserving the Right to Change the Transcript
The Accurate Transcript
Errors in the Transcript
Submission of Record to the Witness
Obtaining Waiver of Deponent's Rights
Challenging Deponent Changes to Transcript
Formalities of Modifying the Transcript
The Substance of Changes
Using the Deponent's Changes at Trial
Certification of the Transcript
Filling the Transcript
Expedited Transcription
Deposition Summary
Deposing Party's Post-Deposition Checklist
Catalogue of Changes
Deposing Party's Scrutiny of Changes
Deposing Party's Response to Changes
Deposing Party's Motion to Strike Changes
Deposing Party's Use of Changes at Trial
PART III. THE DEFENDING PARTY'S PERSPECTIVE
Preparing for the Deposition
Taking an Active Role
Preparation Sessions
Preparation Session-The Procedure
Establishing Rapport With the Deponent
Speaking the Deponent's Language
Effective Review of the Deposition Rules
Effective Review of the Case
Forcasting the Nature of the Deposition Interaction
Effective Review of Deposition Interaction Rules
The Key Rules of the Interaction
Avoid Powerless Language
Client vs. Non-client Deponents
Witness Self-Evaluation
Understanding the Lay Witness
The Expert Witness
Types of Experts
Information Required to Be Disclosed Regarding Experts
Selecting the Expert
Preparation Session for the Expert Deponent
Understanding the Expert Witness
Monitoring the Interaction
Witness Preparation-Relating Rules
Witness Preparation-Witness Self-Information Form
Witness Preparation-Witness Question Sheet
Preparing the Lay (Non-expert) Witness
Witness Preparation-Impression Maintenance
Preparing the Expert Witness
Monitoring Interaction
Protecting the Deponent
Maintaining Relations at the Deposition
Post-Deposition Evaluation Form
Post-Deposition Deponent Evaluation
Presenting The Deponent
Protecting the Deponent
Establishing a Role
Functions of the Presenting Attorney
Monitoring the Propriety of the Interaction
Timing of Objections
Instructing the Deponent Not to Answer
Deciding to Instruct Not to Answer
Responding to an instruction Not to Answer
Objection as Strategy
Rehabilitation-Questioning the Deponent
When Rehabilitation Is Appropriate
When Rehabilitation Is Inappropriate
Nonverbal Communication in The Deposition
The Significance of Nonverbal Cues
Use of Voice
Effective Body Language
Monitoring Personal Space
Monitoring the Nonverbal Cues of Others
Making a Record
Defending Attorney's Right to Terminate The Deposition and Seek Judicial Relief
Introduction
Defending Attorney's Termination of the Deposition
Defending Attorney's Sanctions
Defending Attorney's Motion to Limit or Terminate
Defending Attorney's Post-Deposition Procedures
Introduction
Submission of Record to Deponent
Waiver
Changes in Deposition Testimony
The Scope of Changes
Use of Changes at Trial
Formalities
The Decision to Change Testimony
Certification and Filling
Defending Party's Deposition Summary
Defending Party's Post-Deposition Checklist
Catalogue of Changes
Scrutiny of Changes
Deposing Party's Potential Response to Changes
Use of Changes at Trial
The Deposition of an Expert Witness
The Expert Witness
Types of Experts
The Disclosure Regime for Testifying Experts
Deposing the Expert
Defending the Expert Deposition
PART IV. USE OF DEPOSITION AT TRIAL
Preparing the Deposition for Use at Trial
Introduction
Designating Deposition Testimony
Selecting Deposition Testimony to Designate
Formally Designating the Testimony
Selecting a Method of Presentation
Recreating the Deposition Atmosphere
Minimizing Awkwardness With a Cautionary Instruction
Preparation for Fairness and Cross-Designations
Fairness Designations
Cross-Designations
Trial Preparation Checklist
Designation Color Chart
Affirmative Designations for Pre-trial Order
Fairness Designations Worksheet for Pre-trial Order
Cross-Designation Worksheet for Pre-trial Order
Catalogue of Objections to Designations
Order of Live and Deposition Witnesses
Presentation of Deposition at Trial
Using the Deposition at Trial
Introduction
Rules Governing the Use of Deposition at Trial
Use of Adverse Party's Deposition at Trial
Use of Unavailable Witness's Deposition at Trial
Use of Available, Non-party Depositions at Trial
Party's Use of His Own Deposition
Use of Deposition From Prior Action
Limits on the Use of Depositions at Trial Under the Rules of Evidence
Objections to Admissibility of Deposition Testimony at Trial
Catalogue of Depositions Used at Trial
Use of Adverse Party's Deposition at Trial
Use of Unavailable Non-party Witness Deposition at Trial
Use of Available, Non-party Deposition at Trial
Party's Use of His Own Deposition
Use of Deposition From Prior Action
Checklist of Evidentiary Objections
Objection to Admissibility Worksheet
APPENDICES
A. Deposition Rules in Each State
B. New York
C. California
D. Michigan
E. Arizona
F. Texas
G. Illinois