In this episode, Jim Garrity, fresh from a five-day jury trial - his first since March 2020, when COVID-19 began shutting down courtrooms everywhere - shares thoughts about passing on depositions of important but limited-knowledge witnesses, and instead hitting them with your cross for the first time in front of the jury. His decision in that case not to depose the top official of a statewide agency, and another senior official within the same agency, paid off. Both were called to the stand and ...
Apr 20, 2021•11 min•Ep. 37
We've all heard the mantra that the testimony of a corporate or organizational representative under Fed. R. Civ. P. 30(b)(6) or its state analogues is "binding on the entity." But is it? Does an entity have fewer rights to later serve affidavits that contain contradictions of varying magnitudes than an individual deponent does? In this episode, Jim Garrity answers the question, offers practical tips, and provides supporting case citations in the show notes. Please do us a small favor. Sure to ra...
Apr 04, 2021•10 min•Ep. 36
Many lawyers are still struggling to find just the right guidelines or protocols for taking or defending remote depositions. The opportunities for deposition misconduct are many in the absence of binding agreements about who's going to be where doing what. In this episode, Jim Garrity spotlights two decisions, one just five days old, in which the courts approved excellent, detailed protocols for conducting depositions remotely. The two cases are cited in the show notes. If for some reason you ca...
Apr 01, 2021•3 min•Ep. 35
Courts generally allow you to withhold true impeachment evidence until after the deposition of a witness to whom the evidence pertains. If you're the party holding the evidence, that could allow you to set the adversary up for a devastating credibility blow. What key question do courts ask in deciding whether such evidence can be withheld until after deposition? And what remedies do you have, if you're the party seeking production of evidence, to persuade a court to force production before the d...
Mar 28, 2021•10 min•Ep. 34
Dealing with an adversary, whether it's an attorney or a pro se litigant, who seems hell-bent on harassing deponents? We've all had to deal with it. In this episode, Jim advocates using Fed. R. Civ. P. 31 as an offensive weapon to protect deponents. It's a genius-level move, but not one many litigators take advantage of. At the end of the episode, Jim offers practical tips, and includes case cites in the show notes to help you get started. As always, thank you for listening. And please take just...
Mar 25, 2021•6 min•Ep. 33
Often, lawyers agree to "the usual stipulations" at the start of the deposition. Just as often, it's unclear what those stipulations are, and how they affect the assertion of objections during the deposition. But one thing is clear. "Usual stipulation" agreements do not apply to objections based on privilege. Privilege objections must be asserted regardless. In today's Lessons from the Front Lines episode - special episodes where we spotlight a brand new court ruling on deposition-related issues...
Mar 18, 2021•16 min•Ep. 32
What's the best way to prevent evasive witnesses, as you wrap up their depositions, from claiming they didn't understand many of your questions, and/or that they were operating under some impairment, and so their answers shouldn't count? Jim Garrity shares a story about a deposition last week in which an adverse witness did exactly that. She claimed she hadn't understood many of his questions, and wanted him to repeat most of them. Jim tells us it was clear the witness had given many false answe...
Mar 04, 2021•11 min•Ep. 31
If you're like Jim Garrity, court reporting and transcript costs have become a major factor in your firm's or organization's operations. Smaller firms are having trouble surviving, because they can't afford to carry tens of thousands of dollars in transcript costs. Larger firms are having to adjust as well. What to do? In this episode, Jim identifies some excellent alternatives to traditional stenographic reporting services. Depending on the size of your practice, these alternatives can save you...
Mar 02, 2021•19 min•Ep. 30
In this Lessons from the Front Lines episode, based on a February 1, 2021 federal court ruling, Jim Garrity takes Episode 28 a step further. Previously, we addressed the question whether you can, as a matter of right, take multiple depositions of the same witness. In this episode, we ask the next question: What if another party first notices and takes the deposition of a witness under Fed. R. Civ. P. 30? Will that prevent you from separately noticing and deposing the same deponent later? Under t...
Feb 15, 2021•11 min•Ep. 29
Your opponent sends you an email saying he just needs an "update deposition" of your client. What say you? In this episode, Jim Garrity notes that an "update" deposition is just a second deposition in sheep's clothing. And you'd better think twice about allowing it. Garrity tells you how to oppose it, and provides a dozen specific arguments to make. In the interests of balance, he also offers a dozen arguments to make in favor of a second deposition, if you're seeking one. The show notes below c...
