preparing yourself to conduct or defend a deposition

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Preparing Yourself to Conduct or Defend a

Deposition

presented by

Jeffrey C. Miller

June 25, 2015

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TAKING

Managing Client Expectations when

a Deposition

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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

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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

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DEFENDING

Managing Client Expectations when

a Deposition

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Inexperienced Client

Prepare the client to be a witness

Teach how to listen and answer questions

Adjust preparation to client’s personality

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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

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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

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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

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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!

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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

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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

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PREPARINGfor Expert Deposition

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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

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“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

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“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

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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

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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

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But my case is too small…

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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

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Thank You!

Jeffrey C. MillerKegler Brown Hill + Ritter

jmiller@keglerbrown.com

keglerbrown.com/jeffreymiller

216.586.6651