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Deposition Strategies in Divorce and Custody Cases: Taking and Defending Depositions

• f Parties, Lay Witnesses and Experts

Leveraging Deposition Testimony During Discovery, Settlement and Trial

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, FEBRUARY 23, 2017

​ Kirk C. Stange, Founding Partner, Stange Law Firm, St. Louis

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Deposition Strategies in Divorce and Custody Cases:

Taking and Defending Depositions of Parties, Lay Witnesses, and Experts

Kirk C. Stange, Esq. kirk.c.stange@stangelawfirm.com

Stange Law Firm P.C.

Planning for Depositions

6

Determining Who to Depose

• Anyone who can be a witness at trial can be deposed, including

the parties, their experts, and lay witnesses. Additionally, witnesses who may not be available at trial can also be deposed to preserve their testimony.

• Many individuals may possess relevant information— family

members, teachers, counselors, and others can contribute valuable information.

• Do not take a deposition until you have a firm outline and

strategy for accomplishing your goals with the particular witness

– Otherwise, you may not be successfully in undermining or limiting the impact of the witness.

7

Goals of the Deposition

• The most important part of deposition

preparation is identifying your goals. For example, your goals may be to:

– Elicit information for further discovery; – Uncover facts; – Discredit a witness at trial; – Flesh out important issues and collect information to bolster the elements of your case; – Preserve the testimony; – Expedite settlement; and/or – Oppose (or support) motion for summary judgment.

Cary B. Cheifetz, Deposition Strategies Minding Your Q’s & A’s, 21 Fam. Advoc. 12 (Fall 1998). 8

Deposition Dynamics:

Seating Arrangements

• While seemingly an unimportant detail, seating arrangements at a deposition are

important to the convenience and comfort of the deponent and the reporter. Additionally, counsel should be cautious of certain seating games that can be used to intimidate a witness.

• Typically, depositions are taken at a rectangular conference table.

– The reporter sits at one end; – The witness sits immediately next to the reporter to ensure the witness can be heard. – Counsel for the witness should sit next to the witness to facilitate review of documents and give a feeling of safety and comfort. – The Examining attorney should sit across from the witness in order to closely observe the witness. – If the examining attorney’s client is present, he or she should sit next to his or her attorney.

• When the deposition table is particularly narrow, or when there is no table,

having the deponent sit too close to the examining attorney may be intimidating and you should consider an alternate arrangement.

– Also, in a particularly adversarial situation, be aware that some attorneys place an intimidating individual in the deponent’s line of sight to make the deponent uncomfortable.

42 N.J. Prac., Discovery § 4.143; 9

Deposition Dynamics:

Personality of the Witness

• It is difficult to prepare for personality dynamics, so it is

important to be prepared for anything.

• Evaluate the witness for likely effectiveness at trial. A

thorough analysis of deponent’s personality will help you choose the best questioning style as well.

• Additionally, it may be useful to make your opponent

aware that you are keeping track of his or her tactics and behavior and may raise them before the court. You should note obstructions for the record.

– It may be necessary to halt the deposition to bring a motion to compel or, on the other hand, for a protective order.

DEPOSITIONS, BPM MA-CLE 11-1 10

Deposition Dynamics: Other Considerations

• Deposition Location. Deposing counsel typically

takes depositions at his or her office in order to facilitate an atmosphere of control and allow for greater access to information and support services.

– As counsel for the deponent, consider an alternate location that increases deponent’s sense of security and therefore his or her loquaciousness.

DEPOSITIONS, BPM MA-CLE 11-1 11

• Deposition Schedule. Check your local rules regarding scheduling,
• therwise consider the following:

– Is it necessary to obtain information from one witness before deposing another?

• Who possess information is critical to building the foundation for the remainder of

discovery.

– Should minor or important witnesses go first?

• It is better to depose minor witnesses first if you need to develop background

information to effectively question key witnesses. However, if background information is already available, consider deposing key witnesses first to deny them the benefit of prior knowledge of your lines of attack.

– Are some witnesses less experienced or less sophisticated than others?

• Less sophisticated witnesses will typically volunteer more information.

– When should experts be deposed?

