In this episode, Jim Garrity addresses the question whether your deposition subpoena, which contains a specific date and time for appearance, in fact expires (requiring the witness to be re-subpoenaed) if the deposition is postponed to a future date. As always, he ends the episode with incredibly insightful practice tips, including sample language to include in your subpoenas to avoid this expiration-date argument. Check the show notes for the cases upon which this episode is based. And if you'd...
Oct 05, 2021•9 min•Ep. 67
Did you know? Our show notes - where we list the cases and other authorities on which each episode is based - are dynamic. That means we're constantly updating and adding to them. As we encounter new cases in our daily deposition research that touch on a topic we've covered, we'll add them to that episode's show notes. These notes are a free, incredibly valuable research bank for you when you encounter an issue we addressed. We'll add an asterisk to case citations that were added after an episod...
Sep 30, 2021•4 min•Ep. 66
What exactly have your remote video deponents placed in front of them - on their screen, on the floor, on sticky notes, on a second monitor and elsewhere - to help them testify and spew the official line? Do you systematically inquire at the start of your remote depositions? In this episode, Jim Garrity recommends that you always ask about devices and information - within the deponent's reach or eyesight - at the start of all remote video depositions. Want the Deponent-Accessible Device and Info...
Sep 28, 2021•9 min•Ep. 65
Trial is approaching, and you learn a witness you planned to call live now isn’t available. You'll need to read or play their deposition testimony instead. That means that you must prove the witness' "unavailability" under the rules. How do you do it? Which rules do you need to analyze? How far in advance of trial do you have to do it? Can you just tell the judge that, last you heard, Peter, Paul, and Mary were leaving on a jet plane, and you don’t know when they’ll be back again, so you’re prob...
Sep 25, 2021•41 min
In this episode, Jim Garrity explores the effect of language added by many litigators in their notices that the deposition may be used (apart from discovery purposes) at trial, in lieu of live testimony by the deponent. But does simply declaring this make it so? Does this eliminate the need to prove unavailability before the deposition can be read? Garrity discusses what courts have to say about the ramifications of adding this language, and offers practice pointers both for lawyers who want to ...
Sep 17, 2021•20 min•Ep. 63
In this episode, Jim Garrity shares a valuable tool for protecting the identities of nonparty deponents and, in the process, protecting their careers, reputations, and families. A deponent who sees that you've taken steps to protect them is a deponent likely to tell you everything they know. Be sure to check out the show notes, as always, for citations supporting the observations in this episode. Please note that not all sites where our podcasts are available will show you the entire list of aut...
Sep 11, 2021•17 min•Ep. 62
In this Lessons from the Front Lines episode - where we review brand-new deposition-related cases from around the country - Jim Garrity discusses a new ruling that belongs in your research files (and in your briefcase at depositions) on the right and wrong way to make depositions. The opinion, written by a relatively new federal magistrate who took great pains to catalog cases on this topic, contains more than fifty citations to authority from around the country. So it's an excellent opinion to ...
Sep 08, 2021•15 min•Ep. 61
In this episode, Jim Garrity concludes the Core Essential Series on preparing your clients for depositions by discussing additional topics to cover with your clients, including the possibility of questions about dishonest or illegal acts, the likelihood of a wide range of personal background questions, inquiries about information your client has obtained and whether anyone associated with the adversary has been providing information behind the scenes, and the critical importance of eating and ta...
Sep 03, 2021•16 min•Ep. 60
In this episode, Jim Garrity continues the series on preparing your clients for depositions. He’ll wrap up this series in the next segment. Today's episode includes pointers to share with your clients about the importance of giving complete answers to lawyers who constantly interrupt, the importance of listening to the entire question, the need to read all documents with great caution, the significance of appreciating that adversaries sometimes do alter documents (and that it may not be obvious)...
Aug 30, 2021•17 min•Ep. 59
In this episode, Jim Garrity shares additional critical insights for preparing your clients for deposition. Today's episode includes pointers to share with your clients about how judges, opposing lawyers, and juries use transcripts; appreciating and understanding the difference between answering questions in a social conversation and in a deposition; the importance of saying "I don't know" and "I don't remember" when your clients don't know or don't remember; the importance of sticking to their ...
