Preparing for a Simple Breach of Contract

Deposition

Victoria Pynchon’s Solo Practice University

Art of the Deposition Course

Read the complaint and answer, paying particular attention to affirmative defenses

Review all discovery, especially answers to contention interrogatories, responses to requests for admission, and all documents that: (a) mention this witness; (b) pertain to matters within the scope of this witness’ authority or about which this witness should possess knowledge

Review all pleadings and discovery

Structure questioning on jury instructions

Breach of contract Negotiations leading to mutual assent

on all critical terms Plaintiff’s performance or excuse for

non-performance Defendant’s failure to perform Harm from the breach

Goal is to obtain admissions, learn their factual theories, learn the weaknesses in your own case, identify issues without factual dispute, exhaust witness’ knowledge, prevent witness from changing testimony at trial

Get Your Ducks in a Row

Write out questions necessary to obtain the boring details

• names, addresses, phone numbers of all witnesses

• Reporting relationships• standard practices and procedures

• On all matters pertinent to contract formation and performance

• Encourage witness to confirm that s/he ALWAYS follows them or NEVER departs from them

Questions Answers Follow-up

◦ Note surprising answers◦ But don’t let them interrupt

the flow of your questioning◦ Make certain to track back

The following slide is a sample way to lay out your page of questions

Divide pad into three parts

Jump into substance for purpose of surprise

Begin slowly with background to relax witness (and yourself!)

Chronology by topic Contract formation Authority to contract Contract performance Conversations/written material

re meaning of contractual terms

Failure to perform damages

Organize sequence of questions

Documents that need only authenticating

Documents that can be brought within the business records exception to the hearsay rule

Statements contained in documents that can be brought within an exception to the hearsay rule such as an admission of a party opponent

Statements contained in documents to refresh the witness’ recollection or impeach the witness

Statements contained in documents to be used for other strategic purposes.

Organize documents

Identify documents by ◦ Exhibit #◦ Bates stamp number◦ Date◦ To/from◦ Subject line

One copy for self; one for court reporter; one for opposing counsel; one for witness

Pre-mark documents

Start at top of funnel: who what where when why how describe

Move on to obtain further details of major events

Explore your own factual theories Explore your opponent’s view of the

facts Close off all opportunities for witness

to change testimony◦ Have you now told me everything you

know about x◦ Are you aware of the existence of

documents that might refresh your recollection

◦ Is there anyone you haven’t spoken to who might refresh your recollection

Recollection of all relevant events

You signed the contract You had the authority to

sign the contract There were no authorized

changes to the contract after it was signed

The contract required you to deliver 1,000 widgets to ABC company

You never delivered any widgets to ABC company

Obtain admissions

You ran out of widgets because you’d already obligated yourself to a contract with XYZ to supply all of its needs

Your parts supplier hadn’t complied with its obligations to deliver materials to you in several months

Your lost your business license last January

Test your theories

What reasons do you have for failing to deliver the goods (on time) (in working condition) (at all)

What documents mention these matters

What witnesses are aware of these problems

Explore their theories

If using LiveNote, review draft transcript to make sure you’ve genuinely gotten the admissions you believe you have

Don’t be afraid to press the witness for a responsive answer until you get it

Remember to loop back to follow up interesting comments that were off topic but might lead to something valuable

Tie it Up with a Bow