• It is common practice to depose experts at the end of discovery when you have a

better understanding of the issues. Some cases may require that the expert be deposed earlier in the discovery process.

Deposition Dynamics: Other Considerations

DEPOSITIONS, BPM MA-CLE 11-1 12

Witness Preparation: In General

Instructions for clients:

• Dress appropriately.
• Be polite.
• Lean forward and watch your body language and posture.
• Speak up and speak clearly.
• Don’t argue or be an advocate.
• Wait for the entire question before answering.
• Answer only the question that is asked and answer it honestly.
• Never answer a question with a question.
• Never answer a question that is not understood. A witness

may ask counsel to rephrase.

• Always review a document or exhibit before answering

questions about it.

13

Witness Preparation: Client

• Explain the nature and mechanics of the deposition so that

the client understands his or her role.

– Emphasize the differences between a deposition and a trial and explain your limited role and the client’s obligation to answer all questions even if you make objections. – Tell your client to answer every question truthfully unless you instruct him or her not to. – Instruct to not use exaggerations or sarcasm when answering. – Inform your client that accuracy is important; therefore, the client should listen closely for paraphrasing and questions that make assumptions of fact.

• In cases where emotions run high, encourage your client to

maintain composure and self-control no matter what. Remind them they may ask for a break.

Cary B. Cheifetz, Deposition Strategies Minding Your Q’s & A’s, 21 Fam. Advoc. 12 (Fall 1998). 14

• Remind your client not to volunteer information and to

answer only what is asked.

– You should explain that there is no benefit to volunteering information and to never speculate about the answer.

• Be sure to explain the difference between the answer “I

don’t know” and “I don’t remember.”

– Refreshing recollection may be a possibility.

• Meet with your client and review his or her testimony.

– Discuss in detail anticipated areas of inquiry, potential traps, troubling documents or circumstances that will need to be explained.

• Explain the attorney-client privilege to ensure the client

does not disclose protected information.

Witness Preparation: Client

Cary B. Cheifetz, Deposition Strategies Minding Your Q’s & A’s, 21 Fam. Advoc. 12 (Fall 1998). 15

Witness Preparation: Lay Witness

• Before your witness is deposed:

– Explain the purpose and mechanics of the deposition.

• Consider rehearsing.
• Anticipated length.
• Individuals who will be present.
• Demeanor of opposing counsel.
• How objections will be handled.

– Review relevant documents. – Focus on “trouble” areas and any other concerns. – Psychological preparation: establish a comfort level.

16

Witness Preparation: Expert Witness

• Investigate their former testimony for

potentially troublesome areas.

• Familiarize with documentary evidence and

prior depositions.

• Discuss case theory and adverse case theory.

17

Witness Preparation: Researching the Opposing Party's Experts in Divorce

• As the attorney who is preparing to depose an

expert witness, you must be certain of your

• bjectives for taking the deposition.

– Your basic purpose for deposing the expert should be twofold:

• 1) to determine the expert’s opinions and conclusions.
• 2) to undermine or limit the impact of the expert’s
• pinions and conclusions.

18

• The deposition of an expert witness is the culmination of the
• pposing party’s defense or prosecution theory of the case.

– Before taking an expert’s deposition, the parties should generally have completed fact discovery:

• interrogatories answered, documents obtained, lay witnesses

deposed – The expert’s opinions are being offered by the opposing party as part of a plan to defeat your case. – Deposing your opponent’s expert witness is your opportunity to understand, limit and hopefully stop defeat. – The importance of being prepared to depose this expert witness cannot be overemphasized.

Witness Preparation: Researching the Opposing Party's Experts in Divorce

19

• Beyond your basic purpose, the goals of your oral deposition of the expert should

include the following:

– To determine whether the expert is qualified to render an opinion; – To determine whether the expert has a reasonable basis for his opinions; – To determine whether the expert has relied upon accepted scientific methods and techniques for his opinions; – To determine whether the expert has reasonably relied upon any hearsay evidence to support his opinions; – To determine whether the expert has knowledge and understanding of the case-related factual evidence; – To determine whether the expert has either authored or acknowledged any authoritative texts or documents on the subject of his opinions or conclusions; – To lock in the expert’s testimony and assure that the expert does not later offer any undisclosed opinions; – To determine whether, if any of the facts as the expert understands them were changed, the expert would change his or her opinions. – To determine whether the expert has made any alternative assumptions about the factual evidence which is necessary to support his opinions; – To determine whether the expert admits any facts, assumptions or theories of your case;

Witness Preparation: Researching the Opposing Party's Experts in Divorce

20

• Do not take an opposing expert’s deposition until you have a firm
• utline and strategy for accomplishing your goals with the expert

witness

– Otherwise, you are not likely to have any success either undermining or limiting the impact of the expert.

