Using the Deposition at Trial

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
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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.‟”
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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…”
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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
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Trial Prep
■ Using Deposition Testimony to Craft
Questions
■ For direct testimony
■ For cross examination
■ Using Deposition Testimony to Prepare
a Witness
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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
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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!!
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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….”
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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.
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How Can You Use Depositions at Trial?
■ Submit Paper Transcript
■ Read Testimony
■ single lawyer reads all
■ multiple lawyers read testimony
■ dramatic readings
■ Video
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Use During Case in Chief
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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
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Use on Cross: Impeachment
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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.
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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
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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.
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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.
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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.
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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.
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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?
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