Deposition Skills
To hone up on your deposition skills I highly recommend the DVD (it also comes in CD) entiled "Deposition Techniques: Strategies, Tactics and Skills" by David Markowitz. You can order the DVD here.
FRCP 30(b)(6)
If you are taking or defending a 30(b)(6) deposition remember that there are two different sets of court opinions on the scope of a 30(b)(6) deposition. The majority opinion is that the questioner can ask any question permitted by FRCP 26. The minority opinion is that the questioner can only ask questions relating to the specific areas that were designated in the notice for the 30(b)(6) deposition. So before taking or defending a 30(b)(6) deposition take the time to find out whether your federal circuit or your state courts follow the majority or minority opinion. If your jurisdiction follows the minority rule your best option, if you are noting the deposition, is to set forth in your notice the areas upon which you expect the witness to be prepared to answer in the broadest terms possible.
One Question
The next time you are preparing for a deposition think of the one question you would ask the deponent if you only had one question to ask. This should help you focus on what it is that you want out of the deponent. Also, you might find out if you actually start asking that one question at your depositions that your depositions will be much more productive and efficient.
Some rules to remember
There is only one reason that a lawyer can instruct his/her client not to answer at a deposition and that is if the question requires the deponent to disclose privileged communications. So, if you are dealing with an obstreperous attorney who keeps instructing the witness not to answer have Washington Civil Rule 30(h)(3) or FRCP 30(c)(2) memorized. Both rules state that instructions not to answer are limited to issues of privileges. There are however situations where the attorney conducting the deposition may be using the deposition to harass his opponent or for some other nefarious reason, but the aggrieved attorney cannot just instruct the client not to answer. In that situation the aggrieved attorney must make a motion either by getting the court on the phone or walking out with the intention of filing a motion to terminate or limit the deposition. Washington CR 30(d) and FRCP 30(d)(3).
Do not allow this to occur at your next deposition!
Today I drove over to Seattle in sheets of rain. The flooding in Seattle made national news tonight. In any event the traffic was slow so I plugged in my IPod and listened toEvan Schaeffer's podcast of Advanced Deposition Techniques. The subject of the podcast was gaining control of the deposition. As I pondered what Evan had said this following pet peeve of mine popped into my head.
You are taking the deposition of the other party or one of the other party's witnesses. You have just asked a question. The witness pauses a minute as if reflecting on the answer and right then the oppossing attorney blurts out "If you know". That is not proper. It is coaching the witness. The only thing opposing counsel should be doing is making objections if necessary. Either by intention or by happenstance that tells the witness to shut up. The last time that happened I threatened to stop the deposition and resume it after the other counsel and I appeared before a judge. He stopped doing it but not without protesting that he was not coaching the witness. Baloney ... it's coaching the witness!
