Additional rules of the road for your client for her deposition:
31. Don't take notes during your deposition. The interrogator will you ask you about them.
32. Be careful of questions that use absolutes, like "never" and "always."
33. Don't assume anything you say is "off the record."
34. Don't object to questions. That's what your lawyer is there for.
35. Only bring those documents to a deposition your lawyer asked you to bring. Before the deposition, show your lawyer what you brought.
36. Don't discuss the deposition in the bathroom, hallway or on the phone. You never know who may be listening.
37. Be yourself.
38. Don't let the attorney's pregnant pauses or silence compel you to keep talking. Once you're done with your answer, stop. Don't continue explaining it.
39. If the interrogator is confused or lost, don't help him.
40. Your conversations with your lawyer are privileged. Don't offer them up in deposition.
41. Avoid superlatives.
42. Whatever you say to opposing counsel will find its way into the record. Do not fraternize with opposing counsel during breaks.
43. Ask to read the deposition at the end. Do not waive the reading of the deposition.
44. If you made a mistake or misspoke during the deposition, let your attorney know before the deposition is over.
45. Try to remain relaxed while remaining vigilant.
Picking up from the last post, additional rules of the road for your client for her deposition:
16. When asked about a document, ask for it and take the time to read it before answering any questions about it.
17. Don't exaggerate.
18. Don't think out loud.
19. Many questions you will be asked can be answered with: (1) yes; (2) no; (3) I don't know; (4) I don't recall at this time.
20. However, don't be forced to answer "yes" or "no." Sometimes qualifications are necessary.
21. Be wary of leading questions.
22. Be wary of compound questions. Understand if you answer "yes," you are answering yes to the entire question.
23. Be wary of summaries of your testimony. If the summary is incorrect, say so.
24. Sometimes, the less you say the better.
25. This is not a friendly conversation. It is an interrogation. Treat it that way.
26. Listen to the objections your counsel makes.
27. If you're instructed not to answer by your counsel, don't answer.
28. If you don't know what a word means in a question, don't be embarrassed to say so.
29. Don't assume you know what a question is and start answering it before it is completed.
30. Dress appropriately but comfortably.
We all have rules for our clients for their depositions - a list of what-to-dos and what-not-to-dos. Consider reducing your list to writing and have it handy to ensure you cover all the basics during your next depo prep. Over the next several posts, I'll provide a proposed list, starting with:
1. Listen to the questions. Pause before answering them.
2. Tell the truth.
3. Don't answer a question you don't understand. Ask that the question be rephrased.
4. Answer audibly.
5. Answer verbally. Court reporters can't take down nods of the head.
6. Be polite.
7. Don't argue with opposing counsel. Don't lose your temper.
8. Avoid sarcasm, jokes and rude behavior.
9. Opposing counsel is not your friend. Don't fall for opposing counsel's friendly overtures.
10. You can take a break if you want one. Feel free to ask for one.
11. Don't guess. If you don't know, say so.
12. If you don't remember, say so.
13. Often, the best answers are the shortest ones.
14. Don't volunteer information.
15. Answer only the question asked. If you're asked, "Do you have the time?" The answer is "yes." It's not "2.30 p.m."
When preparing your client for deposition, it's tempting to gloss over the mundane, but covering the basics will help settle your client's jitters. You have handled plenty of depositions. This is likely your client's first. With that in mind, in addition to covering the finer points of deposition techniques, make sure you cover the following basics with her regarding the deposition:
5. When to arrive at the deposition
6. What documents to bring
7. What documents not to bring
8. Who will be in attendance
9. Court reporter's role
10. Your role (what you, as counsel, can and can't say and do)
11. Opposing counsel's role
12. Client's role
13. What is a transcript
14. Significance of oath (perjury implications)
15. Any quirks of opposing counsel
16. Where everyone sits at deposition
17. What objections are
18. How long will it take
21. Reading the transcript
22. Making changes to the transcript
When preparing your client for deposition, it is important you review with her any document she may be confronted with at deposition. It is very rattling for a deponent to be confronted with a never-before-seen document. So, gather all the relevant documents and create two sets of binders - one for you and one for your client - to review them with her in a face-to-face meeting. The binders should include:
1) the complaint
2) the answer and affirmative defenses
3) any interrogatory answers the client, or a client's representative, has signed
4) incident reports
5) governmental investigative reports
6) company policies and manuals
7) applicable federal and state regulations
8) applicable county and city ordinances
9) correspondence and e-mails between the parties
10) agreements, contracts and related documents between the parties
11) the notice of deposition
12) prior statements
13) media reports
14) client's company's website
15) client's social media posts
Ask yourself, if I were opposing counsel, what documents would I confront the client with? Is there a federal regulation right on point that my client allegedly ignored? Is there something on her website that undermines her position? Is there something on her Facebook site which can be used as an admission against interest? Review those documents you expect your client to be cross-examined with so as to avoid surprise.