• Lastly, your plan for the expert’s deposition may include hypothetical

questions, containing facts and assumptions which you can prove at trial, that will undermine the expert’s opinions and ultimately win your case.

– The point is that you must have an outline and a strategy for your deposition of an expert. – If you have deposed an opposing expert based on a thoroughly prepared

• utline and strategy, then you should leave the deposition knowing how you

will deal with the expert at the time of trial.

Witness Preparation: Researching the Opposing Party's Experts in Divorce

21

Document Requests

• Get discoverable documents and review them

before the deposition.

• Interrogatories can be used to obtain basic

information but should not be used for key points.

• Interrogatories, document requests, and

requests for admission can be used after the deposition to complete the discovery.

EFFECTIVE DEPOSITION TECHNIQUES, M0-CLE 2005 22

• In divorce cases, discovery requests usually ask for the

production of:

– Financial documents/records

• Allows for the examination of the nature, scope, and extent of the

party’s property, whether it was acquired before or during the marriage.

• Additionally, these records will provide information regarding the

party’s debts and income.

– Business records (if the opposing party owns a business).

• In custody cases, discovery requests usually ask for the

production of:

– School records; – Diaries; and – Other information about the children, such as medical records.

Document Requests

23

• In a divorce, if a party fails to disclose significant

assets that existed at the time of the divorce, the case may be re-opened or, in some instances, set aside.

– Check social media and financial records for use of unknown assets. – Penalties vary case to case, state to state.

• Contempt of court.
• Order to pay attorney fees and/or fines.
• Dismissal of party’s claims.
• In serious cases, party could face criminal charges.

Document Requests: Failure to Disclose

24

Taking & Defending Depositions

25

Eliciting Deposition Testimony: Real-World Application of Techniques

• It is usually better to use a general outline for a deposition than a

detailed list of every expected question.

– With an overly detailed outline, you are more likely to stick to it in the deposition than to listen to the answers and be able to follow up with some flexibility. – If you are using documents, consider marking up the documents or drafting your questions on the documents

• This can allow you to do follow-up questioning for each document as you go through

the deposition.

– Be sure to review your outline before the end of a deposition to confirm that you did not miss points that you wanted to address. – Deposition questions should usually be framed as open-ended questions that begin with what, where, when, why and how to obtain relevant information. – Leading questions should generally be saved for trial on most matters. – A deposition is usually the time to be “good cop,” while trial is time for “bad cop.”

26

Eliciting Deposition Testimony: Real-World Application of Techniques

• Determine what you hope to accomplish through the

deposition.

– Beyond discovering what happened, be clear on what two

• r three points you want to establish through a witness’s

testimony. – If the case goes to trial, usually only a very small part of the deposition is ever used. The true value of depositions may be for impeachment purposes.

27

When Taking Depositions:

• Listen carefully to answers to be sure to ask the important

follow-up questions; don’t get so focused on your outline that you fail to listen to, understand and think about the answers to your questions.

• Don’t interrupt or cut off an answer.
• Ask open-ended, clear and straightforward questions. Exhaust

your deponent’s recollection regarding each topic you have a basis to believe they have knowledge.

• Don’t be confrontational or argumentative; a business-like

conversational approach will usually be more productive.

• Know the documents and how you intend to use them. You

may want to ask questions about documents without disclosing that the questions relate to particular documents.

EFFECTIVE DEPOSITION TECHNIQUES, M0-CLE 2005 28

• Don’t be reluctant to ask questions that may produce

answers you don’t want to hear. Otherwise, you won’t hear them until trial.

• Use a long pause to elicit a further response from the

deponent.

