deposition power point final.pdf

C h r i s t o p h e r W. R u m b o l d , E s q .G l a d s t o n e & W e i s s m a n , P . A . , B o c a R a t o n

DEPOSITION STRATEGIES:PREPARATION TO EXECUTION

LECTURE OUTLINE

1. Assessing the Deposition

2. Scheduling/Noticing the Deposition

3. Preparation for the Deposition - Generally

4. Preparation for Adverse Party/Witness

5. Preparation for Client/Witness

6. Form and Format of Taking/Defending the Deposition

7. Post-Deposition Considerations

PERCEPTION IS REALITY

Assessing the Deposition – Vignette One

During a consultation with a potential client for a dissolutionaction, your client, the Wife, reveals that the Husband has agambling addiction and an entertainer girlfriend that is his “ladyluck” and with whom he travels to Las Vegas regularly. TheHusband has dissipated tens of thousands of (unreported,nontaxed) earnings but intends on winning it back nextweekend. The Husband is paid in cash by his brother and theparties, given IRS concerns, do not deposit the cash but insteadkeep it in a box in the garage. As such few if any financialrecords exist. You are contemplating filing the case tomorrowand filing an urgent or emergency motion for injunctive relief.How do you assess the form, function and utility of taking adeposition or multiple depositions based upon this vignette?(Allow this to Percolate and Continue to Consider as weProceed.)

Assessing the Deposition – Vignette Two

During a consultation with a potential client for a relocation action(temporary hearing is scheduled), your client, the Former Husband, hasaccepted a job in California (consider also, if the accepted positionwas in a foreign country) for a position that opens next year. TheHusband and Wife have 50/50 timesharing and both parties are terrificcaring and involved parents. The Husband provides you aninformational binder that contains all pertinent information about thecity to which he intends on relocating to. He also provides you abinder that contains all information concerning the children, the familytree (with addresses and phone numbers), the children’s educationalinstitution (and report cards), names of friends and their parents,coaches, rabbis, and all other germane documentation. The Wifeobjects to the relocation and, unbeknownst to the Husband, she hada psychologist privately interview the parties’ children all of whomindicated a desire to stay in Florida because they love the beaches,their schools and their friends.(Allow this to Percolate and Continue to Consider as we Proceed.)

ASSESSING THE DEPOSITION -CONTINUED

Consider the two vignettes above, how do the facts andcircumstances shape your deposition strategy:

• Who is the intended deponent?

• Given the factual issues, what information/testimony do youknow that they could provide?

• In order to capitalize upon that information, should thedeposition be expedited or not expedited?

• If expedited, will you have enough time to secure discovery forpotential deposition exhibits?

ASSESSING THE DEPOSITION -CONTINUED

• If expedited, will you have time to comply with the applicablerules?

• If expedited, will you have time to properly prepare?

• If not expedited, could you lose a star witness?

• If not expedited, could that star witness’s testimony becompromised?

• If not expedited, and the star witness dies (said witness had awell-known congenital disease) should your next call be to yourmalpractice provider?

DETERMINE THE PURPOSE/GOAL OFTAKING THE DEPOSITION

✔ Fact Finding/Fact Confirmation

✔ Assessment of the Intelligence of the Witness

✔ Assessment of the Shrewdness of the Witness

✔ Assessment of the Psychology of the Witness

✔ Assessment of the Knowledge of the Witness

✔ Assessment of the Credibility of the Witness

✔ Clear, Unambiguous Answers to KEY Questions

DEPOSITION FOR PERPETUATION OFTESTIMONY

A deposition for the perpetuation of testimony (Fla. R. Civ. P.1.290) may be used in any action involving the same subjectmatter which is subsequently brought in any court in anyjurisdiction in accordance with Fla. R. Civ. P. 1.330. Inaccordance with Fla. R. Civ. P. 1.290, the deposition may be usedagainst any party or their successor in interest named in thepetition as unexpected adverse party. The deposition may betaken in the form of an oral examination and it must follow thesame procedures as those followed for depositions taken afterthe inception of an action but before judgment in accordancewith Fla. R. Civ. P. 1.290, 1.310 and 1.320.