Yesterday, a court ordered production of reserves information. Starr Indemnity & Liability Co. v. Continental Cement Co., 1012 U.S. Dist. LEXIS 170988 (E.D. Mo. Dec. 3, 2012).
The insurer sought work product protection for reserves. Work product protection, of course, requires anticipation of litigation. The insurer claimed to anticipate litigation two days after the event. The insurer’s actions showed that it was concerned early on. The insurer hired counsel 25 days after the incident.
The party seeking discovery, however, argued that litigation couldn’t have been only two days after the incident.
The magistrate ordered disclosure of the reserves amount. But, the magistrate found that work product protects the reserves process.
While the insurer received some protection of its reserve information, I really hate to see courts ordering discovery of any reserve information.
The most important deposition in any case is your client's deposition. An aberrant admission can serve up a summary judgment to the other side or cost you dearly at trial. Therefore the most important thing you can do in any case is properly prepare your client for deposition. Over preparation is the key. I suggest three meetings, which I will call (1) Reconnaissance; (2) Preparation and Indoctrination; and (3) Cross-Examination. I will discuss these meetings in greater detail in upcoming posts, but for now, let me provide you a general overview. The first meeting is a get-to-know you meeting with the client, where you learn everything he knows and secure all relevant documents. The second meeting is the initial preparation for the deposition, a how-to for depositions, and a review of all the relevant materials with the client. The third meeting is a dry run of the cross-examination he will endure. If after his deposition your client tells you that the opposing party's cross-examination was a cake walk compared to your mock cross-examination, then you've done your job. The most important part of preparing your client is appreciating that it will take time and should be begun well before his deposition date.
Living near NYC, it’s difficult to write about or even think about anything other than Hurricane Sandy. Like you, I’ve lived and worked through many other disasters: hurricanes, blackouts, and other events. 9/11 was, of course, the most horrible time. But in terms of disruption, Sandy tops them all. We’re dressing casually because no one has power to iron clothes. We’re eating pizza because it’s the only thing available. We’re carpooling because gas stations are closed. Incredibly, my office has full power, though many are absent and phones are quiet. In my house, we put headlamps on every evening; our dogs stare at us. Our food is limited to what we fit in an ice chest (I bring ice home from work). The ice is also useful for my evening refreshment. But I can't complain; my family wasn't hurt and my house wasn't damaged.
A 10/18/12 decision from the District of New Jersey includes a succinct summary of litigation hold law:
A duty to preserve documents arises when a party "knows or reasonably should know" that litigation is foreseeable. The duty to preserve does not extend to every document. Rather, a party is only obligated to preserve information that is reasonably related to foreseeable litigation. But once the obligation to preserve arises, a party must "put in place a litigation hold to ensure the preservation of relevant documents." Furthermore, for a litigation hold to be suitable, a party must identify potentially relevant sources of information, implement procedures to retain that information, and produce information responsive to discovery requests.
If a party fails to produce documents after a litigation hold should be in place that party may be subject to sanctions due to a failure to preserve. One possible sanction is a spoliation inference. For a spoliation inference to be imposed four factors must be present: (1) the evidence must have been in the party's control; (2) it must be relevant to claims or defenses in the case; (3) it must have actually been suppressed or withheld by the party; and (4) the duty to preserve evidence must have been reasonably foreseeable to the party…. [A] litigation hold may extend to third parties, and courts have issued orders to this effect.
Haskins v. First American Title Ins. Co.,2012 U.S. Dist. LEXIS 149947 (D. N.J. Oct. 12, 2012)(citations omitted).
Litigation holds continue to be an evolving concern. Haskins, however, seems to capture much of the law in just a few lines.
In the last few weeks, I've seen simple writing endorsed by Bryan Garner, Jim McElhaney, and Justice Kagan. If I searched, I could probably find recent endorsements from other legal superstars. Last week a retired appellate judge said to me that the most complex briefs came from the worst lawyers. I wonder if simple writing will ever become the norm.