• Control the pace of the deposition.
• Chronological questions may not be the best approach.

Focus on what really matters.

• Generally use verbatim script for key questions.
• A script ensures you do not forget to ask something

important.

When Taking Depositions:

29

Questioning Witnesses:

Opposing Party

• If fault is likely to be an issue, it is preferable to depose

the opposing party first to minimize damaging testimony.

– This is because an opposing party is more likely to become hostile or less cooperative as litigation progresses, particularly after attending the deposition of counsel's client and hearing the client's version of events.

• When deposing the other party, it is a good idea to play

“good cop” and start with asking about the opposing party’s side of the story.

– Being calm and polite will put the opposing party at ease, allowing he or she to open up and cooperate willingly.

1 La. Prac. Divorce § 3:15 30

Questioning Witnesses:

Expert Witness

• The deposition of an expert witness is the culmination of

the opposing party’s defense or prosecution theory of the case.

– Before taking an expert’s deposition, the parties should generally have completed fact discovery:

• interrogatories answered, documents obtained, lay witnesses

deposed – The expert’s opinions are being offered by the opposing party as part of a plan to defeat your case. – Deposing your opponent’s expert witness is your opportunity to understand, limit, and hopefully stop defeat.

• The importance of being prepared to depose this

expert witness cannot be overemphasized.

31

• If deposing an expert witness, your plan for the deposition

may include hypothetical questions, containing facts and assumptions which you can prove at trial, that will undermine the expert’s opinions and ultimately win your case.

– The point is that you must have an outline and a strategy for your deposition of an expert. – If you have deposed an opposing expert based on a thoroughly prepared outline and strategy, then you should leave the deposition knowing how you will deal with the expert at the time

• f trial.

Questioning Witnesses:

Expert Witness

32

Eliciting Deposition Testimony: Real-World Application of Techniques

• Elicit all the expert’s opinions and bases of opinions.

– Even if you do nothing else while deposing an expert witness, at least make sure you confirm that the expert has told you all his or her opinions about the case. – If he or she then tries to testify to additional opinions at trial and you had expressly confirmed at the deposition that there were no other such opinions, the additional opinions later

• ffered might be subject to exclusion.

– If you did not ask that catch-all question at the deposition and cover all of the opinions the expert has, and the expert then renders at trial opinions you were not aware of, your case could be endangered.

33

Eliciting Deposition Testimony: Real-World Application of Techniques

• Beyond that, with respect to each opinion the expert

has, make sure you ask the expert to exhaustively identify all the bases for each.

– You must elicit that information so, among other things, your

• wn expert will be able to identify points of criticism or

disagreement. – You also want to avoid being surprised. – Ensure that you have covered all bases for each opinion by asking catchall questions such as “Are there any other bases for this opinion that you have not already mentioned?” – Make sure you keep asking that question until the answer is a definitive “no.”

34

Eliciting Deposition Testimony: Real-World Application of Techniques

• Put the expert into a box.

– Sometimes experts are advocates for the parties that have retained them. – These experts often are minimally credible, because they are unwilling to concede any point, even when the point is beyond dispute.

35

Eliciting Deposition Testimony: Real-World Application of Techniques

• Test areas as to which the expert might support your

case.

– Often, an expert – such as a treating doctor – who is not an

• utright advocate for the other side will concede points when

appropriate. – You should use these concessions to the extent possible to support your case. – When an opposing expert is willing to render opinions favorable to your case, do not be afraid to make use of that testimony. – Obviously, helpful opinions given by an opposing expert will be more valuable than if those opinions are coming from your own expert.

36

Eliciting Deposition Testimony: Real-World Application of Techniques

• Ask an expert who and what is considered authoritative

in the field.

– Find out which treatises or authors the expert considers to be authoritative in the field. – You may be able to find information in the treatise or from one

• f the authors that contradicts the expert’s opinions.

– You may learn the expert considers your expert’s work to be authoritative, or that the expert considers a treatise in which your expert is published to be authoritative. – This allows you to bolster your expert’s credibility through the

• pposing expert.

37

Eliciting Deposition Testimony: Real-World Application of Techniques

• Do not let an expert push you around.