DEPOSITION FOR PERPETUATION OFTESTIMONY - CONTINUED

• Bank of Montreal v. Estate of Antoine, 86 So.3d 1262(Fla. 4th DCA 2012)

• Motel 6, Inc. v. Dowling, 595 So.2d 260 (Fla. 1st DCA1992)

• Johns-Manville Sales Corp. v. Janssens, 463 So.2d242 (Fla. 1st DCA 1984)

DEPOSITIONS UPON WRITTENQUESTIONS

Fla. R. Civ. P. 1.320 provides an alternative to thestandard deposition format/structure. A subpoenaedwitness, served with a Notice containing the identityof the deponent and the identity of the officer beforewhom the deposition will be taken, has 30 days afterthe Notice and Questions are served, to appearbefore the officer who takes the witnesses’ testimonyin accordance Fla. R. Civ. P. 1.310.

SETTING THE DEPOSITION -FORMALITIES

Form of Notice/Subpoena:✔ Providing for:❋ Live Witness, Live Witness Noticed Duces Tecum and

Anticipated to Appear, Live Witness Noticed Duces Tecumwith Prior Production Option and Not Anticipated to Appear(Generally Records Custodian).

✔ Specifying the Individual you Intend on Deposing:❋Party or Non-Party Witness❋ Party or Non-Party Witness in Individual Capacity,

Corporate Capacity, or multiple capacities

SETTING THE DEPOSITION -FORMALITIES - CONTINUED

Form of Notice/Subpoena – Continued:✔Defining the Scope of the Deposition – limited,global

✔ Videotaping the Deposition❋ Fla. R. Civ. P. 1.310(b)(4)(a-e) specifically establishes the

format and requisites for videotaped depositions

✔ Precluding Aggravators/Instigators from Attending❋ Husband’s new girlfriend, Wife’s new girlfriend and

Wife’s Father that detests the Husband

Setting the Deposition – FormalitiesContinued

Multistate Deponent:➜ Is there a local branch?

Out-of-State Deponent:➜ Motion to Appoint Commissioner.

Out of Country Deponent:➜ Fla. R. Civ. P. 1.300(b) (Letters Rogatory)

SETTING THE DEPOSITION -FORMALITIES - CONTINUED

✔ Geographic Consideration:❋ Fla. R. Civ. P. 1.410(e)(2) provides that, “a person may berequired to attend an examination only in the county whereinthe person resides or is employed or transacts business inperson or at such other convenient place as may be fixed byan order of the court.”

❋ Remember: Failure to obey a subpoena, as per Rule1.410(f), can be a basis for contempt if the Witness wasproperly served with the subpoena.

❋ Alternatives?

Setting the Deposition – Procedural Aid

Invocation of the Rule of Sequestration:❖Lay Witnesses

❖ Expert Witnesses

❖ Exceptions to Rule of Sequestration for CertainExpert Witnesses

Setting the Deposition – Procedural Aid -Continued

Applicability Consideration - The districts are split onwhether one can invoke the rule of sequestration atdeposition:

❖ In Dardashti v. Singer, 407 So.2d 1098 (Fla. 4th DCA 1982), theappellate court reversed the trial court's failure to apply therule to exclude a witness during a deposition.

❖ In Ferrigno v. Yoder, 495 So.2d 886 (Fla. 2d DCA 1986) theappellate court reversed the trial court's order invoking the ruleagainst a party at a deposition but noted that itacknowledged the application of the rule for nonpartywitnesses.

Setting the Deposition – Procedural Aid -Continued

Applicability Consideration - Continued:

❖In Smith v. Southern Baptist Hospital of Florida,Inc., 564 So. 2d 1115 (Fla. 1st DCA 1990) theappellate court rejected outright the applicabilityof the rule of sequestration to depositions.

❖ Additionally, consider Fla. R. Civ. P. 1.310(b)(8)which governs the attendance of a minor’sparent at a minor’s deposition.

Preparation for Depositions Generally – Pre-deposition tools (Party)

Available discovery options:• Fla. Fam. L. R. P 12.285• Fla. R. Civ. P. 1.290 (Before Action)• Fla. R. Civ. P. 1.330 (a)(3) (Unavailability)• Fla. R. Civ. P. 1.350• Fla. R. Civ. P. 1.351 (Non-Party)• Fla. R. Civ. P. 1.370• Fla. R. Civ. P. 1.340 (Standard and Additional)• Fla. R. Civ. P. 1.360, Fla. Fam. L. R. P. 12.360• Fla. R. Civ. P. 1.560 (Discovery in Aid of Execution)

Preparation for Depositions Generally – Pre-deposition tools (Party) – Continued

Additional discovery options:• Private Investigator

• General Background check

• If either party was previously divorced,secure and review file

• If a business associate (closely held or PA)was recently divorced, secure and reviewfile

PREPARATION FOR DEPOSITIONSGENERALLY - CONTINUED

Legal Research:✔ Is your issue statutorily based?

