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Using the Deposition at Trial

Honorable Andrew J. Peck

Michael Paskin

Randi Singer

Weil, Gotshal & Manges LLP May 10, 2012


Using the Deposition

■ Early Depositions and Expedited Discovery

Trial Preparation

Deposition Designations

■ Direct / Cross

■ Witness Preparation

Using the Deposition at Trial

■ When and How

■ Taking the Deposition With Trial in Mind

■ Practice Tip: Summary Judgment

2


Early Depositions and Expedited Discovery

■ A de bene esse deposition is one taken “in

anticipation of a future need”

■ A party may obtain expedited discovery pursuant to

Fed. R. Civ. P. 26(d) upon a showing of

reasonableness and good cause.

■ Good cause exists where the need for expedited

discovery, in consideration of the administration of

justice, “„outweighs the prejudice to the responding

party.‟”

3


Trial Prep: Deposition Designations

■ Rule 26(a)(3)(A):

“…a party must provide to the other parties and

promptly file the following information about the

evidence that it may present at trial other than solely

for impeachment:


(ii) the designation of those witnesses whose testimony

the party expects to present by deposition and, if not

taken stenographically, a transcript of the pertinent

parts of the deposition…”

7


Trial Prep: Deposition Designations

Plaintiff’s

Designations

Defendant’s

Objections

Defendant’s

Counter-

Designations

Plaintiff’s Objections to

Defendant’s Counter-

Designations

17:4-19:6 19:7-21:4 Hearsay

51:22-54:9 55:17-56:12 Relevance

64:11-67:5 No foundation as to 65:24-

66:1; speculation as to

65:24-66:1

69:10-76:6 No foundation as to 70:9-

18; speculation as to 70:9-

18

78:2-21 79:21-82:3 79:21 is mid-question; the

cite must begin at 79:20

8


Trial Prep

Using Deposition Testimony to Craft

Questions

■ For direct testimony

■ For cross examination

Using Deposition Testimony to Prepare

a Witness

9


When Can You Use Depositions at Trial?

Rule 32(a) allows use of deposition in court proceedings when:

(1) Testimony Otherwise Admissible

Testimony would be admissible if the witness were testifying

in court

(2) Use Fair to Adverse Party

Opposing party was present or represented or had

reasonable notice

(3) Use Permitted by Rule 32(a):

■Impeachment

■Deponent is an adverse party

■Witness is unavailable or exceptional circumstances exist

10


When Can You Use Depositions at Trial?

■ Rule 32(a)(6):

Using Part of a Deposition. If a party offers in

evidence only part of a deposition, an adverse party

may require the offeror to introduce other parts that in

fairness should be considered with the part

introduced, and any party may itself introduce any

other parts.

■ In accordance with the trial judge‟s individual rules

and practices!!

11


Preparing for Trial Use

■ Before using the deposition excerpt at trial:

■ Resolve objections

■ Determine how additional designations by opposing

party will be handled

■ Reconcile exhibits

■ Jury instructions

■ Provide transcripts

■ Rule 32(c): “…a party must provide a transcript of

any deposition testimony the party offers….”

12


Use During an Opening Statement

Q. One could not have

predicted that Collinemycin

would be less effective than

Alcindoromycine in 1997,

correct?

A. Not in 1997.

13


How Can You Use Depositions at Trial?

■ Submit Paper Transcript

■ Read Testimony

■ single lawyer reads all

■ multiple lawyers read testimony

■ dramatic readings

■ Video

14


Use During Case in Chief

15


Use on Cross: Impeachment

3 Step Approach to Impeachment:

• Commit to Current Testimony

− your testimony today is x

• Credit Deposition Testimony

− you were deposed, told truth, under oath

• Challenge With Prior Testimony

at your deposition, you testified y

16


Use on Cross: Impeachment

17


Use During Closing Argument

Q. Does Ibuprofen have any

other unexpected

properties?

A. Yes. Ibuprofen has a clear

dosing advantage over

aspirin. Aspirin must be

taken 5 times per day, while

Ibuprofen need only be

taken once or twice per day.

18


Taking Depositions with Trial in Mind

• Work Backwards from Order of Proof

119.Consulting Co. retained by Shaw in

connection with XYZ project.

Fact Ex(s). Witness RFA

120.Purpose of XYZ project was to identify

available alternatives to computing

infrastructure.

121.Consulting Co.’s primary responsibility

was to assess viability of implementing

Project Computer in Q2-Q3 2002.

122.Other consultants, not Consulting Co.,

were primarily responsible for

conducting financial impact analysis of

later implementation.

123.Consulting Co. provided a report stating

that implementing Project Computer in

Q2-Q3 2002 may be risky given volatility

in the market.

104 Hendrix

65, 116

15 at

180:20-

182:11

Jackman

Bell

105, 103 Bell

17 at

23:14-

24:1

Hendrix 18

Hendrix

Jackman

22

19


Taking Depositions with Trial in Mind

• Develop a Clear Transcript

Cluttered

Q: Was it perceived to be a negative within the

bank if you originated a loan that was intended

for securitization that did not become

securitized?

A: Maybe. It if was a loan that just needed time

and everything occurred as planned and was

ultimately securitized, that was considered okay,

but if it was a loan that couldn’t get securitized,

it was a negative.

Q: Did you make any of the latter type of loans?

A: Possibly.

Q: What would happen with those loans is they

would remain warehoused with the bank and the

bank would continue to run the default risk?

A: Correct.

Clear

Q: If the bank originated a

loan that was intended for

securitization but that did

not become securitized,

the bank would hold the

loan and continue to run

the default risk, correct?

A: Correct.

20


Taking Depositions with Trial in Mind

• Tie Up Loose Ends

Incomplete Answer

Q: What did you discuss at the

July 8 finance team meeting?

A: We mostly talked about our

desire to refinance some of our

bond debt.

Witness Locked Down

Q: What did you discuss at the July 8

finance team meeting?

A: We mostly talked about our desire

to refinance some of our bond debt.

Q: Anything else?

A: No.

Q: At the July 8 finance team meeting,

there was no discussion of a possible

merger with Acme, right?

A: That’s right.

21


Practice Tip: Using the Deposition for

Summary Judgment

■ Deciding what deposition testimony to quote in your

summary judgment brief.

■ Space is limited; even more so than for trial

designations quotes should be short to have impact.

■ Less about storytelling than admissions regarding

key facts.

■ As with trial designations, use order of proof as your

roadmap.

22


Practice Tip: Using the Deposition for

Summary Judgment

■ Taking depositions with summary judgment in mind.

■ Get clean answers to key questions – persistence

pays off.

■ Use leading questions to control precise language.

■ “Sum up” segments of testimony with concluding

questions that are more easily quotable.

23


Practice Tip: Using the Deposition for

Summary Judgment

■ Preparing and defending witnesses.

■ Witness prep – balance between robust explanations

and one-word answers (or lack of

knowledge/recollection)

■ Testimony is more powerful than affidavits – and

limits chance of Rule 56(d) discovery.

■ Consider preparing a meaningful “cross” akin to

direct trial testimony to establish important facts.

■ Which party is more likely to move for summary

judgment?

24

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