– Retained experts are notoriously difficult to control, particularly for a new lawyer. – You must establish control early by making the expert answers your questions. – If the expert continues to offer an evasive non-answer, you must redirect the expert to your question and make him or her answer it. – You may need to object and then move to strike portions of the expert’s answer. – If the expert refuses to answer a question, establish that on the record to set up a potential motion to strike the expert as a witness. This sometimes requires that you certify the question on the record. – In extreme cases, you might be able to contact the judge during the deposition or have a special master appointed.

38

Eliciting Deposition Testimony: Real-World Application of Techniques

• Be persistent.

– In addition to not letting an expert push you around, you must be persistent in following through with your line of questions. – Do not let the expert move from a topic if you think it has not been sufficiently addressed. – You are paying a significant amount for the deposition, so get your money’s worth. – Ignore the expert’s (possibly feigned) exasperation, and ask your questions

39

Translating Expert Testimony into Plain English

• As you are walking the expert through the steps of their

methodology, it is also important to ask them about what they were thinking as they looked at the data or results that they were seeing. – For example, by allowing them to describe their impressions and reactions as they started going through their damages calculations or as they read the opposing expert’s report, it allows the judge to understand how the expert formed their final conclusions.

40

What to Do When a Witness is Being Evasive or Defiant

• If the witness appears evasive, specifically note this on the

record, explain the problem it creates and directly ask the witness to answer the question.

• Do not argue with the witness.
• The minute you are arguing with the witness, you are

not going to win.

• When a witness tries to interject his own answer to one
• f your questions, or otherwise refuses to answer,

smile, and then offer to rephrase the question.

• Be persistent, but polite.

41

What to Do When a Witness is Being Evasive or Defiant

• Either by nature or by circumstance, some witnesses will not

remember important details, or claim not to remember important details.

• The forgetful witness may be one of the most frequently

encountered types of difficult witnesses

– It is important that you learn how to deal with the all-too-frequent testimony of "I don't remember," or "I can't recall," or "That was a long time ago, and I can't say for sure.“

– If the witness cannot remember key details, you will sometimes have deposition testimony or other extrinsic evidence to rely on, which will be helpful in refreshing the witness's memory. – To establish an absence of knowledge, it is important to put on the record that the deponent’s memory cannot be refreshed and to not accept any equivocal answers but confirm the deponent has absolutely no recollection.

42

Defending Depositions: Raising and Responding to Objections

• Know the rules, your obligations, and available
• bjections.
• Notice of Deposition: Rule 30(b)(7) in Fed. R. Civ. Pro.

– At least seven days.

• Length: limited to one 7-hour day, unless stipulated
• therwise. (But be sure to check your state and local

rules.)

• Objections: must be stated concisely and in a non-

argumentative, non-suggestive manner. Keep a copy of the rules on-hand.

EFFECTIVE DEPOSITION TECHNIQUES, M0-CLE 2005 43

• At any time during a deposition, on motion of a party or of the

deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the deponent, the court may order the officer conducting the examination to cease from taking the deposition or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c).

• Deponent may be instructed not to answer only when necessary to:

– preserve a privilege; – enforce a limitation directed by the court; or, – to present a motion under Rule 30(d)(4).

• Watch for a potentially emerging pattern, started in New York, that

protects non-party witnesses during depositions. See CPLR 3113(c) (McKinney 2015) (ensuring that non-parties enjoy the same legal protections as parties who are deposed).

Defending Depositions: Raising and Responding to Objections

44

• Objections waived if not made at the deposition:

– Ambiguous – Leading – Compound – Assumes facts not in evidence – Argumentative – Contains ambiguous references – Calls for legal conclusions – Calls for speculation – Calls for a narrative response – Beyond the scope of agreed upon discovery or limits set by court

EFFECTIVE DEPOSITION TECHNIQUES, M0-CLE 2005

Defending Depositions: Raising and Responding to Objections

45

Raising Objections

• Objections waived if not preserved:

– Bad faith – Questions so repetitive as to be harassment – Party misconduct – Demeanor of attorneys or witnesses – Rushing the witness by not allowing the witness to answer – Evidentiary objections that can be cured – Lack of evidentiary foundation – Seeks opinions beyond the purview of the witness being deposed

• Objections not waived/not necessary to preserve a record:

– Hearsay – Offers of compromise – Relevance – Subsequent remedial measures

EFFECTIVE DEPOSITION TECHNIQUES, M0-CLE 2005 46

Handling Objections to Expert Questioning

• Instruct the expert not to frame answers in a way to

appears partial to one side or the other, if appropriate.