✔ Is your issue decisional law based?

✔ If statutory, like relocation or timesharing, in preparing for thedeposition, there should be questions on each and every statutoryfactor.

✔ If decisional, like alimony or goodwill, in preparing for the deposition,your questions should mirror (as close as possible) the issues, reasoningand considerations that the appellate court utilized to reach itsconclusion.

✔ If done properly, the deposition (or at least a part of it if the deponentis a party) may well become read into the record testimony at trial.Fla. R. Civ. P. 1.330(a), 1.330(4)

BLONDES KNOW BEST

OR DO THEY?

Preparation for Depositions Generally – ComplexLitigation

Know what you know/Know what you don’t know:•As family practitioners, our practices crossover with a host ofother facets.

•If the case warrants, retain or collaborate with a lawyerspecializing in the field at issue to assist in the preparation ofdeposition questions and your general knowledge of the law.

•If the case warrants, engage or collaborate with a hiredprofessional to assist in the preparation of depositionquestions and your general knowledge of that field of study –forensic psychology, addictionology, child development,special needs, etc.

•Special Consideration: Torts

ORGANIZATION FOR DEPOSITION

The Deposition Binder:➢ To aid in the ease of document use and reference during

a deposition, a binder should be prepared that comportsto the pending issues. Additionally, certain documents oncertain issues should be sub-filed accordingly.

➢ In most non-emergency issue depositions, the bindershould include pleadings (pleadings, motions, orders,certain financial records and certain written discovery),correspondence of interest, e-mails and text messagesof interest, etc.

➢ The deposition binder, if comprehensive and completeon the certain issue, should convert easily to a witnesshearing/trial binder.

Development of Deposition Questions – Client

Our clients (and associated professionals) are aninvaluable resource for understanding the complexity ofthe marriage and the complexities of the personalitiesinvolved. Further, during the litigation they and theirfriends maintain in a way that we cannot eyes and earson their spouses.

➜ Consultation➜ History of the marriage➜Written records accumulated over the marriage➜ Daily calendar

Development of Deposition Questions –Client, Professionals

The client (and any affiliated professionals) is andshould be an integral part of the deposition processincluding the creation of the deposition questions.

Brainstormingsession with

client &professionals.

Preparationof deposition

question matrix– categorized.

Circulatedeposition

question matrixfor comment

and

Circulate finalcopy of

depositionquestion matrix.

DEPOSITION QUESTION MATRIX

Form of Matrix:The Matrix should include the following components:

Row 1: Category (Issue)

Row 2: Question

Row 3: Documentary Basis for Question (BinderReference)

Row 4: Blank for Short Hand Answer

Row 5: Blank for follow up questions/notes

I DON’T RECALL…

PREPARING CLIENT FOR DEPOSITION

☞ Know your client, learn their strengths andweaknesses.☞ Know your adversary and their style.

❋ Sophistication Level❋ Verbal Skills❋ Listening Skills❋ Attitude/Personality❋ Temperament❋ Practical and Applied Intelligence

PREPARING CLIENT FOR DEPOSITION -CONTINUED

Proper Preparation for Deposition:

❖ Initial Client Meeting for Deposition Preparation• (Don’t Rely on Form Instructions)• Explanation of Procedure• Explanation of Gravity and Import of Proceeding• Explanation of Veracity and Potential Future Trial

Impeachment• Explanation of Competing Personalities and Adversarial

Nature of Proceeding• Review of all Pleadings (including Financial Affidavit),

relevant motions, other documents – germane toHusband and Wife.


Proper Preparation for Deposition:

❖ Subsequent Client Meeting for DepositionPreparation• Review Anticipated Questions• Focus on Contested Issues and High Conflict Areas• Walk the Client through a Mock Deposition• Test the Client on Their Ability to Withstand Pitfalls


Proper Preparation for Deposition:Rules That Should be Ingrained into your Client’s DNAif You Have Your Client Properly Prepared:

o LISTEN CAREFULLY to the Question asked.o Wait for an Objection – three seconds should suffice.o DETERMINE whether the question as asked can be

answered. If yes, CONSIDER your Answer. If no, thenrequest that the question be rephrased.

o LIMIT the Answer to only that which the question asked.o NEVER VOLUNTEER ADDITIONAL DOCUMENTS,

ADDITIONAL RECORDS, ADDITIONAL TESTIMONY, ETC.