Aug 26, 2021•25 min•Ep. 58
In this fourth installment of Preparing Your Clients for Deposition, Jim Garrity begins sharing critical insights you need to tell your clients about the deposition process: the layout of the room where the deposition will take place, who will be present and where they will be seated, the importance of taking regular breaks to prevent mental exhaustion, and the differences between depositions as seen on TV and depositions in real life. That includes the general obligation to answer every questio...
Aug 24, 2021•28 min•Ep. 57
In this third installment of our Core Essential series on preparing your clients for deposition, Jim Garrity covers the three building blocks for effective client deposition prep: explaining the deposition process start to finish, explaining the tricks and traps used by opposing lawyers, and conducting mock depositions in the exact style of the examining lawyer. In other words, train as you fight. As always, thank you for listening. We appreciate your support, and would genuinely appreciate it i...
Aug 17, 2021•14 min•Ep. 56
In episode 47, Jim Garrity spoke about the problems you may encounter when entities produce a large number of 30(b)(6) designees on an equally large number of topics (e.g., 29 designees on 30 topics). Today, Garrity covers the difficulties you'll face when an entity produces just a single designee to cover a large number of topics (e.g., one designee on 33 topics). What complications will this cause for you, and how should you deal with it? As always, Garrity offers practical tips for dealing wi...
Aug 13, 2021•18 min•Ep. 55
In this episode, Jim Garrity stresses the importance of always reserving the right to review the transcript of your client's deposition testimony, and provides a fresh example from one of his own cases about the errors that sometimes creep into the transcription of even the best reporters. CASE NOTES: CSC Holdings, Inc. v. Alberto, 379 F.Supp.2d 490, 493 n. 1 (S.D.N.Y.2005) (stating that “original deposition answers constitute the admissions of a party, and as such form part of the record eviden...
Aug 03, 2021•6 min•Ep. 54
In this episode, Jim Garrity stresses the importance of beginning your first deposition-specific meeting by understanding what your clients THINK about depositions. What do they think they're for? How long do they think it will take? What do they think the opposing lawyers will do with the transcript? Do they know how judges and juries use them? Your clients will always arrive with at least some beliefs - from films, from TV shows, and from friends and family. It's critical to assess their perce...
Jul 29, 2021•7 min•Ep. 53
In this episode - the first in a new series on preparing your clients for deposition - Jim Garrity outlines the initial, essential steps for creating invincible deponents. That includes a deep dive into your client's background, so you're not caught off guard by side issues that could derail the case.
Jul 19, 2021•29 min•Ep. 52
In this episode, we introduce a new line of episodes that will address core essentials of deposition practice, beginning with preparing clients to be invincible witnesses in their depositions.
Jul 14, 2021•4 min•Ep. 51
In this episode, Jim Garrity asks you to ponder the predictability of your approach to examining witnesses, such as the order in which you cover topics, and the similarity of your questions from deposition to deposition. Garrity refers to the cluster of tactics and styles you use as your "deposition profile," and urges you - through a series of rhetorical questions - to consider whether your predictability is allowing adversaries to more effectively prepare their deponents against you.
Jul 08, 2021•9 min•Ep. 50
A listener shared the following scenario with us, and wants to know what to do. Increasingly, and right in the middle of depositions, opposing lawyers ask, "Do you have her phone number?" or "Do you have texts/emails/pictures?" And, commonly, the answer is yes. Virtually all clients now walk into depositions with a cell-phone loaded with actual or potential evidence. Clients who testify by video from home have even more potential evidence at their fingertips. But is a lawyer who demands (in the ...
Jul 01, 2021•15 min•Ep. 49
In this episode, Jim Garrity discusses a brand-new deposition-related decision from the U.S. Court of Appeals for the Eleventh Circuit, whose jurisdiction spans Florida, Georgia and Alabama. The appeals court held that a party should be able to depose witnesses if there is a reasonable basis to do so, even where the adversary claims the witnesses know nothing, and even if the witnesses themselves file affidavits swearing they know nothing. Witnesses who may have knowledge, the Court held, should...
Jun 25, 2021•14 min•Ep. 48
In this episode, Jim Garrity takes a question from one of our listeners. The listener served up a 30(b)(6) topic list covering 30 specific topics. in turn, the entity said, it would produce 29 separate designees. Our listener asks: Can they do this? Is this abusive? Listen in to hear Garrity's response and practice tips. As always, the full citations for cases mentioned in each episode are listed below in the show notes for your quick reference. And if you have questions you would like covered i...
