Presenting a live 90-minute webinar with interactive Q&A Deposition Strategies in Divorce and Custody Cases: Taking and Defending Depositions of Parties, Lay Witnesses and Experts Leveraging Deposition Testimony During Discovery, Settlement and Trial THURSDAY, FEBRUARY 23, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Kirk C. Stange, Founding Partner, Stange Law Firm , St. Louis The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Stange Law Firm P.C. 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
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. – I f 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 Dynamics: Other Considerations • Deposition Schedule . Check your local rules regarding scheduling, otherwise 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. 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
Witness Preparation: Client • 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. Cary B. Cheifetz, Deposition Strategies Minding Your Q’s & A’s , 21 Fam. Advoc. 12 (Fall 1998). 15
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