TIPS FOR IMPROVING THE EFFECTIVENESS OF YOUR DEPOSITIONS

1. TIPS FOR IMPROVING THE EFFECTIVENESS OF YOUR DEPOSITIONS Sara L. Williams, managing attorney– alexander Shunnarah personal injury lawyers

2. DEPOSITION 101-GOVERNING RULES Ala. R. Civ. P. 26—General Provisions Governing Discovery Ala. R. Civ. P. 28—Persons Before Whom Depositions Can be Taken Ala. R. Civ. P. 30—Depositions Upon Oral Examination Ala. R. Civ. P. 31—Depositions Upon Written Questions Ala. R. Civ. P. 32—Use of Depositions in Court Proceedings

3. DEPOSITION 101-COMMON ISSUES • Deficient Notice of Videotaped Depositions • Ala. R. Civ. P. 30(b)(4) • Manner of recording • Reason why such recording is necessary or desirable.

4. DEPOSITION 101-COMMON ISSUES • Objections Regarding Witnesses in Attendance • Ala. R. Civ. P. 30(c): Examination and cross-examination of witnesses may proceed as permitted at the trial under the Alabama Rules of Evidence, except that Rule 103 and Rule 615, Ala. R. Evid., which deal with trial procedure, are not applicable to pretrial discovery. • No rule of sequestration.

5. DEPOSITION 101-COMMON ISSUES • Failure to File Timely 30(b)(5) Objections. • Ala. R. Civ. P. 30(b)(5): Allows party to request the production/inspection/copying of: (1) designated books; (2) papers; (3) documents; or (4) tangible things. • Objections “must” be served within 14 days of receipt of the notice.

6. DEPOSITION 101-COMMON ISSUES • Failure to Identify Proper Corporate Representative • Ala. R. Civ. P. 30(b)(6) • Noticing party required to “describe with reasonable particularity the matters on which examination is requested.” • Organization shall designate one or more officers, directions, or managing agents, or other persons… • The persons so designated shall testify as to matters known or reasonably available to the organization.

7. DEPOSITION 101-COMMON ISSUES • INSTRUCTING THE WITNESS NOT TO ANSWER PROPER QUESTIONS • Objections during depositions are limited: • Manner in which the deposition is being taken. • Form of the question. • Privileged matters. • Proper to instruct a witness not to answer a question.

8. PREPARING FOR DEPOSITIONS - DEVELOPING A CASE THEORY • Develop a case theory before you start taking depositions. • Elements of cause of action/affirmative defense. • Jury instructions • Case law • Statutes • Industry Standards

9. PREPARING FOR DEPOSITIONS - DEVELOPING A CASE THEORY • DO NOT RUSH TO TAKE DEPOSITIONS • Ensure you have the documents you need. • Consider taking a 30(b)(5) deposition to ensure that you have all of the available documents.

10. PREPARING FOR DEPOSITIONS - DEVELOPING A CASE THEORY • DO NOT RUSH TO TAKE DEPOSITIONS • Ensure you have the documents you need. • Consider taking a records custodian’s deposition to ensure that you have all of the available documents. • Make sure you have received copies of any documents the opposing party has received from their Rule 45 subpoenas.

11. WITNESS PREPARATION • BEFORE DEPOSITIONS ARE EVEN SCHEDULED

13. WITNESS PREPARATION • BEFORE DEPOSITIONS ARE EVEN SCHEDULED • Caution your client about their use of social media. • Ensure they adjust their privacy settings and are on the lookout for odd friend requests. • Do not violate any evidence preservation requirements. • Update your client regarding theory, themes, factual findings during discovery. • Trying to make them understand it days before the deposition is overwhelming. • Send them your medical summary and any other documents that you would have them review in preparation for the deposition, i.e. accident report, interrogatory responses, etc.