– This is significant, since bias is a valid grounds for disqualifying an expert witness. – Remind your expert of the role that he plays during direct examination and the litigation generally. – Ask open-ended questions that will allow the expert to elaborate on the most important points of testimony.

• Instruct your witness, if appropriate, to avoid using “absolutes.”

– This means making statements like “in all cases” or “every time.” – This way, the witness does not close to the door to a certain line of questioning and open himself up to impeachment later. – It should be expected that opposing counsel will try to “pigeonhole” the witness’ testimony this way, so be sure to go over this with your expert.

47

Handling Objections to Questioning

• Sometimes, based on a desire to please the attorney and the

court, experts may get ushered into answering a line of questioning outside the scope of their expertise.

– Remind your witness that “I don’t know” is a perfectly acceptable answer, as long as that is the truth. – This is extremely important, since your witness can only make statements that fall within the scope of your witness’ expertise and any statements made otherwise will be stricken from the record. – Be sure to discuss with your expert instances where “I don’t know” is NOT an acceptable answer, such as when the question directly relates to a basis or methodology of your expert’s opinion.

48

Handling Objections to Questioning

• Expert witnesses may respond poorly to

perceived hostility.

– Remind your expert not to get defensive if they feel attacked by a line of questioning. – If it’s objectionable, you as the attorney will take care

• f it.

– Remind your witness that the objective of a cross- examination is not to pick a fight with the attorney, but an opportunity for the witness to “stick to their guns” and present an even stronger case to the jury for your client.

49

Handling Objections to Questioning

• Maintaining a resolve and not being overcome by

emotions or getting flustered under pressure is the most important part of an expert’s mindset when on the stand.

– The most important tip to remind your witness is to stop, breathe and think about the question being asked before providing an answer. – This way, your witness does not call out uncertain answers based on a pressure to perform. – The priority is and always should be not to compromise the credibility or image of your witness to the judge.

50

Handling Objections to Questioning

• If the attorney insists on cutting off your witness,

instruct your witness to answer the next question by stating the previous question was not completely or accurately answered.

– Remind your witness to leave the door open for clarification. – This means that when opposing counsel asks your witness “is that everything,” it is crucial that your witness provides a flexible answer, such as “that is all I can recall at the moment.” – Failure to do so may be grounds for impeaching your witness, or at the very least looks somewhat conflicting.

51

• The easiest way to control a witness is through the use of

exhibits.

– Avoid using documents as a crutch – use only as necessary. – Use documents to keep the witness honest. – Do not feel compelled to show all documents to the witness. – Bring multiple copies of clean exhibits to the deposition in separate folders for quick identification. – Know which documents MUST be introduced/authenticated.

• Consider using documents with individuals who may not

have authored or received the document.

Using Exhibits:

Effective Use of Evidence

52

• Be sure to read the exhibit number into the record before

providing it to the deponent for identification or read a short description into the record. (“I am handing your Exhibit 1 for indentification, which is a copy of your report. Let the record reflect that I have provided a copy to opposing counsel.”)

• It is effective to have the witness repeat what he or she wrote

and then merely ask if the witness believes it to be a true statement at the time he or she wrote it.

– Note the way to phrase the question—a true statement at the time it was written. – Either the witness has to confess being a liar in writing an intentionally false document or the witness has to acknowledge that he believed it to be true at the time written, regardless of the fact that a different truth dawned on the author later in the litigation or in the life of the dispute.

Using Exhibits:

Effective Use of Evidence

53

Effective Use of Evidence/Documents in Examination

• Here, it almost does not matter what the witness says.

– If the witness says, “No, I do not believe my statement was true when I wrote it,” then he is admitting he is a liar. – His remaining testimony is not credible because common sense tells you the document represented what was true at the time it was written. – More likely, confronted with the document’s memorializing of the witness’s contemporaneous statement, the witness is bludgeoned into an admission of yes.

