INQUISITION:
A DEPOSITION EXHIBITION
(AN INTRODUCTION TO THE
MECHANICS OF DEPOSITION PRACTICE)
Group 9
(Long Live Group 9)
Purposes of the Deposition
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“The truth will set you free, but first it will make you miserable.”
 President James A. Garfield, Esq.
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Depositions can be a valuable discovery tool.
They can also be burdensome and expensive.
Depositions can be used for several purposes (in
furtherance of the case strategy), including to:
 Obtain
information / preview trial testimony
 Set up / foreclose a dispositive motion
 Facilitate the parties’ willingness to engage in ADR
 Get ammo to cross-examine, impeach, eliminate witnesses
Individual / Entity Depositions
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“Everything in war is simple. But even the simplest thing is difficult.”
 Carl Von Clausewitz (On War)
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Fed. R. Civ. P. 30(a) depositions
 Individual
capacity
 “I don’t know.” “I don’t remember.”
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Fed. R. Civ. P. 30(b)(6) depositions
 30(b)(6)
notice topics
 Designation of one or more witnesses
 Consequences of failure to designate and prepare
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Hybrids
Good Deposition Questions
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Prior to the deposition, provide the
court reporter with a list of key names
and terms.
At the beginning of the deposition,
provide the witness with clear
instructions/admonitions.
Use short, clear, self-contained
questions in plain English.
How will the transcript read?
Solicit unambiguous answers.
Exceptions:
 Where you don’t know how to ask
 Where you have a talker (let them
run, then get your soundbites later)
Good Deposition Answers
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Listen
Pause
Answer truthfully and completely
Don’t volunteer
Don’t argue (or act crazy)
Don’t fill in gaps/speculate
Do ask, if you have questions
Do follow (your) counsel’s instructions
Do remember to protect privilege and
legal work product
Working with Exhibits
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Selection and arrangement
Marking (Ex. #, Bates #)
Copies for opposing counsel and
the witness
Strategy for prior exhaustion
of testimony
Strategy for sequencing
Laying the foundation
Use to identify unknown documents
Deposition Objections
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Who can object?
What objections are proper during
the deposition?
 Objections to “form”: to give the
questioner the opportunity to cure
(Fed. R. Civ. P. 30(c)(2) and
32(d)(3)(B) ; The NITA Handbook)
 Substantive objections: reserved /
improper
How to make them (depending on
jurisdiction)?
Tactical considerations
Dealing with Obstreperous Counsel
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“I thoroughly disapprove of duels. If a man should challenge me, I would take him
kindly and forgivingly by the hand and lead him to a quiet place … and kill him.”
 Mark Twain
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Improper objections (frivolous, speaking, coaching)
Improper “clarifications” (of the examiner, court reporter, witness)
Improper tone / argument / interruptions / distractions
How to deal with interference?
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Prepare (videotape, stipulations)
Make the record
Ignore the defending counsel
Intimidate within the rules
Punish the witness
Opportunities to self-govern
In extremes: call the Court (but…)
Instructions Not to Answer
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Who can instruct? Based on?...
Attorney-Client Privilege
 Communications with counsel
Legal Work Product
 Includes document compilations
(Fed. R. Evid. 612 exception)
Protective orders / other court limitations
To protect the witness from abuse,
oppression, harassment, bad faith
File an “immediate” (complete or adjourn?)
motion for protective order (Fed. R. Civ. P.
30(c)(2) and 30(d)(3))
 “Are you going to follow your attorney’s
advice?”
 “Could you have answered the
question?”
Your Turn?
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“A lawyer is the shrewdest distance between two points.”
 Robert Van Fossen, Esq.
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Whether/when to “cross-examine” your own witness:
 To correct glaringly inaccurate/misleading testimony
 To rehabilitate the witness or prevent later impeachment
 To avert a dispositive motion or, in the case of an expert, a
motion to strike/exclude. (Self-serving declarations generally
cannot overcome deposition testimony.)
 To clarify testimony that the transcript errata may not solve.
Better to keep your powder dry?
Formalities / Ending the Deposition
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“Only the dead have seen the end of war.”
 Plato
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Is it really over?
(Fed. R. Civ. P. 30(d)’s qualified 1 day/7 hour limit)
“The usual stipulations?”
Implementing protective order designations
Reserving the Fed. R. Civ. P. 30(e) right to read and sign
Provide an opportunity to change/clarify/supplement
State on the record that the deposition is to be continued
(or is concluded)
Video Vignettes
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Examples of The Good, the Bad,
and the Ugly in deposition practice
Excelsior!
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Brought to you by Group 9:
 Your humble servants
(and undisputed champions
of IP Law Jeopardy)
RoboStir vs. RotoSHIRR
 2003: Billy and Jane (secret lovers) founded RoboStir LLC
 2005: RoboStir LLC obtained US TM in “ROBOSTIR”
 2006: RoboStir LLC obtained US Patent in RoboStir device (Jane
and Billy named inventors).
 RoboStir Claim 1: An automatic stirring device for stirring
foodstuffs in a pan, the device comprising: a motor; a drive shaft
coupled to the motor; a vertically disposed stirrer; and a means for
connecting the stirrer to the drive shaft in a manner so that the stirrer
revolves around the inside of the pan in an orbital gyroscopic motion.
 2006-2010: RoboStir is a HUGE success.
 Jan. 2010: Jane and Billy break up (over inventorship issues and Jane’s
wine consumption). Jane leaves Billy and RoboStir LLC, forever.
RoboStir vs. RotoSHIRR
 Mar. 2010: Jane started RotoSHIRR LLC, based on her new RotoSHIRR
device (shirr=cooking term). RotoSHIRR = automatic stirring device that
stirs as it oscillates laterally (like RoboStir ) and pulses horizontally (mixing
in all directions). Jane’s orders are HUGE.
 Apr. 2010: Jane files: US Patent and TM apps in “ROTOSHIRR”.
 Aug. 2011: Billy/RoboStir is furious and wants to litigate Jane
/RotoSHIRR into bankruptcy so she will be miserable and can no longer
drink wine. RoboStir filed suit in fed. ct. and hired Arnold (partner at
“Huge, Large, Expensive, LLP”, known as the “IP-Terminator” of
litigation). Jane/RotoSHIRR hired “Small, Little, Cheap, LLP” because her
bartender used them once.
 Today: Deposition of Jane (Alina) by Arnold/RoboStir (David), as the
examining attorney. Jane’s attorney was just sent to federal prison so the
firm sent an eager junior associate: Dirk Murdock (Matt), as the defending
attorney. He brings Allison (Sangmi), a Rule 9 intern.