Jun 22, 2021•17 min
Your opponent just served its expert disclosures and reports. You then get a deposition notice - they're going to immediately depose their own experts! And since these depositions may be used at trial - experts often meet the test of unavailability - you might be forced to conduct your trial cross-examination prematurely, before you've had a chance to conduct discovery depositions of them. What now? In this episode, Jim Garrity spotlights a June 15, 2021 court ruling in which a federal judge con...
Jun 17, 2021•24 min•Ep. 46
There are probably few things more irritating, when examining a deponent, than having the defending lawyers repeatedly interrupt and claim they don't understand your questions. It's bad enough when witnesses feign ignorance of the obvious. But the opposing lawyers, too? In this episode, Jim Garrity tackles the subject of lawyers who engage in obstruction-by-colloquy, and how to deal with it. Helpful case citations in the show notes, below. Thanks for listening. SHOW NOTES Musto, et al. v. Transp...
Jun 10, 2021•18 min•Ep. 45
Today we introduce a new category of episode, based on your fantastic feedback about things you’d like to get out of the podcast. Episodes in this category will be called Objectionable Objections, and each will focus on a single type of improper objection commonly made by lawyers in depositions. Today’s episode zeroes in on "If you know" speaking objections and its poisonous cousins, "If you remember," "If you understand the question," "Don’t assume," "Don’t speculate," and so on. They'll wreck ...
Jun 04, 2021•6 min•Ep. 44
You properly subpoenaed the non-party witnesses. You issued the subpoena from the correct court, and you even included a check for mileage. You did everything right. (Yay you!) But they still failed to show up. Now what? Do you ask the court to compel the non-party witnesses to appear for deposition? And/or hold them in contempt? Or should you do nothing more now, but later seek to bar them from testifying at trial because of their failure to cooperate? One of those two options is a best-practic...
May 26, 2021•16 min•Ep. 43
In this Lessons from the Front Lines episode, where we review brand-new deposition-related cases from around the country, Jim Garrity discusses two decisions that highlight the importance of - and risks associated with - choosing the documents you used to prepare deponents, especially unrepresented non-party witnesses. Garrity shares key insights, and offers practical tips at the end of the episode. The cases upon which this episode is based are cited in the show notes. SHOW NOTES: Rodolfo Tecoc...
May 22, 2021•14 min•Ep. 42
In this episode, Jim Garrity offers practical tips for developing deposition testimony that will allow you to use leading questions when examining adverse witnesses you'll call during your case-in-chief at trial. Being able to lead so-called "611(c)(2) witnesses" before the jury is a tremendous advantage, but you've got to first build the foundation. Garrity explains the requirements of Fed. R.Evid. 611(c)(2), and offers numerous lines of deposition inquiries to meet your burden. SHOW NOTES Mcle...
May 12, 2021•20 min•Ep. 41
In this Lessons from the Front Lines installment - our special episodes where Jim Garrity shines the spotlight on a brand-new court decision of interest to litigators - a judge on April 25, 2021 dealt with a lawyer's alleged coaching during a deposition in a novel, embarrassing and potentially damaging way. The full case citation appears in the show notes below. As always, thank you so much for listening. We greatly appreciate it. And please do take a moment to leave us a five star rating wherev...
May 03, 2021•8 min•Ep. 40
In this episode, Jim Garrity encourages you to think of Fed.R.Civ.P. 30(b)(6) depositions as an ingenious, unlimited source for additional interrogatories, if you need more than is allowed by rule. Rule 30(b)(6) depositions (and their topic lists) are close cousins of the interrogatory, because both result in responses that are the voice of, and bind, the responding entity. This is the kind of thinking that Garrity urges - the use of deposition rules and procedures as tools that can be used in c...
Apr 28, 2021•6 min•Ep. 39
in a conversation with other lawyers recently, Jim Garrity was asked whether more than one lawyer for a party can question the witness in a deposition. This episode addresses that topic, explains how courts view it, and offers practical suggestions, as always, if you face or wish to use this strategy. The show notes contain eight reported decisions that will help get you started if you need to conduct research for one of your cases. Please take a moment and leave us a five-star review wherever y...
Apr 22, 2021•8 min•Ep. 38