Feb 03, 2021•22 min•Ep. 28
Have you ever had a lawyer challenge you about conferring with your client during breaks in depositions, or suggest that you're violating some rule or ethical norm by doing so? Or, even instruct your clients before a break not to discuss their testimony with anyone - you included? The pesky notion that it's wrong to talk to clients about their testimony during deposition breaks appears to have its genesis in Hall v. Clifton Precision, a 1993 federal court ruling. But does Hall accurately represe...
Jan 26, 2021•14 min•Ep. 27
In today's Lessons from the Front Lines - special episodes where we spotlight new deposition-related rulings in active lawsuits around the U.S. - Jim Garrity takes a look at a California case where a deponent and his counsel terminated a deposition, but then smartly took steps to immediately resume it - within just nine minutes - and effectively avoided sanctions. It was a great tactic. Jim discusses the details and offers practical tips about how to undo the harm when you've made a similar deci...
Jan 18, 2021•13 min•Ep. 26
In this episode, Jim Garrity talks about the risk litigators face of being sued for asking deposition questions that deponents perceive as defamatory or malicious. Jim reviews the "litigation privilege," both in its absolute and qualified form, and offers practical tips based on nearly a dozen real-life cases, where deposition questions or conduct led to lawsuits against the lawyers, their clients, or both. Case cites for your use appear below in the show notes. SHOW NOTES: (Note: We add new cas...
Jan 15, 2021•27 min•Ep. 25
Join Jim Garrity in a deep dive into the law of short-notice depositions, which can trigger astonishingly severe consequences. The federal rules define "short notice" as a deposition set with less than 14 days' notice. In this episode, Jim outlines the rule, the cases, and more than a dozen tactical tips and pointers. And be sure to check out the show notes, below, which cite to a few dozen decisions on point, all with full case citations and parentheticals, to help you get started when the issu...
Jan 04, 2021•46 min•Ep. 24
It's not unusual for adversaries to cross-notice your key depositions, either of their own witnesses or of non-party deponents. That allows them unfettered ability to conduct a wide-open, more focused followup examination (after listening to yours). In this episode, Jim Garrity shares a tactic for flipping the script on your opponents, forcing them to go first, and allowing you to sit back and learn what the lawyer and deponent really know before it's your turn.
Jan 04, 2021•7 min•Ep. 23
In this episode, Jim Garrity talks about one of the greatest time and money-saving tools you've never heard of. Fed. R. Civ. P. 29(a) stipulations allow you to eliminate both expected and unexpected hassles in your depositions, and even to eliminate court reporters, for tremendous cost savings. Jim outlines the rule, offers nearly a dozen great practice tips, and includes (in these show notes, below) nearly twenty case citations, complete with detailed parentheticals. Your homework's been done f...
Dec 25, 2020•30 min•Ep. 22
Did you know your court reporter's machine keeps track of the total elapsed time of the examination while the deposition is in progress? Right down to the second? And that the reporter can easily share that elapsed time with you as the deposition progresses? Did you also know that you can ask the reporter to add - on the transcript itself - the exact time (also down to the second) of each question you asked, and of each answer given by the deponent? These two functions, called the "timekeeping w...
Dec 15, 2020•4 min•Ep. 21
You need to depose a high-ranking government or corporate official, but their lawyer refuses, saying the official is protected by the Morgan Doctrine, sometimes called the Apex Doctrine. This principle stands for the proposition that high-level officials may be able to avoid being deposed by showing either that they lack meaningful personal knowledge or that others of lower rank can provide the same information. In this episode, Jim Garrity explains the doctrine, and offers practical insights in...
Dec 13, 2020•13 min•Ep. 20
In a November 30, 2020 Memorandum Order, a federal judge imposed sanctions against a lawyer for alleged excessive and improper objections during depositions. According to the Order, the defense attorney was accused of making 565 objections in one deposition, 187 in another, and 170 in a third, for a total of 922 in just those three. In this episode, Jim Garrity discusses the case and shares his thoughts about how many speaking or coaching objections you should tolerate before taking steps to tal...