Practical Consideration – Work Product/RecollectionRefreshed:

❖The selection of documents that you use with yourclient to review and prepare in advance of adeposition are work product. Given that the selectionreveals what the attorney believes to be important forthe purposes of litigation, it is opinion work product andtherefore strictly protected. Spork v. Piel, 759 F.2d 312(3d Cir. 1985).

YOU SAY POTATO / I SAY POTATO


Practical Consideration – Work Product/RecollectionRefreshed – Continued:

❖However, work product may be waived if protected documentsare used to refresh the recollection of the witness regarding mattersthat they are subsequently examined on at deposition, hearing ortrial. James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138 (D. Del.1982).

❖ First, if the deposing attorney establishes that the witnesses’recollection was refreshed based upon certain documents,those documents become discoverable.❖ Second, the witness may inadvertently divulge the contents of

the documents upon examination and that too could constitutea waiver.

FOURTEEN HEADS MAY NOT BE ANYBETTER THAN ONE

TAKING THE DEPOSITION OF ANADVERSE PARTY OR WITNESS

Structure of the Question:

• Leading question• Open-ended question• Simple structure of question• Avoid negative and double negatives• Create soundbites• When referencing, use exacting language

TAKING THE DEPOSITION OF ANADVERSE PARTY OR WITNESS -

CONTINUEDGoals:

1. General Fact Finding – Any question designed tolead to the discovery of admissible evidence is potentiallyfair game. (Sections 90.401, 90.402, Fla. Stat., Fla. R. Civ. P. 1.280(b)(1)).

2. Specific Fact Finding – Address Every ContestedIssue Raised by the Pleadings. Address Every Factor foran Element Based Analysis.

3. Potential Future Impeachment – On Critical Issues,not Collateral Issues.

4. Understanding the Witnesses’ Psychology andDemeanor.


CONTINUEDTips for EvasiveDeponents:❋ Repetition❋Confrontation❋Request a direct

answer/object/strike

Tips for UntruthfulDeponents:❋ Avoid chronological

ordering❋ Vary topics, time

frames and otherfactors❋ Ask questions quickly❋ Utilize sentence

structure❋ Consider multiple

depositions


CONTINUEDPotential Future Impeachment (Expanded):➤Section 90.608(1),(2),(3),(4), Fla. Stat.➤ Inconsistency, bias, character (veracity), defects (see

additionally 90.604.

➤Section 90.609, Fla. Stat.➤ Attack/Support Witness Credibility by Reputation Evidence as

to the Truthfulness of the Witness.

➤Section 90.610(1), Fla. Stat.➤ Felony Convictions and Crimes of Dishonesty

➤Section 90.614, Fla. Stat.➤ Prior Statements of Witness

➤Section 90.803(18), Fla. Stat.

YOU CAN’T HANDLE THE TRUTH


CONTINUEDStyle and Demeanor – Yours/Your Deponent:☑ Develop a Rapport with the Deponent. Put theDeponent at ease not on the Defensive.

☑ Be Cognizant of Your Style and theAppearance/Attitude that You Project.

☑ Be You, but Malleable to the Witnesses’ Conduct andActions.

☑ CAREFULLY LISTEN to the Deponent’s Testimony – Stated,Unstated, Intonated, Affectless, Articulate, Inarticulateand their Body Language.

☑ Utilize Exhibits, Reference Documents, saveImpeachment for Trial.


CONTINUEDFlorida decisional law provides robust support fortaking a deposition of any third party witness:

Bush v. Schiavo, 866 So.2d 136 (Fla. 2d DCA 2004)(Trial Court erred in entering order, upon Husband’sMotion for Protection, prohibiting Governor fromtaking the depositions of seven witnesses as Husbandfailed to substantiate good cause for the blanketban.)


CONTINUEDMultiple Depositions of Same DeponentPractical Consideration:

Multiple Depositions of the Same Witness Should Not beTaken unless:

1) new parties;2) new issues;3) new facts elicited from discovery;4) initial deposition was limited in scope or utility; or5) Court Reporter malfunction.


CONTINUEDMultiple Depositions of Same DeponentDecisional Law Consideration:

Medina v. Yoder Auto Sales, Inc., 743 So.2d 621 (Fla.2d DCA 1999)(Noting that the Rules of Civil Proceduredo not forbid the taking of a second deposition,appellate court reversed trial court order whichimproperly placed the burden of substantiating thebasis for a second deposition on the party taking thedeposition as opposed to requiring, under 1.280(c),the deponent to substantiate good cause for thegranting of a protective order.)

