Discovery

September 21, 2010

Effective Use of Depositions at Trial

Winning Trial Advocacy Tips has an excellent post on how to improve the reading of depositions at trial.

An excerpt:

4. Tab the appropriate pages. Just like on the radio, you want to prevent the courtroom from filling with “dead air.” When your witness is flipping through pages of the transcript, trying to find what portion he’s supposed to read next, it breaks the flow of your presentation and gives the jurors’ minds an opportunity to wander away. Prevent “dead air” by tabbing the witness’s transcript, so he clearly understands which portion to flip to next. Combined with the highlighting, this little bit of extra effort will make it much easier for your witness to smoothly present the transcript.

August 16, 2010

Judge Calls Down Lawyers For Deposition Misconduct

by The Law Offices of John Day, P.C.

All lawyers know that judges don’t like discovery disputes, and some lawyers take advantage of that by violating the rules at depositions.

United States Magistrate Peggy A. Leen entered this Order when confronted with lawyers who ignored the rules. An excerpt:

The exchanges related in excruciating, repetitive detail in the moving and responsive papers and their attachments were painful to read. If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:

March 9, 2010

CA Court Says Witness Interviews Not Privileged Work Product

by The Law Offices of John Day, P.C.

The March 8, 2010 edition of the Daily Recorder reports that a divided California appellate court has ruled that witness statements recorded or taken in writing by attorneys or their representatives aren’t privileged work product and, therefore, are open to discovery. The dissenter ruled that the statements were qualified work product, which means that they are undiscoverable unless a court determines that denial of discovery would unduly prejudice the opposing party.

The case is Coito v. Superior Court (State of California) , 10 C.D.O.S. 2697 ( 5th Dis. Cal. Ct. App. March 4, 2010). Here is the opinion.

Here is a nice statement of the holding taken directly from the opinion:

September 10, 2009

Suggestion for Expert Witness Disclosure Language in Scheduling Orders

by The Law Offices of John Day, P.C.

One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.

I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:

The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.

June 22, 2009

Depositions of Expert Witnesses

by The Law Offices of John Day, P.C.

What is your opponent going to do to prepare for your expert’s deposition? This article, "The Opponent’s Expert: Preparing for the Most Important Deposition in the Case," 59 Fed’n Def. & Corp. Couns. Q.145 (2008), answers that question.

April 17, 2009

Preparing the Witness for Deposition – From the Perspective of the Defense

by The Law Offices of John Day, P.C.

Evan Schaeffer at The Trial Practice Tips Weblog tracked down an article titled "Preparing A Witness for a Successful Deposition" written by Matt Keenan, a defense lawyer with Shook, Hardy and Bacon in Kansas City.

An excerpt:

In my 20-some years of working with company witnesses as part of the discovery process, I’ve learned that the prospects of a deposition can stress even the most accomplished corporate executive.

April 15, 2009

“Preparing for the Video Deposition”

by The Law Offices of John Day, P.C.

Yesterday I mentioned that James Publishing Company’s website includes excerpts of certain of its books. I thought that the excerpt I referred to yesterday was so valuable that it was worth another post, so here is an excerpt from Section 439 of "How to Prepare for, Take and Use a Deposition" by Daniel P. Dain.

§439 Preparing for the Video Deposition

If your witness’ deposition is to be videotaped, additional preparation is generally in order. Unlike the standard stenographic record, a videotaped deposition captures the witness’s appearance, demeanor and testimony. Consequently, you may want to experiment with makeup, hair and clothing, in preparation for the deposition. You may also want to conduct a mock video deposition of your witness to not only familiarize your witness with the nature of the proceeding, but to graphically demonstrate what areas need correcting before the actual deposition. Often the witness’s review of his or her own performance is a much better aid in that witness’s preparation than all of your carefully drafted verbal admonitions.

April 14, 2009

“Using A Checklist for Witness Preparation”

by The Law Offices of John Day, P.C.

James Publishing Company’s website includes excerpts of certain of its books. Here is an excerpt from Section 433 of "How to Prepare for, Take and Use a Deposition" by Daniel P. Dain.

§433 Using a Checklist for Witness Preparation

Some lawyers prefer to go through an extensive checklist of points for discussion with their witness. One benefit of using this approach is that it provides some assurance that you will not leave out an important point. One of the problems with this approach, and with any approach, is that your witness is only likely to recall and put into use a very few points. Whatever approach you choose, make sure that your emphasis is on your most important points because the others may fall by the wayside.

April 8, 2009

Is that Deposition Necessary?

by The Law Offices of John Day, P.C.

I brought a couple posts from the Lean and Mean Litigation Blog to your attention back in December. These posts discussed the need of formulating a discovery plan before taking depositions.

Here is a related article titled "Mastering the Blind Cross-Examination" written by Mark A. Nuebauer. This article questions the need to depose everyone and provides tips on cross-examining a witness who has not been deposed.

An excerpt: "To be effective, blind cross must have a specific goal. More often than not, each witness in a trial is intended to lay out a specific fact or a set of key facts that help provide the premise for that side’s case. Cross-examination should be a laser beam designed to attack that side’s contention of that fact or set of facts. In short, blind cross-examination should be a stiletto, not a sledge hammer attack."

March 17, 2009

New Rules Adopted by General Assembly

by The Law Offices of John Day, P.C.

The Tennessee General Assembly has passed resolutions approving the rule changes proposed by the Tennessee Supreme Court. The rule changes will be effective July 1, 2009.

Here is a brief summary:

Civil Procedure: There are changes to 11 different rules or comments on rules – Rule 1, 8, 12, 23, 34, 45, 51, 52, 55, 60 and 65. Two of the most significant changes are (a) non-parties can be ordered to make property available for an inspection; (b) judges must state findings of fact and conclusions of law in non-jury trials.
Electronic Discovery: A significant number of rules have been amended to incorporate specific rules concerning electronic discovery. The new rules represent a substantial change in Tennessee law.
Evidence: There are changes to 404, 703, 803 and 804. The changes to Rule 703 and 803 are of particular importance to tort practitioners.
Appellate Procedure: There are changes to Rule 13 (comment only) and 36; a new rule concerning mediation during an appeal is adopted as Rule 34.

The links will take you to the Order setting forth the rule changes. I will discuss some of the more important changes in more detail during the coming weeks.