Dec 03, 2020•13 min•Ep. 19
Federal Rule of Civil Procedure 30(b)(6) - the subsection that allows you to compel an organization to produce a representative who can testify knowledgeably about topics you selected - has just been amended. Effective today, December 1, 2020, litigators are now required to confer about the matters for examination, and must do so either (a) before the deposition is noticed (or subpoena served), or (b) promptly after issuance of the notice or subpoena. Jim Garrity explains the change to the rule,...
Dec 02, 2020•10 min
Courts have been ruling on the question for years: Is it proper to ask the same questions in depositions that you just asked (and received answers to) in interrogatories? In this episode Jim Garrity definitively answers the query, and provides practical guidance for you. This podcast is based on the best-selling 450-page field guide, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, now in its 3d edition. Buy it on Amazon, or just about anywhere else you bu...
Nov 30, 2020•16 min
What to do when you reach out to schedule an opponent's expert witnesses for deposition, and are told that you've got to pay the experts an outrageous hourly-rate or flat-rate fee (in advance) before they'll appear? In this episode, Jim Garrity reviews an excellent November 18, 2020 court ruling on the issue, and offers tips for combating this discovery obstacle.
Nov 23, 2020•17 min•Ep. 16
Tired of fighting over protocols for your remote depositions? We've got the solution. In this episode, Jim Garrity discusses a fourteen-page list of protocols negotiated between some of the best lawyers in the world, and then adopted by a highly-respected federal judge. It's a great model to use in developing remote deposition procedures in your own cases. We'll also tell how to find and download the order.
Nov 18, 2020•5 min•Ep. 15
A November 10, 2020 Discovery Order from a California federal judge says "asked and answered" objections are improper speaking objections. Jim Garrity says the ruling is clearly wrong, because "asked and answered" is a proper form objection with origins in at least two federal rules of evidence (403 and 611). Listen to Garrity's analysis of the ruling and the rules.
Nov 13, 2020•11 min•Ep. 14
Should you cross-notice depositions set by another lawyer? How does cross-noticing benefit you? What's the chief reason you ought to cross-notice a deposition? We give you the scoop on this technical move, and tell you when it really serves its purpose. Don't miss the expert insights from national deposition expert Jim Garrity.
Nov 11, 2020•24 min•Ep. 13
You're defending a deposition, and the form of the examining lawyer's questions are improper. What's the correct way to make your form objection? Is it just saying the word "Form"? Or, must you also state the legal basis for your form objection, such as "Form, leading?" Many courts have said that if your objection isn't properly asserted, you've waived it. So, which is it? In this episode, Jim Garrity tells you what courts have said, and he offers practical tips for making sure your objections s...
Nov 07, 2020•23 min•Ep. 12
Many of your lawsuits involve events that can be physically demonstrated or re-enacted. Indeed, your success in pursuing your claims or defenses may depend on the jury's acceptance that an event took place exactly as you assert. So a videotaped deposition in which you require a witness to demonstrate or re-enact their conduct can be compelling visual proof. Don't overlook this powerful tool in your arsenal. In this episode, we provide you with our insights and strategies for seeking - or opposin...
Nov 05, 2020•26 min•Ep. 11
Errata sheets - the blank pages that come with a draft transcript for your deponents to use in correcting or changing testimony - serve an important function. But there are five strict requirements for using them, and if you fail to satisfy all five elements, the entire errata sheet may be deemed a nullity. We tell you how to do it right, and what to look for if you want to challenge an opposing witness' changes. SHOW NOTES: *Maeda v. Kennedy Endeavors, Inc., 2021 WL 4134811 (Sept. 10, 2021) (er...
Nov 02, 2020•18 min•Ep. 10
You finished your examination of a witness whose deposition you noticed, and the opposing lawyer - who did not cross-notice the deposition - has launched into a lengthy cross that goes far beyond anything you covered. And there's no end in sight. How much cross beyond the scope of your examination is "too much?" When is it okay to stop the deposition, and seek a protective order? We provide guidance for dealing with this common situation.
Oct 30, 2020•10 min•Ep. 9
You and your team take laptops to every deposition. But you never take a printer. Why? Portable printers are lightweight, modestly priced, and worth their weight in gold in pretrial depositions. Deponents often refer to documents, places or things that you can easily find online and then print as exhibits on the spot. You can also instantly generate new discovery, based on information gleaned during the deposition, and immediately hand it to opposing counsel. Or even print documents you left beh...
Oct 30, 2020•8 min•Ep. 8