Representing/Defending Your Client’sDeposition

Window into Adversary’s World View (and Your Client):

◉The Other Side’s Theory of the Case may be Evident from TheirQuestioning.

◉The Other Side’s Perception of the Contested Issues may beEvident From Their Questioning.

◉The Other Side’s Perception of Your Case’s Weaknesses maybe Evident From Their Questioning.

◉Your Client will Sink, Swim or Tread Water.Preview, Prepare and Perfect for Trial Testimony.

Representing/Defending Your Client’sDeposition - Continued

Objections/Instructions/Termination:✦ Fla. R. Civ. P. 1.310(c) – Any objection during adeposition shall be stated concisely and in a nonargumentative and non suggestive manner. Unlessprivileged, testimony will be taken over objection.

✦ Fla. R. Civ. P. 1.310(c) – Instructions not to Answerare appropriate when necessary to preserveprivilege, comport with Court limitation, or inconjunction with termination of the deposition.


Objections/Instructions/Termination – Continued:✦Section 90.510, Fla. Stat. – PrivilegedCommunication Necessary to Adverse Party.

✦ Fla. R. Civ. P. 1.310(d) – Termination or Limitation ofExamination. (Fee Considerations).

✦ 5th Amendment. Marisa E. Rosen, A Civil Litigator’sGuide to the Privilege Against Self-Incrimination inFlorida’s State and Federal Courts, 87 Fla. Bar. J., 10(Dec. 2013).


5th Amendment Considerations:•Atlas v. Atlas, 708 So.2d 296 (Fla. 4th DCA 1998)(Trial courtcould correctly draw adverse inference that Former Husbandhad ability to pay child support payments to which hecontinuously objected based upon his invocation of the FifthAmendment in response to questions concerning his financialstatus.)

•Schlien v. Schlien, 763 So. 2d 350 (Fla. 4th DCA 1998)(Husbandwaived his Fifth Amendment right against self-incriminationwhere Husband refused to answer financial questions butHusband’s accountant testified to Husband’s financial statusand Husband’s accountant’s testimony was based solely uponHusband’s oral representations.)


5th Amendment Considerations – Court Order:

•O’Neal v. Sun Bank, N.A., 754 So.2d 170 (Fla. 5th DCA2000 )(Court can only order litigant to answer aquestion over their Fifth Amendment Invocation if thelitigant is clearly mistaken in his apprehension and thepotential answer could not possibly tend toincriminate.)


Preventative Tools for Abusive Deposition Practices:➤ Motions for Protective Order (Fla. R. Civ. P. 1.280(c)) –Location, Form of Deposition, Prohibited Matters, Etc.

➤ Appointment of Special Magistrate (Fla. Fam. L. R. P.12.492)➤ Express Consent of Parties➤ Exception: Appointment of Attorney to Oversee

Depositions and Rule on Objections Requires GoodCause but Not Consent.➤ Pesut v. Miller, 773 So.2d 1185 (Fla. 2d DCA 2000).


Errata and Error Considerations:

•Witness Review: Fla. R. Civ. P. 1.310(e) – Errata Procedure.See Robert E. Taylor Jr., Depositions, Errata Sheets,Reopening, and Termination, LXX Fla. Bar J., 3 (March1996).

•Errors and Irregularities:• Fla. R. Civ. P. 1.330(d) – Occurring during deposition,

objection must be made at deposition.• Fla. R. Civ. P. 1.330(4) – Transcription errors waived unless

motion to suppress is filed with “reasonable promptness”after defect is noted.

Review Transcribed Depositionswith Client & Professionals

• Review Client’s Deposition with Client:• Goal of Improvement before Next Deposition or Court

Testimony.• Goal of Improvement before Next Deposition or Court



Testimony.

Review Transcribed Depositionswith Client & Professionals

• Review Adverse Party/Witness Depositions withClient and Professionals:• Goal of Identifying Weak Areas.• Goal of Identifying Additional Discovery.• Goal of Identifying Additional Potential Witnesses.• Goal of Identifying Additional Areas to Weaken Credibility.• Goal of Identifying Additional Areas for Impeachment.

CONCLUSION

Thank you for your time and consideration!Special thanks for assistance with the Power Point materials:

Peter L. Gladstone, Esq.,Tova N. Verchow (Law Clerk)