• When you plot out cross examination, go carefully through the

documents and weave them together as you tell your story.

• Don’t forget about emails and e-discovery! People spontaneously

write e-mails without hesitation and, more importantly, without reflection or thinking.

54

Using Social Media Content

• Consider asking about social media.

– 81% of American Academy of Matrimonial Lawyers reported increased use of social media evidence. – Use the deposition to ask for permission to access those sites/accounts.

• Always consider rules of professional conduct. Note

the ethical risks of “friending” to get information.

• Conduct your own social media diligence on your

witness before he or she goes under oath.

55

• Remember to look at…

– Sites reflecting job duties, such as LinkedIn or Monster.com – Sites reflecting the physical/emotional state of your witness, such as blogs, Facebook, Twitter, Instagram, YouTube

• Timeline of actions or time spent away from children or

spouse

• Boasting of compensation/promotion/unknown assets
• Photographs of inappropriate behavior or potential

witnesses

• Expressions of extreme ideologies or beliefs

Using Social Media Content

56

Using Social Media Content

• Secretly recorded oral communications are

almost always excluded at trial

• Electronic communications are almost never

automatically excluded

• Cell tower data, GPA and Wi-Fi create

geolocation data: where you were & when

• Photos from GPS-enabled camera phones

embed the longitude and latitude of photos when they were taken

57

Post-Deposition Strategies

58

Using Deposition Information During Discovery

• Take inventory.

– Compare testimony and final explanations. – Depositions fill in gaps. – Review the good, the bad, and the ugly.

• Review with lay and expert witnesses.
• Reduce pleadings and discovery to logical anchors.
• View discovery from 30,000 feet.
• Consider motions for summary judgment.
• Consider motions to strike.

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Using Deposition Information During Settlement Discussions

• Depositions are the only way you, as the attorney,

may determine what the position of the opposing party is on certain issues. This makes it easier to resolve the issues through settlement or to prepare for trial.

• Facts are fresh in mind and focus is on the case

due to deposition preparation.

– More awareness of the strengths and weaknesses of both positions.

• Use it for client preparation.

§ 15:133.Other opportunities to settle—At deposition, 4 Tex. Prac. Guide Torts § 15:133 60

• Theming the case.

– Allows you to make opening statements with knowledge of testimony. – Allows you to consistently hit the same theme with trial questions and evidence. – Theming can be a good technique in pre-trial phase of case as well for making a judge remember a case.

• Depositions for use in Daubert Motions or other

motions to strike.

• Inclusion of transcript portions or using video

depositions during trial.

Using Deposition Information at Trial

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• If you choose to introduce deposition testimony into evidence at trial,

whether it is for strategic reasons or because of the unavailability of a witness, it is essential to dramatize the process in a way that makes it interesting and persuasive.

– Sometimes, the deposition questions may be read by the attorney and another attorney or paralegal reads the deponent’s answers. But, often times, a judge may just allow you to admit a deposition into evidence as an exhibit based on the jurisdiction. – You should be careful and strategic in choosing the surrogate deponent in order to maximize the value of the deposition testimony and you should prepare that person in advance to enhance the delivery.

• Before reading the deposition testimony into evidence, counsel must

educate the judge as to the nature of the deposition testimony and the circumstances under which the deposition was taken. If admitting the deposition into evidence, be sure to mark it.

• To avoid interruptions from objections, counsel should seek an in

limine ruling on all objections to the deposition testimony that is being offered.

Using Deposition Information at Trial

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Using Depositions at Trial

• Rule 32(a) permits the use of “any part or all of a deposition”

at trial “so far as admissible under the rules of evidence applied as though the witness were then present and testifying.” Purposes include:

– To present admissions

• FRE 801(d)(2): admissions by a party-opponent

– For impeachment

• FRE 613

– As a substitute for “unavailable” witnesses – To refresh recollection – As a substitute for un-refreshed memory – As past recollection recorded – For witness control – To make offers of proof and support or resist evidentiary motions and objections

• Be sure to check your state and local rules for variances.

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THE END

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