14. WITNESS PREPARATION • No Surprises • Know your client’s criminal history, prior litigation history, medical history, etc. • Important to have built a relationship with your client so that they trust you with their secrets (or what they think are secrets). • Explain admissibility of evidence v. impeachment. • Make them feel safe and protected. • Ensure you have all of the documents the other side has before the deposition. • Request copies of Rule 45 responses when NOIs are received. • Do not be afraid to cancel a deposition if the documents are sent the night before.

15. WITNESS PREPARATION • Familiarity with the Process • Bring the client into the office early to observe a deposition if possible. • Have a colleague perform a mock cross examination. • Show the client a videotaped deposition from another case. • Explain the purpose of the deposition and their role. • Witness not advocate.

16. Witness Preparation • DEPOSITION “RULES” • Be polite. • Relax. • Understand the question before you answer. • Opposing counsel is not your friend. • Do not guess. • Do not volunteer information. • Tell the truth.

17. WITNESS PREPARATION – Corporate Rep. • Imperative Identify the Proper Representative(s) • Ala. R. Civ. P 30(b)(6) requires that those identified as corporate representatives be knowledgeable about the subject areas identified in the notice. • The best corporate representatives are often not the company higher ups, but those who are actually involved in the day-to-day management of the company. • Understand the nuances of the actual application of company policies and procedures.

18. WITNESS PREPARATION – Corporate Rep. • Review all documents produced. • Ensure your 30(b)(6) can answer questions regarding all of the documents that have been produced. • Ensure there are not any additional documents that were not provided. • If that witness cannot either find someone in the company who can prepare them to be able to or identify someone else to testify regarding that subject area. • Make sure the 30(b)(6) understands how each document plays into the Plaintiff’s theory.

19. DEPOSITION PREPARATION – RETAINED EXPERTS • Your Retained Expert • Prepare that person just like you would any other witness. • Ensure they have all of the documents/depositions/discovery responses well in advance of their deposition. • Ensure they understand your theory/themes. • Make sure they know whose case it is.

20. DEPOSITION PREPARATION – RETAINED EXPERTS • Opposing Party’s Expert – Purpose of Deposition • Confirm and lock in all opinions that witness intends to offer. • Obtain details regarding qualifications to prepare for potential challenges to the same. • Explore areas of impeachment. • Explore weaknesses in their opinions.

21. DEPOSITION PREPARATION – RETAINED EXPERTS • Opposing Party’s Expert – Preparation for Deposition • Become as knowledgeable about the subject area as possible. • Textbooks. • Consulting experts. • Know the Witness. • Prior Depositions • Expert vetting services. • Deconstruct Each Opinion

23. EXAMINING RETAINED EXPERTS • Out smart the expert. • Get them to change their opinion. • Can get them to agree that if certain facts were true it may change their opinion.

24. EXAMINING MEDICAL EXPERTS • What Are Your Goals? • Relatedness of injury. • Mechanism of injury. • Establish aggravation of pre-existing condition. • Prove or refute permanent injury. • Prove or refute need for future medical treatment. • Elicit facts that support/refute plaintiff’s pain/suffering complaints.

25. EXAMINING MEDICAL EXPERTS • Preparation for Medical Expert Depositions • Obtain complete medical history of plaintiff to the extent possible. • Ensure you have that doctor’s complete file. • Familiarize yourself with the relevant medical terminology contained within the records. • Meet with the doctor or consult with another doctor in the same field.

26. EXAMINING MEDICAL EXPERTS – USE OF DEMONSTRATIVES

27. EXAMINING MEDICAL EXPERTS – USE OF DEMONSTRATIVES

29. DEPOSITION STRATEGY

30. CONCLUSION - TAKEAWAYS • Be Civil. • Understand the purpose of your deposition. • Be prepared. • Know the facts better than everyone else. • Know what is in the documents that have been produced.

31. Sara L. WilliamsAlexander Shunnarah Personal Injury Lawyersswilliams@asilpc.com